Supreme Punting

There was some hullabaloo yesterday about the Supreme Court ruling in the discrimination case of Ricci v. DeStefano. The mainstream media did a fine job of obfuscating facts in an attempt to breathe new life into what had become an almost dead controversy surrounding Obama’s nomination of Judge Sotomayor to the Supreme Court. Selling newspapers or advertising on cable TV news new requires shrill noises to attract the attention of a US citizenry obsessed with the antics surrounding Michael Jackson’s recent passing and reminiscing about his halcyon days twenty-five years ago.

News outlets clamored that Ms. Sotomayor’s nomination was now in jeopardy. According to left-leaning media, the Supreme Court did catastrophic damage to decades of civil rights progress and in the process spanked Sotomayor.  According to right-leaning media, which has been maligning much of the Supreme Court’s recent decisions, the Court finally got something right and Sotomayor was a sullied candidate.

Nonsense. The Supreme Court actually didn’t decide anything of substance yesterday. Because I have been an ardent advocate of diversity throughout my career, I actually waded through the 93 pages of opinion on this case. I wanted to see for myself what was really going on.

Justice Scalia said it best. He writes, “I join the Court’s opinion in full, but write separately to observe that its 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 question is not an easy one.”

Indeed it is not an easy question. The dispute in this case stems from a classic catch-22 situation: a firefighter promotion exam was conducted in New Haven-Connecticut as is the normal procedure. Because minorities on average didn’t score as well as whites on the exams, if the city used the test results to rank candidates for promotion, the city faced a discrimination case. On the other hand, not all minorities did poorly. If the city threw out the test results, they still faced a discrimination case from those who did well on the tests including whites who would claim reverse discrimination. The city threw out the tests and lawsuits were promptly filed by those who had done well on the tests.

The Supreme Court did not touch this catch-22 directly. The majority opinion simply pointed to the city’s rationale for discarding the tests and found their arguments wanting. Therefore, the city must use the test scores as originally planned – to rank the candidates for promotion based on scores. The Court did not rule on a constraint for Title VII. The Court did not resolve the inherent conflict between the Constitution’s guarantee of equal rights and Title VII’s bias toward minorities.

I have seen terrible bias every day. I have lived in Chicago, Washington DC, near Philadelphia. I have travelled all across the US. The bias against Asians, Hispanics, Blacks, and Native Americans is prevalent and even here in bland Seattle I have seen pockets of virulent bias. We may have a black president but we are very far away from a land of equal rights blind to race, creed or color. Until then, we must be willing to argue forcefully and vigilantly against bias against minorities. I for one am thrilled that Sotomayor is the nominee. The Court may yet face this ugly question squarely and when it does, I hope there is much debate and passion to preserve a balance of power among our many races, creeds, and colors in this country.

Meanwhile, Ms. Sotomayor should keep clear of this noise and wait for the next celebrity fiasco to take public attention away from meaty matters like civil rights and who gets to sit on the nation’s highest bench.

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