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June 29, 2009

Supreme Court Overturns J. Sotomayor in Ricci v. DeStefano

The Court holds 5-4 that New Haven's decision to discard the test results because too few non-Hispanic minorities passed violated the Civil Rights Act.

Opinion is here (PDF). Kennedy wrote the majority opinion, joined by the Chief Justice and Justices Scalia, Thomas, and Alito. The liberal four dissented in an opinion drafted by Justice Ginsburg.

Reading it now; updates to come.

More: Alright. As with the Section 5 Voting Rights Act case last week, the Court avoids the constitutional issues and attempts to resolve the dispute according to the existing statutory scheme. In this case that means resolving the conflict between two sections of Title VII of the Civil Rights Act.

Under Title VII, New Haven was prohibited from intentional acts of employment discrimination based on race. This is called disparate treatment. Title VII also prohibits policies or practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities. This is called disparate impact. Disparate impact is often demonstrated with statistical analyses.

The facts of this case set the two types of prohibited conduct against each other. New Haven could either intentionally discriminate against the successful white and Hispanic candidates or its firefighter promotion policy (based on the test results) would have a disproportinately adverse impact on black candidates.

And more: Prior to this decision some lower courts--including the district court in his case--believed that actions taken to avoid disparate impact simply cannot be considered disparate treatment. But now the Court says:

All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified.” Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of anindividual’s race.

Whatever the City’s ultimate aim—however well intentioned or benevolent it mighthave seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action.

Ultimately, the Court holds (borrowing from equal protection cases) that before an employer can engage in intentional discrimination to avoid disparate impact, the employer must have a "strong basis in evidence" to believe it will be subject to disparate impact liability if it fails to take the race-conscious, discriminatory action. That determination rests on the facts of the particular case.

In this case, the majority determined that New Haven had no strong basis in evidence to believe it would be subject to liability (not just litigation, but actual liability) had it certified the firefighter exam results. The test was objective, and taken for a job-related purpose (obviously). Fear of litigation does not justify disparate treatment.

Last Update: Justices Scalia and Alito have interesting concurring opinions (especially Alito), but its stuff we've all heard before. The interesting thing--to me, anyway--is just how far apart the majority and the minority are. The majority have no problem believing that when Congress said "no hiring decisions based on race" they really meant it. The minority justices are ready to forgive hiring decisions based on race, so long as the right race comes out ahead:

Here's Justice Kennedy warning of what the Court absolutely must avoid:

A minimal standard could cause employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination. That would amount to a de facto quota system, in which a “focus on statistics . . . could put undue pressure on employers to adopt inappropriate prophylactic measures.” Watson, 487 U. S., at 992 (plurality opinion). Even worse, an employer could discard test results (or other employment practices) with the intent of obtaining the employer’s preferred racial balance.

And here's Justice Ginsburg on her preferred outcome:

By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served—as it was in the days of undisguised discrimination—by a fire department in which members of racial and ethnic minorities are rarely seen in command positions.


It is indeed regrettable that the City’s noncertification decision would have required all candidates to go through another selection process. But it would have been more regrettable to rely on flawed exams to shut out candidates who may well have the command presence and other qualities needed to excel as fire officers.

"Command presence and other qualities" is Justice Ginsburg's euphemism for candidates with the right race.

She complains that the Court does not remand for further fact-finding, but she can hardly complain when both the district court and the Second Circuit bolstered their flawed conclusions by holding that the facts were not in dispute.

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posted by Gabriel Malor at 09:29 AM

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