One key focus of attacks on Sonia Sotomayor is her decision in the Ricci case, rejecting a claim of "reverse racism." The first problem with these attacks is that they don't pass the laugh test: Sotomayor was simply following the law, the exact opposite of the activism she's accused of. But the deeper problem is the utter ignorance on which these attacks depend--a cultivated ignorance that goes to the very heart of the 30+ year war against affirmative action.
More than 50 years after Brown v. Board of Education, blacks and other minorities on the whole still receive inferior education, have fewer resources and social connections to facilitate their advancement, face systemic, though largely unconscious discrimination, and suffer from internalized barriers to achievement. While we'd all like to live in a colorblind world, where race and gender would not matter and would never need to be considered, the reality is that we're still very, very far from that ideal state, and simply wishing we were there only distracts us from confronting the reality of the struggle that still remains to get there.
Because significant barriers to equality remain, we have civil rights laws on the books that protect women and minorities from practices that may seem fair on their face, but that have a disparate impact, such that qualified individuals are screened out in significantly higher numbers. The Ricci case involved such a practice, a test for promotion in the fire department, which was afterwards found to be unintentionally discriminatory, and therefore was thrown out by the city of New Haven. In response, Frank Ricci, a white fire-fighter who scored high on the test, sued New Haven, claiming "reverse discrimination." But New Haven was simply following the law. And when Sotomayor rejected Ricci's lawsuit, she was following the law as well. Far from being an "activist judge", she was following both the written law, and well-established precedent. As Stanford law professor Richard Thompson Ford (who appeared on Rachel Maddow's show yesterday) wrote in Slate:
New Haven's decision may sound like blatant racial favoritism, but in fact the city rejected the firefighter exam because the test violated Title VII, the federal civil rights law that prevents discrimination in employment. Title VII requires employers to consider the racial impact of their hiring and promotion procedures in order to prevent discrimination that's inadvertent as well as intentional. Ricci's claim is that the city's effort to comply with Title VII is itself race discrimination (under the 14th Amendment to the Constitution and under Title VII itself).
This argument would undermine an important part of modern civil rights law. Some of Sotomayor's critics argue that, in the era of Obama, we no longer need such proactive policies to promote racial equality. But racism isn't a thing of the past yet. In fact, we haven't corrected the lingering effects of racism that is in the past. It's precisely because overt racism is no longer the main impediment to racial equality that the law against inadvertent discrimination is arguably now the most important part of civil rights law....
There are two ways an employer can discriminate according to Title VII. He can intentionally discriminate by making race a factor in employment decisions-choosing a black candidate over a white candidate because he is black. Frank Ricci claims the city intentionally discriminated when it threw out the exam results because most of the people who scored high were white. An employer can also discriminate by using a selection process that has a disparate impact-in other words, that screens out a particular group for no good reason. New Haven claims that the test it tossed out had a disparate impact. Eight black, 25 white, and eight Hispanic firefighters took New Haven's test for promotion to captain; three black, 16 white, and three Hispanic candidates passed. Nineteen black, 43 white, and 15 Hispanic firefighters took the test to become lieutenant; six black, 25 white, and three Hispanic candidates passed. This result counts as discriminatory under the rules of the Equal Employment Opportunity Commission. New Haven was right to worry about the possibility of a lawsuit from black firefighters if it accepted the results of the tests
The issue of tests and disparate impact can be a seemingly complicated one, as Ford goes on to explain. But there's a well-established framework for dealing with these apparently complexities, and once you understand the framework, it's not really all that complicated:
[P]roperly applied, disparate impact law doesn't excuse poor performance, nor does it require quotas. Instead it smokes out hidden bigotry and requires employers to avoid unnecessary segregation of the work force. Suppose an employer wants to keep women out. Knowing that he can't just put a "women need not apply" sign in his window, he might use a proxy, such as a weightlifting test, knowing that women on average have less upper body strength than men. The law against disparate impact discrimination is designed to reveal such hidden bias. Now, suppose an employer has no desire to discriminate against women but uses a weightlifting test simply because he thinks, all other things equal, stronger employees are better than weaker ones. Disparate impact law also prohibits this: It requires the employer to reconsider job qualifications that favor one race or sex, unjustifiably.
Of course, there might be a good reason to prefer people who are physically stronger-or who score higher on a written exam. The law gives employers a chance to prove that the discriminatory criteria are job-related. The idea, then, isn't to make an employer hire less qualified women or minorities over more qualified men or whites. It's to make sure the employer is testing for job qualifications, not unrelated ones.
What we have, in short, is a carefully-crafted, and well-considered law, which ignorant hot-heads like Rush Limbaugh and Newt Gingrich just love to misrepresent in cartoonish terms, because cartoons are all they are capable of grasping--and we're not talking Simpsons here. More like Itchy and Scratchy.
There is, in fact, an entire academic literature on the phenomena of racial disparities in test-taking. There are a number of different reasons why minorities in various different countries around the world tend to do more poorly as a group on tests than their actual level of ability. Much of this has to do with internalized expectations, and negative stereotyling. A dramatic finding in this field recently receive some high-profile media attention: the emergence of Barack Obama had a dramatic effect in erasing this sort of performance gap among a group of subjects in one study, as reported in the New York Times:
Study Sees an Obama Effect as Lifting Black Test-Takers
By SAM DILLON
Published: January 22, 2009....
[R]esearchers have documented what they call an Obama effect, showing that a performance gap between African-Americans and whites on a 20-question test administered before Mr. Obama's nomination all but disappeared when the exam was administered after his acceptance speech and again after the presidential election.
The inspiring role model that Mr. Obama projected helped blacks overcome anxieties about racial stereotypes that had been shown, in earlier research, to lower the test-taking proficiency of African-Americans, the researchers conclude in a report summarizing their results....
Researchers in the last decade assembled university students with identical SAT scores and administered tests to them, discovering that blacks performed significantly poorer when asked at the start to fill out a form identifying themselves by race. The researchers attributed those results to anxiety that caused them to tighten up during exams in which they risked confirming a racial stereotype.
In the study made public on Thursday, Dr. Friedman and his colleagues compiled a brief test, drawing 20 questions from the verbal sections of the Graduate Record Exam, and administering it four times to about 120 white and black test-takers during last year's presidential campaign.
In total, 472 Americans - 84 blacks and 388 whites - took the exam. Both white and black test-takers ranged in age from 18 to 63, and their educational attainment ranged from high school dropout to Ph.D.
On the initial test last summer, whites on average correctly answered about 12 of 20 questions, compared with about 8.5 correct answers for blacks, Dr. Friedman said. But on the tests administered immediately after Mr. Obama's nomination acceptance speech, and just after his election victory, black performance improved, rendering the white-black gap "statistically nonsignificant," he said.
As noted in this story, there's a significant body of research here, completely unknown to blowhards like Gingrich and Limbaugh, and their clueless audiences. And it's clear that blacks as a whole do not test well compared to their actual abilities. There are also many individuals of all different backgrounds who don't test well, for one reason or another. That's why hiring and promotion decisions are inherently complicated. No one is saying these decisions are easy--no one except obvious incompetents like Gingrich and Limbaugh, that is.
The case is now before the Supreme Court. But it's there because of a decades-long effort by conservative legal activists to overturn civil rights law passed by Congress. If Sotomayor's decision is overturned, it will be an act of judicial activism by conservatives, and it will say absolutely nothing about Sotomayor's fitness to serve on the Supreme Court.
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