The New Republic

The Supreme Court this month is hearing two potentially landmark
cases on race. The first challenges Congress's extension of the
Voting Rights Act; the second, a controversial affirmative action
program in New Haven. In both cases, the Court may force Barack
Obama to do what he has the unique skills but not the political
incentive to do at the moment: carve out a third way in the race
debate, one that rejects the extremes of conservative color-
blindness and liberal racialism.Ever since the civil rights era, anti-discrimination law has been
frozen in time. As the United States struggled to overcome the
legacy of segregation in the 1960s, Congress decided that only the
heavy-handed threat of lawsuits could prevent policies that might
have an adverse impact on African Americans from being implemented
in the first place. Today, however, the old legal theories about
the need to deter the intractable and largely unchanging racism of
American society are being challenged by new empirical realities.
Racism still exists, but it co-exists with other, more hopeful
evidence--such as the willingness of white voters in six out of the
nine Southern states partially or fully covered by the Voting
Rights Act to vote for Barack Obama by equal or even larger margins
than they voted for John Kerry. Obama's election doesn't suggest
the end of racism, but it does suggest progress in some areas of
country, combined with signs of intractability and retrenchment in
others.

Moreover, there are obvious costs to the current legal regime, with
its obsessive focus on discriminatory effects rather than direct
evidence of racist intent. By forcing Southern states to pre-clear
all changes in voting policy with the federal government, Congress
makes it harder for them to adopt alternative voting systems, such
as cumulative voting, that might actually help minorities. Current
law also encourages the creation of majority-black and
majority-white districts that tend to elect more polarized
candidates, hastening the demise of the Democratic Party in the
South. And, in the workplace, the current regime puts pressure on
employers to abandon the neutral tests for promotion that are the
main opportunity for advancement available to many working-class
employees.

The Supreme Court may decide that, in light of new empirical
evidence suggesting some racial progress, the inflexible vision of
racial equality that Congress embraced in the '60s is outdated. If
so, the decisions could represent an opportunity for Obama to offer
a more convincing alternative. Accepting the Court's invitation to
focus on current rather than historical patterns of racism, Obama
could insist that the law can respond legitimately to voting and
employment policies that have discriminatory effects, but only to
those where there is clear and contemporary evidence of actual
racist behavior. In the process, Obama could advance the debate
about race and law beyond the rut in which it has been stuck for
the past generation, crafting a moderate approach that is
ultimately better for the country.

Both cases before the Court raise the question of whether the threat
of federal lawsuits is still necessary to deter states from
adopting policies that have discriminatory effects on African
Americans. The first case, Northwest Austin Utility District v.
Holder, challenges Congress's reauthorization of the Voting Rights
Act in 2006. At that time, Congress ruled that the nine states that
were found to have engaged in voting rights discrimination in the
1960s and '70s must continue, for the next 25 years, to "pre-clear"
with the Justice Department any change in voting arrangements that
might discriminate against minorities. The extension of the act,
which passed with large bipartisan majorities, was premised on the
idea that patterns of voting discrimination have changed very
little since the '60s. The core fear, then, was that the "covered
jurisdictions" might move the location of polling places in ways
that would make it harder for minorities to cast a vote.

But the truth is that, in 2006, Congress didn't engage in a serious
empirical comparison of voting patterns in the areas of the country
that are and aren't covered by the Voting Rights Act. The civil
rights establishment was intent on preserving the status quo, which
has led to the election of some African Americans in the South at
the expense of the Democratic party as a whole; and white Democrats
and Republicans in the South concluded it would be political
suicide to question the need for sweeping federal oversight, which
might make them appear hostile to minorities. More broadly, Northern
and Midwestern politicians had no incentive to invite federal
oversight of their own districts, some of which are just as
polarized as the South. (Chicago and Boston, for example, may have
more polarized voting patterns than parts of Alabama.) All in all,
neither Republicans nor Democrats were willing to acknowledge the
evidence suggesting that discriminatory barriers to ballot access
today, unlike the '60s, seem to be very rare.

As Richard Pildes of the New York University School of Law notes,
it's extraordinarily unusual these days for the Justice Department
to refuse to pre- clear any proposed change in voting arrangements
submitted by one of the nine covered jurisdictions. The Department
objected in only 0.6 percent of the submissions between 1982 and
2005, and only 0.05 percent of the submissions between 1996 and
2002. Even in this tiny universe of cases, moreover, the vast
majority of the Justice Department's objections don't involve
obstacles that prevent minorities from casting votes. Instead,
according to Pildes, most of them involve redistricting or
annexation-- that is, changes in the drawing of district lines that
influence which candidates win. In those cases, the objection is to
patterns of racially polarized block voting, which occur when black
voters overwhelmingly favor black candidates and, in the same race,
white voters overwhelmingly favor white candidates.

