The Supreme Court is almost the only place in American society where the "frank" debates on issues of race that Attorney General Eric Holder recently called for actually take place. Justices with lifetime tenure feel free to explore -- camouflaged as legal argument -- the conflicting moral visions that still prevent resolution of America's most important, complex and divisive domestic issue.
That debate is likely to be very much in evidence today when the Court hears argument in Ricci v. DeStefano. The issue in Ricci was simply stated by Judge Jos? Cabranes, dissenting from a cursory, unenlightening opinion by the Second Circuit Court of Appeals. "At its core," he wrote, "this case presents a straight-forward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?"
The employer was the New Haven, Conn., fire department, which in 2003 had a number of vacancies for new lieutenants and captains. The department administered written and oral tests to candidates for these promotions, as required by state civil service provisions and city law. But the city's civil service board refused to certify the results and no promotions were approved. Seventeen white candidates and one Hispanic candidate sued, charging a denial of their 14th Amendment rights, the Civil Rights Act of 1964, and other federal laws.
The board found the racially disparate results of the tests unacceptable. New Haven's population is 37.4% black, but no African-American was among the top performers on either exam. The highest-scoring black candidate for a captaincy ranked 16th, behind 12 whites and three Latinos. On the lieutenant's exam, the strongest black performers ranked 14th, 15th and 16th.
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