Mon, 13 Jul 2009 19:10:16 +0000 –
Bad law is the worst sort of tyranny.
The U.S. Senate hearings on Judge Sonia Sotomayor are going to focus in part on Ricci v DeStefano, a case in which Sotomayor was reversed by the Supreme Court. The case involved the city of New Haven, Connecticut throwing out the results of a fireman's exam after no black candidates qualified for promotion after taking it.
A plethora of partially prepared pundits have offered their opinion that the case was about racism against white people, and since a ruling by Supreme Court nominee Sotomayor is reversed, it raises the issue that perhaps she does a little Caucasian hatin' herself.
I'm certain those pundits who say so have not taken the time to actually read the 87 page Slip Opinion issued by the Supreme Court. If they read it, they would know the demon we face is not racism, it's bad law writing by Congress, who tries to cure the social ill of racism (real or perceived) by social engineering.
What Congress ends up writing is horrifically vague laws no one can follow, that cause more problems than they solve, leaving towns like New Haven Connecticut to do no more than choose which race of people will eventually sue them.
Pretend you were involved in this case to see if the issue is as clear as some pundits say, or if it even has anything to do with race. Tell me what you would do.
Let's say you are the Mayor of New Haven, Connecticut. You want to have a fair test to see which firefighters are the best so you can promote them to lieutenant and captain. You hold a test, and 17 white people and 2 Latinos score high enough for immediate promotion, while no black people who took the test qualify.
So, Mr. or Ms. Mayor of New Haven, should you go ahead and certify the test results so you can make the promotions? You want to follow the law, so you ask the City Attorney for an opinion.
The City Attorney tells you Title VII of the Civil Rights Act of 1964 prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin. It is known as the "disparate treatment"rule, and it basically means you can't treat people differently based upon race. That includes white people.
The answer is therefore easy. You can't discriminate against the white people who passed the test, so you pull out your ceremonial pen with the feathers on it to certify the test results and make the promotions.
"Not so fast, Mayor" says the City Attorney. "Title VII has ANOTHER section to it. It is against the law for New Haven to have this: '...a policy or practice that, although NOT INTENDED to discriminate, has a disproportionately adverse effect on minorities.' It is known has the disparate impact rule. Since the score here was white people 17, black people 0, the test seems to have had a 'disparate impact' on black people even if New Haven didn't intend it."
So you the Mayor say to the attorney, "But the test was fair, about firefighting, and not race based. Shouldn't that alone be enough to allow me to certify the results?" "Actually you're on to something, Mayor," says the attorney. "Title VII does say that if the test is 'job related for the position in question and consistent with business necessity' then you can certify the results."
"OK, then it's settled," you as the Mayor say. "I'm certifying the test results and making the promotions." "Not so fast again," says the attorney. "Title VII has YET ANOTHER SECTION that says even if you show the test was neutral and a business necessity, the black test takers can still win a lawsuit if they show that you refuse to adopt 'an alternative practice that has a less disparate impact' which still serves New Haven's needs. Whatever that means! (chuckling)"
Looking for clarity in this morass of laws, you say, "Now wait just a doggone minute there, counselor. Are you telling me if I don't certify the test I get sued by the white people under the "disparate treatment"rule, but if I do certify the test I get sued by the black people under the 'disparate impact' rule?"
"That's right," says the attorney. "Well what should I do?" pleads you the Mayor. The attorney replies, "My job is to show you the fork in the road, not choose for you which way to travel. Other than that, I'm just on this job to pad my pension and get the dental coverage offered by the city."
Wow! Thanks to the bad law writing Congress did in Title VII, all a city like New Haven can do is pick a winner knowing the loser is going to sue. The Supreme Court did nothing in the Riccicase to fix that. Their ruling says that a town like New Haven should only throw out the test results if "...the employer [has] a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action [of throwing out the test]."
What does that mean for New Haven and every other town in America? Buy a magic 8-ball, shake it, and ask it if the city will win or lose when the black firefighters sue. If it says lose, throw out the test; if it says win, promote the white guys.
The sad and under-reported fact in this case is that this test was taken back in 2003. Frank Ricci and the other successful test takers have waited 6 years to get their promotions, and have had to wind through a judicial processes with a bad law whose legalese is so vague the supposedly 9 smartest lawyers in the country who sit on the Supreme Court are still split 5 to 4 on what it all means. That means it's a bad law.
There were no racists in this story -- not the city of New Haven, the firefighters, the test makers and not Sonia Sotomayor. There is a bad law here; bad because it is so complicated no one can follow it.
This is what happens when the federal government thinks it can create utopia by solving every real and make-believe problem by taking the decision-making authority away from local officials and putting it in a statute. Unfortunately, we now have an administration in Washington, D.C. hell-bent on writing more such laws that allow the federal government to control our lives.
Read more Tommy De Senoat www.JustifiedRight.com
Tommy De Seno is an attorney in New Jersey and contributor to Ricochet.com.