Narrow (both in numbers and in reasoning) decision in Ricci
It seems Sotomayor has been reversed 5-4 by the Supreme Court in the New Haven firefighters case. It’s a sort of victory, but not much of one. The Court ruled along a 5-4 split, and it found that the respondents’ case foundered on some narrow, arcane, impossibly subjective point about the likelihood of New Haven’s exposure to liability under Title VII of the Civil rights Act if it had promoted the top scorers in the test. (New Haven’s position of course is that that avoiding such liability was its reason for ignoring the test results.) Here is the decision. It strikes me as hopelessly turgid and complex. Tell me if you can find anywhere in it an affirmation that it is wrong to deny the firefighters a promotion on the basis that they were (mostly!) white. Instead we get endless bloviations like this:
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“[T]he City could be liable for disparate impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt.”
“[R]espondents refer to testimony that a different composite-score calculation would have allowed the City to consider black candidates for then open positions, but they have produced no evidence to show that the candidate weighting actually used was indeed arbitrary, or that the different weighting would be an equally valid way to determine whether candidates are qualified for promotions.”
The Civil rights Act is simply an abomination of a law, with its internally contradictory Titles V and VII, making it practically impossible for the Court simply to say that the government is not permitted to void a person’s test scores and deny him a promotion because he is white. It also makes split 5-4 decisions the rule in cases like this rather than the exception, because it permits contradictory readings of the same exact case law, depending on the particular prejudices of the judge in question.
Most of U.S. law concerning affirmative action consists of this sort of doubletalk, giving with one paragraph what it takes away in the next (i.e., you may not engage in quotas, but you may be sued into the ground for instituting a policy that is not explicitly engineered to assist non-whites), leaving judges to invent bizarre and subjective weights and measures out of whole cloth, and making the application of the law in a particular case impossibly complicated. It also makes possible endless official lies and obfuscations about what affirmative action really is, what it does, to whom, and why. The public is as a result pathetically confused and ill-informed about what is really going on in college admissions, government hiring and promotions, and so forth. I saw a woman make the claim on a debate on CNN recently that affirmative action never awards a less-qualified person with a position over a more qualified one. This outrageous lie went completely unchallenged by the panel.
This case, in short, only affirms what we already knew about racial preferences in America—they’re here to stay, until the country is bankrupted by them, politically, intellectually, and morally.
Don’t miss the concurring opinion by Alito (with Scalia and Thomas), detailing the race hustling that went on in New Haven to ensure that, if no blacks were promotable, no one would be promoted.
Mark A. writes:
You might find reading the comments interesting. I read the first 20 or so and I think I may have seen only one comment that didn’t favor the outcome in this case.
Posted by Lawrence Auster at June 29, 2009 02:14 PM | Send