Supreme Court's "colorblind" firefighter ruling shuts eyes to racism

My summer reading started with "The Nine," a tough but enjoyable tome about the inner workings of the U.S. Supreme Court.

The phrase "colorblind Constitution" crops up in the book and I can see its effect in this week's 5-4 ruling in favor of 18 white firefighters, one of them Hispanic. The firefighters claimed discrimination when New Haven, Conn., threw out results from promotion exams because no African American scored high enough.

As a result of Monday's decisions, employers will walk a fine line. They don't have to accept test results with a racially disparate impact, but the threshold under which they can reject them is much higher. Employers may consider potential racial impact when designing a test but once the results roll in, we are where we are.

I could live with that if the results weren't cloaked in racial disproportionality. The justices ignored that, preferring to concentrate on a colorblind world. I don't live in that world.

Justice Ruth Bader Ginsburg read her dissent from the bench to underscore her disagreement. "Congress endeavored to promote equal opportunity in fact, and not simply in form," she said. She noted there was a long history of race discrimination in firefighting and the people good at taking tests were not necessarily the best leaders in public-safety emergencies.

The ruling and Ginsburg's words reminded me of the court's ruling against Seattle Public Schools' use of racial tiebreakers in student assignments. The firefighters case centered on an exam's statistical disparities based on race. Rooting out academic disparities based on race is one reason Seattle used racial tiebreakers to keep its schools integrated.

And yet, as Ginsburg points out, the people who excel on exams are no more capable than those who don't because of the many things, some with racially disparate effects, that lie in between. We ignore at our peril these things that may appear harmless on their face — for example, standardized tests or school entrance exams — but they can have a discriminatory effect.

Mike Madden, a partner with the Seattle law firm Bennett, Bigelow and Leedem, argued Seattle's case before the Supreme Court. In Monday's decision, Madden sees another narrowly crafted opinion that confines considerations of race to intentional acts of discrimination.

Justice Anthony Kennedy wrote for the majority in the firefighters case, but I recall that in the Seattle case he pointedly said while he didn't like the school district's racial-integration plan, its goal of integrated schools was a worthwhile one.

The way to end racial discrimination is not to ignore the existence of race. The Holocaust Museum shooting in Washington, D.C., and the canyon-sized wealth gaps in America proves racism, both intentional and unintended, continues its pernicious work whether we look or shut our eyes.

So where do we seek redress if not the courts? Several legal scholars I talked to said they thought the courts want the political system to reconcile our racial inequalities. It would be an ironic choice. Minorities have been empowered politically by the Voting Rights Act. But it narrowly escaped being struck down in the court's recent ruling. And yes, a black man is in the White House but the political system doesn't always deliver. In the firefighters case, the City Council sought to help the black firefighters but now we have the court's final word.

At least four on the court think we've arrived to that distant day of equality. A fifth, Clarence Thomas, seems to think we arrived there just after Congress ratified the 13th and 14th amendments.

I'm looking forward to the fresh perspective offered by Supreme Court nominee Sonia Sotomayor. She'll add to those already on the court with a realistic view of America. Next time a city council or school board looks for support on thoughtful policies that seek to be cognizant of the vestiges of discrimination, they might find it.

Lynne K. Varner's column appears regularly on editorial pages of The Times. Her e-mail address is lvarner@seattletimes.com