The Ricci Case
As expected, the Supreme Court handed down a 5-4 decision reversing the Second Circuit’s decision on the Ricci firefighter case. As Ian Millhiser explains:
For 25 years, the United States Court of Appeals for the Second Circuit has given employers broad discretion to reconsider a promotion test whose results favor one race over another. Judge Sonia Sotomayor followed this binding precedent when she rejected several firefighters’ claim of reverse discrimination in the now-famous Ricci v. Destefano case, as she is obliged to do as a lower-court judge. Yet, as the Justices showed in today’s 5-4 decision in Ricci, they are not bound by the same constraints that bound Judge Sotomayor. Today’s ruling creates a new standard which says that an employer’s decision to toss out a hiring test must have a “strong basis in evidence” showing that the test preferred one race over another. The Supreme Court has powers that Judge Sotomayor does not, and it used that power today.
This seems like a good time to link to Ramesh Ponnuru’s smart New York Times op-ed on this case. Ponnuru makes the eminently sensible point that whether or not you like the conservative justices’ new rule, there’s nothing “originalist” about legal conservatism’s hostility toward policies designed to provide assistance to non-whites. It’s pretty abundantly clear from the historical record that the congresses that framed the Civil War amendments were not opposed to remedial measures designed to advance the interests of African-Americans. The view that the constitutional guarantee of equal treatment exists to protect the whites from unfair efforts to help non-whites is perhaps legitimate, but unquestionably an ahistorical take on the issue developed by conservatives relatively recently. I would also add that there’s a common sense difference between courts stepping in to protect a minority group from the depredations enacted by majority-controlled elected branches of government, and the idea of courts stepping in to protect the majority group from the political process.
70 Responses to “The Ricci Case”
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June 29th, 2009 at 2:33 pm
And as Glenn Greenwald says:
“(2) The irony of using Ricci against Sotomayor has always been that the reason this case resonates for so many people is due to empathy for the white firefighters. That irony is underscored by today’s ruling, as Justice Kennedy devotes multiple paragraphs at the beginning of his opinion to highlighting all of the facts (as opposed to legal arguments) which make people sympathetic to Ricci. Conversely, Justice Ginsburg, writing for the dissenters, noted upfront that the white firefighters “understandably attract this Court’s sympathy,” but it must be the law — i.e., long-standing legal precedent and the purpose of Title VII of the Civil Rights Act — which determines the outcome.
From the start, those protesting Sotomayor’s decision in Ricci did so by appealing not to law, but to emotion, non-legal precepts of “fairness” and empathy — at the very same time that those very same people mocked the notion that those considerations should play any role in judicial decision-making.”
June 29th, 2009 at 2:49 pm
My constitutional law professor in law school agreed. His position was that the court should generally defer to the legislative and executive branches unless they were protecting the rights of a discrete and insular minority. The idea being that if a group doesn’t have real access to the legislative and executive branches to protect their rights, they need somebody to stand up for them. If you’re the majority, you don’t need extra protection
June 29th, 2009 at 2:51 pm
… there’s a common sense difference between courts stepping in to protect a minority group from the depredations enacted by majority-controlled elected branches of government, and the idea of courts stepping in to protect the majority group from the political process.
Splendidly high-toned and abstract but unintelligible. The black firefighters couldn’t pass a test and therefore the government was preying on them. Is that it?
June 29th, 2009 at 2:58 pm
Well, many thought that the Second Circuit’s decision would be remanded, rather than overturned. This is because overturning required
which is a little bit of Calvinball meets judicial activism. So those who were thinking “remanded” were obviously either naive about the conservative bloc that virtually always explicitly sides with the more privileged, or thought that Kennedy might be in one of his occassional “not a pompous dumbass” moods. Still, the Second Circuit’s Bushey decision is certainly subject to being voided by SCOTUS, so now we know what the new playing field is: by definition, no Title VII violations against minorities can occur in a community where black people have publicly expressed political opinions.
Anyway, regardless of how much Gregg v. Duke Power has been further slapped around by the current court, I think we can all agree that this 5-4 decision, with Justice Souter in the minority, is a strong rebuke of the fitness of Souter’s proposed replacement.
June 29th, 2009 at 2:58 pm
If you’re the majority, you don’t need extra protection
But pandering to the majority peanut gallery will get you extra votes.
I just think that this “Southern Strategy” of the Republicans is pretty much played out. Obama’s election is evidence for me.
June 29th, 2009 at 3:02 pm
Judge Sonia Sotomayor followed this binding precedent when she rejected several firefighters’ claim of reverse discrimination in the now-famous Ricci v. Destefano case, as she is obliged to do as a lower-court judge.
This is an obvious lie.
The so-called “binding precedent” was so completely irrelevant to the case that none of the Supreme Court’s opinions even mention it, not even the dissent.
Time to come up with a better excuse for Sotomayor’s racism, hacks!
June 29th, 2009 at 3:11 pm
Bottomfish, it’s intelligible to me. What about MY’s statement don’t you understand?
