Bastardizing Article VII

When Barry Goldwater explained how the 1964 Civil Rights Act would lead to quotas (which is precisely why he voted against it), Hubert Humphrey famously promised to eat a printed copy of the law if it ever happened.

Notwithstanding the court’s decision, the Ricci v. DeStefano case (New Haven, Conn.) is sure to have its place in the history books with respect to this seemingly common practice. The Supreme Court began hearing oral arguments Wednesday. In so doing, the court is set to determine whether or not New Haven, Conn., city officials were acting reasonably or in a racist manner when they tossed out a promotion test that produced better results for white firefighters than black firefighters.

Of the test’s respondents, 19 Caucasians and a single Hispanic claim they should have been promoted based on their successful scores, but the city argued that certifying the tests would have left them vulnerable to lawsuits for violating Title VII of the Civil Rights Act if the white firemen were promoted (Dare I suggest they'd be equally vulnerable to lawsuits in the event they hired insufficienty qualified persons of color and thus subsequently ended up having to fire them).

I refer to SEC. 703. of the Act which states:

(a) It shall be an unlawful employment practice for an employer--
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or…

What precisely is happening here? A standard assessment test (or rather a promotion test in this case) is given to a number of individuals. The test, being race neutral, is a measure of aptitude and/or qualifications for the particular job or promotion (in this case firefighter). Yet, because the results of the test did not produce the desired outcome, which is to say in this context that not enough African Americans, Hispanics, or [pick your favorite racial minority] passed the same test that an overwhelming majority of Caucasians did, something must be awry. And so naturally, the conclusion is that the test must be biased in such a manner as to (again referring to SEC. 703 of the ACT) “discriminate against any individual with respect to his compensation”. But let us inquire, discrimination against whom?

Naturally, due to the lack of African Americans, Hispanics, or otherwise in passing the test, the argument from the apologists for quotas becomes one of discrimination against the African Americans, Hispanics, or other that failed to meet the requirements as a result of the test.

But I would say, if we are to make an argument (and certainly not a very compelling one) that African Americans, Hispanics, or whomever were intentionally discriminated against due to the administering of this promotional test, is not subsequently denying the respondents who did pass the test their rightful compensation discriminating against them?

Of course it is. However, this flip side to the coin is not conducive to the sort of desirable quotas for which the Civil Rights Act is presently being bastardized.

It will indeed be interesting to see how the Supreme Court comes down on this case when they issue their opinion come June. Let us hope they side with the original intent of Article VII and that is, if you are intentionally discriminated against, you may thus have a cause of action. However, if the job qualifications or (in this particular case) the test disqualifies you because you are not prepared, then you’d better go find another line of work.

Regardless, given the ubiquity with which such quotas have become and are now seemingly commonplace, I suggest Humphrey, if he is not already spinning in his grave on the matter, get chewing.