In a decision just released on June 29/09 the U.S. Supreme Court (photo, R) has decided that race-based discrimination is illegal – even when the victims have white skin.
The Court has made clear that no matter how well-intentioned the discrimination might be, it is still illegal.
Ricci v. DeStefano could have an impact on Canadian jurisprudence, not only in the area of employment law, but also for victims of illegal Race-Based Policing practices during land claim disputes.
White & Hispanic firefighters rejected for promotion because of race
Frank Ricci and sixteen other white firefighters and one Hispanic sued the City of New Haven, Connecticut for racial discrimination after the city threw out the results of examination results that would have seen them at the front of the line for promotions.
The “belief that citizens should be reduced to racial statistics is flawed,” Ricci told the members of the Senate Judiciary Committee.
“It only divides people who don’t wish to be divided along racial lines. The very reason we have civil service rules is to root out politics, discrimination and nepotism. Our case demonstrates that these ills will exist if the rules of merit and the law are not followed.” Watch firefighters testify »
Ricci also criticized Sotomayor’s 2nd Circuit for disposing of the case in an “unsigned, unpublished summary order that consisted of a single paragraph.”
Ricci was one of several witnesses who testified both for and against Sotomayor.
Linda Chavez, head of the conservative Center for Equal Opportunity, which opposes affirmative action, argued that “it is clear” from Sotomayor’s record “that she has drunk deep from the well of identity politics.” It is impossible for Sotomayor to be a fair judge when she has “shown a willingness to let her policy preferences guide her,” Chavez said.
CNN.com, July 16/09: Firefighter criticizes Sotomayor ruling
MUST SEE: CNN video: Firefighters Testify
Key quotes from RICCI v. DESTEFANO
Here are some quotes from the decision and the concurring justices that summarize the case (emphasis added):
“Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City’s asserted justification was pretextual.”
Employment tests can be an important part of a neutral selection systemthat safeguards against the very racial animosities Title VII was intended to prevent. Here, however, the firefighters saw their efforts invalidated by the City in sole reliance upon race-based statistics.
“As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified.””
“Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race.”
“The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race based action.”
“Without some other justification, this express, race-based decision making violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race.”
“Reverend Boise Kimber, to whom the District Court referred, is a politically powerful New Haven pastor and a self-professed “‘kingmaker.’” (…) On one occasion, “[i]n front of TV cameras, he threatened a race riot duringthe murder trial of the black man arrested for killing white Yalie Christian Prince. He continues to call whites racist if they question his actions.”
“…Rev. Kimber told firefighters that certain new recruits would not be hired because “‘they just have too many vowels in their name[s].’”
“One of Rev. Kimber’s “friends and allies,” Lieutenant Gary Tinney, also exacerbated racial tensions before the CSB. Id., at 129a. After some firefighters applauded insupport of certifying the test results, “Lt. Tinney exclaimed, ‘Listen to the Klansmen behind us.’”
[Rev. Kimber:] “I look at this [Board] tonight. I look at three whites and one Hispanic and no blacks. . . . I would hope that you would not put yourself in this type of position, a political ramification that may come back upon you as you sit on this [Board] and decide the future of a department and the future of those who are being promoted.”
“…a reasonable jury could easily find that the City’s real reason for scrapping the test results was not a concern about violating the disparate-impact provision of Title VII but a simple desire to please a politically important racial constituency.”
“Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”
“Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe.”
“The dissent[ting opinion] grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” Post, at 1, 39. But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.”
United States Supreme Court, June 29/09: RICCI v. DESTEFANO, 2009 VoC DOWNLOAD
- Wikipedia.org: Ricci v. DeStefano
- Supreme Court of the United States: official website
- New York Times: Supreme Court Opinion: Ricci v. DeStefano
- Ohio Employer’s Law Blog: Ricci v. DeStefano: Supreme Court rules on discriminatory Hobson’s choice
- New York Daily News editorial, June 20/09: Equal justice: Supreme Court ruling on New Haven firefighters makes employment law fairer
- Bloomberg.com, June 29/09: Sotomayor Firefighter Ruling Reversed by High Court
- New York Times, April 09/09: Justices to Hear White Firefighters’ Bias Claims
What this means for the Canadian victims of racial policing during land claim disputes
Many people do not realize that Canadian courts often cite important opinions from other courts and important historical figures as Justice Marshall recently did in McHale v. R., 2009 when he quoted from one of the fathers of the U.S. Constitution, Alexander Hamilton.
