Yesterday, the Supreme Court agreed to hear an important affirmative action case, Ricci v. DeStefano. The case involves a challenge to an affirmative action policy in the New Haven Fire Department. Specifically, the Department decided to set aside the results of a promotion test for firefighters when it turned out that what it viewed an insufficient number of African-American firefighters would be promoted if the results were allowed to stand.
I previously blogged about the important constitutional issues at stake in this case here. Once crucial issue is the question of what constitutional standards apply to "race-neutral" employment decisions by government that are motivated by a desire to increase the representation of a particular racial minority group relative to other groups. The government's action was race-neutral on its face because the decision to set aside the test results did not in and of itself involve any racial distinctions; those who passed had their pending promotions set aside regardless of their race. If the action was unconstitutional, it was because of the race-conscious motive underlying the surface neutrality. Since the late 19th century, the Supreme Court has drawn a distinction between government decisions that discriminate openly and those that are neutral on their face but may have been adopted out of racial motives; the Court has traditionally made it far more difficult to win a legal challenge against the latter than the former. However, it has never decided a case of this type in the affirmative action context. Previous Supreme Court cases addressing challenges to facially neutral policies all involved claims that they were pretexts for traditional discrimination against blacks or other minority groups.
A second key question is whether the "diversity" rationale for racial preferences that the Court held to be permissible in state university admissions in Grutter v. Bollinger is also a "compelling state interest" that could justify preferences in public employment. As explained in my earlier post about Ricci, it's much harder to argue that racial diversity is important in a fire department than in a university setting, where the Court concluded that the presence of a "critical mass" of minority students would provide educational benefits for other students.
I'm not categorically opposed to the idea that a target level of minority representation in some types of public employment is essential and could justify racial preferences to achieve it. In my earlier post about Ricci linked above, I suggested several reasons why that might be the case with big city police departments. An overwhelmingly white police department in a city with a large minority population might find it difficult to secure needed cooperation from the citizenry. Affirmative action for firefighters, however, seems harder to defend on efficiency grounds.