First things first. I worked on Ricci v. DeStefano on behalf of the plaintiffs. I was then, and am now, a non-practicing attorney. When I took a job with a former colleague, the attorney who handled the case from the start, much had already happened in the case. New Haven's Civil Service Board had already decided not to certify the results of the two promotional tests that led to this case and the Complaint had been filed in District Court. I worked on the cross-motions for summary judgment and, after the firefighters' motion was denied and New Haven's motion granted, I worked on the appeal to the Second Circuit, where Judge Sotomayor sat on the panel that heard the case. I don't recall whether I was still working in the same office when the case was argued, but I had moved on by the time the Second Circuit handed down its decision.
Lots more after the jump.
I have occasionally commented on some of the diaries on this case but I have not yet posted my own diary. With the Sotomayor hearings about to start, and with this site buzzing with misinformed and ill-advised attacks on Frank Ricci, it's time to weigh in.
The basic facts are undisputed. Justice Kennedy's opinion and Justice Alito's concurrence present most of the crucial facts fairly and thoroughly. I will supplement their accounts as necessary.
As you doubtless know by now, in 2003, the City of New Haven administered tests with the purpose of filling vacancies in its Fire Department (NHFD) at the Captain and Lieutenant levels. The City Charter requires the use of standardized tests for such promotions. It further requires that the City generate a ranked list from the test and make promotions according to the so-called Rule of Three. Under that rule, any vacancy must be filled by one of the three highest scoring applicants on the certified list. The applicable city charter rules had been adopted in an attempt to avoid patronage promotions that had historically disadvantaged African-Americans, Latinos and women.
In addition, the City's collective bargaining agreement with the firefighters' union requires that the test consist of a written and oral component, with the written score comprising 60% of the final score, the oral component 40%. Thus, the city charter and collective bargaining agreement together placed significant legal constraints on what the City of New Haven could do in order to fill its vacancies in the Fire Department.
The city hired Industrial/Organizational Systems (IOS) of Chicago to develop the test. IOS developed the test in accordance with New Haven's requirements, consulting with firefighting professionals and experts. At every stage, IOS deliberately included a disproportionately high number of African-American and Latino consultants in a conscious effort to minimize the possibility of inadvertent cultural bias and to ensure that, as much as possible, the tests measured actual job qualifications.
Testing took place in November and December 2003. The results were disappointing, and not just in the way that competitive examinations are always disappointing to those who fall short. A much higher percentage of white applicants than African-American and Latino applicants passed both tests. Under the laws governing the usage of the tests, the City would have been unable to promote any African-Americans into the vacancies that existed at that time. The results would have allowed the potential promotion of just two Latinos to Captain and none to Lieutenant.
There can be little doubt that the test is symptomatic of a problem. To oversimplify a bit (not too much, I hope), either the City and IOS had failed, despite their efforts, to design a fair test or, for reasons entirely unrelated to the fairness of the test, too few qualified African-Americans and Latinos took the test. Perhaps the legal requirements imposed on the City of New Haven made a fair test impossible.
Whatever the case, whatever caused the imbalance deserved and deserves careful study. If the extraordinary efforts taken by IOS and the City of New Haven to devise a fair test failed and unfairly eliminated qualified African-Americans and Latinos, we need to know that. If the very sort of test required under the laws governing promotion of firefighters prevent the development of fair tests, we need to know that, too. On the other hand, if it's a supply-side problem, if for some reason we are producing too few qualified African-Americans and Latinos who aspire to leadership roles in the New Haven Fire Department, we also need to know that. But until we know the nature of the disease, we can’t rationally find a treatment.
Such problems were not unanticipated. Disparate results on standardized tests is not a new problem. The only skill such tests measure with any certainty is ability to take standardized tests. If we want some assurance that a particular test measures some other, job-related skills, a logical first step is to analyze the test itself. To that end, New Haven and IOS had agreed that, whatever the results, IOS would do an analysis. Were there particular questions or aspects of the test that consistently caused African-Americans or Latinos more problems than they caused white applicants? If so, what skill or skills, what knowledge, was the aspect designed to test for? Are there reasons to believe there are better ways to test for that skill, that knowledge, that might eliminate any previously unforeseen problem with that particular part of the process?
