I have one more point to make about Ricci and the ever complicated issue of race. The court somehow managed to create the worst of all possible worlds. The opinion calls into question a very weird test that I doubt most non-lawyers do not understand, the disparate impact test, but upholds it where there is vague "substantial evidence."
I think everyone will be angry with this result. Employers will still tread carefully, fearing lawsuit and conservatives will get annoyed. Liberals will rightly fear that there is a roll back of an important aspect of civil rights.
Furthermore, I think it is important to see what the test gets at, and I am writing this more for my friends who are not lawyers and who may even disagree with me on the issue. However, the disparate impact test was, until yesterday, fairly well enshrined. It said that even if a test appears neutral, you have to look a little further to see if it does have a disparate impact based on race. Why should that care? Because racism in some sense is less open than it used to be. Instead, you need to look beyond the matter and see if you can find some evidence to deduce these motives through some sort of impact.
Now there are defenses. The person in question must show that there is either no other way to achieve the goals that does not cause such an impact. It essentially requires a showing that other means were exhausted. This is not some crazy idea, especially if we move into a world of hidden racism.
And, like I said yesterday, most maddening is that the Court calls this into question without producing a new test.
Linda Greenhouse addresses the issue quite nicely in an Op-Ed today.
As for a broader look of the term, read Tom Goldstein's summary at SCOTUSBlog.
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