Because of Race: Ricci v. DeStefano by Stanley Fish
Now that the Sotomayor hearings have begun, we shall probably be hearing more about Ricci v. DeStefano, the case in which the court, reversing a decision in which the justice-designate had joined, ruled that the city of New Haven could not set aside the results of a test taken by firefighters merely because those who earned promotion to lieutenant were all white. This is not quite an affirmative action case for, as Justice Ginsburg points out in dissent, the city “gave no individual a preference”; rather, it made a judgment that a result so dramatically at odds with the demographic fact of a population 60 percent Hispanic and African-American made it vulnerable to litigation based on Title VII of the Civil Rights Act of 1964. In order to protect itself against that unhappy possibility, the city opted to seek an alternative process that would not have the effect of screening out minority candidates. Justice Kennedy, writing for the majority, objected that this strategy would allow the city to experiment with a succession of tests until it found one that would produce “a more desirable racial distribution.” “Fear of litigation alone,” he declared, “cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.” The important word in Kennedy’s statement is “individuals,” because it points us to the real combatants in this case, not the city and its white firefighters, but two legal formulas — disparate treatment and disparate impact — that come from different conceptual universes; one in which a finding of fault requires proof that an individual has been unfairly treated by another individual or by a corporate entity on the basis of an interdicted category, and another in which fault can be inferred from a statistical pattern even though responsibility for that pattern has not been assigned. Neither Kennedy nor Ginsburg speaks directly to the...
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