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Equal Protection


The Supreme Court today decided, 5-4, for the white and Hispanic firefighters in Ricci vs DeStefano today saying that they were unfairly denied promotions because of their race. The split was down the usual lines with Thomas, Scalia, Roberts, Alito and Kennedy going for the plaintiffs.

This is interesting for two reasons.
First it overrules Sotomayors decision which no doubt will be used against her in her confirmation hearings. Remember the Democrats wanted the confirmation hearing to be in mid-July and the GOP wanted it to be later. With Ricci fresh off the docket, I’m sure there will be a sudden and nuanced shift, with Democrats wanting to wait a bit. Not that I can blame them, they touted Sotomayor as a brilliant mind, even if she has said some really stupid things. Public opinion also is against Sotomayor, so expect that angle to be played as well.

A new national poll suggests that nearly two-thirds of Americans think white firefighters in New Haven, Connecticut where discriminated against when the city tossed out the results of a promotion exam after too few minorities scored high enough on the test.

The other interesting thing about this decision comes from Justice Scalia. In his concurrence opinion, 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 the 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.
The difficulty is this: Whether or not Title VII’s disparate-treatment provisions forbid “remedial” race-based actions when a disparate-impact violation would not otherwise result- the question resolved by the Court today- it is clear that Title VII not only permits but affirmatively requires such actions when a disparate-impact violation would otherwise result. But if the Federal Government is prohibited from discriminating on the basis of race, then surely it is also prohibited from enacting laws mandating that third parties – e.g., employers, whether private, State, or municipal – discriminate on the basis of race. As the facts of these cases illustrate, Title VII’s disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes. That type of racial decision making is, as the Court explains, discriminatory.

So when will racial discrimination end? Obviously it is still going on in the workplace. It’s going on in the Universities.

Beginning in 2012, UC will no longer automatically admit the top 12.5% of all students based on statewide performance, and will no longer rely so heavily on grades and test scores. Instead, the eligibility pool will be expanded by a projected 40% by eliminating the requirement for applicants to take the SAT subject matter tests. The net effect of these changes is that academic achievement will be less significant and UC admissions administrators will have the “flexibility” to discriminate against those “dull” Asians who “study, study, study” all the time without violating Proposition 209.

What is wrong with these people? What is obvious to most is that all of this is being done in the name of “Diversity.”
When will we live in a world when the color of ones skin is no longer a factor in hiring or admissions. Discrimination in any name, no matter the motive is wrong. It’s wrong to deny a white the opportunity for advancement, it’s wrong to deny a Hispanic the opportunity for advancement, and it’s wrong to deny a black the same opportunities.
There is a big difference in equality of opportunity and equality of outcomes. They are not the same. Giving everyone the same opportunities is what this country was founded on. Some will succeed and some will fail. The outcome is wholly dependant on the person, not society.
Using the equality of outcomes logic, the State and individuals will continue to use racial discrimination as a factor in everything. They will still rely on the quota system or in Ricci’s case, use the threat of litigation as a factor in their hiring. The problem as SCOTUS decision puts clearly, the treat of litigation is not justification for any sort of racial discrimination (2.c.i)
In my talks with supporters of Affirmative Action, they usually base their argument on the equality of outcomes logic. They usually say that it is still needed. The obvious question to ask is until when? When will it not be needed? Five years ago, I had the same conversation and they said, “When we have a Black President.” Well, now we do. So it’s time to end it.
Sooner or later a case will make it to the Supreme Court challenging race based quotas and we will have to finally choose for the full implementation of Equal protection. Anything that places a “racial thumb” on the scales of justice is wrong morally, and ethically.

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