Judgment Day: The Ricci Decision

Today is Judgment Day, at least for many pundits, critics, and observers who have been watching closely the nomination of Judge Sonia Sotomayor to the Supreme Court of the United States. Conservatives have accused the nominee, an appeals judge for the U.S. Second Circuit Court of Appeals in New York of being racist, and some have pinned their hopes on Ricci v. DeStefano, expecting the Supreme Court to overturn the appeals court verdict authored by Sotomayor.

The idea, of course, is that Sotomayor allegedly showed her racist stripes in upholding the lower court decision in favor of the New Haven Civil Service Board's scrapping of a qualifying exam for fire department promotions because not enough black applicants passed the test. The rhetoric among armchair and official pundits is fiery, with conservative advocates suggesting not so much that the law—Title VII of the Civil Rights Act—is errant, but that Sotomayor was racist in accepting that the NHCSB acted properly in scrapping the test for Title VII concerns. While that conservative rhetoric rests on the fallacious presumption that passing the test somehow guaranteed promotion—it did not, as there were more passing applicants than available positions; rather, the test qualified candidates to be considered for promotion—early analysis after oral arguments in April suggested that the Court would overturn the Second Circuit's decision, thus rebuking Sotomayor.

The white firefighters pointed to the first provision and said they were discriminated against when the city decided not to use the test scores for awarding promotions.

The city's lawyer pointed to the second provision and said New Haven could be sued by black firefighters who said the test had a "disparate impact" on them and their chances for promotion. Could the city defend itself, he asked, by proving that a paper-and-pencil test was the best and only reasonable way to decide who gets promoted to lieutenant or captain?

He doubted this defense would succeed, and he recommended dropping the test and starting over. The New Haven Civil Service Board split 2 to 2 on the issue, which meant the test results were set aside. Since then, the city has been fighting the discrimination suit from the white firefighters ....

.... During oral arguments in April, several justices, including David H. Souter, whom Sotomayor is nominated to replace, acknowledged that the court had left cities in a bind. "A municipality like New Haven is in a damned-if-you-do, damned-if-you-don't situation," Souter said.

The oral arguments led many court observers to conclude that the ruling would be overturned ....

.... A federal judge rejected [Ricci's] discrimination suit, however, in a 48-page opinion, saying that city officials were justified in dropping a test they believed was flawed. "They simply decided to start over," said U.S. District Judge Janet Arterton.

When the case went before the U.S. 2nd Circuit Court of Appeals in Manhattan, the three-judge panel, including Sotomayor, affirmed Arterton's ruling in a brief, unsigned opinion.

(Savage)​

But those early projections may not be reliable. In decisions last week, the Supreme Court handed down at least a couple of surprises in terms of observation and analysis.

Slate's Dahlia Lithwick checked in yesterday with NPR's All Things Considered:

Raz: Dahlia, you've been covering this Supreme Court term quite closely for the Washington Post and Slate. Were there any surprises for you in this session?

Lithwick: Probably the big surprises all came last week. Everybody expected the Voting Rights Act case to be just a blockbusting 5-4 decision in which the conservatives on the Court essentially gutted Section 5 of the Voting Rights Act, which is called the crown jewels of the Civil Rights legislation. They didn't do that; they voted 8 to 1 to actually keep the Act intact. Instead of getting into this broad constitutional question about the constitutionality of the Act, they just decided on this very, very narrow statutory ground with a warning to Congress that they'd better fix the Voting Rights Act in the future. Same thing happened with the strip-search case last week. Everybody thought this was going to be a 7 to 2 case saying schools have the right to strip-search thirteen year-old girls if they're looking for Advil. That was not what we saw. Last week, the Supreme Court, 8 to 1 again, came down saying, "Nope, this was an unconstitutional strip-search." So, I think the big thing we're seeing is that cases that were argued very passionately at oral argument, where the justices seemed quite decided, are not how the term is ending up.

