The Ricci Case

Suppose you were a large-scale employer trying to make sense of the Supreme Court’s Ricci decision yesterday. You call your human relations counsel to ask: “What did the court just tell me to do?” Answer: “Same as yesterday – only don’t get caught.”

Suppose you were a large-scale employer trying to make sense of the Supreme Court’s Ricci decision yesterday. You call your human relations counsel to ask: “What did the court just tell me to do?” Answer: “Same as yesterday – only don’t get caught.” The latticework of legal rules that created the affirmative action system remains in place. It remains true that non-discrimination is not enough to protect an employer from liability: You may write the words of the 1964 Civil Rights Act into your HR handbook – live by them too – but if you fail to generate sufficient numbers of minorities and women in your workforce, you live in legal jeopardy. Back in the 1980s, the EEOC took jurisdiction of a complaint that alleged that Hooters employed too few male waiters, and the mentality that led to that result continues to govern public and private employment, contracting, and admission to selective educational programs. On the other hand, Ricci continues and expands the Supreme Court’s tradition of recoiling from the logical and necessary consequences of its own prior rulings. From Bakke in 1977 to Ricci in 2009, the Court has again and again slapped down lower courts that made the mistake of taking the Court at its own word. The Court answered, “Well that may be what we said, but it’s not what we meant!” Yes, we wish to punish employers or universities that fail to employ minorities and women roughly in proportion to their share of the general population – but we do not want to see any embarrassing acts of counter-discrimination that too obviously victimize identifiable white men. Holding: proceed as before – but don’t leave fingerprints. Don’t get caught! In the Ricci case, the city of New Haven left fingerprints all over the place. By so flagrantly favoring some identifiable individuals over other identifiable individuals, New Haven violated every prudential consideration for the preservation of the affirmative action system. No wonder it was slapped down. This slapping down might seem bad news for Judge Sonia Sotomayor, who had ruled in favor of the city. Not so! The slapping down offers her the opportunity to explain her potentially unpopular decision as judicially restrained deference to the higher courts – and to insist that as a justice, she will adhere to the new precedent (and to a more sophisticated understanding of the rules of this dishonest game).