Image has not been found. URL: /wp-content/uploads/2009/05/sotomayor-biden-obama1.jpgVice President Joe Biden and President Barack Obama applaud Supreme Court nominee Sonia Sotomayor (Zuma)
Conservatives looking to reintroduce affirmative action as a political hot topic are eagerly attacking Supreme Court nominee Sonia Sotomayor for her decision in a reverse discrimination case. But what many of these same conservatives aren’t mentioning this week is that they once overwhelmingly supported a race-based initiative that has become a hallmark of the Bush Administration: No Child Left Behind.
In Ricci v. DeStefano, Judge Sotomayor joined two other judges on the Second Circuit Court of Appeals affirming the dismissal of a case brought by white firefighters who were denied promotions. The sixteen men insisted that they deserved to be promoted over their black colleagues because they scored better on two promotional exams. But the New Haven civil service board decided not to certify the exams’ results because that would have led to promotions of almost all white firefighters in a city where 32 percent of entry-level firefighters are black, and 66 percent of the population is black or Hispanic. The racial disparity could have made the city vulnerable to a discrimination lawsuit.
Conservative commentators and right-wing organizations have attacked Sotomayor for upholding New Haven’s right to make the decision it did, priming Republicans in Congress to do the same at her confirmation hearing. Yet almost none of them note that Republicans have pushed for laws that not only similarly acknowledge past racial discrimination but use racial categories to remedy it.
The No Child Left Behind Act is a perfect example. Championed by President George W. Bush in 2001 and signed into law in 2002 with the overwhelming support of Republicans in Congress, the law recognized that minority children in the United States have historically not done as well in school as white children. And it used explicit racial categories to remedy the problem.
“The No Child Left Behind Act is a civil rights law that triggers government action based on the status of racial groups,” said Michael Dannenberg, senior fellow at the New America Foundation and former senior education counsel to Sen. Edward M. Kennedy (D-Mass.), a co-sponsor of the No Child Left Behind Act. “If schools aren’t teaching Latino or African American kids to state education standards, for example, No Child Left Behind entitles those kids to free after-school tutoring among other government interventions,” said Dannenberg.
“Over 85 percent of Congress voted in favor of No Child Left Behind,” Dannenberg added. “The No Child Left Behind vote makes it a little more difficult for members of Congress to criticize a judicial nominee for upholding government action based on the status of racial groups.”
The No Child Left Behind Act is explicit in its use of racial categories, stating that one of its primary purposes is “closing the achievement gap between high- and low-performing children, especially the achievement gaps between minority and nonminority students, and between disadvantaged children and their more advantaged peers.”
As the Department of Education explains on its Website, the law “benefits African Americans” and acknowledges that in the past, “too many African American students have been shortchanged by our nation’s schools.”
“In the greatest country in the world, we created two education systems – separate and unequal,” the agency says on its Website. “Forty years after the Brown v. Board of Education decision, some schoolchildren were taught well while others – mostly poor and minority – were left to struggle or drop out.” This growing “achievement gap” between white and African American students needs to be addressed, and the No Child Left Behind law makes closing that gap “a national priority.” As a result, “schools are now held specifically accountable for the annual progress of African American students.”
The legislation explicitly requires school districts to categorize and quantify students’ academic success by race. And the outcomes make a big difference for the district. If minority children are performing below a certain level, the schools are penalized; eventually they can even be closed. So schools have an incentive to target extra resources toward minority students that aren’t performing well to ensure they meet the law’s targets. It is, in short, an explicitly race-based standard.
Roger Clegg, president and general counsel for the Center for Equal Opportunity, wrote in the National Review in 2007 that “the law’s requirement that schools track the scores of racial subgroups of students, and that each group hit the target pass rate on the tests” has “generated surprisingly little debate.”
