News analysis: Ruling’s ‘staying power’ questioned

Twenty New Haven firefighters – 19 of them white, one of them Hispanic – stood outside the federal courthouse on Church Street on Monday. Hours earlier, the Supreme Court had ruled in their favor.

Dressed in blue uniforms, the “New Haven 20,” as they have come to be known, declared victory on a legal battle that began in 2004, when the city scrapped the results of a promotional exam after finding that black firefighters had scored poorly.

Justice Ruth Bader Ginsburg, pictured arriving for President Barack Obama's address to a joint session of Congress on Feb. 24, was so strong in her dissent in Ricci v. DeStefano that she read it from the bench, something she has done only a handful of times in her over 15 years on the Court.
Pablo MartinezMonsivais
Justice Ruth Bader Ginsburg, pictured arriving for President Barack Obama's address to a joint session of Congress on Feb. 24, was so strong in her dissent in Ricci v. DeStefano that she read it from the bench, something she has done only a handful of times in her over 15 years on the Court.

In a 5-4 decision, the Court’s majority asserted that the city of New Haven’s reason for throwing out the test’s result results – that it would have faced a lawsuit from the black firefighters – did not justify its actions.

But for a case that could have far reaching implications not only for employment practices in the United States but also for Judge Sonia Sotomayor’s LAW ’79 nomination to the Supreme Court, legal experts agreed that the ruling was an unusual one.

In fact, the case’s very eccentricities had onlookers, pundits and Supreme Court justices alike wondering whether the ruling had only further muddled the constitutional issues at hand.

Wrote Justice Ruth Bader Ginsburg in her dissent: “The Court’s order and opinions, I anticipate, will not have staying power.”

FAR FROM THE END

Even after Monday’s ruling, several groups believed that the legal battle surrounding the Ricci case had yet to be decided.

Gary Tinney, president of the New Haven Firebirds, a group for black firefighters, said at a press conference Monday afternoon that the Firebirds’ lawyers believe that the decision did not say the test was valid or legal.

Similarly, John Brittain, special counsel to the Connecticut Conference of the NAACP, said there was nothing in the Ricci ruling that would prevent the NAACP from challenging the merits of the city’s exam.

“The NAACP believes this fight is not over,” he said.

Proving that the test was flawed could save the city’s case for nixing the test. But finding new evidence that the exam was discriminatory will be difficult, Yale Law School professor Christine Jolls said.

In interviews with Jolls, former New York Times Supreme Court reporter Linda Greenhouse LAW ’78, former U.S. solicitor general Drew Days and St. Louis University School of Law professor Marcia McCormick, the sentiment was unanimous: A suit filed by the black firefighters would likely fall flat.

And it would fall flat largely because of the way the Court ruled. Writing for the majority, Kennedy wrote that the city would not be liable for a test that had a disproportionately negative impact on one group, so long as the city shows that had it not certified the test, it would have been vulnerable to a lawsuit from one or multiple other groups.

It is a situation that Justice David Souter characterized during oral arguments as “damned if you do, damned if you don’t.”

AN UNUSUAL RULING

In its ruling, the Supreme Court changed the standard for evaluating an employer’s behavior, setting what it called a “strong-basis-in-evidence” standard. The new measure means that before a test can be thrown out, the employer must have significant proof that the test is either not job related or that there is an alternative test of equal or greater quality that would produce results that are more racially balanced.

Before the Court’s ruling Monday, if a test produced results that were not racially balanced, the employer had to discard the test unless it had significant proof that the exam was job related and there was not an alternative test that would produce more racially-balanced results.

Usually, when the Supreme Court changes a legal standard, it sends the case back to the lower court and asks it to see if the plaintiffs meet the new standard. In this case, however, the Court itself decided that the city had not met the new standard to show the test was not job-related or that there were less discriminatory alternatives – one of which is necessary for a Title VII disparate impact claim.

“It’s an aggressive thing to do,” Greenhouse said. “It is not what they usually do.”

Days echoed this sentiment, saying that he was surprised that the Court did not give the city a chance to prove its case in front of a trial court under the new standard.

In her dissenting opinion – which was co-signed by Justices Stephen Breyer, David Souter and John Paul Stevens – Ginsburg wrote that this action “stacks the deck” against the city.

“When this Court formulates a new legal rule, the ordinary course is to remand and allow the lower courts to apply the rule in the first instance,” she said. “I see no good reason why the Court fails to follow that course in this case.”

Ginsburg was particularly strong in her dissent: She read it from the bench, something she has done only a handful of times in her over 15 years on the Court.

The black firefighters were also upset that the court did not send the case back to a trial court.

“We believe it is unfair that the Court changed the rules in the middle of the game,” Brittain, the NAACP attorney, said. “It did not give the city a chance to go back to trial to try to meet the new standard.”

NO SHORTAGE OF CONSEQUENCES

The ruling could have far-reaching implications for employers.

The ruling changes how Title VII – which applies to all American businesses, public or private, that have more than 15 employees – is interpreted.

“It may hamstring American businesses,” Jolls said.

