June 30, 2009
Supreme Court Finds Bias Against White Firefighters
By ADAM LIPTAK, NY TIMES

WASHINGTON — The Supreme Court ruled on Monday that white firefighters in New Haven were subjected to race discrimination when the city threw out a promotional examination on which they had done well and black firefighters poorly.

“The city rejected the test results solely because the higher scoring candidates were white,” Justice Anthony M. Kennedy wrote for the majority, adding that the possibility of a lawsuit from minority firefighters was not a lawful justification for the city’s action.

“Fear of litigation alone,” Justice Kennedy wrote, “cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”

The 5-to-4 ruling, which reversed an appeals court decision joined by Judge Sonia Sotomayor, now a Supreme Court nominee, will have broad impact, lawyers specializing in employment discrimination law said.

“This decision will change the landscape of civil rights law,” said Sheila Foster, a law professor at Fordham.

The new standards announced by the court will make it much harder for employers to discard the results of hiring and promotion tests once they are administered, even if they have a disproportionately negative impact on members of a given racial group.

Public employers that use civil service examinations and similar tests will be most directly affected, but the principle announced by the court applies to all employers and all sorts of procedures used to rank and sort potential and current employees.

Justice Ruth Bader Ginsburg, reading a dissenting statement from the bench, said the majority had undermined a crucial civil rights law. “Congress endeavored to promote equal opportunity in fact, and not simply in form,” she said. “The damage today’s decision does to that objective is untold.”

The New Haven case had drawn wide interest, in part because of Judge Sotomayor’s role in it.

Supporters of her Supreme Court nomination said Monday’s decision changed the law and thus did not reflect negatively on the decision she participated in. Critics asserted that the appeals court’s approach had not been fully endorsed by any justice.

Justice Kennedy, writing for himself and the four members of the court’s conservative wing, said the case required the court to try to reconcile two aspects of Title VII of the Civil Rights Act of 1964, which prohibits race discrimination in employment.

The “original, foundational” core of Title VII, Justice Kennedy wrote, prohibits intentional discrimination against individuals on the basis of race — “disparate treatment,” in the legal jargon. But the law also prohibits some seemingly neutral practices that have a “disparate impact” on members of racial groups.

Many of the plaintiffs in the case — 18 white firefighters, one of them Hispanic — studied intensively for the test, giving up second jobs and missing family celebrations. The lead plaintiff, Frank Ricci, who is dyslexic, said he studied for 8 to 13 hours a day, hiring an acquaintance to tape-record the study materials.

New Haven argued that it had acted in good faith in throwing out the exam results, fearing a disparate-impact suit from minority firefighters.

That was not enough, Justice Kennedy wrote. Indeed, allowing “employers to discard the results of lawful and beneficial promotional exams even when there is little if any evidence of disparate-impact discrimination,” he wrote, “would amount to a de facto quota system.”

But the majority did not rule out consideration of disparate impact altogether. Employers may consider potential racial impact “during the test-design stage,” Justice Kennedy wrote.

And, in “certain, narrow circumstances” after tests are given, he continued, employers may discard the results if they can demonstrate “a strong basis in evidence” that using the results would cause them to lose a disparate-impact suit.

That heightened standard, Justice Kennedy wrote, requires employers to show that the tests were not relevant to the jobs at issue or that other “equally valid and less discriminatory tests were available.”

In the case before the court, Ricci v. DeStefano, No. 07-1428, the majority said there was no evidence, let alone strong evidence, of either a problem with the tests or of the availability of better alternatives. The court ruled in favor of the plaintiffs outright rather than returning the case to the lower courts for application of the new “strong basis in evidence” standard.

Because it ruled on statutory grounds, the court did not consider the plaintiffs’ separate claim that New Haven had violated the firefighters’ rights under the Constitution’s equal protection clause.

Justice Kennedy was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

In a concurrence, Justice Scalia predicted that the court would soon have to reach the larger constitutional question. “The war between disparate impact and equal protection will be waged sooner or later,” he wrote, “and it behooves us to begin thinking about how — and on what terms — to make peace between them.”

Justice Ginsburg, writing for herself and Justices John Paul Stevens, David H. Souter and Stephen G. Breyer, said the majority had underestimated the legitimate fear New Haven had of losing a disparate-impact suit. “Like the chess player who tries to win by sweeping the opponent’s pieces off the table,” she wrote of the majority opinion, “the court simply shuts from its sight the formidable obstacles New Haven would have faced.”

