I am sorry to have to point this out to you, but a racial discrimination challenge based upon the impact or result of a certain action has long ago been determined insufficient. There must also be some sort of intent to discriminate. In Ricci, there was obviously no intent to discriminate; the failing candidates failed because the did not meet the requirements for passing. There was never any indication that there was a racist intent in the drafting of the questions. There must be both intent and impact. It is hard to say that there was even a racist impact, especially in light of the fact that not only whites passed.

Perhaps you would benefit from looking at the Croson case. Croson paved the way for serious discussion on practical equality considerations, which has led a proper characterization of the affirmative action debate as between merit and benign discrimination, and choosing in favor of merit, as the only feasible way to obtain true equality in the long run. As a policy consideration, equality jurisprudence is now finally starting to come in line with a vision of actual equality that entirely ignores race as a factor. If it were not for the Croson decision, and particularly O’Connor’s advocacy on this point the scales may have tipped toward intermediate scrutiny for affirmative action plans, effectively perpetuating the racial disparity in substance while championing the appearance of diversity.