Does today’s five-four U.S. Supreme Court decision in the New Haven firefighters’ case, Ricci et al. v. DeStefano et al., have any bearing on higher education?
In recent years, Supreme Court decisions on racial preferences, discrimination, set-asides, and the like have been narrow and contorted. If the Court were a delicatessen, we might say it has been cutting the bologna very thin. Try as we might to find general principles in decisions such as the Grutter and Gratz rulings of 2003, mostly what we find are judgments that fit a special segment of society. Grutter and Gratz provided roadmaps for how public colleges and universities could continue to grant preferential admission to students based on race and ethnicity. But in 2007 the Court ruled in the Kentucky and Seattle cases (Meredith v. Jefferson County Board of Education and Parents Involved in Community Schools (PICS) v. Seattle School District) that the diversity loophole isn’t big enough to let K-12 schools do the same thing. In those cases, the Court decided that using a student's race to decide who is admitted to a particular school violates the equal protection clause of the 14th Amendment.
So what is the general principle that our highest court urges us to follow? Should we consider race a de facto academic qualification in order to advance the flag of “diversity?” Or should we insist that the state be colorblind in matters of education? Of course, the law is about making distinctions, and the Roberts court in the Meredith and Seattle cases thought it wise to distinguish between college and lower-level education. Apparently reinforcing racial identity and classifying people by race becomes a compelling interest when it is time to take freshman English, but before that race is just a private matter. Then it jumps in importance again if a student applies to law school. According to Justice O’Connor’s opinion in Grutter, those first-year classes in torts and contracts could be badly compromised without the “critical mass” of minority students in exact proportion to the relative size of the constituent populations, but admitted, of course, without quotas on the basis of “holistic assessment.”
That is to say, the Supreme Court has bequeathed to us a body of law so filled with ad hoc distinctions about when race matters and when it doesn’t, so tortured in logic, and so patently self-contradictory, that no one takes it seriously as principle. The accumulated rulings may be “law,” in the trivial sense of consisting of written adjudications, but they are not law in the more profound meaning of enunciating a clear standard of justice.
The most we can say about the Roberts Court is that it has been whittling away at some of the irrationalities and excesses of race in American law. Last week, it let stand Section 5 of the 1965 Voting Rights Act that will keep all or parts of sixteen states under the supervision of the U.S. Justice Department for any change in voting rules. The 8 to 1 decision in Northwest Austin Munic. Util. Dist. v. Holder (Thomas was the dissenter) was accompanied in Roberts’ opinion with signposts suggesting that Congress change the law. Roberts pointed to the obsolescence of the Voting Rights Act:
Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.
And he emphasized that there is no legitimate ground for singling out the sixteen states that fall under the Act:
The evil that §5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the States originally covered by §5 than it is nationwide.
So why didn’t he vote in favor of declaring that the Voting Rights Act is an unconstitutional infringement of federalism? Justice Thomas in his dissent called for just that. Noting that section five of the Act, by imposing the federal government’s authority over the states “more broadly than the substantive command of the Fifteenth Amendment, §5 pushes the outer boundaries of Congress’ Fifteenth Amendment enforcement authority.” Thomas also urged historical perspective:
In 1870, the Fifteenth Amendment was ratified in order to guarantee that no citizen would be denied the right to vote based on race, color, or previous condition of servitude. Congress passed §5 of the VRA in 1965 because that promise had remained unfulfilled for far too long. But now—more than 40 years later––the violence, intimidation, and subterfuge that led Congress to pass §5 and this Court to uphold it no longer remains. An acknowledgment of §5’s unconstitutionality represents a fulfillment of the Fifteenth Amendment’s promise of full enfranchisement and honors the success achieved by the VRA.
While it is hard to find a principled reason for Robert’s temporizing decision in the Voting Rights Act case, it isn’t difficult to find a pragmatic one. Numerous observers say that Roberts is navigating around a problem with Justice Kennedy, who has inherited Justice O’Connor’s position as the Court’s identity-politics triangulator. NPR’s legal affairs correspondent Liz Halloran, for example, quotes David Bosotos at the Joint Center for Political and Economic Studies to the effect that Roberts “failed to convince the court's swing vote, Justice Anthony Kennedy, to join him and other conservatives in tackling Section 5.”
