The myth of American exceptionalism is disproven with a vengeance when it comes to race. God didn’t pick North America as a preserve for the righteous. We are no city on a hill beckoning the world to do as we do. At the founding we enslaved people of color; today we spend other people’s money and then blame the banks for giving it to us. We are such stuff as human nature is made of, and that isn’t often pretty or even ennobling.
The color line rattles and roars. Consider the equal protection case to be argued before the United States Supreme Court on April 22, Ricci, et al. v. DeStefano, et al. It asks a fundamental question: When does, and should, race matter when it comes to promotional opportunity?
I need to put my cards on the table. I have won large verdicts for people on both sides of the color line. I once won a $3 million verdict for white and Hispanic firefighters in Hartford; a jury found race mattered when it came to explaining why they did not get a promotion. A few years later, I won $1.5 million for a black woman firefighter in New Haven. A jury concluded that race mattered there, too.
I suppose litigating both sides of the color line makes me a mercenary of sorts. I enjoy the privilege of skin when it comes to chosing sides. I was born with a white man’s lollipop in my mouth. It tastes good.
But I have good friends who tumbled from the womb dark in skin. They don’t get to pick sides. I don’t quite suffer survivor’s guilt as to these folks. But I am aware of what Nathan McCall once said of white people: Don’t trust ‘em when it comes to questions of race. We can pick and choose when to care, just as we can decide to adopt hang-gliding as a hobby. McCall is right.
But in the New Haven case, a group of white and Hispanic firefighters sweat blood to study for a promotional exam. The City of New Haven hired experts to make sure the exam was race neutral. No effort or expense was spared to assure that the test would not penalize folks on account of accidents of birth. The test was duly administered and scored. No one complained that the test was unfair.
Then the results were published. As it happened, the results were like a vanilla ice cream cone: all that white atop a brown base. The City refused to certify the list because of its disparate impact on people of color.
Something doesn’t make sense. A test is certified as race neutral. It is administered. No one complains. Then the results come in. Now complaints rain down aplenty. Does race only matter when it can be used as a club?
No one contends that the test was designed to beat down people of color. Indeed, the contrary is admitted. The test was engineered to make it neutral on questions of color. The only time race mattered, apparently, was when the results were in and those who scored poorly happened to be people of color.
A federal equal protection claim was filed on behalf of some white and Hispanic firefighters by Karen Torre. The District Court granted the City’s motion for summary judgment. An appeal was taken. The Second Circuit upheld the District Court. A petition for certiorari was filed and granted. Dozens of amicus curiae briefs have been filed. Next week the case will be argued.
I plan to be there to watch the arguments. My youngest son heads to medical school in July. He wanted to see an argument in the Supreme Court with me as a sort of last hurrah. We’ll see a Fourth Amendment case on Tuesday and the New Haven case on Wednesday.
But I am also going because my firm’s name is on the brief for the white and Hispanic firefighters. Attorney Torre is of counsel to my firm, and has been for some time. I am proud of her work even as I am uneasy about this volcanic case. The color line rumbles with tectonic rage. America sometimes has the look and feel of Bosnia.
I suppose the only way to make sure that race does not matter in employment decisions is to eliminate consideration of race altogether. Yet this is a convenient position for a white man to take. I’m torn just now by my knowledge of how much race still matters in determining the course of a person’s life chances in these United States.
The current law of the land puts cities in a lose-lose situation in public employment. The loser in any promotional case can almost always claim race. I say erase the line altogether in public employee cases. Otherwise we will simply continue to fuel endless litigation in which the reality of American life rubs hard against our ideals.
Reprinted courtest of the Connecticut Law Tribune.
