Another Fish Tale

George Will, showing admirable restraint and even generosity, once described Stanley Fish

as “an intellectual provocateur with a taste for safe targets” who, using “slippery language,” wraps himself in the mantle of bravery while attacking “straw men” and who, while enjoying “seeming to be naughty, tamely opts for dogmatic denial” that the twin icons on “today’s academic altar,” race and gender, pose any threats to academic integrity.

I’ve dumped on Fish here too many times to cite (but see my post linked above for pointers to ten or so examples), and now he’s gone and committed another bit of clever sophistry in the New York Times (an appropriate home for such stuff), “Because of Race: Ricci v. DeStefano.”

After providing thumbnail summaries of the back and forth among the dissenting, majority, and concurring opinions in Ricci (it reads something like “she said, but he said, and then he said, but she said, but he could have said, to which she could reply…”) making their defenses of the disparate treatment and disparate impact versions of discrimination, Fish actually winds up agreeing with Scalia on the incompatibility between the two approaches:

the real combatants in this case [are] not the city and its white firefighters, but two legal formulas — disparate treatment and disparate impact — that come from different conceptual universes; one in which a finding of fault requires proof that an individual has been unfairly treated by another individual or by a corporate entity on the basis of an interdicted category, and another in which fault can be inferred from a statistical pattern even though responsibility for that pattern has not been assigned.

Neither Kennedy nor Ginsburg speaks directly to the tension between the two, although it hovers above their opinions. That task is left to Justice Scalia, who, in a brief concurring opinion, begins by questioning the constitutionality of “disparate-impact” calculations — “disparate-impact provisions place a racial thumb on the scales” — and ends by predicting that “the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how . . . to make peace between them.”

I believe … that there can be no peace between them….

Along the way to his pontificating conclusion, which I’ll come to in a moment, Fish completely mangles the current state of disparate impact law. Bad as it is, it’s not nearly as bad as he describes it — fault cannot be automatically inferred from a statistical disparity, at least not yet, and “responsibility for that pattern” in fact must be located — in some employment test, practice, procedure, etc. — and, located, employers have at least a theoretical ability to defend the challenged culprit as sufficiently business related to pass muster. (That’s one of the reasons New Haven’s fear of a disparate impact lawsuit, alone, was not sufficient to justify ignoring its exam. Such a lawsuit may well have had no strong chance of success.)

Fault, in short, does not automatically flow from nothing more than a statistical disparity — again, at least not yet. Perhaps Fish’s analysis here, such as it is, is simply a slave to his wish.

We’ve come not to expect careful analysis from Fish. But what we have come to expect — pontifical declarations that masquerade as philosophical wisdom — are here in all their usual hollowness:

… any action [New Haven] might take would be taken under the shadow of the law’s concern for race and would therefore have been a “race-based” action. Without a concern for race there would be no Civil Rights Act, no Title VII, no categories of disparate treatment and disparate impact.

Acting on the basis of race is not an option; it is an inevitability, even though all parties claim to be neutral with respect to race and reject any suggestion that race consciousness informs their positions. Ginsburg protests that employers who jettison “selection criteria due to reasonable doubts about their reliability can hardly be held to have engaged in discrimination ‘because’ of race.” It depends on what you mean by “because of race.” If you mean by it “with malign racial motives” then, yes, New Haven is innocent, as are Kennedy, Scalia and the white firefighters. If you mean “with considerations of race in the forefront,” everyone is guilty. When Ginsburg cites doubts about the reliability of the test, we must ask reliability in relation to what? And the answer is reliability in relation to the goal of achieving the right racial mix. “Because of race” is the name of the game and no one can escape it.

This is almost laughable horse pucky, unworthy of even a sophomore with philosophical pretensions. Yes, the Civil Rights Act was based on “a concern for race,” but that concern was precisely to prohibit “acting on the basis of race.” Fish, with his customary slippery sophistry, tries to equate “concern for race” and “race consciousness” with “acting on the basis of race” — no matter the content of that action. Thus treating some people better because of their race is the same as requiring racial neutrality, because both actions are “race conscious.” Since “‘[b]ecause of race,’ is the name of the game,” Fish believes that “everyone is guilty” — whether their “concern for race” leads them to discriminate or to oppose discrimination.

This is nonsense on stilts. It makes sense only if one believes, with Fish and his school, that the goal of civil rights is “achieving the right racial mix.” If that is the goal, then Fish’s version of disparate impact — that every wrong racial mix is ipso facto discriminatory and results from a fault that must be corrected — is a reasonable way to achieve it.

Now, step back a moment and consider the mess we’d be in if this Fishy sophistry had been accepted in Philadelphia in 1787. Separation of church and state? Free exercise of religion? Ridiculous! Religion permeates everything! Everything everybody (and every governmental body) does, or doesn’t do, is done “because of” religion. The behavior of atheists and secularists is dictated by their “religion consciousness” as much as that of the most devout sectarians. Thus telling the government that it must be neutral with regard to religion, that it must treat all its citizens as individuals and not as members (or non-members) of particular religious sects, makes no more sense than, say, decreeing equality before the law when everyone can see that people (especially black people) are not equal.