The impact of the Roberts Court will be huge if the conservatives win the day in Ricci v. DeStefano.
Christian Science Monitor Washington 4/22/09 - The US Supreme Court divided into sharply defined liberal and conservative wings on Wednesday as the high court heard argument in a case involving allegations of reverse discrimination against white firefighters in New Haven, Conn.
http://www.csmonitor.com/...
At issue in Ricci v. DeStafano is whether the city acted properly in throwing out exam results when white and Hispanic firefighters passed a promotion exam but no African Americans did. The City's compelling reason for throwing out the scores was the City feared a lawsuit by African American firefighters on the basis of "disparate impact" on their racial group. The white and Hispanic firefighters argue that city officials should have followed the civil-service rules and awarded the promotions to the top test scores without regard to race or ethnicity.
This is an important case.
Read LII's excellent online resource for Ricci.
http://topics.law.cornell.edu/...
I think the key issue is correctly identified by the Monitor:
But it is frequently difficult to prove that an employer is engaged in intentional discrimination. For this reason, Congress has also empowered victims of discrimination to sue in instances when an employment practice results in a disparate impact against members of a protected minority group.
There is legal precedent that Title VII protects all racial groups, not just "protected minorities," aka "discreet and insular minorities." The law is very unsettled in this area. The fractured 5-4 decision in the Court's 1977 decision Regents v. Bakke illustrates the split. See that case for a good summary of the conservative position, i.e. that it is impermissable for the Government to use race as an employment factor without a compelling reason, and "protected race groups" include whites. To the conservatives, generally only evidence of de jure discrimination will justify affirmative action classifications based on race.
The Monoitor summarized Souter's argument for the liberals:
Arguing from the liberal side of the court, Justice David Souter took issue with the firefighters' approach to the case.
"The problem I have with your argument is that it leaves a governmental body like New Haven in a damned-if-you-do, damned-if-you-don't situation," Justice Souter said. Either the city gets sued by the white firefighters, or it gets sued by the black firefighters.
Souter added, "Whatever Congress wanted to attain [in passing Title VII], it couldn't have wanted to attain that kind of a situation."
Of interest, Hispanic firefighters who were high scorers on the test had their test results thrown out with the white firefighters. Is a threat of a lawsuit by one "discreet and insular minority," African Americians, sufficient to nullify test scores of another "discreet and insular minority," Hispanics? Now's your chance to play Supreme Court Justice and give your opinion.