June 29th, 2009 at 3:15 pm
Everything that Matt says is true enough. But he’s dancing around the margin of the question, and it doesn’t change the fact that, to most people, the Supreme Court’s decision is going to look like a victory for common sense.
If you want to show that a test is discriminatory, you need to point to the aspect of the test that discriminates — and not just to results you don’t like. Sorry, nothing against Sotomayor — but in a prima facie way, this makes sense
June 29th, 2009 at 3:18 pm
It’s worth noting that this wasn’t decided on constitutional grounds but rather as a direct reading of the Civil Rights Act; both sides in Ricci were going to sue over the CRA regardless of what New Haven did.
For those keeping score at home, this is the first time that Roberts has sided against the government, I think!
Here’s hoping (naively) that carping about reverse racism and reverse discrimination ends now that the USSC has made it illegal to do so.
June 29th, 2009 at 3:19 pm
Splendidly high-toned and abstract but unintelligible. The black firefighters couldn’t pass a test and therefore the government was preying on them. Is that it?
The black firefighters couldn’t pass a test that was newly introduced and different from tests that are used at other fire departments for promotion, so the fire department correctly realized that they were opening themselves up to a disparate impact lawsuit if they chose to stick with the test results.
Title VII of the Civil Rights Act bans tests that lead to a disparate impact on minorities, whether that impact is intentional or not, unless the employer can prove that the disparate impact is necessary for business reasons.
It’s amazing how fast conservatives put away their “JUDICIAL RESTRAINT” and “ORIGINALISM” foam fingers the second an empathetic white guy comes to them with a story about discrimination.
June 29th, 2009 at 3:20 pm
Great news. Republican senators will seize the opportunity to make all sorts of remarks on Sotomayor’s racism and anti-white blind hatred, which should solidify GOP support among Hispanics.
June 29th, 2009 at 3:21 pm
…there’s a common sense difference between courts stepping in to protect a minority group from the depredations enacted by majority-controlled elected branches of government, and the idea of courts stepping in to protect the majority group
This is sort of a ‘heads I win, tails you lose’ formulation, no? You seem to be saying that because the white firefighters were (theoretically) part of a group large enough to exercise political power, their claim to legal protection is questionable. But I hardly think this leads to good incentives – the underlying message is that they should have had *their guy* (perhaps a white crypto-racist) in office, since they shouldn’t really be able to count on the protection of the courts.
Also, there are plenty of jurisdictions where whites really are a minority. Rather than try to address that in another special case I think you’re better off just treating whites as one more racial category, as this decision does.
June 29th, 2009 at 3:23 pm
If you want to show that a test is discriminatory, you need to point to the aspect of the test that discriminates — and not just to results you don’t like. Sorry, nothing against Sotomayor — but in a prima facie way, this makes sense
That might “make sense” but it bears no relation to what Title VII actually says.
Any employment policy that leads to disparate impact, whether it was intended to discriminate against minorities or not, must be justified on business grounds.
The fire department wasn’t prepared to go to bat for some multiple choice test that it just adopted, and claim that the disparate impact it created was necessary on business grounds, when in fact there were other Connecticut fire departments that seemed to be operating successfully that administered promotion tests that had much less of a disparate impact against minorities.
So it wisely chose to drop the test results.
June 29th, 2009 at 3:24 pm
Anybody have the vote breakdown? I can’t wait to see how each justice voted.
Just kidding.
June 29th, 2009 at 3:27 pm
unless the employer can prove that the disparate impact is necessary for business reasons.
You’ve mangled the requirement. The employer does not need to prove that the *disparate impact* is necessary (that would be bizarre), but that the test is “reasonably related” to the job for which the test is required. In Griggs v Duke Power, neither the IQ test nor the HS Diploma requirement were shown to be related to the job at hand.
One of the points the majority opinion makes is that the fire department could easily have shown that the test was job-related.
June 29th, 2009 at 3:31 pm
The fire department wasn’t prepared to go to bat for some multiple choice test that it just adopted, and claim that the disparate impact it created was necessary on business grounds
More mangling of the requirements. No, the fire department would not have needed to prove that the disparate impact was ‘necessary’. It would have had to prove that the test they used was reasonably related to the job at hand. Now, it’s true that (like anyone) they would have preferred to avoid the legal hassle involved – but that alone does not allow them to engage in discriminatory behavior.
June 29th, 2009 at 3:43 pm
And if they had been unable to prove it? (For the sake of argument, I’m joining you in pretending that the “prove” standard was the precedent before today, even though Bushey said otherwise.) How would attempting to prove this have allowed them to avoid the legal hassle involved in engaging in discriminatory behavior against minority firefighters?
June 29th, 2009 at 3:51 pm
I’ve always raged against smug “activist judges” who feel that it’s their job to make the law. But now I get the opportunity to criticize Sotomayor for not taking a bold stand on this case, and merely “punting” to the Supreme Court! Is she really qualified to be on the SC?
I’ve always said that the Constitution is a simple document and that following the rule of law means sticking to that simple document. But now that a 93-page 5-4 opinion has overturned a paragraph co-authored by Sotomayor and two other justices, I ask: is she really qualified to be on the SC?
