Thoughts on Ricci

My heart, and I am sure the hearts of my readers, are with the plaintiffs in Ricci vs. DeStefano. But there are several aspects about this case that bother me.

• New Haven claims that because no firemen were promoted, no discrimination occurred, regardless of their reason for discarding the promotion test results. On the one hand, New Haven's actions are transparently in bad faith, and New Haven itself makes no secret of its desire to find a promotion method that will allow them to discriminate in favor of blacks. But on the other hand, I am uncomfortable with rules that rely for their enforcement on a determination of someone's motives for doing what they do. Making promotion decisions, for whatever reason, is entirely within New Haven's competence as the community's elected government.

• New Haven argues, alternatively, that the U. S. Department of Justice regulations require that minorities in an applicant pool are represented proportionately among the selectees to a four-fifth's level. In other words, if five of ten applicants are black (let's say), then at least four of ten selectees must be black as well. While this regulation requires exactly the outcome that New Haven wanted anyway, New Haven's wishes are not important: the Equal Employment Opportunity Commission was, in fact, highly likely sue New Haven on behalf of the minority fire fighters who flunked the test. Once upon a time, we could blame the four-fifth's rule on the Supreme Court itself, but as of the 1991 Civil Rights Act, proportional representation is federal law.

• John Rosenberg at Discriminations offers excellent coverage of these issues, but he often speaks loosely of the 14th Amendment requiring "colorblind" law. This is, no doubt, good policy, but it almost certainly was not the intention of the writers of the 14th Amendment, nor has any Supreme Court decision ever held that it was. Race blind law is required by the 1964 Civil Rights Act; unfortunately, for the last 30 years, the Supreme Court treats this Act as a dead letter, and issues its rulings entirely in the context of the 14th Amendment.

• In which context, every firm in America is caught in a dilemma. On the one hand, there is ample case law prohibiting employment discrimination against any race. On the other hand, facially non-discriminatory policies invariably yield disparate outcomes, which are politically poisonous at best and violate federal law at worst. This is the dilemma that the Supreme Court must resolve.

• The best outcome of this case is also the least likely: an overturn of the Justice Department's four-fifths rule, and implicitly the disparate impact test of the 1991 Civil Rights Act. Unfortunately, the DOJ is not a party to the case, and the conservative temperament being what it is, any judicial reference to it would be to point out that the rule is "an issue not before the court." So even if, in the best of all worlds, a five justice majority issued a ringing endorsement of non-discrimination, the 80% rule will stand until a firm challenges its enforcement in court.

The long run effect of this case will almost certainly be bad. All public agencies face the same dilemma that New Haven claims to face: they can't create a single standard that doesn't yield disparate results, and they can't impose quotas because these are discriminatory. Their only escape is to make employment decisions in the same way that UC Berkeley makes admissions decisions: throw out all objective standards and adopt a subjective process so inscrutable that results can be manipulated to their politically correct outcomes completely beyond anyone's ability to prove that discrimination occurred. This will be wasteful and dangerous, but until racial quotas are challenged and overcome politically instead of legally, the result is inevitable.