Today the Senate Judiciary Committee's highly anticipated confirmation hearings begin as lawmakers consider the nomination of Judge Sonia Sotomayor to replace Justice David Souter on the Supreme Court. As the first minority woman to secure such a nomination, Sotomayor is in a position to inspire young Hispanics, African-Americans, and women to aim high. It is regrettable, therefore, that she seems to think the best way to help out her fellow minorities is to perpetuate their self-perception as victims of a system stacked against them.

In a 1994, Sotomayor described herself as a "product of affirmative action," acknowledging that she would never have been admitted to Princeton for undergrad and Yale for law school (with scholarships, no less) if she had been judged by the standards applied to her white classmates. Sotomayor went on to opine that her SAT and LSAT scores were lower than her classmates scores, not because of her relative educational disadvantage, but because there are "cultural biases...built into testing." 

This was not a one-time, off-the-cuff remark anymore than Sotomayor's famous statement about "wise Latina woman" reaching better conclusions than white males (which turned out to be an oft-repeated mantra over nearly a decade). Sotomayor's opinion in Ricci v. DeStefano (overturned last month by the Supreme Court) evinces the same rationale about cultural bias -- and is more dangerous than a personal opinion because it nearly codified this theory into law.

In Ricci, Sotomayor upheld a District Court decision that essentially said the following: If a test relating to promotions does not result in minorities being promoted, then on this basis non-minorities may not only be denied promotions, but also denied the opportunity to take a discrimination claim to trial. In other words, Sotomayor thinks that, because none of the 27 black firefighters (out of 118 total) scored well enough on the test for promotion, there must be a cultural bias built into the tests despite the facts that (1) it was specifically designed to be as culturally neutral as possible and (2) the city officials who dismissed the test results could not point to any particular part of the test that was biased. In light of this common theme, it is not difficult to speculate on the stances Sotomayor took in her work for LatinoJustice PRLDEF, a Puerto Rican civil rights group that has "brought several lawsuits on behalf of minority employees alleging racial discrimination in hiring and promotion." 

I believe that in this approach, people like Sotomayor ultimately harm the groups they seek to advance, although, of course, this is not their intention. When they accuse tests and test-makers of "cultural bias" when the only evidence of such bias is a racial discrepancy in test results --they imply that minorities are somehow incapable of scoring as well as non-minorities (which, it seems, includes whites, Jews, Asians, Arabs, etc). The logical inference is that minorities' ethnic backgrounds prevent them from thinking like non-minorities. This not only is untrue --and in my opinion offensive-- but also contributes to many minorities-- sentiment that the cards are so stacked against them that the only way they can succeed is through affirmative action programs.

Sotomayor's own story suggests that minorities' relatively poor performance on tests is at least in large part a product of educational disadvantage than anything else. She grew up in housing projects in the Bronx. Her first language being Spanish, she did not become fluent in English until sometime in elementary school; her father did not speak English at all and had only a third-grade education. These factors do not add up to a scholastic background promising for an American university or workplace. Although Sotomayor worked very hard to become valedictorian of her high school, she nevertheless discovered upon arriving at Princeton that her writing and vocabulary skills were weak.

This deficiency must have played a role in Sotomayor's SAT scores being lower than she believes her intelligence deserved. However, standardized tests, firefighter promotion exams, and other such assessments are not designed to be intelligence tests per se. A high IQ certainly helps, but they are ultimately tests of one's skills in relation to a particular goal. A person's abilities are not unfairly evaluated when he is very intelligent but lacks the relevant skills.

Educational background largely influences future performance because it shapes people's writing skills, study skills, problem-solving skills, etc. It is undeniable that education-- both its quality and the value one places upon it-- is closely tied to socio-economic class, and equally undeniable that blacks and Hispanics are disproportionately represented among the lower socio-economic classes. I would therefore respectfully submit that the only lasting remedy to minorities' comparative lack of success, academically and professionally, is to improve their educational opportunities.

It is probably true that affirmative action policies are successful stop-gap measures, catalyzing minorities' success while we tackle the recalcitrant problem of providing quality education in low-income communities. But when people like Sotomayor persist in blaming exams for "cultural bias," they irresponsibly blur the line between race, culture and education and ultimately further minorities enslavement to affirmative action.

Talya Emery Silva is an attorney.