SCOTUS Hands Down Ricci, An Affirmative Step Toward Ending the Use of Race

The United States Supreme Court handed down its opinion in Ricci v. DeStefano, a case arguably more famous as of late due to its centrality to the Sotomayor confirmation process than to its own factual scenario.

It's a case about affirmative action policies by a local government in the end - and whether what I would consider reverse discrimination is a legitimate action by a local government under Title VII of the Civil Rights Act.

Fortunately, the Supreme Court said no.  Race cannot be the determinative factor for a local government body's decision to throw out the results of an objective firefighter promotion examination in which white and Hispanic candidates advanced for captain and lieutenant positions, but no African Americans advanced:

All the evidence demonstrates that the City rejected the test results because the higher scoring candidates were white.  Without some other justification, this express, race-based decision-
making is prohibited.

It's possible that the results were simply incidental, a disparate impact.  Fear of a lawsuit stemming from that disparate impact is trumped, essentially, by the city's need to avoid further disparate treatment of those who did pass.  The city also failed to employ less racially discriminatory means before throwing out the results of an otherwise valid examination round.

What struck me, as I read Justice Kennedy's majority opinion (after his slap at Sotomayor's involvement in the case below), was his summation of the district court's holding, the one that Sotomayor upheld with a perfunctory glance:

It concluded that respondents’ actions were not “based on race” because “all applicants took the same test, and the result was the same for all because the test results were discarded and nobody was promoted.” Id., at 161.

The logic employed is so very ironically similar to the logic defeated in Loving v. Virginia - the notion that so long as everyone is harmed or discriminated against equally, then at least the law is fair in that respect.  That's largely why the majority in Ricci gets it right.

While the decision is confined in its precedential value by its limitation to Title VII of the Civil Rights Act, a statute - and not the Equal Protection clause - Justice Kennedy makes it clear (not to mention Justice Scalia's concurrence) that actions like those at the center of the case would face a hostile landscape.