Was the city required to take race into account and not to take race into account?

Adam Liptak summarizes yesterday's Supreme Court argument in Ricci v. DeStefano, an important affirmative action case:

The case, brought by white firefighters in New Haven who were denied promotions after an examination yielded no black firefighters eligible for advancement, featured claims of race discrimination on both sides. It was, Justice David H. Souter said, a “damned if you do, damned if you don’t situation.”

Had the city allowed the promotional exam to stand, Justice Souter said, it would have faced a lawsuit from black firefighters. When it threw out the test, promoting no one, it was sued by 18 white firefighters, one of them Hispanic, who claimed race discrimination.

The city said that throwing out a flawed test was a racially neutral act. Because no one was promoted, the city said, no one was singled out on the basis of race. But Justice Antonin Scalia was having none of that.

“It’s neutral because you throw it out for the losers as well as for the winners?” he asked. “That’s neutrality?”...

The city “looked at the results, and it classified the successful and unsuccessful applicants by race,” Justice Kennedy said to Edwin S. Kneedler, who represented the federal government. “And then you want us to say this isn’t race? I have trouble with this argument.”...

Chief Justice John G. Roberts Jr. [asked] the lawyer for New Haven, Christopher J. Meade. “Why is this not intentional discrimination?” Chief Justice Roberts asked. “There are particular individuals here,” he continued, “and they say they didn’t get their jobs because of intentional racial action by the city.”

Mr. Meade said the city should be afforded protection because it was trying to comply with a federal law.

Read the whole thing. This is genuinely a complicated problem, as the Breyer hypotheticals at the end of the article demonstrate.