Over the next two weeks, the U.S. Supreme Court will consider a series of cases that could confirm or sharply narrow the government's use of race-based policies to supposedly promote "equal treatment before the law."
The most closely watched -- and the most emotionally charged -- will be the case of the Connecticut firefighters.
The lead plaintiff in the firemen's case, Frank Ricci, is a veteran New Haven firefighter who says in sworn statements that he spent thousands of dollars in preparation and studied for months for his department's promotion exam. Mr. Ricci says he is dyslexic, so he had tapes made of the test materials and listened to them on his commute. "I relied in good faith on the promise that effort and not race would determine who would be promoted," he said in a sworn statement.
When the results of the 2003 exams came back, only white firefighters, including one who is Hispanic, scored high enough to be considered for the openings for lieutenants and captains.
All 27 black firefighters who took the test fell below the cutoff.
After tumultuous public hearings, with minority groups arguing that the tests were flawed and the white firefighters complaining that officials were caving to political pressure, the city's Civil Service Board voted not to certify the results. The promotions remain in limbo.
The city argues that the test it commissioned, in which 60 percent of the score came from a multiple-choice questionnaire and 40 percent from an interview, must have been biased, despite its best intentions.
At any rate, the city says it was bound by Title VII of the 1964 Civil Rights Act, which requires employers not to rely on hiring or promotional tests that have a "disparate impact" on minorities unless they can show a "business necessity."
Now, if it can be shown the test was some piece of trickery, designed to produce an unfair outcome, then of course the city should never have used the test, or should have thrown it out once its nature became known.
But if instead the results were thrown out simply because "not enough" blacks succeeded, then the Civil Rights Act is being interpreted not to demand color-blind advancement, but rather to establish a quota.
In a first-term dissent, Chief Justice John Roberts lamented the "sordid business" of dividing individuals by race. The chief justice is on the right track.
That was indeed the sorry practice of the past. But -- barring a showing of discriminatory intent -- neither government agencies nor private employers should be forced today to continue living on what Washington lawyer Virginia Seitz calls "a knife's edge," worrying about lawsuits should their hiring and promotion tests fail to produce some "exact quota" of racial balance.
As black scholar Thomas Sowell has documented in enormous depth, the fact that most pizza parlors in a black neighborhood may be owned by Lebanese or Palestinian families does not "prove there was racial prejudice" in the allocation of pizza parlors, any more than a shortage of white guys in the NBA proves there was some kind of "discrimination against whites" in that league's recruitment policies.