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.
Darryl
“To mespo727272: Good capture of Plato’s logic after it seemed Bob was attempting to stake a simplified claim to his work.”
Yes, that’s me. Simple. After all, the only Plato I’ve ever read was on the backs of cereal boxes.
Mary Barrett:
http://www.light-to-dark.com/gop_in_white.html
Expect more rewards. You’ve so earned it by so beautifully capturing the essence of American Conservative thought.
Mespo:
“If I asked you to run in a race for your survival and yours were started half a lap behind the other contestants, would it be unfair to remedy the situation by moving you up later when the error was discovered? Would the other runners who had established their position feel cheated? Would it really be cheating? Would denying the fact make it fair?”
Mespo,
Don’t you think that’s a tad intellectually dishonest to re-frame the issue; viz in terms of ensuring a ‘just’ society as discussed above?
Shifting the pre-requirement focus of filling job openings in a ‘JUST’ society from the job itself and who among the towns people are capable of fitting it, to… a pathos based focus on the individual itself, defeats the purpose of creating a just society. Unless you can show there is a member of society submitting to his own ‘feelings’ and creating tests that deliberately filter out applicants based on conditions having absolutely no relation to their ability to carry out their jobs in a ‘JUST’ society, then there is no reason for the state to interfere.
“On the subject of Plato, maybe the Court in those pre-Bushie discrimination cases was following the old Hellenist’s admonition to that “He who commits injustice is ever made more wretched than he who suffers it.” Or even perhaps the famous observation from “The Republic”: “Mankind censures injustice fearing that they may be the victims of it, and not because they shrink from committing it.”
Mespo,
First of all, you should know by now that when it comes to establishing a strong grounding for a metaphysics of morals you know I always look to my favorite neo-platonist — Immanuel Kant.
Second, you know deep down that affirmative action is ultimately a form of dysgenics; effectively a race to the bottom.
Riddle me this Mespo; you or your child is suffering from a rare and life-threatening illness, YET TO BE DIAGNOSED.
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.
As Kant might put it:
You do not set the criteria for selecting applicants to fill a designated job in a ‘just’ society based upon pathos related to events in the past having nothing to do with the job to be filled.
SIYOM,
Bob
This is a case of poor management that turned into a constitutional issue. Management was not using best practices, both in their choic of the test and how they administered it (ie: allowing more time for some people to have the study guide than others and using a multiple choice test in the first place. (Multiple choice tests have been shown to be one of the least effective evaluative methods and this one had additonal flaws). So management–your bad.
I both agree and disagree with Ruth Bader Ginsburg. She’s right, there is something wrong with the test and the conditions of the test. I think the facts bear this out and I think a statistical evaluation may also. We need a quant to really figure this out, but the Captains’ test had 19.5% of applicants who were black and Lieutenants’ had 24.7%. It seems statistically odd that not one black person passed the test. To me, that does point to testing error.
But I think Ms. Ginsberg is wrong on the other part of her analysis. She said the people who did pass the test weren’t entitled to a promotion. That’s not correct. When management set the terms out for promotion and people met those terms then they are entitled to the promotion.
This was a managment error, not an applicant error. It is not the applicants who should pay the price of a managemnet error. Management is on the hook. I think the applicants that did not pass the test should sue for damages and I belive they will win.
If I understand the decision correctly, the SCOTUS decreed that the city could not invalidate the test out of fear that it would be challenged as bias.
Now that the city has been directed to apply the results of the test, is the debate on the issue subject to being continued based upon what participants of the test experienced?
In other words, the city was merely trying to avoid being sued for a Title VII violation – it did not have to declare that it had in fact violated Title VII. Could those who felt the application of the test was in fact a Title VII now bring a case and argue a proof?
To Chris: If, as you wrote, there was a time for affirmative action, by what measure do you now determine that the time has passed?
To mespo727272: Good capture of Plato’s logic after it seemed Bob was attempting to stake a simplified claim to his work.
When the city refused to certify the results of the tests, no one was promoted, and thus no one suffered actual discrimination.
Due to concerns that the promotional exams discriminated on the basis of race in violation of the law, the city held public hearings on the issue of whether to certify the test results.
The city considered whether the exams were sufficiently related to the positions in question.
