We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Ricci v. Stefano is an appropriate case to examine on this day. Its honoring of ideals that were practiced in breach also suggests that a page of history is useful as well. The majority opinion spent much of its time on the facts -- easier to not remand it for the lower courts to apply its new test (hey it's safe -- Sotomayor won't be there any more) -- leaving the history to the dissent.

The article argues in effect that this is a faux minimalist opinion,* one the Roberts Court has in some eyes made into a trend. The idea here is that the Court on the face of it decides rather narrowly, but does so via reasoning that in reality promotes (in a conservative direction) a broad end. The check is often that Kennedy (at times joined with others, perhaps the liberals for pragmatic or principled reasons) provides split the baby rulings that do not take things as far as the principles sets forth seem to warrant. Scalia et. al. provide concurrences and dissents calling them on it. Thus:

Why would it be discriminatory to discard the results of an employment exam in order to avoid a discriminatory racial impact but not discriminatory to choose one exam over another in order to avoid such a racial impact? ...

And the fall of this part of Title VII could be just the beginning. Because the Supreme Court typically interprets Title VII's prohibition of race discrimination to match the 14th Amendment's similar prohibition of racial classifications and vice versa, Ricci puts a wide range of race-conscious policies under a legal cloud.

Can be answered various ways.

(1) For some reason, tossing the exam itself is deemed particularly bad. For instance, those who received the top scores relied on the fact that they would be among those "who likely would have been promoted" [but only one of the the top three would have to be picked for each vacancy per the rules; thus, at the end of the day, for now, Ricci et. al. gets at best a moral victory]. But, if illegitimate use of race is used, it still is bad, even when used beforehand, right? What this case amounts to is but a more wanton use.

(2) The question wasn't posed. Thus, we get language such as "suit does not call on us to consider whether the statutory constraints under Title VII must be parallel in all respects to those under the Constitution." But, in the process, affirmative action cases where the Court struck down plans as not based on legitimate criteria are cited. Hint hint?

(3) We will use a stricter test that a majority of us (from different ends) probably would deem somewhat makeweight which will leave some wiggle room. Thus, bringing up the 10% choice plans is of only limited value, since Kennedy in Parents Involved supported race conscious programs, that weren't too race conscious. This path was also taken in this very case, though you might not know it from the Sotomayor critics side. Race conscious decisions are still allowed:

Petitioners take a strict approach, arguing that under Title VII, it cannot be permissible for an employer to take race-based adverse employment actions in order to avoid disparate-impact liability—even if the employer knows its practice violates the disparate-impact provision. ... We cannot accept petitioners’ broad and inflexible formulation.

Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. ...

And the standard appropriately constrains employers’ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation.

Thus, the ruling allows wiggle room, just not as much as some (including the dissent) desire. Since many big businesses etc. support "affirmative efforts," it is in no way apparent that efforts will not continue to deal with disparate impact. Pressure will now be placed to ensure that this is done before the tests are in place. Will some more fall between the cracks? Most probably. How much? Hard to tell, especially given -- as some commentators such as Nina Totenberg noted -- the process used by New Haven is actually fairly unusual.

The article is correct that the ruling is opaque at points, which leaves some discretion to the lower courts. Who then will be deemed "activist" when they decide things the "wrong" way. This is quite possible, since the ruling in fact leaves open, apparently, another locality to toss out a test. Really. This appears to be the money paragraph:

That is because the City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt. §2000e–2(k)(1)(A), (C). We conclude there is no strong basis in evidence to establish that the test was deficient in either of these respects.

The "conclusion" here is clearly open to debate, the dissent and briefs for the city underlining the point. But, so be it. Unless the argument here is makeweight, which is not out of the realm of possibility, it clearly suggests that in some cases the examination might not be necessary or there will be a strong basis that a less discriminatory alternative. This mirrors federal law:

Even if the employer meets that burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs.

I don't see any rule set forth that tossing out the test after it is taken is the be all end all problem. I await -- akin to Kennedy's assurance that some race conscious school plans are legitimate, just not every one (in his eyes) the Court has reviewed -- just such a case being decided by the SC. Meanwhile, localities, businesses, and lower courts can still allow some race conscious disparate impact activities. Somewhat restrained.

-j

* A prime example is the voting rights ruling where many praised Roberts for not striking down the preclearance rule, instead creatively interpreting the law to find a technical fix many (if not most) voting rights law experts deemed makeweight at best. In the process, the opinion -- joined by eight justices -- made it clear the law is faulty. The SC just was pragmatically avoiding the constitutional question because a narrower route was possible. But, the opening was made.

A somewhat similar thing can be said about the strip search case. It is nice that eight justices found a strip search to find ibuprofen illegitimate. But, in the process, it not only -- though this time two justices appeared a bit wary -- made it clear that strip searches were allowed in other cases (broadly left open) but that the very student involved here could be searched (backpack and outer clothing ... and likely purse) even though there was very weak evidence that she had drugs on her person at all. The ruling in effect broadened an early case where the student was found smoking in a school bathroom. Here, the say-so of a friend and in effect being seen with the wrong crowd in the past (being rowdy at a party where drinking took place etc.) was enough.

[Thomas suggested more evidence was there, but the opinion did not say it was needed.]