- Ontario Superior Court, July 02/09: McHale v. R., 2009
What is intriguing about the case is that a Hispanic firefighter who qualified for promotion was also a victim of the politically-correct decision to throw out the test results, just as native people have been victimized by Race-Based Policing in Ipperwash & Caledonia.
VoC feature: Victimizing Native People
RICCI v. DESTEFANO, 2009 provides a powerful counter-argument to the ‘White Privilege’ doctrine that seems to be so much in vogue within legal and academic circles these days, a repulsive ideology that says:
- People with white skin can never be the victims of racism.
- Only white people can be racists because they have ‘power & privilege’ simply because of the colour of their skin.
- Native people, irrespective of their crimes, are not racist even when they display prejudiced attitudes because they don’t have the ‘power & privilege’ that whites are born with.
- Whites can never be the victim of a hate crime.
- Whites must carry the guilt of historic colonialism despite the fact that whites have payed a terrible cost to fight racist regimes and slavery throughout history.
We will be preparing a detailed report on the dangers and obscene manifestations of ‘White Privilege’ doctrine during the Caledonia crisis during the coming weeks, but I can tell readers that we have personally encountered government, legal and NGO reps espousing this hateful ideology, and I believe it is the unifying ‘dogma’ that has allowed the people of Ipperwash and Caledonia to be so expendable to the Ontario government and the OPP.
The U.S. Supreme Court, in recognizing the obvious that – indeed – whites can be the victim of racial discrimination has now set the standard for multi-cultural/melting pot societies: all human beings – including those born with white skin – are deserving of protection from race-based discrimination, no matter how well-intentioned that discrimination might be.
This, of course, will serve us well in our Human Rights complaints against the OPP who told the OHRC on July 22/08 that they stopped me from raising a Canadian flag because a native ‘extreme element’ might choose to harm me and my followers should we raise a Canadian flag on a public utility pole on public property.
- VoC, Sept 16/08: Human Rights complaint forces Fantino to tell truth (Part 1)
It may also prove useful in other legal actions that may arise as we oppose Race-Based Policing. In light of RICCI v. DESTEFANO, it is simply inconceivable now, that any Canadian court could rule that the McGuinty government and the OPP were justified in violating the Charter rights of non-natives for the political goals of pleasing a “racial constituency,” as Justice Alito so aptly observed.
Don’t miss Justice Alito’s concurring opinion, and recitation of facts re political interference and racism shown towards white firefighters
This groundbreaking and wise decision by the U.S. Supreme Court is 93 pages long and includes concurring and dissenting opinions. I have extracted the most relevant citations below. What is remarkable about it is that Justice Alito felt the need to write a separate concurring opinion specifically to counter the statements of Justice Ginsburg who, along with 3 other justices of the Court, dissented from the majority.
“I join the Court’s opinion in full. I write separately only because the dissent, while claiming that “[t]he Court’s recitation of the facts leaves out important parts of the story,” post, at 2 (opinion of GINSBURG, J.), provides an incomplete description of the events that led to New Haven’s decision to reject the results of its exam.”
Justice Alito, concurring in RICCI v. DESTEFANO, 2009
Readers should be sure not miss Justice Alito’s opinion and summary of the facts surrounding the political interference in the case by a black community leader and his supporter who made racial slurs and false allegations against white firefighters. His opinion follows those of Justice Scalia, also concurring.
- Supreme Court of the United States: The Justices of the Supreme Court
- Wikipedia.org: Justice Alito
SUPREME COURT OF THE UNITED STATES
– Syllabus –
RICCI ET AL. V. DESTEFANO ET AL.
CERTIORI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 07-1428. Argued April 22, 2009 – Decided June 29, 2009
New Haven, Conn. (City), uses objective examinations to identify thosefirefighters best qualified for promotion. When the results of such an exam to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, a rancorous public debate ensued. Confronted with arguments both for and against certifying the test results—and threats of a lawsuit eitherway—the City threw out the results based on the statistical racial disparity. Petitioners, white and Hispanic firefighters who passedthe exams but were denied a chance at promotions by the City’s refusal to certify the test results, sued the City and respondent officials,alleging that discarding the test results discriminated against thembased on their race in violation of, inter alia, Title VII of the Civil Rights Act of 1964.
The defendants responded that had they certifiedthe test results, they could have faced Title VII liability for adoptinga practice having a disparate impact on minority firefighters. The District Court granted summary judgment for the defendants, andthe Second Circuit affirmed.
Held: The City’s action in discarding the tests violated Title VII. Pp. 16–34.
