Sotomayor, Ricci, and Affirmative Action – Part I – Let the Dialogue Begin

Now that the news frenzy surrounding the Sotomayor nomination has started to settle,

the trends in the storylines are easy to follow.  One of the recurrent issues is the Ricci case.   There is much to say on this topic, so this post will proceed in two parts.  The first part will examine the opportunities for discussion raised by the case.  The second part will analyze the language that has been used to discuss Judge Sotomayor’s role in the case.  

The legal aspects of the Ricci case are basic:  white firefighters challenged the city’s refusal to certify test results after discovering that African Americans fared poorly on the test.   The District Court denied the firefighters’ Title VII and Equal Protection claims.   Beyond the legal claims, the human element of the story centers on Officer Ricci.  Ricci, a dyslexic, studied hard to pass the examination but was still denied his promotion.  Thus, the story pushes many emotional buttons as well. 

 

The legal and emotional issues in the case present a unique opportunity for our nation to engage in a discourse about affirmative action.  The New York Times predicts that based on Sotomayor’s involvement in the Ricci case, “We will see ‘racial quotas’ become a much bigger issue than they might have been had another nominee been brought forward.”  Just as the Clarence Thomas hearings gave us an opportunity to have a national conversation on sexual harassment, perhaps the Sotomayor hearings will allow us to have a conversation on affirmative action and racial inequality that is long overdue.   

This would certainly be an appropriate time to have the conversation.   Our nation has its first African American president.   Three of the past four Secretaries of States have been women, and two of the past four to hold the position have been African American.  In light of these successes, we as a nation are rightfully questioning whether the same barriers that generated the need for affirmative action still exist.   In the University of Michigan cases, Justice O’Connor hinted that “25 years from now,” affirmative action would be a thing of the past.  These successes would seem to buttress her point.

 

Despite these successes, there is still room for – and a need for - a real debate on affirmative action.   The term “real debate” refers to the ability to treat the issue with the seriousness it deserves without reducing it to soundbites.  This is possible.  In a 1998 article, Professor Richard Delgado analyzed ten “myths” about affirmative action in a balanced manner.  In part, the article responded to assertions in an earlier piece by Professor Lino Graglia that argued against affirmative action.   The arguments of the scholars and their relative merits need not be rehashed here.  The point is that two gentlemen on opposite sides of the issue had a constructive discussion. 

 I believe that such constructive discussion is what is missing from the national discourse on affirmative action.  Since it appears we are now headed for a national conversation on this issue, it is important that the conversation proceed in a civilized manner that causes us to seriously consider the policies undergirding affirmative action law.   To that end, here are three suggestions – one for opponents, one for supporters, and one for those in the legal field – to help make this a productive conversation.

 

 

1.       Those who are opposed:  Please remember that racism did not end on November 4, 2008 or any point prior to that date.  The election of President Barack Obama was an important milestone.  However, that one event did not end the persistence of racism in America.  In fact, the converse may be true.   Researchers at Stanford University recently discovered that for some, voting for President Obama actually made them feel more comfortable when discriminating against other African Americans.  The long and short of it is that it is simply too early to conclusively predict all of the ramifications of the 2008 election.   The day may well come when affirmative action is no longer needed, but as report after report outlines the continued difficulties persons of color have in securing educational and employment opportunities, that day is likely not today.  For instance, when we have a stable African American middle class, adequate education in heavily African American neighborhoods, and more equality in educational and economic opportunities, it may be time to dismantle affirmative action.  But until those milestones have been met, more patience may be required.     

 

2.       Those who are in favor:  Please stop apologizing for your support of this issue.  Currently, it seems that it is almost anathema to express outright support for affirmative action.  Any support must be tempered by proposing some modification.  National politicians on the left have all but abandoned the issue.  Bill Clinton famously said that when it came to affirmative action, we should “mend it, not end it.”  President Obama has said he might favor some class based programs, but has indicated that children such as his daughters might not have a need for such programs. 

 

Why is it important for advocates to express full-throated support for this issue? If the left moves too far to the center, our nation loses the ability to have the robust policy discussion that we need.  Moreover, by pushing leftward, an opening can be created that will allow us to talk about why disparities in merit-based measures, such as standardized tests, continue to persist.   Perhaps if the left pushes on this issue, we will get to a national discussion about *why* we expect children that have attended sub-standard schools in unsafe neighborhoods to achieve test scores similar to those in well-staffed schools in secure environments.  Perhaps we will address the fact that our schools are more segregated now than before the Brown decision.   Basically, by pushing the issue, perhaps our nation will be forced to address – and possible finally cure - the root causes of the racial inequities that compelled the creation of affirmative action in the first place.  But if the left is content to stay in the middle, that conversation will likely not take place.

 

3.       As attorneys and law professors:  Please do our best to educate all we contact on this issue.   As lawyers, we are privileged to possess a knowledge of the legal system beyond that of the average American.   We must use this knowledge to educate our students, our families, and when the opportunity arises - the public.  We must talk about Fullilove and Metro Broadcasting as well as Croson and Adarand.  We must talk about both Grutter and Gratz.  Because there is so much emotion around this issue, our unique role is – or should be - to show our students, our families, and the public that since affirmative action was created, the law has viewed it in different ways at different times.  Since we have been trained to understand both sides of the legal issue, we should be able to educate and challenge those on either side of the issue.   Hopefully, by injecting facts and analysis, we can remind others that there is validity to positions on both sides of the issue, and thus we can raise the level of debate. 

There is far more to be said on this topic.   Please watch for part II of this series.

 

NLS