James Taranto: "The New 'Separate but Equal'"

From James Taranto, "The New 'Separate but Equal': Justice Ginsburg, Judge Sotomayor and "Sympathy" vs. "Empathy":

On the surface, it seems like a blatant case of unlawful discrimination. The fire department in New Haven, Conn., administered an exam for firemen seeking promotions. "Many firefighters studied for months, at considerable personal and financial cost," as Justice Anthony Kennedy recounts on behalf of the Supreme Court's majority in Ricci v. DeStefano .

When the results came out, the city decided to deny promotions to the men who had earned them--because they were of the wrong race. Eighteen of them sued. The trial court summarily rejected their claim, and the Second U.S. Circuit Court of Appeals--with La Jueza Empática, Judge Sonia Sotomayor, casting the deciding vote--upheld the decision. This morning the Supreme Court, on a 5-4 vote, overruled Sotomayor and her colleagues and held that New Haven had indeed violated the law by discriminating against the plaintiffs.

How in the world could the lower courts, now joined by Justices Ruth Bader Ginsburg, John Paul Stevens, David Souter and Stephen Breyer, have countenanced this blatant discrimination? They accepted the New Haven officials' claim that they had to discriminate in order to avoid running afoul of antidiscrimination laws.

As Justice Kennedy explains in the majority ruling, federal civil rights laws prohibit two different types of discrimination: "disparate treatment" and "disparate impact." The plaintiffs in Ricci were plainly the victims of disparate treatment, which is prohibited by the plain language of the 1964 Civil Rights Act:

It makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."

In the 1971 case of Griggs v. Duke Power Co., however, the Supreme Court introduced the concept of "disparate impact." An employer that uses "testing or measuring procedures" on which minorities do not perform as well as whites has the burden of proving that its method of evaluation is "a reasonable measure of job performance." The Civil Rights Act of 1991 codified this principle into statutory law.

New Haven officials argued that they would risk a disparate-impact suit if they did not discriminate against the white firemen. The court rejected this argument:

Before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.

This is a very modest holding. It leaves the door open for permitting "intentional discrimination" in cases where there is "a strong basis in evidence" for disparate-impact liability. By framing the question as a conflict between statutory provisions, the court avoids addressing the question of whether New Haven's actions are constitutional, as Justice Antonin Scalia notes in a lone concurring opinion (citations omitted):

[The] resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution's guarantee of equal protection? . . .

The difficulty is this: Whether or not Title VII's disparate-treatment provisions forbid "remedial" race-based actions when a disparate-impact violation would not otherwise result--the question resolved by the Court today--it is clear that Title VII not only permits but affirmatively requires such actions when a disparate-impact violation would otherwise result. But if the Federal Government is prohibited from discriminating on the basis of race, then surely it is also prohibited from enacting laws mandating that third parties—e.g., employers, whether private, State, or municipal--discriminate on the basis of race. . . .

The war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how--and on what terms--to make peace between them.

Scalia's colleagues seem less than eager to join that "war," however: No other justice joined his concurrence ...

More at the link.