I’ve always tut-tutted liberals for their elevation of empathy over the rule of law, but I get a chance to castigate liberals for their blindness to “justice” and “fairness.”
Fun!
June 29th, 2009 at 4:03 pm
A thought that Matt can’t have, lest his head explode: Perhaps now that the US has elected a black president, the notion that blacks need legal protections from the predations of whites is just a tiny bit outdated….
June 29th, 2009 at 4:14 pm
A thought that Matt can’t have, lest his head explode: Perhaps now that the US has elected a black president, the notion that blacks need legal protections from the predations of whites is just a tiny bit outdated….
So not only does the supreme court decide elections (2000) but they also can say that an election has caused the law to change? Now my head is exploding….
June 29th, 2009 at 4:15 pm
A thought that James Robertson can’t have, lest his head explode: Perhaps now that the Supreme Court has, once again, dispensed with the notion of Strict Construction and Original Intent, the notion that the “conservatives” on the bench are interested in anything more than ensuring the “right” outcome is just a tiny bit outdated…
(yeah, it’s a cheap trick, but sometimes you just need to rub their nose in it)
June 29th, 2009 at 4:20 pm
Perhaps now that the US has elected a black president, the notion that blacks need legal protections from the predations of whites is just a tiny bit outdated
That’s mighty fucking white of you, Robertson.
June 29th, 2009 at 4:25 pm
This is an obvious lie. The so-called “binding precedent” was so completely irrelevant to the case that none of the Supreme Court’s opinions even mention it, not even the dissent.
Wow, this is stupid even for Al. The binding precedent in question was Bushey, a Second Circuit case. So of course the Supreme Court didn’t mention it–they are under no obligation to follow Second Circuit precedents.
No, the fire department would not have needed to prove that the disparate impact was ‘necessary’. It would have had to prove that the test they used was reasonably related to the job at hand.
Let’s go to the statute. Under Title VII, once the plaintiff has made their showing of disparate impact, the defendent has to “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity” (emphasis added). See 42 U.S.C. 2000e-2(k)(1)(A)(i). Merely showing it is job related is definitely not enough.
June 29th, 2009 at 4:28 pm
A thought that Matt can’t have, lest his head explode: Perhaps now that the US has elected a black president, the notion that blacks need legal protections from the predations of whites is just a tiny bit outdated….
Truly a classic comment. Way back in October 2008, blacks might have needed legal protections from discrimination. But after November 4th, on which 43% of whites voted for a Democrat instead of the 41% four years earlier, and a black man won due primarily to Bush fatigue, increased minority and youth turnout, and Hispanics moving away from Republicans, all our racial problems are now solved! There’s really no need for any legal protections now, that’s so 20th century.
Well, of course, there’s always Alabama and Mississippi, where large percentages of white voters openly admitted race was a factor in their voting decision. But hey, if blacks knew what was good for them they’d just move, right?
June 29th, 2009 at 4:33 pm
That’s because it was a 2nd Circuit precedent, which wasn’t binding on the SCOTUS, you twit.
Don’t they teach Civics in school anymore?
June 29th, 2009 at 4:35 pm
Spill it, Al.: what dumbass wingnut blog did you get that abortion of a talking point from? I want to go mock them.
June 29th, 2009 at 5:39 pm
Hey, Matt:
Who’s The Majority in New Haven, CN?
June 29th, 2009 at 5:49 pm
Matt says: “The view that the constitutional guarantee of equal treatment exists to protect the whites from unfair efforts to help non-whites is perhaps legitimate, but unquestionably an ahistorical take on the issue developed by conservatives relatively recently. I would also add that there’s a common sense difference between courts stepping in to protect a minority group from the depredations enacted by majority-controlled elected branches of government, and the idea of courts stepping in to protect the majority group from the political process.”
You can’t keep pretending it will remain 1965 in terms of demographics forever. The demographics of the country have changed radically and will continue to change. We need interpretations of the Constitution that can deal with this continuing change. Fortunately, we have had one interpretation since Justice Harlan’s 1896 dissent: colorblindness.
June 29th, 2009 at 5:58 pm
Colorblindness:
An examiner goes into a bank, and finds that it is approving 90% of the loan applications from white applicants, and rejecting 90% of the loan applications from black applicants, despite both groups having similar credit histories and incomes.
He reports back that the bank’s management should be replaced, because they are approving and denying loans without any discernible pattern whatsoever.
June 29th, 2009 at 6:00 pm
It would have had to prove that the test they used was reasonably related to the job at hand.
I believe, from my reading of the opinion and dissent, that they would also have to have shown that there was not an equally reasonably related alternative that wouldn’t have had a disparate impact. Note that the majority at p. 30 claims that there’s no evidence that weighting the written test differently would’ve been equally reasonable, and the dissent argues at some length that there’s lots of evidence. All this is addressing the question whether there was a “strong basis in evidence” that the city would’ve lost a title VII suit, so mere reasonable relation doesn’t seem to be enough of a defense. (And I have to say it’s very difficult to detect any argument in the majority’s claims on this point.)
Zach@9: For those keeping score at home, this is the first time that Roberts has sided against the government, I think!
