Ricci v Destefano Overturned
As expected, Sonia Sotomayor's decision in Ricci v. DeStefano was overturned. Not even the most liberal justice on the Supreme Court defended her flippant dismissal of the relevant issues. This was something of a sea change for the court, in keeping with the mood of the country. We have had 40 years of progress since the Civil Rights Act was first passed. With election of our first black president, the issue affirmative action has largely passed the Democratic Party by. Unfortunately, Ruth Bader Ginsburg may have signalled, with her dissent, a way for employers to get around those pesky anti-discrimination stipulations in Title VII.
Title VII aimed to prevent bigotry in hiring by the use of discriminatory employment tests. "Literacy tests" were once used to prevent blacks from voting, so it's reasonable to think that employers might adopt the same tactic. So, Title VII demands that employment exams be "business related." That seems reasonable. Whatever you think of Title VII, this seems to indicate noble motives. It certainly is not a call for racial hiring quotas. In fact, explicit quotas would violate the text of Title VII, but the use of unacknowledged quotas is essentially impossible to prosecute.
This, it seems, is why Justice Ginsburg suggests alternate, business related tests. If a test with a less disparate impact, that is also business related is available, then Title VII demands that the employer using that more racially balanced test. But what if the business related criteria are entirely subjective? Then you can produce any results and any racial balance that you want. Surely, though, this was precisely the sort of thing that the Civil Rights Act was meant to avoid.
That's exactly what Ginsburg seems to suggest. "Leadership skills, command presence, and the like, 'could have been identified and evaluated in a much more appropriate way.'" It's unclear how you assign a number to such soft qualities as leadership and "command presence." Surely, you could come up with a formula, but why is that formula fair? Simply because it produces a result more pleasing to Justice Ginsburg?
This difficulty brings to mind Scalia's famous dissent in PGA Tour, Inc. v. Martin.:
It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power "[t]o regulate Commerce with foreign Nations, and among the several States," to decide What Is Golf.
As this case shows, compelling employers to devise more race neutral, but still "business related" tests, demands that the Supreme Court also decide What is a Fire Captain? What is an Accountant? What is a Stock Broker? What is a Nurse? What insight do Supreme Court Justices have into any of these questions?
Affirmative Action is an idea whose time has come and gone. Rather than allowing the threat of disparate impact suits to be used to intimidate employers into instituting discriminatory standards, the Supreme Court stood up for equal treatment. Maybe Congress can do its part, and eliminate the threat altogether by repealing the dangerous elements of Title VII.