Earlier this month, the Supreme Court agreed to hear the case. The disparate impact theory of liability will be front and center. Thirty-eight years ago, the Supreme Court held in Griggs v. Duke Power Co. that for purposes of hiring, an employer's use of a high school diploma requirement and two standardized written tests violated the Civil Rights Act. Black applicants disproportionately lacked diplomas or failed the tests. Griggs laid out the disparate impact analysis for employment. Absence of discriminatory intent is not the end of the discussion. Even if an employment practice is "facially neutral," (a scored test, for instance) it is suspect if it has a disparate impact on members of a protected class. To avoid liability, businesses would have to demonstrate that such tests are a justified "business necessity" or related to job performance.
The court in Ricci also will take up the issue of skin deep-only diversity. In 2003, the Supreme Court held in Grutter v. Bollinger that racial diversity is a "compelling state interest" that justifies race preferences in college admissions. (Justice Sandra Day O'Connor said the practice won't be necessary in 25 years.) The presence of a so-called critical mass of minority students provides educational benefits for other students.
Granting preferences to and discriminating against individuals on the basis of race are two practices that should have been tossed out of the government decades ago. Is ensuring racial diversity in a fire department a compelling state interest that justifies tossing out test scores because black firefighters failed to make the grade? They need more training and better study habits, not lower standard hand-holding.