If you were to accept the thinking of the 5 Supreme Court Justices who overturned the Appellate Court ruling yesterday in the so-called Ricci Case, you would think that America's open sore of two plus centuries of enslaving and discriminating against blacks had healed itself completely in the last 45 years…..and now it's majority whites who are suffering mightily under reverse discrimination.
I spent about 30 minutes yesterday reading the ruling and dissent. It's worth a read, if only to see how activist judges make their politically seasoned sausage.
Ricci ruling plus Ginsburg dissent….
What I took away from the Kennedy-written decision is that, to conservative Justices, laws can be stood on their head to serve the political purpose of defending or supporting the majority or the powerful.
Chief Justice John Roberts' previous ruling in the Lily Ledbetter case was a prime example of how the intent of a law is twisted by 5 conservative Supremes to fit the needs of the powerful.
The Ricci case is now another example.
The city of New Haven, Connecticut threw out the results of a firefighter promotion test because blacks who took the test were disparately impacted. According to what is known as Title VII of the Equal Employment Opportunity Commission, when testing of employees demonstrates a clear disparity where minorities all do poorly, in order to avoid violations of federal discrimination laws in hiring or promoting, the employer must throw out the test and find a test that won't have such a disparate impact.
In the Ricci case, the above is New Haven's defense in a nutshell. They were following the law the best they could. Even the majority ruling by Kennedy agrees that the test scores did, indeed, demonstrate disparate impact. The original District Court's ruling AND the Appellate Court ruling (which included Judge Sotomayor) both agreed with the city's explanation of why the test was thrown out. The city was trying to abide by the law, the law called for action in case of obvious disparate results in testing, New Haven's test produced disparate results, New Haven had the duty to start over.
Here's New Haven's position in the matter…..
The city held that"…they cannot be held liable under Title VII's disparate-impact provision for attempting to comply with Title VII's disparate-impact bar."
In a nutshell, heres' what the District Court found in it's previous ruling for the city…..
District Court ruled…"it is not the case that the City MUST certify a test where they cannot pinpoint its deficiency explaining its disparate impact…simply because they have not yet formulated a better selection process." "motivation to avoid making promotions based on a test with a racially disparate impact….does not, as a matter of law, constitute dicriminatory intent."
Judge Sotomayor, who will be savaged by ignorant and hate-filled conservatives over it, joined two other appellate judges agreeing with the District Court's ruling. Sotomayor voted, not in a judicial activist manner, but just the opposite. She followed the law.
However, yesterday's 5-4 decision reversed both the District and Appellate Court's findings. In Kennedy's ruling, it now seems like the 5 conservative judges believe they have godlike powers of discernment. Here's what I mean….
"Whatever the City's ultimate aim…however well intentioned or benevolent it might have seemed…the City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race based action."
The ruling turns the entire disparate impact intent on it's head. The City had results that demonstrated disparate impact of the test for blacks. The Supremes ruling says that that's not good enough and that they discriminated by even acknowledging the disparate impact…."without some other justification".
The intent of the law in question, just as the intent of the law which was turned on it's head in the Lily Ledbetter case, is clear. For a very long time white majorities, particularly in police and firefighter outfits have discriminated against blacks through the sly use of tests meant to marginalize minorities. Title VII's intent was to attenuate this discriminatory practice.
Instead, 5 Supremes agreed that the Title VII rule was really written to discriminate against majority whites….and in effect, they scrapped the whole deal.
And this is no small deal. In effect, and I don't care what some double-talking conservatives will say about this matter, public employers now will be under pressure to protect and favor majority whites. Written tests will now be put together and weighted in order to protect the employer from being accused of favoring minorities…..which was the very intent of the Title VII rule in the first place.
If nothing else, go to the link I supplied at the top and scroll down to Justice Ginsburg's scathing dissent of the ruling by those 5 activist judges.
{ 12 comments… read them below or add one }
The usual blarney from the God hating rev–keep it up !!
Thanks…I will.
First of all, the test the New Haven firefighters were given was race-neutral, and was designed by both white and black officials. That removes your specious conspiracy claim that the test was some "sly" way to discriminate against blacks. Ricci, the white firefighter who brought the lawsuit, was dyslexic. If the written test discriminated against anyone, it discriminated against him. Yet, through perseverance, he managed to prevail.
Second, Title VII itself is unconstitutional. It is a violation of equal protection under the law. As Napoleon the pig from Orwell's Animal Farm would say, it makes some pigs MORE equal than others. An honest Supreme Court would strike it down, but they won't due to political pressures.
Third, try telling someone who has been discriminated against that it's okay if his skin is a certain color. Try telling him that the rules only apply to some of us, and not others. The same thing that happened to Ricci happened to me 27 years ago. I took the Akron firefighter tests (both written and physical), and I finished 6th out of 600 who took the tests. Akron was hiring 40 firefighters. I figured I had a very good chance, but then Akron hired 40 black men instead, regardless of where they finished on the testing. I didn't even get an interview. I don't know if I was more angry that they only hired blacks to get to a quota, thereby discriminating against me, or that they wasted my time by pretending the deck wasn't already stacked against me. They even gave blacks special "tutoring" on the civil service test (they gave them the answers in advance), tutoring that wasn't available to whites.
There is no reverse discrimination. There is only discrimination. It's wrong every time in a country that claims all men are created equal. There was no judicial activism being displayed in the Ricci case, except by the four liberal dissenters.
But I'm more sympathetic to your view of the Lily Ledbetter case. The Supremes ruled in accordance with the law in that case too, but the law was poorly written. Congress changed that law, as is the purview of the legislative branch of government.