(a) Title VII prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin, 42 U. S. C. §2000e–2(a)(1) (disparate treatment), as well as policies or practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities, §2000e–2(k)(1)(A)(i) (disparateimpact). Once a plaintiff has established a prima facie case of disparate impact, the employer may defend by demonstrating that itspolicy or practice is “job related for the position in question and consistent with business necessity.” Ibid. If the employer meets that burden, the plaintiff may still succeed by showing that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs. §§2000e–2(k)(1)(A)(ii) and (C). Pp. 17–19.
All the evidence demonstrates that the City rejected the test results because the higher scoring candidates were white. Without some other justification, this express, race-based decisionmaking is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. The Court has considered cases similar to the present litigation, but in the context of the Fourteenth Amendment’s Equal Protection Clause. Such cases can provide helpful guidance in this statutory context. See Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 993. In those cases, the Court held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “strong basis in evidence” that the remedial actions were necessary. Richmond v. J. A. Croson Co., 488 U. S. 469, 500; see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 277. In announcing the strong-basis-in-evidence standard, the Wygant plurality recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other. 476 U. S., at 277. It reasoned that “[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees.” Ibid.
(iv) Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim.
530 F. 3d 87, reversed and remanded.
– Opinion of the Court –
SUPREME COURT OF THE UNITED STATES
Nos. 07–1428 and 08–328
FRANK RICCI, ET AL., PETITIONERS 07–1428 v. JOHN DESTEFANO ET AL.
FRANK RICCI, ET AL., PETITIONERS 08–328 v. JOHN DESTEFANO ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 29, 2009]
[p1] JUSTICE KENNEDY delivered the opinion of the Court.
Certain white and Hispanic firefighters who likely would have been promoted based on their good test performance sued the City and some of its officials. Theirs is the suit now before us. The suit alleges that, by discarding the test results, the City and the named officials discriminated against the plaintiffs based on their race, inviolation of both Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., and the Equal Protection Clause of the Fourteenth Amendment. The City and the officials defended their actions, arguing that if they had certified the results, they could have faced liability under Title VII for adopting a practice that had a disparate impact on the minority firefighters. The District Court granted summary judgment for thedefendants, and the Court of Appeals affirmed.
We conclude that race-based action like the City’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold standard.
[p16] The District Court rejected petitioners’ equal protection claim on the theory that respondents had not acted because of “discriminatory animus” toward petitioners. Id., at 162. It concluded that respondents’ actions were not “based on race” because “all applicants took the same test, and the result was the same for all because the test results were discarded and nobody was promoted.” Id., at 161.
After full briefing and argument by the parties, the Court of Appeals affirmed in a one-paragraph, unpublished summary order; it later withdrew that order, issuing in its place a nearly identical, one-paragraph per curiam opinion adopting the District Court’s reasoning.530 F. 3d 87 (CA2 2008). Three days later, the Court of Appeals voted 7 to 6 to deny rehearing en banc, over written dissents by Chief Judge Jacobs and Judge Cabranes.530 F. 3d 88.
[p17] Title VII of the Civil Rights Act of 1964, 42 U. S. C.§2000e et seq., as amended, prohibits employment discrimination on the basis of race, color, religion, sex, ornational origin. Title VII prohibits both intentional discrimination (known as “disparate treatment”) as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as “disparate impact”).
[p19] Our analysis begins with this premise: The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed whencompared to white candidates. As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified.” 554 F. Supp. 2d, at 152; see also ibid. (respondents’ “own arguments . . . show that the City’s reasons for advocating non-certification were related to the racial distribution of the results”). Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race.
[p20] Whatever the City’s ultimate aim—however well intentioned or benevolent it mighthave seemed—the City made its employment decisionbecause of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race based action.
[p24] Examinations like those administered by the City create legitimate expectations on the part of those who took the tests. As is the case with any promotion exam, some of the firefightershere invested substantial time, money, and personal commitment in preparing for the tests. Employment tests can be an important part of a neutral selection systemthat safeguards against the very racial animosities Title VII was intended to prevent. Here, however, the firefighters saw their efforts invalidated by the City in sole reliance upon race-based statistics.
If an employer cannot rescore a test based on the candidates’ race, §2000e–2(l), then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates—absent a strong basis inevidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate impact provision. Restricting an employer’s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional examinations.
[p25] Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed, §2000e–2(j), and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race.
[p28] There is no genuine dispute that the examinations were job-related and consistent with business necessity. The City’s assertions to the contrary are “blatantly contradicted by the record.”
