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A Convenient Untruth
This entry was posted on 7/30/2009 8:57 PM and is filed under Added Articles.
I The Strange Case of Ricci, Sotomayor and the Supreme Court
During Judge Sonia Sotomayor's confirmation hearings one case was frequently referenced. This was Ricci vs. DeStefano, where the city of New Haven vitiated the results of a test they had given to the firefighters of their town to determine those most qualified for promotion. The city did this because of an anomaly in the results which seemed to show, relative to similar tests given around the country, a structural bias in the test against minority firefighters.
This put New Haven in a prima facie case of disparate impact liability under Title VII's disparate impact provision. In fear of getting sued the city abrogated the test results and considered how to reform their testing procedure to make it more fair in the future. In the meantime they were sued by those firefighters, predominantly white, who had done well on the first test and wished its results to stand.
Judge Sotomayor, as part of three judge panel, unremarkably and fully in line with existing case law, when the case came before the second circuit, ruled in favor of New Haven and against the protesting firefighters. The Supreme Court overruled her decision 5 to 4.
Even though the New Haven city government found that the test was flawed in a way that would not stand even rudimentary public scrutiny the Supreme Court looked on from afar and deemed the test was perfectly fair and fine with them. They said the city's fears of being sued under Title VII were misplaced and exaggerated and thereby implied ulterior racial motivations for New Haven's actions. They chose to meddle with the city's ability to rewrite the test more fairly and insisted that it be allowed to remain in force even if it were flawed merely because it had once been given. They did this, curiously enough, on civil rights grounds, vigorously protecting the rights of the majority to benefit from an exam biased in their favor.
The oddity and questionable rationale for this decision only comes completely clear when you ask yourself if the opposite situation had existed. In other words, if the test had primarily benefited minority applicants to the exclusion of whites and New Haven had discredited its results would the conservative members of the Court have intervened to insist that the rights of the minority recipients of the test's biases, even when thought to have been fraudulently obtained, must be allowed to stand? Probably not.
In this white tinged reading of the law then whites, as the majority, are supposed to do better on tests than minorities and if they don't the results must be thrown out and if they do the results must be kept. Ironically each of these situations, though completely diametric, would be vehemently justified by those against affirmative action on the same grounds - to protest against some alleged exercise of "reverse discrimination." They use this term as if such a thing had ever been proven to be widespread, or have made any known statistical inroads in our society, such as resulting in higher pay or better jobs or a vastly improved standard of living which elevated the status of minorities unduly over the majority of whites.
Even though such a thing has never occurred conservative elements in this country have determined that reverse discrimination is a pernicious trend which is every bit as bad or worse than the actual,well documented prejudice affirmative action was designed to help counteract. Real, demonstrable discrimination against blacks and minorities ranges long and deep and wide and runs through our history like a river with many tributaries. Evidence of substantive reverse discrimination is shallow, incidental and as hard to find as a spring in the desert.
Yet given a choice it seems the conservative members of the Court have adopted the nebulous, hysterical reasoning of the voices of conservative reaction. Because in the case of the New Haven firefighters they have conspicuously chosen to accept on its face the right of the majority to profit from discrimination of the most direct and old fashioned kind - nothing reverse about it. Meanwhile in their opinion those who are victims of ordinary discrimination must continue to suffer its results without further recourse to or redress from the courts.
In this way the alleged, the incidental and the anecdotal is thought to more or less equate to long established, still evident, well documented and thoroughly insidious examples of actual discrimination that persist to this day. Instead they suggest that the only modestly successful medicine has become every bit as harmful as the original disease it was designed to cure.
This sleight of hand enables the Court, even while eviscerating affirmative action, do so while affirming its necessity - in the opposite direction. While pretending they are rectifying a great mythological wrong which doesn't exist, they are perpetuating an old one which does. They deny equality in the name of equality and gut affirmative action for minorities while affirming it for the majority - as if equality for both at once were somehow an impossibility. They do this while pretending to protect American (at least white American) rights which have never been remotely under threat from affirmative action to start with. So even though one patient is still quite sickly and the other quite robust, the ones playing doctor on the Court have decided that medical aid must quickly be transferred from the sick to the well.
