Black People, The Supreme Court, and Our Rights

Elliot Millner, J.D.

The United States Supreme Court recently made a number of decisions that continued this conservative-leaning courts pattern of taking a jackhammer to the barriers put in place in order to protect the rights of people historically susceptible to discriminatory and oppressive conduct, which definitely includes Black people.

The most recent decision resulted from a case involving a group of white firefighters in New Haven, CT, who alleged that the city of New Haven was guilty of "reverse discrimination" for refusing to continue using a promotion exam that showed a clear disparate impact on Black and Hispanic firefighters(If the exam had been used, 17 whites, 2 Hispanics, and 0 Blacks would have been promoted). The court, in a 5-4 decision, sided with the white firefighters, stating that the city of New Haven's "fear of litigation" was not enough of a reason to not use the exam, nor was the disparate impact alone sufficient reason. The court gave a new standard requiring a "strong basis of evidence" to show that the city may be liable for disparate impact on a protected group, instead of the previous "good faith basis" that had been applied in previous cases. Although the court did not give a rule as to what constitutes a strong-basis of evidence, it can be easily concluded that the result of this decision will be to make it more difficult to prove claims of disparate impact regarding the use of promotional exams, both in public and private employment.

Combine this decision with the courts decision in a recent age-discrimination case, and a decision by the court blocking the right of potentially innocent people to obtain post-conviction DNA testing in order to prove their innocence(a decision the Obama administration supported-another disturbing pattern), and what we have are clear warning flags that the rights of many people (Black people in particular) are in serious jeopardy.

It is an observed trend that when the economy is not doing well, employment discrimination claims rise. As Black people, many of us are also aware that we are often the first to suffer during times of economic hardship, and that we also generally feel the effects more than others. The saying "last hired, first fired" is not a myth, but a sad reality for many of us. When times get hard, employers are more likely to attempt to find reasons to get rid of employees. Most employers will do this in a legal and ethical manner(or so we hope). However, the reality is that many will not, and when they don't, they are far more likely to use those unjust methods of firing(or not promoting, or not hiring) against Black people.

The courts decisions are a continuation of its willful ignorance, and an example of how far from being a "post-race" society we really are. The court is simply a microcosm of the rest of white supremacist/white privileged society, which is using the election of a Black president as a sort of "get out of worrying about rights" card. Although most people who don't have their heads buried in the sand realize that racism(specifically institutional) and discrimination are still issues, and that most of this conduct is not done in a blatant manner, the Supreme Court continues to make it so that a person almost has to witness or hear the act of discrimination in order to be successful. It is highly doubtful that many people will be caught saying "I designed this test so that no Blacks would be promoted", or "I am not hiring that person because they are too old".

The court, and many others in America with self-serving motives, are strongly pushing the "post-race mythology". This includes numbers of Black people as well. It is easy for those who still occupy the majority of positions of power(and yes, white people do, regardless of who our president is) to argue that things are equal now, and that there need not be any more focus on the rights of those who have been historically oppressed. It is also easier for those Black people who have achieved some level of financial success to ignore the realities still faced by far too many of us. Those who have and are prospering from the status quo, have the least motivation to want to change it. This approach of promoting the myth of racial harmony and equality over the reality of continued racism and discrimination will only result in more harm for Black people in the long term. The impetus for challenging this drive to promote the illusion of racial equality must come from us.

We must be vocal and active in the face of this machine that is working to take us backwards in time. Allowing ourselves to be blinded by a Black face in the presidential office is the worst mistake we could make. That is not an attack on President Obama, it is a message to those "fans" who think they are doing him or us a favor by not challenging him(or other elected officials, or the courts) on issues that may have a great lasting impact on us.