The Bugaboo of Race: Does Skin Color Put Out Fires?

Fires don’t discriminate but fire departments do. While the flames of a house fire may not discriminate on the basis of skin color, New Haven, Connecticut’s fire department is making sure that those who risk their lives are dark or light-skinned in the “right” proportion, regardless of merit.

After throwing out professional exam results because whites and Hispanics scored higher than blacks, those candidates denied promotion took their case all the way to the U.S. Supreme Court, which is currently considering their case (Ricci v. DeStefano). While this case centers on officers, the incentive to rank-and-file firefighters is diminished, unless they have black skin; and, even then, they need not try as hard as their white or Hispanic counterparts because New Haven clearly values race over other factors.

This case highlights all that is wrong with “affirmative action as we know it”: Employers practice defensive racial preferences, not because they believe it serves the public good, but because it will protect them from lawsuits (or so they think). Government employers are much more likely to discriminate based on race—a point I drove home in a forthcoming book (Race and Liberty in America: The Essential Reader). Businesses, however, come to accept quotas as the “cost of doing business” in America.

Unfortunately, This case is playing out much like the Croson case. In that case, the city of Richmond gave such heavy and sweeping preference to all minorities—even Eskimos!—that Justice O’Connor wrote the opinion setting down the rules of “strict scrutiny”: In a word, race distinctions were suspect and held to the strictest scrutiny. Moreover, race may not be a BFOQ (Bona Fide Occupational Qualification), as it seems to be in the New Haven case. Think of a like scenario: If a town decided to scrap professional exams to favor WHITE firefighters, what would the courts do? If the same town spent tax dollars to defend this discrimination, how would impartial observers‚ and courts—react?

Anyone familiar with the Civil Rights Act of 1964 knows that it protected people of all races, religions, and both sexes—not just those now “preferred” by some government authority. The legislative record could not be clearer: Hubert Humphrey, the crusading liberal from Minnesota, dismissed the “bugaboo” of quotas and preferences. The law simply banned discrimination of all sorts and he hoped it would lead to Americans treating each other on the merits, not as representatives of “race.”

Most bugaboos are not real—or so we tell our children—but what will we teach them about this bugaboo? That discrimination is OK and it “doesn’t really matter?” Except it does matter to its victims and to the meaning of America.

Let us hope that the Court, and the American people, will come to their senses and rediscover the old-fashioned notion that “our Constitution is color blind”—the notion that drove the NAACP to win one case after another. Sadly, with the prize within reach, we Americans gave up the highest civil rights victory, and thus snatched defeat from the jaws of victory.

Jonathan Bean is a Research Fellow at the Independent Institute and editor of the Independent book, Race & Liberty in America: The Essential Reader.
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