Epstein on Ricci:


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.