On June 29, 2009, in Ricci v. Stefano, the Supreme Court in another 5-4 decision with Kennedy writing the majority opinion and backed by the Court’s radical conservatives ruled that, under Title VII of the 1964 Civil Rights Act, New Haven, Connecticut could not throw out the results of a lieutenant and captain exam for firefighters because whites had done substantially better on it than African Americans and Hispanics. The city of New Haven had argued that keeping the test results would open it up to litigation under the “disparate impacts” principle of Title VII. That is whether the test was meant to be discriminatory or not, the impact, or effect, of the test was to create a “whiter” and less racially representative fire department. White fire fighters and one Hispanic sued citing a different Title VII principle “disparate treatment”. They argued that it was a legitimate test. They had done better on it, and so they should receive the promotions. Any other resolution would mean they were not being treated the same as their minority colleagues. The district and appeals courts agreed with the city’s argument but the Supreme Court reversed.

Kennedy reasoned that the city of New Haven had not intended to discriminate but that a discriminatory result was allowable under Title VII if it was “job related for the position in question and consistent with business necessity.” Kennedy goes on to say,

We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.

The key word here is “liability”. It was likely that New Haven was going to be sued by someone over this test: minorities if the results were kept, whites if they were thrown out, but Kennedy held the test was fair and job related, and therefore New Haven had no liability for its results. Consequently, the disparate impact on minorities did not hold. Rather New Haven had treated the white firefighters in a disparate manner based solely on their race, and this was prohibited by Title VII. Kennedy even helpfully points out that his Supreme Court decision can be used to fight a “disparate impacts” lawsuit filed by minority test takers:

If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate treatment liability.

Now this almost might sound plausible, except that, as Justice Ginsburg notes in her dissent, it completely turns history and Title VII on its head. The 1964 Civil Rights Act and Title VII were enacted because of the prevalence of racial discrimination both in government and private enterprise. This discrimination could be seen both in the disparate impacts and treatment minorities suffered under. As a result of the Act, the most obvious and overt regulations and practices that intentionally discriminated against minorities were re-written or eliminated. This still left the enduring impact of previous discrimination in place. For these, a variety of remedial actions, including affirmative action, desegregation in school and housing, etc., were undertaken to greater or lesser effect.

From almost the beginning, however, conservatives have adopted the language of the civil rights movement and the Act to argue against any form of remediation. Their argument, disingenuous as it is, is that discrimination was outlawed and from here on out the law should be color-blind. Now this would be a reasonable position to take if education, income levels, and other measures were comparable between the majority and minorities, but even in 2009 vast discrepancies remain. One has only to look at the incarceration rate of young black males, for example, to see that our society is far from color-blind. So the residue of discrimination does linger, despite an African American in the White House.

This takes us back to the Ricci case. In the beginning, disparate impacts and treatment were two tests in Title VII which were meant to work together to end discrimination against minorities. What Kennedy and the radical conservatives have done is to make the disparate treatment argument available to the majority and to set the two principles of impacts and treatment against each other, indeed to make disparate treatment the dominant of the two. This is all part of an effort by the Court’s radical conservatives to roll back civil rights laws, in general, and Title VII, in particular. We saw this most recently in the June 18, 2009, 5-4 decision in Gross v. FBL, where the ostensible target was the Age Discrimination in Employment law (ADEA) but most of the Court’s ire was directed against the Price Waterhouse case (1989) which had strengthened Title VII. The wider agenda can be seen in the June 28, 2007, 5-4 decision, in Parents Involved in Community Schools v. Seattle School Dist. No. 1 where voluntary programs in Seattle, Washington and Louisville, Kentucky to avoid racial segregation in schools were overturned on the basis that racial classification in school selection violated the equal protection 14th Amendment rights of white children. With Kennedy onboard, we should expect to see more anti-civil rights decisions and more attacks on Title VII in the future.