Armed with such an analysis, subjected to critical scrutiny, New Haven could have improved its ability to make a rational decision about how to attempt to fix the problem, both as a long-term issue and for this particular round of tests. If there were a few questions on the written exam, for instance, that were problematic, perhaps giving all the test-takers credit for it would remedy the problem. If the problems were more systemic and fixing a few questions would fail to address the issue, the analysis that New Haven had contracted with IOS to perform could provide important guidance as the City decided how to handle this test and how to design future tests. Even conceding that any such analysis would be unlikely to answer the key questions definitively, there can be little doubt that it would add to our understanding of why we got the result we got on this test and where we need to focus our efforts to improve our ability to produce or to recognize qualified African-American and Latino candidates for leadership roles like those at stake in this case.
Nonetheless, New Haven chose to forego the analysis IOS remained ready to provide. This case is ultimately about that unfortunate decision and nothing else. Had New Haven allowed the analysis by IOS to go forward, this would have been a different case.
With that in mind, I now turn now to the decision itself. The first thing to bear in mind about this case is that the firefighters challenged New Haven's decision to refuse to certify the test as violative of both Title VII of the Civil Rights of 1964 and the Equal Protection clause of the Fourteenth Amendment to the United States Constitution. The City of New Haven attempted to justify its actions by arguing that the racial composition of the groups who passed the respective tests, and the racial composition alone, sufficiently raised the possibility that the test violated the "disparate impact" provisions of Title VII. Those provisions, added to Title VII in 1991, rest on the understanding that some apparently neutral job qualifications may have a disproportionate and unfair impact on certain groups, including racial groups. The law further recognized that sometimes an apparent disparate impact results from actual differences in qualifications that employers may take into account. Title VII and the case law and regulations that have followed in its wake represent the law’s attempt to balance these competing interests.
But if New Haven's actions in this case pass muster under Title VII, the Court would be required to consider the constitutional issues raised by the plaintiffs in this case. The Court would have to assess whether the actions undertaken by the City nonetheless violated the Equal Protection clause. And it would do so in a case in which the City of New Haven expressly disavowed the claim that its actions had been taken to rectify past discrimination in the New Haven Fire Department.
Of course, if the requirements of Title VII conflicted with the Equal Protection clause, the constitution controls. You cannot amend the Constitution by statute. And Equal Protection law has evolved in a direction that is, to say the least, hostile to New Haven's claims in this case. The law as it now stands is also contrary to the law as applied by the District Court in this case and summarily endorsed by the Second Circuit panel on which Judge Sotomayor sat.
As Justice Ginsburg correctly noted in her dissent, context matters. Although Justice Kennedy's decision sidestepped the constitutional issues in this case (thankfully), it's important that we understand what was really at stake here beyond the specific facts of the situation.
As you may have noticed, over the last thirty years or so, self-identified legal conservatives have advanced what they call a “colorblind” interpretation of the Fourteenth Amendment. Chief Justice Roberts gave this interpretation its most pithy and famous articulation when he wrote, “The way to end racial discrimination is to stop discriminating on the basis of race.” This jurisprudential assertion holds that all governmental decisions or enactments that take race into consideration should be subjected to the same standard of review. As Equal Protection law has evolved over the last fifty-plus years (since Brown v. Board of Education), that standard is known as “strict scrutiny.” To justify a decision or enactment that disadvantages a group of people because of their race, the state must show first, that there is a compelling need for the government to take account of race and that the decision or action in question is “narrowly tailored” to accomplish its purpose. This standard places a heavy burden on the state, to the point where it has been described as “’strict’ in principle, ‘fatal’ in practice.” Although there have been some statutes that survived strict scrutiny, they are a rare beast indeed.
Now aphorisms like the one coined by Justice Roberts have their appeal. The good ones are memorable, as Roberts’s surely is, and express, or seem to express, a powerful principle. In this instance, as applied, the aphorism would lead to the creation of a bright-line rule to determine when to apply strict scrutiny. Are considerations of race involved? If “Yes,” proceed directly to “strict scrutiny.” Do not pass go. Do not clutter up your legal opinion with any further consideration of the appropriate standard to apply.
Such bright line rules also have their place. They make it easier to determine what the law is and eliminate pesky ambiguities. Bright line rules also have at least one major disadvantage: Almost by definition, they eliminate context. Now some of us believe that because of the historic and social context surrounding racial discrimination in this country, a "one size fits all" approach to discrimination is inadequate. Because of the context, government acts and laws that disadvantage African-Americans are not always the same, and should not be evaluated in the same way, as acts and laws that create disadvantages for the white majority. On that central principle, I stand with Justice Ginsburg and the many lawyers, judges and citizens who have fought for years to force the law to consider the historic and social context as part of any Equal Protection analysis. From my perspective, what Roberts would call “colorblind constitutional principles” are really context-free principles. And a context-free Equal Protection clause significantly curtails society’s ability to rectify the problems caused by the historical and social context of racial (and any other kind of) discrimination.