(Raz)​

Two major cases in which observers and analysts expected a certain decision defied predictions. In Northwest Austin Municipal Utility District Number One v. Holder, the Court was expected to strike a central part of the Voting Rights Act that required certain states and municipalities to seek federal approval before altering their election procedures. The decision came down 8-1 in favor of the federal law, with Justice Thomas as the lone dissenter. Expectations in Safford United School District #1 v. Redding were that the court would side with a school district's right to strip-search a thirteen year-old girl suspected of possessing ibuprofen on school gorunds. Where many analysts expected a 7-2 decision in favor Safford United, the actual result was a complicated arrangement of partial concurrences and dissents. But in an 8-1 vote, the Court affirmed the prior ruling in favor of the student. A second question in the case saw a 7-2 split, with Justices Stevens and Ginsburg in dissent, and partial concurrences and dissents filed by both Ginsburg and Thomas. "The Court held that the strip search did violate the Constitution," notes Kristina Moore at SCOTUSblog, "but it wasn't clear that the violation was established at the time of this incident."

All of which brings me to wonder about today's forthcoming Ricci decision.

Twice last week the Court bucked expectation, and severely. In neither case was it an issue of Justice Kennedy's famous swing vote. Rather, the Court substantially decided in two major cases in a manner that defied analysts' predictions. One might have guessed Justices Ginsburg and Breyer to side with the respondent in the Safford case, and banked on Kennedy's swing vote in Austin. But the outcomes were so much different from the forecast that we might pause to consider whether the earlier analysis of oral arguments in Ricci is reliable. Some certainly thought the Court at least leaned toward the plaintiffs during oral arguments, but the Justices surprised analysts with their decisions last week; the same might happen again. And punditry in the Sotomayor discussion gives a blurry, at best, picture of the issues involved. Contrary to conservative claims, nobody was actually denied an otherwise-guaranteed promotion. Additionally, the conservative argument worked to avoid the point that employers have certain obligations under Title VII of the Civil Rights Act. Additionally, Frank Ricci and his fellow plaintiffs did not challenge the constitutionality of Title VII. Lithwick and Doug Kendall wrote in May,

When the case was argued before the Supreme Court last month, all of the justices seemed to agree that New Haven had to comply with valid federal statutes. Mr. Ricci did not challenge the constitutionality of Title VII. So the only real question before the court was whether New Haven had reason to believe that if the city used the test results it would be sued under Title VII.​

If this analysis is correct, one might expect the Justices to affirm the lower courts' rulings. The only way around that issue would appear to be to argue that the NHCSB's decision was made in bad faith. But that is, in itself, problematic. Kimberly West-Faulcon noted, in the wake of oral arguments,

In fact, the company that made the test admitted that some of the items were "irrelevant" in New Haven. One question, for example, asked the test-takers whether fire equipment should be parked "uptown, downtown or underground when arriving at a fire." The question was based on information relevant to New York City firefighters, and was on the exam even though the city of New Haven has no "uptown" or "downtown" ....

.... In other cases, judges have concluded, based on expert testimony, that written, multiple-choice tests for firefighter promotion like the one in this case contain the "fatal flaw" of failing to test for "supervisory ability." The company that made the New Haven Fire Department exam acknowledges that its test does not include any questions that measure a test-taker's ability to supervise or lead other firefighters in the line of duty.​

Yet neither is it a safe bet at this time that the Court will side with the respondents. The Roberts court, even last week's decisions notwithstanding, is known to surprise analysts. Indeed, some are still smarting over the 2007 Ledbetter decision in which the Court held that a 180 day limitation applies to sex-discrimination complaints.

So today's decision seems a true enigma. My inclination is that the Court will uphold the standing decisions, but it is not so strong as to stand firm on. We may be about to witness a shift in the American judicial outlook, or today might turn out to be just another day.

Politically speaking, even a decision to overturn the prior decisions does not necessarily amount to a rebuke of Judge Sotomayor. Supreme Court decisions are often complex and nuanced outcomes. While many find perceptions of judicial activism distasteful, it is also possible that the Court will hand down a multivalent decision in which it finds for Ricci and his fellow plaintiffs, but exonerates the NHCSB of any wrongdoing because, as with Safford, "it wasn't clear that the violation was established at the time of this incident". That is, "Yes, we find for the plaintiffs, but no, the NHCSB was not, or could not have been, aware of the violative nature of their actions at the time of their decision to scrap the test results."

