Either tomorrow or Monday, the Supreme Court will hand down its decision in
Ricci v. DeStefano, a case that has gotten a lot of buzz because presumptive new Supreme Court Justice Sonia Sotomayor was on the panel that issued the decision below. But more important than her relatively unimportant role in the case (the opinion was an unsigned, unpublished, summary affirmance of a district court decision that was squarely within the 2nd Circuit's precedent) is the potential for the Supreme Court's conservative wing to gut Title VII, a vital tool in remedying discrimination, and one that emerged from a robust democratic process--unlike, say, the outcome of the
Ricci decision.
The Equal Protection Clause of the 14th Amendment prohibits states from intentionally discriminating on the basis of race. However, the Supreme Court held in 1976 that the Equal Protection Clause does not provide a remedy for state policies that may have discriminatory effects if those effects cannot be attributed to any intent or purpose by the state to discriminate. In other words, a facially neutral policy--say, a literacy test--does not violate the Constitution even if the results are completely skewed towards one group. But the Court, in holding that there was no constitutional cause of action for so-called "disparate impact," stated that Congress could create one. Title VII, which was already being interpreted to do exactly that, thus became the vehicle for remedying effects-based discrimination.
The primary theory behind disparate impact is simple: it is easy to create ostensibly neutral policies that quite effectively weed out members of certain racial groups, or women, as the case may be. So, under Title VII, when the disparate impact, or the weeding effect, is big enough, it can be enough to infer that the policymaker intended to discriminate against that group. The inference is left up to a factfinder--usually a jury. Title VII just creates the way for the plaintiff to get into court. The secondary theory of disparate impact is a little more abstract, and where the Supreme Court's conservatives will concentrate their fire: systemic discrimination exists, and even if it's a product of non-discriminatory intentions, policies that have a strongly disparate racial impact should be disallowed.
Either way, it was an uncontroversial matter to affirm the district court's rejection of Frank Ricci's claims in this case. He is a white firefighter who is challenging New Haven's decision to throw out the results of a test for promotion--a test that resulted in a large disparity between the white passage rate and the black passage rates. New Haven was quite rightly worried that this disparity could give rise to Title VII claims against the city. So the question before the Supreme Court is, does the disparate impact provision of Title VII--a law that has provided a remedy to victims of racial discrimination for over three decades--violate the Equal Protection Clause of the 14th Amendment?
Yes, say the conservatives, because the Constitution is colorblind, and any state policy that takes race into account violates that guarantee, even if the state is trying to prevent discrimination. Because white folks are a racial group too, under conservative logic, any policy that helps minorities at the expense of whites is discriminatory and thus unconstitutional. The extension of this is, of course, that it will become virtually impossible to develop policies to either foreclose or remedy discrimination against minorities other than just saying "don't do it."
Of course, not all policies are zero-sum: even in Ricci's case, there's no way of knowing that he wouldn't have ultimately gotten a promotion, since New Haven never got the opportunity to develop a more effects-neutral metric to replace the test it threw out. And it means that the Supreme Court, if the conservatives prevail and bar the use of race in any decision-making, will severely hamper local and state experiments in policy to figure out how to ensure equal opportunity for all groups.
The first problem with that relates to the first purpose of disparate impact--if the Supreme Court holds Title VII unconstitutional, disparate impact (even GROSS disparate impact) can't be used to show the possibility of intentional discrimination. That's great news for state employers who creatively use "neutral" policies to weed out workers on the basis of race or sex.
Problem two: It's delusional to think that systemic discrimination--discrimination at the very roots of our social structures, seeping in and poisoning the water--doesn't exist. Yes, we elected a black president. Woo. That hasn't changed the fact that it is, statistically, harder to be a black person in this country than a white one. No one (hopefully) intends that to be the state of affairs. But why should the Supreme Court step in and stop states/localities from trying to prevent it from being an effect of things we can't foresee?