So with the Supreme Court taking baby steps for baby feet on racial issues, what does the Ricci decision give us? Especially those of us concerned about the pernicious role of identity politics in undermining liberal learning and genuine academic standards in the United States?
The answer, I fear, is not much. The majority in Ricci shreds New Haven’s defense. New Haven argued that it had to set aside the results of the firefighter promotion exam because, in view of the disparate racial consequences, New Haven could have been sued by minority firefighters on the basis of discriminatory impact. To this the Court says firmly, no. You don’t get to discriminate against whites out of mere fear of a lawsuit by blacks. If such a lawsuit were to emerge, New Haven has—on its own showing—a very strong case that it is not guilty. Beyond that, the Ricci decision is a strong affirmation that Title VII of the Civil Rights Act prohibits the sort of discrimination New Haven exercised against the white firefighters who scored high enough on the test to win promotion. The Court, however, declined to address the white firefighters’ claim that New Haven had also violated the Equal Protection Clause of the 14th Amendment.
The decision in Ricci may turn out to be a major blow against the “disparate impact” theory of discrimination, which allows plaintiffs to find discrimination even in the absence of any intent to discriminate on the basis of race. Disparate impact theorizing has been a mainstay of the racial grievance industry since 1971, when the Supreme Court decided in Griggs v. Duke Power Company, that an employer couldn’t use a neutral test in hiring decisions if the results of that test were that disproportionate numbers of people in minority groups failed it.
Recently Bryan O’Keefe and Richard Vedder have argued that one of the unintended consequences of the decision in Griggs was to fuel the vast expansion in college enrollments over the ensuing decades. How? Because Griggs effectively ruled out the possibility of employers using their own tests to determine the general level of competence of job applicants, employers fell back on the next most convenient proxy: the applicant’s possession of a college degree. Suddenly for all manner of jobs that didn’t before require a college degree, such a degree became a prerequisite–evidence of some basic level of “determination, critical thinking and writing, organization, and independence.”
The O’Keefe/Vedder hypothesis may have new bearing in light of the Ricci decision. If Ricci turns out to mean that employers can now administer skills tests for hiring and promotion with much less fear of disparate impact lawsuits, perhaps we will see some relief from the pressure on high school graduates to go to college to “get the credential.” History, of course, cannot just be shoved into reverse. The cultural pattern in America of sending on to college higher and still higher percentages of high school graduates has momentum of its own, and is bolstered by the need of colleges and universities to keep the tuition flowing.
The Ricci decision probably has greater significance as part of the broader shift in moral reasoning about race in America. In the run-up to the Supreme Court decision in this case, it was very difficult to detect any sense among Americans that “racial justice” demanded that New Haven prevail. The victims were clearly the white firefighters who worked exceptionally hard to earn their promotions, only to have them snatched away by some bureaucrats who evidently cared more about racial bean-counting than either basic fairness or public safety.
Americans prize fairness. When fairness is on the side of civil rights for members of minority groups, that’s where Americans head. But when people who are trampled in the name of theories that no longer have the ring of fairness, we reassess.
Higher education has become America’s last great fortress of this kind of unfairness. Ricci doesn’t even try to bridge its moat, but it registers once again how isolated the academy has become in its determination to keep race at the center of things. The great irony here is that colleges and universities like to think of themselves as far in advance of the rest of society. That is surely what the ideologues at Virginia Tech are thinking as they try to impose a litmus test of contributions to “diversity” for faculty promotion and tenure, or to make “inclusive excellence” a substitute for actual achievement. The mumbo jumbo never ceases, but as of today, an ordinary person of any race has a better shot at fair treatment in the New Haven Fire Department than at Virginia Tech or a myriad of other colleges and universities.