The past few weeks have seen important news related to race and the Supreme Court. In the June 29 Ricci v. DeStefano decision the court ruled in favor of white firefighters in New Haven who claimed they were subjected to racial discrimination when the results of a test for promotion were thrown out because white candidates outperformed non-white candidates. Since President Obama announced Judge Sotomayor as his nominee for Supreme Court Justice one of the primary attack lines leveled against her has been that she is a racist. Both examples represent an attempt to redefine racism without a recognition of history or sociopolitical reality so as to posit people of color as the oppressors and whites as the victims of racial discrimination.
Much more after the jump.
The Ricci decision, written by Justice Kennedy, states that white firefighters were the victims of racial discrimination when the results of the promotion test were thrown out. Kennedy writes:
Whatever the City's ultimate aim--however well intentioned or benevolent it might have seemed--the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race based action.According to Kennedy, making a decision based on race is discrimination. In this instance, the decision was made as an attempt to avoid a disparate impact claim under Title VII. Title VII protects against both "disparate treatment," which means intentionally treating populations differently, and "disparate impact," which means the differential treatment of populations in effect but which can happen unintentionally. So a disparate treatment claim requires proving intent and a disparate impact claim requires proving results. To determine whether this decision was legally acceptable the court turns to a new standard for judging disparate impact claims, the "strong-basis-in-evidence." The decision treats the promotion of only white firefighters as not fulfilling this standard. Therefore, disparate treatment, meaning differential treatment in intent, wins out over disparate impact, differential treatment in form.
The court is in the process of weakening the disparate impact clause of Title VII out of existence. undeniable evidence that a policy leads to different outcomes along racial lines, as exists in Ricci, is insufficient to meet the "strong-basis-in-evidence" standard. This, I believe, has been a long time goal of Justice Scalia, who writes in his concurring opinion:
Title VII's disparate impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes. That type of racial decision making is, as the Court explains, discriminatory.Scalia argues that the disparate impact clause, by requiring the recognition and consideration of race, is necessarily discriminatory.
Without the use of the disparate impact clause we will be left only with the disparate treatment clause, under which discriminatory intent must be proved. Essentially, the Court will only recognize Jim Crow-style racism where differential treatment is deliberate and has a clearly stated goal of keeping racial populations separate. This is very seldom the form contemporary racial discrimination takes (though it is certainly still around as the case of the Valley Club swimming pool illustrates). Racism is usually much more insidious, embedded in institutions that were formed in a more overtly and openly white supremacist context. Without the ability to recognize racial discrimination in effect most discrimination will have to go unaddressed.
The Ricci decision suggests a new understanding of racial discrimination being used by the Court. The definition functioning in this case appears to be: (1) formal recognition of racial groups and (2) formal differential treatment of those groups.
This new definition is an ahistorical and non-contextual approach to race and discrimination. It removes race from reality, making discrimination something that happens in isolated instances but that is not part of a broader system of oppression. It erases the history of discrimination against people of color. And it completely removes the U.S. racial hierarchy from the equation. When considering discrimination claims the court ignores the fact that most power and privilege is concentrated in white hands, that whiteness is considered the norm and that it is people of color who experience oppression based on race.
In this present moment in the U.S.'s racial history it is predominantly laws that exist to counteract the legacy of racism that meet the courts definition of racial discrimination. In a country so structured by racism race must be recognized to be responded to. And it usually must be used to counteract the impact of racism on people of color. But under the court's new definition of racism this would probably constitute differential treatment targeted at whites. The court is attempting to make it impossible to use race, to acknowledge race, when working against racial discrimination.
By removing a power analysis from the understanding of racism the court has created a legal approach to race that does not take into account the U.S.'s racial hierarchy, its history, legacy, and continued impact. By taking power out of the equation laws intended to counteract racial discrimination will now serve to uphold white supremacy.
In this new paradigm whites have become the protected racial group, as it is white folks who appear to be receiving racist treatment under the court's definition. This is made possible both because racial discrimination is defined as the recognition and use of race and because that definition lacks any recognition of racial realities.
