In its editorial marking the 233^rd year since the founding of our nation, The Washington Post observes that, “The men who produced the Constitution were preoccupied with the abuse of power. They talked in terms of restraint, division of powers, limits on government. They were ever mindful of the ways in which a majority could impose its will on a minority.”  

But as Ricci v. DeStefano demonstrates, sometimes the abuse of power occurs when the government seeks to impose its will on a majority.

In 2003, New Haven, CT, administered a test to 58 whites, 23 blacks and 19 Hispanics to determine eligibility to fill 15 much-coveted positions for lieutenants and captains in its fire department. Only 19 of them passed the test - 60 percent of the scores were based on a written exam, 40 percent on an oral exam – which had been carefully designed  and vetted by outside experts to ensure that minorities would not be discriminated against (for instance, each three-person panel administering the oral exam included two minorities). The city’s plan was to fill each open slot over a two-year period with the top-scorer. The top 10 vying for lieutenant's position were all white, and the top nine eligible to be promoted to captain included seven whites and two Hispanics.

Where things got ugly, writes Washington Post columnist George Will, is when “in a context of racial rabble-rousing” the city threw out the exam results and announced that no one would be promoted:

[Rev. Boise Kimber] allied with the seven-term mayor warned of a dire "political ramification" if the city promoted from the list of persons (including one Hispanic) that the exams identified as qualified. The city decided that no one would be promoted, calling this a race-neutral outcome because no group was disadvantaged more than any other.

The firefighters who had earned their promotions according to the criteria under which all the test-takers were judged sued because they were denied promotions on the basis of their race (disparate treatment), which violated Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. The city argued that the test had a disproportionately adverse effect on minorities (“disparate impact”), which is also illegal under the Civil Rights Act, as amended by Congress in 1991.

Without reconciling the conflict between due process and disparate impact, the Supreme Court ruled 5-4 that the firemen were victims of racial discrimination. The majority opinion written by Justice Anthony Kennedy for Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. held that:

† Employment tests can be an important part of a neutral selection system that safeguards against the very racial animosities”;

† Test results can’t be thrown out “absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate impact provision”;

†  [T]here is no evidence  - let alone the required strong basis in evidence - that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City”; and that

†  [A]fter the tests were completed, the raw racial results became the predominant rationale for the City’s refusal to certify the results.

The Supreme Court basically ruled that when the test is not at fault for a disparate result, the test takers are. In other words: This group of black firefighters who took the test did not have what it takes to be promoted. The residents of Washington, D.C., in particular, know the dangers of hiring unqualified people for public safety jobs.

In his concurring opinion Scalia noted that the Court’s resolution “merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?” He added:

As the facts of these cases illustrate, Title VII’s disparateimpact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes. …

[D]isparate-impact laws do not mandate imposition of quotas, but it is not clear why that should provide a safe harbor.

Alito also wrote a concurrence, to address “omissions” about the duress under which New Haven city officials were under when they scrapped the test in Ruth Bader Ginsburg’s dissenting opinion:

[C]ity officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.” …

Reverend Boise Kimber … is a politically powerful New Haven pastor and a self-professed “‘kingmaker.’” … On one occasion, “[i]n front of TV cameras, he threatened a race riot during the murder trial of the black man arrested for killing white Yalie Christian Prince. He continues to call whites racist if they question his actions.”

Cronyism also played a significant role in the events leading to the firefighters’ lawsuit, notes Alito:

Reverend Kimber’s personal ties with seven-term New Haven Mayor John DeStefano (Mayor) stretch back more than a decade. In 1996, for example, Mayor DeStefano testified for Rev. Kimber as a character witness when Rev. Kimber - then the manager of a funeral home - was prosecuted and convicted for stealing prepaid funeral expenses from an elderly woman and then lying about the matter under oath. … “Reverend Kimber has played a leadership role in all of Mayor DeStefano’s political campaigns, [and] is considered a valuable political supporter and vote-getter.” …

In 2002, the Mayor picked Rev. Kimber to serve as the Chairman of the New Haven Board of Fire Commissioners (BFC), “despite the fact that he had no experience in the profession, fire administration, [or] municipal management.”

And Alito must have loved this: In his capacity on the BFC, Kimber “told firefighters that certain new recruits would not be hired because ‘they just have too many vowels in their name[s].’” Given Kimber’s relationship with the mayor, doesn’t this comment evince prima facie discrimination by the city against firefighters of Italian descent? Alito seems to think so:

There is a large body of court of appeals case law on this issue, and these cases disagree about the proper standard. … One standard is whether the subordinate “exerted influenc[e] over the titular decision maker.” … (A subordinate’s bias is imputed to the employer where the subordinate “influenced or was involved in the decision or decision making process”). Another is whether the discriminatory input “caused the adverse employment action.”

The Supreme Court’s decision affirms that reverse discrimination – the tyranny of the minority, if you will – is wrong. The high court may yet rule that it is also unconstitutional.

The Stiletto Blog Celebrates Another Birthday

In her write-ups of these political events The Stiletto regularly scooped MSM pundits and reporters, including Jon Friedman, Michael Goodwin, Jeff Jacoby, Dana Milbank and Robert Novak (each post is the last item on its respective page) - proving that blogs can compete with the MSM when it comes to perceptive analysis.

Finally, three particular points of pride: The Stiletto Blog hosted posts by The New Agenda until the newly-formed feminist group launched its own Web site; after reading her first-person piece,  “The Abortion I Did Not Have,” BrightBulb Entertainment is considering interviewing reader Pam Siegfried for a planned documentary, “Choosing Life”; and Fox Forum has picked up a couple of The Stiletto’s posts.

Editorial Note: The Stiletto invites lurkers to become regular readers and readers to become subscribers. She also hopes commenters will engage each other in spirited debate. Finally, please tell family, friends, neighbors and co-workers about The Stiletto Blog!

Independence Day Bonus

† According to a Rasmussen telephone survey, 82 percent of American adults say that if given the choice of living anywhere in the world, they would still choose to live in the U.S.A. Regular readers of this blog know The Stiletto is one of them.

† Marketing Daily reports that 62.6 percent of Americans - 144 million people - will host or attend a cookout, barbecue or picnic this weekend, up from 139 million people, last year and 121 million own an American flag.

† Industrial Market Trends reports that at these barbeques 150 million hot dogs will be eaten at these barbecues and picnics. Another interesting stat from IMT: When the Declaration of Independence was signed, there were just 2.5 million Americans; today, there are nearly 306.8 million of us.

Editorial Note: Take a moment to count the blessings of being an American; to read this commentary by economist-columnist-actor Ben Stein in The American Spectator, who urges us to pray for “the men and women of July 4” (“If we have freedom to celebrate again this year, it has been paid for, again, in the currency of the lives and limbs of the American fighting man and woman and their families.”); and to remember that there are people around the world right now who have been taken hostage, are enslaved or are otherwise subjugated.