[p33] Fear of litigation alone cannotjustify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.
[p33] The record in this litigation documents a process that, at the outset, had the potential to produce a testing procedure that was true to the promise of Title VII: No individual should face workplace discrimination based on race. Respondents thought about promotion qualifications and relevant experience in neutral ways. They were careful to ensure broad racial participation in the design of the test itself and its administration. As we have discussed at length, the process was open and fair.
The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the City’s refusal to certify the results. The injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the City had established for the promotional process. Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe.
The judgment of theCourt of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.
It is so ordered.
Cite as: 557 U. S. ____ (2009)
ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
Nos. 07–1428 and 08–328
FRANK RICCI, ET AL., PETITIONERS 07–1428 v. JOHN DESTEFANO ET AL.
FRANK RICCI, ET AL., PETITIONERS 08–328 v. JOHN DESTEFANO ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[June 29, 2009]
[Alito p1] JUSTICE ALITO, with whom JUSTICE SCALIA and JUSTICE THOMAS join, concurring.
I join the Court’s opinion in full. I write separately only because the dissent, while claiming that “[t]he Court’s recitation of the facts leaves out important parts of the story,” post, at 2 (opinion of GINSBURG, J.), provides an incomplete description of the events that led to New Haven’s decision to reject the results of its exam. The dissent’s omissions are important because, when all of the evidence in the record is taken into account, it is clear that, even if the legal analysis in Parts II and III–A of the dissent were accepted, affirmance of the decision below is untenable.
[Alito p3] As initially described by the dissent, see post, at 2–12, the process by which the City reached the decision not toaccept the test results was open, honest, serious, and deliberative. But even the District Court admitted that “a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.” 554 F. Supp. 2d 142, 162 (Conn. 2006), summarily aff’d, 530 F. 3d 87 (CA2 2008) (per curiam).
This admission finds ample support in the record. Reverend Boise Kimber, to whom the District Court referred, is a politically powerful New Haven pastor and a self-professed “‘kingmaker.’” App. to Pet. for Cert. in No. 07–1428, p. 906a; see also id., at 909a. On one occasion, “[i]n front of TV cameras, he threatened a race riot duringthe murder trial of the black man arrested for killing white Yalie Christian Prince. He continues to call whites racist if they question his actions.” Id., at 931a.
[Alito p4] In 2002, the Mayor picked Rev. Kimber to serve as the Chairman of the New Haven Board of Fire Commissioners (BFC), “despite the fact that he had no experience in the profession, fire administration, [or] municipal management.” Id., at 127a; see also id., at 928a–929a. In that capacity, Rev. Kimber told firefighters that certain new recruits would not be hired because “‘they just have too many vowels in their name[s].’” Thanawala, New Haven Fire Panel Chairman Steps Down Over Racial Slur, Hartford Courant, June 13, 2002, p. B2. After protests aboutthis comment, Rev. Kimber stepped down as chairman of the BFC, ibid.; see also App. to Pet. for Cert. in No. 07–1428, at 929a, but he remained on the BFC and retained “a direct line to the mayor,” id., at 816a.
Almost immediately after the test results were revealed in “early January” 2004, Rev. Kimber called the City’s Chief Administrative Officer, Karen Dubois-Walton, who “acts ‘on behalf of the Mayor.’” Id., at 221a, 812a. Dubois-Walton and Rev. Kimber met privately in her office because he wanted “to express his opinion” about the test results and “to have some influence” over the City’s response. Id., at 815a–816a. As discussed in further detail below, Rev. Kimber adamantly opposed certification of the test results—a fact that he or someone in the Mayor’s office eventually conveyed to the Mayor. Id., at 229a.
On February 5, 2004, the CSB convened its second public meeting. Reverend Kimber again testified andthreatened the CSB with political recriminations if theyvoted to certify the test results:
“I look at this [Board] tonight. I look at three whites and one Hispanic and no blacks. . . . I would hope that you would not put yourself in this type of position, a political ramification that may come back upon you as you sit on this [Board] and decide the future of a department and the future of those who are being promoted.
“(APPLAUSE).” Id., at 492a (emphasis added).
One of the CSB members “t[ook] great offense” because he believed that Rev. Kimber “consider[ed] [him] a bigot because [his] face is white.” Id., at 496a. The offended CSB member eventually voted not to certify the test results. Id., at 586a–587a.
