Earlier this week blog chatter focused briefly on the US Supreme Court’s decision in the case of Ricci v DeStefano, in which the Court upheld the complaint of white and Hispanic firemen whose promotions had been deferred because not enough minority candidates had performed well enough on exams to earn promotion. What made the case news was the lower court opinion of Judge Sonia Sotomayor, President Obama’s nominee-apparent to replace Supreme Court Justice David Souter. What made it interesting to me was the looming and welcome threat to Title VII.
The New Haven, CT Fire Department spend oodles of bucks devising a battery of tests for promoting candidates to Lieutenant and Captain that would both fulfill their requirements under their union contract, and meet their legal requirements under the Civil Rights Act. After paying consultants, screening the questions through a minority-heavy sample of officers, screening them again through independent, outside fire safety professionals, the fire department was dismayed to learn that the pass rate on the Captain exam was 64% for whites, but only 38% for both blacks and Hispanics. The Lieutenant exam was only slightly better: the pass rate was 58% for white candidates, 32% for black candidates, and 20% for Hispanic candidates.
A series of meetings ensued while the department tried its best to find a way of avoiding all appearance of discrimination without offending the officers who had studied hard and performed well, earning promotion according to the standing rules of the department. In the end, they decided to simply discard the results of the tests and find another way to evaluate candidates. The officers who had earned immediate promotion, 17 whites and 2 Hispanics, sued for relief under Title VII of the Civil Rights Act, claiming they had been discriminated against solely on the basis of their skin color.
The case was mostly interesting to newsies because the District Court’s decision to allow New Haven to toss out their own job testing over affirmative action concerns had been upheld at the 2nd Circuit by Judge Sotomayor. Sotomayor (and others) let stand uncontested a District Court ruling that permitted the city of New Haven to discard the test results for no reason other than that it had produced disparate results, adding the fascinating and frankly amusing claim that the city’s dismissal of the results was race-neutral (more on this below). The controversy in law raised by their dismissal was that under existing Title VII law, the employer can only violate Title VII and deliberately throw out the tests if it can be shown that their tests do not rest on business necessity, or that other, satisfactory tests would produce more racially balanced results. Neither the District Court nor the Circuit Court raised this point.
Everyone wondered what the Court would say about Sotomayor’s reasoning. The consensus on that score was that her candidacy for the Supreme Court seat took some flak. Not only did the majority, represented in the opinion by moderate Justice Anthony Kennedy, vote to overturn the District Court’s decision, but the dissenting opinion, written by Justice Ruth Bader Ginsburg and signed by leftist Justices Souter, Stephens, and Breyer, also explicitly rejected Sotomayor’s reasoning, insisting that they should have held hearings to evaluate the issues of business necessity and alternative testing procedures. This probably will not stop her confirmation (unfortunately), but it will certainly not improve her standing in the eyes of Senators whom she needs for her confirmation.
The more interesting question, to me, was the review of Title VII of the Civil Rights Act. Title VII bans employment discrimination on the basis of race, color, religion, sex, either deliberate and direct or by way of indirect criteria designed to exclude certain groups. Direct discrimination is called “disparate treatment,” whereas indirect discrimination is called “disparate impact.” An example of the former is “We don’t hire blacks.” An example of the latter might be extra weight given to recommendations from current employees, if none of the current employees are members of a minority group; this would tend to exclude minority candidates.
Nobody reading the description of the machinations the New Haven, CT Fire Department went through while considering how to decide whom to promote would have the slightest doubt that they very badly wanted to avoid both real discrimination, and any appearance of discrimination. In fact, I was appalled at the amount of trouble they went to specifically to avoid any problem with Title VII. They spent literally hundreds of thousands of dollars on evaluating the testing regimen both before the test, and afterward, when they learned that all ten of the candidates approved for immediate promotion to Lieutenant and 7 of the 9 candidates approved for immediate promotion to Captain were white. The entire process took months, not counting the court battle that has followed. The extensive, painful process was described in detail in the majority opinion, expanded upon in the dissenting opinion, and expanded upon even further in Justice Alito’s separate concurring opinion. Even without the Court challenge, the entire process was a nightmare. If Title VII were repealed tomorrow (from my keyboard to God’s eyes,) GDP would instantly rise 2 percentage points, just by eliminating burdens like these. Now, that’s stimulation.
Unfortunately, the majority opinion was a Kafkaesque maze of rationalizations, trying desperately to make Title VII work. Justice Kennedy ducked the main question of whether reverse discrimination is a violation of the 14th Amendment’s Equal Protection clause, by focusing his attention first on the statutory question of whether the dismissed candidates had received disparate treatment under Title VII. After spinning profusely, he concluded that they had, in fact, been discriminated against under TItle VII — so the Court didn’t have to cover the Equal Protection question after all.
Only Justice Scalia’s separate, concurring opinion, brought this up. Kennedy’s meanderings through the arcane tunnels of Title VII made it crystal clear, though, that the disparate impact requirements of Title VII cannot be enforced without instituting racial quotas — something the Title VII law specifically says cannot be done. It’s a self-refuting law. It cannot possibly be enforced without breaking itself.
Think about it. How is it possible to say “There are not enough from group X in this result” without a clear idea of what “enough” would be? And if one comes up with a definition of “enough” to satisfy Title VII, how is that not a quota?