None of the justices were directly critical of the unsigned appeals court decision in which Judge Sotomayor participated. Justice Kennedy did write that the decision, issued “after full briefing and argument by the parties,” consisted of a single paragraph adopting the district court’s decision.

Justice Alito, in a concurrence for himself and Justices Scalia and Thomas, noted that the federal government had not fully endorsed the appeals court’s decision in the supporting brief it filed in the Supreme Court, suggesting instead that the case be returned to the lower courts for more work.

The four dissenters in places seemed to endorse the approach suggested by the federal government; in others, they indicated they would have ruled for New Haven outright.

Justice Ginsburg wrote that there was a long history of race discrimination in firefighting. She added that people good at taking tests were not necessarily the best leaders in public safety emergencies.

In her statement from the bench, Justice Ginsburg said the firefighters who sued “understandably attract the court’s empathy.” (In her written dissent, she said the plaintiffs “attract this court’s sympathy.”)

Justice Alito, in his dissent, said that was not enough.

“ ‘Sympathy’ is not what petitioners have a right to demand,” Justice Alito wrote. “What they have a right to demand is evenhanded enforcement of the law — of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.”

David Stout contributed reporting.

June 30, 2009
Op-Ed Contributor
The Court Changes the Game
By LINDA GREENHOUSE, NY TIMES

Washington

THE law of employment discrimination today is not what it was before 10 a.m. Monday, when the Supreme Court ruled against the City of New Haven for scrapping a fire department promotional exam that appeared to favor white test-takers.

Whatever else the court’s 5-to-4 majority achieved, the result removed the breathlessly awaited case of Ricci v. DeStefano as a substantial issue in the imminent Supreme Court confirmation hearing for Judge Sonia Sotomayor.
http://en.wikipedia.org/wiki/Ricci_v._DeStefano
Judge Sotomayor, famously, was one of three judges on an appellate panel who applied their federal circuit’s settled precedent to rule in New Haven’s favor. Like that decision or hate it, cheer Monday’s ruling or deplore it, one thing that is clear from reading the Supreme Court’s 89 pages of opinions in the case is that Judge Sotomayor and her colleagues played by the old rules, and the court changed them. Although “Sotomayor Reversed” was a frequent headline on the posts that spread quickly across the Web, it was actually the Supreme Court itself that shifted course.

To understand the nature of the shift requires a bit of history. Congress enacted Title VII of the Civil Rights Act of 1964, the statute at issue in the Ricci case, with a simple command to employers: thou shalt not discriminate on the basis of race or other protected characteristics, including sex and religion. But the simple proved to be complicated. An employer of blue-collar workers in North Carolina, Duke Power, required a high school diploma of all job applicants, a requirement that screened out 88 percent of black men in that region at that time.

In a 1971 decision, the Supreme Court ruled unanimously that a test that was “fair in form, but discriminatory in operation” could violate Title VII even without proof that the discrimination was intentional. Congress eventually amended Title VII to codify that decision, Griggs v. Duke Power. The rule was clear: if a job requirement produced a “disparate impact,” the employer had the burden of showing that the requirement was actually necessary.

Federal agencies, in turn, stepped forward to define the statistical disparity that prompted the further inquiry. Under the Equal Employment Opportunity Commission’s “four-fifths rule,” a test that one racial group passed at less than 80 percent the rate of another group would place an employer in presumptive violation of Title VII.

The early Supreme Court decision and later Congressional ratification represented a highly visible social settlement in the employment discrimination area. But beginning in the 1990s, changes in the Supreme Court’s membership and outlook began to unravel not only the legal structure, but also the philosophic one that had kept the settlement intact.

Powerful voices on the court, including Justice Anthony M. Kennedy, who wrote the majority opinion on Monday, began to call for something close to a zero-tolerance policy when it came to government counting its citizens by race for any purpose. And the court became skeptical of Congress’s making its own legislative judgments in ways that threatened to expand the boundaries of the court’s own narrowing constitutional vision.

These were tensions that underlay the challenge to the Voting Rights Act that the justices deflected with a narrow statutory ruling last week. The same tensions made the disparate-impact prong of Title VII something of an accident waiting to happen, because curing or avoiding a disparate impact obviously requires an employer to take race into account. A municipal employer like New Haven is bound not only by Title VII but also by the 14th Amendment’s equal protection clause, which the Supreme Court has interpreted to prohibit only intentional, and not simply statistical, discrimination.

