Critics of racial preferences agree — I am tempted to say that even critics of racial preferences agree — that actual victims of discrimination have a right to be made whole. If they were denied admission or a job or a promotion because of their race, they deserve immediate admission, hiring, or promotion. Apparently supporters of preferences don’t agree.
Over two years ago two white men who had scored 99 on the firefighters exam sued the Boston Fire Department, claiming that they had been rejected five times in favor of lower-scoring black applicants. The BFD was operating under an affirmative action plan that required them to hire one black firefighter for every white who was hired. Their suit contained a novel element: their lawyer, Harold Lichten, argued that
new census figures show the system has met its hiring goal and is no longer necessary. African-American and Hispanic firefighters make up 38.7 percent of the department – slightly higher than their percentage in the city. In 1974, when the court order took effect, only 5 percent of the city’s firefighters were black.
“You can’t have a quota system once you’ve achieved its goal,” Lichten said, adding that it was intended as a short-term solution until the department could devise a testing procedure free of bias.
They won, but it hasn’t helped them any. Last March the U.S. Court of Appeals for the First Circuit held that Boston’s affirmative action policy was no longer needed and hence no longer legal, but the Boston Globe reports that city officials
have no plans to hire four white applicants denied firefighting jobs under a now-abandoned affirmative action program, despite a federal court ruling that they and another man were discriminated against and deserved to be hired. (Link via Howard Bashman)
Boston Corporation Counsel Merita Hopkins explained that “We have to balance the needs of the city’s public safety budget with people who were adjudged to have a constitutional right infringed upon.”
How solicitous.
Has Justice O’Connor laid the foundation for the creation of another large class of people who have rights without remedies? If rejected white or Asian or Muslim applicants bring a successful suit in 25 years claiming, as she suggested, that racial preferences are no longer necessary and hence no longer legal, will the schools that violated their rights be compelled to remedy their violation?