Title VII law is apparently full of quandaries like this, as we see in the mishmash that Kennedy works himself into here:
Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers’voluntary compliance efforts, which are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination… And the standard appropriately constrains employers’ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation.
He’s trying to balance case law that says “an employer can break the law (e.g. discriminate in reverse) when it looks like otherwise he’ll be breaking the law in the other direction,” with other case law saying “you can’t be so restrictive as to only allow a remedy when the employer will be breaking a law otherwise.” So, somebody explain to me the difference between “a strong basis in evidence of disparate-impact liability” and “a provable, actual violation.” Isn’t there a violation when there’s a strong basis in evidence that a violation has occurred? Basically, Kennedy is reduced to saying “You can, only you can’t,” and calling that a clear rule of law.
Fortunately for Kennedy, he’s being less laughable than the dissenting opinion, in which Justice Ginsburg relies on the “The dog ate my homework” defense. I’m not kidding. Listen:
At least two candidates opposed to certification noted unequal access to study materials. Some individuals, they asserted, had the necessary books even before the syllabus was issued. Others had to invest substantial sums to purchase the materials and “wait a month and a half for some of the books because they were on back-order.” Id., at A858. These disparities, it was suggested, fell at least in part along racial lines. While many Caucasian applicants could obtain materials and assistance from relatives in the fire service, the over whelming majority of minority applicants were “first generation firefighters” without such support networks.
Wow. This is what affirmative action enforcement has come to: the highest court in the land feels it must remove the liberty of the people in order to settle a disparity between people who have to buy the books, and people who can borrow them from a relative. She also got into “Objective tests don’t really show what you know, anyway.” For real. And the minority candidates couldn’t study because their grandmothers died (ok, now I’m exaggerating). Maybe the Court will order the minority officers to spend less time at cheerleading practice, or assign them more homework. Good grief, did Ginsburg actually expect to be taken seriously when she wrote this? My kids knew better than to raise such lame excuses by the time they were 10.
To Ginsburg also fell the task of explaining how discriminating against the white candidates did not constitute a racial quota, forbidden by Title VII. Good luck with that, sez I. Here she explains the District Court’s reasoning:
Respondents were no doubt conscious of race during their decision making process, the court acknowledged, but this did not mean they had engaged in racially disparate treatment. The conclusion they had reached and the action thereupon taken were race-neutral in this sense: “[A]ll the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process to be considered for promotion.” Id., at 158. New Haven’s action, which gave no individual a preference, “was ‘simply not analogous to a quota system or a minority set-aside where candidates, on the basis of their race, are not treated uniformly.’ ” Id., at 157 (quoting Hayden, 180 F. 3d, at 50). For these and other reasons, the court also rejected petitioners’ equal protection claim.
Right. “We’re going to discard the results if it produces too many white faces. Then we’ll discard them again if the new procedure also produces too many white faces. And we’ll keep discarding them until we see enough black faces. But because every time we discard the results, we discard them for everybody (which we’ll continue doing until we see enough black faces), we’re being racially neutral.” Got that?
Scalia, meanwhile, is sitting off to the site, casually humming, and just waiting for the case that will finally allow him to point out that Title VII is completely unenforceable. You can’t remedy discrimination by forcing discrimination. He knows it. The rest probably know it, too; they can’t be impervious the onerous burden that’s been laid on all employers by this monstrosity. Not to mention that the entire Civil Rights Act constitutes a massive assault on limited federalism, forcing the national government to invade the minute decision-making of every business in the nation. This explains the angst exhibited by leftists like this one, who can’t understand why the Supreme Court is engaging in judicial activism by interfering in a strictly local matter. I had to remind him — they’re doing it because the Congress passed a law making every employer’s decisions a federal issue if it might involve discrimination. If he wants to protect limited federalism, the right way to do it is to repeal the Civil Rights Act.
Oh, my goodness, that felt good. Let me say that again: if we want to protect limited federalism, we have to repeal the Civil Rights Act, and allow state and local governments to pass their own anti-discrimination legislation — or to pass none at all, if that’s their preference. The price of genuine liberty is that social engineers have to keep their grubby hands off when a local government doesn’t do things exactly the way they’d like. Liberty, being the ability of the human soul to breathe, is actually worth that. Now, if we could just convince some “progressives” that that’s so…
I’m engaging in a mortal sin, I know. None of us are permitted to question the unassailable moral purity of the Civil Rights Act, the Most Moral Legislation in the History of the Universe. To even suggest that it might not have been necessary, or might not have been wise, is immediately to mark oneself a secret member of the Ku Klux Klan. Only, I’m not one of those. I just think self-government is a good idea, and that liberty is such a precious commodity that it’s worth enduring the temporary errors of some states in order to protect it. I don’t think there’s any question that racial parity would have arisen on its own, without Congress demolishing federalism; it might even have arisen faster. And don’t get me started on the War on Poverty…
It may be a footrace: can we get a true Title VII case in front of the Court before Obama packs the Court with radicals and changes the rules? I can’t say. My crystal ball is broken. But it would be worth the effort, with the Court conservatives alert to the possibility that TItle VII might inherently violate the 14th Amendment.