Fatima Goss Graves, Vice President for Education and Employment

by Fatima Goss Graves, Senior Counsel, 
National Women's Law Center 

Last month the Supreme Court heard argument in Ricci v. DeStefano, and it is getting a lot of media attention. The piece this week in the Washington Post by Richard Cohen suggests that it may also become a key issue for discussion for the President’s Supreme Court nominee.

I’ll briefly recite the facts here because the Cohen piece does not clearly lay them out. The City of New Haven declined to certify the results of a fire department civil service exam because it believed that certifying the test would have a discriminatory impact on minority job applicants. The results of the exam at issue in Ricci were extreme – no black firefighters and only one Hispanic firefighter scored high enough on the exam to be promoted to any position. The City determined that, consistent with Title VII – which requires employers to avoid discriminating based on race and national origin, among other bases - it should take a look to see if there were an exam available that would meet its needs without shutting out candidates of color. Frank Ricci was not denied a job – the City simply put the process on hold while it investigated nondiscriminatory alternatives to its test.

Now that we have some additional facts, I can turn to Cohen’s piece. His column sets up a debate about the continued usefulness of affirmative action. This is an important debate, to be sure, albeit one that Cohen presents in a pretty lopsided fashion. But it’s simply not the issue here. The Ricci case addresses whether it is a form of reverse discrimination for an employer to voluntarily take action to avoid discriminating against people of color. This is not about when it’s appropriate to take race into account in making selections – it’s about making sure that promotion criteria don’t unfairly take race into account by screening out disproportionate numbers of a particular group of employees.

Cohen spends most of his piece focusing on the plight of Frank Ricci, who scored high enough on the exam to be promoted to lieutenant. Cohen emphasizes that Ricci studied hard (although he has no evidence that the other candidates did not also study) and that he deserved the promotion. Maybe so. But what Cohen never considers is that the exam may have been faulty. Or that the City of New Haven is entitled – indeed, it had a duty under Title VII – to see if there was an exam that better met its needs without discriminating. Ricci will have a chance to take any exam the City offers – and to prove that he is well-qualified under a test that measures qualifications fairly.