Another Blow to Affirmative Action (Updated)

Conservatives have been attacking affirmative action and the 1964 Civil Rights Law since the Reagan administration.  The Supreme Court has reversed the lower court (Second Circuit Court of Appeals with Sotomayor).  More later…

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From AP:

The Supreme Court has ruled that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could alter employment practices nationwide, potentially limiting the circumstances in which employers can be held liable for decisions when there is no evidence of intentional discrimination against minorities.

“Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas. (more…)

Update: One thing is clear. The Supreme Court did nothing to clarify the situation, but instead muddied the waters. The Supreme Court seems to be saying that if you did not intentionally discriminate, then no discrimination exists. This must be just my overly simplistic way of reading this decision. This is obviously a false hypothesis. It’s clearly possible to discriminate against blacks, women and other minorities without doing it “intentionally.” Proving intent would be nearly impossible in most discrimination cases.

This case also points out some of the problems I have with some conservatives who say that judges need to “interpret the law.” The Civil Rights Act of 1964 clearly states that you cannot discriminate based on race but then it goes on to say when an employer can discriminate based on a “protected trait.” So how do you balance these things? The mantra, “interpret the law,” rings hollow.

The Supreme Court focused on a test that was given to these firefighters. Now we know from years of testing students that some tests can reveal racial bias. We know from an elegant study by Stanford researcher that minorities will perform worse a particular test if they are told that this is a test of intelligence. If minority students are told that this is a problem-solving test these students do perfectly well. Their scores are as good as their White counterparts. Ruth Bader Ginsburg’s arguments seem to be solid when she states, “In so holding, the Court pretends that “[t]he City rejected the test results solely because the higher scoring candidates were white.” Ante, at 20. That pretension, essential to the Court’s disposition, ignores substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes.”

Finally, the Supreme Court has breathed just a flicker of hope into the anti-Sotomayor crowd. Over the next 24-48 hours, some conservatives will try to move quickly to capitalize on this momentum. Justice Sonia Sotomayor, they’ll say, is somehow unfit for the Supreme Court because she has a ruling that’s been overturned. This, of course, is a ridiculous statement. Nonetheless, I suspect conservatives will try to push this and get as much mileage out of this is possible. As Glenn puts itIn light of today’s ruling, it’s a bit difficult — actually, impossible — for a rational person to argue that Sotomayor’s Ricci decision places her outside the judicial mainstream when: (a) she was affirming the decision of the federal district court judge; (b) she was joined in her decision by the two other Second Circuit judges who, along with her, comprised a unanimous panel; (c) a majority of Second Circuit judges refused to reverse that panel’s ruling; and now: (d) four out of the nine Supreme Court Justices — including the ones she is to replace — agree with her.

Put another way, 11 out of the 21 federal judges to rule on Ricci ruled as Sotomayor did. It’s perfectly reasonable to argue that she ruled erroneously, but it’s definitively unreasonable to claim that her Ricci ruling places her on some sort of judicial fringe.

Update II: Balkination has more technical questions about this Ricci decision and how will it affect the Voting Rights Act.