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Bench Memos

NRO’s home for judicial news and analysis.

One-and-a-Half Wins



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The U.S. Court of Appeals for the Third Circuit handed down a good decision this week, ruling unconstitutional the order by then-Mayor Sharpe James of Newark that “dozens of firefighters [be] involuntarily transferred to different companies solely on the basis of their race.” The court ruled that none of the reasons put forward for the racial-balancing order was “compelling” enough to justify such discrimination. Of particular interest was its rejection of the claim that the “educational and sociological benefits of diverse fire companies” were compelling; the court pithily distinguished the Supreme Court’s 2003 University of Michigan decisions, noting that the purpose of a fire department is not education, but fighting fires.

It’s not a perfect decision – there is the ritual bowing to diversity, assuring the reader that the judges like diversity and accept that it makes all things better, even if it is not always compelling enough to justify discrimination – but, hey, a win’s a win.

Another decision in the last week was neither a win nor a loss, though. A federal court in the Eastern District of New York gave the clients of the Center for Individual Rights some but not all of what they asked for.  The case involved a challenge to a settlement agreement, resolving a challenge initially brought by the Clinton Justice Department to the way the New York City Board of Education hired its custodians; the claim was that the board’s tests and recruiting policies–while not discriminatory on their face, intended to be discriminatory, nor applied in a discriminatory way-were nonetheless illegal because of the “disparate impact” (i.e., failure to result in a politically correct racial balance) they had. Such is par for the course in employment discrimination law these days, but what was really outrageous was that the settlement awarded race-based relief to many folks who were clearly nonvictims, even under the disparate-impact theory-and, of course, this meant that a new class of victims (the Center for Individual Rights’s clients) was created, who really WERE victims of racial discrimination.

The decision that was just handed down could have been worse, and more remains to be done in the district court before the inevitable appeal is taken. Meanwhile, here’s hoping that the Bush Justice Department will continue to inch toward sanity-both before the district court and, later, on appeal.



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