My colleague Justin Quinn at About.com: U.S. Conservative Politics has blogged a rebuttal to my last piece on the Supreme Court's Ricci v. DeStefano ruling.

Much as I hate to argue with a blog entry that begins on such a kind note, this is not an academic argument among friendly bloggers. This is a ruling that could have a long-term negative impact on civil rights in this country.

Justin writes:

In this case, the City of New Haven, Conn., bowing to threats of litigation from its minority firefighters, discarded the test's results solely on the basis of the firefighters' race, a direct violation of the Civil Rights Act of 1964.

The litigation in question would also have been filed under the Civil Rights Act of 1964, and this is the crux of the case. The municipal government of New Haven, after a series of Civil Service Board hearings, decided to throw out a test on the basis that it might have had a racially discriminatory effect on promotions. White firefighters sued on the basis that the test should not have been thrown out.

It is easy to imagine that the Supreme Court could have ruled 5-4 in the opposite direction if the city of New Haven had not thrown the test out. Or the Supreme Court could have ruled, in a manner otherwise consistent with the views of the 5-4 majority, that the decision faced by city leaders was too difficult to warrant a lawsuit filed by either side. Instead, five justices decided that the test obviously should not have been thrown out, and that the white firefighters obviously should have benefited from the test's racially disparate effect. It is suddenly extremely difficult for a local government to comply with Title VII regulations, because there are now precedents that would justify liability on either side of the question.

A conservative judicial philosophy would have reduced liability. By increasing liability in a manner that functionally weakens the Civil Rights Act by making compliance with the Act a potential violation of the Act, the Court has undermined civil rights law.

Justin further writes:

Last week, the Supreme Court issued a 5-4 ruling in the reverse discrimination case regarding 19 white firefighters and one Hispanic firefighter who were denied promotions because they outperformed African American firefighters on an objective exam.

Actually, contrary to what has been reported on much of the conservative blogosphere, both African-American and Latino firefighters were disparately affected by the test. In fact, the pass rate for Latino candidates was the same on the captain exam (37.5% for both African-American and Latino candidates), and lower on the lieutenant exam (20% for Latino candidates versus 31.6% for African-American candidates). Pass rates for both groups are well beyond the EEOC's criterion for disparate-impact assessment, and Justice Kennedy himself acknowledges this on page 27 on the ruling. I point this out not as a criticism of Justin, but merely as a reminder of the importance of reading the text of the ruling itself (Adobe PDF) rather than relying on secondary sources, which often paint an inaccurate picture of the circumstances surrounding a ruling.

Furthermore, the test was not an "objective exam"; like all exams, it had authors. In this case it was designed by a private business to satisfy an antiquated union agreement that overemphasized written test material relative to oral interviews, and subsequently produced racially disparate outcomes relative to the testing system used in nearby Bridgeport, which did not produce racially disparate outcomes. The Bridgeport testing regime would have a far more credible claim for objectivity, particularly given New Haven's peculiar history on the issue of racial discrimination within the fire department--which is why New Haven's history on this issue, brought up by Justice Ginsburg in the dissent but dismissed by conservative bloggers (including Justin) as an example of "left-wing judicial activism," is in fact completely relevant to the question of assessing disparate impact under Title VII. Even Justice Alito tacitly acknowledges the legitimacy of Justice Ginsburg's invocation of New Haven's history in his concurrence to the majority ruling. It is impossible to assess disparate impact without some sense of context. Indeed, the entire corpus of civil rights law is written as a specific response to a troubling discriminatory context--not as an imposition of abstract principles, but as a direct response to the legacy of racial segregation. Whether the history of New Haven's fire department is relevant to the ruling or not, the question of its relevance is relevant. The local context of disparate impact must be acknowledged, even if it does not alter the outcome of the ruling.

Minority firefighters in Connecticut already knew that Bridgeport presented more opportunities for minority candidates than New Haven did. New Haven city officials tried to make their system more like Bridgeport's in order to address the most recent demonstration of this disparity, which is exactly what Title VII asks them to do. The Supreme Court punished them for it.

