A Missed Opportunity to Put Skills above Race

Eric Holder, the nation's first African American attorney general, decided to provoke a controversy over race. "In things racial," he said in a speech celebrating Black History Month, "we have always been and continue to be, in too many ways, essentially a nation of cowards."

Although the nation "has done a pretty good job" integrating the workplace, Holder said, "on Saturdays and Sundays America in the year 2009 does not, in some ways, differ significantly from the country that existed some 50 years ago."

While surely offensive to some, Holder was only echoing his boss. It was in Philadelphia a year ago that the son of a black father and a white mother, with a Kenyan name, explained why he was running for president.

In one of the most important affirmative action cases of the last 20 years, the Obama administration has decided to support the use of race in making hiring, firing, and promotion decisions.

While condemning the racist remarks of the Reverend Jeremiah A. Wright Jr., Barack Obama said that the furor over his church was a sign of "the complexities of race in this country that we've never really worked through--a part of our union that we have yet to perfect."

In words much like Holder's, Obama declared: "The fact that so many people are surprised to hear that anger in some of Reverend Wright's sermons simply reminds us of the old truism that the most segregated hour in American life occurs on Sunday morning."

Now President Obama and his chief law enforcement officer have missed an opportunity to live up to their promise to take the nation beyond the old battle lines over race.

In one of the most important affirmative action cases of the last 20 years, the Obama administration has decided to support the use of race by New Haven, Connecticut, in making hiring, firing, and promotion decisions.

The case of Ricci v. DeStefano began in 2003, when New Haven decided to fill vacant lieutenant and captain positions in its fire department. It gave a merit-based exam (60 percent of the grade) and comprehensive interviews (40 percent) to determine whether candidates had the knowledge and skills to command those on the front lines during an emergency. None of the candidates eligible for the eight lieutenant openings was a minority, while two Hispanics made the grade for the seven captain vacancies.

Dissatisfied with the racial results, New Haven simply threw out the exam. When firefighters sued, the city said in court that it was not trying to remedy past discrimination and that it had not even relied on the rationale of "diversity." The last thing the home of Yale University would be up to is discrimination against blacks and Hispanics; if anything, city fathers have aggressively sought to boost the numbers of minorities.

Beyond making whole the actual victims of discrimination, the Supreme Court has approved the government's use of racial criteria only to promote diversity in university classrooms. Even that was so narrow a decision that the justices refused two years ago to extend it to primary and secondary schools. In fact, the Supreme Court has spent the last 20 years trying to stop the government's use of race in its many applications.

That has not deterred cities from trying to hide a spoils system that divvies up spending and jobs among groups defined by skin color. Just as pernicious, New Haven said it had to throw out the firefighters' test to meet the 1964 Civil Rights Act's ban on racial discrimination in employment. Under this faulty logic, the national government can order cities and states to violate the Constitution. Washington could just as well order states to reinstitute slavery or take away free speech.

Our new president likes to invoke comparisons to the Great Emancipator, Abraham Lincoln. To Lincoln, the Declaration of Independence's promise that all men are created equal was a "great truth, applicable to all men at all times." In the Gettysburg Address, Lincoln justified the carnage of the battle with the prospect of preserving the "new nation," created by "our fathers," that was "conceived in Liberty, and dedicated to the proposition that all men are created equal."

Our nation fulfilled that promise when it amended the Constitution to make clear that the state cannot deny any American the equal protection of the law because of skin color. Immigrants came to our shores because of the promise that they would have equality of opportunity, free from governments that choose winners and losers because of their parents or their race.

The Obama administration could have fulfilled Lincoln's promise by not turning a blind eye to the racial-spoils systems run by cities and states that hide behind the banner of "diversity." But instead his Justice Department filed a brief Friday supporting New Haven. If the Supreme Court allows firefighters to be chosen on the basis of their skills and knowledge to combat emergencies, it will be the Justices and not the president who opens a new and promising page in the story of race relations in our country.

John Yoo is a visiting scholar at AEI.

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