Sotomayor may pass ultimate one-size-fits-all test

Judge Sonia Sotomayor admits she's an affirmative action baby. She stated in an interview that she did not have high SAT scores and that being a Latina helped her get into the once all-male Princeton. Despite admissions test scores, she excelled academically, surpassing the majority of her white classmates. Fast-forward some decades later and Sotomayor's personal and professional overachievement (like Barack Obama's) brings to an end, what writer Eisa Ulen calls "white male mediocrity in Washington."

Sotomayor's Supreme Court hearings raised the obvious questions about race, gender, class, politics, and partisanship. But they also provoked larger questions about what justifies merit and qualifications in the United States. Actually, the hearings should make us all question whether these "one-size-fits-all" tests are holding blacks and Latinos back from opportunity in the United States.

During the hearings, fireman Frank Ricci was called as a witness against Sotomayor to tout the importance of American meritocracy. Frank Ricci was the plaintiff in the Ricci vs. DeStephano case in New Haven, Connecticut. He brought a discrimination suit against the city because the test he took for promotion in the fire department was thrown out, causing him to lose a coveted supervisor's spot. It has been spun in the media that New Haven threw the test out because blacks failed it and whites didn't. But the New Haven case is more complicated than that.

Sotomayor, along with other two judges on the circuit court, concurred with the city of New Haven's decision to throw out the test for promotion based on its disparate impact on minority candidates. The New Haven test issue went like this: Beginning in 2003, firemen were allowed periodically to take a written test for promotion to a limited number of captain or lieutenant spots. More white candidates took the test than blacks. Subsequently, a small percentage of candidates with the highest scores were selected for supervisory roles within the fire department. New Haven saw that, given the greater numbers of whites taking the written test, and given that they had been summarily promoted based on the highest scores on the test rather than performance in the field, the test had a disparate impact on the minorities under Title VII of the Civil Rights code.

Yet what's really important here is the question of whether a written test for promotion in New Haven fire department reflected the skills needed to become a captain or lieutenant. A similar issue was addressed by New York City this past week when the court responding to a lawsuit brought by a black firefighters' organization ruled that the written test used "discriminated against black and Hispanic applicants to the fire department and had little relation to actual firefighting."

Judge Nicholas Garaufus of the Federal District Court in Brooklyn said, "These examinations unfairly excluded hundreds of qualified people of color from the opportunity to serve as New York City firefighters." Given the racially exclusive history of the NYC fire department and the disproportionate number of white firefighters in a largely majority-minority city, the judge's statement is on point.

So is a one-size-fits-all approach the best judge of who is a good fireperson? I argue the one shot fits all test has replaced any discussion of real qualifications in the United States.

Harvard Law Professor Lani Guinier has been the most clear on the issue that we as a society have used the term "meritocracy" as a proxy for an "aristocracy". In other words, we use arbitrary criteria like a written test to define merit without looking at how the test itself may in fact be reinforcing an existing unequal societal arrangement.

Was Sonia Sotomayor qualified for Princeton despite her low SAT scores? Obviously. She showed that real merit emerges from an opportunity and not before it. We need to stop relying on one-size-fits-all tests as the gatekeeper to opportunity in education or in particular areas of employment where actual job performance may matter more, like being a firefighter. This obsession with one-size-fits-all tests may actually be closing the door to opportunity for those most in need of it.