But the damage this ruling does goes much deeper than that. It will almost certainly have a chilling effect on any city governments that attempt to correct racial inequities directly, that prioritize equal opportunity. Worse, it moves us further in the direction of an interpretation of Title VII that, as Justice Scalia implies in his concurrence, could eliminate disparate impact--the actual effect of discrimination--from civil rights law entirely. The more the Supreme Court prioritizes intent (which does not directly produce any evidence) over effect (which by definition does), the weaker civil rights law, in general, becomes. This is true of Title VII, and it is also true of the Voting Rights Act. Courts do not have the power to read minds, and a system of civil rights law that operates on the premise that they do will not be very effective at actually achieving its goals. This is the real tragedy of the Ricci ruling: it represents a small step backwards in the history of American civil rights, and it removes one of the few weapons local governments have against racial discrimination. It does so unnecessarily, as an expression of five justices' philosophical opposition to a broad disparate-impact standard, and it does so capriciously, in a manner that could not have been predicted based on prior Title VII rulings and in a manner that is aggressive, punitive, and does not reflect the sort of judicial-consensus via media approach that Chief Justice Roberts once claimed to value.

Worst of all, in a country where racial disparities shave as much as a decade off of life expectancy and as much as $20,000 off of median annual household income, this ruling may have a human cost extending far beyond the city borders of New Haven. If local governments cannot make good-faith attempts to remedy the racial disparities that they create without fear of litigation, then the federal government may become in some respects an enemy of equal opportunity rather than an an instrument of it. I will watch how lower federal courts interpret Ricci very closely, but I do not have high hopes.

Related:

• In Ricci, Supreme Court Majority Saw No Moral Complexity

The first thing I had to realize about Ricci v. DeStefano, the Title VII ruling handed down by the U.S. Supreme Court on Monday, is that it isn't as simple as it looks.

Conservative pundits refer to it as an "affirmative action" case, but technically, it isn't. Title VII isn't an affirmative action statute; it's the nondiscrimination statute that makes up the heart of the Civil Rights Act of 1964. At issue is discrimination against members of ethnic groups. In this case, the members suing on the basis of Title VII are white. The fact that they are white does not make it an affirmative action case. It is important not to confuse the political atmosphere of the ruling--wrapped up in the myth of the "more qualified white candidate" vs. "the affirmative-action minority hire"--with the details of the ruling itself.

At issue is whether the New Haven fire department could be sued under Title VII for rejecting an exam, after the fact, that led to a conspicuously low number of non-white promotions. This is not the first case in which an entity has been successfully sued for discriminating against whites, but it does ask what I think is a new question for the Supreme Court--namely, whether an institution can violate Title VII by working too hard to comply with Title VII. The New Haven fire department could have been sued by non-white students if they had retained the exam, which contains material not relevant to the occupation and seemed to be discriminatory in its effects, or sued by white students if they had discarded the exam. They erred, if they erred at all, on the side of caution--discarding the exam's results. Read more...

Democracy is voting. Voting is democracy. A country is only democratic to the degree that the binding votes tallied represent the will of the people.

And by that standard, there are no perfectly democratic governments--though some are far worse than others. Democracy is indeed, as Donna Brazile remarked in a recent interview, "a work in progress." Long lines at polling places keep away urban voters in high-population, low-income areas, while low wait times give higher-income voters a leg up. But when we compare the status quo to the status quo ante, it's clear that we're much closer to a perfect democratic system of government than we were 50 years ago.

So much of that can be attributed to Section 5 of the Voting Rights Act of 1965 which, if you believe so many of these headlines, the U.S. Supreme Court "upheld" with an 8-1 majority yesterday. But the fine print reveals that the Court didn't uphold Section 5 at all--it just saved the constitutional question for another day--and there are strong indications that Section 5, holding states with a history of segregation to a higher degree of federal scrutiny in matters pertaining to voting rights, may have only been one or two justices away from being repealed.

