“Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race.”

Damon W. Root | June 29, 2009

That's from Justice Anthony Kennedy's majority opinion in Ricci v. Destefano. As I anticipated, Kennedy contributed the crucial swing vote, overturning the 2nd Circuit ruling joined by Supreme Court nominee Sonia Sotomayor. Given Kennedy's repeated hostility to government classifications based on group membership, this isn't a big surprise.

From today's decision:

All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race-i.e., how minority candidates had performed when compared to white candidates. As the District Court put it, the City rejected the test results because "too many whites and not enough minorities would be promoted were the lists to be certified."... Without some other justification, this express, race-based decision making violates Title VII's command that employers cannot take adverse employment actions because of an individual's race. The District Court did not adhere to this principle, however. It held that respondents' "motivation to avoid making promotions based on a test with a racially disparate impact . . . does not, as a matter of law, constitute discriminatory intent."...

But both of those statements turn upon the City's objective—avoiding disparate-impact liability—while ignoring the City's conduct in the name of reaching that objective. Whatever the City's ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. 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.

Comments

hmm|6.29.09 @ 11:12AM|#

Damage control on the Sotomayor's nomination came about 5 minutes after the announcement.

I'd like a to take a moment after working in civil service for a fair amount of time to say. FUCK YEAH SCORE ONE FOR THE WHITE GUY!!

I know, racist bastard.

sotomayor|6.29.09 @ 11:20AM|#

As a magic Latina, with the richness of my experience, I strongly oppose any sort of racism...well, um...except when I don't.

|6.29.09 @ 11:20AM|#

Without some other justification, this express, race-based decision making violates Title VII's command that employers cannot take adverse employment actions because of an individual's race. The District Court did not adhere to this principle,

Ya know, in judicialese, that's a pretty harsh slap on the lower courts.

I'll be looking forward to Sotomayor's refusal to answer any questions about this case in her confirmation hearings. Because you know she won't.

When did the retarded tradition of SCOTUS nominees refusing to answer any questions that might bear on any issue that might come before the Court come from, anyway? Aren't those exactly the questions they should be answering?

|6.29.09 @ 11:46AM|#

"When did the retarded tradition of SCOTUS nominees refusing to answer any questions that might bear on any issue that might come before the Court come from, anyway?"

It started with Lincoln.

|6.29.09 @ 11:53AM|#

It started with Lincoln.

I didn't know Lincoln had been a SCOTUS nominee.

|6.29.09 @ 12:29PM|#

Wouldn't Sotomayor be well-served to state that she obviously agrees with the dissent. 4 liberal justices voted with her, one of whom she'll replace. Her Latina experiences and a woman's gracious empathy guided her decision and she stands by it, or some such bullshit.

ChrisO|6.29.09 @ 12:35PM|#

Despite Sotomayor being on the wrong side of this decision and, well, probably many others too, it's not like derailing her nomination would result in a libertarian-leaning replacement. She's probably about the best we could expect out of this administration.

|6.29.09 @ 12:35PM|#

I'd be interested to hear what the dissent said. Anyone see it? I'd like to see how many one-liners we can pull from it.

JB|6.29.09 @ 1:27PM|#

'As a retarded latina, I say fuck white people.'

Methinks her nomination has already had bad repercussions for latinas.

|6.29.09 @ 2:00PM|#

No, Lincoln nominated somebody and when asked if he'd go before the Senate to answer questions, Lincoln answered something to the effect of "He will go and sit before the Senate and if he answers their questions, we should hold him in contempt for it."

It was a "nominate him or don't, but he doesn't have to do a damn thing for you" kinda answer.

He got nominated, if I recall correctly.

creech|6.29.09 @ 4:12PM|#

The quotation refers to Lincoln's nomination of Salmon Chase for Chief Justice (who was confirmed). However, it is one of those Lincoln "quotations" that is is doubtful.
Given the times, given how previous CJ Taney had ruled in Scott, given it was during the Civil War when the Union was at stake, it is very doubtful Lincoln would have nominated an unknown quantity and asked the Senators to
confirm him without finding out exactly where he stood.

Mike|6.29.09 @ 4:25PM|#

""When did the retarded tradition of SCOTUS nominees refusing to answer any questions that might bear on any issue that might come before the Court come from, anyway?"

You can thank the people who voted against Robert Bork for that. Bork was honest, and was shot down. Now all nominees have to be as stealthy as possible to make sure they don't offend anyone.

Brett Stevens|6.29.09 @ 4:51PM|#

No one's looking to the road ahead, I see.

What are historical examples of successful diverse societies?

Seems to be a short or empty list.

So we're laying more seeds of our own doom, in the name of good intentions?

Priceless.

The Angry Optimist|6.29.09 @ 6:53PM|#

Brett - the United States is already an example of just that. Of course, you're not defining diversity very well, for reasons I suspect are deliberate.

wayne|6.29.09 @ 7:09PM|#

TAO,

You make a good point about "diversity". How do you define it? How do you think it should be defined?

This is not a trick question. Obviously, the working definition in the law is that diversity is defined as a larger percentage of minorities in a given sector, or its corollary, fewer white men. There seems to be no upper limit to "larger", e.g. the workforce in HUD.

I would define diversity more along the lines of diversity of thought; for example, I think the Supreme Court would be a much better decision-making group if it was not made up of 100% Ivy League college graduates. I would like to see the next nine nominees be graduates of state universities with no preference given to any race or gender. Such a group would certainly better represent the average American.