If you unimmerse yourself in the Ricci commentary, including Richard Thompson Ford's smug, reified** apocalypticism , and just look at John Rosenberg's solution for the vise-like conflict between preventing reverse discrimination and stopping non-reverse discrimination in cases of "disparate" racial impact ... well, what's wrong with it?
[T]he solution to this dilemma is conceptually (if not politically) easy: demote disparate impact to its proper role, which is suggestive evidence of the possibility of disparate treatment, a possibility that can be successfully refuted by an employer's production of credible evidence that the challenged test, policy, or procedure bears a reasonable relationship to the organization's activities. (Of course, credible evidence that an employer adopted even such a reasonable test for a discriminatory purpose would also be barred as disparate treatment.) [E.A]
Would that be so terrible? We couldn't live with that? We'd be racist if we did? Note that there would still be race discrimination suits, presumably plenty of them. They would just be easier to defend against. ... P.S.: Ford worries about an explosion "disparate impact" of lawsuits from disgruntled whites--but this rule would make those suits less easy to win too, along with suits by disgruntled blacks (and other minorities). Everyone would have to calm down! ... P.P.S.: Rosenberg notes that his solution is similar to one adopted by the EEOC in 1989, but then overruled by Congress (and the first President Bush). ...
**--Why "reified"? Because it falsely treats the circumstances that gave rise to "disparate impact" law as more or less permanent. In reality, the arc in which race preferences are initially regarded as a necessary remedy and then gradually regarded as toxic and stigmatizing and finally as unconstitutional seems like a natural one. ... Reification #2: In predicting a hellacious gridlock of discrimination litigation from whites and blacks, Ford also seems to assume that Congress can't or won't relax the "disparate impact" test along the lines suggested by Rosenberg and the 1989 EEOC case. ... 5:38 P.M.