What Color Is A Hero?
July 2, 2009
Justice came to a group of white and Latino firefighters from New Haven, Connecticut earlier this week, when the US Supreme Court ruled 5-4 (in Ricci v. DeStefano) that the city of New Haven had illegally discriminated against them by throwing out the results of a promotional exam they had performed well on merely because “not enough” blacks earned high scores. The result was a victory for those who oppose the more exotic (and unconstitutional) forms of affirmative action. It was also a victory that, under different circumstances, could have come to folks in Boston nearly two decades ago.
In September 1989, 35 white men filed a federal lawsuit against the city, alleging that they were the victims of diversity-based discrimination. According to a September 15, 1989 Boston Globe story (“Whites File Suit for Fire Department Jobs”), “all of those seeking the remedial action scored 100 on a December 1987 civil service exam. They allege in the suit that their civil rights were violated by preferential treatment in hiring given to people of ‘black and Spanish-surnamed origin,’ even though those candidates scored lower on the exam.”
The plaintiffs desired the termination of a federal consent decree controlling hiring in the Boston Fire Department. The decree, enacted in 1974 by the late US District Court Judge Frank H. Freedman, was intended to resolve a 1972 lawsuit (Boston Chapter, NAACP, Inc. v. Beecher) alleging systemic discrimination against blacks and Latinos who wished to become firefighters in Boston; it ordered the Fire Department to hire one black or Latino candidate for every white candidate hired until the percentage of blacks and Latino firefighters employed by the city of Boston matched the percentage of blacks and Latinos who were residents of the city.
Unfortunately, the plaintiffs could not obtain relief from the federal courts. In June 1991, the late US District Court Judge Walter J. Skinner issued a summary-judgment ruling in favor of the city. The plaintiffs appealed to the US District Court of Appeals for the First Circuit: in July 1992, the appeals court upheld Judge Skinner’s earlier ruling, declaring that the hiring policy was narrowly tailored to fulfill the government’s compelling interest in remedying past discrimination against blacks and Latinos. It was a bitter defeat, not only for the plaintiffs, but also for those who believe that changing the targets of discrimination is not the best way to stop discrimination. After the US Supreme Court refused to “grant cert” (i.e., hear an appeal of the First Circuit’s ruling), the plaintiffs abandoned their dream of becoming Boston firefighters.
Thankfully, the legal terrain shifted between the early-1990s and the early-2000s, allowing another group of plaintiffs to successfully challenge the city’s fire department hiring policy. In 2001, five plaintiffs– Joseph Quinn, Sean O’Brien, Robert Dillon, Joseph Sullivan and Roger Kendrick, Jr.–sued the City of Boston, alleging that they had been discriminated against by the one-for-one policy, which they contended was no longer valid because the percentage of black and Latino firefighters on the Boston force now matched the percentage of blacks and Latinos in the city. In May 2002, US District Court Judge Richard Stearns ruled in favor of the city; however, when the firefighters appealed, the First Circuit overturned Stearns’ decision, ruling in March 2003 that the consent decree had fulfilled its original goal and was thus no longer valid. Sadly, after losing the case, the City of Boston had to be dragged kicking and screaming into actually hiring four of the five plaintiffs.
It’s shameful that it took so long for justice to take effect in Boston. Yes, something had to be done to bust up the old-boy network that existed prior to the early-1970s litigation; obviously, qualified black and Latino applicants should not have been denied the chance to become firefighters based on something as insignificant as race. However, the same goes for qualified white applicants.
The Boston Fire Department cases prove that if there’s one thing conservatives and liberals have in common, it’s a desire to rail against federal judges when they make rulings that go against certain ideological precepts. I remember the columns the late Boston City Councilor James M. Kelly wrote in the South Boston Tribune in the late-1990s and early-2000s criticizing Judge Freedman’s 1974 consent decree (he repeatedly claimed that the Boston Fire Department never intentionally discriminated against blacks and Latinos in the decades prior to the 1972 lawsuit, and that the establishment of the consent decree was an early example of political correctness run amok). Karen Miller, an official with the Boston Society of Vulcans (an organization that advocates for more racial diversity in the Boston Fire Department), was just as vehement after the First Circuit’s 2003 ruling; according to a March 28, 2003 Globe story (“Court Halts Racial Decree For Fire Dept.”), Miller claimed that the pro-colorblindness ruling was a “gross injustice [that] has been done to future applicants of color,” presumably applicants who didn’t score high enough on the test.
I was always uncomfortable with Kelly’s criticisms of Judge Freedman; after all, it can be argued that his hands were tied by the 1971 US Supreme Court decision in Griggs v. Duke Power. I was certainly uncomfortable with Miller’s criticisms of the First Circuit; the court made the only logical call in finding for the plaintiffs.
Hopefully, the rulings in Quinn v. City of Boston and Ricci v. DeStefano will lead to a better situation—one that values merit and diversity while avoiding discrimination.
