Sotomayor, Ricci and the Preferential Treatment Myth

One of the most pervasive questions
swirling around the probable confirmation of Judge Sonia Sotomayor to
the U.S. Supreme Court has been, "did she receive preferential treatment
because she was a Latina from the Bronx?" Commentators, particularly
from the far right, have spent air and ink to argue that Sotomayor was
only admitted to Ivy League schools, received top grades, swiftly advanced
in her career, and was selected to be the next Supreme Court justice-exclusively
because she is Latina.

Many of these same commentators
have pivoted from these unfounded conclusions to attack Sotomayor for
showing bias against average, hard-working, White men, by repeatedly
discussing her limited, noncontroversial role in the New Haven firefighter
case, Ricci v. DeStefano. Republican senators on the Judiciary
Committee have brought up the Ricci case everyday this week during
Sotomayor's confirmation hearings, and called on Mr. Ricci to testify
yesterday against Judge Sotomayor. Their argument seems to be:
Sotomayor has been a beneficiary of unfair preference over White men
like Mr. Ricci, and she will continue to prefer people like her (i.e.
people of color) over Whites from her seat on the Supreme Court.

Frank Ricci could say nothing
about Judge Sotomayor's fitness for the Supreme Court. The case was
not even about preferential treatment, but instead challenged our reliance
on testing regimes. What Mr. Ricci's testimony did do is voice the
unspoken fear behind the discussions of preferential treatment: White
men are wronged when people of color and women are "favored."

The political motivation behind
the claims of preferential treatment and the spotlight on Frank Ricci
has ignited a new round of discussions about the dreaded alliteration:
affirmative action. And so while the allegations made to diminish
the accomplishments of Judge Sotomayor are outrageous, they cannot simply
be tossed away as far right rhetoric. There is a critique of affirmative
action shared by many in the mainstream, namely that all preferences
do is diminish the real achievements of people of color and women and
engender resentment in working class White communities whose opportunities
are being stolen. The mainstream fear is that any "unequal"
treatment will harm rather than help the march toward equality.

This mainstream critique of
affirmative action has something in common with the egregious proclamations
that have been made about Sotomayor. They both rely on the same
falsehood: that there is an even playing field across racial, economic,
and gender lines.

It is this myth of the even
playing field that allows the notions of "preference" and "unfairness"
to exist in the first place. As soon as you acknowledge that the
playing field may be uneven, the concepts of preference and fairness
become much more complicated: If I have a head start in a footrace,
can I reasonably complain that my opponent is given a boost along the
way? And if my head start is long and the boost is short, does
it really make sense for me to call it "preferential treatment?"
The reality is that the playing field of American society is not even.
The appeal of the ideal, however, is strong, and the pride associated
with it deep. It is a vision so fundamental to American identity
that it is the second line of the Declaration of Independence: All
men are created equal. It is a beautiful ideal, and some have shown
its promise, notably our current president, the current first Black
Attorney General Eric Holder, and the first female Supreme Court justice
Sandra Day O'Connor.

But these examples are, at
best, positive indicators that we may one day all be equal. What
they do not represent is that structural exclusion is a thing of the
past.

Take, for example, our public
education system. Every kid in America gets a fighting chance
to succeed through hard work. But how does this play out when
our schools are not even playing fields? The still segregated
and poor urban and rural schools that most students of color attend
do a worse job of educating those students than the more integrated
and wealthy suburban schools. And so, in 2006, 51 percent of Black
students graduated from high school nationwide, as compared to 76 percent
of White students. In that same year, a Black student was
more than three times more likely than a White student to be suspended,
despite research showing that Black students are no more likely to misbehave.
Add to all this that Black and Latino students are far more likely to
attend schools armed with metal detectors and police, and you see how
drastic the differences really are.

These statistics are a few
among many that lay bare the extreme racial injustices that persist
in our society (others: the infant mortality rate for Black families
is twice that for White families; one in fifteen Black males over 18
are in prison, compared to one in 106 White males in the same age group).
The strong temptation when those with privilege are presented with statistics
like these is to protest-it is not our fault, we did not create these
inequities. But these inequalities exist and persist because of
our actions and inactions. There is no credible movement, for
example, to revamp the criminal justice system, despite statistical
evidence of gross racial disparities.

Once we debunk the myth of
an even playing field, the concepts of preference and unfairness crumble.
This is when we can see clearly and talk honestly about the reality
of our society. Every human-made structure (schools, courts, the market,
etc.) in our society systematically "prefers" those with power and
privilege, who presently are White men. And so, our society is
systematically "unfair" to people of color and women.

As for Judge Sotomayor: What
does it mean to say that she received "preferential treatment?"
Would anyone dispute that she would have had more material advantages
in a working class, White suburb? Was she "preferred" over
a White student when she got into Princeton? What about all the
legacy students who were preferred to non-legacy students at Yale?
Was she "preferred" when she was nominated to the Supreme Court?
There are currently seven White men on the court-were they not "preferred"
all their lives because of their identities?

It is hard to acknowledge that
the privilege undergirding the power structure in our society may not
be entirely justified, or worse, that it may be based on an unjust set
of rules. It is far easier to frame attacks on the status quo
distribution of privilege as unfair and preferential. To accept
the shallow colorblind fairness argument makes it far too easy to ignore
the deeper injustice that we see every day in our society. Ignoring
that injustice is not only, itself, unjust, it also delays us from fixing
real, systemic problems that affect us all.