The Ricci decision suggests the need for people who understand the realities of discrimination on the bench. The court showed more compassion for white firefighters because they had studied hard for the test and could lose their promotions than for non-white firefighters who probably also studied hard but were never offered promotions in the first place. In reading her dissent from the bench Justice Ginsburg said the white plaintiffs "understandably attract the court's empathy," simultaneously a nod to Sotomayor and a recognition that the almost all white court has more understanding of and empathy for the experiences of white plaintiffs.
Many attacks on Sotomayor reveal a similar logic to the Ricci decision. She has repeatedly been called a racist and a bigot. As far as I can tell this is based on two things: the over-hyped and de-contextualized "wise Latina" quote and her membership in La Raza.
The "wise Latina" quote is presented as racist because Sotomayor recognizes that her experience as a person of color impacts who she is and how she understands the world. Membership in La Raza is considered a sign of racism because it is a Latino group, therefore both recognizing racial groups and treating them differently. Again, we have a similar understanding of racism to that functioning in the court. People presenting these claims understand racism as a recognition of racial groups and differential treatment of those groups, though they are much more obvious than the court about only caring about their version of racism if it is perpetrated by people of color.
But again, this is an understanding of racism with no relationship to racial reality. Latin@s experience oppression along racial lines in the U.S. This experience does give Sotomayor special knowledge that clearly a majority of current Supreme Court justices lack. La Raza exists precisely because of this reality - not to promote racism but to respond to its existence.
Many of Sotomayor's critics do not seem to notice or are deliberately ignoring the fact that whites are at the top of the U.S. racial hierarchy. They can therefore understand the "wise Latina" comment and La Raza's mere existence as discriminatory to whites.
The reality is that racism functions hierarchically. It is negative differential treatment of people of color based on race. Whiteness packs the power to oppress based on race, as our system of race was built to empower white people. People of color do not have the power and privilege to oppress white people based on race because this same system was built so that white people could benefit from their labor and could become superior by making people of color less than. An attempt to understand racism neutrally, without recognizing that it is something white people benefit from, not something we are the victims of, erases this basic fact.
This redefining of racism and racial discrimination is a smart response to the current form of racism, one much less obvious but more insidious than Jim Crow. It is a way of defining racism that is easily understandable to whites who know about separate bathrooms and water fountains and know this was bad but lack a complex understanding of the every day racism experienced right now by people of color. And this redefinition must be countered, must be responded to, must be torn apart so that the language of racial justice is not used to uphold white supremacy.
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Great article, Jos, I'm already glad you're writing on the front page now! I've been banging my head against the wall regarding both the firefighter case and the BS Sotomayor has been put through, but you articulated the common thread between them in a way I wasn't able to.
I hate the whining victimology of the neo-fascist right wing misogynists.
White males have had thousands of years of not only affirmative action to often place their undeserving asses in positions of authority and power.
To insure their positions they denied education to women and minorities. They denied the vote. They denied the rights due all humans.
If anything white men owe reparations to everyone they oppressed and they should be sent to the end of the line when it comes to every thing.
Does anyone actually believe that the Bushes became president based on merit?
"If anything white men owe reparations to everyone they oppressed and they should be sent to the end of the line when it comes to every thing."
That's not meant to be satire at all, is it?
Aleks, at the rate this Court is going in undermining discrimination law, reparations may be the only way to satisfy justice. The Japanese interned during WW2 got reparations for just under 4 years of imprisonment. What does one get for 400 years of enslavement?
If you actually agree with Suzy Q, then one of you can tell me whom I've oppressed so that I "should be sent to the end of the line when it comes to every thing." Mind you I have never, ever been negatively affected by affirmative action. I am not any kind of victim. I am responding to Suzy Q's evaluation of me, not any perceived oppression of white people.
You know when white men lose their last name when they marry after being given away by their mother for a few thousand years.
After white men get about 5-10% political offices for a couple of hundred years.
After white men are kept illiterate for a a couple of thousand years and are paid about 60% of what women are paid.
After women run everything from business to government for say 500 years or so...
Then maybe white men whining about how unfair affirmative action for the people they have oppressed is.. Well then maybe I'll listen.
But until then you are just a whining misogynist.
Thank you! And Cattrack2, now that Suzy has laid out the indictment against me (that I've:
1. Taken women's names when they marry for a few thousand years, (I'm 27 and will likely never marry, if I do marry I'll be quite surprised if my bride wanted to change her name, as my mom never did and it makes people so hard to find on facebook.)
