How have courts viewed similar cases? What arguments would Clarence make if he were to take this to court?
Clarence has taken the test to become a sheriff in his town. The major indicator on whether a person will be hired is how they score on the test. Clarence, a 30-year-old white male received 48 out of 50 on the test. He was not hired, but two other individuals were hired. Sally is a 30-year-old Hispanic female who scored 32 out of 50, and Barry is a 27-year-old black male who received 42 out of 50. Both of these individuals were hired. Clarence is thinking about filing a lawsuit for reverse discrimination.
The most recent example of a case like this would be the Ricci v. DeStefano case. The Supreme Court heard the case and ruled on it during this past summer. The details are similar to Clarence's. In a test administered by the city of New Haven to firefighters seeking promotion, an overwhelming number of African- American applicants did not score anywhere near as well as their White counterparts. The city of New Haven, looking to avoid a discrimination lawsuit in a city that has a large African- American population, invalidated the test results, negating the achievements of those who fared well on the test. Frank Ricci, along with 17 others, sued the city for throwing out the test results, claiming a violation of equal protection as afforded in the 14th Amendment. The Federal District Court sided with the City, and was supported by the Second District Court of Appeals, on which recently confirmed Justice Sotomayor sat. The Supreme Court heard the case in the Winter and in its 5-4 decision, sided with Ricci in arguing that the city had no basis to throw out the test results. The decision was seen as a major challenge to Affirmative Action, and the Bakke decision in 1978 that initiated its practice.
In Clarence's example, examining how the court has ruled in affirmative action cases such as Bakke through Ricci might be a good way to examine how the court has changed over time in its approach to affirmative action and preferential treatment.