Michael Jackson and the Supreme Court

The massive turnout for Michael Jackson at Tuesday's memorial service at the Staples Center in Los Angeles reflects his success as a crossover artist who appealed to both whites and blacks. The downside is the tributes to Jackson since his death on June 25 have come with a high political price. They have deflected attention from the most racially charged and economically important Supreme Court decision in years.

Four days after Jackson's death, the Supreme Court shifted the way job tests are treated when they have an adverse effect -- in the language of the court, "disparate impact" -- on minorities. The case, Ricci v. DeStefano, involved a promotion exam given by the New Haven, Connecticut, fire department in which the pass rates for minorities were approximately half the rate for whites. As a consequence, no black candidate were slated to receive promotion to the position of lieutenant or captain in the New Haven fire department.

Fearing a civil rights suit, the city threw out the results and promoted nobody. The 17 white and one Hispanic firefighters eligible for promotion then sued New Haven and its mayor John DeStefano. The Supreme Court upheld their suit in a 5-to-4 decision that reversed an appellate court ruling.

Prior to the New Haven case, the precedent in disparate-impact law was thought to have been settled four decades ago in the 1971 Griggs v. Duke Power case. There, a unanimous Supreme Court (Justice William J. Brennan did not take part) ruled 8-to-0 that a test that had a disparate impact on minority workers violated Title VII of the Civil Rights Act of 1964. "The Act," Chief Justice Warren Berger declared in delivering the opinion of the court, "proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation."

In Ricci v. DeStefano Justice Anthony Kennedy, writing for the majority, made a point of going back to Griggs. But what Kennedy emphasized was not disparate impact so much as a second issue the Berger court dealt with -- "business necessity." In striking down the requirements Duke Power had established for promotion, Justice Berger went on to say, "The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited."

But Berger's concern with "business necessity" remained a side issue in Griggs because Duke Power's promotion criteria were not considered job related. Griggs was seen as a civil rights breakthrough because it changed how tests that hurt minorities are viewed. In the succeeding years what came to matter most for federal agencies dealing with racial-test issues was statistical disparity. The Equal Employment Opportunity Commission, taking its cue from Griggs, instituted a "four-fifths rule" in which a test was presumed invalid if one racial group passed at a rate less than 80 percent of another.

Ricci v. DeStefano changed this emphasis on test results. The Equal Employment Opportunity Commission's four-fifths standard was given a back seat, as business necessity went from being a secondary issue to a determining one in Justice Kennedy's majority opinion. "There is no evidence -- let alone the required strong basis in evidence -- that the tests were flawed because they were not job-related or because other equally valid and less discriminatory tests were available to the city," Kennedy argued. The city, he went on to say, simply did not like the results it got and on that basis invalidated the tests. "Without some other justification, this express, race-based decision making violates Title VII's command that employers cannot take adverse employment actions because of an individual's race," Kennedy concluded.

The implications of Ricci v. DeStefano are bound to be far-reaching. In her dissenting opinion, Justice Ruth Bader Ginsberg argued that the majority's decision delivered a significant blow to Title VII of the Civil Rights Act. "Congress endeavored to promote equal opportunity in fact and not simply in form," she observed. "The damage today's decision does to that objective is untold." Ginsberg's comments point to a new reality -- as a result of Ricci v. DeStefano, businesses now have less reason to worry about the racial consequences of their tests.

In the future, minority job applicants who do badly on job tests cannot expect help from the Supreme Court unless the tests they take are flagrantly unrelated to their work. President Obama will, to be sure, put forth Supreme Court nominees more liberal than those of President Bush, but the oldest and frailest justices are liberal (Justice John Paul Stevens turned 89 in April). But even if he ends up winning a second term, President Obama will, barring a miracle, only end up replacing elderly liberal justices with younger liberal justices.

The rightward direction in which the Supreme Court has been moving since the 1980s should continue well into the next decade. Justice Kennedy has replaced retired Justice Sandra Day O'Connor as the swing vote on racial matters, but rather than providing a true swing vote, Kennedy can usually be counted on to side with the court conservatives, now lead by Chief Justice John Roberts. The conservatives believe, as they argued in a 2007 Seattle student assignment case in which Roberts wrote the majority opinion, that racial distinctions that affect whites must be viewed with the same suspicion as those that affect disadvantaged minorities.