2. Gotten about 90-95% political offices for a couple of hundred years. (I'm 27 and a DFL activist, never an office holder)
3. Kept people illiterate for a a couple of thousand years and are paid about 60% of what I've been paid for those thousands of years, (I'm 27 and have never made more than US$26,000 in a year. I spent the last 6 months in Namibia teaching, you guessed it, literacy.)
4. Have run everything from business to government for say 500 years or so... (I'm 27 and have never run anything)
5. Am whining (presumably when I say things like "I have never, ever been negatively affected by affirmative action. I am not any kind of victim.")
6. Am a misogynist (presumably because I say things like "If I were nominating the next three Justices, none of them would be men").)
do you concur? I myself am so glad that Suzy laid it out on the table that I won't report her for personal attacks, but do you feel she's proven her case that I "should be sent to the end of the line when it comes to every thing"?
If all racist feelings, beliefs, customs, and regulations on all levels and of all sorts disappeared tomorrow, there would still be a disproportionate number of white CEOs of large companies, white politicians, white people with postgraduate degrees, and black and Native American people living below the poverty line.
On the off-chance you genuinely believe that this is how talent and ambition shake out, I don't envy you saying so here.
So you benefit from racism and sexism in ways you aren't even aware of. I've benefited from, if not American slavery, the legacy of American slavery in ways I can't begin to enumerate, despite no one I'm descended from being in this country before 1900.
I really don't see what in my response to Suzy makes you think you need to tell me things that were obvious when I was ten, or take precautions regarding the "off chance" that I attribute talent to skin color. But thanks, I guess?
Aleks--I was being rhetorical (and exasperated). But on the serious tip the money would come from the US Gov't not you personally. That's the same logic of paying reparations to Japanese interns & their heirs. Because certainly neither you nor I made the decision to imprison those Japanese during WW2...and yet our taxes certainly did remunerate them.
In fact the only reason reparations are not taken seriously is because of the enormous expense & accounting involved in doing so. This isn't about blaming white men for what their great-great grandfathers did, its *just* about recompensing a people for work rendered. *That's all*. I've always thought reparations were a poor 2nd to affirmative action, but with Court undermining affirmative action...
The problem is that Japanese internment is a clear legal case with really tangible accounting that was relatively easy to calculate. It also was a wrong committed exclusively by the United States Government, and the USG admitted culpability.
Reparations for slavery/discrimination are a lot harder to achieve. For one, the accounting is really messy. How can you possibly extrapolate some of the worst effects of racial discrimination? Taken to their extremes we're talking about a sum of money no government could ever raise, much less give out. It'd be like asking Belgium to give reparations to the Congo. They simply don't have the money to truly pay back what they did.
Aside from being incredibly messy reparations are broadly unpopular for a lot of reasons. From one side they're a punishment for something that they did not choose to participate in, and for the other side they could be seen as an end to the movement for ending structural inequality. Even if you could get reparations through the government what would happen is white folks would say, "Okay, that's it, no more help at all." Reparations would also be incredibly detrimental to race relations on the whole.
It's neither a feasible solution nor a good one. The only real way to achieve change is through lasting investment in removing barriers for social inequality, specifically in education, and committing to things like affirmative action. That said, change won't happen overnight. It won't even happen in our generation, or the next. You don't fix 400 years of oppression in a generation, or two, or three. It's going to take centuries, and that's what nobody really wants to face, the prospect that this problem is so big that we cannot fix it entirely in our lifetimes.
What's necessary here is that long-term commitment, not measures to end something so big in one fell swoop. It won't work, and you run the risk of the power group saying, "We fixed it." when nothing got fixed. Look at how European nations look at their former colonies for an example of these. The whole "you got your independence so it's all good" thing doesn't work, nor will the whole "we cut you a big check".
Affirmative action is a good idea, it just has to implemented well, and for a very long time, in order to work out. When it's implemented poorly you run the risk of it being curtailed before its job is done. The Ricci v. DeStefano case is an example of affirmative action being implemented poorly. The disparate impact standard should be subject to some scrutiny, because otherwise you end up with situations like this, where outside observers cite the test as fair and the results are tossed anyway. What we ought to see now is increased scrutiny of assessments by employers to prevent this problem before it arises.
