A target that does bear watching is the heavily freighted civil rights issue that the court raised and then skirted last June in the New Haven firefighters case, Ricci v. DeStefano. The issue in that case was whether the city engaged in a prohibited act of employment discrimination when it discarded the results of a promotion exam on which no black test-taker scored high enough to win a promotion. White firefighters who believed they were entitled to promotion sued under Title VII of the Civil Rights Act, which prohibits employment discrimination on the basis of race.
The original Title VII, in 1964, prohibited "disparate treatment" on the basis of race. In 1991, Congress amended the law to prohibit employment policies that have a "disparate impact" as well. The question for the Supreme Court last June was whether, in trying to avoid the racially disparate impact of the exam, New Haven had made the successful white firefighters the victims of disparate treatment.
The court ruled against the city; Justice Kennedy wrote for the 5-to-4 majority that New Haven's concern about liability for the racially disparate impact of the exam was overblown and insufficient to justify withholding promotions from the successful white test-takers.
The decision avoided a tricky question: suppose the racially disparate impact of a municipal employment policy is so grave that the Civil Rights Act requires a remedy that itself takes race into account - in other words, a remedy for disparate impact that requires disparate treatment.
The court's current majority has made clear that for the government to count individuals by race for almost any purpose is a violation of constitutional magnitude. So how could a statute that could require such an outcome be constitutional? In the New Haven case, Justice Kennedy left it to Justice Scalia to observe sarcastically in a concurring opinion that the court's resolution of the firefighter dispute "merely postpones the evil day on which the court will have to confront the question" of the Civil Rights Act's constitutionality.
Finding the law unconstitutional would be an astonishing step, all the more so because the Civil Rights Act's current form is a Congressional response to a series of Supreme Court decisions in the late 1980's that gave the law a reading that Congress thought was too narrow. The 1991 amendment codified a unanimous opinion of the Burger court, which in 1971 interpreted the original Civil Rights Act to bar employment policies that had a racially disparate impact, such as education requirements that were unrelated to the actual job.
-- Linda Greenhouse
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