Althouse: A big affirmative action case looms.

January 11, 2009

A big affirmative action case looms.

The Supreme Court took cert. in Ricci v. DeStafano — causing excitement at National Review, Volokh and Power Line.

30 comments:

Pastafarian said...: The most interesting thing about this case is the fact that this Judge Sotomayor, who Obama might nominate to the SC, thought that this was constitutional and non-discriminatory: The fire department tested candidates for promotion, and when the test results came back, too few non-white candidates qualified for promotion, so the fire department simply set aside the results and didn't promote anyone based on the results.

How is that non-discriminatory?; 1/11/09, 8:58 AM
vet66 said...: Pasta;

Promoting nobody because of pressure from the victims-are-us mentality of unqualified firemen puts the community in danger. We, as a society, either dumb down the rules for the lowest common denominatrix, I mean denominator, or become color blind and promote to positions of leadership those who know how to fight a fire and save lives through competence.

When one of our firemen turn a hose on a fire I expect water or some suitable substance to come out not empty excuses.; 1/11/09, 9:05 AM
Bissage said...: A big affirmative action case looms.

Good.

It’s about time.

There aren’t nearly enough minority big case loomers.; 1/11/09, 9:22 AM
LutherM said...: "Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guarantied by the supreme law of the land are involved."

I continue to maintain that, in matters of law and government, the words of Harlan in his dissent in "Plessy" ought to be, and someday will be,controlling.
"Colorblind" is a great concept.; 1/11/09, 9:48 AM
heywoot said...: I am red green colorblind. It is not great.; 1/11/09, 9:50 AM
AllenS said...: We need to outlaw discrimination. What I mean by that is there shall be no lawsuits based on the idea of discrimination. Let people hire, fire, employ, sell to, buy from who they want to. That should solve the problem right there.; 1/11/09, 10:13 AM
Anonymous said...: That case is racism at its best.

Christopher Hamilton
The Right Opinion, for the Right Wing; 1/11/09, 10:14 AM
Lem the artificially intelligent said...: Bearing his re-election in toto,
Obama will side against the city of New Haven and for the "pink" firefighters.

I bet my last deflated dollar on it.; 1/11/09, 10:28 AM
KLDAVIS said...: While the University of Michigan cases were pending, I half-expected the court to enter into a new era of Redrupping. The popular pressure for particular results and the close attention paid, combined with what seems to be very little room for traditional flowery or intentionally obscured judicial rhetoric in AA cases makes me think we could be headed toward a 'I know it when I see it' philosophy from SCOTUS on the issue, backed up by next to no analysis. Since the Bollinger cases the makeup of the court has certainly changed, let's hope we get something akin to a reasoned decision.; 1/11/09, 10:47 AM
Wince said...: Dang, when I read "A big affirmative action case looms," I thought affirmative action had been already afforded to fat people.; 1/11/09, 11:02 AM
The Drill SGT said...: Pasta, one addition: The City carefully constructed a test to be non-biased, then when it failed tp give the outcome desired, they tossed it.

As a dissentor, Jose Cabranes, puts it, “this case presents a straight-forward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?”

Now one can make an argument that you "need a critical mass on minorities to give a well round educational experience" or "it is important that the Police Depart. reflect the diversity of the community" but in the case of the Fire Department, it's consumers (people with fires" just want somebody there fast who is good at their jobs.

that's why it's criminal when those fitness tests like running up stairs in full turn-out humping 100 ft of hose, were dumbed down to allow women to get jobs.; 1/11/09, 11:58 AM
Jim Howard said...: Now that the country has voted for Unlimited Government, isn't it time to amend the Constitution to remove those pesky 'equal protection' clauses?

I'd like the Constitution to explicitly list who the favored groups are, and just set quotas for each victim group.

Victim quotas to be used whenever the government hands out goodies, be they jobs,political appointments, professional licensing, promotions, school admissions, academic hiring, and tax 'refunds' to non-tax payers,

Voting should also be weighted for victim status, the higher you are on the victim list, the more votes you get.; 1/11/09, 12:15 PM
The Drill SGT said...: This comment has been removed by the author.; 1/11/09, 12:25 PM
The Drill SGT said...: This comment has been removed by the author.; 1/11/09, 12:26 PM
The Drill SGT said...: Or we could compromise:

Promote less qualified minority FD staff and have them work from the stations in minority neighborhoods.

That way the community can have the quality of service they deserve and the diversity (spoils system) they want.

