Title VII of the Civil Rights Act (1964) was put in place to prevent workplace discrimination due to race, religion, or sex (but not sexual orientation... yet). In addition to the obvious discriminatory actions, it also challenges testing if it appears to have a disparate impact on a single group. Sotomayor (and her supporters) say that her original ruling on the case of the CT firefighters was in support of this Act since all but one of the racial minorities who took the test, failed. The mostly conservative firefighters who managed to get her decision overturned feel vindicated that the test was fair and they are simply superior firefighters. So who was right?
Temporarily ignoring the fact that racism in the CT firefighters history of promotions is well known, it seems the main problem in this scenario is that rightness isn't the question. The question should be, how did we arrive at this juncture? Both sides were looking for quick victory rather than examine why the disparity occurred in the first place. The problem isn't the test. It's the educational system that supposedly provides an equal education for all, but consistently comes up short in poor areas. Poor areas tend to have a high percentage of racial minorities. It is not because poor people are stupid, but because they do not have money in their schools because though the nation distributes money equally to all schools, the communities fill in the blanks with taxes and propositions that grant line items to the educational budget. Thus, the racial minorities tend to have a lower quality education because they can't foot the bill (and thus are too poor to leave the community and the cycle continues). Most people from poor areas (no matter the skin tone) tend to score poorly on standardized tests. Throw in social pressure from inside the racial group to not become part of the dominant social group for fear of losing racial identity and a general culture of white privilege, and we have ourselves a perfect case for affirmative action, right?
But affirmative action in the form of hiring people who might not be as skilled or educated is a band-aid. There's no question that individuals of equal intelligence with equal social support and education will score equally well on the same test. Rather than throwing out the test, why not see which of the fire fighters came from an educationally compromised background? Those individuals could then be given some tutoring, provided by the state, to bring them up to speed and then retested. If they don't do as well, no one can claim race is a factor. Enough of the finger pointing. Just acknowledge that the system is flawed and take responsibility for creating an equal playing field for all. Sadly, our capitalist culture uses social Darwinism (something Darwin never thought or approved of) to determine that poor people are that way due to their own faults and weaknesses.