As expected, the Supreme Court voted in Ricci v. DeStefano, the New Haven firefighters case, to reverse the decision of the Second Circuit panel, which included Supreme Court nominee Sonia Sotomayor. Also as expected, Justice Kennedy played the swing vote in giving cities a new defense in such cases. Kennedy wrote the majority opinion. The fear of litigation was not sufficient to justify the discrimination against white and Hispanic firefighters. Firefighters challenged a decision to throw out promotional exam results because no African-American firefighters were among the top scoring candidates for promotion — only white and Hispanic officers. Judge Sonia Sotomayor was on the panel that upheld the city’s decision in one of her most controversial decisions.
Writing for the majority, Justice Kennedy held:
Our analysis begins with this premise: The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. 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.” 554 F. Supp. 2d, at 152; see also ibid. (respondents’ “own arguments . . . show that the City’s reasons for advocating non-certification were related to the racial distribution of the results”). Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. See §2000e–2(a)(1).
Of the forty-one applicants who took the captain exam, only eight were black. Of the seventy-seven applicants who took the lieutenant exam, only 19 were black. No of the African-American candidates scored high enough to be promoted. Only two Hispanics scored sufficiently high enough to be promoted.
The city tossed out the results due to concerns over possible disparate impact claims by minorities under the Civil Rights Act of 1964. Earlier, I expressed serious reservations about the case and the way that the panel handled it. The opinion was largely conclusory and notably failed to address the difficult constitutional questions raised by the firefighters:
Nothing in the record in this case suggests that the City defendants or CSB acted “because of” discriminatory animus toward plaintiffs or other non-minority applicants for promotion. Rather, they acted based on the following concerns: that the test had a statistically adverse impact on African-American and Hispanic examinees; that promoting off of this list would undermine their goal of diversity in the Fire Department and would fail to develop managerial role models for aspiring firefighters; that it would subject the City to public criticism; and that it would likely subject the City to Title VII lawsuits from minority applicants that, for political reasons, the City did not want to defend. “[T]he intent to remedy the disparate impact of [the tests] is not equivalent to an intent to discriminate against non-minority applicants.” Hayden, 180 F.3d at51. None of the defendants’ expressed motives could suggest to a reasonable juror that defendants acted “because of” animus against non-minority firefighters who took the Lieutenant and Captain exams.
While expressing sympathy for the firefighters, the panel gives their claims short shrift. As Judge Jose Cabranes who was highly critical of the way the panel dismissed the legitimate concerns of these firefighters: “Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case. … This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.” Not much empathy showed in this case.
Kennedy found a violation of Title VII in the decision by the city. The Supreme Court cited prior holdings to hold:
If an employer cannot rescore a test based on the candidates’ race, §2000e–2(l), then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates—absent a strong basis in
evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate- impact provision. Restricting an employer’s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional examinations. See §2000e–2(h) (“[N]or shall it be an unlawful employment practice for an employer to If an employer cannot rescore a test based on the candidates’ race, §2000e–2(l), then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates—absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate- impact provision. Restricting an employer’s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional examinations. See §2000e–2(h) (“[N]or shall it be an unlawful employment practice for an employer to
25 Cite as: 557 U. S. ____ (2009) Opinion of the Court give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race”); cf. AT&T Corp. v. Hulteen, 556 U. S. ___, ___ (2009) (slip op., at 8). For the foregoing reasons, we adopt the strong-basis-in-evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII.
Justice Alito wrote a concurrence solely to respond to what he and Thomas and Scalia viewed as selective presentation of facts by the dissenting justice — who accuse the majority of the same thing.
Justice Ginsburg in dissent insists that better tests were available and that the majority misconstrues the good-faith basis of the city:
The white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them. New Haven maintains that it refused to certify the test results because it believed, for good cause, that it would be vulnerable to a Title VII disparate-impact suit if it relied on those results. The Court today holds that New Haven has not demonstrated “a strong basis in evidence” for its plea. Ante, at 2. In so holding, the Court pretends that “[t]he City rejected the test results solely because the higher scoring candidates were white.” Ante, at 20. That pretension, essential to the Court’s disposition, ignores substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes.1
While expressing sympathy, the dissenting justices would still allow the city to throw out the results based on the fact that whites did better in the final scores. However, she noted that there were complaints about access to materials:
A number of the exam questions, they pointed out, were not germane to New Haven’s practices and procedures. See, e.g., id., at A774–A784. At least two candidates opposed to certification noted unequal access to study materials. Some individuals, they asserted, had the necessary books even before the syllabus was issued. Others had to invest substantial sums to purchase the materials and “wait a month and a half for some of the books because they were on back-order.” Id., at A858. These disparities, it was suggested, fell at least in part along racial lines. While many Caucasian applicants could obtain materials and assistance from relatives in the fire service, the over-whelming majority of minority applicants were “first-generation firefighters” without such support networks.
