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Activism, discrimination and the job of a justice

July 6, 2009
The following editorial appeared on the syndicate PeaceVoice and has been picked up by a number of newspapers across the country.

By Julia K. Stronks, J.D., Ph.D.

In June, the U.S. Supreme Court handed down a highly anticipated decision in Ricci v. DeStefano. White and Hispanic firefighters in New Haven, Connecticut, brought suit against the city when the results of a promotion-related exam were thrown out. The city refused to certify the results of the exam when it was determined that black firefighters had performed at levels lower than others.

This case has been discussed at length by pundits and media outlets because it raises hot button issues of fairness, equality and discrimination. Sadly, however, the case has rarely been discussed with accurate attention to what it actually involved. People have said, “Oh, the judges got it right,” or, “Oh, the judges got it wrong.” In the case itself, however, the judges said little about discrimination. Ricci v. DeStefano is a case about the construction of a federal statute. It is not about equal protection under the Constitution, it is not about reverse discrimination, and it is not about affirmative action. But, it did involve activism on the part of every justice on the Supreme Court.

The federal statute in question is Title VII, an employment statute. Title VII states that employment decisions may not be made with respect to race or other inappropriate considerations such as religion and sex. So, employment decisions must not relate to race in an “overt” way. Saying, “all male employees will receive promotions,” violates the law. But employment decisions must also refrain from having a “disparate impact” on protected groups such as race and gender. Saying, “all employees six feet tall and over will receive promotions,” disparately impacts women, who tend to be shorter than men.

However, there are two big exceptions to this law. First, if the employer can show that the employment decision was related to a “business necessity,” a decision based on race or gender can be allowed. The issue that leads to litigation in these cases, of course, is the nature of a “business necessity.” What is it? Who decides what it is? What if an employer says there is a business necessity but really there is also discrimination in the company? These are all questions for a jury to decide.

The second exception is the one that Ricci v. DeStefano developed. If an employer believes that a race or gender-based action is necessary to avoid disparate impact liability (a lawsuit based on race or gender), the employer may make a race or gender-based decision. In this case, the Supreme Court justices chose to answer a very narrow question: what standard should we use to evaluate the employer’s belief that he or she is trying to avoid disparate impact liability? The five Justices in the majority said the employer must have a “strong basis in evidence” that disparate impact liability will be assessed. The four Justices in the minority said the employer must have only “good cause” to believe disparate impact liability will be assessed.

Thus, Ricci v. DeStefano is not an important case by itself. But, it points to something we must be aware of as we watch Supreme Court nomination hearings. There is a lot of discussion about the need for Supreme Court Justices to refrain from “activism.” It is often said that activist judges read too much into the text of the Constitution or a statute.

Ricci v. DeStefano, however, is a case that demonstrates the process judges must go through when faced with a statute that is not clear on its face. Both the minority and the majority justices analyzed what should be done when an employer believes that a race-based action is necessary to avoid disparate impact liability. The problem is that this entire exception is not in the statute itself. It was developed in Supreme Court jurisprudence. In addition, the entire discussion about “strong basis in evidence” versus “good cause” belief is also based in jurisprudence rather than in the text of the statute.

All judges have to interpret the meaning of laws. It is rare that a law is completely clear—every justice on the Supreme Court engaged in some form of activism when handing down Ricci v. DeStefano. So, “activism” on the part of judges is often a false criticism. We must be very careful when listening to pundits who use that term when assessing judges.

Julia Stronks has a law degree and a Ph.D. in American government and is a professor of political science at Whitworth University. She has written numerous books on faith, citizenship and law.

Note: The opinions expressed in works written by Whitworth faculty and staff do not necessarily represent the views of Whitworth University or members of its community. They are, however, symbolic of Whitworth’s commitment as a Christian university to the free exchange of ideas.