For this court, all affirmative action remedies that give nonwhites a special benefit in order to remedy a racial wrong thus rest on shaky legal ground. Indeed, if the racial sensibility of this Supreme Court has any historical parallel, it is with the conservative post-Civil War Supreme Court of the 1880s, in which Justice Joseph P. Story, speaking for the majority, declared, "When a man has emerged from slavery, and by the aid of beneficent legislation shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of mere citizen and ceases to be the special favorite of the laws..."

Who then will challenge the way in which the Roberts court deals with race? As they compete for camera time with Michael Jackson's grieving family, it is apparent that the veteran civil rights leaders such as Al Sharpton and Jesse Jackson cannot be counted on. The irony is that the best person for challenging the racial thinking of the Roberts court may be President Obama's first Supreme Court nominee, Judge Sonia Sotomayor.

Sotomayor was one of three judges on an appellate panel who ruled against the protesting firefighters and in New Haven's favor. Now she gets a second chance to say why she was right to decide as she did. Should she be willing to risk Senate approval, she is in a position to make Ricci v. DeStefano the centerpiece of her confirmation hearings.

Nicolaus Mills, a professor of American Studies at Sarah Lawrence College, is author of "Debating Affirmative Action: Race, Gender, Ethnicity and the Politics of Inclusion."

Comments

[Skeptiqone]

I would like to see the test.

[nightwind928]

If there were valid issues against Sotomayor's nomination this issue would have have been decided, discussed at some length, then forgotten. But since the Republicans have nothing more than smoke and noise in their arsenal to use against her at the hearings, they bring this decision to the forefront as a weapon to create controversy. As for the validity of standardized tests, those who pass always think it's fair. Those who fail, always think it's unfair. The same criteria is presented to everyone, equally on standardized tests. In most cases, like any test administered, even in high school or college, those who pass, study and do their homework. The real question we should be asking is do we really want to apply "dumbed down" tests to those who are charged with protecting our lives, health and personal property in time of crisis. Whats next, a dumbed down entrance exam for a surgical medical license? Or an commercial airline pilots license? Perhaps a civil engeneers license for those who design and construct sky scrapers or bridges? When do questions of color and race overwhelm the validity of using common sense?

[Nudalhade]

HOORAY! Justice has finally prevailed! No one in this country should have any advantage in the scoring of any tests. Weighted scores or thrown-out exams defy equal protection. It's against the law now, and always has been, irrespective of a previous, flawed judicial ruling. There is really nothing more to discuss here.

[Heru1]

hooray for whait supre.macy? no thanks dude

[jakiew]

duh. title VII is so no one can have an unfair advantage. what part of the story did you not read.

[Nommo]

Here's the problem with your analysis. Let us say, for example, that MJ did not die at the particular moment that he did. Maybe 2 weeks earlier, maybe 2 weeks or months later. The ruling would have been the same and lack of response would have been the same even on an for the most part insignificant news day.

This kind of stuff did not happen overnight or however long it took for the decision to be rendered, it has been brewing for a while. Pretty much since that Civil Rights Act. It is just Plessy all over again.

[EndRacismNow]

I still don't understand the logic that an exam that tests a fireman's knowledge about being a fireman could be racially biased towards whites. The Supreme court ruling was correct. Whites were discriminated in this case. Why do people think the civil rights was about giving preferential treatment to minorities. It was about making everyone equal under the law. These people were all given the same test. It just so happens very few minorities tested high. This does not mean that minorities are unintelligent or lazy. It just means that with this group of humans being tested, whites and one Hispanic scored the best. The decision should have been 9 - 0. It is a simple case of discrimination. Or can whites not be discriminated against in your people's twisted view?

[DennisMM]

From what I've read, it has to do with comparative performance on multiple-choice tests, between blacks and whites. In oral tests, or practical demonstrations, or even other sorts of written exams, studies apparently have demonstrated that racial disparities are smaller.

[EndRacismNow]

So multiple choice is to blame? I'm white and I don't enjoy or do very well on standardized tests. And I'm not stupid. It just doesn't make a whole lot of sense to me. The tests don't fairly test intelligence I would agree upon but why would race have anything to with that?

[sixyfivepercentwater]

I have been wracking my brain trying to figure out how an entire test could be skewed so that any minority would be at a marked disadvantage. I cannot think of any special knowledge or experience white people have which has been denied across the board to people of color, to the extent that this information blackout would significantly impact test scores of the minority applicants. Surely, in this day and age, everyone has access to the same information through libraries and the internet. Am I to believe that when I talk to a person of color there are certain things they simply cannot comprehend? I really question that premise.