The ripple effect of this case could be sensational, especially if the decision is to overturn. Regardless of the Court's reasons, we could expect conservative pundits to use an overturning decision as ammunition to fight Judge Sotomayor's nomination to the Supreme Court. But even more important is what an overturning would mean in the context of Title VII. Nobody has argued that it is unconstitutional, so what would that mean? Would the court find the NHCSB's decision to throw out the test results one of bad faith? Is there some legal construction and precedent that no prominent analyst or pundit has given voice? How would such a decision affect Title VII? The Civil Rights Act is a piece of legislation of legendary stature in the United States, and so powerful that employers will respond to even a hint of Title VII. If its constitutionality is not in question, what would be the effect of overturning the lower courts' decisions?

And one question that will be definitively resolved in a matter of hours is who will write the opinion of the Court. If the majority upholds, I'm still guessing Kennedy. But if it overturns? I can only tell you who it won't be. It won't be Ginsberg, Breyer, or Stevens. I doubt it would be Souter, and Scalia is far too obvious a choice. Thomas is unlikely, but still a possibility, and I can almost hear the derision if he does. Justice Thomas is quietly controversial in most of what he does on the Court, enduring criticism ranging from inconsistency to incomprehensibility to activism and even idiocy. The criticism runs the full spectrum, which might actually suggest he does his job well, as nobody can agree on how he does it poorly. But Thomas is not known to take the lead in this sort of case. That leaves Roberts, Alito, and Kennedy, none of whom are predictable in this context; it would be possible to find Kennedy and Scalia in a 5-4 minority with Thomas, but one would have to flip a coin on Roberts or Alito.

However, the Chief Justice once explained, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." And even if it is not so simple, we might take that to suggest that Roberts would take the lead if he votes with a majority to overturn. And that's my best possible guess. As with the decision itself, though, I wouldn't stand on it. Indeed, I'm wondering if there is a bettors' book somewhere on the question.
____________________

Notes:

Savage, David G. "Sotomayor's decision on firefighters may be overruled by Supreme Court". Los Angeles Times. June 1, 2009. LATimes.com. June 29, 2009. http://www.latimes.com/news/nationw...mayor-firefighters1-2009jun01,0,5209477.story

Raz, Guy. "As Supreme Court Break Nears, Big Cases Remain". All Things Considered. June 28, 2009. NPR.org. June 29, 2009. http://www.npr.org/templates/story/story.php?storyId=106027153

Moore, Kristina. "Opinions from this week". SCOTUSblog. June 25, 2009. SCOTUSblog.com. June 29, 2009. http://www.scotusblog.com/wp/opinions-from-this-week/

Kendall, Doug and Dahlia Lithwick. "Crimes of Compassion". Slate. May 15, 2009. Slate.com. June 29, 2009. http://www.slate.com/id/2218393/

West-Faulcon, Kimberly. "Ricci vs. DeStefano: A test on race". Los Angeles Times. April 24, 2009. LATimes.com. June 29, 2009. http://www.latimes.com/news/opinion/la-oe-westfaulcon24-2009apr24,0,5548886.story

 

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Wait a second...

A city scrapped the results of what amounts to, I'm guessing, an aptitude test, simply because not enough black people passed?

 

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msn.com is reporting that the Supreme Court ruled in favor of the white firefighters, saying they were wrongly denied promotions.

 

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Title VII redefined?

They were following (A) the law, and (B) standing case precedent. But apparently that is not good enough, because—

—that report is accurate, which raises a certain question: If there are twice as many applicants as available positions, which of the firefighters was wrongly denied a promotion?

The early word is that Justice Ginsberg made the point in her dissent. I'm reading through the decision, and it appears the majority, delivered by Justice Kennedy, has turned Title VII of the Civil Rights Act on its head. Chief Justice Roberts, as well as Justices Scalia, Thomas, and Alito joined the majority. Justice Ginsburg led the dissent, with Stevens, Souter, and Breyer joining.

The Court did not strike Title VII, but rather sought a new application. Basically, as I take it from the Syllabus, the Court just said that the last forty years of working to ensure equal opportunity was wrong:

If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.​

_____________________

Notes:

Wagner, Frank D. "Syllabus". Ricci v. DeStefano. Supreme Court of the United States. June 29, 2009. SupremeCourtUS.gov. June 29, 2009. http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf

 

That's not what I'm asking. I'm asking if they threw out test results because not enough black people passed.

