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

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.