Sotomayor and Affirmative Action

Affirmative Action (AA) has long been a controversial topic. This is mostly due to the fact that it is very misunderstood. Affirmative action isn't even a law. At the federal level, it is an executive order that applies to the actions of federal agencies and any lower level government agency or private contractor (such as those that supply computers, any equipment, build roads) to government. What it requires is that gov't agencies have a plan to actively recruit qualified minorities and women. It doesn't require quotas but realistic goals to recruit those groups. It requires that agencies compare their workforce to the appropriate demographics for the job.

For example, almost all hospitals take federal money through Medicare (the health program for the elderly) and Medicaid (a federal program administered and partially funded by states to provide health care to the poor). As an affirmative action employer, a hospital must devise a plan to recruit those who are underrepresented in its workforce. In a hospital, that would be male nurses. About 95% of nurses are female. And about 95% of nursing graduates are female. So it is tough to recruit male nurses so a realistic goal might be to try to increase the numbers by a half-percent by a certain time. Since all hospitals are competing for this small pool of male nurses, one can see how difficult it would be. It might mean paying for current employees of the hospital to go to nursing school. Hopefully, a male employee might wish to attend. But the hospital can't discriminate. It can't discourage its female employees from applying.

The odd thing about affirmative action is that every president whether supportive or unsupportive of AA has had the power to rescind it since President Johnson signed the first one in 1965.

What courts rule on is not affirmative action but whether the action of an employer (or school, union) violated the Constitutional equal protection clause (14th amendment), right of due process, and the liberty interest of a government employee in his/her job, the Civil Rights Act of 1964 and its amendments, or the Civil Rights Acts of 1866 and 1871. Affirmative action is never the issue, yet underlying the court question is AA.

The Ricci v. DeStefano states very little. This is the case that appeared before an appeal's panel on which Judge Sotomayor sits. It simply affirms the lower court ruling agreeing that it was appropriate to stop testing of New Haven firefighters when few minorities were able to pass the test. But this by its very nature is inflammatory even if it says very little. And Judge Sotomayer is in for a rocky ride when she appears before the Senate Judiciary Committee.

The courts in the past have ruled as far back as Griggs v Duke Power (1971) that tests must be valid and job related. The 1991 amendment to the Civil Rights Act further indicated that tests cannot be norm based. That is tests cannot have different passing score for whites, for blacks, for others. If indeed, the New Haven test is a validated test by psychometrists according to the Equal Employment Opportunities Uniform Guidelines, then differences in passing rates may be justified. Alternatively, the courts can find seek an alternative that would be equally suitable and have less impact on minorities.

Since this case will now pass to the Supreme Court, the decision will rest on the larger question of whether New Haven violated the civil rights and constitutional rights of white firefighters, city employees. Again, to the layperson, this is a case of reverse discrimination. The courts never have used this term and are not likely to use the term.

For Sotomayor, this case will certainly tarnish the proceedings and incite a lot of talk radio discussion about affirmative action.