No — there’s Yeager, where he voted with Kennedy and the four court moderates on a double-jeopardy case (concerning whether someone could be retried after being acquitted on one count and getting a hung jury on certain others), which is notable for being the first time AFAICT that he sided against the prosecution. Of course the defendant was an Enron guy. And there’s the Redding case, where everyone but Thomas ruled against a ridiculously arbitrary strip-search of a teenager.
But more relevant are cases like Heller (the gun control case) and Parents Involved (the Louisville/Seattle school integration cases), where like this one Roberts ruled against the government in a completely predictable manner. Yeager and Redding aside, Roberts has been consistent in ruling in a way that favors conservative ideology; often that means ruling against the government.
June 29th, 2009 at 6:01 pm
I wonder if Sailer realizes he is a living embodiment of the reason why many people don’t trust a situation in which only the legal system can’t see color.
June 29th, 2009 at 6:05 pm
I believe, from my reading of the opinion and dissent, that they would also have to have shown that there was not an equally reasonably related alternative that wouldn’t have had a disparate impact.
Yep, that is pursuant to 42 U.S.C. 2000e-2(k)(1)(A)(ii), which gives the plaintiffs the alternative of demonstrating that there was a non-discriminatory “alternative employment practice” that the defendants refused to adopt.
June 29th, 2009 at 6:14 pm
The binding precedent in question was Bushey, a Second Circuit case. So of course the Supreme Court didn’t mention it–they are under no obligation to follow Second Circuit precedents.
Gee, really?
Nonetheless, if the Second Circuit’s Ricci decision rested soley on Bushey, then the Supreme Court would have at least mentioned that Bushey, too, is not good law. It didn’t.
June 29th, 2009 at 6:19 pm
Non-colorblindness:
An examiner goes into a bank that bases loans largely on credit scores. He finds out that blacks tend to have credit scores 75 points on average lower than whites, resulting in their loans having a rejection rate of 30% vs. the 15% rejection of whites, but that when credit scores are controlled for, there is no difference.
Therefore, suspecting discrimination, he checks out the credit scors and discovers that the black people in his study are twice as likely to default on credit cards or to miss mortgage payments.
He therefore concludes that factoring in credit card defaults and missed mortgage payments into one’s credit score is racist and discriminatory and must be ended.
June 29th, 2009 at 6:21 pm
Nonetheless
Shorter Al: admitting that I’m full of shit and a graduate of Hollywood Upstairs Law School would ruin my non-existent troll credibility.
June 29th, 2009 at 6:26 pm
bbartlog vs. mds (#16 and #17):
bbartlog:
More mangling of the requirements. No, the fire department would not have needed to prove that the disparate impact was ‘necessary’. It would have had to prove that the test they used was reasonably related to the job at hand. Now, it’s true that (like anyone) they would have preferred to avoid the legal hassle involved – but that alone does not allow them to engage in discriminatory behavior.
mds:
How would attempting to prove this have allowed them to avoid the legal hassle involved in engaging in discriminatory behavior against minority firefighters?
It wouldn’t have. What bbartlog was saying was that they would have preferred to have avoided the legal hassle by discounting the test rather than trying to prove that the test was reasonably related to the job at hand.
In other words, the fire department could have defended the test in court or simply thrown it out (essentially reneging on their deal with the firefighters who had done well on the test). bbartlog’s point was that for the department to throw out the test without bringing it to a court to see if it passed muster was more convenient, but that convenience does not give the fire department an excuse to thrown out the test without first getting a court decision on it (which is what the fire department did; it was the firefighters, not the department, which brought the case to court).
June 29th, 2009 at 6:31 pm
For those of you who didn’t understand what Steve Sailer was saying in post 28, let me explain it to you:
The idea tha civil rights laws should mainly be there to protect non-whites and not to protect whites is a workable idea as long as whites make up the vast majority of the population. But as non-whites become a larger share of the population, and particularly if whites become a minority, then this idea is simply going to institutionalize discrimination against whites.
We cannot simulatneously have a generous affirmative-action industry and an increasing proportion of our population belonging to protected groups, unless the goal is to simply oppress whites.
Actually, as I recall, in some previous post, joe from lowell indicated that anything that reduced white power was good with him, so I suppose he doesn’t see anythign wrong with oppressing whites.
June 29th, 2009 at 6:41 pm
Glaivester,
Your making the assumption that non-whites will have access to the same levers of control relative to their demographic strength, which is blatantly not true.
June 29th, 2009 at 6:43 pm
The fire department wasn’t prepared to go to bat for some multiple choice test that it just adopted, and claim that the disparate impact it created was necessary on business grounds, when in fact there were other Connecticut fire departments that seemed to be operating successfully that administered promotion tests that had much less of a disparate impact against minorities.
The problem is, of course, is that these other tests almost certainly were fixed; either like Chicago, they were designed so that 80-90% of the people passed* and people above that level were picked randomly (so the tests only took out the very worst candidates and no sorting was done beyond that), or else a big part of the promotion decisions were interviews that were gamed so that non-whites would automatically get extra points.
