Postracial Discrimination

Abstract

Claims of racial injustice can be challenged by arguing that the culture makes it possible for minorities to compete with whites on a level playing field. Under this reasoning, racial disparities that continue to inhere in the allocation of societal benefits and burdens must be caused by the attributes of individual minority group members themselves, rather than by any invidious consideration of their race. The election of President Obama now gives this argument more apparent plausibility than it has had in the past. Indeed, if one were inclined to preserve the nation’s tradition of privileging white interests over the interests of racial minorities, it would be strategically sensible to frame one’s discriminatory impulses in precisely this manner. That way, the nation’s evolution to its supposed new postracial maturation could ironically be utilized as an ingenious device for continued racial oppression.
It turns out that this postracial discrimination strategy is far from merely hypothetical. Its proponents include a majority of the current Justices on the United States Supreme Court. The Roberts Court, despite its relative youth, has already issued a number of decisions that employ the technique of postracial discrimination to elevate the interests of whites over the interests of racial minorities. The most revealing is its 2009 decision in Ricci v. DeStefano, where a divided Court required the City of New Haven to utilize the results of a firefighter promotion exam that benefited whites, even though the exam had a racially- disparate impact that adversely affected Latinos and blacks. The majority opinion depicted historically advantaged white firefighters as the victims of unlawful discrimination, while depicting historically disadvantaged minority firefighters as the politically powerful perpetrators of invidious discrimination. The governing legal doctrines hardly compelled the Court’s result, or the Court’s inversion of the customary categories of perpetrator and victim. In fact, both the statutory meaning of Title VII and the Court’s own precedents had to be modified so severely that the decision amounts to an exercise in conservative judicial activism.
Part I of this article discusses the Roberts Court’s recent Ricci decision, highlighting the Supreme Court voting blocs that have developed with respect to the issue of race. Part I.A describes the majority and concurring opinions of the conservative bloc Justices. Part I.B describes the dissenting opinion of the liberal bloc Justices. Part II describes the doctrinal difficulties that are entailed in trying to defend the Court’s resolution of the case. Part II.A explains why the decision does not fit comfortably within the dictates of preexisting Title VII doctrine. Part II.B explains why the decision does not fit comfortably within the law governing summary judgment. Part III argues that the Ricci decision constitutes an exercise in postracial discrimination. Part III.A describes how the Court inverts the categories of perpetrator and victim in a way that ultimately allows it to invert the categories of discrimination and equality. Part III.B argues that the Ricci postracial discrimination technique is simply the most recent in a long line of judicial strategies that the Supreme Court has historically used to justify the oppression of racial minorities. The article concludes that the potential effectiveness of genuine antidiscrimination remedies, such as the Title VII remedies that the Court dilutes Ricci, may be precisely what attracts the Supreme Court to its practice of postracial discrimination.