“It’s fine to want to improve kids’ test scores,” Clegg said on Monday after President Obama announced Sotomayor’s nomination, “but if you have two schools and kids are struggling in both schools, I don’t know why it should matter what skin color they are. Unfortunately, the way the [No Child Left Behind Act] works is it encourages school systems to be more concerned if the struggling kids are of one race than another race, depending on whether there’s a gap in the rest of the system.” Clegg similarly thinks that the Ricci case, decided by Sotomayor and her colleagues, was decided wrongly. “We believe that as a matter of policy the use of racial categories by governments in particular is almost always a bad idea,” he said.
Clegg is right that few Republicans who now criticize the Ricci decision or Sotomayor’s claims that race is sometimes relevant had any problem when President Bush and a Republican-dominated Congress pushed the No Child Left Behind Law.
In fact, a review of the Congressional history suggests that none of the Republicans in Congress — including sponsors John Boehner (R-Ohio) in the House and Judd Gregg (R-N.H.) in the Senate — ever publicly complained about the law’s categorizations by race. Then-Rep. Jim DeMint (R-S.C.), one of the leading GOP opponents of the bill initially, said : “I opposed the first version of “No Child Left Behind” solely because it didn’t have enough of a role for local authorities. He made no mention of race.
And when Republicans introduced legislation in 2007 to undercut the law, their main objection to it was that it increased bureaucracy and federal control over education.
Sotomayor, meanwhile, has been roundly criticized by the right as a hard-left liberal with a “very expansive” reading of the Constitution that’s guided by “her personal feelings” rather than the law, in large part due to her participation in the Ricci opinion. Like the education law, Ricci acknowledged disparities based on race and did not forbid the city from taking that into account in its decision-making.
There are strong reasons for doing so. As the NAACP Legal Defense and Education Fund wrote in an amicus brief filed in Ricci, now on appeal before the U.S. Supreme Court: “There have been few, if any, sectors of public or private employment where racial discrimination has been more firmly entrenched than it has been in fire-fighting.” This was a key reason why Congress in 1972 extended Title VII of the Civil Rights Act to state and local government employers. “Respondents’ efforts more than three decades later to eliminate continuing employment discrimination in filling supervisory positions within New Haven’s firefighting force must be viewed in light of this legislative history,” writes the Legal Defense Fund.
In extending the Civil Rights Act’s reach, the brief continues, quoting extensively from the Congressional Record, Congress explicitly found that fire departments had failed to recruit blacks and denied them promotions because of “rel[iance] on criteria unrelated to job performance and on discriminatory supervisory ratings.” Discrimination was worst at the supervisory level: “Negro . . . firemen hold almost no positions in the officer ranks,” Congress found. Employment discrimination in firefighting and other visible government jobs, Congress worried, “impaired government performance and democratic accountability.”
It was against this backdrop of past discrimination that Sotomayor voted with her colleagues to affirm New Haven’s decision not to promote all-white firefighters based on exams that had a clearly disparate impact on applicants of different races. A majority of judges on the Second Circuit Court of Appeals voted not to re-hear the case, agreeing with Sotomayor’s opinion that that decision was lawful.
When President George H.W. Bush nominated Sotomayor to the U.S. District Court for the Southern District of New York in 1991, the Princeton and Yale graduate, former prosecutor and commercial litigator, sailed through Senate confirmation with ease. But when President Clinton nominated her to the Court of Appeals six years later, Republicans stalled her nomination for more than a year, knowing that a seat on the prestigious Second Circuit would be a launching pad for a future Supreme Court appointment.
TWI’s David Weigel has written about how Republicans are itching to use President Obama’s first Supreme Court nomination to “educate” the American people and galvanize Republican loyalists. Conservatives’ vocal attacks on Sotomayor’s role in affirming the right of a city fire department to prevent racial discrimination — contrasted with their complete silence on the matter when it came to Republican legislation using racial categories to address discrimination in education — calls into question their motivation.
“I don’t think it will stop criticism,” said Dannenberg, “but there is a seeming contradiction.”