The New Haven case, like the Voting Rights Act case, thus reached the court at a moment when the tectonic plates were in motion. White firefighters in New Haven had passed the promotional exams in 2003 at roughly double the rate of black and Hispanic test-takers, and no black firefighters had scored high enough to be eligible for promotion in a department with a long history of minority under-representation in a city that is now 60 percent black and Hispanic. Advised by its counsel that it faced Title VII disparate-impact liability, New Haven decided not to use the exam’s results. It thought it had found an escape from liability, and two lower federal courts agreed.

But where the lower courts saw a safe harbor, the Supreme Court majority saw “express, race-based decision-making” that violated Title VII’s other prong, the prohibition against disparate treatment. A “statistical disparity based on race,” the standard that Judge Sotomayor and her colleagues used, is no longer a sufficient excuse, Justice Kennedy said. The court announced what it called a “strong-basis-in-evidence standard.” Without a “strong basis” for concluding that a disparate impact made it vulnerable, and not just a lawyer’s plausible caution, an employer is stuck.

As it did last week, the court stopped short of addressing the deeper constitutional question. But Justice Kennedy warned that the Ricci opinion did not mean “that meeting the strong-basis-in-evidence standard would satisfy the equal protection clause in a future case.”

In dissent, Justice Ruth Bader Ginsburg had her own warning: “The court’s order and opinion, I anticipate, will not have staying power.”

Both predictions are provocative, and each depends on the same thing: not future cases so much as future justices. Even before the court ruled, there was little doubt that Judge Sotomayor would be confirmed. With the justices having changed the rules in employment discrimination cases, now it’s not even clear what there will be to talk about.

Linda Greenhouse, a former Supreme Court correspondent for The Times, teaches at Yale Law School.

June 6, 2009
New Scrutiny of Judge’s Most Controversial Case
By ADAM LIPTAK, NYTimes

WASHINGTON — Near the end of a long and heated appeals court argument over whether New Haven was entitled to throw out a promotional exam because black firefighters had performed poorly on it, a lawyer for white firefighters challenging that decision made a point that bothered Judge Sonia Sotomayor.

“Firefighters die every week in this country,” the lawyer, Karen Lee Torre said. Using the test, she said, could save lives.

“Counsel,” Judge Sotomayor responded, “we’re not suggesting that unqualified people be hired. The city’s not suggesting that. All right?”

The exchange was unusually charged. Almost everything about the case of Ricci v. DeStefano — from the number and length of the briefs to the size of the appellate record to the exceptionally long oral argument — suggested that it would produce an important appeals court decision about how the government may use race in decisions concerning hiring and promotion.

But in the end the decision from Judge Sotomayor and two other judges was an unsigned summary order that contained a single paragraph of reasoning that simply affirmed a lower court’s decision dismissing the race discrimination claim brought by Frank Ricci and 17 other white firefighters, one of them Hispanic, who had done well on the test.

The Ricci case, bristling with important issues, has emerged as the most controversial and puzzling of the thousands of rulings in which Judge Sotomayor participated, and it is likely to attract more questions at her Supreme Court confirmations hearings than any other.

The appeals court’s cursory treatment suggested that the case was routine and unworthy of careful scrutiny. Yet the case turned out to be important enough to warrant review by the Supreme Court, which heard arguments in April and is likely to issue a decision this month.

The result Judge Sotomayor endorsed, many legal scholars say, is perfectly defensible. The procedure the panel used, they say, is another matter.

There is evidence that the three judges in the case agreed to use a summary order rather than a full decision in an effort to find common ground. Allies of Judge Sotomayor, who was the junior judge on the panel of the United States Court of Appeals for the Second Circuit, correctly point out that the Second Circuit often decides even significant cases with summary orders that adopt the reasoning of the lower court. They add that the panel’s decision reflected a respect for precedent, though it cited none. Judge Sotomayor certainly made no suggestion at the argument that she was constrained by precedent to rule for one party or the other.

At the argument, Judge Sotomayor did not indicate that she was inclined to use the case to make a larger statement about affirmative action. She was focused, instead, on the array of factual and legal issues before her.

“Race on some level was a part of this discussion” when New Haven’s civil service board decided to throw out the test, Judge Sotomayor told Ms. Torre, the lawyer for the plaintiffs.

“The entire discussion before the board was, ‘Was there an adverse impact on the minority candidates by this testing procedure?’ ” Judge Sotomayor said.

