George F. Will, on the Ricci decision:
Scalia, concurring separately, said Monday's ruling "merely postpones the evil day" on which the court must decide "whether, or to what extent," existing disparate-impact law conflicts with the 14th Amendment guarantee of equal protection of the law. Conceding that "the question is not an easy one," Scalia said: The federal government is prohibited from discriminating on the basis of race, so surely "it is also prohibited from enacting laws mandating that third parties" -- e.g., a city government -- "discriminate on the basis of race." Scalia added:"Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end? Surely he would. Intentional discrimination is still occurring, just one step up the chain."
The nation shall slog on, litigating through a fog of euphemisms and blurry categories (e.g., "race-conscious" actions that somehow are not racial discrimination because they "remedy" discrimination that no one has intended). This is the predictable price of failing to simply insist that government cannot take cognizance of race.
More from Scalia's concurrence:
The Court's resolution of these cases makes it unnecessary to resolve these matters today. But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how--and on what terms--to make peace between them.

Add to Newsvine
Add to StumbleUpon
I agree that it is probably time to drop affirmative action while vigorously addressing discrimination. That conservatives fail to acknowledge the persistence of discrimination either shows they are oblivious to what goes on in this country or that they are unconcerned about it.
The notion behind "all men are created equal " is not that we all have equal talents or intelligence. Of course we do not. But rather that we should be equal under the law - no law for white people and another law for black people. When two people of equal ability apply for a job - the question of their race or religion or gender is irrelevant. This is what equality means.
There are I think many negative consequences to affirmative action but surely one is that the legitimate accomplishments of African Americans are denied. Clarence Thomas spoke of the belief that his own academic achievements were dismissed as being a function of preference based on his race - not his hard work.
Ken - I would think it is apparent how economic inequity threatens the stability of our nation - a permanent underclass characterized by race (or religion or gender) that does not fully participate in the benefits of our society would in time rise up - probably violently. I would say there are also moral issues involved. But most of all - it makes a lie of the principles this nation is allegedly founded upon.
Cecilia, thanks for the reply. Granted the existence of the black middle class before the civil rights movement, the South more or less had what seemed at the time a permanent underclass, so prescribed by law. It rose up non-violently, and today that same group of people has far greater economic opportunity.
Politically speaking, “equality” is a concept that has caused far, far more problems than it has solved. We would do well to de-emphasize it, in favor of the pragmatically tested concepts of liberty, excellence and success. Otherwise, we wind up with a stagnant society, dominated by politics, connections and cheap celebrity as the primary means of survival.
Respectfully, Karth, you appear to have read little to nothing of the political history of the US, say from 1780 to the present. Of course, going that far back it would be "aristocratic ties, natal inheritance and social lionization", but I don't see much (if any) difference.
I think Scalia is correct that we need to explicitly address this issue rather than piecemeal it with court decisions. The current decision leaves employers with no good option.
Digression- Having read your blog for a while, I would think that you understand the value of human capital. You occasionally reference economics posts, so you may have some appreciation for the value of economic capital. You seem to understand the importance of cultural institutions, and how they may be difficult to rebuild once broken. So, given the gross injustice of one group being mistreated on the basis of race for hundreds of years in this country, what remedy would you have offered, if any?
Should we have just declared that there would be no more racism and all would be treated equally, ignoring the disparity in human and economic capital accrued during those years? How would you have enforced this new period of no racism? How would you prove it?
You, like many people, are willing to discuss what is wrong with the remedies used. You clearly detest affirmative action. I think I know what you oppose. What are you for? Give us an affirmative statement. Please fit this in with your conservative (small c) views on social structure, history, tradition and its importance.
Steve
So, given the gross injustice of one group being mistreated on the basis of race for hundreds of years in this country, what remedy would you have offered, if any?
Steve, I've been wondering the same thing, and while I can't speak for the "cons" on this, here's my best guess as to what they think (the most well-intentioned of them, anyway). I think they believe that what made this country great was people coming here with almost nothing, yet successfully making their way on the basis of hard work, discipline, and strong communities and families. The immigrant success stories with which American history is replete are evidence that people with the right values can overcome poor beginnings and other hardships pretty fast, within a generation or two -- that is, possibly in own lifetimes and certainly in those of their children or grandchildren.
Moreover, people choose what values to live by. Thus, a mom who gets her young black son up at daybreak every day to study, and a son who internalizes that kind of discipline instead of rebelling against it, can legitimately hope that he'll eventually graduate from Harvard Law School and become President of the United States. Such examples may still be too rare, but they prove what's possible if people apply themselves.
It's been many generations since African-Americans lived in slavery. Granted, there were further generations in which legal segregation kept them in a lower caste (I think conservatives have still not fully processed this, or their own sorry role in it), but even that situation is now fast receding into the past. So, what's holding down African-Americans now? Basically, lots of bad individual decisions on their part. If it's anything larger or collective -- if we need a sociological term for it, other than just "wrong values" -- then we can call it a "ghetto mentality" or a "social pathology," but it boils down to people choosing not to mainstream themselves and take advantage of the opportunities that are already there.
From this perspective, affirmative action isn't just unnecessary, it's positively damaging because it amounts to a system for rewarding people who aren't doing what's needed to make it on their own. Thus, it encourages the very pathologies we should be trying to clear away. In the New Haven case, perhaps it was the idea that the system was stacked in their favor that led black firefighters to work less hard or study less for the test than the white firefighters who scored ahead of them.
The "remedy" that conservatives favor, therefore, is moral suasion: convincing more people to be good parents, to marry before getting pregnant, to get their kids up at dawn to study, to practice the kind of love and discipline whose absence creates the vacuum that street gangs, hip-hop culture and the like end up filling. Mostly this is not a matter of government policy at all, although government policy done wrong can aggravate the problem in various ways.
That's what I think they think. If someone wants to correct me on any of this, great. It's the best case I can see from the conservative side, but maybe I'm missing or distorting part of it. Of course, I think it's wrong in a number of ways -- not just in overlooking how human capital works, but in erroneously crediting the success of other groups and individuals to their own efforts, when in fact they also had the advantage of all kinds of favorable government policies and even subsidies that are conveniently forgotten today. What do you think of it? To what extent does it not answer your question?
Post a Comment
By submitting these comments, I agree to the beliefnet.com terms of service, rules of conduct and privacy policy (the "agreements"). I understand and agree that any content I post is licensed to beliefnet.com and may be used by beliefnet.com in accordance with the agreements.