In her essay "The Sad Irony of Affirmative Action," Gail Heriot, professor of law at the University of San Diego and a member of the U.S. Commission on Civil Rights, highlights the "mismatch" of race-preferential admissions policies.  Basing her information on the book entitled Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It, Heriot asserts that it is "incumbent upon the Supreme Court to return to the principle that race discrimination should not be tolerated."  Notwithstanding evidence showing that racial preferences in college admissions actually harm the intended beneficiaries, race-based policies have spilled over into every aspect of American life.

Enter the ongoing battle of Judge Nicholas Garaufis, who ruled "in 2009 that New York City discriminated on written tests [for firefighters] by requiring that Candidates know how to read."

Since 2007, Judge Garaufis has "presided over a lawsuit brought by the U.S. Department of Justice and the Vulcan Society, a fraternal organization of black firefighters.  The suit charged the FDNY with discrimination against blacks." 

Merit Matters, headed by President Paul Mannix, has continually highlighted the case.  According to Mannix, as a result of Garaufis's ruling, the following have been permitted:

Black applicants being allowed to re-submit incomplete applications for the entry test four months after the application period ended. No other group, not even Hispanics, was allowed to do so. In addition, these applicants were provided aid in re-submitting their applications, an advantage also denied to all other groups.

Applicants [are] being required to indicate their race and gender on the application for the test. Usually, and according to law, supplying this information is voluntary. The fact that the method of scoring the subjective, non-cognitive questions on the test - which counted for fully half of the final score - has never been revealed raises the possibility and suspicion that the test was scored to achieve a desired result.

Black and Hispanic Candidates from previous tests given the opportunity to re-take the latest test...that they only have to pass with a score of 70, [as well as] not compete with other test takers for the highest score - and the possibility of being hired on a quota basis. White, Asian, [and] Native Americans and 'others' who performed poorly on the same previous tests were not afforded the same opportunity [.]

- Current Black and Hispanic Firefighters who were hired and are working stand to receive back pay and seniority because, by some incredible logic, they too were discriminated against.

- Black FDNY Officers in official FDNY uniform refusing to admit white Candidates to a test preparation class held in a public school.

Given the racially charged atmosphere so prevalent under the Obama administration, it is important to note as explained by Quin Hillyer that:

... [d]espite consistent Supreme Court precedent making clear that explicitly proportional race-based remedies violate both the Constitution and the Civil Rights Act, the Obama-Holder DoJ began pushing quotas in the FDNY case known as United States v. City of New York. On September 30, 2010, DoJ asked the court to accept any of four proposed remedies that 'involve selection based on the minority ratio of the hiring pool,' or what they otherwise described as 'some variation of proportional hiring.'

In fact, a 2011 Washington Times editorial notes:

On Feb. 28, Thomas E. Perez, assistant attorney general for the Civil Rights Division, submitted a proposed order for damages for rejected applicants who scored 25 or higher on the 85-question exams. [Thus] New York's taxpayers would be forced to pay compensation to [those who failed] in order to make up for years of seniority supposedly lost when the city chose not to hire them. Minority rejects also would receive seniority over firemen who had been working all the while.

Consequently, "Attorney General Eric H. Holder Jr.'s obsession with racial grievance-mongering could get Americans burnt to a crisp in their own homes" because the "DoJ is trying to force the FDNY to hire applicants who got 70% wrong on a basic, multiple choice, open book test."

According to Heather MacDonald, the ongoing litigation is predicated on the legal theory of "disparate impact," which "is defined by the United States Supreme Court as discrimination in which 'the employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.' Whether or not an employer can be found liable 'depends on whether the protected trait ... actually motivated the employer's decision.'"

An important distinction needs to be made. 

Demonstrating that the employer's workforce does not reflect the racial, ethnic, or gender percentage of the population of the area does not prove disparate impact. Such an imbalance may be the product of legitimate factors, such as geography, cultural differences, or the lack of unchallenged qualifications for the job. Therefore, it is incumbent upon the plaintiff to show that the imbalance is because of the challenged practice. The most compelling evidence of disparate impact is proof that an employment practice selects members of a protected class in a proportion smaller than their percentage in the pool of actual applicants, or, in promotion and benefit cases, in a proportion smaller than in the actual pool of eligible employees.

Yet New York City undertook major efforts to encourage minorities to join the FDNY.  The initiatives included advertisements, personal recruiters, and black celebrities recruiting prospective candidates.  Over $20 million was spent on recruitment since 1989, and yet Garaufis maintains that the FDNY is not integrated enough.

In fact, "an employer can be found guilty of discrimination simply if minority applicants don't score as well as whites on a job test."  But sadly, statistics continue to show that there are racial disparities in average cognitive skills.  Furthermore, "the low black representation in the fire department may also be the result more of low black interest in the job than of the lower black pass rate on the exam."

Notwithstanding these factors, the answer for some lies in lowering the requirements for passing the test.  Exams have been "watered down" since Garaufis decided that the "firefighter exam required too high a reading level."  Consistent with this specious rationale is the NAACP Legal Defense Fund "filing a federal civil rights complaint, challenging [New York City's] admissions process for eight specialized high schools, including Stuyvesant, Bronx Science and Brooklyn Tech."  Daniel Greenfield asserts that what is occurring is "quota arm waving about diversity being our strength.  You know what else is our strength?  People who can pass tests without whining about it or demanding equal representation based on their race."

Yet the diversity experts maintain that "[i]t's time to end the discriminator use of test scores to determine Specialized High Schools admission[.]"  Instead, they claim that "letters of recommendation, grades, community service and extracurricular activities" should be the determining factors in getting into these accelerated schools.

This dilution of standards is clearly evident by Ronnette Summers, a parent leader for the New York City Coalition for Educational Justice, who states, "Who needs to learn anything anyway?  Just bring your letters of recommendation and your extracurriculars."

Common sense is no longer common -- rather, we have illogical reasoning and "racial turpitude" on the part of those who wish to deplete tests of any "cognitive challenges."  It is fraudulent to continually water down tests; it is deceitful to demand less of some applicants to the fire department, and it is dishonest to claim "black underachievement as instances of white racism" when there is clear-cut evidence to the contrary.

Eileen can be reached at middlemarch18@gmail.com.