 

Justice has been done. And here's the really good part:
Moreover, according to Ed Whelan, not a single Justice thought that Judge Sotomayor acted correctly in granting summary judgment for the City of New Haven.
Not even one justice agreed with her actions!
http://powerlineblog.com/

Here's Alito's comment:

Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City's exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City's asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision.

The dissent grants that petitioners' situation is "unfortunate" and that they "understandably attract this Court's sympathy." But "sympathy" is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law--of Title VII's prohibition against discrimination based on race. And that is what, until today's decision, has been denied them.​

 

OK, I've brushed up on the details a bit.

The city hired an outside firm to admiinister a test that would help determine the best candidates for promotions to fill vacant lieutenant and captain positions. 41 whites, 22 blacks, and 18 hispanics passed the test. But the report says that only 17 whites and 2 hispanics could expect to be promoted. I'm guessing this has something to do with the curve vs the amount of positions available...?

Anyway, once the city saw the results, they scrapped the test.

I'm failing to see how this court ruling goes against equal opportunity laws. A test was administered, and based on merit, no black people were going to be promoted. But because of the law, some of those 17 white men--who qualified for promotion as per the parameters set out--will lose out on the promotion for no other reason than the color of their skin.

It's not OK to discriminate an individual just because he's not a minority. If you flipped the results, and it was 17 blacks, and no whites, and they scrapped the test, all hell would break loose.

I applaud the court's decision.

 

This is what I was talking about ....

A test with irrelevant questions, that the designing firm acknowledged did not test for leadership qualities in the candidates, and produced a result so severe that a Title VII claim by failing black firefighters was viewed as inevitable? The law and case history of Title VII frowns on such circumstances, and employers not responding to such outcomes have long risked great liability.

Essentially what the Court said is, "No, Title VII is not unconstitutional, and these white and Hispanic firefighters who were not guaranteed promotions because of the exam were unfairly denied guaranteed promotions." And the decision appears to have gone out of its way to neuter the Civil Rights Act.

Yet, as our racist friend Madanthonywayne suggests, justice has been served. After all, Title VII was specifically written to bolster the privileged class in our society, right?

 

Repugnant, but what do we really expect?

It should be pointed out that Alito's comment referred to the District Court, not the Second Circuit Court of Appeals.

Additionally, when you quote a blog argument like Power Line's, you run the risk of sounding silly. And, in this case, that risk comes crashing down on your head.

The Opinion of the Court speaks nothing of the Second Circuit Court of Appeals. Justice Alito criticizes the District Court, and notes the Court of Appeals' affirmation of the ruling.

Justice Ginsberg, however, points out that the Appeals Court followed precedent and, in a disparity one might expect of this outcome, piles on the precedents. Indeed, the Opinion is rife with precedent as well, but these orbit the majority's convenient argument that, "We just don't believe the NHCSB."

It didn't take long for the conservative rebuke of Sotomayor to emerge. One might think they were standing by with pre-written attacks that had no real regard for the facts.

We can conclude that at least four justices have no problem with Sotomayor's conduct. Of course, they don't count, do they?

Thank you, sir, for proving once again that justice, to conservative eyes, is nothing more than mere politics. I won't beg your pardon for being disgusted.

 

Did judge Sotomayor examine the test to show that it had irrelevant questions? Furthermore, if there were irrelevent questions, in what way did they bias the test? Were they written in such a way that African Americans couldn't understand them? Were the test answers given out in advance to everyone but the African Americans?

As well it should have. Deciding who gets promoted based upon race is racist. Judging a test by which race does best on it is also racist. Unless you can show exactly how the test was unfair.

No law should be written to bolster any class in our society. All law should treat all individuals equally. If you do poorly on a test, don't call the test racist (unless you have proof it is), study harder and pass the damned thing.

Furthermore, the idea that I'm racist for my opposition to laws that treat you differently based upon race is an insane inversion of logic.

No, we can't. Here's the full quote from National Review on line:
Further, although there is a sharp 5-4 divide among the justices, not a single justice thought that Judge Sotomayor acted correctly in granting summary judgment for the City of New Haven.
http://bench.nationalreview.com/post/?q=MzNjOGZjMTY5YmFkNzAzNmI3OTU0ZDVkOTc0MWI4ZjQ=

So, what he's saying is that, despite the 5-4 divide regarding the overall findings of the court; none of the judges, even those in dissent, felt that Sotomayor had acted correctly. According to Powerline, the author of that quote has since clarified that statement to say:
"Ginsburg and the three Justices who joined in her opinion "believe[] that Sotomayor and the other judges below applied the wrong standard." http://powerlineblog.com/

 

That can't be right - they didn't specify the "standard", simply affirming the lower court's ruling.

