Ricci, et al. v. DeStefano, et al.

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Author: David Muraskin

Contents

[edit] Briefs and Documents

Docket: 07-1428; 08-328

Issue: Whether municipalities may decline to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to charges of racial discrimination.

Merit briefs

Amicus briefs

Oral argument: Transcript

Decision: Reversed and remanded in an opinion by Justice Kennedy

[edit] Pre-Argument Articles

[edit] Argument Preview

On Wednesday, April 22, in Ricci v. DeStefano (07-1428 & 08-328), the Court will consider questions relating to the operation and constitutionality of Title VII of the Civil Rights Act of 1964. They include whether an employer’s actions to prevent disparate impact violates Title VII’s prohibition on disparate treatment and whether an employer’s failure to “certify the result of” an employment test, for fear of disparate impact, violates the Equal Protection Clause. The Court’s answers have the potential to fundamentally alter workplace civil rights protections.

[edit] Background

In 2003, the New Haven, Connecticut, Fire Department sought to fill captain and lieutenant positions. Because its union contract required promotions to be based upon examinations, the City contracted with Industrial/Organizational Solutions, Inc. (“IOS”) to develop exams, which were administered to qualifying applicants.

Pursuant to a City regulation known as the “rule of three,” once test results are “certified,” the Department must promote from the group of applicants achieving the top three scores. Immediate application of the “rule of three” to these exams would not have allowed for the promotion of any black firefighters. More broadly, black applicants’ pass rate on the lieutenant exam was approximately half of the rate for white applicants – a disparity more marked than for prior exams. However, if additional vacancies opened, black applicants would have been eligible to be considered for those promotions, based upon these exams’ results.

Because of these outcomes, the City’s independent exam review board, which must vote to certify test results, held hearings to consider the possibility that the tests were racially biased. The board heard from a representative of an IOS competitor, who testified that the results showed “adverse impact” and that he could design tests with less disparate results and better measuring the jobs’ requirements. He also conceded that the City’s tests did not show an adverse impact greater than that allowed by law. Another witness, an experienced firefighter, testified that the exams were comparable to those he had taken in the past.

A City official testified that if the board chose to certify the results, then the city could be subject to a disparate impact suit from the minority applicants who did not qualify for promotions. Yet, his testimony may have been contradicted by IOS’s “technical validity report.” There is some evidence to suggest IOS was prepared to issue such a report, which might have “establish[ed] the City’s lawful use of the test results.” However, the City argues that IOS never offered to prepare the report nor would the report have “proved” the legality of the test.

Because the exam review board split evenly, 2-2, on whether to certify the exam results (with one member recusing herself based upon a conflict of interest), they were not certified.

A group of white firefighters, one of whom is also Hispanic, who scored some of the highest results on the administered exams, filed suit against the City and its officials, alleging that the City’s action violated Title VII and the Equal Protection Clause. On cross-motions for summary judgment, the district court granted the City’s motion, agreeing that the City did not need to certify the results because doing so could subject it to litigation for violating Title VII’s disparate impact prohibition.

On appeal, the Second Circuit initially affirmed the district court’s opinion summarily but subsequently issued a per curiam opinion that praised the district court for a “thorough, thoughtful, and well-reasoned opinion” and concluded that the City could not be held liable for its failure to certify because it “was simply trying to fulfill its obligations under Title VII.” Three days later, the Circuit voted 7-6 to deny rehearing en banc, with all six dissenters signing an opinion that questioned the panel’s judgment and highlighted the issue for the Supreme Court.

[edit] Petition for Certiorari

After the Second Circuit issued its initial summary order, the white firefighters filed a petition for certiorari. However, after the panel issued its per curiam opinion, the same firefighters, now represented by former Texas Solicitor General Greg Coleman, filed a second cert. petition, claiming that they feared the first petition had been rendered moot. The Court consolidated the cases and granted cert., largely using the questions presented by the first petition; however, because the second petition better tracks the counsel who wrote the merits briefs and will argue the case, this post focuses on that petition.

The second petition for cert. begins by contending that the Second Circuit’s decision creates a split over when to apply strict scrutiny. According to petitioners, strict scrutiny always applies to racial classifications, and the Eleventh Circuit has held that an employer’s refusal to create positions because of the applicants’ race is a race-based classification. Here, petitioners explain, the City’s refusal to provide promotions solely based upon petitioners’ race similarly should have been subject to strict scrutiny, and the Second Circuit’s failure to do so warrants certiorari.