That sort of race consciousness, she said, may be perfectly lawful. “You can’t have a racially neutral policy that adversely affects minorities,” Judge Sotomayor said, “unless there is a business necessity.”

Her extensive and probing questions at the argument were typical of her methodical approach to cases, and they offer sometimes conflicting hints about her views on when the government may take account of race in decisions concerning hiring and promotion.

At times, her questions were small lectures on the governing legal standards.

“You have to look at the test and determine whether the test was in fact fair or not,” Judge Sotomayor told a lawyer for the defendants, Richard A. Roberts. “If you’re going to say it’s unfair, point to specifics, of ways it wasn’t, and make sure that there really are alternatives.”

But the summary order Judge Sotomayor joined drew none of those distinctions.

Catherine O’Hagan Wolfe, the clerk of the court, said in an e-mail message that such an order “ordinarily issues when the determination of the case revolves around well-settled principles of law.”

The Ricci case does not meet that standard, Judge Jose A. Cabranes wrote for himself and five other judges in a dissent from the full court’s decision not to rehear the case. The questions posed in the Ricci case, Judge Cabranes wrote, were exceptionally important “constitutional and statutory claims of first impression” — meaning ones where no binding precedent exists.

The district court judge in New Haven, whose opinion the appeals court panel affirmed and adopted, did identify three earlier Second Circuit decisions concerning the use of race by the government in hiring and promotional exams. But they did not involve precisely the same issues.

The panel’s brief decision in the Ricci case was conversational in tone, and it does not reflect Judge Sotomayor’s somewhat bureaucratic writing style.

It did strike a note of empathy, though one couched in a double negative: “We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated.”

The decision ruled that New Haven’s civil service board “had no good alternatives” and was protected because it “was simply trying to fulfill its obligations” under a federal civil rights law when it was “confronted with test results that had a disproportionate racial impact.”

In the Second Circuit, Judge Sotomayor was the junior judge on the panel, which also included Judge Rosemary S. Pooler, who was the presiding judge at the argument, and Judge Robert D. Sack, who did not attend due to illness.

In the end, according to court personnel familiar with some of the internal discussions of the case, the three judges had difficulty finding consensus, with Judge Sack the most reluctant to join a decision affirming the district court. Judge Pooler, as the presiding judge, took the leading role in fashioning the compromise. The use of a summary order, which ordinarily cannot be cited as precedent, was part of that compromise.

Neil A. Lewis contributed reporting.

The Libertarian
Ricci Vs. DeStefano
Richard A. Epstein 06.29.09, 2:30 PM ET

Monday's decision of the United States Supreme Court in the New Haven Firefighter's affirmative action case, Ricci v. DeStefano reveals an open wound on affirmative action by public bodies that time has not healed. As a technical matter, the case arose in a somewhat unusual posture, so I will take the liberty of writing a longer piece than normal. Apologies in advance.

The city of New Haven went to great lengths to devise a written examination that would fairly test members of the New Haven firefighters for promotion to captain and lieutenant. But ultimately, the results on this test, like the results on so many other qualification tests, generated a sharp disparate impact. African-American and Hispanic applicants did far worse than the white candidates for the open positions, such that none of them would have been eligible for consideration in the first wave of promotions. Black and Hispanic applicants threatened to sue the city to invalidate the test because of that disparate impact. The city decided, in effect, to settle that case without litigation by abandoning its tests and refusing to certify any successful candidates for promotion.

That decision did not bring peace. The disappointed white firefighters then went to court themselves, claiming that the city had no reason to set aside the test, which had been fairly vetted and properly administered. The Supreme Court, by a predictable five to four vote that broke along conservative and liberal lines, upheld the validity of the test. Justice Kennedy wrote the Court's opinion, and Justices Scalia and Alito concurred. Justice Ginsburg wrote a dissent

I have little doubt that under the current law, the conservative majority got this case correct under Title VII. The relevant legal analysis calls for a three-step test. The first, and uncontroversial, conclusion was that the African-American and Hispanic firefighters could show that the test had a disparate impact. That finding, however, does not end the matter, but only shifts the burden to the city to defend the test on the ground of "business necessity," by which is meant that it was a device that the city had to use in order to sort out those firefighters who were properly eligible for promotion from those who were not. On this score, the city did well. The test preparations were meticulous, and if the elaborate precautions taken to root out all potential forms of bias were insufficient, then the business necessity defense was a dead letter.

