RICCI Leaves A Lot For Sotomayor To Explain

It turns out the case was complicated, after all.

The plaintiffs in Ricci v. DeStafano were white and Hispanic firefighters in New Haven. They scored high enough on a civil service promotion exam to qualify for promotions but the exam was thrown out — and their promotions denied — when city officials saw that no African-Americans (and too few Hispanics) had high enough scores to receive such promotions. The district court thought this was an adequate reason to throw out the test. The Second Circuit Court of Appeals affirmed this ruling in a one-paragraph decision — in an opinion signed by Judge Sonia Sottomayor, President Obama’s nominee for the Supreme Court.

The Supreme Court’s June 29 decision overturned that result. It was a 5-4 ruling, with retiring Justice David Souter siding with the dissenters. Even Judge Ginsburg’s decision for the dissenters, however, which plods through nearly forty pages of rebuttal, left the issue somewhat more qualified than Judge Sottomayor’s dismissive paragraph for the Court of Appeals.

But Justice Kennedy’s majority opinion is almost as long as the dissent and far from a ringing statement of fundamental principles. As in so many past cases on racial preferences, the Court has tried to draw a line — and then smudged it.

The underlying principle seems straight-forward. Imagine if a city gave a promotion exam and then rejected the results after finding that all those with top scores were African-Americans. Courts would have no trouble calling that race discrimination. Justice Kennedy acknowledges the results here were also driven by concerns about race. But the majority opinion insists that can’t end the dispute when the injured parties are white.

Title VII of the Civil Rights Act does prohibit employers from treating people differently because of race. After a 1991 amendment, affirming earlier Court interpretations, it also prohibits race neutral practices with “disparate impact” on people of different races. So an employer might be found guilty of “discrimination” for using a test under which whites perform better than blacks, unless the test can be shown to be a reasonably reliable predictor of job performance. The lower courts and the Obama Justice Department argued that “disparate impact” — the unbalanced racial distribution of high scores — was enough reason for New Haven to reject its test.

Kennedy’s opinion insisted the city would need to have “a strong basis in evidence” for its claim that the test could be found discriminatory in subsequent litigation. Otherwise, he warned, “fear of disparate-impact liability would encourage race-based action at the slightest hint of disparate impact” which “would amount to a de facto quota system.” Justice Ginsburg thought employers should be allowed to discard test results when a test shows a “disparate impact” and there is “good cause” to think that differential would justify a discrimination claim. Ginsburg’s “good cause” presumably means more than just any pretext.

Even under Kennedy’s standard, however, the law seems to encourage employers to take race into account to some degree. Justice Kennedy acknowledges that employers are not prohibited “from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race.” That seems, in fact, to invite employers to glance at the racial implications of tests before they decide which test to use. If employers don’t take race into account at any stage, they are increasing their liability to “disparate impact” lawsuits.

So if the Constitution requires government to be color-blind, how can it be constitutional for a federal law to nudge employers, even in a somewhat indirect way, into taking race into account in their hiring and promotion decisions? Justice Scalia brought up this concern in a concurring opinion but it says much about the current state of this issue that no other justice joined his opinion.

Justice Ginsburg’s dissent emphasized the “context” of New Haven’s action, noting that municipal fire departments had long excluded minorities and federal civil rights law had not been extended to such jobs until 1972. Nobody on the Court bothered to notice that was nearly a half century ago. Someone who filed a discrimination claim against a fire department in the early 1970s could now be coaching his grandchildren on how to challenge a promotion exam on the basis of “disparate impact.”

Five years ago, when the Court upheld a racial preference scheme in the Michigan law school case, Justice O’Connor’s majority opinion indicated that affirmative action of this sort might no longer be acceptable in twenty years. Nobody on either side in Ricci bothered to say that its endorsement for a modified, qualified, avoiding-disparate-impact version of racial balancing measures should be phased out in another generation.

To the contrary, in the era of our post-racial presidency, Justice Kennedy thought it useful to mention that one of the outside consultants who defended the New Haven firefighters exam was a “fire program specialist for the Department of Homeland Security and a retired fire captain … who is black.”

My guess is that this “fire program specialist” also noted that lieutenants and captains in fire departments are responsible for making decisions which are sometimes, quite literally, matters of life or death. But nobody on this Court bothered to note that fact, either.

Now that the Supreme Court has spoken, the Senate Judiciary Committee might now ask Judge Sottomayor what she thinks about this case. If confirmed, she will probably be facing similar cases for a long time to come.