Many problems with the test were "shown".

Throwing the test out does not "decide who gets promoted" at all, let alone decide who gets promoted based on their race.

Admittedly this burden of proof stuff requires a moment's reflection and so forth, but it's not rocket science. Why are you guys still banging on about this somehow being racist against the white applicants? Are they somehow ineligible to be hired because they took this test?

 

By Jesus' shriveled balls ... are you kidding?

It's not about Sotomayor. The Court considered the applicability of the questions, and the majority decided irrelevant questions didn't matter. Furthermore, the firm that designed the exam acknowledged that it didn't test for supervisory or leadership capability. One of the standing precedents ignored by the Opinion of the Court is that such tests need to be relevant to their purpose; in this case, testing for promotion to a supervisory position should examine supervisory capability.

The majority considered the irrelevant questions moot.

No, but study materials were available to white firefighters earlier than the blacks.

So much for conservative disdain of judicial activism.

Who got promoted according to race?

I've addressed this fallacy before, and consider your maintenance of it dishonest.

So a test for promotion need not be germane to the job in question?

The Civil Rights Act disagrees with you, but, hey, the conservatives on the Court managed to take care of that nicely. Perhaps the greatest comfort about the decision is Ginsberg's prediction that, "The Court's order and opinion ... will not have staying power."

We can only hope she's right.

This is a question of the general and the particular, and the effects thereof. The general idea of equal opportunity is to create equal opportunity. That was the whole point of the Civil Rights Act, Title VII thereof, the Griggs decision, and the overwhelming majority of the massive case history of forty-five years of civil rights considerations.

Your desperate clinging to the particular would have the effect of extending racial and ethnic disparities in the workforce. The conservative adherence to "merit" ignores the genuine opportunity to demonstrate merit.

And that's why it's racist.

Yes, the editorial opinion of a biased source with a history of distorting facts is certainly conclusive. Never mind that Whelan's opinion is inferred from the fact that, while Justice Alito criticized the District Court specifically and, by implication, the Appeals Court, none of the dissenters went out of their way to politicize the case by high-fiving Sotomayor's name.

And, frankly, that's a weak inference that, not coincidentally, matches exactly what conservatives have been whining about Sotomayor from the outset.

That is not apparent in the dissent. Too bad there is no link to the clarification. Of course, there's a reason why. The folks at Power Line want people like you to believe it's that simple, and you're willing to take the bait. Whelan wrote,

There is a sharp 5-4 divide among the justices in Ricci, and the legal position taken by the district court and adopted by Judge Sotomayor and her panel colleagues is obviously much closer to the position of Justice Ginsburg and her fellow dissenters than either is to the majority's. But even Ginsburg believes that Sotomayor applied the wrong legal standard (one overly favorable to the city): "The lower courts focused on respondents' 'intent' rather than on whether respondents in fact had good cause to act."​

But there is a caveat:

I'm a bit puzzled whether Ginsburg believes that application of what she views as the proper standard would entitle the city to summary judgment, but I believe the answer is no. Ginsburg explains in Part III-A of her dissent "why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party." (Emphasis added.) Although it's not entirely clear to me at this point whether Ginsburg purports merely to be applying the usual standard for summary judgment or whether she is instead acting as ultimate factfinder, her various phrases suggest the latter. For example, Ginsburg states that "petitioners have not shown that New Haven's failure to certify the exam results violated Title VII's disparate-treatment provision." (Emphasis added.) But in opposing the city's motion for summary judgment, the petitioner firefighters would need only to show (with all inferences from the evidence drawn in their favor) the existence of disputed issues of material fact.

(ibid)​

And even that last is disputable. Whelan's whole purpose is to find a way (any way) to connect the decision to the standing GOP complaint that Sotomayor is racist.

