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Michael C. Dorf

The Supreme Court Decides the New Haven Firefighter Case


Wednesday, July 1, 2009

Just before adjourning on Monday, the Supreme Court handed down the most closely-watched case of the current Term: Ricci v. DeStefano. Ricci posed a genuinely difficult question of employment discrimination law: When can an employer—in this instance, the New Haven fire department—toss out the results of a promotion test because those results favor white over minority applicants?

The Court ruled 5-4 for the eighteen white (including one Hispanic) firefighter plaintiffs. The majority held that an employer can invoke fear of "disparate impact" litigation by minority applicants as a defense to a charge that discarding the results was itself an act of unlawful discrimination. However, the lead opinion written by Justice Kennedy announced that the defense is only available where the employer has a "strong basis in evidence" for fearing disparate impact liability. The majority further found that the record in Ricci did not meet this standard.

The Ricci ruling raises at least as many questions as it answers. After describing the core holding, I shall consider three of them: First, why did the Supreme Court order judgment for the plaintiffs, rather than remanding for further proceedings under its newly-minted legal standard?

Second, can Congress prospectively overturn the result in Ricci?

And third, what impact will the Ricci case likely have on the Supreme Court confirmation hearings of Sonia Sotomayor, who was a member of the three-judge appeals court panel that summarily affirmed the district court ruling for the fire department in this case?

No Longer Damned If You Do, Damned If You Don't

Title VII of the 1964 Civil Rights Act offers two main avenues for plaintiffs complaining about discrimination in hiring, promotion, or the conditions of employment. First, a plaintiff who can directly prove that the employer used an impermissible criterion—such as race or sex—in a covered employment decision will bring a "disparate treatment" case. Disparate treatment cases are difficult for plaintiffs to win, because there will rarely be a smoking gun demonstrating intentional discrimination.

Accordingly, plaintiffs often bring the second sort of claim: disparate impact. Disparate impact claims were originally recognized by the Supreme Court in the 1971 case of Griggs v. Duke Power Co., and subsequently codified as an amendment to Title VII in the Civil Rights Act of 1991. To oversimplify somewhat, a disparate impact plaintiff must show that the challenged selection mechanism disproportionately under-selects members of his or her group. If that showing is made, then the burden shifts to the employer to show that the use of the test or other selection mechanism was justified by the nature of the job or business in question.

In many cases, disparate treatment and disparate impact are merely different avenues to the same conclusion: A disparate impact can be evidence that the employer adopted some procedure for hiring or promotion with the intention of discriminating against the plaintiff on the basis of a protected characteristic. In Ricci, however, the two theories of liability were in conflict.

In late 2003, in order to decide who was eligible for promotions to lieutenant and captain, the New Haven fire department administered a written multiple-choice test, which accounted for sixty percent of a test-taker's score, and an oral exam, which accounted for the remaining forty percent. Under the city's rules, promotions could only then be given to those who ranked among the top three test-takers. Although six African- Americans earned passing scores on the lieutenant's test, and three passed the captain's test, none of these was among the top scorers eligible for promotion to any of the open slots. After much public discussion, the department therefore decided not to use the test results.

When the white firefighters who would have been eligible for promotions according to the original test results sued, alleging disparate treatment, the department asserted Title VII itself as a defense: The department pointed out that if it had simply used the test results, it would have been vulnerable to litigation by the African-American firefighters, complaining about disparate impact discrimination; yet, having voided the test results, it had been sued by other firefighters claiming that they had thereby suffered disparate treatment race discrimination. Thus, as Sherry Colb explained in an earlier column on Ricci,the department found itself between a rock and a hard place: damned if it did use the test, but also damned if it didn't.

The lower courts credited this reasoning, but the Supreme Court did not. An employer does not face a Hobson's choice, Justice Kennedy said for the Court, because the aim of avoiding disparate impact litigation can be a defense to a charge of intentional discrimination. But he added that an employer cannot merely assert a fear of litigation. Instead, for the defense to succeed, there must be a "strong basis in evidence" to fear liability for disparate impact.