There has yet to be a test of abstract thinking ability that has any predictive power that does not have whites on average score significantly higher than blacks. This is something that at some point in the affirmative action debate we will have to actually deal with directly.
*Below a certain point, reducing the number of people weeded out by a test will almost always reduce the disparate impact (in terms of percentages who are accepted). For a reduction ad absurdum case, a test that everyone automatically passed would always have exactly the same impact on whites, blacks, and Hispanics).
June 29th, 2009 at 6:48 pm
Glaivester @36: Please check out my comment at 30 and DTM’s comment at 32 (DTM, I believe, is a lawyer); establishing reasonable relation wouldn’t have been enough if the minority firefighters could’ve shown that there were equally reasonably related alternatives that didn’t have disparate impact. And there was considerable testimony to the city that such an alternative was available. So it’s not just a question of “hassle”; there was evidence that the city would’ve lost a Title VII suit if they’d let the test stand.
The majority opinion and the dissent engage in a little back-and-forth about this issue; I’d say that the dissent has the better of the argument, except the majority don’t seem to be making an argument at all.
June 29th, 2009 at 6:51 pm
Whoops, I didn’t see that you’d already posted at 39, doubling down on the racial superiority thesis. Sorry for engaging with you. Anyway, I’m pretty sure the views you express there have no standing in current law, thank God.
June 29th, 2009 at 6:57 pm
Matt,
Sometimes you just have to move beyond viewing everything through the lenses of “Who? Whom?”
June 29th, 2009 at 7:10 pm
Matt Weiner (#40):
Glaivester @36: Please check out my comment at 30 and DTM’s comment at 32 (DTM, I believe, is a lawyer); establishing reasonable relation wouldn’t have been enough if the minority firefighters could’ve shown that there were equally reasonably related alternatives that didn’t have disparate impact.
Quite likely true; but I was summarizing bbartlog’s point in #16, which mds appeared to have misunderstood, not evaluating its merits.
And there was considerable testimony to the city that such an alternative was available. So it’s not just a question of “hassle”; there was evidence that the city would’ve lost a Title VII suit if they’d let the test stand.
I thnk bbartlog was saying that the Department had an obligation, based on its promise to the firefighters who had done well on the test, to actually take the case to court and see if they did get ruled against, rather than just assume the test to be bad and throw it out.
June 29th, 2009 at 7:14 pm
Matt Weiner:
Sorry for engaging with you.
Yes, it’s a horrid thing when someone says something that you find taboo. Let’s just put our fingers in our ears and hum real loud, hmmm?
June 29th, 2009 at 7:20 pm
So maybe this is the white man in me coming out, but can’t we at least stipulate that it is wrong to discriminate against white firefighters because they are white as a matter of general principle? Maybe there are good reasons to discriminate against whites in certain circumstances, but ceteris paribus, it is something to be avoided. I’m not necessarily opposed to disparate impact tests, but in the case of such a small sample size it doesn’t seem to be enough (30 whites and 2 non-whites passed the test, if we did this in every firefighters station in the country, what is the likelihood that it would happen at least once over a period of ten years?).
June 29th, 2009 at 7:50 pm
Counterpoint: South Africa.
It’s not the raw numbers that count – its whether the different racial or ethnic groups have achieved genuine integration in the political, business, and social spheres; that is, whether there really is equality of opportunity. As always, look to the Brown vs. Board decision.
I haven’t the foggiest idea what you could be referring to. Perhaps you confused me with someone else, or misunderstood a point I made, because that does not sound like me.
June 29th, 2009 at 7:50 pm
@Gleivester (32): I work on fair lending issues for a large company. That is most definitely not the way that it works.
June 29th, 2009 at 7:53 pm
Funny how you always see accusations of racial persecution against whites from people who believe things like this.
June 29th, 2009 at 7:55 pm
@ Randolph (45): Whites are already overrepresented in the upper ranks and basing promotions on the test would exacerbate the problem. Also, these populations aren’t randomly distributed so finding the likelihood of that happening is very problematic. Noone is arguing for discriminating against whites.
June 29th, 2009 at 8:45 pm
When you’re writing an IQ test, your goal is to get a statistical result where the “average” (center value of a Gaussian bell curve with a standard deviation of 15, to name one method) is 100. You cannot do this without analyzing the results.
June 29th, 2009 at 8:47 pm
joe,
I remember someone saying something to the effect that some immigration decision was a good thing because it decreased white power and some other thing was bad because it increased white power.
Maybe I am thinking of someone else. I can’t seem to find the quote immediately.
June 29th, 2009 at 9:21 pm
You can’t keep pretending it will remain 1965 in terms of demographics forever. The demographics of the country have changed radically and will continue to change.
Steve Sailer: that may or may not be true. But there’s a method to deal with evolving circumstances, and that method is introducing legislation in Congress, and getting the president to sign it. Oops, I forgot — we have a conservative court that legislates from the bench. Who needs to win elections when ideologues wearing black robes will save you the hassle…
June 29th, 2009 at 10:09 pm
Whites are already overrepresented in the upper ranks and basing promotions on the test would exacerbate the problem.
