Juan Williams declares that affirmative action is dead, put to rest by the Supreme Court in the Ricci case.
This “news” will come as a surprise to college admissions offices which, in the coming school year, will admit Africian-Americans with grades and SAT scores so relatively low that sensible white applicants with the same credentials will not even apply. It will come as a surprise at law firms where similar “race norming” will occur within the next few months as the 2010 “summer associates” are selected. And it will come as a surprise to municipalities that rountinely award contracts to minority firms (or firms that pose as such) based on racial considerations.
Williams is often a sensible guy, but he is off-base here. His thesis is that employers will stop preferring minority candidates because, after Ricci, they have “no protection from reverse-discrimination lawsuits.” Thus, frets Williams, “virtually every instance of affirmative action can now be forever tied in a legal tangle that chokes the life out of it.”
But this analysis overlooks several key points. First, an employer that declines to grant racial preferences also faces a substantial risk of litigation. For if, as was the case with the New Haven fire department, an employer’s hiring or promotion practices fail to produce “proportionate” selection of minorities, these practices can be “tied in a legal tangle.” It was the threat of such litigation that caused New Haven to discriminate against Frank Ricci and the other plaintiffs.
In other words, the Supreme Court’s decision simply levels the playing field when it comes to assessing the litigation risk. It does not enable employers to abandon race-based hiring and promotion without fear of being sued. Moreover, employers that are federal contractors still must answer to the U.S. government for any racial imbalances if they wish to continue doing business with the feds.
Second, Ricci involved an employer that administered a test and then discarded the results because African-Americans didn’t do well enough. This sort of blatant, intentional discrimination no longer will be countenanced — the employer must now show a “strong basis in the evidence” for believing that the test could be successfully challenged as unlawful before discarding the results.
But most employers still have the flexibility to eschew tests or to water them down by adding a subjective component to the selection process. The intentional nature of such discrimination will be easy to mask, unlike in the Ricci case where the test had already been given and the city was pressured by “civil rights” activists into ignoring the results.
Whether the demise of affirmative action would be a good development is a separate question. Williams answers it in the negative based on the fact that the nation is rapidly becoming more diverse, while African-Americans and Hispanics lag substantially behind whites in job market success. But absent evidence that minority groups lag behind due to discrimination by employers. Williams’ point is more an explanation why affirmative action will thrive indefinitely than an argument that it should.
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