Losing the Genetic Lottery

Jim Crow is alive and well. Not in Alabama, Georgia or Mississippi, but apparently in the Deep North; New Haven, Connecticut, specifically. The catch is, it's not African-Americans who are being held back. Rather it is a group of firefighers who had the misfortune of being born white. That is the plight of Frank Ricci.

His case was argued in the United State Supreme Court last week. Ricci, is a firefighter, a white firefighter. Or considering everything must be categorized these days, he is a white firefighter with a learning disability. By all accounts Ricci is good at his job. He has been with the New Haven fire department for more than 11 years and has a spotless record.

He decided to seek a promotion to Lieutenant. Because he is dyslexic, he quit a second job in order to have more time to study for the Lieutenant's exam. Additionally he paid $1,000 out of pocket for study-aids. And it seemed his efforts paid off. There were eight vacancies and 77 people took the exam. Ricci had the 6th highest score. Only 18 of the 77 candidates passed the test.

Problem was, of the eighteen passing grades, 17 of the applicants were white, and the other was Hispanic. None was African-American, and that was what New Haven was looking for. New Haven had a quandary. Their goal was diversity, but based upon the exam, diversity could not be achieved on merit, at least not racial diversity. No telling if there were any other firefighters with learning disabilites who passed the exam. But academic diversity was not what New Haven was looking for, so as the saying goes, New Haven threw out the baby with the bath water. Officials declared the test "biased"; apparently a catch all word meaning it did not achieve the desired results and no one was promoted.

Since no one was promoted, no one was harmed. That was the crux of New Haven's legal argument: Ricci was not discriminated against because everyone suffered equally. Apparently if we all fail, racial harmony is achieved. Failure is the great equalizer.

Problem is, and New Haven does not dispute this, if Ricci was African-American he would have been promoted. In other words, the test was rigged and when the desired results were not acomplished, New Haven decided the best option was to hurt those who succeeded, under what they were told were the rules. Frank Ricci did nothing wrong except lose the genetic lottery.

None of this is to say that diversity is not a worthy goal. New Haven is not alone in desiring that a cross population of races, and nationalities serve a diverse population. Such a goal is appropriate and worthy. But the outcome is meaningless if the results are fixed. As Chief Justice John Roberts put it last week, "Should the government get do-overs until (the result) comes out right?"

The original purpose of Affirmative Action was to root out discrimination, all discrimination. New Haven's answer hardly seems an effective way of achieving the goal. There is a eloquent simple saying I learned long ago, perhaps it still applies today. "Two wrongs don't make a right." Someone should tell the City of New Haven. I hope the Supreme Court does. Ricci v. DeStefano should be decided next month.

UPDATE: As predicted, this week Federal Prosecutors asked that charges against Steven Rosen and Keith Weissman be dropped when they determined they would not be able to successfully convict the pair for espionage. (See posting of 3/17/09). Prosecutors cited a judicial ruling that the government would have to prove that Rosen and Weissman intended to hurt the United States by passing along unauthorized information as an impossible hurdle to meet. The defamation case is proceeding.