The legacy of racial inequality won't end overnight, or even in our lifetime. That's no reason not to fight it, but when we seek easy answers to complex problems we usually just end up with bad answers and compounded problems.
I'm not against slavery reparations. I don't think it'll ever happen, and I'd want to see a workable plan for how it would go, but in theory it's a just idea that should have been implemented 144 years ago.
BTW I don't believe that reparations for the "internment" (mass kidnapping) of Japanese-Americans were paid to the heirs of those who had died before the 1980's. If I remember correctly from my research on the matter (admittedly 7 years ago in a small library in Akita), I think only living survivors could claim the money.
"If anything white men owe reparations to everyone they oppressed and they should be sent to the end of the line when it comes to every thing."
Oh please, do be more specific. When you say everything, do you really mean EVERYTHING? So, according to your statement white men should not have any chances or opportunities if someone that has been historically oppressed is in competition with them. You know, that whole "end of the line" thing you were talking about sounds an awful lot like the way it was in the last centurty for POC. Lets make everything better by recommiting those injustices.
I just love how conservatives are constantly criticizing liberal judges as being "activist", meaning that they make decisions which thwart the will of the legislature. I.e., legislatures make laws against abortion, and when judges strike them down in the interest of individual rights, conservatives call those judges "activist".
With Title VII, though, that all goes out the window. The clear intent of Congress when it passed Title VII was to PREVENT DISCRIMINATION AGAINST MINORITIES....so when the conservatives strike down holdings where Title VII was applied to...protect minorities...you need to ask, who is the activist? And moreover, has their accusation that liberal justices are activist ever been even remotely sincere? Absolutely not, in my opinion.
This is just another way that conservatives pretend that THEY are the ones on the side of the PEOPLE and DEMOCRACY...such total and absolute crap, its amazing that they can make make that argument with a straight face. Between this and their asinine, non-evidence-based arguments against health care reform this week, I am starting to think they should just come out and say "we serve corporations, insurance, old white men and doctors who like making $750,000+ a year. we have purposefully never read one page of feminist or critical race theory". At least then I could respect them.
Title VII is pretty clearly intended to move us to a society where nobody's discriminated against, minority or majority. At the present time, it should be applied to white people very rarely, because we're very rarely discriminated against. Directly or indirectly, it's applied to men a fair bit (University admission numbers, for instance), as being a man is not as favourable as being white (yes, I'm playing the privilege olympics. This leaves me open for criticism). It should effectively never be applied to, cisgendered people, say, because they're essentially never discriminated against.
"Beatings for everyone!" is a pretty egalitarian sentiment, but it never seems to make people happy.
I agree the intent is broadly to "end discrimination", but if you read the legislative history, the specific intent was to end discrimination against minorities, particularly black Americans. So if we want to make the "original intent" argument, as conservatives so often do, we need to look at the real original intent. It was not to protect white men. They did not need protecting at the time.
I personally am not a big proponent of original intent analysis because I think you have to apply the law to TODAY'S facts, taking into account that the drafters of the constitution or legislation did not have any clue what modern society would be like, so their literal intent at the time doesn't necessarily represent what their inter WOULD HAVE been if they had all the info we have now aboutmodern life. So in principal I agree with you.
I am just trying to point out that conservatives are internally inconsistent. They apply "original intent" when it suits them (i.e., constitution drafters did not have abortion literally in mind when they wrote the bill of rights, therefore no abortion rights) but they throw it right out the window when it does not suit them (i.e., the voting rights act or Title VII).
I love your articles, Jos, and always await them eagerly. They are always very well-informed, engaging and profound. Thank you so much! I hope you keep writing on the front page.
I'm not sure Sotomayor's "wise Latina" comment is so group-identifying in the context of her whole speech.
I feel her speech (which you can read on the nytimes website) as a whole challenges the idea about what experiences make a judge.
Sotomayor doesn't argue that any discrimination she experienced as a Latina has made her a better judge; she just argues that her experiences have made her a better judge.
