The Content of Their Character

The Supreme Court's recent Ricci, et al. v. DeStefano, et al. decision has major implications for the future in terms of affirmative action. However, many have seen it mainly in the context of the nomination of Judge Sonia Sotomayor to the Supreme Court, given that she was one of the three appeals court judges who were overruled by the decision.

I wrote elsewhere that Ricci v. DeStefano should have nothing to do with the confirmation of Judge Sotomayor. The voters elected President Obama and the Democratic majority in Congress, and they should get the nominees they select, barring any major disqualifications that might emerge. That's the way the system is supposed to work.

Moreover, the broader impact of the decision is far more important than any influence it may have on the Sotomayor nomination, and it's probably more important than even the justices themselves seem to think.

The city of New Haven, CT gave a promotion test to firefighters for advancement to command positions. The process was carefully designed to be neutral in terms of race and ethnicity. For example, nine three-member exam panels were used, each panel including one white, one Hispanic, and one African-American. Minorities were also over-sampled in developing the questions that were asked.

However, when the test results showed that whites passed the test at double the rate of African-Americans and Hispanics, with no African-Americans scoring high enough to be promoted, the city threw out the exam. Not long ago, under Title VII of the Civil Rights Act of 1964, the city's action would have been not only acceptable but possibly required because the promotion test had an apparent disparate impact on minorities, even though it clearly wasn't intended. This was long-established by the Act and subsequent amendments and court decisions.

The Fourteenth Amendment presents a problem, though--as it always has. How is someone given "due process" and "equal protection of the laws" when he or she is denied promotion because a member of a minority group must be promoted? The answer is pretty simple if the Fourteenth Amendment means anything at all.

New Haven maintained that it was justified in scrapping the exam because of legal advice that it might be subject to action under Title VII by minority firefighters because of "disparate impact." The Court ruled that wasn't a sufficient reason; a strong basis in fact must be present that clearly shows the existence of "disparate impact" under Title VII. There are disagreements, among the justices and among lawyers, about the future influence of this decision as a precedent.

In reality, it seems that we're coming to some kind of balance. It's still forbidden to intentionally discriminate--for example, by designing tests that have an intended disparate impact. But that now applies to everyone, it would seem, regardless of race, ethnicity, gender, etc.

I strongly supported affirmative action in the early days because I believed that the only way to redress past discrimination was to give a leg-up to those who had been disadvantaged. At this point, we must move beyond that to considerations of individual merit in all aspects of our national life. After all, our president is half African-American and half white, our attorney general is African-American, and throughout government and the private sector African-Americans are succeeding on the strength of their own abilities.

It's time to move toward realizing the dream of Martin Luther King that everyone in America will be judged not "by the color of their skin but by the content of their character."

For additional information and opinions:

Ricci, et al. v. DeStefano, et al., Supreme Court (decision)

Ricci, et al. v. DeStefano, et al., SCOTUSWiki (briefs and documents)

The Court Changes the Game, Linda Greenhouse, The New York Times

The Meaning of Ricci, Charles Krauthammer, The Washington Post

Getting back to first principles of affirmative action, Richard A. Epstein, Forbes

(This is an edited version of an article also posted at Opinion Forum.)

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