See id., at A857–A861, A886–A887.
Justice Scalia’s concurrence takes a broader view, challenging the use of race-based remedial actions generally:
To be sure, the disparate-impact laws do not mandate imposition of quotas, but it is not clear why that should provide a safe harbor. Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end? Surely he would. Intentional discrimination is still occurring, just one step up the chain. Government compulsion of such design would therefore seemingly violate equal protection principles. Nor would it matter that Title VII requires consideration of race on a wholesale, rather than retail, level. “[T]he Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller v. Johnson, 515 U. S. 900, 911 (1995) (internal quotation marks omitted). And of course the purportedly benign motive for the disparate-impact provisions cannot save the statute. See Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995). To be sure, the disparate-impact laws do not mandate imposition of quotas, but it is not clear why that should provide a safe harbor. Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end? Surely he would. Intentional discrimination is still occurring, just one step up the chain. Government compulsion of such design would therefore seemingly violate equal protection principles. Nor would it matter that Title VII requires consideration of race on a wholesale, rather than retail, level. “[T]he Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller v. Johnson, 515 U. S. 900, 911 (1995) (internal quotation marks omitted). And of course the purportedly benign motive for the disparate-impact provisions cannot save the statute. See Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995).
All of these opinions are quite interesting. My concern with the dissent is that it sweeps far too broadly. While Kennedy does not go as far as Scalia, he creates more of a balanced approach to the use of such remedial measures without barring them entirely. It is a decision with which I expect most Americans would agree. It will be interesting to see if Congress attempts to amend the law to negate the ruling. The optics in “putting a thumb on the scale” of a test for firefighters is not good.
As for Sotomayor, these opinions have all of the substance that is missing in the Second Circuit opinion. Judge Cabranes is proven correct about the deeper issues here. One of my greatest concerns about Judge Sotomayor has been the lack of any deeper or more profound analysis in her opinions, which all too often tend to dismiss such issues. For an analysis of her opinions, click here.
Here is today’s opinion 07-1428, which is a major ruling in discrimination law.
mespo, exactly! LOL.
Mike A:
“As for those who complain that white persons in the present generation should not have to continue paying for the sins of our fathers, all I can say is that every generation pays for the sins of the previous generation. That is not a reason to complain. It is simply a reason to stop sinning so that our children will not have to continue to pay for it.”
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Is there any doubt that we enjoy the beneficial legacy of our predecessors? Why then should we not be burdened with their debts?
Tell the Bank your grandfather left you the car and that you therefore shouldn’t have to make the last three payments!
There has been an amazing amount of controversy over this decision, but I am struck by two things. First, opponents of Judge Sotomayor began savaging her within five minutes after the decision was released. Now I may not be a particularly fast reader, but the opinion is over 90 pages long (I haven’t even finished going through it completely word for word as yet). Thus, I think it’s safe to say that much of the criticism came from people who did not, and probably never will, actually read the opinion. Led by people like Rush Limbaugh, who allowed as how the decision meant that the Supreme Court had unanimously branded Judge Sotomayor a bigot, the hysteria is absurd.
My second observation is that the decision resolves absolutely nothing. Nada. All it ultimately means is that the effort to relieve the effects of centuries of evil is messy and that we do not have a consensus as to when or how that effort will come to a conclusion.
Mike Spindell’s recollection of his own experiences with affirmative action perfectly illustrates the inherent difficulty in fashioning solutions to a legacy of discrimination without inadvertent harm to those who are themselves innocent of the sins of intolerance and discrimination. It is not possible. It has never been possible. But that does not mean that the effort is not warranted.
All of my life I have heard comments like, “Lincoln freed the slaves 150 years ago. What have blacks done for themselves since then?” Or, “The Supreme Court abolished segregated schools in Brown v. Education in 1954. What’s their excuse now?” Or, “We passed all of the civil rights laws in the ’60s and blacks are still not satisfied.”
But my favorite has always been, “You can’t legislate morality.” Nonsense. That is what legislatures do every day. What you can’t legislate is compliance with laws with which large segments of the population disagree. The Emancipation Proclamation may have had great symbolic importance, but it didn’t end slavery. Brown v. Board of Education may have outlawed separate but equal education, but the states simply refused to comply with its mandates. The civil rights laws may have voided segregation ordinances and barriers to voting by blacks, but those restrictions remained in place by tradition and through intimidation for many years, and still exist in some places.