When you’re writing an IQ test, your goal is to get a statistical result where the “average” (center value of a Gaussian bell curve with a standard deviation of 15, to name one method) is 100. You cannot do this without analyzing the results.
I’m curious. What does a non-disparate result look like? A quota?
many people don’t trust a situation in which only the legal system can’t see color.
So, the idea is that Justice shouldn’t be blind?
June 29th, 2009 at 10:36 pm
Counterpoint: South Africa.
Are you seriously using South Africa, from which every white (and black, for that matter) person who can find someplace else to go if fleeing (and which is steadily turning into South Zimbabwe) as a “counterpoint”?
June 29th, 2009 at 10:38 pm
“So, the idea is that Justice shouldn’t be blind?”
It should be blind, but it shouldn’t be stupid. If everyone but the racists are blind to racism, then racism will persist. I’m in an interesting position because I’m white, but a have a family name that’s considered black in the South. So I’ve seen this issue from both perspectives. So here’s a story. I’ve experienced this myself, but my brother’s story is much clearer. My brother was super-intelligent, very strong, and a damn hard worker. It never took him more than two weeks to get a job. Usually, it was more like two days. Until he moved to South Carolina, that is. After three months, he still didn’t have a job. So he broke down and went to a resume writing service. The guy he met with took one look at his resume and said “Oh, I see your problem.” My brother asked how he can see it so quickly, and the guy replies: “Your last name is a black name, nobody will even read your resume. Just put your picture on the resume so they know you’re white, and you’ll have five job offers in a week.” So my brother put his picture on the resume, and sure enough, he had five job offers the following week. My story is the same, only it was Texas, my brother advised me to put the photo on the cover letter, and I only got three job offers the following week. But I was looking for senior engineering positions. As for reverse discrimination, I’ve never experienced it. My Ivy League degree trumps that.
June 29th, 2009 at 11:30 pm
I should point out here that although I like the result of the Ricci case, I am not going to argue that it was the right decision, legally speaking. I think that the concerns that the Court overstepped its bounds here are valid concerns, and may indeed be correct.
I do not know enough about the relevant statutes, etc., though, to say decisively one way or another.
That is why, if you read my posts, you will notice that I am arguing more over whether or not the test was a fair test rather than whether legally the court should have ruled it permissible.
June 30th, 2009 at 12:32 am
Congratulations, Glaivester. You officially win a gold star and a cookie for hedging your argument to give the appearance that you value ideology over zero-sum racial outcomes in a thoroughly low-stakes internet debate.
Curious, though, that the minimalist, originalist, anti-activist conservative justices all seem to throw their professed ideology out the window at every possible opportunity to side with the Republican interest group in just about every case that comes before them. Give them a corporate plaintiff victimized by regulations, or a white plaintiff “victimized” by affirmative action, and they suddenly locate their sense of empathy and develop a healthy appreciation for the Constitution’s penumbras.
June 30th, 2009 at 12:32 am
It should be blind, but it shouldn’t be stupid.
Not being stupid means discriminating against whites so as to avert being sued for discrimination by blacks. How do we codify a need for “balance” and “diversity”?
Until he moved to South Carolina, that is. After three months, he still didn’t have a job.
I live in South Carolina and it sounds like your brother might have had a better chance in his line of work if your name sounded Hispanic, but let’s give you the benefit of the doubt and assume he’s a lawyer because you say you went to an Ivy League school. I’m not sure where in SC your brother went looking for a job, but I’d like to know how many black firms (or businesses, or practices, etc) your brother applied to. Unlike many northern states, there are African-American firms and businesses and practices of all caliber (at least relatively) throughout the state. I’m sure having a name that was considered black might not preclude one from an interview at a black practice. Unless, of course, the rest of the resume was poor. Perhaps your brother exhibited racism himself and only applied to firms who cared about such things as a “sounding” name.
OT about Sanford: PLEASE don’t force him to retire. Andre Bauer is the Lt. Governor and a complete religious freak who’s been in a plane accident and arrested for speeding while in office. He’s a complete Bush-clone idiot. Sanford is term-limited out in 2010. If Bauer takes over, he will be able to run as an incumbent.
That is why, if you read my posts, you will notice that I am arguing more over whether or not the test was a fair test rather than whether legally the court should have ruled it permissible.
It’s my understanding that the city specifically went to a third party to construct a test that did not give preference to any ethnic group or legacy group. The test was further reviewed by professionals from out of state for strict relevance the job duties. Are we saying that testing is never fair or that it’s inherently biased? Or are we saying it can’t be used unless the results conform to a desired statistic? Show of hands, how many people posting here have to take promotional exams in their line of work. Not me. It’s interesting to think about what the results might be. As long as there is an exam, those who fail it will always claim the test wasn’t fair. Can we ever ensure that it is?
June 30th, 2009 at 1:41 am
America has always been a melting pot to me. Our government is the Godless, raceless, colorless, sexless American Borg. It can take no interest in unique cultural identity. You must be assimilated.
