Breaking: by a vote of 5 to 4, split on political lines, with Justice Kennedy writing the majority opinion, the Supreme Court ruled in Ricci v. DeStefano that New Haven’s attempts to comply with Title VII themselves violated Title VII. Read the opinion here.
Fallout
Political reaction is likely to focus on (1) the sympathetic nature of the plaintiffs, or (2) the fact that the case reversed an opinion in which Judge Sotomayor participated. But if we’re to listen to Rush Limbaugh, the first point shouldn’t matter (whither “empathy”?), and the second will be given more attention than it deserves.
If the Supreme Court had penned a decision that sternly rebuked the lower courts for being flat-out wrong, Judge Sotomayor would deserve some of the criticism she’ll inevitably receive, from pundits or conservative senators, over this case. But Ricci was a notoriously hard case and, in approving the district court’s decision, Sotomayor was doing nothing more than following established law. The Supreme Court resolved this case, eseentially, by relying on off-topic authority to read out of Title VII the congressional ban on disparate impact discrimination (@ 75-77). Judge Sotomayor can hardly be blamed for failing to read Justice Kennedy’s mind.
Analysis of the case follows below the line.
Operative Sections of the Majority Opinion, at First Glance
The Court reached this conclusion by assuming, first, that setting aside test results that favor one race over another is discrimination:
The Court’s analysis begins with the premise that the City’s actions would violate Title VII’s disparate-treatment prohibition absent some valid defense. All the evidence demonstrates that the City rejected the test results because the higher scoring candidates were white. Without some other justification, this express, race-based decisionmaking is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination.
Justice Kennedy, for the majority, acknowledges that the city’s only choice in this litigation was, after the test results came back, which racial group to be sued by. Kennedy concludes that this is insufficient justification for race-based decisionmaking –
Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim.
– and goes on to read into the statute (42 U.S.C. § 2000e) a preference a bias against disparate impact suits, such that, in the future, cities should permit conduct that creates a disparate racial impact, if avoiding it would disparately impact another group.
If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.
While this solution is one way of resolving the conflict between Title VII’s operative sections, it’s not a very good one. Kennedy’s holding has the effect of favoring existing discrimination over the prospect of future reverse discrimination, which seems offensive to Title VII’s explicitly remedial nature. In short, this interpretation effectively reads Congress’ protection against disparate impact out of the statute, by relying on only loosely topical authority (@ 75-77).
Concurring & Dissenting Opinions
Justice Scalia seems poised to rule that the disparate impact provisions of Title VII — providing a remedy for practices that create a discriminatory result without compelling business justification — themselves violate the Equal Protection Clause (@ 41). This is the type of holding that would most plainly present the case of the “conservative activist judge.”
Justices Alito, Roberts, and Thomas think it’s all a conspiracy (@45, 51).
Justices Ginsburg, Breyer, Souter, and Stevens, take issue initially with the importance and necessity of the test actually administered to the firefights, characterizing it as a relic of a bygone era (@ 59), and biased in implementation (@ 61). This is the point of divergence from the majority position. Because Kennedy thinks the test was fair, he also believes the city would necessarily prevail in a disparate impact suit commenced by the disadvantaged minority firefights. Ginsburg et al disagree, come to the opposite conclusion, and so see two potentially discriminatory incidents where Kennedy sees only one (that is, discrimination against Ricci and his colleagues) (@ 73):
In keeping with Congress’ design, employers who reject such criteria due to reasonable doubts about their reliability can hardly be held to have engaged in discrimination “because of” race. A reasonable endeavor to comply with the law and to ensure that qualified candidates of all races have a fair opportunity to compete is simply not what Congress meant to interdict. I would therefore hold that an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII’s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity.
I obviously think Ginsburg has the better of this argument, if only from a practical perspective. Kennedy’s opinion implicitly tolerates some evidence of real discrimination in the test’s administration, and gives short shrift to Title VII’s novel remedial provisions, while Ginsburg’s provides jurisdictions with an excuse to (1) get away from, and (2) abandon tests that give results indicative of some fundamental unfairness. Ginsburg’s holding clearly makes “better law,” and a more workable future, even if creating a more painful present for sympathetic plaintiffs like Ricci.
I haven’t read the opinions yet (just got home, and need to eat dinner), but when I get to that, I’m probably still going to have this question: how can the disparate impact provision be squared with the constitutional ban on quotas?
