Affirmative action: The new rules of race

last updated 8 January 2015

The rules of race in America have just been changed, said Linda Greenhouse in The New York Times. The Supreme Court last week ruled that Frank Ricci, a white Connecticut firefighter, was illegally discriminated against when the city of New Haven threw out the results of a 2003 promotion exam because no black firefighters did well enough on the test to be advanced. Ricci and his co-plaintiffs were “undoubtedly sympathetic,” said Richard Thompson Ford in Slate.com, but the city felt it had to throw out the test results or risk being sued under the Civil Rights Act of 1964, which requires employers to be fair to all races in hiring and promotion. Numerous lower courts—including the federal appeals court of Judge Sonia Sotomayor, President Obama’s first nominee to the Supreme Court—had upheld the city’s reasonable interpretation of this settled piece of law. With this provocative ruling, the court’s conservative majority has sent a clear and ominous signal that the entire architecture of U.S. civil-rights laws may be scheduled for imminent judicial demolition.

Good riddance, said Charles Krauthammer in The Washington Post. Our nation’s “affirmative action” laws were always paradoxical, since they require employers to consider employees’ race as a factor when hiring and promoting in order to create a more equal society in which race is not a factor. Now, 45 years after the passing of the Civil Rights Act, the necessary evil of rejecting white applicants on the sole basis of race is no longer necessary. In a nation with a “black attorney general and a black president,” it’s becoming “less and less justified” to practice racial discrimination against some employees in the name of not practicing it against others.

But if affirmative action and anti-discrimination laws aren’t needed anymore, said the Baltimore Sun in an editorial, it’s up to Congress, not the court, to retire them. Rather than wait for elected legislators to wipe civil-rights legislation off the books, the court’s five conservative justices issued a “confusing, contradictory opinion” that undermines—but doesn’t completely reject as unconstitutional—the good-faith effort by other U.S. cities to encourage racial diversity. And they did so by “engaging in precisely the kind of unwarranted judicial activism that the court’s conservative majority claims to abhor.” To quote every right-winger who rushed to condemn Sotomayor as a “results-oriented” activist judge, the job of a Supreme Court justice is to interpret the law, not make it.