Abigail Thernstrom on Ricci v. DeStefano
The media and the blogosphere are buzzing over the Supreme Court’s decision in Ricci v. DeStefano. Conservatives hail it as a tenuous victory over racial quotas, and liberals jeer it as a step backward for civil rights.
Abigail Thernstrom, co-author of No Excuses: Closing the Racial Gap in Learning, calls the decision “very good news.” Writing in the Wall Street Journal, Thernstrom briefly recounts the facts in Ricci and notes the contradictory nature of Title VII’s disparate impact and disparate treatment provisions:
“Speaking for a 5-4 majority of the Supreme Court, Justice Anthony Kennedy did acknowledge an internal contradiction in employment discrimination law. Title VII of the 1964 Civil Rights Act prohibited intentional discrimination on the basis of ‘race, color, religion, sex, or national origin.’ Yet another law, in 1991 — which built upon a 1971 Supreme Court decision — banned employment tests that had a disparate impact on the hiring of racial minorities, unless the tests were shown to be job-related and a business necessity.
…
“All racial classifications are highly suspect under the 14th Amendment. The Constitution protects individuals from discrimination — without respect to race. Distributing benefits and burdens on the basis of color was supposed to be the ugly mind-set the leaders of the civil rights movement struggled so heroically to change. We have not escaped such race-thinking yet, but this decision is an important step in the right direction.”
In throwing out tests because no blacks qualified for promotions and, therefore, penalizing whites who qualified, New Haven blatantly violated Title VII. But the law’s disparate treatment and disparate impact provisions are paradoxical. One bars intentional racial discrimination against individuals, while the other bars tests that have disparate impact on certain racial groups unless the tests are job-related and consistent with business necessity.
How can a government entity treat people fairly, without regard to race, if they’re allowed to consider race when creating and/or scoring tests?
