The Supreme Court has just ruled in favor of white and Hispanic firefighters, who were denied promotions when the City of New Haven threw out the exam they scored highest on, citing the fact that no black firefighter scored high enough. In Ricci v. DeStefano, the Court reversed a decision by the Second Circuit Court of Appeals, including Judge Sonia Sotomayor, whom Obama has nominated to the Supreme Court.
The appeals court, in an unpublished ruling designed to avoid scrutiny, had held that the City could throw out the test simply because the test excluded more blacks than whites, meaning it gave rise to a “prima facie” case of unintentional “disparate impact” discrimination (disparate-impact is when a test excludes substantially more members of one race or gender than another). The Supreme Court held that this was not reason enough to use race, at least where the test measures useful job skills.
“Frank Ricci, a firefighter in New Haven, Conn., worked hard, played by the rules, and earned a promotion to fire lieutenant. But the city denied him the promotion because he is not black. Ricci sued, along with 16 other whites and one Hispanic firefighter. After a 7-6, near-party-line vote by a federal Appeals Court to dismiss the lawsuit,” the Supreme Court decided to review the case. A three-judge panel including Judge Sotomayor had “dismissed” of Ricci’s case in an unpublished ruling, “in a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep the case quietly under the rug, perhaps to avoid Supreme Court review or public criticism, or both,” says the National Journal.
The lower courts have divided on how much public employers can use race-based affirmative action to offset tests or selection criteria with “disparate impact” without violating the Constitution. Some courts, like the moderate Seventh Circuit, have said that that public employers can’t use race at all to offset such tests or criteria, since the purpose of affirmative action is to remedy constitutional violations, and the Constitution (unlike some civil rights statutes) isn’t violated by disparate impact, but rather requires a showing of racism or intentional discrimination. Others, like the more liberal First Circuit, say that race can be used to offset tests’ “disparate impact” even if the test measures useful job skills and thus is “job-related,” as long as substantially more minorities fail it than whites — meaning that the “disparate impact” is only a “prima facie” or half-proven case, which doesn’t actually rise to the level of illegality (the civil-rights statute, Title VII, only bans tests with a “disparate impact” if they are not “job-related”).
In the Ricci case decided today, the Supreme Court took a middle path, saying that a mere racial imbalance (or “prima facie” case of disparate impact) is not enough to use race, but that disparate impact can be enough reason if there is “strong evidence” that the test not only excludes more blacks than whites, but also is not “job related” in the sense of requiring knowledge irrelevant to the job. Since the City of New Haven had no strong evidence that the test was not job-related, its decision to throw out the test was illegal.
However, it cautioned that this standard only limited statutory challenges to affirmative action, as opposed to Constitutional challenges, applying this standard to Title VII claims so that employers won’t face a discrimination claim no matter what they do (for intentional discrimination against whites if they throw out the test, or unintentional “disparate impact” discrimination if they keep the test that no blacks passed). It said that public employers might face additional requirements before they could use race under the Constitution (which, unlike Title VII, does not recognize “unintentional” discrimination or “disparate-impact” liability): “Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. As we explain below,because respondents have not met their burden under Title VII, we need not decide whether a legitimate fear of disparate impact is ever sufficient to justify discriminatory treatment under the Constitution.”
Thus, the Court’s decision does not abrogate the rulings of the federal appeals court in Chicago, the Seventh Circuit, which ruled in People Who Care v. Rockford Board of Education, 111 F.3d 528, 534 (7th Cir. 1997) Biondo v. Chicago, 382 F.3d 680, 681 (7th Cir. 2004), and Builders Association v. Chicago, that to defeat a constitutional lawsuit brought by victims of affirmative action or reverse discrimination, a public employer cannot rely on a test or selection criterion’s disparate impact. For example, Chief Judge Posner ruled in People Who Care v. Rockford Board of Education, 111 F.3d 528, 534 (7th Cir. 1997), that to use race to favor minorities, a school district must show that it once “discriminated intentionally” against them, since that is “the only kind of discrimination that violates the equal protection clause.”
Today’s decision does, however, effectively abrogate court rulings saying that a test’s mere “prima facie” disparate impact is enough to justify using race, given that the Supreme Court in United Steelworkers v. Weber, 443 U.S. 193, 206 fn. 6 (1979) said that the limits on affirmative action are tougher under the Constitution than under civil-rights statutes like Title VII, which was “not intended to incorporate” the tougher “commands of the Fifth and Fourteenth Amendments.” (The rulings allowing race to be used to offset tests’ racial imbalances are also hard to square with the Supreme Court’s recent ruling that race-based affirmative action is supposed to be a “last resort,” see Bartlett v. Strickland, 129 S.Ct. 1231, 1247 (2009)).
Justice Alito, in his concurring opinion, noted that there was an additional, independent ground for reversing the appeals court decision throwing out the white and Hispanic firefighters’ lawsuit: that the whole issue of tests’ alleged “disparate impact” was a red herring and a “pretext” because the appeals court ignored evidence that the City’s motivation was not a sincere desire to avoid “disparate impact” but rather just an excuse to engage in racial favoritism towards blacks.
Even if the City had legitimate motives for throwing out the test, if it also had illegitimate or mixed motives, that would render it liable under Title VII (and potentially the Constitution), under the Supreme Court’s “mixed-motives” precedents. (See Mount Healthy Bd. of Educ. v. Doyle (1977), and Price Waterhouse v. Hopkins (1989)). The city could only rely on the test’s “disparate impact” if that were its “actual purpose” for using race, and could not use any problems with the test as a justification if they “did not actually precipitate the use of race.” (See Shaw v. Hunt, 517 U.S. 899, 908 n.4, 910 (1996)).