Several New Haven firefighters testified that some of the questions were not relevant to the knowledge or skills necessary for the positions.
The city also heard evidence as to whether fairer, more effective tests were available.
Testing experts
(1) testified that other types of exams would not be expected to result in such a stark disparate impact.
(2) opined that alternative testing procedures could better identify the best potential supervisors for the fire department. (3) testified that “assessment center processes” and “situation judgment tests” can provide better alternatives to traditional written and oral tests.
So, instead of using better determinants of command capability in the fire department, the city must promote based upon a test it is no longer using?
One last question: who funded this multi-year legal trek?
I can tell you with utmost confidence that Mr. Turley’s relatives & friends LOATH his appearances on Keith Olbermann ridiculous hate fest. It is causing pain & consternation.
There was a time for affirmative action. That time has past.
Bob,ESq:
“How does one attempt to make amends with past sins by weakening the very foundation of a just society via making ‘exceptions’ to who falls where in society as their merits and abilities dictate?”
**********
If I asked you to run in a race for your survival and yours were started half a lap behind the other contestants, would it be unfair to remedy the situation by moving you up later when the error was discovered? Would the other runners who had established their position feel cheated? Would it really be cheating? Would denying the fact make it fair?
On the subject of Plato, maybe the Court in those pre-Bushie discrimination cases was following the old Hellenist’s admonition to that “He who commits injustice is ever made more wretched than he who suffers it.” Or even perhaps the famous observation from “The Republic”: “Mankind censures injustice fearing that they may be the victims of it, and not because they shrink from committing it.”
Madia,
This is not a Troll Hideaway.
I can tell you with certainty that Mr. Turley’s relatives & friends LOATH his appearances on Countdown with Keith Olbermann.
If these results were inverted, no whites and two Hispanic applicants qualified for promotions based on their scores, and again brought before the court by white firefighters, would the court result be the same? I suspect that no whites scored high enough for promotion to Captain or LT would be greeted as ludicrous.
Agree with Gary.
Many are forgetting that there were Hispanics that scored highly on this test, and THEY were denied promotion , too, simply because no Blacks scored high enough.
Clearly, Scotus did , indeed, do right.
Bravo to the White and Hispanic firefighters who stood up for their rights under Title 7, and stuck with it, all the way to the top.
I can’t believe there is so much blather given to what is a very simple situation, solved by very simple application of instant equity.
A test, not found to be racially biase, was given to a racially unbiased cross section of applicants.
The results of the aggregate test did not match expectations of a racial result.
Entirely due to racial considerations, perfectly valid and deserving applicants were to have their results thrown out.
This is an obvious violation of equal protection based upon race, Title 7 be damned.
The SCOTUS did right for a change.
I agree with the majority decision, but Justice Kennedy’s reasoning raises some questions. The article includes this line:
“Kennedy wrote the majority opinion. The fear of litigation was not sufficient to justify the discrimination against white and Hispanic firefighters”.
Perhaps some of regulars can remember better, but didn’t Chief Justice Roberts recently use that same argument–to avoid future litigation–to justify his opinion in a case?
Mespo: “It’s shares that distinction with its precursor, that most peculiar of all institutions, slavery.”
Mespo,
Do you recall the underlying theme of, a book not necessarily written by Plato, called “The Laws?”
How does one attempt to make amends with past sins by weakening the very foundation of a just society via making ‘exceptions’ to who falls where in society as their merits and abilities dictate?
Too Bad Bush did not have to take a Test to be promoted as well. Oh no, Daddy bought it for him. Alas, the good ole boy network.
What is the remedy? Are the “injured” firefighters to be promoted, or must they sue and prove that the test and interview results, plus union rules that promotions must come from the high scoring applicants are a fair way to identify those who should be promoted?
Finally the affirmative action law was applied in the spirit it was written.
NO one should be discriminated on the bases of race, color, sex, etc., That MEANS NO ONE. Not just so-called “historically disadvantaged” classes. Under the civil rights act, ALL human are suppossed to be afforded the same rights NOT one given more advantages than the other b/c of race, color, sex, etc.
The sword cuts both ways. The court finally got one right
Bob,Esq:
“The mere existence of this litigation is proof positive that affirmative action is rife with tortured logic.”
***********
It’s shares that distinction with its precursor, that most peculiar of all institutions, slavery.