We have enough tokens in office in Washington, right now. We don't need more of them in the fire department.
Where's Sharpton and Jesse when you need them? Oh, yeah that's right, we have a "black crisis" at Neverland Ranch, and the cameras are flashing. Gotta be there to help the "at risk" Jackson family.
King is mistaken across the board here….
"That removes your specious conspiracy claim that the test was some "sly" way to discriminate against blacks."
No one suggested that the test was discriminatory. What all sides agree on, including the Court majority, is that the test produced a disparate impact.
When a test in the public sector produces obvious disparities vis-a-vis minorities, Title VII gives employers guidance. That's what New Haven was following……the law. The District and Appellate Courts based their rulings on the law, unlike the five arch conservatives on the Supreme Court.
"Second, Title VII itself is unconstitutional."
Here King just offers his opinion. Not one Justice suggested that Title VII was unconstitutional. The five conservatives are activists, no question, but even they didn't go as far as King. King says that is because the Supremes are dishonest.
King's personal story is revealing. While I understand his bitterness…..he must understand why what happened, happened. The EEOC exists by order of Congress to rectify rampant discriminatory practices by employers. Practices, which for a very long time purposely excluded blacks from employment opportunity. Firehouses were one of the worst offenders.
Title VII guidelines spell out how, even when it is not the intention of the employer, discrimination still goes on. The five Supremes have now made it easier to discriminate against blacks and in favor of majority whites, the very discrimination Title VII was meant to address.
And finally, and perhaps most importantly…..no one was discriminated against in the New Haven case. NO ONE was promoted…..therefore, no one was discriminated against. If a black firefighter had been promoted over a white firefighter who had tested higher…..then that would have been discrimination. That didn't happen. King, like the ruling by Kennedy, suggests that whites were ENTITLED to be promoted. This view is reflective of the "empathy" so often bashed when the discussion is about Judge Sotomayor.
"If a black firefighter had been promoted over a white firefighter who had tested higher…..then that would have been discrimination."
Whoa… do you actually feel that way? Before I crush your obvious hypocrisy, would you care to lay out your premises? Only on promotions? Only in the public sector? Only involving current employees?
When I make my points, I wouldn't want you to have to use the liberal standbys of "no, that's not what I meant" or "that circumstance is slightly different, and therefore has altogether different rules"
Separate thread… this little nugget: "even when it is not the intention of the employer, discrimination still goes on."
We're starting to cast a wide net with this discrimination thing, aren't we?
If the employer goes beyond not intentionally discriminating (or as we all know it… discriminating), and actually actively attempts the opposite of discrimination… they can still be discriminating.
Far reaching implications to be sure. I didn't try to buy an SUV… infact I sold my SUV back… still, I'm a dirty SUV driver.
Is it even a possibility for you that the test was fair and it just happened to result like that? Did any white firefighters ever take the test and fail?
Rev, you are making ridiculous arguments. What does "disparate impact" even mean ? All it means is that if the politically mandated racial mix isn't achieved in all cases, then that alone is evidence of bias. That is about as inane as anything I have ever heard. Is the NBA racially biased against whites because there are more black players than white ? Of course not, but under your definition of "disparate impact," the NBA is a racist organization. Absurd.
And how can testing NOT be a valid indicator of who should receive a promotion, but the color of one's skin IS a valid indicator ??? Again, inane. Skin color has nothing to do with job qualifications. I thought the Civil Rights Act settled that.
And I didn't just offer my opinion that Title VII was unconstitutional. I told you WHY it was unconstitutional. You didn't address my point.
Then this – "King, like the ruling by Kennedy, suggests that whites were ENTITLED to be promoted. This view is reflective of the "empathy" so often bashed when the discussion is about Judge Sotomayor"
WTF ???? You've gone into upside-down world again. My entire point is that nobody is ENTITLED. The New Haven firefighters EARNED their promotions by following the rules and passing the required tests. The entitlement mentality comes from YOU, who thinks others should be promoted too, not because they earned it, but just because of their skin color.
If all the New Haven firefighters who aced the promotion test were black, I wouldn't have any different opinion. Would you ?
Speaking of testing, didn't Ruth Bader Ginsburg, who pooh-poohs the value of testing in the Ricci case, get to be who she is by excelling at a whole slew of tests throughout her studies and career ? I guess, according to the Rev, we should pull Ginsurg off the court and replace her with a black woman, any black woman, due to the, you know, disparate impact. Brilliant.
It's not just the test scores. It's also the written-to-oral ratio….60%-40% in this case. Other groups have used completely different "testing" methods to avoid discriminatory effects.
"What does "disparate impact" even mean ? All it means is that if the politically mandated racial mix isn't achieved in all cases, then that alone is evidence of bias."
It's the law. Discrimination against minorities isn't over and Title VII was put in place to address that problem. You simply disagree with the law…and you said so.
P.S. Was the NBA taken over by the federal government…..and I missed it? Does the public own the NBA now? Apples and oranges.
So now, in order to not be racist, we have to use tests that aren't oral OR written?
Holy s, why make them take a test at all?
Wait a minute… is the Rev black?
No, not that it matters…but no.
The test was for promotional considerations. Testimony in the case suggested that book knowledge is not the most important criteria for leadership firefighter qualification. Many other test ratios, other than New Haven's 60% written, 40% oral interviews, have been more successful in lessening disparate impact.
I understand your viewpoint pdt….I'm simply presenting the other side of the issue.