Would it matter if it had been? In his lone dissent, Clarence Thomas argued in the negative. But his argument is less than compelling:

The lack of sufficient evidence that the covered jurisdic­tions currently engage in the type of discrimination that underlay the enactment of §5 undermines any basis for retaining it. Punishment for long past sins is not a legiti­mate basis for imposing a forward-looking preventative measure that has already served its purpose. Those sup­porting §5’s reenactment argue that without it these jurisdictions would return to the racially discriminatory practices of 30 and 40 years ago. But there is no evidence that public officials stand ready, if given the chance, to again engage in concerted acts of violence, terror, and subterfuge in order to keep minorities from voting.

Yes, but...

1. The very purpose of Section 5 is to prevent such evidence from manifesting itself in the form of unjust voting regulations.
2. Under the definition of discrimination outlined by Justice Scalia in his dissent in last year's Indiana voter ID case (a dissent that Justice Thomas joined), even unfair voting regulations can't be considered discriminatory unless the justices of the Court are somehow prepared to prove that the legislators intended for it to be discriminatory. Since Supreme Court justices are not noted for their ability to read the minds of strangers, this effectively means that even the most stereotypical Jim Crow laws, such as poll taxes and literacy tests, would pass constitutional muster under Justice Thomas provided that they were not officially designated as racist by their authors.

The Court's 8-1 ruling was correct inasmuch as it did not strike down Section 5, but that gives us no indication of how close the Voting Rights Act might be to extinction.

Barack Obama has only been in office for five months. It's too early to call him a disappointment.

But on civil rights, he just hasn't done enough. Everything he has done has been marked by an asterisk--a half-measure, a compromise:

• Yes, he banned torture by U.S. personnel. But he left torture by extraordinary rendition intact, and has so far refused to seriously investigate Bush-era torture, even blocking the release of Gitmo-esque photographs documenting additional torture.
• Yes, he promised to close the detention center at Guantanamo Bay as one of his first acts in office. But so far that promise has not been actualized, and he has resurrected military commissions to deal with Gitmo prisoners.

And on lesbian and gay rights, he has utterly and completely dropped the ball--failing to use his bully pulpit to advocate for new LGBT rights legislation, inviting one of Proposition 8's most vocal supporters to deliver his inaugural prayer, and, most recently, allowing his administration to issue a ridiculous anti-gay brief in support of the Defense of Marriage Act (DOMA). While much attention has been brought to the fact that the brief peripherally associates same-sex marriage with marriages involving first cousins and 16-year-olds, I think the most damning excerpt can be found on page 27:

"DOMA does not prevent gay and lesbian couples from marrying. It does not prohibit the States from acknowledging gay marriages. And it does not in any way penalize those couples, or States, that do so. Instead, plaintiffs' claims rest on the asserted right to receive federal benefits on the basis of a relationship other than the sole relationship on which Congress (and many States) have decided to base eligibility for such benefits. Thus, properly characterized, the right asserted here is far from fundamental, as there is no constitutional right to State or federal financial benefits."

In a legal sense, State and federal financial benefits are essential to the definition of marriage. That's the whole point. State marriages do not confer sacraments; they confer concrete legal benefits, such the ability to file federal taxes jointly. Loving v. Virginia (1967) has already established that full legal marriage is a fundamental right. There was no concurrence in the ruling stating that if Virginia wished to deny interracial couples certain "financial benefits" available to same-race couples, it would be constitutional to do so--because such a position would have been recognized as ludicrous, legal marriage being defined in part by financial benefits.

It would be unrealistic to expect the Obama administration to pass the entire LGBT civil rights agenda within the first six months of his presidency, just as it would be unrealistic to expect the LGBT rights movement to sit on its hands and not argue that he do exactly that. But the least we should be able to expect from the Obama administration is for his officials to demonstrate the same slyly halfhearted approach in defending DOMA that his administration has demonstrated with respect to banning torture and closing Guantanamo Bay. File the bare minimum. Don't let your attorneys make a comprehensive argument against same-sex marriage--or rather, now that the brief has already been written and filed, do everything you can to make it clear that (a) it does not represent the views of your administration and (b) the mistake will not be repeated.

President Obama has damaged his standing among the LGBT rights community. Whether he has done so irreversibly (as President Clinton did) or temporarily will depend on what he does over the coming years. Either way, this is a really, really bad time to hit LGBT donors up for more funds.

Related: Four Reasons to Support Same-Sex Marriage