Underlying Judge Sonia Sotomayor's most controversial decision -- her vote last year against 18 white firefighters (including one Hispanic) who were denied promotions on account of their race -- is a painful conflict between two civil-rights principles that were once seen as complementary.
The first principle is the anti-discrimination ideal embodied by the original 1964 Civil Rights Act and by Dr. Martin Luther King Jr.'s dream of a nation where people "will not be judged by the color of their skin but by the content of their character." That ideal rejects intentional discrimination against -- or preferences for -- individuals based on race, creed, color, national origin, or sex, and calls instead for allocating opportunities based on individual ability and effort.
The second principle redefines "discrimination" to include the use by employers of any merit-based tests or other objective criteria for hiring or promotion that have a "disparate impact" on different ethnic groups -- as almost all objective tests have.
Even employers who intend no discrimination can be held liable to ethnic groups that fare badly on their tests unless the employers can prove to the satisfaction of often-skeptical courts that the tests (or other selection criteria) are required by "business necessity."
The surest way for employers to avoid such disparate-impact liability has been to discard the anti-discrimination principle and allocate jobs and promotions in part on the basis of ethnicity, as detailed below.
In the firefighters case--on which the Supreme Court heard arguments in April -- the city of New Haven, Conn., has defended its denial of promotions to the white firefighters, who had the highest scores on a test of job-related skills, as necessary to avoid a disparate-impact lawsuit by blacks. None of the African-Americans did well enough on the test to qualify for promotion.
Two Hispanic-American judges on the U.S. Court of Appeals for the 2nd Circuit -- both appointed by President Clinton -- took dramatically contrasting positions last year on the white firefighters' anti-discrimination lawsuit against the city.
A three-judge panel including Sotomayor upheld, and adopted
as its own, a federal District judge's ruling against the white firefighters. The panel set aside the anti-discrimination principle on the grounds that New Haven feared (among other things) that promoting the whites "would subject the city to public criticism" and would probably result in a disparate-impact lawsuit by blacks "that, for political reasons, the city did not want to defend."
So much for the anti-discrimination principle -- not to mention President Obama's professed desire to find judges with "empathy" for, among others, wronged workers who sue employers and for people who invoke their "individual rights" against governments.
The other Clinton-appointed Hispanic judge, Jose Cabranes, was so disturbed when he learned of the panel's curiously "perfunctory disposition" that he sought to have it reconsidered by the full 2nd Circuit. He lost by a 7-6 vote. In a dissent for the six, Cabranes suggested that the case might involve "an unconstitutional racial quota or set-aside." He added:
"At its core, this case presents a straightforward question:
May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?"
Back in 1971, when the Supreme Court first grafted disparate-impact rules onto the 1964 Civil Rights Act, they seemed to complement the anti-discrimination ideal.
The problems addressed by the 1971 decision were the difficulty of proving intent to discriminate and the fact that many companies -- especially those employing blue-collar workers without college educations -- were evading the 1964 act's ban on overt discrimination by using written tests designed less to measure job-related skills than to screen out blacks.
The Court's response was to rule that any test with a "disparate impact" on blacks -- meaning that disproportionate numbers had low scores -- was presumed to be invalid unless required by "business necessity." Lack of intent to discriminate was no defense to such a disparate-impact suit. This remains the law today, although the Court and Congress (in 1991) have tinkered with the detailed rules.
Over the decades since 1971, fewer and fewer employers have engaged in intentional racial discrimination against blacks or Hispanics. Likewise, the objective tests used by employers -- including the New Haven fire department's written and oral promotional exams -- have been more and more carefully designed to be valid measures of job-related skills.
Two things have remained constant, however. First, blacks and, to a lesser extent, Hispanics, score markedly lower on average than whites and Asians on objective tests of job-related skills -- whether for firefighter, police officer, manufacturing worker, or other blue-collar jobs.
This is what one might expect in a nation still plagued by vastly unequal educational opportunities and academic performance. Studies show, for example, that on average, the math and reading levels of black 17-year-olds are no higher than those of whites and Asians in the eighth grade. And the gap is not closing.
The second constant is the reluctance of employers either to risk the expense and bad publicity of a disparate-impact suit -- no matter how unwarranted -- or to gamble on their ability to prove job-relatedness and business necessity to the satisfaction of whichever judge they may draw.
Some judges seem to indulge the elitist fantasy that the knowledge measured by objective tests has little to do with non-college-educated workers' ability to perform well in positions such as fire lieutenant. Other judges stress -- with more validity -- that objective tests cannot measure such subjective assets as leadership ability.
For these reasons, fear of disparate-impact suits has prompted many employers either to do away with objective tests entirely or to use racial preferences insofar as necessary to hire and promote more low-scoring minorities, or both.
New Haven's decision not to promote the high-scoring white firefighters was a variation on this theme. Local civil service rules -- designed to avoid the awarding of promotions based on personal or political favoritism -- would not allow the city to promote low-scoring blacks. So the city decided not to promote the high-scoring whites either, even at the cost of leaving many officer positions vacant for years.
The disparate-impact dynamic has the benefit of expanding opportunities for preferred minorities. But it also has great costs. It is unjust to high-scoring white and Asian workers; it has greatly eroded the anti-discrimination principle; and it downgrades incentives for students and workers to study and learn -- both in school and in rigorous test-preparation courses such as the one that helped some New Haven firefighters improve their skills and do well on the test.
That is a most unhealthy message to be sending to blue-collar families at a time when America's competitiveness is being crippled by the inferior educations of many of our high school graduates compared with those in other developed countries.
Professed fear of disparate-impact lawsuits can also provide excuses for government employers that want to discriminate against white workers. Why would they want to do that? The main reason is identity politics -- for which, I argued in my
Indeed, the evidence in the New Haven case strongly suggests that racial politics was the city's main reason for snatching away the white firefighters' expected promotions, amid intense political pressure to give blacks a share.
Even the Obama Justice Department found fault, in a friend-of-the-court brief, with the failure of Sotomayor and her colleagues to question whether the city's professed concern about disparate-impact liability "may be a pretext" for racial politics. But the brief also argued that the city should prevail in any further proceedings if it can show a reasonable basis for fearing that it might lose a disparate-impact suit.
In any event, such reverse racial discrimination will persist -- and perhaps become ever more pervasive -- for as long as employers fear disparate-impact liability more than they fear liability for intentional discrimination against whites and Asians.
The five more conservative Supreme Court justices, who value the anti-discrimination principle more than their liberal colleagues do, are well aware of this. They seem likely to reverse the decision by Sotomayor and her panel colleagues in the New Haven case and rule for the high-scoring white firefighters. In the process, they may also make it easier for employers who intend no discrimination to fend off disparate-impact lawsuits in the future, the better to reduce the incentives for reverse discrimination against whites and Asians.
But in the long run, soon-to-be-Justice Sotomayor and other judicial nominees chosen by Obama and his successors will be the people who determine whether the anti-discrimination principle and Dr. King's dream will live on, or whether they will be swept into the dustbin of history.
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