Posted by Steve | June 29, 2009, 6:36 pmWell, Justice Scalia’s answer, plainly, is “it can’t.” But I don’t think that’s right (surprise!!!!). Disparate impact only applies when a company implements a policy that can’t be backed up with a legitimate business purpose. If the test in Ricci really were nonbiased, it wouldn’t be a problem that it disadvantaged black people; their failure would be due to their own failure to qualify. The assessment New Haven used, though, had serious problems, as determined by the city itself, the dissenters, and the trial & intermediate courts. Quotas, on the other hand, are absolute: “X white people, Y black people.”
Posted by ACG | June 29, 2009, 6:58 pmOk, that was a long bunch of pages. And I come out of it… Ginsburg’s dissent wasn’t very convincing, and I don’t just mean on the question of whether or not the test was flawed (although how anyone could give the professor’s testimony any credence, or the competitor’s testimony much credence, is beyond me). In part, I can blame the precedents: as she describes several of the ones she relies on, I think they should have gone the other way (for instance, I’d have ruled that being required by a freely-negotiated union contract is a legitimate business purpose that blocks disparate impact liability. It’s part of what gets your workers to agree to working for you – what could be a more legitimate business purpose than that?). But part of it, she takes all these things that were said about the test after the fact, uses them to say this is how the test should have been done, and then says that meets the disparate impact requirement of there’s a job related less-discriminatory way that the city refuses to do. And… you know, that’s something, no two things, I’m not liking about disparate-impact. The idea of equally job-related but less-discriminatory, that’s where I’m seeing that “Hey, we’ve got to make sure the results meet a priori racial threshold .8X” problem Scalia points out – but it’s also where I’m wondering “Why are you asking if there’s a less-discriminatory alternative instead of a more job-related alternative?”. I mean, presumably there’s some test that does the best job of determining who objectively deserves to pass/be promoted/be hired/not get fired/live/etc? And it seems that should be the test to aim for, not whatever less-accurate test has the least disparate impact among irrelevant classifications. Not to mention, that concept of “fair in form but discriminatory in operation” is wrong. Form dictates function: Duke Power Company was functioning unfairly to Griggs, et. al. because the company’s system was unfair in form. The Court mislabeled it, and Congress followed suit.
But getting back to the time frame issue. It seems to me that by allowing disparate-impact challenges, we’re defeating the point of testing. The point of a test is to ensure that the worthy [pass] and the unworthy [fail]. In the case of New Haven firefighter tests, to ensure that the eight most Lieutenant-worthy candidates for Lieutenant became Lieutenant and the seven most Captain-worthy candidates became Captain and everybody else didn’t get promoted. And it seems to me that if the test is going to do a good job or a bad job of measuring worthiness to [pass] is something that can be determined beforehand. And if someone alleges the test fails at its purpose before hand, there’s an opportunity to 1) unbiasedly and accurately analyze that allegation on the merits and 2) correct the test if necessary 3) with less motivation for people to allege faults that are noise obscuring the signal of valid allegations of fault. Whereas allowing these after-the-fact disparate impact claims based on a hypothetical disconnect between form and function means the analysis is post-hoc (something to discourage just on principle) in an environment where considerations other than the test’s objective measurement of objective [pass]-worthiness can affect both the analysis (e.g., consideration of the identity or quantity of who passed and who failed) and the allegations of flaws (e.g., “Me fail English? That’s unpossible! Ur test is teh suxorz!”). Limiting challenges to the test’s validity wouldn’t have eliminated incorrect allegations of flaws, but it would have reduced them and it would eliminate any invidious motives for them (leaving only allegations people who are just plain honestly wrong). So it seems to me a procedural bar on after-the-fact challenges to a test other than pre-grading challenges by takers to specific elements of the test (“Question 33 was flawed”, “The team we had to lead during the simulation was laypeople, not professional firefighters, and so was unrealistic because we wouldn’t have had to explain technical terms while giving instructions during a real system”) is a good thing. Hence, a procedural bar on disparate-impact claims… is a good thing, I guess.
And in the end, I read Ginsburg’s statement “they had no vested right to promotion” and want to tell her, “and the people who failed the test had even less.” Whatever her reasons, she’d give people who failed a do-over, and that doesn’t sit right with me. Do it once, do it right, or to hell with you – that’s a world worth working to create, but not the one her opinion would move our country towards.
Posted by Steve | June 29, 2009, 10:16 pmThat’s fine, a lot of people have problems with disparate impact standards. But the fact remains that it’s in the statute as written. I agree with you if we assume the test was fair, which a number of people brought into controversy, both before, during, and after its execution. Kennedy starts from the assumption that it worked perfectly – ignoring that part of the record – and that compels his outcome.
Posted by ACG | June 30, 2009, 2:15 pm