Wednesday, September 20, 2017
U.S. Supreme Court Both Downplays and Affirms Race
By Larry Aubry (Columnist)
Published July 16, 2009

The United States Supreme Court in Ricci v. DeStefano continued its erosion of civil rights protections by further narrowing the definition of affirmative action. In a 5-4 decision, the Court held that the city of New Haven violated Title VII of the Civil Rights Act, which bars discrimination on the basis of race, sex or religion. It also bars job requirements and exams that have “disparate impact” on applicants from traditionally underrepresented groups. However, the Supreme Court ruled that White firefighters were victims of unlawful racial discrimination but did not address the constitutionality of Title VII.

The decision overturned a ruling by the 2nd Circuit Court of Appeals-including Judge Sonia Sotomayor–that it was within the city’s right to throw out test results that may have meant promotions for White firefighters. It invalidated the test results when no Black firefighters scored high enough for promotion; the White firefighters sued, alleging violation of their civil rights.

Conservatives contend that the Supreme Court’s decision calls Sotomayor’s judgment into question even though a federal appeals court upheld the 2nd Circuit Court’s decision. Eleven of 21 federal judges ruled as Sotomayor did on Ricci. Therefore, contrary to conservatives’ hype, the ruling hardly places her on the judicial fringe.

Justice Anthony Kennedy wrote the majority opinion, maintaining that “A race-based action (as in this case) is impermissible under Title VII…Our task is to provide guidance to employers in rendering the workplace an environment free of discrimination where race is not a burden to opportunity.”

Justice Ruth Bader Ginsburg, dissenting, referred to “a history of uneven playing fields, overt racism and a failure on the part of municipal employers to apply neutral employment principles…They often relied on criteria unrelated to job performance–including nepotism or political patronage. Such flawed selection methods served to entrench pre-existing racial hierarchies.” Justice Ginsburg’s dissent underscores the continuing pre-eminence of race.

Glenn Greenwald a civil rights and constitutional lawyer notes that the fight over Ricci and affirmative action ignore the countless ways Whites continue to benefit from exactly the sort of non-merit considerations that affirmative action opponents decry. He contends–and I agree–that the reason Ricci resonates for so many people is primarily due to empathy for the White firefighters.

Justice Ginsberg summarizes, thusly: “By order of this court, New Haven, a city in which African Americans and Latinos account for nearly 60% of the population, must today be served–as It was in the days of undisguised segregation-by a fire department in which members of racial and ethnic minorities are rarely seen in command positions.”

Justice Antonin Scalia, though concurring with the majority opinion, wrote, “(The Court’s) resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, the “disparate impact” provisions of Title VII…are consistent with the Constitution’s guarantee of equal protection? The question is not an easy one.” (The current conservative Supreme Court renders politically motivated rulings under the majority’s “strict constructionist” cover which is often a dodge for affirming White privilege.)

Greenwald asserts, “For all the chatter about judicial activism, judges invalidate policies which conservatives dislike as a political matter. So, often the outcome (decision) of allegedly neutral conservative judges is completely consistent with (and aggressively advances) the political preferences of kindred conservatives. Few things are rarer that conservative judges invalidating policies that conservatives support–or upholding policies they despise.”

The Institute of the Black World and the Leadership Conference on Civil Rights’ position is that, “The Court’s statement on Ricci intones, “We can be thankful that Title VII was not ruled unconstitutional, but we must remain forever vigilant as conservative assaults on the framework of civil rights legislation are not further undermined.”

Benjamin Todd Jealous, president of the NAACP, says, “The decision is a step backward for equal opportunity employment…and is especially disappointing–both given the racially-charged dynamic in many cities’ fire departments and because the Supreme Court has refused to allow the New Haven Department to meet the Title VII legal standard before making their decision.”

Despite oft-times mixed “victories,” like Ricci v. DeStefano, the struggle for equity and justice continues. And it is further contaminated by a Supreme Court that surreptitiously (and hypocritically) affirms the reality of race (unstated) in its decisions involving Whites, while minimizing or denouncing that reality as related to on-going racism and discrimination against Blacks and others of color. Judicial neutrality, when it comes to race, is a myth in this society.

Categories: Larry Aubry

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