Therefore, for the Court to accept without equivocation the claims of extremists who cry "reverse discrimination" as factual when they say that the rights of whites being discriminated against by minorities (as if they had ever actually acquired the power and opportunity to do this) is every bit the equivalent and some instances today even more of a threat to our freedoms than hundreds of years of historical crime and prejudice which have benefited them without quibble, complaint or rectification, is questionable to say the least. This theory lacks historical perspective and basic common sense as well as any quantitative proof to support their conclusions.
Equality under the law is a very good thing and no one would have any problem with adhering to it if there was any real evidence that it had been achieved. Nevertheless, in the Ricci case, the Court chose to make a rough guesstimate with the law of the land, overturning existing, long standing, well thought through, weighty and momentous precedents and procedures with an off-handed, bias-ridden ideological screed in legal clothing with no corroborating information or evidence whatsoever to back up their true unwritten intention - that of affirming that affirmative action is no longer needed and if it had ever been needed it should still have never been written into law.
II
Unfortunately the case they chose as the vehicle to drive their argument was very poorly chosen. The Ricci case was not a "reverse discrimination" case in any normal understanding of the term because the majority takers of the test suffered no harm and the minority takers of this test received absolutely no benefit from the actions of the city of New Haven. On the face of it, abrogating this test because of its own perceived biases was a perfectly neutral act.
Remember this is a case of affirmative action in only the most tangential way. Affirmative action only comes into play as a possible lawsuit, not an actual one. The city thought they might be out of compliance with Article VII, but no authority ever confirmed they were. They thought they could be liable to suit but were never sued on grounds of affirmative action. The city's decision was an action in anticipation of running afoul of affirmative action laws, not an actual instance of being penalized under affirmative action laws. Nor was this a quota system in any respect. Nor has there ever been, now or projected into the future, a test designed by the city to favor blacks or minorities. This is all about a test whose results, according to those who have reviewed it, were actually biased against minorities. How throwing it out disadvantages whites is a mystery unless you think that whites deserve and need a head start to succeed at tests.
Nor did this decision to scrap the test results unfairly advantage minorities. After all, to keep a prejudice from being enforced is not the same thing as reverse prejudice. Taking away an unfair advantage against you is not the same as providing an unfair advantage to you. In the same way that if the police keep someone from stealing $100 dollars from you it is not the same as being given $100 dollars free by the police. You cannot count as an especial benefit having something returned to you which was yours by right from the start. Equality is a right not a gift and certainly could not possibly represent an injustice to another merely because it is afforded to you. Therefore no advantage has been given to the minority takers of the test except to have a potential injustice being done to them undone.
Similarly, no disadvantage comes to the successful takers of the test by removing an edge they were unfairly given. No one has ever said they are suddenly ineligible for the promotions they seek, only that they may later have to recertify their worthiness by taking a exam which is a fairer test of their skills and knowledge. This can hardly be called prejudicial. By definition, leveling a playing field does not mean imbalancing it in the other direction. A fair test, by design, benefits or disadvantages no one. Making certain the playing field is perfectly level, which was all New Haven is accused of doing, if properly done cannot possibly be the same as reverse discrimination.
As for Mr. Ricci, he was inconvenienced to be sure, but he has not been disadvantaged. To simply right a perceived wrong by vitiating the results of a test judged to be flawed cannot properly be thought of as a wrong done to Mr. Ricci any more than it may be considered a singular advantage to those discriminated against to simply remove the grounds of the alleged discrimination. Even though he did not cause the discrimination he cannot properly profit from it without becoming, like a receiver of stolen goods, a party after the fact to the discriminatory process.
On the contrary, it is a peculiar notion to suggest that the decision to throw out a test which was deemed to have been ineffective and unfair, for whatever reason, to a sizable number of the people who took it could be called discriminatory to anyone. Only letting the test results stand when a large number of people who have studied it have deemed it unfair, constitutes discrimination. In this case, self-evidently, if the test bore undue biases it would become useless to is own purpose, namely finding the best candidates for promotion for the fire department of New Haven.
