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What the Courts Make of ‘Reverse Discrimination’ Complaints

A look at the biggest case law of the last two decades

Twenty-year-old University of Melbourne student Isabella Mason must have known that her new dance performance would trigger white people, but the backlash she experienced this week maybe proved a bigger point.

Dubbed “Where We Stand,” the show freely admits audience members of color into the theater, but stops white attendees in the foyer, where they must listen to four dancers talk about white privilege and then sign a large poster titled, “I acknowledge where I stand,” before being allowed into the theater. On top of that, the dance performance simply stops when the number of white people surpasses the number of people of color in the theater — a clever way to push back on an obvious demographic disparity in society.

The school had Mason’s back, but many critics wriggled out of the woodwork to proclaim that this wasn’t just offensive — it was “reverse discrimination.” The head of the Australian conservative think-tank Institute for Public Affairs clapped back: “It’s reverse segregation… I’m not surprised the university hasn’t criticised this,” director Bella D’Abrera told The Australian. “It’s more taxpayer-funded identity politics.”

An anonymous white attendee of a performance was more forceful with his condemnation, comparing the racial lesson to “our own episode of the Chinese Cultural Revolution.” “I am gobsmacked that any university would preside over an event where entry is based on skin color,” he told the newspaper, conveniently forgetting the long history of universities shutting out minorities, a practice that continues today. “I naively thought this was a line that even the regressive left wouldn’t cross.”

Claims of “reverse racism” and “reverse sexism” have long been carried by white folks from America and the rest of the Western world. Check into any half-assed online conversation for men’s rights activists or white nationalists, and you’ll see them blaming social justice warriors, feminists, political correctness and all sorts of “-isms” for denying the rights of white people or men (overwhelmingly, white men). It’s gotten to the point where white respondents to a 2011 Tufts University/Harvard study actually indicated they believe anti-white racism to be a bigger issue in modern America than anti-black racism, which is a curious thing when you consider the disproportionate poverty, incarceration, poor education and police abuse that black people and other minorities face.

Nonetheless, it keeps happening. This year, ex-Google employee James Damore, who was fired last year after claiming in an internal memo that women may be underrepresented in the tech world because they’re just less biologically suited for engineering, filed a class-action suit against Google. He says that the company discriminated against him because he’s a white male with conservative views, and also alleges Google has an illegal quota for minority hires.

But what do legal precedents say about how big of a scourge anti-white and anti-male discrimination is? We dug in to discover what’s really going on with “reverse discrimination,” and some of the recent case law that exists around it.

The Case of the Racist Firefighting Test

Imagine that you created a standardized test for company employees, in theory designed to judge management potential and be used in promotion consideration. Now imagine no black employees qualified for a promotion based on the results. How, and why, could that be?

It’s the question that the City of New Haven, Connecticut, faced in 2003 when they first reviewed the results of a test given to local firefighters. Disturbed by what appeared to be a disproportionate negative impact on black firefighters, the city tossed out the test and decided to roll out new ones. That pissed off white firefighter Frank Ricci, who had quit a second job, spent hours on notes and study group sessions, and even paid $1,000 to have someone record audio of textbook material for him, as he’s dyslexic. He ultimately scored the sixth-highest out of a pool of 77 firefighters, and awaited an imminent promotion to lieutenant.

So when the test and results got thrown out, Ricci decided to pursue legal action, alongside 18 other white firefighters (plus one Latino firefighter), suing city Mayor John DeStefano, Jr. Ricci v. DeStefano ultimately ended up in U.S. Supreme Court, where a 5–4 majority ruled in 2009 that New Haven hadn’t made a good enough case for killing the test. Despite the disproportionate rate of black and Latino firefighters not doing well on the exam, Justice Anthony Kennedy argued in the majority decision that the city had not proven a “disparate impact” to minority applicants.

Justice Ruth Bader Ginsburg fired back in fierce dissent: “By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served — as it was in the days of undisguised discrimination — by a fire department in which members of racial and ethnic minorities are rarely seen in command positions,” she wrote.

“You can see the bind that the public employers were in,” notes Blake Emerson, assistant professor of law at UCLA. “They were trying to avoid liability for discrimination against black people and other minorities, and the policy they used to fix it may have discriminated against whites. These cases always have a compromise, but it really is case-by-case. It’s a real tricky problem in the law.”

In an ironic touch, the City of New Haven in 2005 had to pay $500,000 to two black firefighters for promoting lesser-qualified white people over them.

The Case of the White Girl Who Really Needed to Go to University of Texas, Austin

Abigail Fisher, a white woman, didn’t make the cut for the University of Texas at Austin’s rule that gave automatic admission to the top 10 percent of each Texas high school graduating class, regardless of race. That meant she had to compete with the general pool of applicants, in which race is considered as part of UT’s affirmative-action program.