Petitioners also characterize the Second Circuit’s decision as one that creates an exemption to the Equal Protection Clause for compliance with Title VII. Citing a series of cases addressing racial quotas, reversing summary judgments in favor of employers, and holding that “top-scores” on employment exams must be promoted, petitioners contend that four other circuits have held that compliance with Title VII cannot justify “race-based preferences.”

Raising the specter of racial quotas, petitioners suggest that the Second Circuit’s opinion will allow for racial balancing, which the Court rejected in City of Richmond v. Croson (1989) and Grutter v. Bollinger (2003), and permit governmental entities to engage in racial politics under the guise of complying with Title VII. This, petitioners argue, provides another reason to apply strict scrutiny, as it enables the courts to “smoke out” racial motives.

Petitioners also contend that the Second Circuit opinion misinterprets Title VII itself. Citing the Court’s opinion in Furnco Construction Corp. v. Waters (1978), they argue that Title VII only permits employers to remedy proven disparate impact – a standard that would require proof that an equally valid and less discriminatory employment test was available. They contend that three other circuits have held that an employer may not refuse to use employment test results based solely on evidence of adverse impact.

Lastly, petitioners argue that § 2000e-2(l) requires employers to honor employment test results. To do otherwise would – as they argue the Fifth Circuit has held – qualify as “otherwise alter[ing]” the results of an employment test, as prohibited by the provision.

Chris Meade, representing the City and its officials, disputed petitioners’ claim of a circuit split over the interpretation of Title VII. According to the respondents, this case is unique: although other circuits have addressed what qualifies as disparate impact, they have never considered whether the failure to certify test scores for fear of a disparate impact suit would violate Title VII. Moreover, the Court’s decisions make clear that Title VII intends for employers, like the City, to take voluntary remedial actions to prevent disparate impact.

In addition, by failing to raise it in the district court, respondents claim petitioners have waived the question of whether § 2000e-2(l) prohibits the City’s action.

On the equal protection issue, respondents contend that the sole issue before the Court is whether the decision not to certify employment test results was a racial classification – an issue over which there is no circuit split. Moreover, compliance with Title VII’s demands is a sufficiently compelling governmental interest to justify race-based classifications.

[edit] Merits Briefing

In their brief on the merits, petitioners expand upon the arguments made in their second cert. petition. They argue that all race-based government actions are subject to strict scrutiny. When the City acted to benefit minorities, by dismissing the results of tests that made minority promotions more difficult, it correspondingly denied the white firefighters promotions because they were white – a quintessential race-based government action. Indeed, petitioners note, the City acted solely based upon racially-calibrated test results. Thus, even if the City’s refusal to certify the results was not racially motivated on its face, it should be found to be merely a pretext to deny whites promotions.

Petitioners next contend that avoiding disparate impact cannot be a compelling governmental interest, as this would allow racial balancing and enable employers to “surrender to organized racial lobbies.” Moreover, even if compliance with Title VII were a compelling interest, the City should be required to show “strong evidence” that disparate impact in fact occurred before acting to prevent that disparate impact. Without such a strong evidentiary requirement, compliance with Title VII would become a back door to discrimination. Because the City in this case acted based only upon evidence of disparity in the test results, without proof that better alternative tests existed, it could not satisfy such a standard. And in any event, the City’s action was not narrowly tailored because it could have provided tutoring for minority applicants or increased the availability of study aids to help minority performance on future examinations.

Finally, petitioners contend that the City’s action violates Title VII. Section 2000e-2(j), they explain, prohibits employers from “granting preferences to prevent racial imbalances.” To comply with this provision, the City must prove that its use of race was lawful. Specifically, to avoid Title VII becoming a pretext for discrimination, Title VII should be read as requiring respondents to show a “strong basis in evidence” that disparate impact did in fact occur. Under this standard, summary judgment was inappropriate based upon the facts uncovered during discovery. Finally, for the reasons stated above, and as shown by its legislative history, § 2000e-2(l) prohibits the City’s action.

The United States filed an amicus brief that was technically a brief in support of petitioners – because it argued for remand – but which largely previewed the arguments that would be made by the respondents. The government urges the Court not to reach the § 2000e-2(l) issue because it was not properly considered by the lower courts; if it does consider the argument, however, it should reject it, as the City’s decision not to certify is not an “alteration” of the test results.

