While the recent Supreme Court decision in the New Haven
firefighters’ case will be welcome news to those who don’t think that a
gross injustice is O.K. when those on the receiving end are white, the
reasoning behind the 5 to 4 decision is a painful reminder that the law is
still tangled in a web of assumptions, evasions and contradictions when it
comes to racial issues.
Nor have these problems been clarified with the passage of time.
On the contrary, the growing complexity and murkiness of civil rights law
over the years recalls the painful saying: "Oh, what a tangled web we weave
when first we practice to deceive."
The original Civil Rights Act of 1964 was very straightforward
in forbidding discrimination. But, even before that Act was passed, there
were already people demanding more than equality of treatment. Some wanted
equality of end results, some wanted restitution for past wrongs, and some
just wanted as much as they could get.
Opponents of the Civil Rights Act said that it would lead to
racial quotas and reverse discrimination. Advocates of the Act not only
denied this, they wrote the language of the law in a way designed to
explicitly prevent such things. But judges, over the years, have
"interpreted" the Civil Rights Act to mean what its opponents said it would
mean, rather than what its advocates put into the plain language of the
A key notion that has created unending mischief, from its
introduction by the Supreme Court in 1971 to the current firefighters’ case,
is that of "disparate impact." Any employment requirement that one racial or
ethnic group meets far more often than another is said to have a "disparate
impact" and is considered to be evidence of racial discrimination.
In other words, if group X doesn’t pass a test nearly as often
as group Y, then there is something wrong with the test, according to this
reasoning or lack of reasoning. This implicitly assumes that there cannot be
any great difference between the two groups in the skills, talents or
That notion is the grand dogma of our time– an idea for which
no evidence is asked or given, and an idea that no amount of contradictory
evidence can change in the minds of the true believers, or in the rhetoric
of ideologues and opportunists.
Trying to reconcile that dogma with the principle of equal
treatment for all has led courts into feats of higher metaphysics that the
Medieval Scholastics could be proud of.
The dogma survives because it is politically useful, not because
it has met any test of facts. Innumerable facts against it can be found
around the world and down through history.
All sorts of groups in all sorts of countries have been
demonstrably better than other groups at particular things, whether
economic, intellectual, political or military. This fact is so blatant that
only people with great cleverness can manage to deny the obvious. That
cleverness is what creates the tangled web of confusion that has plagued
civil right cases for decades.
Does anybody seriously doubt that blacks usually play basketball
better than whites? Does anybody seriously doubt that the leading cameras
and lenses in world have long been produced by Germans and Japanese? Or that
Jews have been over-represented among the top performers in various
Many groups whose performances have greatly outstripped the
performances of others in a particular field have often been in no position
to discriminate, even when the disparities have been far greater than those
between blacks and whites in the United States.
In a number of countries, powerless minorities have so
outperformed the dominant majority that group preferences and quotas have
been instituted to favor the majority group that has otherwise been unable
to compete. This has happened in Malaysia, Sri Lanka, Nigeria, and Fiji,
among other places. Before World War II, quotas to benefit the majority were
common in a number of European universities, where Jewish students
It is not stupidity, but ideology and politics, which allow the
"disparate impact" dogma to create a tangled web of deception in even the
highest levels of our legal system. The recent Supreme Court’s decision in
the New Haven firefighters’ case was a rare example of sanity prevailing,
even if only by a vote of 5 to 4.