So this moved the question to the third stage, which is whether there was some alternative means that could have achieved the same result without the discriminatory impact. Again, the only way to make this case out would be to claim that all these tests, no matter how constructed, are not job-related so that promotions should turn on subjective intangibles. The frequency with which tests are used in all areas of life (including many employment contexts, like professional sports, where there is no disparate impact problem) suggests the foolishness of this approach.

Government bodies and private employers both need reliable information in order to make intelligent decisions on promotion, and it would be a scandal if Title VII were to remove one core component of any employment decisions. If the disappointed applicants could have proposed their own alternative test, that would have had both predictive power and no disparate impact, there is room for a discussion on the point. But one of the least appealing features of the current law on testing in race cases is that the attackers of the result do not have to present that alternative. And it is not likely, given the long history of failed attempts, that they would be able to do so. The defenders of affirmative action do us no favor when they attack the validity of tests that are now so carefully engineered that major improvements seem unlikely.

The dissent of Justice Ginsburg did not answer the majority's case, but instead focused its attention on two diversions from the main issue. The first was its dutiful recitation of the past injustices in hiring firefighters in New Haven, dating back over 30 years. It was just that history of evasion that spawned the creation of the disparate impact test in Duke Power v. Griggs decided in 1971. The argument was that intentional discrimination was difficult to ferret out, so that objective evidence of a racial skew was needed to guard against underhanded schemes.

Even in 1971, that outcome had its real cost, because it invalidated sensible tests that were not smokescreens for discrimination. Indeed, the height of folly on this point was Justice Brennan's 1982 decision in Teal v. Connecticut that showed the bad judgment to invalidate an employment test that was adopted by a state that already had committed itself to an affirmative action program. No smokescreen there. The regrettable effect of Teal was to advance the position of less qualified black applicants over more qualified black applicants, which is hardly what we should hope to see from a law dedicated to eradicating discrimination. The history does not matter. Looking forward is what counts.

Justice Ginsburg's second line of defense fares no better. She thought that the operative question was whether New Haven had "good cause" to invalidate the test. Normally, that is an appropriate test for settlement, but in this case the city had duties to all its employees, and the record showed quite clearly that the decision was made in response to inordinate political pressures, not because of any real concern with the test itself. So this ground should fail as well.

So the Court's decision looks to be correct under the current law, and yet it should also give rise to a sense of deep disquiet. Clearly, there has to be a better way to handle the question. The root of the difficulty lies, in my view, in the fact that we have a Title VII in the first place. On clear libertarian grounds, I have long argued that repeal of Title VII is the appropriate way to treat private markets. Firms that want to practice affirmative action should be able to do so, and no firm should ever be put under the disparate impact microscope, with its futile insistence on perfection with testing results. It will be said that some private firms will resort to their old ways, which is a possibility but a remote one. The change in composition of the workforce is an accomplished fact. These changes are readily observable at the senior management levels. Any large corporation that goes back to old-line segregation policies will commit economic suicide. We have to trust the rationality of private employers or be stuck with the irrationality of government regulators in their oversight position.

The benefits of repealing Title VII would be enormous. The liberalization on both sides of the market would reduce litigation, decentralize decision making, and take some of the political heat out of the process. We did not see a transition provision to overcome the evils of state-imposed segregation, but it is a mistake to keep beating on the history when all the past players are long dead and gone.

If private sector issues have a clear resolution, public sector issues do not. Dealing with public employment is always an issue because the state is never a free agent when it relates to its citizenry. In the end, the best we can hope for is a regime that allows public entities the same play in the joint on affirmative action that similarly situated private companies would adopt for themselves. That suggests a position midway between the Court and the dissent. It recognizes that these tests are valid for the purposes for which they are intended, but that other factors have to be brought back into the mix, including community acceptance that allows public bodies to work well.

In the end, we can't win with either the rigidity of the conservative position or the historical guilt trip of the liberal. A little flexibility will go a long way. The government as a manager cannot be held to the same strict standards that are applicable to the government as a regulator. The libertarian therefore becomes a moderate. He would keep the tests, and allow New Haven to promote the top of the African-American group to the prejudice of some white candidates. These rules should be announced in advance and after public deliberation. If you are happy with this solution, you don't understand the problem. If you are unhappy with it, come up with a better alternative.

Richard A. Epstein is the James Parker Hall distinguished service professor of law at the University of Chicago, and the Peter and Kirsten Bedford senior fellow, the Hoover Institution. He is also a visiting professor at New York University Law School. He writes a weekly column for Forbes.com.