Why Didn't the Supreme Court Remand for Trial?

Nothing in the text of Title VII mandates the strong-basis-in-evidence rule that Justice Kennedy formulated for the Court in Ricci. Rather, to strike an "appropriate balance" between fear of disparate impact litigation and the prospect of reverse discrimination, Justice Kennedy borrowed the evidentiary rule from the Court's jurisprudence interpreting the Equal Protection Clause. Such doctrinal borrowing is not in itself problematic. Real-world experience often reveals gaps in statutes, and the courts must look somewhere to fill those gaps. The Court had good reason to turn to a line of constitutional cases addressing similar issues.

However, prior to Monday's ruling, Title VII was not generally understood to require a "strong basis in evidence." Thus, when the fire department compiled its factual record in the district court, it did not have any reason to know that it would be held to this exacting standard.

Ordinarily, when the Supreme Court announces a new legal rule or standard, it remands the case to the lower courts to give the parties an opportunity to present their evidence and arguments under that new standard. Yet in Ricci, as Justice Ginsburg noted in her dissent (joined by Justices Stevens, Souter, and Breyer), the majority departed from this practice. The majority thought that the only record evidence of possible disparate impact liability was statistical, but of course the record before the Supreme Court was produced before the announcement of the Court's new test.

Indeed, the lack of a remand was especially odd because three of the five members of the majority—Justice Alito, who concurred, and Justices Scalia and Thomas, who joined his concurrence—wrote separately to explain why, in their view, a remand would be necessary to apply the standard set forth by the dissent. Yet Justice Ginsburg, writing for the dissenters, did not contend otherwise. She expressly stated that the dissenters "would not oppose a remand for further proceedings fair to both sides."

If three of the five members of the majority saw the need for a remand under a standard that had not even been adopted by the Court, then why did the majority opinion not order one under its own new legal standard?

Can Congress Change The Test?

The Ricci majority based its ruling entirely on Title VII. Accordingly, one might think that Congress could respond by changing the law and making it easier for employers in the future to discard procedures that produce a racially-disparate impact. However, the Court dropped a pointed hint that such a statutory change could be unconstitutional. Indeed, the Court even left open the possibility that the very standard it announced might be unconstitutional if it were to be applied to defeat a future claim like that of the plaintiffs in Ricci. Justice Kennedy said that the Court was not ruling "that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case."

In a solo concurrence, Justice Scalia went even further. He offered reasons why, in a future case, the Court might rule that the disparate impact rule itself is unconstitutional, insofar as it induces race-conscious employment decisions that are not strictly necessary to remedy specific proven acts of intentional discrimination.

There is reason to think that there are already five votes for the proposition that Justice Scalia said would be tested in a coming "evil day." Two years ago, in Parents Involved in Community Schools v. Seattle School Dist. No. 1, the Court held that a school district may not voluntarily use race in student assignments as a means of addressing de factoracial segregation in its schools. De facto racial segregation, of course, is simply another form of disparate racial impact. If the aim of redressing disparate racial impact does not justify race-conscious public school student assignments, then it is difficult to see why it would justify race-conscious employment decisions.

To be sure, Justice Kennedy wrote a partially-concurring opinion in Parents Involved, explaining the basis on which he cast his fifth and decisive vote. He appeared to give school districts some leeway by defining a broad range of practices—such as building new schools on sites that are likely to attract a desired racial mix of students—as permissibly race-neutral. Since then, most Court watchers have assumed that Justice Kennedy would play a moderating role among the Court's conservative majority. That may well be true in general, but the Kennedy concurrence in Parents Involved will not offer much of a basis for defending the disparate impact provisions of Title VII against an equal protection attack.

Justice Kennedy parted company with the other conservatives in Parents Involved by suggesting that he would employ a looser test for deciding what counts as a permissibly race-neutral measure. However, in his Ricci opinion, Justice Kennedy made very clear that he thinks that actions like the New Haven fire department's decision to void the promotion tests are race-based, not race-neutral.