I feel that maybe she is arguing that non-traditional experiences need to be validated----but not only discrimination experiences---other culture values etc need to be valued as well.
I agree that the Supreme Court is trying to redefine racism to make any recognition and actions based on race illegal, thereby eroding and destroy the acknowledgment of racial hierarchy in the United States.
However, I also agree with *both* the lower court's decision and the Supreme Court's decision in the Ricci case. The lower court was correct to dismiss the case based on precedent, and the Supreme Court almost had no choice but to reverse the decision, as re-interpreting the law is their role in government.
The city fire department made too many mistakes in this particular case: they failed to validate the test in the first place, chose an assessment method unsuited to the position they were selecting for, used a terrible candidate elimination method, and failed to honor the test results before attempting to fix their mistakes. While some of the concurring opinions provided by justices such as Scalia were contemptible, the decision itself was not. The city's incompetence left the Court with very little evidence; thus it had little choice but to rule in Ricci's favor.
I see your point on the Ricci case, and the fact is that every single time an employment policy has a disparate impact does not mean its illegal discrimination. That's why courts have developed the sophisticated way that a defendant can rebut the presumption of discrimination, and then the plaintiff can counter by putting forward another policy serving the same legitimate employer business purpose that does not have the disparate impact.
Its just another reason that the whole Ricci-holding circus pisses me off. As you point out, this case, and disparate impact lawsuits in general, are WAY more complicated and nuanced than "should the white people or the minorities win" or "do you believe in affirmative action". The conservative senators took this incredibly reductionist view of her decision, and suggested she just "ruled in favor of the minorities".
And some of them are LAWYERS who know how complicated this stuff is...its just infuriating that they gloss over her actual legal reasoning and make it seem like her decision was simply a matter of racial preference.
None of this is to at all disagree with Jos' main point about how Title VII precedent is shifting in a disturbing way.
Great article! It's so nice to read the thoughts of someone who "gets it" and is adept at explaining it.
With this Court there are difficult & dark days ahead for racial equality.
They often say hard cases make bad law.
Question for Jos and everyone else: I don't disagree with the analysis above, but what's missing is an alternative solution from the liberal perspective, ie, what should the Court have said & done?
Also, 2nd question, is there a legislative remedy here as with the Ledbetter case?
From Ginsburg's dissent:
It is certainly a tough case, as others have said, because the test should never have been used in the first place. But the fact that a bad test was used is no reason to keep the results.
I want to clarify this, and perhaps disagree somewhat. "Bad" tests are used all the time. It's difficult to know what alternatives will arise in the course of developing selection procedures for a particular job, or what social science research will reveal to help test developers improve test fairness and accuracy. What might have been considered a great test 5 or 10 years ago might be considered a mediocre one today.
However, regardless of whether or not a test was/is bad, I believe (and the Supreme Court agrees) you have to honor test results if you administer them outside of a research context. Otherwise you risk sliding down a dangerous slippery slope where applicants and employees lose trust in employers, testing, and the law in general because they will not be certain that selection procedures anywhere will be consistent. A legal system that already has adopted an "if you don't like the outcome, sue" mentality would move even further in that direction. This is why I understand the high court's majority ruling.
Let's say a company is giving a test that causes a moderate to high degree of adverse impact now, but they decide to change the process 3 months from now. It's possible that people will rush to take the current tests now if they believe the tests work in their favor today (which might freeze out minorities who can't pass the current tests by eliminating job openings). It's also possible that others will wait and see how the new test looks. Finally, it's possible that the new test -- despite everyone's best design and validation efforts -- will cause the same (or even more) adverse impact than the previous test did.
Them's the breaks. You can't stop using the current tests until you have a fair selection procedure in place to begin using immediately, or you risk allowing hiring decisions to become even more arbitrary and biased. You also can't have candidates take a test and then violate your own company's policy by saying the results don't count. You have to accept the initial results, then make sure you improve the selection process as soon as possible for next time. Had New Haven honored the results, the black firefighter's association might have sued anyway. But they probably would have lost...especially in front of today's Supreme Court.