Remarkably then the Supreme Court didn't just strike a blow against affirmative action and a blow in favor of active, discernible discrimination but also a blow in favor of bad testing. Or at the least in favor of tests that didn't work in the way they were supposed to, to identify the best candidates for promotion in the New Haven fire department. The Supreme Court decided that New Haven didn't have the right or wisdom to control its own promotions.
By implication they also came out staunchly in favor of racial prejudice by saying that wherever it exists or is suspected of existing, it must be allowed to remain so as not to discommode the ones profiting from it. So where New Haven was trying to do the right things, often difficult and rare in our society today, the Court intervened to banish their good faith attempt to oblivion.
III
Although according to the experts the test was not irrefutably biased, there were considerable anomalies to it and enough consensual grounds to find that it was. Even if you didn't happen to believe this or believed that another test would reveal essentially the same results, it is not a bad thing for a city government, in an excess of caution or abundance of managerial zeal, to cast around for a better test to give its firefighters. It is very difficult to find anything wrong with this impulse.
Yet the Court seems as certain that the first test must be good as they are sure that any other method of choosing candidates for promotion the city may decide to employ will be prejudiced. They cannot make this assumption. This seems not to be a prescience the Court could possess, self-deifed though some may believe themselves to be. There is no evidence that they spent any real time trying to discern the relative quality of the test in question. Though there were mixed evaluations by the experts consulted by the city, no one mentioned by the Court ever said that the test already administered was ideal. All found room for significant improvement. It was on this basis that the city fathers of New Haven were operating with an eye to reform. The Court discounted all of this.
But if you cast an eye at the test you find that the anomalous results were only telltale symptoms of a larger disease.
To begin with, according to the author of the test, he stated that it was through interviews, consultations and conversations with the New Haven firefighters to determine their procedures and areas of concern that greatly informed the structure of the test. However, because the department is largely white these questions would necessarily disproportionately embody the concerns, biases and interests and reflect the make-up of the department as it presently exists and replicate these in its emphasis. This is not so much a bias on its face, but information which raises red flags in the background which speaks to a certain potentiality of thoughtless institutional bias behind the scenes.
In addition, as Justice Ginsberg points out in her dissent , not everyone had equal and timely access to the materials needed to sturdy properly and fully prepare for the exam. Some of these materials needed for study were expensive, at an average of $500 per firefighter that had to be spent in preparation for the test. Mr. Ricci's own estimate, designed to elicit sympathy but actually proving unfair access and unequal advantage, was that he invested "1,000 in preparation for the exam. Whites, as the long dominant group in the department would naturally have more collateral support, better contacts and more role models of success to emulate in a testing environment that was not perfectly sterilized from outside influence and internal advantages.
These issues were only given glancing notice by the Court but taken together are severely exclusionary. Money as a means to advancement is the structural equivalent of a poll tax levied on promotions. Not everyone has that sort of money to spend on a speculation, particularly if you have any sense that the playing field may not be absolutely fair. Taken together, poor expectation and significant cost seem almost perfectly designed to serve as a self limiting deterrent to wide and whole hearted participation by those who have historically been passed over for similar promotions in the past. On its face, to have money and connections as a constituent part of the equation necessary for promotion in the New Haven Fire Department thoroughly corrupts the entire process. And that is prior to even taking the test itself. There has to be a better, fairer process available to New Haven than this to determine those best fit for promotion in their fire department.
Yet the Court dismisses out of hand the idea that New Haven had a legitimate cause to have a concern of legal vulnerability. This is very questionable determination.
But on a deeper level it really doesn't matter if the test was unfair or not - and apparently the Court has no idea one way or the other. Because sometimes equality, like quality itself and like democracy always, is an inconvenient, messy and tumultuous thing. It's the long way around to arrive at the right place, which could have never been reached from any other direction. This is what affirmative action is. Make no mistake about it, the conservatives on the Court were not striking a blow for individual freedom, Mr. Ricci's or anyone else's. They didn't really say that the test given the New Haven was fair and good. They merely said, "So what? Who cares? So what if it was patently unfair? So what if it was? The Court said that the fairness of the test should not even be assessed.
