The Magazine

Reversing Sotomayor

The Ricci decision points to ongoing controversies about race.

Jul 13, 2009, Vol. 14, No. 40 • By TERRY EASTLAND
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Last Monday, on the final day of its 2008-09 term, the Supreme Court decided its most controversial recent case, Ricci v. DeStefano. This concerned the now-famous claim by a group of firefighters--17 white and one Hispanic--that New Haven unlawfully discriminated against them on the basis of race.

A majority of five justices, with Justice Anthony Kennedy writing, held for the firefighters, reversing a panel for the U.S. Court of Appeals for the Second Circuit that included Judge Sonia Sotomayor, President Obama's nominee to succeed Justice David Souter. The four dissenting justices, meanwhile, made plain their belief that the Ricci decision will be undone in short order. Justice Ruth Bader Ginsburg wrote, joined by Justices John Paul Stevens, Stephen Breyer, and Souter, "The Court's order and opinion, I anticipate, will not have staying power."

Ricci could suffer that fate. The firefighters' complaint alleged violations of both the Constitution (the Fourteenth Amendment's equal protection clause) and Title VII of the Civil Rights Act of 1964. The Court found it unnecessary to address constitutional questions since it disposed of the case under Title VII. That means the Ricci decision is a purely statutory case, and a Congress that is overwhelmingly Democratic could try to pass a law overruling it. Hill Democrats are already working on a bill.

Thus, while the case has been decided, the battle is not over. At stake in any legislative battle is the vitality of the principle of nondiscrimination.

In 2003, New Haven firefighters took written and oral exams to qualify for promotion to lieutenant and captain. Under the city charter, the results, once certified, would determine which candidates would be promoted for seven captain positions and eight lieutenant jobs.

As it happened, the candidates who did the best were mostly white: 64 percent of white candidates passed the captain exam as did 37.5 percent of the black and Hispanic candidates. On the lieutenant exam, the pass rates were 58.1 percent for whites, 31.6 percent for blacks, and 20 percent for Hispanics. None of the black candidates performed well enough to be considered for the 15 positions then open.

A public debate ensued, with some firefighters saying the tests should be thrown out because the results indicated they were discriminatory against minorities; they threatened a lawsuit should the city use the results to make promotions. Other firefighters defended the exams as neutral and fair and said they would sue if the city rejected the results.

The city chose not to certify the results and to promote no one. Whereupon Frank Ricci and 17 like-minded firefighters sued the city. They lost on summary judgment in the district court and then in the Second Circuit, which simply adopted the lower court's opinion. Sotomayor was one of the three Second Circuit judges on the panel that reviewed Ricci, and her work in the case has drawn criticism and indeed a thorough rebuke of sorts: Though the Supreme Court was sharply divided in deciding Ricci, not a single justice agreed with her and her two colleagues' summary judgment for New Haven. The four dissenters led by Ginsburg all believed there were issues to be tried.

Title VII prohibits employment discrimination on the basis of race, color, religion, sex, and national origin. One of its provisions forbids intentional discrimination, often called "disparate treatment," meaning less favorable treatment of someone on account of that person's race.

Another provision, enacted in 1991 though drawing on older decisions, prohibits employment policies or practices that have a racially disparate impact unless they are "job-related . . . and consistent with business necessity" or the employer is presented with and adopzts alternative policies or practices that are also job-related but have less disparate impact.

The Ricci plaintiffs said that in throwing out the test results New Haven violated the disparate treatment provision. The city countered by saying it lacked a discriminatory motive. Kennedy refused to let the city off the hook, writing that in choosing not to certify the test results the city had made "express, race-based" decisions, which are in themselves discriminatory. As even the district court noted in a passage of its opinion cited by Kennedy, the city rejected the test results because "too many whites and not enough minorities would be promoted were the lists to be certified." Kennedy concluded that what the city did "would violate the disparate-treatment prohibition"--unless there were "some valid defense."

