Tuesday, June 30, 2009

The Supreme Court Says No to Quotas

I was expecting this commentary, from Abigail Thernstrom:

The Supreme Court has made an elegant start at cleaning up the mess of employment discrimination law, in part by insisting on a critical point. "The purpose of Title VII is to promote hiring on the basis of job qualifications, rather than on the basis of race or color," Justice Kennedy said. The goal was to create a workplace environment free of discrimination, "where race is not a barrier to opportunity." And yet "the City made its employment decision because of race. The city rejected the test results solely because the higher scoring candidates were white."

Justice Samuel Alito's concurring opinion noted that New Haven never made any credible effort to determine whether the firefighters' promotional exam was a legitimate test of job-related skills; the decision to discard the test results was nakedly political. The tests, in fact, had been scrupulously designed and scrubbed of all possible racial bias.

Incredibly, Justice Ruth Bader Ginsburg, writing in dissent, agreed with the willfully blind conclusion of the district court -- which had reasoned that New Haven's assessment "was race-neutral" on the grounds that "all the test results were discarded, no one was promoted." The panel on the Second Circuit effectively agreed with this nonsense.

Yet another Second Circuit judge, José Cabranes, properly posed the broad constitutional question at issue: "Does the Equal Protection Clause prohibit a municipal employer from discarding examination results on the ground that 'too many' applicants of one race received high scores and in the hope that a future test would yield more high-scoring applicants of other races? Does such a practice constitute an unconstitutional racial quota or set-aside?"

Unfortunately, only Supreme Court Justice Antonin Scalia addressed this issue -- and only briefly. "The war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how -- and on what terms -- to make peace between them," he concluded.

All racial classifications are highly suspect under the 14th Amendment. The Constitution protects individuals from discrimination -- without respect to race. Distributing benefits and burdens on the basis of color was supposed to be the ugly mind-set the leaders of the civil rights movement struggled so heroically to change. We have not escaped such race-thinking yet, but this decision is an important step in the right direction.
More at the link.


Rusty Walker said...

Ginsburg also said she found this all, “Troubling…relying so heavily on pencil-and-paper exams to select firefighters is a dubious practice.” However, this statement is dubious. This wasn’t an exam to “select” a firefighter; this was an exam to be promoted into management, or a position of responsibility over other firefighters. This is where soft skills come in. So, commenting on the type of exam seems strangely off task for a Supreme Court Justice who should be interpreting the laws of the land through the constitution.

I noticed the only Hispanic firefighter on the scene, said, “This is going to help everybody.” And, about the test, “Study hard, because we won this!”

smitty1e said...

Clearly I am an idiot.
For I cannot see how a rule such as "DNA-based decision making is not allowed" is anything other than immaculate.
Such a rule would eliminate racism, sexism en passant, and a whole lot of useless gasbags who attempt to "solve problems" which exist in their own minds at the expense of others.
Oh wait: maybe I'm beginning to get it.