In the 1980s, the Supreme Court announced that racially polarized
block voting can itself be considered an example of illegal
discrimination under the Voting Rights Act. (The idea was that
racial polarization suggested that whites were too racist to vote
for black candidates.) The proper remedy, the Court held, was to
require the creation of majority-black districts that would allow
minorities to elect representatives of their choice. This may have
made some sense 20 years ago: The South at that time was mostly
Democratic, and racially polarized voting was viewed as a decent
proxy for areas where African Americans had no realistic chance of
being elected and where discriminatory voting structures endured.
Today, however, polarized voting is a far less reliable measure of
racism. In an age where race is strongly correlated with
politicalparty preferences--most Southern whites are Republican, and
most Southern blacks are Democratic--racially polarized voting may
simply mean that black and white voters are voting their party's
ticket.

Liberals, always looking for evidence of unconscious racism, insist
this isn't the case. But they fail to engage fully with the best
evidence of racist voting patterns--the "fall-off rate," which
measures whether a black Democratic candidate, such as Obama, does
worse among white voters than a white Democratic candidate, such as
John Kerry. It's true, as liberals emphasize, that in three of the
nine Southern states fully or partially covered by the Voting Rights
Act (Alabama, Mississippi, and Louisiana), Obama did worse among
whites than Kerry. But it's also true, as liberals don't emphasize,
that in six other covered states (Georgia, South Carolina, North
Carolina, Texas, Florida, and Virginia), Obama did the same as
Kerry or better. This means that the blanket assumptions on which
the Voting Rights Act rests may be simplistic and out of date.

Voting rights cases aren't the only area where the old legal
paradigms about race and law are being challenged by new empirical
realities. This month, the Supreme Court will also hear Ricci v.
DeStefano, the most controversial affirmative action case of the
term, involving the promotion of firefighters in New Haven. In
2003, the city administered a promotion test. The test was
validated by independent experts, as federal law requires, to ensure
that it focused on job-related skills rather than purely cognitive
ones. But, after the test was administered, none of the top-scoring
candidates for 15 positions turned out to be African American.
(Fourteen were white, and one was Hispanic.) A local preacher
contacted the mayor and said he didn't want the test certified
because of its racial disparities; the local civil-service board
then deadlocked about whether or not the certification of the exam
results could lead the city to be sued under Title VII of the Civil
Rights Act, which prohibits employment practices that have a
discriminatory impact on minorities unless they're required by
"business necessity."

As a result of the deadlock, the city refused to certify the exam
and promoted no one. The city was then sued by 19 white
firefighters (and one Hispanic) led by Frank Ricci, a sympathetic
34-year-old white man. Ricci, who is dyslexic, spent more than
$1,000 buying the study guides recommended by the city and paying
an acquaintance to record them as audiotapes, which he listened to
as he drove to and from work.

The Ricci case is a nightmare for moderate liberal supporters of
affirmative action, because it presents the least sympathetic facts
imaginable. The Supreme Court has said repeatedly that affirmative
action is most troubling when its burdens are concentrated on a few
innocent white people rather than being widely dispersed among a
large group of white and black applicants. So, for example, the
Court in 1985 struck down a teachers' union agreement that white
teachers would be fired and black teachers with less seniority would
be retained in order to preserve racial balance. We haven't seen
such unsympathetic facts in an affirmative action case since the
school board of Piscataway, New Jersey, decided in 1989 to fire a
white teacher rather than a black teacher who had been hired on the
same day. Afraid of a big defeat before the Supreme Court, civil
rights groups raised money for that case to be settled out of
court. This time, they may not be so lucky.

The latest empirical research on racist decision-making undermines
the position of the civil rights groups. Economists have concluded
that unconscious racism is most likely to infect hiring decisions
involving split-second, discretionary judgments, such as screening
a thick pile of resumes into "yes" and "no" piles. A 2005 study
published by the American Economic Association found that
participants in a resume study who reported feeling rushed were
substantially less likely to pick resumes with African American last
names. But this kind of unconscious racism is far less likely to
materialize in employment decisions that involve careful
deliberation over time--such as the design of the promotion tests
in New Haven, which were reviewed and validated by independent
experts.

