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Defending The Beseiged Majority

By The Reverend Published: June 30, 2009

If you were to accept the thinking of the 5 Supreme Court Justices who overturned the Appellate Court ruling yesterday in the so-called Ricci Case, you would think that America's open sore of two plus centuries of enslaving and discriminating against blacks had healed itself completely in the last 45 years.....and now it's majority whites who are suffering mightily under reverse discrimination.

I spent about 30 minutes yesterday reading the ruling and dissent. It's worth a read, if only to see how activist judges make their politically seasoned sausage.

Ricci ruling plus Ginsburg dissent....

What I took away from the Kennedy-written decision is that, to conservative Justices, laws can be stood on their head to serve the political purpose of defending or supporting the majority or the powerful.

Chief Justice John Roberts' previous ruling in the Lily Ledbetter case was a prime example of how the intent of a law is twisted by 5 conservative Supremes to fit the needs of the powerful.

The Ricci case is now another example.

The city of New Haven, Connecticut threw out the results of a firefighter promotion test because blacks who took the test were disparately impacted. According to what is known as Title VII of the Equal Employment Opportunity Commission, when testing of employees demonstrates a clear disparity where minorities all do poorly, in order to avoid violations of federal discrimination laws in hiring or promoting, the employer must throw out the test and find a test that won't have such a disparate impact.

In the Ricci case, the above is New Haven's defense in a nutshell. They were following the law the best they could. Even the majority ruling by Kennedy agrees that the test scores did, indeed, demonstrate disparate impact. The original District Court's ruling AND the Appellate Court ruling (which included Judge Sotomayor) both agreed with the city's explanation of why the test was thrown out. The city was trying to abide by the law, the law called for action in case of obvious disparate results in testing, New Haven's test produced disparate results, New Haven had the duty to start over.

Here's New Haven's position in the matter.....

The city held that "...they cannot be held liable under Title VII's disparate-impact provision for attempting to comply with Title VII's disparate-impact bar."

In a nutshell, heres' what the District Court found in it's previous ruling for the city.....

District Court ruled ..."it is not the case that the City MUST certify a test where they cannot pinpoint its deficiency explaining its disparate impact...simply because they have not yet formulated a better selection process." "motivation to avoid making promotions based on a test with a racially disparate impact....does not, as a matter of law, constitute dicriminatory intent."

Judge Sotomayor, who will be savaged by ignorant and hate-filled conservatives over it, joined two other appellate judges agreeing with the District Court's ruling. Sotomayor voted, not in a judicial activist manner, but just the opposite. She followed the law.

However, yesterday's 5-4 decision reversed both the District and Appellate Court's findings. In Kennedy's ruling, it now seems like the 5 conservative judges believe they have godlike powers of discernment. Here's what I mean....

"Whatever the City's ultimate aim...however well intentioned or benevolent it might have seemed...the City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race based action."

The ruling turns the entire disparate impact intent on it's head. The City had results that demonstrated disparate impact of the test for blacks. The Supremes ruling says that that's not good enough and that they discriminated by even acknowledging the disparate impact...."without some other justification".

The intent of the law in question, just as the intent of the law which was turned on it's head in the Lily Ledbetter case, is clear. For a very long time white majorities, particularly in police and firefighter outfits have discriminated against blacks through the sly use of tests meant to marginalize minorities. Title VII's intent was to attenuate this discriminatory practice.

Instead, 5 Supremes agreed that the Title VII rule was really written to discriminate against majority whites....and in effect, they scrapped the whole deal.

And this is no small deal. In effect, and I don't care what some double-talking conservatives will say about this matter, public employers now will be under pressure to protect and favor majority whites. Written tests will now be put together and weighted in order to protect the employer from being accused of favoring minorities.....which was the very intent of the Title VII rule in the first place.

If nothing else, go to the link I supplied at the top and scroll down to Justice Ginsburg's scathing dissent of the ruling by those 5 activist judges.

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