Reverse discrimination

The U.S. Supreme Court struck a blow at racial preferences Monday -- correctly rejecting a flawed decision by high court nominee Sonia Sotomayor -- but stopped short of issuing a long-needed, forceful repudiation of the quota systems that lead to reverse discrimination.

On Monday, the court said the city of New Haven, Conn., violated the Civil Rights Act when officials threw out the results of a Fire Department promotion test because no blacks scored well enough to earn a higher rank. The city had argued it was justified in denying promotions to whites because the blacks who failed to gain advancement might have sued.

"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," Justice Anthony Kennedy wrote for the 5-4 majority. He pointed out that Title VII of the Civil Rights Act, which prevents employers from taking adverse actions against workers based on race, protects workers of all races, not just minorities.

The decision slapped down a simplistic, ideological opinion from Judge Sotomayor and two other members of New York's 2nd U.S. Circuit Court of Appeals. Indeed, even the dissent by Justice Ruth Bader Ginsburg said the 2nd Circuit wrongly focused on the city's desire to avoid discriminating against minorities, rather than the city's legal justifications for quashing the promotion of whites.

However, the majority opinion did not declare unconstitutional government efforts to manipulate the racial makeup of public payrolls, and it didn't knock down the section of the Civil Rights Act that prohibits job standards and screenings that have a "disparate impact" on minorities. The ruling only concludes that if New Haven's black firefighters had brought a "disparate impact" lawsuit, the city should have prevailed because its promotion test was fair and related to the demands of the job. Governments must have a "strong basis in evidence" that they will be sued before discarding test results on race grounds.

Judge Sotomayor's opinion was focused not on equality of opportunity, but equality of outcome. In other words, it wasn't enough to merely give black firefighters a fair shot at a promotion -- it was unfair to deny any of them a promotion, even if none of them was qualified. Justice Ginsburg defended such a deplorable view when she asserted that "Congress endeavored to promote equal opportunity in fact, and not simply in form."

At least the court's decision moves the country slightly farther from the impossible goal of achieving a racial balance that all workplace interests will deem perfect. It is impossible to accomplish that without some form of deliberate discrimination.