On the Supreme Court, the decisive vote in the affirmative action
and voting- rights cases may be cast by Justice Anthony Kennedy,
who has rarely met an affirmative action program he will
unequivocally endorse. If the Supreme Court strikes down part of
the Voting Rights Act and the New Haven affirmative action program,
the decisions might be questionable as constitutional matters,
since the framers of the Civil War amendments to the Constitution
intended to give Congress broad latitude to define discrimination
as it thinks best. But Supreme Court defeats would hardly be the
worst thing for liberals as policy matters. They would force Obama
to articulate a moderate, middle-of-the-road position on race that
is rooted in empirical evidence rather than ideology.

This is a position that Obama has been moving toward ever since he
taught voting-rights and race law at the University of Chicago in
the late '90s. As a law professor, Obama impressed his students
with his non-ideological approach to questions involving voting
rights and affirmative action. "He was very even- handed and kept
his cards close to his chest," recalls David Franklin, now a law
professor at DePaul who studied voting rights with Obama in 1997.
"He was probably more intellectually engaged by election-law issues
than by race and racial issues as such." Franklin says that Obama
seemed more interested in empirical evidence about actual voting
patterns than in liberal shibboleths about the need for
majority-black voting districts or conservative shibboleths about
the need for color blindness.

If the Supreme Court rules that Congress needs actual evidence of
racially polarized voting before supervising state elections, Obama
would have the stature to insist that federal oversight is no
longer necessary in some parts of the South but might be necessary
elsewhere. Democrats might benefit if the Supreme Court reduced the
pressure on Southern states to create majority- minority districts.
(Some scholars estimate that the Democrats lost the House in 1994
because of racial redistricting.) At one time, it was believed that
blacks would never get elected without safe districts; now the
concern runs in the other direction--namely, that drawing safe
minority districts that aren't compelled by geography may make it
harder for politically moderate black candidates to run and win. A
Supreme Court defeat could force Obama to challenge the civil
rights establishment by making publicly a case that white Democrats
increasingly embrace privately: Now that black officials are
winning elections at every level, the design of electoral districts
should be left to political horse-trading and negotiation, rather
than being micromanaged by Washington.

A defeat in the affirmative action case could also give Obama a
chance to move further toward the center. In its Supreme Court
brief in the New Haven case, the Obama administration tried to
split the difference between the firefighters and civil rights
groups, a straddle that represented a victory of sorts for
administration moderates who wanted to avoid wholeheartedly
endorsing New Haven's quota-driven decision. But the Obama brief
fails to answer clearly the core question raised by Judge Jose
Cabranes on the lower court: "May a municipal employer disregard
the results of a qualifying examination, which was carefully
constructed to ensure race-neutrality, on the ground that the
results of that examination yielded too many qualified applicants
of one race and not enough of another?"

If the Supreme Court says no, Obama might have to acknowledge openly
that skepticism about employment tests that have a "disparate
impact" on minorities makes less sense today than it did in the
1970s and '80s, when the country was still dealing with the legacy
in the workplace of legalized segregation. Obama could wean
liberals of the resort to the threat of lawsuits to avoid
discrimination in the workplace at all levels. Instead, he might
convince Congress that judicial oversight of employment decisions
makes more sense when it comes to entry-level hiring decisions,
which are more likely to be affected by stereotypical judgments
than cases of promotion and firing. At the moment, the vast
majority of "disparate impact" cases involve challenges to
promotion, demotion, or firing, rather than hiring--but these are
precisely the kinds of cases in which impulsive, unconscious racism
is least likely to materialize.

Without pressure from the Supreme Court, Obama may never carve out
the third way on race that he is uniquely positioned to define.
With all the other problems facing the country--from the economy to
the war on terrorism--Obama has no incentive to take on liberal
racialists who believe we've made little progress on race since the
1960s or conservative color-blind partisans who insist that
anti-discrimination laws are no longer necessary. But everything in
Obama's background suggests that he has the inclination and ability
to help the country transcend the extremes that have defined our
racial politics for too long. Racial outcomes in voting and
employment are sometimes, but not always, a proxy for racial
discrimination, Obama could insist, but only in places where there
is actual empirical evidence of discrimination itself. That would
provoke a debate rooted in facts rather than stereotypes--one that
liberal and conservative ideologues may fear, but that the country
as a whole would welcome with gratitude and relief.

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