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There is often controversy over just what is and is not racial or sexual discrimination. Is it discrimination to give preference to someone in hiring or promotion? How about admission to a university? These questions have created lots of controversy and I’m afraid that too often our laws and court decisions have only confused the issue. However there is a clear test that can cut through the fog. It’s what I call the Gander Test.
Sauce for the goose is sauce for the gander. That old saying provides the basis for the Gander Test, a sure-fire means of determining if a decision or action is discriminatory. The test is simple, quick and as far as I can tell, 100% accurate if applied honestly. It consists of simply interchanging “goose” and “gander” roles in our thinking and discussion. If we think something might be discriminatory, we switch roles of the affected parties. If it is discrimination after the switch then it was certainly discrimination before the switch.
For example, suppose you are a manager who needs to hire someone. You have two acceptable candidates for the job, one a white man, one a woman or minority. You decide to hire the white man but someone asks if that was because of your bias. Or maybe you decide on the other person and someone asks if you were overcompensating just to get racial balance or meet a quota. How can you be sure you decided fairly? All you have to do is look at what you would have done had the qualifications been switched. What if each had attended the school the other in fact attended, worked where the other in fact worked, had the references the other in fact has, etc? Would your decision change if the qualifications were reversed? If not, your decision was almost certainly based on bias.
This can also apply to the case of the New Haven firefighter promotion test (Ricci v. DeStefano), so prominent in the discussion of Judge Sotomayor. Nobody was promoted because not enough minorities qualified for promotion. What if the situation had been reversed? What if, on a similar test in some fire department, 80% of Blacks qualified for promotion but only 40% of Whites? What if the city said, “we are going to nullify the results because not enough white people qualified.” Nearly everyone would object and call it racism. Jesse Jackson and Al Sharpton would organize demonstrations and protests. Editorials across the country would condemn the action. Almost certainly the courts would throw it out. Switching positions of goose and gander (Whites and Blacks in this case) allows us to see the discrimination clearly.
What’s that you say? Surely such a thing couldn’t happen, we would never expect Blacks to do better on any employment test than do whites. Think again. If the test involves running with a football or getting a basketball in a hoop, whites are seriously under-represented. Both the National Football League and the National Basketball Association have a much smaller percentage of white players than would be expected from the percentage of whites in the general population. What should we do about it? Should we force professional sports to use race-balancing measures when they decide which college players they are going to hire? Nearly everyone would object and call that racial discrimination. Jesse Jackson and Al Sharpton would organize protests, justifiable protests I might add.
What if a candidate for high office were to say, “I would hope that a wise white male with the richness of his experiences would more often than not reach a better conclusion than a Latina woman who hasn’t lived that life”? Again everybody would recognize this as bias. In fact many did recognize bias in Judge Sotomayor’s equivalent statement, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Again the Gander Test shows the clear bias in the original statement. Even President Obama who appointed and continues to support Sotomayor recognized the problem, calling it a poor choice of words. (Though the fact that she made essentially the same statement many times over a period of at least 15 years would lead us to the conclusion that it represents her real belief, not something she said by mistake.)
But wait, you say. Is there no constitutional way to help those minorities who don’t have the same education and opportunities as the rest of us? There is as long as the efforts to help are based on disadvantage and not on skin color. What if a state identifies poor schools and institutes a program to improve them, or to allow students from those schools to attend private or charter schools. That would pass the Gander Test. If the bad schools are mostly black (as so many are) we just imagine if it would be constitutional to allow special efforts to improve education of white children in bad schools. The answer is yes it is. The program is aimed at the disadvantages of the children, not at their skin color. In fact a case might be made that equal protection under the law requires that states provide equivalent educational opportunities to children in poor and rich neighborhoods.
The 14th amendment to the constitution requires equal protection under the law for everybody, regardless of race. Giving white people special protection or other advantage violates that clause. So does giving special protection to Blacks, Hispanics, or green people if they were to exist. It is the duty of our judges and elected officials to support that equal protection. It is also the duty of the citizens to encourage their “hired hands” to support such equal protection. We should all contact our senators and ask them to consider this when they vote on the confirmation of Judge Sotomayor or any other prospective judge.