The conservatives on the court decided that the city decided to throw out the test results "All the evidence demonstrates that the City rejected the test results because the higher scoring candidates were white." That's not what happened. There were a number of issues with the test the city failed to address before giving it that were brought to light afterwards, and the racial disparities in results made the city concerned that they would be liable for discrimination, so they threw it out.
Justice Kennedy argues that jurisdictions only have reason to fear liability in cases where there is a "strong basis in evidence" necessitating such concern. As Justice Ginsberg points out, this requirement is somewhat redundant, Title VII already requires the city to show problems with a practice beyond mere disparate impact.
What I find remarkable is that the above assumption of bad faith on the part of the city New Haven violates their own standard--there is nothing in this case, the composition of the test, nothing in the composition of New Haven's fire department ( blacks and Latinos comprise 30 percent and 16 percent of the City's firefighters, respectively, in a city that is 60% black and Latino) or even in the history of race in this country to justify the opinion that the city just doesn't like white people and doesn't think they should be firefighters. But if you believe, as Pat Buchanan does, that white men are the most discriminated against people in America, then the city's intent is clear. There just isn't a "strong basis in evidence" to support that view.
There are a number of problems with the test that in my view, favor those candidates with external advantages, and should have caught the city's eye to begin with. For one, the test materials themselves cost 500 bucks. If you're going to be levying a 500 dollar tax on people applying for a promotion, you're going to end up excluding a number of people who simply don't have the financial resources to compete. Most of the black firefighters on the force are first-generation, while white applicants, partially as a result of historical discrimination within municipal employment, were able to have access to certain test materials through relatives. Second, the focus on the written component, which was 60% of the test. Other cities, such as Bridgeport, noticed that a focus on the written test produced racial disparities in results--so they changed the test, and their fire department's leadership is noticeably more diverse. They didn't change the test just because of disparate impact, they changed it because the emphasis on the written component privileges qualities that aren't vital to being a good firefighter.
The focus on the written test is a pretty big red herring for me. I guarantee you that given the time, I could pass a written firefighter's test with flying colors, and at 5'6, I'd still make a shitty firefighter. In disparate impact discrimination claims, the burden is on the employer to show that the qualifications for employment are "proving that the test is job-related and consis-tent with business necessity." A written component as 60% of the final score? Not so much. Ginsburg noted in her dissent that Bridgeport "recognized, however, that the oral component, more so than the written component, ad-dressed the sort of "real-life scenarios" fire officers encoun-ter on the job." The content of the test was also partially based on New York's system, rather than New Haven's, which means that someone with less access to the material who was relying more on their personal experience as a firefighter would have been further disadvantaged. I can only speak for myself, but rote memorization is not the quality I would look for in a firefighter. I would liken it to an admissions office throwing out someone's grades--likely the best indicator of skills germane to being a good student--in favor of their SAT scores. I don't think the company that made the test intended to discriminate, there's ample evidence that they didn't. But that's what disparate impact is about--processes that aren't important to the job that have a disparate effect on certain groups.
So here's what I'm saying: The city had reason to believe the test was flawed, not only because how it was constructed favored things less applicable to actual firefighting, it advantaged people with more resources and personal connection to the department, and there are other ways to construct the test in which not only have more relevance to the job, they actually have less of a disparate impact. If the city had arbitrarily tossed out the white firefighters' scores and promoted less qualified minority candidates, that would have been one thing. But they didn't do that, the threw out all of the results--blame should be put on the city for having created a flawed test in the first place, but it's not fair to say that the white firefighters were denied their jobs based on the kind of longstanding racial assumptions about black intelligence and diligence that still often govern hiring decisions. No one in the city believed that the white firefighters were incapable of doing their jobs correctly because they were white.
The problem with the conservatives Justice's reasoning--in particular Sam Alito's preoccupation with politicians being concerned with the interests of black voters--is that it removes racial discrimination from all historical context. This is not like the kind of pervasive, deliberate, racial discrimination that was once a staple of hiring for municipal jobs, nor is it like residual systemic discrimination that favors candidates with certain external advantages that have nothing to do with ability. Throwing out the tests was, instead, the result of the city being careless in how it composed the test--unfair to those who studied for it, not just because promotions were denied, but because the test was flawed to begin with. There's no getting around the fact that Frank Ricci was wronged--but in my view, the city wronged everyone who took the test, period.
The city of New Haven believed that they might be liable for a Title VII discrimination suit based on the results of the test--and I think they had good reason, because there's lots of reason to believe the test didn't evaluate whether or not candidates would be good at their jobs. To compare, or even imply this is the same as the restrictive racial covenants that once dominated hiring in this country is wrong.
Ta-Nehisi is far more skeptical of AA than I am, and maybe I'll explain my reasons for supporting AA in another post. But I think I've rambled enough for now.