Perhaps Justice Kennedy (and the Court) will find some other basis for upholding the disparate impact provisions of Title VII when they are challenged, but civil rights lawyers would be wise not to assume that his stance of moderation in Parents Involved assures that outcome.

The Likely Impact on the Sotomayor Hearings

The Ricci decision will likely play an important role in Judge Sotomayor's upcoming confirmation hearings. Supporters will note that the man she has been nominated to replace—Justice Souter—voted the same way she did in Ricci. Critics, by contrast, will portray her decision as not merely in error but as a whopper.

Even excellent judges are occasionally overruled by higher courts. However, the critics will say, Judge Sotomayor thought that Ricci was such an easy case that it did not even warrant a published opinion. She joined an unsigned, one-paragraph decision affirming based on the district court's "well-reasoned opinion." Surely, critics will say, Judge Sotomayor seriously erred by not treating Ricci as at least a difficult case.

Those critics, however, will be wrong. As Justice Ginsburg noted in her Ricci dissent, a 1999 Second Circuit case involving a Nassau County police entrance examination had squarely held that an employer's efforts to avoid a disparate racial impact, if applied in a racially-neutral manner, simply did not amount to race discrimination in violation of Title VII. Under well-established rules, one panel of the Second Circuit must follow the precedents of earlier panels (absent intervening Supreme Court authority). Thus, Judge Sotomayor and the rest of the Second Circuit's Ricci panel simply had no authority to disregard the 1999 Nassau County case.

Granted, Sotomayor's critics might nonetheless counter that she could have tried to distinguish the Nassau County case, which challenged the use of a test before it was administered, rather than challenging the discarding of the results of a test after its disparate impact became apparent. Yet these critics would then have to offer some reason rooted in Title VII or equal protection law why this distinction should matter.

Tellingly, although the majority opinion in Ricci repeatedly refers to the investment of time and effort made by the successful white test-takers, it never even attempts to explain why this fact is legally salient. Would any member of the Ricci majority have voted differently if the fire department had voided the results of a pop quiz for which the firefighters did not have a chance to study?

Justice Ginsburg calls the majority on this point in her dissent, stating that it is understandable that her colleagues would have "sympathy" for the high-scoring white firefighters, given the effort they made, but that even under the majority's analysis, this fact has no legal relevance. In response, Justice Alito remarked that "‘sympathy' is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law." Yet, like the majority, Justice Alito never tried to explain how or why the time and effort expended by promotion applicants were relevant to the question of whether the department's decision to discard the test violated Title VII.

"Sympathy," of course, is a close cousin of "empathy," an emotion that President Obama has said he values in a Justice, and a trait that has been ridiculed by some on the right as improper in judges. It is thus noteworthy that in Ricci, the conservative Justices appear to be the ones ruling based on sympathy (or empathy), even as they deny it.

Justice Alito's concurrence is also noteworthy for its apparently gratuitous invocation of racial politics. As noted above, his argument that the dissent should be ordering a remand is bizarre, because the dissent has no power to order anything and the dissenters were not, in any event, opposed to a remand. Yet based on this extremely thin reed, Justice Alito goes on at length in offering reasons why the New Haven police department's invocation of Title VII's disparate impact provisions could be characterized as pretextual. The real basis for the decision, Justice Alito ominously suggests, may have been pressure from the Reverend Boise Kimber, a figure who, as described by Justice Alito, could have come out of a Tom Wolfe novel. (Think of Reverend Reginald Bacon in Bonfire of the Vanities, or imagine the Reverend Al Sharpton on steroids.)

I suspect we have not heard the last of the Reverend Kimber. With Democrats holding a commanding majority in the Senate, and polls showing Judge Sotomayor to be broadly popular among the American public, the best that Republicans may be able to do is to try to tie Judge Sotomayor to racial politics. It will not ultimately work, but it will make for gripping, if tawdry, television.

Michael C. Dorf, a FindLaw columnist is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at

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