Today’s New York Times editorializes on the Ricci v. DeStefano decision. They point out, correctly, that the 5-4 ruling in favor of the plaintiffs is hardly a stinging rebuke to Supreme Court nominee Sonya Sotomayor, who ruled against them earlier as a federal circuit court judge. The dissenting view is not an opinion of some radical crackpots.
However, the Times also says this:
Cases like this, even the dissenters concede, pose difficult questions of fairness. New Haven’s decision to reject a test on which one group did poorly hurt other firefighters, who studied hard and were not to blame for the test’s flaws. But in the end, as Justice Ginsburg noted, New Haven was within its rights not to use a flawed, possibly illegal, test to make its promotions.
Of course, the test’s only “flaw” is that not enough black and Hispanic test-takers passed it with high enough scores. As the majority carefully explains, the test was devised with painstaking attention to fairness, with black and Hispanic reviewers involved in the process. The view that the racial disparity alone makes it flawed and even illegal may not be “racist” (I think we need to draw a moral distinction between race-conscious policies intended to subordinate and stigmatize a group of people, and race-conscious policies intended to remedy past wrongs), but elevating race-consciousness over standards to this degree seems to me deeply polarizing, counterproductive, and yes, discriminatory. The bare fact is that Frank Ricci and the other plaintiffs would have gotten their promotions if it were not for the fact of their race.
The Ricci ruling is definitely worth reading in its entirety, particularly for the political atmosphere in New Haven that surrounded the decision to throw out the exam (described in detail in Justice Alito’s concurring opinion).
For antoher take on Ricci and the future of race preferences, see this excellent piece by John McWhorter on TNR.com.