In a 1971 case, however, the Supreme Court sowed confusion by holding that the 1964 act proscribes not only overt discrimination but also "practices that are fair in form, but discriminatory in operation." But what New Haven ignored is that the court, while proscribing tests that were "discriminatory" in having a "disparate impact" on certain preferred minorities, has held that a disparate impact is unlawful only if there is, and the employer refuses to adopt, an equally valid measurement of competence that would have less disparate impact, or if the measurement is not relevant to "business necessity." One of the city's flimsy excuses for disregarding its exam results was that someone from a rival exam-writing firm said that although he had not read the exam the city used, his company could write a better one.
New Haven has not defended its implicit quota system as a remedy for previous discrimination, and has not justified it as a way of achieving "diversity," which can be a permissible objective for schools' admissions policies, but not in employment decisions. Rather, the city says it was justified in ignoring the exam results because otherwise it might have faced a "disparate impact" lawsuit.
So, to avoid defending the defensible in court, it did the indefensible. It used anxiety about a potential challenge under a statute to justify its violation of the Constitution. And it got sued.
Racial spoils systems must involve incessant mischief because they require a rhetorical fog of euphemisms and blurry categories (e.g., "race-conscious" measures that somehow do not constitute racial discrimination) to obscure stark facts, such as: If Ricci and half a dozen others who earned high scores were not white, the city would have proceeded with the promotions.
Some supporters of New Haven, perhaps recognizing intellectual bankruptcy when defending it, propose a squishy fudge: Return the case to the trial court to clarify the city's motivation. But the motivation is obvious: to profit politically from what Roberts has called the "sordid business" of "divvying us up by race."
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