Posted by David Bernstein:
Epstein on Ricci:
http://volokh.com/archives/archive_2009_06_28-2009_07_04.shtml#1246308888
[1]Epstein:
In the end, we can't win with either the rigidity of the
conservative position or the historical guilt trip of the liberal.
A little flexibility will go a long way. The government as a
manager cannot be held to the same strict standards that are
applicable to the government as a regulator. The libertarian
therefore becomes a moderate. He would keep the tests, and allow
New Haven to promote the top of the African-American group to the
prejudice of some white candidates. These rules should be announced
in advance and after public deliberation. If you are happy with
this solution, you don't understand the problem. If you are unhappy
with it, come up with a better alternative.
I think it's problematic for a variety of reasons for the government
to utilize a relevant qualifying test that has been intentionally
prescreened to avoid prejudicing any group, and then throw out the
test to the detriment of individuals who passed the test, and to the
benefit of those who did not.
On the other hand, various pro-affirmative action arguments raised by
Epstein, such as insuring the public legitimacy of government
agencies, have some merit. So I'll take Epstein up on his challenge,
and come up with a better alternative: validate the results of this
test, but use a different test next time, one that will still result
in screening for qualified candidates, but may not have the same
disparate racial impact.
As in the Court's recent school desegregation cases, it's the
difference between assigning particular individuals to a given school
instead of their local school solely because of their race, and
initially choosing school boundaries that will result in more
integrated schools. Both decisions take race into account, but I find
the former troubling and the latter fine, a distinction made with some
aplomb by Justice Kennedy in the school cases.
References
1.
http://www.forbes.com/2009/06/29/ricci-destefano-new-haven-supreme-court-affirmative-action-opinions-columnists-firefighters.html
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