By Paul Moreno

The federal courts have irreparably damaged race relations in Boston, says Paul Walkowski in a new book, Affirmative Action, Affirmative Discrimination (Branden Publishers).

According to him, the U.S. Court of Appeals in Boston has helped to fabricate a case of discrimination in the Boston police and fire departments since 1971.

As a result, race relations have worsened as blacks came to believe this history of unfair treatment and whites came to resent the myth that the courts had invented.

The police and fire departments never discriminated on the basis of race, Walkowski says. But the courts assumed that if blacks and other minorities did not pass the civil service exams at the same rate that whites did, these tests must be instruments of discrimination.

The courts decided this way despite the fact that not enough blacks and Hispanics took the tests to make any statistical inferences meaningful and despite the fact that the departments were already engaged in "affirmative action" to reach out and get more blacks and Hispanics to take and pass the exams.

Trial Judge Unable to Find Discrimination

In the Boston police case in 1971 the trial judge in the U.S. District Court found that the tests discriminated as much against poorly educated whites as against any minorities. He refused to grant a race-based order. But he was reversed by the U.S. Court of Appeals.

As to the Boston Fire Department, the trial judge in the U.S. District Court in 1974 could not find any "disparate impact" in the civil service exams because minorities passed at the same rate as whites. So the judge referred to the Police Department case, and a "long history of past discrimination in the Boston Fire Department was born from thin air." When the U.S. District Court continued the program in 1998, it referred to this history of discrimination at least thirty times in its decision.

Despite the fact that no evidence of a history of discrimination was ever proved, advocates of race-based policies always refer to the "history."

"It was completely contrived," Walkowski says. "It could only be done by changing the meaning of words and using convoluted language."

For many years, the U.S. Supreme Court helped to uphold this system by telling cities that they would not have to fear "reverse discrimination" suits by whites if they granted preferences or outright quotas for minorities.

The U.S. Supreme Court began to curtail these programs about ten years ago, but local judges and bureaucrats have been unwilling to follow the law.

Walkowski quotes former Justice Robert Bork, who says, "It is not uncommon for judges who disagree with Supreme Court rulings to say that they are abiding by the high Court’s decisions, then do as they please, confident the Supreme Court will look no further into what is going on."

Interestingly, two recent additions to the U.S. Supreme Court, Stephen Breyer and David Souter, came from the First Circuit in Boston. Breyer was expected to be part of the court’s liberal wing. Souter, who was appointed by Republican President George Bush, has turned out to be just as liberal.

The federal district courts and the First Circuit Court of Appeals have not changed, Walkowski says. "They remain as liberal as ever."

They have been forced to accept some changes recently. A 1995 U.S. District Court’s order to end racial quotas in hiring by the Police Department was implemented this year.

"The consent decree is over and courts are ruling against affirmative action," said Police Commissioner Paul F. Evans.

But Walkowski warns that the mythical "history of racial discrimination" remains widely accepted and is still used to justify race-based treatment.

Refuses to Follow U.S. Supreme Court

After almost twenty years of promoting racial preferences and quotas, the U. S. Supreme Court began to require stricter standards in racial discrimination cases in 1998. The First Circuit Court of Appeals, the last stop before cases go to the U.S. Supreme Court, is supposed to apply the rules handed down by the U.S. Supreme Court. These rules require that, if state and local governments use racial classifications, they must be:

• Remedying a specific problem – not promoting amorphous goals like achieving workforce "diversity;"

• Limiting the cases to actual victims of discrimination, not to generalized racial groups;

• Judging the plaintiff’s request with "strict scrutiny," the highest, most stringent standard that courts apply, because racial classifications are so potentially harmful.

But the First Circuit, which has supervised the Boston police and fire departments for thirty years under "consent decrees" with the city of Boston, is ignoring these mandates from the U.S. Supreme Court, says Walkowski.

Media Contributes to Fabrication of "History"

The campaign to maintain racial discrimination has been abetted by the media.

"The media has been just plain lazy," Walkowski says. "It doesn’t take much research to see the lack of substance in these charges of historical discrimination."

Last October, the Boston Globe referred to city council hearings on affirmative action as "unusual and potentially explosive," and repeatedly warned that they "threatened to rekindle" racial violence. Globe columnist Derrick Jackson called the councilors who wanted to discuss the issue of affirmative action, "City Council Arsonists." He warned that, "A Boston that does not care to rekindle its inflamed past should douse this arson squad with a fire brigade of facts."

But rather than debate the facts, the council dropped the matter. City Council President Kelly ended the hearings at the request of his colleagues.

"The debate over affirmative action and quotas becomes so intense that elected officials would rather avoid it," Walkowski explains.

"Perception takes the place of reality," he says. "The council thought that they’d get creamed in the media, so they stopped.

"This is typical – Congress does the same thing. The quota advocates are firm. They view their opponents as not just wrong, but evil."

Since the media has given them the moral high ground, it is hard to question their policies.

"It’s sad but, in politics, if you have to explain your position, you lose," Walkowski says.

Spreads to Other Areas

The problem has spread to other areas.

In 1993, the Shawmut Mortgage Company, Boston, was sued and forced to compensate minority applicants. Though the company denied that it had discriminated, it had to accept the punishment in order to win federal approval of its merger with the New Dartmouth Bank.

"Though no civil rights had been violated, the government used the whip of civil rights law for purposes of economic redistribution and social engineering," says Bob Zelnik, an ABC News correspondent, in his book, Backfire: A Reporter’s Look at Affirmative Action.

Just as in the Boston police and fire department cases, the initial charge of discrimination has been repeated by press and government officials despite its complete lack of evidence.

Despite what Zelnick calls a "mortgage discrimination hoax," the Boston Globe in 1998 hailed the Clinton administration’s call for progress on "the unfinished work of race" and the end of "white privilege."

"Some obstacles are painfully familiar," it said, "such as housing and mortgage discrimination."

"Ignorance is strangling racial progress," the Globe said.

And it is precisely people and institutions like the Globe, using unsubstantiated charges of black victimization and white privilege, that is responsible for that ignorance, Walkowski says.
 

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