When it comes to racial issues, law still tangled

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 OK 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 legislation.

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 efforts required.

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.