Well, our least democratic major political institution, the Supreme Court, ruled today in a 5-4 RICCI ET AL. v. DESTEFANO ET AL decision that white men had been the victims of racial discrimination under Title VII of the 1964 Civil Rights Act. Written by conservative Justice Anthony Kennedy, and joined in by the court’s far-right justices Roberts, Scalia, Thomas, and Alito (damaging gifts of the Ford, Reagan, and Bush administrations), the overview summary starts thus:
photo credit: roberthuffstutter

New Haven, Conn. (City), uses objective examinations to identify those firefighters best qualified for promotion. When the results of such an exam to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, a rancorous public debate ensued. Confronted with arguments both for and against certifying the test results—and threats of a lawsuit either way—the City threw out the results based on the statistical racial disparity. Petitioners, white and Hispanic firefighters who passed the exams but were denied a chance at promotions by the City’s refusal to certify the test results, sued the City and respondent officials, alleging that discarding the test results discriminated against them based on their race in violation of, inter alia, Title VII of the Civil Rights Act of 1964. . . The City’s action in discarding the tests violated Title VII.

That is, they discriminated against the white men who took the test, and would under the city’s decision have to take a new, presumably less discriminatory test. Actually, no one was discriminated against in actual promotions, as the city did not promote anyone, white, black or Latino. The city decided that because no African Americans scored high enough to be in the top promotion pool the tests needed to be replaced by better more-ability-based testing. However, the five racial conservatives on the court argue that in the record there is no “equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt.” They, of course, are wrong on the social science evidence.

In her dissent, however, Justice R. B. Ginsburg (joined by Souter, Breyer, and Stevens) not only took the unusual step of giving her dissent orally in court but argued effectively (perhaps because she knows how discrimination actually works?) against the majority decision, running rings around them. She gives a rather sociological dissent starting with this opening line:

In assessing claims of race discrimination, “context matters.” [Grutter v. Bollinger, 539 U. S. 306, 327 (2003).] In 1972, Congress extended Title VII of the Civil Rights Act of 1964 to cover public employment. At that time, municipal fire departments across the country, including New Haven’s, pervasively discriminated against minorities. The extension of Title VII to cover jobs in firefighting effected no overnight change. It took decades of persistent effort, advanced by Title VII litigation, to open firefighting posts to members of racial minorities.

That is, there is this little matter of systemic racism. The majority justices completely ignore the 346-year history of slavery and Jim Crow segregation, which has been followed by much successful foot-dragging for four decades now in regard to undoing deep structures of white privilege, but the majority want to ignore that systemic-racism reality and its continuing impact.

One powerful argument that Ginsburg makes is that New Haven’s population is now a majority of people of color, yet the city has disproportionately few fire department officers who are black and Latino. She notes other (some nearby) cities that do not depend on New Haven’s discriminatory testing and thus get a more diverse workforce:

The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes. By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served—as it was in the days of undisguised discrimination—by a fire department in which members of racial and ethnic minorities are rarely seen in command positions.

The right-wing majority leaves out other important systemic and historical facts, as she notes:

Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow. In extending Title VII to state and local government employers in 1972, Congress took note of a U. S. As of 2003, African-Americans and Hispanics constituted 30 percent and 16 percent of the City’s firefighters, respectively. In supervisory positions, however, significant disparities remain. Overall, the senior officer ranks (captain and higher) are nine percent African-American and nine percent Hispanic. Only one of the Department’s 21 fire captains is African-American.

That is, a profession that was aggressively white-controlled until well past the 1970s, and in New Haven now has great underrepresentation of blacks and Latinos in ranks like fire captain. One problem that the media has not assessed is the makeup of the exams, with 60 percent of the testing score based on the written exam, and only 40 percent on the oral exam, which got directly at leadership and ability issues. The testing showed huge disparities:

On the lieutenant exam, the pass rate for African-American candidates was about one-half the rate for Caucasian candidates; the pass rate for Hispanic candidates was even lower. … More striking still, although nearly half of the 77 lieutenant candidates were African-American or Hispanic, none would have been eligible for promotion to the eight positions then vacant. … As for the seven then-vacant captain positions, two Hispanic candidates would have been eligible, but no African-Americans.

She notes that numerous white firefighters had important social networks that helped them with the exams, including getting books and other materials quicker and cheaper than the first-generation African American and Latino firefighters. She then cites fairly extensively the testimony in the case of Dr. Christopher Hornick, an industrial psychologist with 25 years’ experience in firefighter testing. He testified that New Havens’ testing had a “relatively high adverse impact” and questioned the heavy emphasis on written over oral and related leadership exams:

We know that it’s not as valid as other procedures that exist. . . I think a person’s leadership skills, their command presence, their interpersonal skills, their management skills, their tactical skills could have been identified and evaluated in a much more appropriate way.

Ginsburg points out that the right-wing majority ignores Congress’s intent to accent both “disparate treatment” and “disparate impact” in its various civil rights laws:

Title VII’s original text, it was plain to the [1971 Griggs] Court, “proscribe[d] not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” …Only by ignoring Griggs could one maintain that intentionally disparate treatment alone was Title VII’s “original, foundational prohibition,” and disparate impact a mere afterthought. …Yet the Court today sets at odds the statute’s core directives. When an employer changes an employment practice in an effort to comply with Title VII’s disparate-impact provision, the Court reasons, it acts “because of race”— something Title VII’s disparate-treatment provision, .. generally forbids. ..This characterization of an employer’s compliance-directed action shows little attention to Congress’ design or to the Griggs line of cases Congress recognized as pathmarking. In keeping with Congress’ design, employers who reject such criteria due to reasonable doubts about their reliability can hardly be held to have engaged in discrimination “because of” race. …. Title VII, in contrast, aims to eliminate all forms of employment discrimination, unintentional as well as deliberate. Until today [Scalia's concurring opinion] . . this Court has never questioned the constitutionality of the disparate-impact component of Title VII, and for good reason. By instructing employers to avoid needlessly exclusionary selection processes, Title VII’s disparate-impact provision calls for a “race-neutral means to increase minority . . . participation”—something this Court’s equal protection precedents also encourage.

This is the heart of the case. She is siding with the 1971 Griggs case that argued that practices that are fair in form, but discriminatory in operation (that is, have a serious disparate impact) are in fact banned by the civil rights laws–especially if alternative procedures can be found, as is easily the case in this firefighters’ case. Bridgeport, Connecticut, is mentioned as having solved the problem with fairer testing for firefighters and getting the needed social-racial diversity–a 20-miles-nearby example. Why not New Haven?

The Supreme Court is an undemocratic institution provided to us in 1787 by some white male slaveholders and their merchant friends, and today it is heavily skewed in a right-wing direction and populated by a quite unrepresentative group of folks–not unlike the skew in the fire captain’s class in New Haven. These justices have here provided another good example of how contemporary racism works. The right-wing majority is operating out of the old white racial frame and pretending that we live in a country with little institutional discrimination, and no centuries-old history of slavery and Jim Crow. We have been an officially “free” country only since 1969, and all the justices on the court grew up under a very undemocratic country with official racial apartheid. Yet cases like this one operate to deny that recent apartheid reality and its continuing consequences in public and private employment settings.