In a 5-4 decision, the Supreme Court upheld the challenge by Frank Ricci, and other firefighters, to the city of New Haven’s decision to throw out the results of their promotion exam because no African-Americans passed the test. That seems eminently fair–unless someone could prove, in some way, that the test was inherently racist, which no one did. Firefighting, like surgery, is a life and death proposition. You don’t want someone in charge who doesn’t understand the full range of tactics and options available. You certainly don’t want to change the process for promotion after the process has been announced and the results are in. (You may, however, want to change the process in the future to give those who need remediation a chance to study, train and succeed on the test.)
Diversity is a great American strength. Fairness is too. It is fair to use diversity–by economic status, by ethnicity, by discrete and unique abilities–as a standard for selecting, say, an incoming freshman class at Harvard. It is not fair to offer a test and then decide, simply on the basis of race, that you don’t like the results and toss them out.