Before the Court’s ruling, if a company administered, for example, a typing test to job applicants as part of deciding whom to hire and found that Hispanics scored much lower than whites, they could choose to just throw the test out.

Now, Jolls said, the company is in a bind. If it uses the test minorities will sue claiming the test was discriminatory. On the other hand, in order for it to throw out the test it needs to prove beyond a “strong-basis-in-evidence” that the test was not job-related or that there were less discriminatory alternatives.

As a result of the ruling, McCormick said, employers will be unlikely to change anything after a testing process has begun, as they now need to have a good reason to believe the test had disparate impact (meaning that the test, while neutral on its face, unjustly discriminates against a particular group).

There is language in the opinion, Days said, that suggests employers can look at a test’s potential for disparate impact before they administer it. This might make employers examine their process earlier on, he added.

“Taken to the extreme,” McCormick said of the ruling, “if you notice you have a black applicant and a white applicant and you hire one, you are almost automatically opening yourself to liability from the other.”

Put simply, the Court decided a broad issue on a set of narrow circumstances, Days said. In the future, when the situation is slightly different, it could cause problems.

IMPLICATIONS FOR A NOMINEE

Opinions are mixed on what impact the decision will have on the nomination of Sonia Sotomayor LAW ’79. The Supreme Court’s decision Monday overruled a decision by a three-judge panel of the U.S. 2nd District Court of Appeals that included Sotomayor.

McCormick, Greenhouse and Jolls said they do not think the decision will hurt Sotomayor as she weaves her way through the confirmation process.

“A judge on the Court of Appeals is very different than a judge on the Supreme Court,” McCormick said. “There was 2nd Circuit precedent that set the outcome on the case at that level that Sotomayor had to follow.”

The White House had a similar response.

“There’s little political significance to whatever the court decided today in terms of Judge Sotomayor except to render a fairly definitive opinion that she follows judicial precedent and that she doesn’t legislate from the bench,” Press Secretary Robert Gibbs told reporters on Monday afternoon.

But while Gibbs defended the Law School graduate, conservative groups immediately released statements going on the attack.

“Usually, poor performance in any profession is not rewarded with the highest job offer in the entire profession,” said Wendy Long, counsel to the Judicial Confirmation Network, a legal group that supports conservative nominees for the Supreme Court. “What Judge Sotomayor did in Ricci was the equivalent of a pilot error resulting in a bad plane crash. And now the pilot is being offered to fly Air Force One.”

In his opinion, Kennedy avoided criticizing the appellate court’s ruling, and thus giving any additional fodder to Sotomayor’s critics. In addition, the four dissenting justices — including Souter, whom Sotomayor would succeed on the Court — agreed with the 2nd Circuit ruling, a fact that many Democrats are citing as evidence that Sotomayor should not be judged as out of the mainstream.

AVOIDING THE CONSTITUTIONAL QUESTION

In the majority opinion, the Court avoided ruling on the constitutional question of the case: the apparent contradiction between Title VII and the Equal Protection Clause of the Constitution. On the one hand, disparate impact requires consideration of race; on the other, the Equal Protection Clause prohibits race’s consideration.

Indeed, Scalia, in a concurrence that none of the other justices co-signed, warned of a legal battle to come.

“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.”

Congress can pass legislation to overrule the Court’s interpretation of Title VII, but whether it would stand up to judicial scrutiny is another question. Any such a measure approved by lawmakers could itself be overruled by the Court if justices were to find it to go against the Equal Protection Clause, a matter of interpretation that, barring a Constitutional amendment, rests entirely in their hands.

Comments

  • Rob 69

    It seems obvious that the Supreme Court did not remand to the Appeals Court because it had no confidence in the ability of that court to rule on the law rather than on "feelings," based both on the Appeals Court's inadequate ruling in the case, and on other public statements made by members of that court.
    Justice Alito noted in his concurring opinion - mention of which is conspicuously absent from the YDN story - that New Haven never made any credible effort to determine whether the firefighters' promotional exam was a legitimate test of job-related skills. This last is key to any application of the "disparate impact" legal standard.

  • Hieronymus

    Wow: no blacks (esp. those that passed, at least the low-rank promo tests) stood with them? Not a single black was willing to step beyond racialism, instead allowing the NAACP to speak for them by hinting at further racially charged lawsuits?

    Wow.

    So: only whitey can cross the lines (a la civil rights marches)? Too weird.

    I exaggerate, certainly, but by how much?

  • Yale law grad

    I'm not sure what Rob 69's point is in the second paragraph, but he's right that New Haven never made any credible effort to determine whether the promotional exam was a legitimate test of job-related skills. As Justice Ginsburg pointed out in her dissent, a baseball team owner COULD pick baseball players wholly with a written test of baseball knowledge, and that certainly has some connection to being a good baseball player… you do need to know the stuff… but not a heck of a lot of a connection. It doesn't tell you who can actually pitch, run, or hit.

    I bet that if you gave me time to study for this written test, I'd ace it. (As would many Yale grads.) But believe me, I am the LAST person who should be leading firefighters into a burning building, or making high-pressure command decisions about dangerous fire situations. (I'm not the first nerdy person to make this point.)