One of Rev. Kimber’s “friends and allies,” Lieutenant Gary Tinney, also exacerbated racial tensions before the CSB. Id., at 129a. After some firefighters applauded insupport of certifying the test results, “Lt. Tinney exclaimed, ‘Listen to the Klansmen behind us.’” Id., at 225a.
Tinney also has strong ties to the Mayor’s office. See, e.g., id., at 129a–130a, 816a–817a. After learning that he had not scored well enough on the captain’s exam to earn a promotion, Tinney called Dubois-Walton and arranged a meeting in her office. Id., at 830a–831a, 836a. Tinney alleged that the white firefighters had cheated on theirexams—an accusation that Dubois-Walton conveyed to the Board without first conducting an investigation into itsveracity. Id., at 837a–838a; see also App. 164 (statement of CSB Chairman, noting the allegations of cheating). The allegation turned out to be baseless. App. to Pet. for Cert. in No. 07–1428, at 836a.
[Alito p10] Taking into account all the evidence in the summaryjudgment record, a reasonable jury could find the following. Almost as soon as the City disclosed the racial makeup of the list of firefighters who scored the highest on the exam, the City administration was lobbied by aninfluential community leader to scrap the test results, andthe City administration decided on that course of action before making any real assessment of the possibility of a disparate-impact violation. To achieve that end, the City administration concealed its internal decision but worked—as things turned out, successfully—to persuade the CSB that acceptance of the test results would be illegal and would expose the City to disparate-impact liability. But in the event that the CSB was not persuaded, the Mayor, wielding ultimate decisionmaking authority, was prepared to overrule the CSB immediately. Taking this view of the evidence, a reasonable jury could easily find that the City’s real reason for scrapping the test results was not a concern about violating the disparate-impact provision of Title VII but a simple desire to please a politically important racial constituency. It is noteworthy that the Solicitor General—whose position on the principal legal issue in this case is largely aligned with the dissent — concludes that “[n]either the district court nor the court of appeals . . . adequately considered whether, viewing the evidence in the light most favorable to petitioners, a genuine issue of material fact remained whether respondents’ claimed purpose to comply with Title VII was a pretext for intentional racial discrimination . . . .” Brief for United States as Amicus Curiae 6; see also id., at 32–33.
[Alito p11] Of course “there are many ways in which a politician can attempt to win over a constituency — including a racial constituency — without engaging in unlawful discrimination.” Post, at 36–37. But— as I assume the dissent would agree—there are somethings that a public official cannot do, and one of those is engaging in intentional racial discrimination when making employment decisions.
Alito p13] Petitioners are firefighters who seek only a fair chanceto move up the ranks in their chosen profession. In order to qualify for promotion, they made personal sacrifices.Petitioner Frank Ricci, who is dyslexic, found it necessary to “hir[e] someone, at considerable expense, to read onto audiotape the content of the books and study materials.”App. to Pet. for Cert. in No. 07–1428, at 169a. He “studied an average of eight to thirteen hours a day . . . , evenlistening to audio tapes while driving his car.” Ibid. Petitioner Benjamin Vargas, who is Hispanic, had to “give up a part-time job,” and his wife had to “take leave from her own job in order to take care of their three young children while Vargas studied.” Id., at 176a. “Vargasdevoted countless hours to study . . . , missed two of his children’s birthdays and over two weeks of vacation time,”and “incurred significant financial expense” during the three-month study period. Id., at 176a–177a.
Petitioners were denied promotions for which theyqualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City’s asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision.
The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” Post, at 1, 39. But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.
[see PDF of decision for dissenting opinion by Justice Ginsburg]
- United States Supreme Court, June 29/09: RICCI v. DESTEFANO, 2009 VoC DOWNLOAD
Mark Vandermaas, Editor
We live in a hypocritical nation. Let’s hope that justice, freedom, honour and peace comes about in our lifetime. Why not expose all wrongs in this country though. At all levels of Government, not just Provincial but also and mainly with the Federal governement that if wanted to could show some type of leadership in such times instead of just calling it a Provincial issue. It’s time Canada had leaders in governement. I’d vote for you Mark, your persuasivness has reached new heights.
VoC REPLY: Hi Clyde, thanks for the kind words. The feds could show some leadership since it is they who have the responsibility for protecting the Charter and our rights under it. We have been active in reaching out to the feds privately and taking them on publicly – especially during the last election when Gary McHale defeated Diane Finley (and Dr. Eric Hoskins) in Caledonia, and took 10% of the total votes.
