While I think this is a victory for those of us on the camp of common sense, one does have to look at the fine print of this decision.
At the heart of the issue are a couple of questions: What determines discriminitory? What makes, in this instance, one firefighter more able to serve as captain than another? Certainly the White and Hispanic firefighters were under the impression that this test was one way in determining this outcome but in the original decision, the lower courts ruled in opposition.
Soon to be Supreme Court Justice Sonia Sotomayor said in the original lower court decision that the testing processed used was discriminatory because no blacks passed the test:
"We are not unsympathetic to the plaintiffs' expression of frustration," but the firefighters who filed the case don't have a "viable" claim under the law, the opinion said. (Sonia Sotomayor in her original ruling of this case)
But in a 5-4 ruling, Justice Kennedy said that the city (New Haven, CT) violated Title VII of the 1964 Civil Rights Act, stating in his majority that 'The city rejected the test results solely because the higher scoring candidates were white'.
As Justice Scalia wrote in his concurrence, that:
...the disparate impact standards "place a racial thumb on
the scales, often requiring employers to evaluate the racial outcomes of their
policies, and to make decisions based on (because of) those racial
outcomes"
Ginsberg, in her dissent, noted that she agreed with the lower courts ruling that the treatment of white firefighters and the dismissal of the standard test was fair, even though the only reason they threw out the outcomes was purely a racial decision...
I would like to hear your thoughts on this issue.
Grace & Peace.
PLW
It's certainly a headline worthy of a spot on the WSJ editorial pages.
ReplyDeleteI don't have a problem with the ruling as such; having not read through all the briefs I can't comment beyond the little bits and pieces I've seen on the TV news.
But to the bigger questions--what is discrimination, when is it allowed, how, etc.--those are still tough.
Bakke was right in the late 60's to challenge the UC Regents for reverse discrimination. But let's put the shoe on the other foot--if an exam was passed by all or most blacks, and not by any or a very few whites, would that not at least question the nature of the exam from an ethnic or cultural perspective? Perhaps upon review there would be found no such discrimination, but rather only a conclusion suggestive of picking the dumbest white people on the planet. And to that end I would still have no problem.
I guess it's the "just because" part of this that is of concern. Just because whites passed and blacks didn't (to whatever degree) doesn't mean it was discriminatory. But I see nothing in the WSJ editoral writer's comments about what is truly of importance--what was on the test? Instead, he focuses on "Sotomayor's ruling", which it was not. It was the 2nd Circuit's ruling, of which she is a part. And of course, a lower court's ruling (or paucity thereof) before it got to the appelate level.
I somehow don't think the term "common sense" applies until we can determine what was on the test that made it (or didn't make it) discriminatory.
As such, assuming there was nothing discriminatory, I have no problem with the ruling.
Personally, I thought the 4th amendment- related ruling regarding a young girl's strip search at school was of more interest and importance and was happy to see the court rule (at least in effect) in her favor.
After having read a good portion of the Court's slip opinions--majority, concurring, and dissenting--I must revise my response of yesterday, and indeed believe the Court's dissenting opinion to be valid.
ReplyDeleteWhile there are bothersome aspects of this case on both sides--both sides, to a some degree or other suffered discrimination--I think the City's efforts to avoid a discrimination suit under Title VII's disparate impact clause was well-informed.
If I am to understand this aspect of the law, which Congress saw to amend to include this provision in 1972, employers can still prevail if they can show that the disparate impact is job-necessitated, and employees can only counter that by showing that viable (testing) alternatives exist.
From what I've read, it seems that there was no consideration of viable alternatives whatsoever.
Isn't it facinating that Scalia, J., has claimed for years that a great deal of latitude should be given to the legislative body when it comes to resolving these sorts of issues, but when he doesn't like a Congressional remedy, he puts that view aside ?
The most ridiculous (and surprising statement) contained in any of the opinions was that of Kennedy, J., that this was simply a case of a city discriminating against white firefighters. All evidence to the contrary.
And incidentally, your statement that no blacks passed the exam is factually incorrect.
My apologies to my readers - I misunderstood the information from the original report that there were no blacks in the top quartile - there were some that passed the test. Thank you Anonymous- I owe you one
ReplyDeleteNo--I think the balance is still tipped way in your favor. It is I who owe.
ReplyDeleteUnrelated, there was (to my way of thinking) an excellent documentary about the First Amendment on HBO last night. It examined a lot of past cases--including Tinker V. Des Moines, one of my favorites--and the history and importance of free speech generally. It was called "Shouting Fire: Stories from the Edge of Free Speech". If you don't like it, I will pay you for your time of having watched it...
Spread the word. It's that good. Next showing is 4 pm ET this Sunday.