Your house may burn down, and Granny may be toast, but you'll have the right sort of people failing at their jobs.; 1/11/09, 12:26 PM
Simon said...: Whelan's follow-up post is interesting, too, highlighting some oddities in how the case was handled by the panel an the en banc majority.; 1/11/09, 12:38 PM
vet66 said...: Drill Seargent;

Well put and funny to boot!

Great job!; 1/11/09, 1:01 PM
Anonymous said...: What really raised red flags here was the way the Second Circuit tried to bury it. On a major issue such as this, to simply issue a non-precedential affirmance is highly irregular. The back-stop non-substantive precedential affirmance based upon the district court opinion was also bizarre.; 1/11/09, 2:10 PM
Lem the artificially intelligent said...: I've noticed sometimes the color of fire can be blue..

Shouldn't people who have the blues put those fires out?

It would be more representative and maybe safer as well ;); 1/11/09, 2:23 PM
traditionalguy said...: WOULDN'T IT BE WONDERFUL to drop the racial priviledge Aristocracy like we dropped the King of England's ruling class Aristocracy in 1776. We need another Common Sense pamphlet written. Maybe the SCOTUS will write it for us this time.; 1/11/09, 2:55 PM
Zachary Sire said...: The case with some former clerk of Thomas' trying to repeal the Voting Rights Act is even bigger, and scarier, in my opinion.; 1/11/09, 3:27 PM
fivewheels said...: I'm as big a detractor of affirmative action as you can be, speaking as an Asian who has been screwed by both both reverse discrimination and plain old regular discrimination (it's amazing how stupid both sides of our black-white racial discussions can sound when you're not black or white).

But in this case, the actions of the fire department, the actual refusal to promote anyone, is not in and of itself discriminatory. It serves a racial purpose, but the choice not to promote does not seem like something you could say should be illegal.

In other words, IANAL, but it sounds to me like the classic case of something that is morally wrong but not unconstitutional. And it's the kind of thing that a conservative judge of the kind I prefer would recognize as such. To rule the other way would put the court in the business of constantly mind-reading the background behind allowable actions to legislate preferable results, which is my whole problem with liberal jurisprudence.; 1/11/09, 3:36 PM
fivewheels said...: Incidentally, I think the answer to the problem is political: Elect a mayor who will enforce a different policy or appoint those who will. Not every issue is a court issue.

And the question of whether the Circuit panel acted improperly, which seems (pardon the expression) above my pay grade, is wholly separate from the merits of the case.; 1/11/09, 4:03 PM
Roberto said...: Lem said..."Bearing his re-election in toto, Obama will side against the city of New Haven and for the "pink" firefighters. I bet my last deflated dollar on it."

So, Obama's will be the Judge in the case?

Duh.; 1/11/09, 4:08 PM
Roberto said...: How many blacks are posting here?

Just wondered...; 1/11/09, 4:11 PM
Cedarford said...: Michael said...
How many blacks are posting here?

Just wondered...

We can only be sure that one anti-white asshole is on this thread, Michael..; 1/11/09, 4:14 PM
Dust Bunny Queen said...: How many blacks are posting here?

Just wondered...

Do you think we should be forced to have a quota for Althouse posters that represents the various ethnicities and genders of the population?

Just wondering.; 1/11/09, 4:22 PM
traditionalguy said...: My belief is that A MAN is A MAN is a MAN. {MAN including the male and the female ]. The problem has been Priviledges given and traded among the Few. So how does mandating more Priviledges help change this problem? It just replaces one group of the Few with another group of the Few. What you say, that's always been the real goal.; 1/11/09, 5:19 PM
Nichevo said...: I wonder which minorities were ill-served by their tests. I would assume that a black man can drag hose up stairs as well as a white man. Perhaps it was hard on Hispanics who perhaps are smaller or slower than average? Or were these tests as in exam questions?; 1/12/09, 6:25 PM
Badmer said...: There were two exams given: one for Lieutenant and the other was for Captain. Had the results been certified, Blacks, Whites and Hispanics would have been promoted EVENTUALLY. The problem was that the initial wave would only have promoted Whites and Hispanics. The list are certified for two years and in that time (this has been going on for over five years now) they would have reached a diverse group. The problem was not that they were not able to promote minorities, they were not able to promote the blacks that THEY wanted promoted. The rest is just a bunk.; 1/13/09, 1:27 PM