The Supreme Court decision to favor the white firefighters in New Haven, CT in the Ricci case does not fundamentally change the state of equal opportunity law.
The opinion by Justice Anthony Kennedy rests on a narrow assessment of whether the city had a factual basis for feeling it might face litigation by minority applicants.
Today’s headlines focus on the reversal of prospective nominee Sonia Sotomayor or the perceived endorsement of “reverse discrimination” as a theory. However, fundamentally, the court has not changed from its stand that affirmative action is constitutional, even if subjected to the most demanding tests.
It only means that advocates of equal opportunity need to carefully scrutinize the rationales and facts behind affirmative action programs. The flimsy excuse of “seeking diversity” pales in comparison to the actual evidence of continuing racial discrimination.
In Compelling State Interest: California Without Proposition 209, we used the approach of contrahistory, to project what a dramatic change in fortunes for the African-American population of California occurred without the targeted educational, employment and service strategies outlawed by the initiative.
A new book by Dr. Edgar Scott, Don’t Want to Be The Only Black Here, based on his 1994 dissertation at Colorado State University, points out the scientific evidence that increasing the graduation rate of African-American college students on majority white campuses requires specific measures to overcome the impact of institutional racism. The same case has been made by educational researchers at the elementary and secondary levels.
As long as the high court tells local jurisdictions and employers that they have to follow the evidence of discrimination before creating such initiatives, the legal basis for affirmative action is on a strong foundation.