    The moral of the Ricci case, for employers, is simple: get the test right the first time. If you screw up, like New Haven did, and use a bad test that you never bothered to test for job-relatedness and that has a racial disparate impact, DON'T go back and try to fix it. Just take the hit, go ahead and promote a bunch of people with relatives on the force and lots of fire-science books at home who may not be any good at commanding other firefighters in life-and-death situations, hope it works out okay, and come up with a better test for next time.

    Justice Ginsburg noted that almost no fire departments around the country are a written knowledge test for 60% of their promotions criteria anymore. They haven't for many years, in fact. Hopefully New Haven will get with the program and do what the rest of the country does for its next tests (assessment centers that actually test who would be better at leading other firefighters in life-and-death situations). Evidence suggests that these better tests will also have much less of a racial disparate impact -- and less of a tendency to produce family dynasties of firefighters who pass on insider knowledge to their sons and nephews.

  • Anonymous

    I love Yalies. You'll jump through hoops to try to justify institutional racism as an antidote to past racism. The use of race as a criterion in the workplace is a terrible mistake that only prolongs racial tensions. It really doesn't matter how many of X group or Y group is in a given workplace. We're all AMERICANS and, as such, should all be given an equal and fair shake at whatever we chose to do.

    The use of race as an ameliorating circumstance is… well… racist. What about the disadvantaged whites, or the privileged blacks who get doubly penalized or rewarded respectively?

  • heartsurgeon

    I enjoyed the comments by "Yale Law grad", reminded me of the saying, when the facts are against you, argue the law..

    the facts are the City of New Haven hired an outside firm (which had amply minority representation) to devise a job related, non-bias test to administer..

    so to claim that "New Haven never made any credible effort to determine whether the promotional exam was a legitimate test of job-related skills" is at best an artful lie.

    the statement "promote a bunch of people with relatives on the force and lots of fire-science books at home who may not be any good at commanding other firefighters in life-and-death situations" is the classic strawman argument.

    nice try.

  • Terry Hughes

    Yes, Ginsburg noted that almost no fire departments around the country are a written knowledge test for 60% of their promotions criteria anymore. What she does not say is that the most likely reason for elimination of those written tests is the exact same fear of Title VII litigation that New Haven says motivated it to throw out its test. The Ricci majority opinion, which IS NOW THE LAW (unlike the collection of incoherent brickbats Ginsburg styles her "dissent") specifically holds that fear of litigation is INSUFFICIENT reason to justify racially-based employment decisions. In other words, most of the cities Ginsburg notes that have eliminated written tests have probably done so in violation of the same law New Haven broke. It's telling that Ginsburg does not add what should be the necessary coda to her observation: …"and the cities with no tests have been shown in many studies to have suffered no decrease in quality (as measured by performance following promotion) and have been shown to be as good as fire departments that have not eliminated those tests in unbiased evaluations using sound methodologies and conducted by reputable, unconflicted experts."

    Worse is yet to come for those who advocate subtle racial reasoning and manipulation into employment considerations. Justice Scalia is correct in noting that “The war between disparate impact and equal protection will be waged sooner or later," and much of Title VII and other federal legislation already on the books is pretty clearly destined to lose that war from the signs in the majority Ricci opinion. But the Court is ALSO on the side of a significant majority of voters in this area, as can be seen from the fact that state after state (including California and Michigan) have passed referendums barring racial preferences and other more subtle racial considerations in many areas of state activity, including admissions to state universities. Yes, Congress can overrule the Court’s interpretation of Title VII, but to do so in the face of opposition from both the judiciary and a substantial majority of voters would be more than foolhardy.

    Of course, Congress is often more than foolhardy.

  • SB

    One of the best articles I've read tackling the legal points of this case.
    Thank you.

  • Anonymous

    The only way that one can interpret "equal protection" to be in conflict with "disparate impact" would be to argue that one race is more qualified than another. Either the races are equal in ability and the "disparate impact" standard protects disadvantaged races from bias inherent in the system, or the races are not equal and "disparate impact" is thus biased against the more capable race.

    It's that simple. If you believe that "disparate impact" based standards, from affirmative action to the Ricci case, are "racist," you are arguing that whites are more capable than other races. Think about that for a second. Let's call a spade a spade - this is just the Bell Curve argument all over again without being so explicit about it.

  • Stuart Taylor Jr.

    "Instead of defending her panel's quota-friendly rule and its harsh impact on the high-scoring firefighters, (Supreme Court nominee Sonia) Sotomayor and her supporters have argued that she essentially had no choice. The rule that her panel applied had been dictated, they say, by three precedents of her own court, the U.S. Court of Appeals for the 2nd Circuit . . . The bottom line is that 2nd Circuit precedents did not make Sotomayor rule as she did. Supreme Court precedent favored the firefighters. Sotomayor's ruling was her own." --

    National Journal Columnist Stuart Taylor Jr., on Judge Sonia Sotomayor's explanation for her decision in the recently overturned Ricci v. deStefano.