When the conservative-dominated Supreme Court ruled 8-1 in favor of upholding Section 5 of the Voting Rights Act, and 8-1 to strike down a school’s decision to strip search a 13-year-old middle school student in a search of drugs last week, it seemed certain that the Supreme Court planned to lower the hammer in the Ricci case, the Title VII employment discrimination case involving New Haven firefighters. It was a fair expectation that the court would, at some point, assert its more conservative self.
And Monday’s decision in Ricci v. DeStefano doesn’t disappoint. It’s an enormously important decision, not only for the parties in the case, but because of what it reveals about the willingness of the Supreme Court’s conservative majority’s to take arbitrary steps to fashion the results it seeks. The city of New Haven believed that it was acting in accordance with Title VII of the Civil Rights Act of 1964 when it refused to certify the firefighters’ promotion exam that produced starkly disparate results along racial lines, far more racially disparate than the results of previous firefighter promotions’ exams. None of the black firefighters would have qualified for a promotion.
The city of New Haven believed that certifying the result of the exam would make it vulnerable to a Title VII suit filed by minority firefighters. The district court and the court of appeals affirmed that the city officials had acted within the scope of applicable employment discrimination law. The Supreme Court, guided by a sense that white firefighters were entitled to promotions, said that it “search[es] for a standard that strikes a more appropriate balance.” In other words, they looked for a standard that would produce a result more in keeping with the majority’s sense of fairness.
The new standard, announced by the Supreme Court, is that clear, disparate impact is not enough for an employer to take race conscious actions as the city of New Haven did in this case, when it refused to certify the promotion exams, even if that action is not aimed at a single person. Instead, an employer must show that “there is a strong basis in evidence of disparate-impact liability.”
Had the Court stopped here—with the establishment of a new standard for determining whether a municipal employer can make race conscious employment decisions in order to address racial disparities in hiring or promotion—it still would have been a blow to voluntary efforts to remedy discrimination in public sector employment. But the Supreme Court goes much further. It takes the extraordinary step of making the factual determination that there was not “a strong basis in evidence” to justify the city of New Haven’s actions.
Believe it or not, this case is a winner for Judge Sonia Sotomayor, who famously sat on the panel of the 2nd Circuit Court of Appeals that upheld the decision of the trial court supporting the city of New Haven’s decision not to certify the exam results. Unlike the five-member conservative majority on the Supreme Court, Judge Sotomayor and her colleagues didn’t step out of their appellate judicial role when they summarily affirmed the district court opinion.
As Judge Barrington Parker explained in his decision (joined by Judge Sotomayor) supporting the 2nd Circuit’s refusal to rehear the case, the appellate court believed that the district court applied the correct legal standard to the facts of the case. Judge Sotomayor and her colleagues on the 2nd Circuit thus demonstrated judicial restraint—a discipline lacking in the majority opinion today, where the Supreme Court takes up the fact-sifting work of the trial court. And in announcing a new legal standard, the court removes any arguments that Judge Sotomayor and her colleagues on the 2nd Circuit somehow got the law wrong on this case. How can Judge Sotomayor’s reputation be impugned when she applied a legal standard that until today, was entirely appropriate.
Justice Alito’s concurrence, in which he’s joined by Justices Antonin Scalia and Clarence Thomas, is also illuminating. It’s fascinating to speculate how they got Justice Thomas to restrain himself from writing his own opinion in this one, as he does in almost all civil rights cases. But having expended himself in the strip search and voting rights cases, Justice Thomas may simply have exhausted his treasure trove of ultra-conservative legal talking points—at least for this term. In fact, Justice Alito does Thomas proud. Alito’s apparent assignment is pulled out of the record those facts most likely to make the case for anti-affirmative action talking heads. What Justice Alito sees in New Haven’s actions is not the good faith effort of a city with a history of discrimination in firefighter hiring to address a stark and alarming racial disparity in exam results. Instead, Alito is certain that there’s something of a racial conspiracy afoot—a conspiracy by black community leaders to discriminate against whites. Justice Ginsburg’s sarcastic characterization of Justice Alito’s view of the facts is spot on: on : “Never mind the flawed tests New Haven used and the better selection methods used elsewhere, Justice Alito’s concurring opinion urges. Overriding all else, racial politics, fired up a by a strident African-American pastor, were at work in New Haven.”
Justice Ginsburg does an admirable job of laying out some of the important facts in the case. She concludes based on the record that “[t]here is scant cause to suspect that maneuvering or overheated rhetoric, from either side, prevented the CSB from evenhandedly assessing the reliability of the exams, and rendering an independent, good-faith decision on certification.” Most importantly, Justice Ginsburg takes issue with the fashioning of this new legal standard adopted by the Supreme Court.
Frank Ricci may or may not be promoted in the New Haven fire department. The certification of the exam results means that Ricci’s name will be listed among those eligible for promotion. The fire department may select captains and lieutenants from among the names on the list. But this decision does mean that cities like New Haven are discouraged from engaging in the kind of voluntary action Title VII was designed to promote.
Sherrilyn A. Ifill is a regular contributor to The Root.