A company can alter a selection procedure -- even a passing score on a test -- to include applicants that got screened out previously, and do so without much risk. But when you change a current selection process to exclude people who passed -- without any empirical evidence to back up your decision -- and you don't have a demonstrably better method waiting in the wings, you're asking for trouble. It's not as if New Haven will never hire another captain again; assuming New Haven implements a better process in the future, there will be more opportunities.
It's ridiculous that some Senators (and members of the public) are treating the Ricci case as if anyone who agreed with the Supreme Court's dissent is CRAZY.
It was a 5-4 decision in the Supreme Court, not a runaway. Two courts (the district and Sotomayor's circuit court) ended up supporting the same verdict.
It's very silly, in my opinion, to attach so much weight to Sotomayor's rulings on this case.
There's not very much interesting or controversial in her record, so fairly dull things like applying SC precedent in upholding the lower court's finding in a racially sensitive issue stands out.
Could someone explain to me what part of that decision was applied from precedence? Sotomayor was asked the same question during the hearings and gave a nonsensical answer.
Could someone also explain to me how the test was biased that the results had to be thrown out? Don't say "Because of the results."
WIDave: the precedent Sotomayor applied was the idea that an employment test that demonstrated disparate impact could be thrown out simply because the test demonstrated disparate impact. In the past, nobody had to account for the potential ramifications of throwing out a test on those who did pass the test in question.
Nobody can tell you how the test was biased, because nobody bothered to find out how the test was biased by doing appropriate research. Here's the important thing that you're missing: nobody bothered to make sure the test was GOOD, either. Just because a group of people gathers a large, diverse group of firefighters and writes test questions doesn't mean that a good test automatically results from their efforts. Validation needs to be done to make sure the test actually measures what it is supposed to measure. The fact that it wasn't in this case -- and in many others -- is the reason there are thousands of well-known but crappy tests in the world.
If a test is given for a position where there are plenty of minority candidates and almost none of them pass, the EEOC may come knocking on your door because the probability that the test is biased in some way is high. Why? Because the odds that all those minorities who are performing capably as firefighters are unsuited to be lieutenants and captains is very low.
As an example, let's say ETS changed the SAT and the result was that no black high school students -- not even the ones with 4.0 GPAs coming out of the best public school systems -- scored over 900. Wouldn't you think there might be a problem with the test? At the very least, ETS would go back and conduct research to make sure the test measured the abilities of all students accurately. In fact, they would almost certainly scrap that version of the SAT completely.
I will also add that most fire departments in the United States do not use a single written test to select employees whose main job functions go far beyond filling out paperwork.
I think the problem is that the idea of racism doesn't really carry the history of racial hierarchy, in and of itself. Conservatives can make a "logical" argument that Sotomayor is racist because in a narrow sense, racism does mean treating people differently based on race. We know that they're being disingenuous, but its easy to exploit the idea of racism because racism, as a concept, really only concerns individual actions and instances.
The right is working hard to change the way Americans think about race, they're using terms manipulatively to lend credibility to their positions which basically seek to keep the privileged in control. Instead of debating racism against reverse racism, we need to offer up a stronger narrative that really gets at the root of what we want to convey.
The problem isn't racism, its a system of white supremacy. This article does a great job of laying out white supremacy, and even names it as such once, but we need to make that framework our standard way of talking about race.
The problem isn't a few racists here and there, the problem is a system that culturally and institutionally disadvantages and disempowers people of color in order to confer privileges on white people, white supremacy. The phrase white supremacy suggests a history, systems, a privileged and empowered group. It suggests domination by white people, of the othered groups, not just mistreatment. Whereas racism conotates individual instances of bigotry.
The problems in our world aren't the result of a few bad apples, they're the result of systems of privilege and oppression that those who are in power defend for their own selfish ends and that those who are oppressed have fought tooth and nail against for centuries.
Well put.
"[R]acism can be a problem in a society with seemingly no racists, how racism--out of all the isms--became the province of cannibals, ogres, people existing one rung above the rapist, and child molester. Some of this is our fault--dramatizing the depravity of Southern racists was a brilliant political strategy. But the unexpected upshot is that whites who know they'd never sic a dog on a kid for the crime of crossing a street, can sit at home and say "Well if that's racism, I know I'm not that." It'd be as if our thoughts of sexism revolved strictly around honor-killings and rape. Perhaps they do." Ta-Nehisi Coates