Supreme Court on Ricci

By Clive Crook

Greetings from Tonopah, Nevada. I am meandering west at the moment en route to join a group hiking in the High Sierras. Soon I shall be lugging my camera and tripod at high altitude.

To get in the mood, my bedtime reading last night was the Supreme Court ruling on the New Haven firemen's case. I wrote a column about the case before the court ruled. A few things about the ruling--and about the case, now the ruling has taught me more about it--surprised me.

The court decided 5-4 (again) for the firemen and against the city, overturning Sonia Sotomayor. As Stuart Taylor says at National Journal, all nine disagreed with Sotomayor's summary judgment upholding the city's decision to void the promotions test. Even the minority wanted the lower court to take another look. But it seems I was mistaken when I said there was no dispute over efforts to ensure the test was fair. This is very much what the minority disputes. In their view, apparently, "disparate impact" remains strong prima facie evidence of "disparate treatment", or discrimination.

Ruth Bader Ginsburg, writing for the minority, seems to find it hard to believe that a fair test could have produced such a lopsided outcome. At first sight, that may seem reasonable enough--except for the evidence, related at length, of the efforts made to assure fairness. I think Ginsburg is grasping at straws somewhat when she talks, for instance, of possibly unequal access to test-prep materials. They are all firemen, after all.

If, without strong proof to the contrary, disparate impact reliably signals discrimination, race-based affirmative action will be with us for an awfully long time. In effect it would remain as a remedy not for racial discrimination in the workplace, but for unequal opportunity due to family circumstances and a failing education system. I cannot see that race-based affirmative action is the right response to those issues. Still less can I see it as the just response.

Happy holiday, and with luck I'll see you in the week begining July 13th.

This article available online at:

http://www.theatlantic.com/business/archive/2009/07/supreme-court-on-ricci/20638/