The Supreme Court Dodges the Big Issue
Posted: 30 Jun 2009 11:05 PM PDT
Conservatives are heralding the Supreme Court’s decision in the Ricci case as a great victory—and it is true that the results of the New Haven firemen’s exam will be accepted and several whites will be promoted to lieutenant and captain. However, as Justice Anthony Kennedy conceded in his majority decision, the court dodged the central question of whether it is constitutional to discriminate against white people in the name of “fairness” for non-whites. This decision is not even half a loaf for whites—it’s more like a few crumbs.

As Justice Antonin Scalia pointed out in a concurring opinion, today’s decision “merely postpones the evil day on which the Court will have to confront the [real] question,” namely whether “disparate impact” is legitimate grounds for throwing out employment standards.

The problem is this: In the 1971 Supreme Court decision of Griggs v. Duke Power and in the Civil Rights Act of 1991, our government decided that an employer can be guilty of racial discrimination even if he has absolutely no intention of discriminating. If he has a hiring criterion that is racially neutral in intent—but that weeds out more blacks than whites, that is to say, has a “disparate impact”—he is guilty of discrimination. The purest intentions are no defense. The employer’s hiring criteria are permitted to have a disparate impact only if he can prove that those criteria are a “business necessity” and that there are no other standards he could have used that would have weeded out fewer blacks.

That is a tall order. For example, many police departments used to have a rule that any ex-military man who wanted to be a cop had to have had an honorable discharge. Like so many qualifications, that weeded out more blacks than whites and was not, strictly speaking, a “business necessity” for hiring policemen. It’s probably a good idea to keep dishonorably discharged men off the force, and the rule could have been set up with no thought of race at all—but too bad. Since it kept out more blacks than whites the rule had to go.

The decision in the Ricci case turns on painfully narrow grounds: that the exam the New Haven fire department used was a racially unbiased test of skills that actually are required for fighting fires. The city claimed it wasn’t, and argued that it was obligated to throw out the results because so few blacks passed. The Court said the exam was fine, that the whites should get their promotions, and that blacks have no right to sue on “disparate impact” grounds.