The Civil Rights Act of 1964 sought, among other things, to promote the amelioration of the effects of long-term discrimination. The legislation outlined the public policy goals, but it has been left largely to the courts to determine how that policy is to be implemented on a case-by-case basis. That means that lawyers have had to develop legal theories in an effort to enforce the intent of the legislation, and courts have had to decide which of those theories have legal merit given the legislative history. The results have not always been predictable or even coherent.
The decision in Ricci v. DeStefano reflects that a majority of the court believes that the concerns which led to the 1972 extension of Title VII protections to public employees no longer exist, or are at least no longer significant, thus supporting a determination to impose a greater burden of proof on future claims. That is a philosophical conclusion which, if anything, proves only the fallacy in the argument that good judges make decisions uninfluenced by their life experiences and perceptions. What it will mean in future cases is anybody’s guess.
As for those who complain that white persons in the present generation should not have to continue paying for the sins of our fathers, all I can say is that every generation pays for the sins of the previous generation. That is not a reason to complain. It is simply a reason to stop sinning so that our children will not have to continue to pay for it.
1) Tests can be biased if the questions are culturally biased.
2) Tests can be biased if equal access to study materials are not supplied (as was asserted by the plaintiffs).
I don’t know that either of the two conditions above were in fact the case. I do suspect that a written test is not an inclusive (or even particularly valid) metric for determining promotions in the field of fire fighting. I liked the suggestion that the test be made pass/fail. All those who passed the test would be eligible for promotion. Oral interviews and/or practical tests would then be used to choose who gets promoted.
I would also submit that a test isn’t necessarily biased just because it didn’t provide the results that were expected – not with the small sample size. Sometimes we get statistically anomalous results.
Just to be clear, I agree with the decision in this case. Once the procedure for promotion had been announced and the results came back, it’s too late to deny promotion based on the procedure. It would be a good idea to look at the procedure in the future. Affirmative action does not require a lowering of standards, but it may require taking a good look at those standards to ensure that they actually reflect the qualities necessary for performance of the job.
I agree with the decision, but I can’t understand how some can be view it as a simple case. It may appear simple on the surface, but there are a lot of issues that run deeper than the surface.
Gary T,
I must be missing something as well. If I only had a brain. The headlines in yesterdays papers was: White Firefighters Win. The problem with that is Hispanic or Mexican’s won as well. It was a bullshit decision by the city to deny the Whites and Hispanic because no other racial class was in the test.
I must be missing something here.
With the presumption that
1. The applicants have no correllation between skill/intelligence and race, and
2. Presuming that the tests actually are testing for an applicant’s job’s qualifications and competence –
How exactly can a test be racially biased. Everything is equal, where is the bias?
So the SCOTUS will now permit municipalities to engage in disparate impact discrimination against minorities in order to avoid disparate treatment discrimination against white males. All a city would have to do is devise a facially race neutral test for promotions that in practice is biased in favor of white candidates. (There was some evidence in the Firefighters case that written tests in general have this effect). Then, when the results are in and the statistical evidence of a disparate impact is present, the city could do a cursory review of how the test was devised and administered to show that it was race neutral. That way, there would be no “strong basis in evidence” to think that disparate impact discrimination under Title VII had occurred. The city would be compelled to certify the test results even though a thorough analysis of the test may well have shown the it was not “job related . . . and consistent with business necessity”, as required under the re-codified Title VII. As Ginsburg showed in the dissent, written tests may not be job-related for promotion of firefighters to lieutenant or captain because they may not show how candidates would react in actual fires. Assessment center tests may well be fairer and non-discriminatory. But now, cities will never have to determine those issues because all they have to do is show that the test they gave was racially neutral.
With Congress re-codifying disparate impact discrimination under Title VII in 1991, one would think that the SCOTUS would give equal weight to that form of discrimination, rather than giving preference to disparate treatment discrimination. Instead, SCOTUS has now said that it’s okay to engage in employment practices that may be discriminatory against minorities, so long as you don’t look too carefully once the results are in. For some reason, I expect more from my Supreme Court.
Instead of this ridiculous result, Ginsburg showed how the two parts of Title VII could be harmonized. If, faced with test results that statistically favored whites, a city investigated and determined that (a) those results are due to the nature of the test and (b) the test is not job-related and consistent with business necessity, then the decision not to certify those results would not constitute disparate treatment discrimination. The decision not to certify would not be motivated by a desire to deny whites the promotions, but to come up with a test that is fair to all. Isn’t that what we want our municipalities to do? Apparently, the SCOTUS doesn’t think so.