Individual citizens should not have to carry such a heavy burden all on their own to protect the Charter rights of an entire group of people associated with an issue of national importance. It is unfair and it is dangerous. If McHale, who has no formal legal training(!), had not had the abilities and determination necessary to take on the full might and resources of the OPP, the Ontario government and the best legal minds they could buy, the politicians and NGOs who should have been speaking out for the innocent victims of Caledonia – native and non-native – would have still been sucking their thumbs on the sidelines as their town, their province and our Constitutional rights crashed around them.
In my humble opinion, the Charter of rights is an oath that we – all of us – make to one another. Like the oath one takes to become a soldier or police officer or politician. Oaths of office aren’t meant for the good times, for the easy decisions, they’re meant to tell us how to act in the bad times, when every instinct is telling you to run, to hide, to lie, to avoid a fight, to say what is easy so you don’t offend a ‘racial constituency’ (as the U.S. Supreme Court called it).
Here are some decisions that should have been guided by the Charter and/or one’s oath to serve Canada:
When members of the now disbanded Canadian Airborne Regiment tortured and killed a Somali kid named Shidane Arone during a relief mission, someone’s oath should have kicked in to say NO! even if it meant they had to take a bullet to stop it.
When OPP officers were told to conduct policing based on race, their oath should have reminded them to say, NO! even if it meant that they might have lost their job.
When Brantford Mayor Hancock cancelled Gary McHale’s room rental agreement in Oct 2006, forcing him to speak on the grass, in the dark while being heckled by supporters of the DCE violence, Hancock should have said NO! to those demanding the cancellation even if it meant his staff were going to be harassed by those supporting the Caledonia violence.
When the town of Deseronto cancelled our room rental agreement and refused to rent to Cindy Welsh the Mayor should have said NO!
When the Elks were visited by the OPP who tried to convince them to cancel their room agreement with Cindy Welsh they should have said NO! to the OPP.
When Cindy Welsh appealed for help from her MPP Leona Dombrowsky she should have made phone calls to the OPP and the Elks in support of Cindy’s Charter rights, not made snide comments about her and her invited guests.
When Fantino told his officers to target Gary McHale for charges out of Dec 01/07 before the investigation had even begun, and ordered them not to “get bogged down with legal nuances” to do it someone should have told him NO!
I could go on at length about how, at nearly every turn, those who have taken oaths to protect Canadian values and then abandoned the very principles they had sworn to protect. It is disgusting that such people can rise to such high places of authority in our lives.
The Charter is what we turn to when we’re not sure what is right. It isn’t some obscure legal parchment that can only be interpreted by people with law degrees. It’s a living promise that can only be fulfilled when we do our best to live up to its great ideals – especially during the times we need it most.
In Ricci v. DeStefano, the U.S. Supreme Court lived up to the ideals of the U.S Constitution even though they must have been acutely aware of the politically-correct pressure to do otherwise. Now, THAT is how one fulfills one’s oath of office.
Thanks again for writing, Clyde. I’ll take a pass on elected office, but thanks for the vote of confidence. Regards, Mark
P.S. Would you happen to be the same Clyde King I heard speak in Hamilton on April 24/09?
I think your first commentor hit the nail on the head. We are a hypocritical nation. To be more precise we are a conflicted nation.
We are conflicted at the root of our public administration because our charter is conflicted.
Reading section 15(1) we see that it states the core directive of a just liberal democratic society, that all are equal under and before the law. Then section 15(2) states that equality before the law is not absolute. That certain identifiable groups are entitled to more equality than others by virtue of race, ethnicity or other group traits.
Section 15(2) of the charter sanctions official reverse discrimination and race based government programs. It is the enabling article of identity group politics and race-determined privilege in Canada.
It is a glaring hypocrisy that we do not talk openly about the deeply conflicted principles in section 15(1) and 15(2)
This Charter section is why a court decision of absolute equality under the law, like that you cite in Ricci v. DeStefano, will never happen here.
VoC REPLY: You could be right, but don’t forget, the U.S. has had Affirmative Action programs for a long, long time, and still the Supreme Court ruled in favour of those who had been discriminated against.
There’s nothing wrong, I think, with doing what we can to give everyone an equal opportunity to succeed or to fail, even if that takes some special attention – although it can be a slippery slope, away from equal opportunity to equal results based on race. In the Ricci case, the city set up a fair process the results of which were discarded because the skin colour of the winners might have offended a ‘racial constituency’ and resulted in lawsuits. I hope that our courts will reject that argument, too. We shall see.
Thanks for writing, Serf. Mark
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