Prejudice is a convenient, easy path, the shortest distance between two obvious points in history and time. Why bother with equality and fairness when they are so difficult to determine and hard to achieve? Why bother with a messy pursuit of excellence when mediocrity will do and is so excruciatingly painless and readily available to all? Why try for the best test, when we can settle for prejudice and for a test that will ensure the leadership of the department keeps the same ethnic makeup it has always had even as the rest of the world changes around it?
In fact, if the first test proved to be fair then the same individuals who excelled at it would also undoubtedly excel at a second exam to come. If the first test was flawed, and a second test proved it by elevating some applicants and lowering the scores of others, while it is true that some applicants may lost ground, the city and citizens of New Haven would gain and be far better off by ensuring that only the most meritorious firefighters would be promoted. That after all is precisely the reason for giving the test in the first place.
Naturally, it's also possible that the second method of awarding promotions would be even more flawed that the first in finding the best possible candidates for promotion. But there is no reason to think that this would be the case. The entire process has been open and well watched and easily observed by community watchdogs. With the lone exception of Justice Samuel Alito ( whose concurring opinion we will discuss later) no one has suggested any bad faith or nefarious intentions by anyone involved.
Other than this, It is hard to understand why the Court thought it necessary to intervene in an entirely local issue half way through its process in order to try to dictate winners and losers before the process was completely finished and any actual wrong doing was actually identified. The time to protest would have been once some tangible harm fell upon Mr. Ricci. If others less qualified in his place were promoted over him, for instance, or a second test was administered which turned out to be as biased as the first test in the other direction this would be the time for the Courts to get involved.
But to do what the Court has done in Ricci is like the governing authority of a basketball league stepping in to confiscate the game ball early in the second overtime because it just didn't like the trend the game was taking for its preferred team. Or stopping an electoral recount before it could be concluded because it was afraid its favored candidate might lose if all the votes were actually to be counted fairly.
The Ricci decision might come be known for the establishment of a new legal doctrine, "preemptive alleviation of an injustice yet to occur." Or so that some peoples' justice may not be temporarily delayed others' must be permanently denied. This is irrational and the total lack of proportionality of concern in elevating the white firefighters temporary distress and discomfort over the total lack of regard for the possibility of the minority firefighters potentially erroneous permanent disqualification from advancement - takes one's breath away. Justice delayed is not as bad as justice forever denied. The court is saying that to delay justice in the case of the promotion to Mr. Ricci is worse than justice forever denied via a prejudicially designed exam to the minorities in this case. This represents a Court sanctioned structural and ethical imbalance of major proportions.
The facts of this case, in fact, show no wrong doing anywhere. The test, though perhaps flawed, was not intended to be. The abrogation of its results in order to design a better exam materially disadvantaged no one. The existing status of the firefighters remained in place. No one was demoted, no one was replaced. No one has been unilaterally denied appointment or appointed to anything.
In the New Haven case there is very little tangible evidence anywhere to show that anyone was doing anything other than searching for the best legal option to find the best possible test to determine the best possible people for promotion to leadership positions in their fire department. All we have there was a slight bureaucratic delay common to any public process. Yet not only was a federal case made of it, but Justice Alito in his opinion thought he saw highly sinister goings on.
As if aware that the Court's desire to intervene in this case of good intentions all around was too thin a reed to land such a freighted albatross of heavy legal intention on, he tried to show bias by the mayor and one of the mayor's friends and associates, a "community activist" by the name of Rev. Boise Kimber.
Justice Alito alleged that these two had a prior opinion that the test was biased. He implies that this opinion not only informed their judgment, but that this opinion skewed the entire process and unduly influenced the board that actually made the decision to vacate the test results. This even though he knew of nor made any attempt to show that any untoward influenced was directed by these two men on the decision the independent Civil Service Board eventually made.
But since they neither instigated the questions about the test nor made the final decision regarding whether its results should be kept, it is hard to see from the available where their influence would have been either decisive or untoward. Justice Alito would seem to have it that having an opinion and vigorously expressing it publicly is prima facie evidence of wrong doing. (He also seems to find great fault with anyone who happens to be a community activist too, but that's a slightly different issue). Yet most people consider having such opinions necessary to the making up of one's mind, even while the facts are still being presented, understanding that opinions may change with changing information. An opinion, in fact, is not illegal to possess and is, in the common parlance, a thing "everyone is entitled to have one of".
