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46 Wake Forest L. Rev. 241 (2011)
Ricci's Dicta: Signaling a New Standard for Affirmative Action under Title VII

handle is hein.journals/wflr46 and id is 245 raw text is: RICCIS DICTA: SIGNALING A NEW STANDARD FOR AFFIRMATIVE ACTION UNDER TITLE VII? Roberto L. Corrada* INTRODUCTION The standard for voluntary affirmative action' under Title VII has been in question in recent years. The last United States Supreme Court opinion to directly address the matter is over twenty years old, and the Court's composition has changed since then. In the years since the last Title VII affirmative action opinion in 1987, Congress has passed the Civil Rights Act of 1991, and the constitutional standard for voluntary affirmative action has been addressed by the Court no fewer than five times. The constitutional standard had been crafted by Justice Sandra Day O'Connor; but with her retirement, both the constitutional (Fourteenth Amendment) and the statutory (Title VII) standards for affirmative action have again been obscured. A recent case, Ricci v. DeStefano,2 although primarily a Title VII * Professor, University of Denver Sturm College of Law. The author thanks Professor Wendy Parker and the Wake Forest Law Review for an informative, well-run, and impressively well-attended Symposium. The author thanks Charles Sullivan, Steve Willborn, Alan Chen, Michael Selmi, Justin Driver, Kimberly West-Faulcon, David Schwartz, Randy Wagner, and the Colorado Employment and Labor Law Faculty (Melissa Hart, Martin Katz, Scott Moss, Helen Norton, Nantiya Ruan, and Catherine Smith) for their comments on this Article. All errors are the author's. 1. Although it is perhaps a question of some debate, for purposes of this Article, affirmative action involves only voluntary efforts by an employer to remedy past discrimination in a race-conscious way by adopting goals, or possibly even quotas, or by creating preferences on the basis of race or gender. Affirmative action does not encompass employer attempts to ensure that selection criteria apply to all persons equally and that such criteria do not discriminate against minorities. See Helen Norton, The Supreme Court's Post- Racial Turn Towards a Zero-Sum Understanding of Equality, 52 WM. & MARY L. REv. 197, 244-46 (2010) (explaining the legal distinctions between these two types of programs). But see George Rutherglen, Ricci v DeStefano: Affirmative Action and the Lessons of Adversity, 2009 SUP. CT. REV. 83, 110-11 (examining different approaches to disparate impact theory and concluding that certain forms of race-conscious action, such as mandatory affirmative action plans and readjustment of test scores, are too coercive, and perhaps too clear, to fit the long-standing consensus on affirmative action). 2. 129 S. Ct. 2658 (2009). 241

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