Or, alternatively, we should run things like the 5 families. The American Indians get control of the casinos, the whites control the booze, the blacks control the guns, the Hispanics get the drugs, and the gays get the sex. And if one group had all the judges and the politicians in New York, he must share them…He must let us draw the water from the well. Certainly, he can present a bill for such services. After all, we are not Communists…
June 30th, 2009 at 5:20 am
That’s a great take on things Karl, but you are intentionally missing the point that when casual racism is still quite common, for the law to pretend that it can never be a factor is foolish. That is why things like Title VII exist. The presumption is that white people will adopt policies that benefit white people. Title VII puts the burden on them to show that this is not the case when a disparate impact is seen. You can disagree with the priors, but given those priors there is nothing discriminatory about Title VII.
June 30th, 2009 at 6:12 am
“I’m not sure where in SC your brother went looking for a job, but I’d like to know how many black firms (or businesses, or practices, etc) your brother applied to.”
About seven hundred when they thought he was black. Ten when they thought he was white. He wasn’t looking for a law firm job, he was looking for a warehouse manger job. Given that he’d managed a few very large warehouses in his day, he was a lock for the job. He wasn’t into the white collar gigs. He ended up building housing trusses because nobody wanted any uppity yankee telling them what to do. They hired him because he could speak to the Mexicans (knew Spanish). And he’d work harder than them anyway. But they called him “Yankee Boy” one too many times. My brother kicked the living crap out of their fat asses and quit before he could be fired. Of course, kicking the crap out of your bosses is pretty much an admission that you no longer want to work there. He never worked in the South again. And I never will either. Nor will I do business there until they change their ways.
June 30th, 2009 at 6:26 am
“but I’d like to know how many black firms”
Sorry, I missed that detail. Where I live, there are no white and black firms. But you have to understand that my bother was a white guy, so he didn’t even think to apply to black firms. Things are really segregated down there, and he was white. And he didn’t even know he had a black name. So he wasn’t applying for black jobs. He was white, after all. He was applying for white jobs. That this concept even exists is pretty clear evidence that discrimination is still going strong.
June 30th, 2009 at 6:38 am
As for my brother’s line of work, well, I’m not so sure what it might be. He’s been dead for a few years now, so rotting doesn’t even work well for him. Maybe he exists on some plane of existence that we cannot imagine. Maybe he’s reincarnated as my friends’ child. Maybe he’s an eagle now, I really don’t know. But my friends’ child was born at the right time and remarkably devious and rambunctious. If that child is Jim, I can only pray for the parents. But knowing them, they’ll do better than mine.
June 30th, 2009 at 7:32 am
Nonetheless, if the Second Circuit’s Ricci decision rested soley on Bushey, then the Supreme Court would have at least mentioned that Bushey, too, is not good law. It didn’t.
First, no it wouldn’t. The Supreme Court isn’t in the habit of figuring out which lower court opinions are no longer good law in light of the decision it is making, and instead it leaves that task to the lower courts.
Second, this whole roundabout approach to figuring out what happened in the lower courts is just stupid. The Second Circuit adopted the District Court’s opinion. The District Court’s opinion is available here:
Ricci v. DeStefano
The relevant discussion is on pages 31-40. Note, by the way, it doesn’t rely “solely” on Bushey, but rather Bushey is the most factually on point case in a line of three cases including also Hayden v. County of Nassau, 180 F.3d 42 (2d Cir. 1999) and Kirkland v. New York State Department of Correctional Services, 771 F.2d 1117 (2d Cir. 1983). In any event, here is the key discussion of Bushey:
So, it is in fact obvious that Bushey controlled the Second Circuit’s holding in Ricci, and it is equally obvious that Bushey is no longer good law after the Supreme Court’s holding in Ricci. So the fact that the Supreme Court didn’t mention Bushey is no longer good law just means that Al is wrong about the Supreme Court’s habits, not that the claim that the Second Circuit relied on Bushey is wrong.
June 30th, 2009 at 7:41 am
How do we codify a need for “balance” and “diversity”?
Well, that is what Title VII attempts to do. The basic idea behind Title VII is that if you do something that either constitutes disparate treatment or has a disparate impact, you have to provide a sufficient non-discriminatory justification for what you are doing. Unfortunately, that burden-shifting approach is necessary in a world where there is still a decent amount of unjustifiable discrimination, and yet no way of directly observing what is motivating people.
June 30th, 2009 at 1:39 pm
[...] Matthew Yglesias [...]
June 30th, 2009 at 4:27 pm
Originalism and the Civil War Amendments, Matt?
While the equal protection clause was originally intended to improve the condition of blacks compared to their prior situation, it certainly was not intended to give blacks advantages cetera parabus over whites. That’s kind of what they meant by equal. The authors of these amendments likewise would not have deduced that the reasons that blacks failed to qualify for promotions at the same rate as whites was de facto, unseen, institutional or any other kind of invisible racism. I realize this case wasn’t decided on constitutional grounds, but you’re the one who brought up the constitution and originalism.
I know everyone will probably think I’m monster for bringing this up, but: what if disparate treatment and disparate impact are fundamentally opposed? I remember when a thought like that would have sent me flying into a rage, but really, why not?