If to have an opinion, even one that is politically motivated as Justice Alito infers, was tantamount to wrongdoing or de facto evidence of applying undo influence, then the fact that Justices Thomas and Scalia have well known opinions against any form of affirmative action whatsoever, would mean that Justice Alito would necessarily be unable to render fair judgment in an affirmative action case without being fatally influenced by them. Perhaps in Don Rumsfeld's ominous and eerie phrase, Justice Alito "knows more than he knows he knows" about such matters.
In any case it seems rather bad form to scurrilously accuse someone of racism in order to use them as scapegoats in a case which is being consciously used to limit our ability to fight racism.
IV
So why in the world did the Supreme Court take this case anyway? It's hard to imagine a more legally undistinguished, maladroit, almost incoherent decision than this. After all, this is an instance of extraordinary judicial activism undertaken in the name of the theory of judicial restraint. It's a case which allows a racial injustice to stand while wrapping itself in the guise of rectifying a myth of racial injustice (reverse discrimination) which is not even remotely applicable in the case they are employing to do it. All the while they are using the Ricci case as a showhorse instance of the evils of affirmative action when it is hardly an affirmative action case at all and displays none of the evils alleged. They seemed to want to do something with a case that fundamentally couldn't bear the weight of their intentions, like carting a twenty story building with a hand truck.
Perhaps, the conservatives on the Court, finding themselves increasingly marginalized politically, feel themselves more free jurisprudentially to take on controversial cases. What they fail to realize is that if the nation is moving past them politically it is also moving beyond them legally. A case like this seems almost quaint, less pivotal than passe', and in this particular case, just a little bit pathetic. It is apparently the product of a long nursed, festering resentment about progress toward racial equality. They are only emboldened to act forthrightly against it now because of its unnecessary nature, the country has moved on without them. They are trying to latch the gate of the corral long after all the appaloosas have escaped.
Their ruling is not the vigorous one in support of individual freedom and just reward for hard work that it is portrayed. Rather it is visceral, weak ruling that reeks of pique, reaction, resentment and retrenchment; a last gasp effort of a failed thesis of superiority to reinvent and relabel itself as progressive and independent. Yet it is so obviously a ruling of residual preferment for a fading white majority ruling class, class preferment and elitism and prejudice that it's more the echo of a cry from a doomed, backward leaning and intellectually vacuous world we have already left behind.
Surely they took this case too partially for political reasons. This case was less about its merits than its atmospherics. Its proponents have tried to paint it as reverse discrimination while it was obviously just discrimination of the old fashioned variety where majority preferments attempt to lord it over minority pretensions. The facts of the case then were not a indictment of affirmative action but a textbook case for the need and value of an affirmative action law. The city of New Haven tried to correct its bad test on its own without even waiting to be called to account. Self correction is the essence of preventive, educative law as the basis for a civil society. This is the triumph of affirmative action and the petty rantings and rulings of a few jaded conservatives on the bench cannot reverse it. They would have been better served by using New Haven's voluntary obeisance to the spirit of affirmative action as proof that a legal remedy was no longer needed than they were trying to prove that Mr. Ricci was a victim of reverse discrimination.
Or perhaps this case may have been chosen as a boost for conservative policies in general and against Judge Sotomayor in particular. This case was perfectly timed and designed to give conservatives in the Congress and on the talk shows ammunition in the upcoming confirmation hearing over Sotomayor. It is incredible that such a thing can even be credibly alleged, but the history of this particular Court makes it invariable that it should be. They have played politics with the law before. The weakness of their arguments in this particular case, in addition to the lack of necessity of taking on such a weak case in the first place, leave one with few good other guesses as to why the conservative justices on the Supreme Court made such a feeble hash of it.
Finally, and just for the record, Judge, now Justice, Sotomayor's ruling in the Ricci case, perfunctory though it may have been and whatever your thoughts on affirmative action may be, was perfectly correct.
