Dr. Christopher Metzler: While America Slept

by Dr. Christopher Metzler, Georgetown University

As we worried about whether Michelle Obama should have touched the Queen, whether Bo (the White House dog) will be as famous as Barney and whether Levi Johnson of Sara Plain fame practiced safe sex all of the time, the Supreme Court of the United States was wading into the racial water with an American public that is now ensconced into "post-racial" cocoon because of the election of Barack Obama.

This week the Roberts court heard the case of Ricci, ET Al. In this case, several white and one Latino firefighter in New Haven Connecticut asked the Court to decide whether the city violated Title VII of the Civil Rights Act of 1964 and the United States Constitution by throwing out a promotion test in which the plaintiffs but no blacks scored high enough to be promoted. The rather clinical legal questions are:

• Whether the city's failure to certify the results of promotional exams violated the disparate (or different) treatment provisions of Title VII of the Civil Rights Act of 1964.
• Whether the city's failure to certify the results of the promotional exams also violated Title VII since Title VII makes it unlawful for employers to "adjust the scores of, use different cutoff scores for, or otherwise alter the results, of employment tests on the basis of race."
• Whether the city's failure to certify the results of the promotional examinations violated the equal protection clause of the 14th Amendment to the United States Constitution.

As clinical as these legal question are, they have significant real life political ramifications. Although the plaintiffs in this case are firefighters, the decision will affect employment law, affirmative action, diversity and they way in which employers and others seek to remedy the lingering effects of discrimination. The reality is that not everyone believes that discrimination still occurs in America since slavery has been outlawed, the Civil Rights Act of 1964 has been implemented and President Obama occupies the White House. Regardless of the position one takes on these issues, the significance of the Court's decision cannot be underestimated for many reasons, a few of which I have outlined below.

First, the Roberts court has not spoken on race in any significant way and is eager to do so. Of course, it is Justice Kennedy who will ultimately decide this case and both the liberal and conservative blocs of the Court will work to craft a decision which he can sign onto. The difficulty for the liberal wing of the Court is that this case is as much an ideological case as it is a legal one. Good old fashioned liberal ideology will require a decision which reaffirms the need for government to be zealous in forming race-conscious decisions. In order to uphold the city's decision, the liberal wing will have to convince Kennedy that the city's decision to refuse to certify the test results was based on the fact that the test impacted Black fire fighters negatively and worse because it ensured that none of them would be promoted.

Given that so many Americans now believe that the election of President Obama is proof that America is "race blind," this argument will run into political headwinds. The Court's decision will reveal whether it relies on the political or finally acknowledges that American legal decisions because of the ideological shift of the courts are both political and legal and thus not neutral.

Congress prohibits both disparate treatment (treating someone different because of race) and disparate impact (discrimination where an ostensibly neutral practice such as the test, disproportionately impacts a group because of race). The question is, how the Roberts Court views disparate impact since, in theory anyone who fails the test (be they Black, White, Asian or Latino cannot be promoted). The Roberts Court will have to judge both the theory of equality and the reality of inequality in an effort to reach a decision.

Second, one can only hope that the Court will not make a decision in which it instructs employers to avoid thinking about how employment related decisions can and do have racial implications as to do so will simply be as divorced from reality as anyone can be. Moreover, cities and states in the not so distant past denied Blacks the right to vote ostensibly not because they were Black but because they could not pass the "voter exam" or pay the poll tax. Thus, employers cannot craft anti-racist employment policies without first examining whether racial bias is embedded in supposedly neutral tests.

The conservative bloc of the court will argue that the City should not reward the black firefighters for failing the tests. They will posit that race has nothing to do with the test and that the tests are simply designed to promote the "most qualified" firefighters to the next level. To do so will require a through and sifting analysis of whether "most qualified" is a neutral term or whether it has cultural and racial implications. The conservative bloc will argue that qualifications are neutral and that valid tests, such as the one in question here, are an equalizer.

Of course, they would be hard pressed to prove the degree of rationality of the tests and its correlation of it to promotion. This wing then will rely on the rhetorical claim of equality in testing without examining the flaw in the rhetoric and the reality of a still racial America. The argument in sum is that the test cannot be discriminatory because employers no longer discriminate against Blacks. Thus, the firefighters failed the test not because of racial bias but because they are ill prepared to be leaders in the department.

Given the "post racial" hysteria that has enveloped this country, this may in fact be the winning argument. Thus, the Roberts Court may have political cover to issue a decision which elevates the theoretical rhetoric of equality in a substantively unequal America. The question then becomes whether Congress will have the fortitude to resolve the dilemma with the support of the President.

Dr. Christopher J. Metzler is associate dean at Georgetown University and the author of The Construction and Rearticulation of Race in a Post-Racial America.

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