June 30th, 2009 at 11:01 pm
The basic idea behind Title VII is that if you do something that either constitutes disparate treatment or has a disparate impact, you have to provide a sufficient non-discriminatory justification for what you are doing.
But can disparate impact be the sole reason for invalidating the test? IF the city can demonstrate that it made a considered and reasonable effort to create a race-neutral exam, how can the results be attributed to any pre-determined racial or ethnic motivations? Shouldn’t that be enough to defend ones motivations against a Title VII lawsuit? Otherwise there will always be lawsuits until you define disparate treatment prior to the test (ie set a quota). And because of the threat of those lawsuits, a city’s view of a non-disparate impact looks alot like anything that avoids a lawsuit which is increasingly impossible because the Union’s job becomes to sue the city anytime it sees a result that it doesn’t like.
July 1st, 2009 at 9:13 pm
Now, this diary came out of a comment to another diarist, who said:
I agree with Ginsburg’s logic. No one is entitled to a promotion. All firefighers were treated the same because none were promoted. Where’s the discrimination?
That is indeed an accurate summary of Ginsburg’s position, which is precisely why it’s ludicrous. Suppose a private company promised — in writing — to promote someone to Public Relations Director based upon a written exam, and then after the test was done, it turns out a black guy had the highest score. Then the company bigwigs said “well… we really don’t want a black guy as our public face… so we’re going to rescind our agreement and invalidate the test.” The company in question freely admits that, if the guy had been white, he would have gotten the PR position. Do you really think this wouldn’t be a Title VII violation? Would “hey, we were so opposed to having a black guy in the position, that we decided not to promote anyone” been “non-discriminatory” under Ginsburg’s tortured logic as well?
OF COURSE the city’s actions were in clear violation of Title VII of the Civil Rights Act of 1964. Ginsburg’s dissent borders on racist garbage. I read it twice and was disgusted both times. Shorter Ginsburg: “Fuck Title VII. Firefighting has a history of racial discrimination against blacks, so now it’s the white guy’s turn to suffer.” It is a spectacularly offensive opinion that left me sick to my stomach.
July 1st, 2009 at 9:14 pm
Now Ramesh Ponnuru, a senior editor of National Review, has followed in Frum’s footsteps, writing an op-ed for the leftist New York Times in which he attacks conservatives as hypocrites for supporting the plaintiffs in the Ricci anti-white discrimination case. Here’s his reasoning:
Mr. Ricci probably deserved his promotion and had a right to his day in court. But contrary to what many conservatives insist, that does not mean he should win the case. The legal arguments for his position … are not absurd: they include reasonable readings of Supreme Court precedent. They just aren’t originalist arguments. To conclude that New Haven acted unconstitutionally is to assume that the Constitution’s 14th Amendment mandated a policy of strict colorblindness by state and local governments. Maybe it should have. But the historical evidence that it did is weak. Certainly the conservatives on the Supreme Court have not tried to argue that it did: originalist analysis has been notably absent from their opinions in affirmative-action cases.
What Ponnuru is saying is that conservatives are relying on the anti-originalist, liberal perversion of the Fourteenth Amendment, under which federal courts bar any kind of racial discrimination at the state level. He’s saying that under the original Fourteenth Amendment, states could discriminate as they liked. Therefore conservatives, insofar as they are originalists, have no grounds for attacking New Haven’s anti-white discrimination practices. But Ponnuru, in addition to his Benedict Arnold-like behavior of going to the Times to attack conservatives, is mangling the issue. Under the original Fourteenth Amendment, as enunciated in the 1896 Plessy v. Ferguson decision and followed in many other decisions for 60 years after Plessy, the Constitution allowed states to have “separate but equal” racial arrangements, such as separate train coaches or separate schools for whites and blacks, so long as the separate facilities were equal. However, as I have argued (”Does Grutter violate the Fourteenth Amendment?”, VFR, August 2003), the original Fourteenth Amendment would clearly prohibit “together but unequal” arrangements, such as admitting people of two different races to the same institution under grossly different standards for each race, which is what we have under minority racial preference systems. Such practices violate the Amendment’s mandate that states shall not deny to any person the equal protection of the laws.
Conservatives should therefore realize that they can fight anti-white racial preferences while remaining true to originalism. They do not have to rely on the liberal perversion of the Fourteenth Amendment, which bars all race-conscious policies by the states, in order to oppose racial preference practices that admit and hire vastly less qualified blacks over more qualified whites. They can challenge that system, while standing on the solid ground of the original Fourteenth Amendment. The argument is explained in more detail in my linked 2003 article.
Another point. Ponnuru is saying that the plaintiffs in Ricci should lose their suit because their case is not based on an originalist understanding of the Fourteenth Amendment. But does Ponnuru also say that the entire existing pro-minority civil rights structure of this country should be thrown out, because it is not based on an originalist understanding of the Fourteenth Amendment? No, he does not. He doesn’t challenge the unconstitutional, anti-white liberal system under which we live, while he would take away from conservatives the only means of fighting it.
Just like David Frum in his despicable Newsweek cover article, Ramesh Ponnuru is telling conservatives to shut up and submit.