[Heru1]

try reading the questions Sherlock

[MrJoyboy]

I believe you meant "Warren Burger" of the Burger court.

[cfnorton]

Critical comments of this article regarding the death of Michael Jackson are a distraction themselves. The writer's reference to MJ's death was merely a way to frame the column, albeit a clumsy one. The real analysis should come by asking where in the article is the argument made that the decision is wrong on the merits and why. The writer quotes Justice Kennedy himself saying "There is no evidence -- let alone the required strong basis in evidence -- that the tests were flawed because they were not job-related or because other equally valid and less discriminatory tests were available to the city," Without knowing the content of the test, it's difficult to make a persuasive argument that racial equality is being threatened in this case unless the writer's aim is to champion minority preference over achievement in what appears to be a fair exam.

[GardenerNorCal]

I agree Michael Jackon's coverage couldn't have stopped this ruling. It's no longer about what is right and fair, it's more about who owns the supreme court and right now the republicans do. For average citizens what exactly is it we could have done?

[aquarius2001]

This ruling, like the death of MJ, was a sad day in America. It completely undermines the intent of Title VII and sets us back decades. While those that have posted comments here take offense to the comparison and mentioning of MJ's memorial service as a distraction, I understand the author's point and can only hope that this very important decision will regain national attention.

[GardenerNorCal]

And what can we do about it?

[LeonBNJ]

The death of Michael Jackson and the excessive media coverage of it and of his life meant many important news stories ignored, not just this Supreme Court case. This is a continuing pattern of the news media, with too much national coverage of what are local crimes, not enough of issues like health care and the bad economy. At least PBS news paid attention to the real issues and little to the death of MJ.

[jade7243]

The fact is there is NO media coverage when there is nothing "earth-shattering" is going on. MSNBC broadcasts not a lick of international news during its broadcast day. Five hours of morning coverage is gven to lop-sided political chats shows, the evening hours are more chat, overnight is chat reruns. The weekend is marathon "Lock Up" or "To Catch a Predator" sex offenders. The talking heads are more interested in shouting matches, not imparting knowledge.

The sad fact is nothing got overshadowed by MJ's death because they don't cover the news. And the most pressing "breaking news" is a freaking car chase or a missing white girl.

The news business doesn't cover these issues because they don't make ratings and they believe what makes ratings is what is of interest to mainstream (read as "white" -- the "real") America. And rather than helping people understand what exactly is in Title VII and how exactly tests can be biased to favor one group over another, you get Natalee Holloway. And the idea of having a diverse enough staff to discuss these matters intelligently is a whole 'nother kettle of fish.

[clsmithj]

as I recall the Republicans were gearing to pull an onslaught attack on Obama's supreme court nominee after they found that the Supreme Court had ruled against her lower court ruling in regards to these affirmative action job raise tests. Reverse discrimination charges.

You ought to be thanking MJ for overshadowing this divisive topic.

[jade7243]

Make that "each" ... oops.

[jade7243]

Please do not blame Michael Jackson for dying at an inconvenient time and taking the nation's eye off the affirmative action "national discussion on race" ball. MJ had nothing to do with Americans not paying attention to Ricci v. Stefano when the case was in federal district court in New Haven, or in the Second Circuit Court of Appeals or finally in the Supreme Court. Americans -- especially those who claim "reverse discrimination" -- only get incensed about them when they feel their privileges are about to be restricted. Otherwise they don't give a D _ _ _.

To prove my point, the very same Americans you claim were so distracted by Jackson. couldn't be bothered to understand the subtleties of PICS v. Jefferson County, KY and Seattle -- another "reverse" discrimination case determined to return us to segregated schools. MJ was very much alive during that case, and it got little notice. People didn't care much when the state of Michigan's voters voted out affirmative action in state employment and state university admissions.

Eash is a serious case. But when, briefly in the run up to the decision, Chris Matthews claimed the white firefighters should prevail because of "tradition," no one nipped that in the bud. Michael Jackson had nothing to do with that.

It's a faulty analogy. Try again.

[Mecheng]

Rather than blame tests and continue to ask the Supreme court to condone race discrimination (what would have been the result if Ricci had been black and studied hissass off?), blame the NEA and AFT for the terrible job they are doing with public schools. Wait, you cannot do that. The NEA and AFT are loaded with liberal Democrats who lined the pockets of Obama's campaign with $$ and never want to be held accountable for anything.