The Supreme Court's ruling in Ricci v. DeStefano that white firefighters suffered illegal discrimination when a promotional test on which they did well was thrown out because not enough blacks did well will have no effect on Sonia Sotomayor's nomination to the Supreme Court. While overturned on Ricci, she is protected by the four dissenting justices who upheld the side of the case she had taken as an appeals court judge. Sotomayor was additionally helped by Justice Ruth Bader Ginsburg's insistence on reading her dissent from the bench, as if to emphasize the legitimacy of her position and, by implication, Sotomayor's.
Ricci left Sotomayor relatively unscathed. But not affirmative action. Ricci raised the bar considerably on overt discrimination against one racial group simply to undo the unintentionally racially skewed results of otherwise fair and objective employment procedures (in this case, examinations).
It's not enough for a city to say, as did New Haven, that it was afraid of being sued by black firefighters. The evidence was irrefutable that the tests were put together in a conscientious, race-neutral way. Not only were minority firefighters over-sampled in devising the questions, but nine oral exam boards were established, each a three-person panel, each consisting of precisely one white, one black and one Hispanic. (Such is the extreme race consciousness that the Civil Rights Act, of all things, has brought upon us.) Nor will it do, as New Haven tried, to throw out a test on the pretext that another test with less racial impact might theoretically exist out there in the ether.
The defenders of the old racial order, led by Ginsburg, objected sternly, declaring that the white firefighters "had no vested right to promotion." Of course they didn't, but they did have a vested right to fairness, to not being denied promotion because of their skin color.
Of course no one has a vested right to promotion. Isn't that why they gave those tests in the first place? Isn't that why for the past, oh, 125 years we have been using objective civil service exams to allocate government jobs not on the basis of right or patronage or favoritism or racially discriminatory advantage but on the basis of merit and job-related skill?
It's the Ginsburg dissent that, in effect, grants a vested right to promotion to African Americans, simply because of their race and makes the frustration of that specious right the basis for denying promotion to white (and Hispanic) firefighters who had objectively qualified for promotion.
The major conundrum of the civil rights age remains. The 14th Amendment bans discrimination on the basis of race. But the Civil Rights Act, which bans "disparate impact" discrimination procedures (such as exams) that yield racially unbalanced results affirmatively mandates racial favoritism to undo those results. The evil day will come, writes Justice Antonin Scalia in his concurrence, when this contradiction will have to be resolved.
He is right. For decades we have been finessing the issue with a mess of compromises, euphemisms, incoherences and pretenses such as banning racial quotas but promoting racial "goals." Anyone who has ever had to make hiring or admission decisions knows that this angel-on-the-head-of-pin distinction is 95 percent a matter of appearances, gestures and lawsuit-avoiding paperwork.
And yet we have muddled our way through, permitting a large dose of intentional discrimination to ameliorate past discrimination and present inadvertent imbalances without totally abandoning the ideal of colorblindness.
The result? At the near half-century mark of the Civil Rights Act, racial minorities have seen remarkable social advancement. The younger generation is infinitely more racially tolerant and accepting. We've made great racial progress. But the fundamental unfairness that underlies the racial spoils system continues to rankle. That's what animated the Ricci case.
We're 45 years beyond passage of the Civil Rights Act. We have a black attorney general and a black president. As with every passing year we move generationally away from the era of Jim Crow, it becomes less and less justified for the government to mandate "remedial" racial discrimination. Which is why Justice Sandra Day O'Connor in one of her last opinions wrote that "the Court expects that 25 years from now, the use of racial preferences will no longer be necessary."
The import of Ricci, which raised the bar on reverse discrimination, is that it heads us once again toward that day and back to true colorblindness that was the original vision, and everlasting glory, of the civil rights movement.