Ginsburg mentions the Second Circuit Court of Appeals court directly twice:

In a decision summarily affirmed by the Court of Appeals, the District Court granted summary judgment for respondents. 554 F. Supp. 2d 142 (Conn. 2006), aff'd, 530 F. 3d 87 (CA2 2008) (per curiam). Under Second Circuit precedent, the District Court explained, "the intent to remedy the disparate impact" of a promotional exam "is not equivalent to an intent to discriminate against non-minority applicants." 554 F. Supp. 2d, at 157 (quoting Hayden v. County of Nassau, 180 F. 3d 42, 51 (CA2 1999)). Rejecting petitioners' pretext argument, the court observed that the exam results were sufficiently skewed "to make out a prima facie case of discrimination" under Title VII's disparate-impact provision. 554 F. Supp. 2d, at 158. Had New Haven gone forward with certification and been sued by aggrieved minority test takers, the City would have been forced to defend tests that were presumptively invalid. And, as the CSB testimony of Hornick and others indicated, overcoming that presumption would have been no easy task. Id., at 153–156. Given Title VII's preference for voluntary compliance, the court held, New Haven could lawfully discard the disputed exams even if the City had not definitively "pinpoint[ed]" the source of the disparity and "ha[d] not yet formulated a better selection method." Id., at 156 ....

.... The real issue, then, is not whether the mayor and his staff were politically motivated; it is whether their attempt to score political points was legitimate (i.e., nondiscriminatory). Were they seeking to exclude white firefighters from promotion (unlikely, as a fair test would undoubtedly result in the addition of white firefighters to the officer ranks), or did they realize, at least belatedly, that their tests could be toppled in a disparate-impact suit? In the latter case, there is no disparate-treatment violation. JUSTICE ALITO, I recognize, would disagree. In his view, an employer's action to avoid Title VII disparate-impact liability qualifies as a presumptively improper race-based employment decision. See ante, at 2. I reject that construction of Title VII. See supra, at 18–20. As I see it, when employers endeavor to avoid exposure to disparate-impact liability, they do not thereby encounter liability for disparate treatment.

Applying this understanding of Title VII, supported by Griggs and the long line of decisions following Griggs, see supra, at 16–17, and nn. 3–4, the District Court found no genuine dispute of material fact. That court noted, particularly, the guidance furnished by Second Circuit precedent. See supra, at 12. Petitioners' allegations that City officials took account of politics, the District Court determined, simply "d[id] not suffice" to create an inference of unlawful discrimination. 554 F. Supp. 2d, at 160, n. 12. The noncertification decision, even if undertaken "in a political context," reflected a legitimate "intent not to implement a promotional process based on testing results that had an adverse impact." Id., at 158, 160. Indeed, the District Court perceived "a total absence of any evidence of discriminatory animus towards [petitioners]." Id., at 158. See also Id., at 162 ("Nothing in the record in this case suggests that the City defendants or CSB acted 'because of' discriminatory animus toward [petitioners] or other non-minority applicants for promotion."). Perhaps the District Court could have been more expansive in its discussion of these issues, but its conclusions appear entirely consistent with the record before it.

It is indeed regrettable that the City's noncertification decision would have required all candidates to go through another selection process. But it would have been more regrettable to rely on flawed exams to shut out candidates who may well have the command presence and other qualities needed to excel as fire officers. Yet that is the choice the Court makes today. It is a choice that breaks the promise of Griggs that groups long denied equal opportunity would not be held back by tests "fair in form, but discriminatory in operation." 401 U. S., at 431.​

In other words, it's hard to find any criticism of the Second Circuit Appeals Court in the dissent. The thing is that Whelan obviously knows how to read. And he obviously knows how to politick. His focus on supporting the conservative assertion against Sotomayor overlooks a great opportunity to point out that, Ginsburg was also criticizing her predecessors on the Supreme Court and their decision in Griggs v. Duke Power Co. But then, that is clearly—explicitly—not the case. Were it so, Ginsburg would have no reason to dissent.