The city's attempt at a valid defense, as summarized by Kennedy, was its "good-faith belief that [it] would have violated the disparate-impact prohibition . . . had [it] certified" the test results. Here Kennedy noted that Congress in enacting the disparate impact prohibition in 1991 made no such "good-faith" exception to disparate treatment liability. "Allowing employers," he wrote, "to violate the disparate-treatment prohibition based on a mere good faith fear of disparate-impact liability would encourage race-based action at the slightest hint of disparate impact." Such a minimal standard, Kennedy said, could lead employers to throw out lawful and useful exams and hire and promote by the numbers, perhaps even with the intent of achieving racial balancing, which Title VII explicitly prohibits.

So it was that New Haven had no valid defense for its unlawful act of discrimination.

Yet this is not all there is to the Ricci decision. The Kennedy majority also undertook "to provide guidance to employers and courts for situations when [the] two prohibitions could be in conflict absent a rule to reconcile them."

Thus, the majority endorsed an approach taken from its constitutional cases--those saying that governments may remedy past racial discrimination by taking race-based actions but only when there is "a strong basis in evidence" that such actions are necessary. The majority also disagreed with New Haven's claim that even under "the strong basis in evidence test" its refusal to certify the results was allowed under Title VII: The city could point to the racially disparate numbers, but the tests themselves were job-related and consistent with business necessity, and the city didn't have an equally valid testing alternative that it had failed to adopt. Had the tests been otherwise, and such an alternative spurned, the city's belief that it would face a disparate impact lawsuit would have been valid and its discriminatory treatment of Frank Ricci and company excused.

Should there now be a push in Congress to overrule Ricci, it would doubtless seek to substitute a standard more easily met than the strong-basis-in-evidence test. It could be "good faith belief," which the Court rejected, or something seemingly more objective, like "good cause." But whatever it might be, it would likely tend to promote race-based action by employers--racial discrimination--if not at the slightest hint of disparate impact, then at a slight one nonetheless. De facto quotas--an explicit concern of the Ricci majority--would almost certainly enjoy protection.

In a brief concurring opinion, Justice Antonin Scalia made clear his own belief that the majority opinion was inadequate in its efforts to limit the racial discrimination that the disparate impact provision often produces. Ricci, he said, "merely postpones the evil day on which the Court will have to confront" a question it has never addressed--and which the mere raising of shocked Ginsburg--"Whether, or to what extent, are the disparate impact provisions of Title VII . . . consistent with the Constitution's guarantee of equal protection?" Here Scalia put his finger on another set of laws potentially in conflict, and one of more significance.

As Scalia explained, the disparate impact provisions of Title VII "place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies and to make decisions based on (because of) those racial outcomes"--decisions that will be discriminatory. Yet the higher law of the Constitution, as interpreted by the Court, demands that government, including in what it requires by statute of both private and public employers, treat all citizens equally as individuals and not as mere components of racial groups. Nor does it excuse racial discrimination on grounds of an ostensibly "benign" motive.

Where Ginsburg seems to anticipate a congressional overruling of Ricci, Scalia contemplates a case in which even the disparate impact law as interpreted by Ricci is subjected to constitutional review. A congressional response to Ricci that places a heavier "racial thumb on the scales" would only sharpen the conflict ("war" is Scalia's word) between disparate impact and equal protection, triggering litigation perhaps more quickly.

Not incidentally, and as a predictor of how Sotomayor might approach disparate impact cases in the future, she did not exactly demand much of New Haven. As Stuart Taylor of National Journal explained, the racially disparate exam results combined with the notion that minority firefighters might just file a disparate impact lawsuit were enough for her panel to rule in the city's favor. It didn't matter whether the exams were valid or the lawsuit could succeed.

President Obama has been reluctant to say much about race during his presidency, and he has said nothing of significance about Ricci. A continuing debate over the case might compel him to engage the issues it raises. Either way, in choosing Sotomayor for the Court, Obama has picked a judge who failed in a significant case to test an employer's dubious grounds for racial discrimination.

Notwithstanding her likely confirmation, the good news is that, replacing the judicially liberal Souter, Sotomayor won't change the Court's philosophical makeup. That is why the Roberts Court, for as long as the majority that decided Ricci stays intact, will be the nation's best, and among the three branches of government, only real hope for constraining racial discrimination.

Terry Eastland is the publisher of THE WEEKLY STANDARD.