My take on Title VII and on this whole issue is perhaps somewhat different than the views so far expressed. From my perspective all of this hearkens back to the seminal moment in the modern civil right movement, Brown vs. Board of Ed. The plaintiffs asserted that a separate education for Blacks was an unequal one and SCOTUS agreed. The basic point was that in legally segregated (and in fact areas segregated without the force of statute) school systems, the Afro-American systems were consistently underfunded and neglected. The plaintiffs sought relief from this provably unfair state. Later on congressional Civil Rights Acts sought to redress the harm that segregation and indeed oppression against Afro-Americans
had done in devastating their communities and keeping them in inferior status.
What I have always found curious about the means of redress is that their solutions always placed the most overwhelming burden on middle and lower class whites. As a for instance it was working class schools that were first integrated, setting up things like the Boston School Protests. The answer to segregated schools primarily should have been to ensure that Afro-Americans would have an equally funded public education, but instead the emphasis fell on integration of students alone, without the addition of providing adequate funding.
Without a doubt when it comes to affirmative action the playing field also began redressing the grievances by putting Afro-American’s directly against the working classes and middle classes. This has caused tremendous blow back, perhaps due to the Law of Unintended Consequence but also perhaps by design. It is curious that the burden of all of this has been least felt by the wealthiest of Americans, who arguably had been the greatest beneficiaries of slavery and then segregation in the first place. Indeed, one of the main
empowerment’s of segregation was that poor whites in the South, who were also being cheated economically/socially, were kept from seeing their own predicament by having them focus on Black people with the message: “You’re better than all of them and you can treat them as inferiors. Help keep them in their places.”
Simultaneously, affirmative action for the rich remained in effect all through this society. Need we remind anyone who claims that some unqualified minority attended school, that GW Bush got into Yale via affirmative action for rich white people. Yet the treatment of the rich and connected is scarcely ever brought into this debate. The hypocrisy of all this is that one of the majority votes at least was cast by Clarence Thomas who most probably benefited himself from affirmative action and who knows which other judges of the five benefited from some form of affirmative action.
Now for those who are so indignant about the harm done by affirmative action, how many of you have personally suffered from it? I have. During the Koch Administration in NYC I was up for a Deputy Borough Director’s job for the NYC Special Services for Children (child abuse and neglect). I was extremely well qualified and at the time this was my dream job. The Borough Director, who interviewed me, was an old friend and would be my boss wanted me. He was instructed, by
City Hall to give the job to an Afro-American woman because of her color. While I thought I was better by far, she was no slouch as it turned out. Was I disappointed, you’re damned right I was. However, in the NYC government the better jobs often went to people whose chief ability was that they were children of wealthy families, whose parents contributed to the particular Mayor in power. Many of them were completely incompetent and most of them were white.
In one instance I had to take over and reconstruct a large
Contracts Department from a Yale Graduate, from a good white family, who dressed impeccably and turned out to be a raving schizophrenic and had to be hospitalized. He had held the job for a year and a half of destruction to the particular department before being removed and subsequently hospitalized. When this affirmative action affected me I had already worked for NYC for twenty years and was well aware of the fact that affirmative action rarely gave the real plum jobs to blacks, but was reserved for an “old boy/girl”
and so I could accept that this time around it didn’t go my way. Also considering that the man who would be my boss was also a long time friend and ally, was I receiving affirmative action in the first place?
In this particular case, while I’m swayed by Justice’s Ginsburg’s minority argument, I also agree with Jonathan, who on his Keith appearance last night said that this was a case, said that this was a case where disagreement from could be well argued from either side.
The younger crowd won’t get this, but I can remember listening to the back of cereal boxes.
Mespo,
Would you mind if I used this as a ‘blurb’ for St. Peter when I reach the Pearly Gates?
“Bob is neither simple nor an avid reader of cereal boxes.”
Bob,Esq:
“Will you be seeking out the doctor ‘got some help’ climbing the ladder of medical knowledge via affirmative action; or will you be begging for that House M.D. like diagnostician who earned his position and prestige the same way they’d been doing it since the creation of the Hippocratic Oath? The hard & honest way.”
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By the way Bob, I would want the best doc I can find.
Darryl & Bob,Esq:
Bob is neither simple nor an avid reader of cereal boxes. Now those Kant books– that’s a different story. Good dialog as always, Bob.