Opponents of affirmative action hope the U.S. Supreme Court will use a Connecticut case to prohibit cities from making even modest efforts to promote racial diversity in their workforces. The justices shouldn't let the peculiar facts of the case force them into a rigid decision.
At issue is a test for firefighters in New Haven, Conn., on which African Americans performed worse than whites. Not a single black firefighter would have been promoted if New Haven's civil service board had ratified the results. The board deadlocked, aborting promotions for 14 white firefighters and one Latino. The disappointed firefighters sued, but a federal judge ruled for the city without holding a trial on the validity of the test.
Employment tests on which minorities fare disproportionately poorly can be challenged in court on the ground that they aren't job-related. But it was the city, not a court, that belatedly found fault with the test after political protests. That upset the legitimate expectations of firefighters who had been told that they would be promoted if they scored well.
Under federal law, the mere fact that one group scores better on a test than another does not establish illegal discrimination. In fact, as the white firefighters' lawyers pointed out, federal law says that an employer may not "alter the results of ... employment-related tests on the basis of race" after the fact. The fairest outcome would be a finding that New Haven did alter the results, so the promotions should have gone into effect. That wouldn't prevent black firefighters from challenging this or future tests in court, nor would it bar New Haven from looking for a new test that would be both job-related and more likely to lessen racial disparities.
The problem is that some conservative justices clearly see the New Haven case as an opportunity to advance their plan to outlaw all race-conscious decisions by government. Chief Justice John G. Roberts Jr. pressed that view during arguments last month when he wondered aloud what would happen if a city abandoned a test because black firefighters had scored disproportionally well. The implication was that taking race into account to advance minority participation is the moral and legal equivalent of Jim Crow laws.
That long has been Roberts' view. But for the full court to embrace it in this case would oversimplify the issue of racial equality and create new national standards from the unusual facts in one fire department. The court shouldn't use this hard case to make bad civil rights law.