As you may recall, however, in Judge Nicholas Garaufis's much praised decision in the Vulcan Society case, disparate impact is illegal. The city of New York was discriminating against would-be firemen by asking job applicants to take a test that presented reading selections about how to fight fires and then asking questions about how to fight fires.
For example, one paragraph was about which kind of chainsaw to use to cut through wooden doors and which kind to use to cut through steel doors. There was then a question about which kind of chainsaw to use to cut through steel doors.
Obviously, this kind of test discriminated against blacks and Hispanics because there are two ways to score well on it: either:
- You could be good at comprehending the kind of text found in the technical manuals you will be told to read as a fire cadet so you don't, say, mutilate yourself by using the wrong kind of chainsaw;
- Or, you could study up ahead of time so that you already knew what kind of chainsaw to use.
Judge Garaufis saw right through the obvious racism of hiring firefighters based on their ability to learn how to use the right chainsaw and not rip their own faces to shreds when the wrong kind of chainsaw kicks back on them.
You see, blacks and Hispanics tend to be worse at reading comprehension on average, and they tend to be less interested in learning how to fight fires. So, the NYC hiring test was an illegal subterfuge and must be thrown out!
In contrast, the Texas Top Ten Percent plan was publicly proclaimed by all in favor of it as a way to have disparate impact in favor of blacks and Latinos. So, the Fisher case isn't about that system at all.
No, Fisher is only complaining about a second set of racial/ethnic preferences added on top of the Ten Percent Plan after Justice O'Connor's scintillating opinion in the Grutter/Gratz cases of 2003. O'Connor accepted the "diversity" claim discriminating against whites and Asians is really doing a favor for whites and Asians because it allows them to be exposed to the Vibrancy of Diversity. (That the whites and Asians who get the putative benefit of associating with racial preference beneficiaries aren't, technically, the same individuals as the white and Asian victims of the preferences is one of those minor details that get brushed aside in the quest for Strange New Respect.)
The "critical mass" rationalization dreamed up in Grutter/Gratz is more than taken care of by the Top Ten Percent plan.
But ... the problem with the Top Ten Percent plan, you see, was that not enough affluent, privileged blacks and Hispanics get in under it. For example, say you are a Hispanic student attending Highland Park High School because your father is currently doing a tour as a Senior Vice President at the headquarters of a multinational corporation in downtown Dallas, from whence he hopes to move on to head the South American Division in his native Buenos Aires, before perhaps one day returning to Dallas in triumph as CEO of the whole shebang.
Now, if you were attending high school in, say, Laredo, you'd be in the Top Tenth of the class, no problem. Your 620 math SAT score would make you a prodigy in Laredo. In Highland Park, however, you are just another pretty smart rich kid who is only in the Top Half of the class. So, no taxpayer supported education at UT Austin for you! Your dad will just have to pay for you to go to SMU.
But, you are Hispanic and thus deserve freebies from the taxpayers. Your Conquistador ancestors didn't mow down the Indians to have to pay list price at SMU.
Therefore, UT has added special preferences for privileged blacks and Hispanics, which is what Ms. Fisher is complaining about.
P.S. Sure, I made this Highland Park kid up, but I was actually talking last night to the father of a former classmate of one of my sons. The father of this official Hispanic is an American-born Chinese architect, who is chief partner of a practice of about 30 architects. They mostly design hospitals. His wife is a white lady whose mother was born in Spain, so their kid was honored at their high school graduation in the College Board's National Hispanic Recognition Program.