Affirmative action takes one on the chin

If you tried to wade through the Supreme Court's opinion that New Haven unfairly denied promotions to white fire fighters because of their race, you might get a little confused, especially when it comes to applying it to Chicago, Cook County and Illinois' tangled web of affirmation action laws. If you tried to wade through the Supreme Court's opinion that New Haven unfairly denied

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Judge Sotomayor

promotions to white fire fighters because of their race, you might get a little confused, especially when it comes to applying it to Chicago, Cook County and Illinois' tangled web of affirmation action laws.

If you want to know whether the 5-4 decision will require that these laws be changed ("relaxed" and "watered-down" depending on your viewpoint) you probably won't get the answer by wading through 93 pages of analysis, case law and legal precedent.

So, it's probably better to go back to the basics, which, in this case, is the Fourteenth Amendment of the U.S. Constitution, which was passed to ensure that all American citizens are treated equally. It was approved after the Civil War freed the slaves and was meant to ensure that anyone--whatever his race or other circumstances--would have the equal protections of the law. It's worthwhile to read the entire thing in the context of so many affirmative action laws that have jumped the tracks:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

That's as clear as can be, and whatever legal mumbo-jumbo that the courts, Congress, the affirmative action industry and bureaucrats say, so much of affirmative action law violates both the spirit of substance of the amendment.

Unfortunately, the court seems to have based its decision not on whether New Haven's actions were constitutional. Rather, it was based rather narrowly, on whether New Haven conformed to federal civil rights law in shafting the white fire fighters. While the court seemed to dodge the constitutional issue, it is still significant that it said New Haven, with its goofy efforts to bypass qualified whites for promotion in favor of preferred minorities, indeed violated the law.

All of this is aside from the politics of the decision, which should be regarded as a rebuke to federal appeals Judge Sonia Sotomayor, now a Supreme Court nominee, who joined other appeals court justices to reject the white firefighters' pleading out of hand.

More important than the impact on Sotomayor's confirmation hearings though is the basic issue: our struggle to achieve a truly color-blind society. As with so many supporters of civil rights and desegregation in the 1950s and 1960s before it became a fashion, I firmly believed that the ultimate goal was fundamental equality, before the law and in practice. And like so many other former liberals, I watched in dismay as that principle was kidnapped by the affirmative action industry, and turned it on its head. Racial discrimination now became acceptable for the sake of eliminating racial discrimination. The denial of equality under the law now became acceptable in the name of equality under the law. It's insane.

For the moment, Sotomayor's confirmation will not threaten the decision (Ricci v. DeStefano) because she will replace a like-minded unequal opportunity justice, David Souter. But President Barack Obama may eventually change the make-up of the court, tilting it toward a more "liberal" view of the Fourteenth Amendment. Which is to say, that we would be returning to the days when race mattered.

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