Supreme Court Majority Gets It Right In Ricci

A 5-4 Supreme Court majority ruled today that the City of New Haven, Connecticut violated white firefighters rights under Title VII of the Civil Rights Act to have promotion rights determined by their qualifications and not their race when the City discarded the results of an objective, race-neutral examination because white firefighters, on balance, scored better on the examination than African-American and Hispanic firefighters. The City contended Title VII's disparate-impact provision compelled it to discard the test results and justified its disparate treatment of successfull test-takers on the basis of their race. Justice Anthony Kennedy, writing for the majority, established a "strong basis in evidence standard" to determine whether an employer is justified in making a race-based determination to avoid a disparate-impact outcome.

In Ricci v. City of New Haven, Justice Kennedy, joined by Chief Justice Roberts and Associate Justices Antonin Scalia, Clarence Thomas and Samuel Alito, found the City had gone to great lengths in preparing its examinations to determine promotions within its police and fire departments. It hired an outside consulting firm that had developed similar exams for other racially-diverse communities like New Haven. Two thirds of the persons who made up a panel of assessors who administered the examination were racial minorities. The record in this case is pretty clear that nobody objected to the examination until the test results were revealed and white test-takers fared better than minority test-takers. The City used the excuse that minority firefighters would have sued the City for discrimination if it promoted based on the test results, but the City similarly faced the threat of litigation from the successful test-takers if it discarded the test results at the time it made that decision. One of the white firefighter plaintiffs, Frank Ricci, suffered from several disabilities, including dyslexia. The evidence showed Ricci spent money and a great deal of studying for the exam. One of the test-takers noted that, if you studied the preparatory materials that were provided to all test-takers, you couldn't help but do well on the exam because the tested material came directly from the study materials.

This case has drawn a lot of attention, in particular, because Supreme Court nominee Sonia Sotomayor authored the Second Circuit Court of Appeals' decision affirming the trial court's dismissal of the white firefighters' case. I should point out that there were also Hispanic plaintiffs in this case, notwithstanding the media's characterization of Ricci as the "white firefighers case", who too believed they had been discriminated against by the City of New Haven because the test results rejected by the City would have offered an opportunity for promotion to them. The majority took no shots at Judge Sotomayor's opinion below, noting that this is the first time the Court has articulated a standard for evaluating discriminatory actions taken by employers to avoid disparate-impact treatment. The Court did not consider whether the City of New Haven's action also violated the plaintiffs' rights under the Equal Protection Clause because it could decide the case on statutory grounds.

It seems to me that the majority, unlike the minority, reached a common sense result in this case. The City had established an objective test that employees could rely upon to seek promotions within the fire department. It isn't fair to those who win a right to promotion under the rules adopted by the City to simply be told their test results would be discarded because it didn't allow a sufficient number of minorities to be promoted. Justice Ginsburg, writing for the minority, seemed dismissive of the white and Hispanic firefighters' rights who exceeded on the examination. Although Justice Ginsberg said those firefighters "understandably attract this Court's attention", "they had no vested right to promotion." That cavalier treatment of the successful test-takers accomplishment is disturbing. It is, however, reflective of prevailing liberal dogma supporting race-based employment decisions. The majority opinion reminds us that Title VII protects people of all races from employment discrimination, not just those who happen to come from a minority group.

Justice Kennedy's opinion is consistent with the Justice Department's interpretation of Title VII in a case it pursued last year against the City of Indianapolis for discriminatory promotion practices within the Indianapolis Metropolitan Police Department. Approximately eight white police officers had been passed over in promotions in order to promote African-American and female officers who scored below and outside the eligible promotion class. The Justice Department contended the denial of promotions to certain eligible white officers amounted to discrimination under Title VII on the basis of race and sex. The City entered into a consent decree with the Justice Department rather than litigate the case. That decree followed nearly 30 years under prior Justice Department consent decrees with the City's police and fire departments requiring it to hire more minorities and women.