The major conundrum of the civil rights age remains. The 14th Amendment bans discrimination on the basis of race. But the Civil Rights Act, which bans “disparate impact” discrimination — procedures (such as exams) that yield racially unbalanced results — affirmatively mandates racial favoritism to undo those results. The evil day will come, writes Justice Antonin Scalia in his concurrence, when this contradiction will have to be resolved.
He is right. For decades we have been finessing the issue with a mess of compromises, euphemisms, incoherences and pretenses such as banning racial quotas but promoting racial “goals.” Anyone who has ever had to make hiring or admission decisions knows that this angel-on-the-head-of-pin distinction is 95 percent a matter of appearances, gestures and lawsuit-avoiding paperwork.
And yet we have muddled our way through, permitting a large dose of intentional discrimination to ameliorate past discrimination — and present inadvertent imbalances — without totally abandoning the ideal of colorblindness.
The result? At the near half-century mark of the Civil Rights Act, racial minorities have seen remarkable social advancement. The younger generation is infinitely more racially tolerant and accepting. We’ve made great racial progress. But the fundamental unfairness that underlies the racial spoils system continues to rankle. That’s what animated the Ricci case.