Stereotypically, lawyers rarely agree. But, according to four law school professors, the Supreme Court case Ricci v. DeStefano is quite unusual.
In 2004, 20 New Haven firefighters sued the city of New Haven, claiming they were denied the opportunity for a promotion because of their race. The city threw out the results of the firefighters’ promotion exams for lieutenant and captain because the city was concerned the test was racially biased — no blacks scored well enough to get promotions. City officials said they feared low-scoring black firefighters might sue for discrimination if the white firefighters were promoted. Instead, the white firefighters (and one Hispanic firefighter) sued the city claiming they were denied promotions because of reverse discrimination.
In interviews with four law professors specializing in employment and discrimination law, these experts agreed that the New Haven firefighters’ reverse discrimination lawsuit is, at the very least, unusual. And while three of the four professors said the case was a surprising one for the Supreme Court to even hear, all of them expect a close decision this April.
Yale Law School professor Robert Post said last fall he used the Ricci case as a template for the moot court exercise he assigned in his constitutional law class. (Moot court is an extracurricular activity at many law schools that simulates appellate court cases, as opposed to mock trial, which simulates jury trial.) He said he chose the case for his students because it raised interesting questions about race and the equal protection clause.
An important issue the Court will decide, Post explained, will be the constitutionality of the reasoning behind the city’s actions. How the court settles this issue could affect the forms of acceptable affirmative action for government employers.
“I think it is important because it calls into question really what discrimination is and the entire state of Title VII,” said Cumberland School of Law at Samford University professor Marcia McCormick.
According to Title VII, even if a test were carefully designed to be race-neutral, employers could not use it if it had a “disparate impact” on one ethnic group unless there were no less discriminatory alternatives. It is unclear how an affirmative action or reverse discrimination case would be handled under Title VII, McCormick said.
The equal protection clause of the Constitution, which, in the absence of facial racial classification, focuses more on discriminatory purpose than on discriminatory impact, says nothing about disparate impact. This, McCormick says, complicates the case. The firefighters claim that the New Haven Civil Service Board violated the equal protection clause when it threw out their exam results because of racial classifications.
AN UNUSUAL CASE
McCormick and Yale Law School professor Drew Days, a former U.S. solicitor general, both said they were surprised the Supreme Court decided to hear the case.
Days, who argued cases in front of the Supreme Court on behalf of the government from 1993-’96, said the case is not like most cases the Court chooses to review because it is highly fact-based. The case does not present a conflict between courts of appeals, he said.
“The issues are multiple and those issues have not been resolved by lower courts, which is the type of case the Supreme Court is usually reluctant to get involved in,” Days added.
McCormick agreed: “The case is so complicated, I am frankly a little surprised the court took the case,” she said.
The two professors said the case’s history probably played a role in the Court’s decision to take the case.
“In almost every step in the appellate process there has been something unusual,” McCormick said.
After the case was summarily dismissed by the trial court, a three-judge panel of the 2nd U.S. District Court of Appeals issued a brief affirmation of the lower court’s decision that contained only one substantive paragraph.
“For such a complicated case, it is unusual that the district court just summarily affirmed,” McCormick said. “It did not explain why it was affirming.”
The brevity of the panel’s ruling disturbed some judges on the Court of Appeals. So the whole court, on its on motion, voted whether to re-hear the case en banc, which means in front of all the judges of the court.
“For a circuit court to ask that question on its own is highly unusual,” McCormick said.
The whole court declined to hear the case in a 7-6 vote, which Post said was unusually close. And six judges signed onto dissents, which McCormick called “pretty unusual.”
“The failure of the Court of Appeals panel to write a full opinion is probably part of what attracted the attention of some of the Supreme Court Justices,” Yale Law School professor Christine Jolls said in an e-mail, “but it also makes the case very unusual for a case to be heard by the Supreme Court.”
TOO CLOSE TO CALL
None of the four professors would predict how the Court would rule because the case is likely to be close.
“The Court has, in recent years, been very deeply split over questions of racial classifications by government agencies,” Days said.
In most of those decisions, Justice Anthony Kennedy served as the swing vote, a trend that most of the professors predicted would continue with this case.
Kennedy’s past rulings might shed light on how he might rule in this case. In Parents Involved in Community Schools v. Seattle School District 1, which was decided by the Supreme Court in a 5-4 vote in June 2007, Kennedy was the deciding vote. In the case, the Court struck down the Seattle School District’s policy that used race as a factor in deciding school assignments.
In that case, Kennedy would not go as far as the rest of Court’s conservatives — he affirmed that the purpose of integrating schools was legitimate and compelling. In his concurrence he said, “The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race.” Kennedy also said race can be used in school assignments if its use is narrowly tailored. The reason he voted to strike down Seattle’s policy was because there were less discriminatory alternatives.
An important question in Ricci, according to Post, was whether Justice Kennedy will rule that the purpose of integrating the workplace was compelling, or whether Kennedy will treat education differently than employment.
The Court is expected to issue a ruling on the case in June.