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CSRRR spring lecture discusses affirmative action

by Leslie Cowan
Law Student Writer/ 3L

CSRRR “I am a product of affirmative action,” Robert Chang stated as he spoke to the Levin College of Law on April 1, as the featured speaker for the Center for the Study of Race and Race Relations spring lecture.

Chang, professor and founding director of the Fred T. Korematsu Center for Law and Equality at Seattle University, is an accomplished scholar, talented writer, successful lawyer, and himself a beneficiary of affirmative action.

In his talk, Chang addressed a recent rash of litigation, most notably from the United States Supreme Court case of Ricci v. DeStefano, which he feared could lead to the elimination of affirmative action practices as failing to comport with Equal Protection.

In Ricci, New Haven, Connecticut firefighters were administered a multiple-choice test that was to be largely determinative of who would receive promotions. The results, however, merited the promotion of at least thirteen Caucasian firefighters, only one or two Latino firefighters, and no African-American firefighters. As a result, the city withdrew the test results. The plaintiffs in Ricci, a Caucasian and a Latino firefighter, filed suit on the basis that they were denied promotions because of race.

Current Supreme Court Justice Sonya Sotomayor famously ruled against the Ricci plaintiffs when their case was before the Second Circuit Court of Appeals, for which she was then a sitting judge. The U.S. Supreme Court ruled in favor of the Ricci plaintiffs in holding that New Haven’s decision to disregard the results of the promotional examination showed unlawful racial bias.

Chang said that this ruling “marked a dramatic shift in Title VII jurisprudence” and also noted that the facts of the case were presented to the U.S. Supreme Court “as though there were no history.” According to Chang, citing from Ginsburg’s Ricci opinion, in which she referenced Grutter v. Bollinger, “context matters.”

Chang placed the context of affirmative action in an historical framework, in which affirmative action employment practices seek to correct prior discrimination that left ethnic groups generations behind the majority in both progress and opportunity. He added that he is fearful that soon such measures will be deemed wholly prohibited in light of Equal Protection if future decisions follow the reasoning from the majority in Ricci.

Chang, however, is not yet willing to give up hope. He praised the professors at UF Law for doing work that advances the cause of social justice and proclaimed that “change doesn’t happen without hard work.” He also advocated individual commitment to vigilance in addition to hard work in warding off intimidation based on race.

“Despite what you are sometimes told…we can all be heroes,” he urged.