Friday, July 3, 2009

New Haven/New Hope

I enjoy stories with a happy ending. I like it when the good guys win and send the bad guys into retreat, to jail or to their graves. It panders to our most basic, human emotions.

On the flip side, I like suspense. I am riveted to the screen to see if the killer is under the bed, behind the curtain, in the closet or in the next room. Will the killer get his chance or will the babysitter be distracted, slip from his grip or die at his hands?

In every movie as in our lives, we live out a certain “justice” every day. We may get what we deserve, we may get a second chance, we might be judged for what we did or spend our time building our case to prove beyond a shadow of a doubt that we were righteous, honest and beyond reproach.

We will cultivate an existence with lessons learned, peer pressure, the rule of law and tempered with common sense and common decency; where hard work is rewarded and cheaters are caught and exposed.

Color will be discussed when selecting a sofa, car or paint for the house. It will have no basis for determining our place in Society. Color will not be used for inclusion or exclusion. It will be a de facto non-factor. It will not bring advantage or disadvantage. It will be somewhere in a broad spectrum of human kind that is populated by uniquely different cultures.

I followed the case of the New Haven, Connecticut firefighters who filed a lawsuit after the promotion test that they took was thrown out because the city feared lawsuits by African-American firefighters. Apparently, the city failed to gauge the repercussions from those who passed the exam.
Continue Reading New Haven/New Hope



To make matters worse, the U.S. 2nd Circuit Court of Appeals upheld the city’s right to throw out the test results because it did not meet certain diversity goals, so Frank Ricci and the other firefighters who passed filed an appeal. Based on the court’s reasoning, it was obvious even to novices that it stood a good chance of being overturned by the U.S. Supreme Court and it was.

It took five and a half years and who knows how much money for a reasonable decision to be made. Diversity should never be the sole reason to deny or to achieve promotion. If the playing field is level and the testing is non-biased, then the results should be used when deciding the best candidates for promotion. If it isn’t, then so many issues come to bear; most notably whether or not the person can lead. A written test by itself should not be the only factor, but a written test should set a base line and from there other testing tools should be used to complete the promotions process.

In Tuesday’s USA Today, there was an editorial that discussed the paper’s point of view (http://blogs.usatoday.com/oped/2009/06/our-view-firefighters-ruling-draws-new-lines-on-race-and-hiring.html#more) and an opposing view offered by Michael Rosman (http://blogs.usatoday.com/oped/2009/06/opposing-view-make-race-irrelevant----not-every-workplace-can-end-up-looking-like-america--by-michael-e-rosman--mondays-de.html#more) .

I don’t have a particular problem with “assessment centers”, as long as everyone is given the same information and are required to do the same evolutions. I am for whatever places the best candidates at the top of the list and is not manipulated to give any, one group an advantage or disadvantage. I want the promotions process to discriminate, but only where it is between the qualified and the unqualified. I am for the candidate that can demonstrate solid leadership skills and has the loyalty and respect of their firefighters.

It is time that we stop considering the “what ifs” of equal opportunity and realize that fairness should be a part of that process. It is not fair to an ethnic group that they are denied equal opportunity because of skin color – whites included. It is unfair to the community to place men and women into positions where their skills were compromised to meet equal opportunity. It is unfair to the firefighters if their leaders are not the best and brightest because a certain percentage or ratios had to be met under “equal” opportunity language.

Bad things can happen when our people are not qualified; be it firefighter or officer. Lives are at stake and there is no room for mediocrity. If the fire service is indeed a “para-military” organization, then we must recognize that only the smartest and the strongest are going to lead.

I will close with Justice Potter Stewart’s views on race discrimination as he applied it to Minnick vs. California Department of Corrections (Bold for emphasis):

JUSTICE STEWART, dissenting.
I would not dismiss the writ of certiorari. I would, to the contrary, reverse the judgment before us because the California Court of Appeal has wrongly held that the State may consider a person's race in making promotion decisions. [
Footnote 2/1]
So far as the Constitution goes, a private person may engage in any racial discrimination he wants, cf. Steelworkers v. Weber,
443 U. S. 193, but, under the Equal Protection Clause of the Fourteenth Amendment, a sovereign State may never do so. [Footnote 2/2] And it is wholly irrelevant whether the State gives a "plus" or "minus" value to a person's race, whether the discrimination occurs in a decision to hire or fire or promote, or whether the discrimination is called "affirmative action" or by some less euphemistic term. [Footnote 2/3]
A year ago, I stated my understanding of the Constitution in this respect, and I repeat now a little of what I said then:
"The equal protection standard of the Constitution has one clear and central meaning -- it absolutely prohibits invidious discrimination by government. That standard must be met by every State under the Equal Protection Clause of the Fourteenth Amendment. . . ."
"* * * *"
"Under our Constitution, the government may never act to the detriment of a person solely because of that person's race. The color of a person's skin and the country
Page 452 U. S. 129
of his origin are immutable facts that bear no relation to ability, disadvantage, moral culpability, or any other characteristics of constitutionally permissible interest to government. . . . In short, racial discrimination is, by definition, invidious discrimination."
"The rule cannot be any different when the persons injured . . . are not members of a racial minority. . . ."
"* * * *"
". . . Most importantly, by making race a relevant criterion, . . . the Government implicitly teaches the public that the apportionment of rewards and penalties can legitimately be made according to race -- rather than according to merit or ability -- and that people can, and perhaps should, view themselves and others in terms of their racial characteristics. . . ."
"There are those who think that we need a new Constitution, and their views may someday prevail. But under the Constitution we have, one practice in which government may never engage is the practice of racism. . . ."
Fullilove v. Klutznick,
448 U. S. 448, 448 U. S. 523, 448 U. S. 525-526, 448 U. S. 532 (dissenting opinion) (footnote omitted) .
I respectfully dissent.

TCSS.

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2 comments:

  1. My take on the argument comes from two fronts. First, I am a lawyer, and secondly I am a Volunteer FireFighter. On the real life side of the situation, I see both sides of the argument so neither side with minorities wanting promotions in the face of an alleged potentially biased exam, or for those achieving the highest scores.

    Legally, that's another matter. The court of appeals merely followed legal precedent. If any ground breaking law is to be made, the Court of Appeals is not the place it should come from. That is the role of the US Supreme Court. The judges are required to follow past decisions instead of following personal feelings of how they thought the outcome should be. The Court of Appeals make the correct decision on that legal basis, and it was up to the Supreme Court to decide whether there should be a change in settled law.

    ReplyDelete
  2. My take on the argument comes from two fronts. First, I am a lawyer, and secondly I am a Volunteer FireFighter. On the real life side of the situation, I see both sides of the argument so neither side with minorities wanting promotions in the face of an alleged potentially biased exam, or for those achieving the highest scores.

    Legally, that's another matter. The court of appeals merely followed legal precedent. If any ground breaking law is to be made, the Court of Appeals is not the place it should come from. That is the role of the US Supreme Court. The judges are required to follow past decisions instead of following personal feelings of how they thought the outcome should be. The Court of Appeals make the correct decision on that legal basis, and it was up to the Supreme Court to decide whether there should be a change in settled law.

    ReplyDelete

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