On a personal note, sir, look, I understand that people get caught up in the politics and make a mistake of promulgating someone else's bad opinion. But when you do it over and over and over again, it doesn't speak highly of you. Instead of simply seizing on the first conservative punditry you find that remotely matches your opinion, perhaps you would be better served to make sure the commentary actually reflects the facts.
______________________

Notes:

Whelan, Ed. "Re: 9-0 Against Sotomayor". Bench Memos. June 29, 2009. National Review Online. June 29, 2009. http://bench.nationalreview.com/post/?q=ODE5MmRmMzBmODgyMGYzMGY0NGZhZjM4ZTA4M2UyOTU=

Ginsburg, J. Ruth. "Dissent". Ricci v. DeStefano. Supreme Court of the United States. June 29, 2009. SupremeCourtUS.gov. June 29, 2009. http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf

 

Agreed.

Racial and gender parity is a joke and the quest for it is ultimately going to lead to harm. The city came up with the test and then jettisoned it when it when too many white people did too well on it. There's justice for you! Stick it to the white man. That'll make the world a better place. Any law or regulation which demands quotas should be shot down out-of-hand.

~String

 

Was that the reason the city gave for putting the kaibash on the test? If enough blacks and latinos had passed the test, would the city have rejected the results then "because the test didn't test for leadership qualities"? Or was this oversight only notice because white people just did too gosh-darned good.

~String

 

It was noticed only because of the racial disparity in the results, and was part of the court testimony dealing with the likelihood of the city being successfully sued over the test.

Probably no one would have sued the city over a useless test that did not so preferentially screen out the blacks, because no one would have been damaged according to their race by it. It's completely legal to administer useless and misleading tests that are equally bullshit for all races.

The problem comes from adopting otherwise useless or marginally indicative tests that do screen by race. The US has a long, long history full of such innovative uses of "merit" tests, and in my home town the firefighters used one that behaved, in its results, much like this New Jersey one - and had been adopted for that reason.

That's exactly what racism looked like, in my home town. It looked like a merit test, and was defended as a merit test, in which somehow all the high scorers were white people (and most of them related to currently employed firefighters). And the resulting years of court battles cost lots of money and screwed up the hiring even more. There is no blame to a city that wants to avoid that kind of a mess.

The question asked of the courts, unanimously answered in the lower courts, and then piddled on by the reliables in the Supremes, is: where does the burden of proof lie, given the history and situation, when a test of dubious value produces results like that.

 

We need to put an end to the idea that the way to deal with past racial discrimination (against minorities) is present racial discrimination (against the majority). The whole concept of affirmative action is racist at its core. The way to deal with discrimination is (read carefully and pay close attention because this is pretty complicated) to not discriminate.

This decision is a step in that direction. A few more such decisions and perhaps we'll see a day when a man is judged by the content of his character rather than the color os his skin.

 

First, we need to find some way to make racial discrimination against the minorities "past".

By, for example, not imposing rigged "merit" exams. Have we succeeded in doing that yet, think you?

 

Nope.

And to try to counter it. The desk is stacked the other way, too. I remember someone once said that if you don't think racism exists, imagine a world in which choosing to live as another race wouldn't change your life. It's a fair point. But I also know that applying for college -- or any number of jobs -- that lesson is reversed. I'd much rather be _____ when I applied to Harvard than "White."

To echo String, though, none of this silliness goes away until people chuck it all out the window and shoot for merit and merit alone.

 

What exam was rigged? Do you have a copy of it?

The fact that blacks and latinos didn't score high enough is more likely the result of the fact that they didn't apply themselves to study in advance, or lacked the individual intelligence to do well. Whatever. Either way, it was a test that was designed by and for a Democrat dominated city in a Democrat leaning state, which test was conveniently tossed out because white people did too well at it.

Instead of shooting down all the white people who scored high, perhaps this should come as a wake-up call to all the minorities who didn't do well enough.

No. Wait. I have a better idea. Let's lower the standards for minorities. Give'em something to aspire to!

~String

 

Its simple, if x number of qualified applicants are minorities and y number of qualified applicants are white we would expect people hired to be the ratio between x and y. There is no need for quotas, in theory if you hire racially blind your going to get ratio xy. Systems can be in place to make sure "qualified" is determine unbiasedly by removing names and personal specific from resumes, using id numbers on resumes, having computer terminal based interviews or having a 3rd party do the interviewing.

Would that not satisfy the need to make racism of the minorites "past" while also prevent madanthonywayne's clan based belief that the majority is somehow oppressed despite having the lowest unemployment rate among all the races.

Also why am I the only that notices Tiassa is not human, no human makes internet post like those.