So what did she do?

You guessed it: She sued. Again and again. The first case came in 2009, and concluded when a U.S. District Court judge upheld the university’s policy. So Fisher petitioned the Supreme Court in 2011 to look at her case, which it did, finding in 2012 that the lower court had misstepped and not applied “strict scrutiny” in its consideration. The case went back for reconsideration in 2014 with the same outcome: UT’s policy was upheld. So Fisher returned with another petition for a Supreme Court hearing.

This time, the land’s highest court reviewed the case and asserted that “strict scrutiny” had been used by the lower courts in giving the nod to the university. Fisher was out of luck — she probably just needed to do better in class, given her truly unremarkable grades — but Emerson notes the case did have an a chilling effect on affirmative-action policies as a whole, which some have argued was the real point of all along.

Most recently, a group of Asian-Americans sued Harvard University, arguing that race-based affirmative action hurt their admissions chances despite their qualifications. Emerson says it’s a “stronger claim” given that a minority group is demanding a more fair process, reminiscent of when Ivy League schools discriminated against Jews in the mid-20th century. But again, it’s worth questioning who’s really backing the case and why, he adds.

“The Harvard case is going to be an interesting challenge, and I think it was done strategically by people who have broader issues with affirmative action and want to get rid of it,” he explains. “A school like Harvard carves out big segments of their class for legacy students, whose parents went to that school or donated a lot of money. And it’s not clear to me why those policies are innocent while affirmative action is to blame.”

The Case of the White Kid Who Really, Really Needed to Go to a School for Native Hawaiians

Kamehameha Schools was founded in Hawaii in 1887 with a focus on educating the Native Hawaiian youth in the state, funded by the estate of the late Bernice Pauahi Bishop, a member of the royal monarchy. Under Bishop’s will, the admissions policy gave preference to Native Hawaiians, and has long required all students to prove at least one ancestor from before 1959.

Given that a foreign white business class and the U.S. government worked together to violently overthrow the sovereign monarchy in Hawaii in the late 19th century, annexing the state in 1898 and oppressing Native Hawaiians through the 20th century, you might understand why the school made it a priority to maintain this admissions policy. An unnamed plaintiff, however, took offense to four straight rejections and sued in 2003, and when the courts ruled in favor of Kamehameha Schools, John Doe took it up again in 2005.

In 2007, the case went to the Supreme Court; by this point, Doe had already graduated from high school, but wanted damages. While the highest court ruled in the school’s favor, a settlement had already been made. Doe walked away with $7 million.

The Case of the White Woman Who Swears Her Black Bosses Are Fucking With Her

Earlier this year, the Atlanta Hawks made news — not for anything good on the basketball court, but because a white former employee sued the team for being harassed at work by black bosses and getting passed over for promotions.

Margo Kline worked as a “community development coordinator” for the Hawks and worked with David Lee, a black man and the team’s director of external affairs. Kline claims that Lee “promoted a culture of discrimination against white individuals,” and over the course of her five years with the team, he made jokes about white culture and excluded white employees from certain meetings. She was ultimately terminated in 2017 after bringing her concerns to HR but instead receiving warnings about her conduct and performance.

“Our case is not a platform for what some call ‘reverse racism,’” Amanda Thompson, Kline’s lawyer, told ABC News. “It’s an attempt to obtain redress for a hard-working, loyal individual who lost her job because of the color of her skin and her complaints to management and HR about the mistreatment she experienced.”

Without knowing the specifics of the case, L.A.-based discrimination and civil rights attorney V. James DeSimone says that discrimination of this kind is hard to prove unless it’s been “severe or pervasive,” with evidence collected that suggests a pattern of behavior. But he also noted that this burden of proof hurts far more minority people in a workplace than whites — and he argues that in today’s political climate, he’s seen more white men feel emboldened to go public with racist or sexist takes. “In my experience, in the vast majority of cases, discrimination is a white employee who uses racial slurs to harass black or Latino employees. You don’t often see, in terms of the intensity of the words and images used, harassment toward whites in the same way,” DeSimone says. “The white race isn’t up for ridicule like that. And you’re far more likely to have people in positions of power who have that mindset against women or minorities versus against whites.”

So despite headlines and claims of reverse discrimination growing, the status quo appears to be pretty much the same. Emerson says that affirmative-action policies, in particular, have faced a large number of challenges since the 1990s, making them narrower in scope despite the many legitimate reasons for leveling the playing field for minorities. And even gathering data on, say, the wage gap for women has been made more difficult, as when the Trump administration last year withdrew a requirement for employers to submit wage and gender info to the federal government.

“There’s implicit bias in our world that doesn’t work in favor of blacks, Latinos or women. The bias usually works the other way around,” DeSimone says. “So when someone perceives that they’re being passed over for a minority, you need to have a lot there to convince me.”