But here’s the bad news: We lost. A steady stream of cases, some of which you’ll find cited in Justice Scalia's concurrence, make it clear that, at least for now, we must live with a context-free Equal Protection clause. Many of us fought hard for years, in courts and in other ways, to keep the context in the constitution. But there can be little doubt that, at this point in history, there are five votes on the Supreme Court for a context-free Equal Protection law. And while we are spared the difficult struggle to adjust our laws to recognize context, we must understand that when government takes race into account, its actions must satisfy strict scrutiny. There can be no doubt that, had the dissenters’ analysis of Title VII carried the day in Ricci, New Haven’s actions would have faced strict scrutiny.
I suggest that anyone who cares about civil rights in this country read Scalia's concurrence carefully. On the one hand, he purports to believe that the constitutionality of the "disparate impact" provisions of Title VII is a close call. But note the basis on which he might uphold it: as an "evidentiary tool" to smoke out disparate treatment. The historical and social context that created the need for recognition of disparate impact has no place in his analysis. Were the Supreme Court to adopt this reasoning, it will have effectively neutered the provision.
Now examine how Kennedy handles the issue in the majority opinion. Even as he rests his opinion entirely on statutory grounds, he explicitly imports Equal Protection analysis into his analysis of Title VII. And he finds that, using those standards, New Haven violated Title VII.
Of course, his analysis of this case, and Scalia's comments, do not bind the Court when it faces the constitutionality of the disparate impact provisions of Title VII. But make no mistake about: At least 4/5 of the majority in Ricci is chomping at the bit to consider the issue. And the other fifth dropped a big ol' hint as to how he's likely to look at the issue.
I'm reminded of the seminal case of Callahan v. Punk (Eastwood, J.), which I now paraphrase:
I know what you're thinking. "Do they have five votes to strike down disparate impact provisions or only four?" Well, to tell you the truth, in all this excitement I kind of lost track myself. But being as this is the Supreme Court of the United States, the most powerful court in the world, and could demolish disparate impact law clear till the next century, we've got to ask ourselves one question: Do we feel lucky? Well, my fellow punks, do we?
I have a lot more to say about Judge Sotomayor's handling of the case and Frank Ricci's potential testimony. I hope to do so tomorrow or Tuesday, if time permits. For now, let me just make a few basic points.
First, I believe that the Second Circuit panel, aware of the potential danger to disparate impact law posed by this case (and more specifically, the actions of the City of New Haven in this case) attempted to minimize the significant issues the case raised by summarily affirming the District Court. In doing so, Sotomayor's panel gave the impression that it had ignored the significant constitutional issues raised by Ricci and his fellow plaintiffs. Indeed, the panel more than gave that impression; it DID ignore such issues.
Frank Ricci and his fellow plaintiffs have good reason to believe that, up until Judge Cabranes rescued their claims from the dustbin in a measured and thoughtful dissent from the Second Circuit's refusal to rehear the case en banc, the courts had failed them. Judge Sotomayor's failure in this regard was a serious error and she should be called to account for it.
On the other hand, whatever her error in this case, it must be considered in the context of a distinguished career. In that context, I have little doubt that she deserves to be confirmed.
Any good trial lawyer knows that when you've got a good witness on the stand that hurts you, when you cross-examine, you elicit whatever helpful testimony you can and then you shut up. Let the witness make whatever damaging points there are to make, claim whatever help you can from the testimony and maintain a focus on the real issues.
Judge Sotomayor's failure Frank Ricci and the New Haven firefighters was a failure of empathy. To the extent that Ricci's testimony highlights this failure, it will also validate the importance of empathy to judicial temperament and to qualification for the Supreme Court. We need to take whatever punch comes our way, take whatever advantage we gain from his testimony and keep our eyes on the prize.
I have been very disappointed to read many ignorant attacks on the character of Frank Ricci, who I know to be a man of high integrity. These attacks, based as they are on supposition and speculation, reflect poorly on us as a community and damage our ability to influence the national discourse. This is especially unfortunate in that the attacks are not only wrong, they are simply unnecessary. Frank Ricci has a very valid point to make. Let him make it. Treat him with the respect you would have the Republicans treat our witnesses. Focus on the underlying question. Judge Sotomayor deserves our full-throated support for her nomination to the Supreme Court. That does not require us to pretend she has never erred or that her critics have no right to express their point of view through whatever spokesperson they deem effective. We have a lot to talk about with respect to Judge Sotomayor's qualifications. Attacking Frank Ricci is just plain dumb.