by Dr. Christopher Metzler, Georgetown University
As we worried about whether Michelle Obama should have touched the Queen, whether Bo (the White House dog) will be as famous as Barney and whether Levi Johnson of Sara Plain fame practiced safe sex all of the time, the Supreme Court of the United States was wading into the racial water with an American public that is now ensconced into "post-racial" cocoon because of the election of Barack Obama.
This week the Roberts court heard the case of Ricci, ET Al. In this case, several white and one Latino firefighter in New Haven Connecticut asked the Court to decide whether the city violated Title VII of the Civil Rights Act of 1964 and the United States Constitution by throwing out a promotion test in which the plaintiffs but no blacks scored high enough to be promoted. The rather clinical legal questions are:
- Whether the city's failure to certify the results of promotional exams violated the disparate (or different) treatment provisions of Title VII of the Civil Rights Act of 1964.
- Whether the city's failure to certify the results of the promotional exams also violated Title VII since Title VII makes it unlawful for employers to "adjust the scores of, use different cutoff scores for, or otherwise alter the results, of employment tests on the basis of race."
- Whether the city's failure to certify the results of the promotional examinations violated the equal protection clause of the 14th Amendment to the United States Constitution.
As clinical as these legal question are, they have significant real life political ramifications. Although the plaintiffs in this case are firefighters, the decision will affect employment law, affirmative action, diversity and they way in which employers and others seek to remedy the lingering effects of discrimination. The reality is that not everyone believes that discrimination still occurs in America since slavery has been outlawed, the Civil Rights Act of 1964 has been implemented and President Obama occupies the White House. Regardless of the position one takes on these issues, the significance of the Court's decision cannot be underestimated for many reasons, a few of which I have outlined below.
First, the Roberts court has not spoken on race in any significant way and is eager to do so. Of course, it is Justice Kennedy who will ultimately decide this case and both the liberal and conservative blocs of the Court will work to craft a decision which he can sign onto. The difficulty for the liberal wing of the Court is that this case is as much an ideological case as it is a legal one. Good old fashioned liberal ideology will require a decision which reaffirms the need for government to be zealous in forming race-conscious decisions. In order to uphold the city's decision, the liberal wing will have to convince Kennedy that the city's decision to refuse to certify the test results was based on the fact that the test impacted Black fire fighters negatively and worse because it ensured that none of them would be promoted.