Also the government argues that Congress intended for employers to voluntarily comply with Title VII’s demands. Similarly, Congress could not have provided remedies for disparate treatment and disparate impact if it did not intend, following racially biased test results, for employers to act to prevent that disparate impact. Consequently, under Title VII, an employer can reject such results as long as it has a “good faith” belief that its test produced disparate impact.

According to the government, the City’s decision did not, absent evidence of it being a pretext, violate the Equal Protection Clause because it was facially neutral – at most a form of disparate impact itself, without evidence of disparate intent. Even if the Court were to find otherwise, compliance with Title VII is a compelling governmental interest when there is a “strong basis in evidence” that the employer, if it had not acted, would have violated Title VII’s demands. However, the government concedes, because the petitioners have raised a question of fact as to whether the City’s decision not to certify was unreasonable or pretextual, the case should go before a jury.

In their merits brief, respondents repeat many of the Solicitor General’s arguments in starker terms and argue in favor of summary judgment. The brief warns that accepting petitioners’ arguments would “read disparate impact out of” Title VII. Further, a holding that disparate impact cannot be remedied through dismissing test results would turn evidence of disparate impact into a shield for those who benefit from the disparity.

Respondents next assert that employers can reject test results as long as they have a “good faith” belief that the test caused disparate impact. Anything more, respondents cautions, would strip employers of the flexibility that they need to comply with Title VII. The “strong basis” standard proffered by petitioners derives from affirmative-action cases, which are not analogous to compliance with Title VII. But in any event, the City had precisely the kind of “strong basis in evidence” required by that standard: a prima facie case that the City could be subject to liability. There has been no showing by petitioners that the City’s action was unreasonable or pretextual. Moreover, the City’s action did not violate Section 2000e-2(l), which merely limits employers’ manipulation of test scores.

The City also argues that it did not violate the Equal Protection Clause, because its action did not create a racial classification. All exam participants, regardless of race, were denied the effects of their score. At worst, the non-certification had a differential effect, which only requires strict scrutiny if the City also had discriminatory intent, which it did not. In addition, because there is a “strong basis” to believe the tests did not measure proper qualifications, any disparate effect is meaningless, as none of the applicants should have obtained the ranked position they did.

Finally, respondents contend that compliance with Title VII is a compelling interest if – as here – there is a “strong basis” to believe the employment test violated the statute. Congress has long endorsed such remedies for disparate impact. Moreover, if the Court were to find that this was not a compelling interest it would undermine other federal law – which, the Court has suggested, establishes a compelling interest.

[edit] Oral Argument Recap

On April 22, the Court heard an extended — over seventy minutes long – argument in Ricci v. Destefano. It clearly struggled with the distinctions and analogies presented by the counsel and the Justices themselves, as the argument was marked by the Justices talking over one another and asking counsel to repeat and clarify their responses.

Greg Coleman, representing the petitioners, spent much of his argument attempting to refine his responses to a series of hypotheticals that appeared to be aimed at influencing Justice Kennedy. The first was posed by Justice Kennedy himself, who asked whether the City of New Haven would be permitted to select an employment qualification test solely based upon the test’s record of disparate impact. Mr. Coleman initially responded that if the City were changing the test it currently used, to reduce its disparate impact, the City would need to show that the new test was equally valid and produced less of a disparity. However, when pressed by Justice Kennedy on whether the City’s action in his hypothetical would raise Fourteenth Amendment concerns, Mr. Coleman responded that to select a new employment test to replace its existing test, the City would need to show a “strong basis in evidence” that it would be subject to liability for using its existing test.

Justice Souter, picking up on Justice Kennedy’s hypothetical, asked whether a comparison of the disparate impacts of available tests could establish a strong basis in evidence that using one of the more disparate exams would expose the City to liability and thus it should use another. Mr. Coleman responded that to select a new test, the City would need to show that the new test would be equally valid. Yet, when asked to clarify this response by Justices Scalia and Kennedy, Mr. Coleman elaborated that if the City had not yet implemented any test, it could choose a test solely on the basis of its record of disparate impact.

Based upon this latter answer, Justice Breyer explained that he could not distinguish the City’s action in this case from what Mr. Coleman suggested would be acceptable. Mr. Coleman attempted to differentiate the two situations based upon the fact that, here, the City had already administered the exam when it determined that the results were unacceptable. Mr. Coleman then attempted to bring the argument back to Justice Kennedy’s original hypothetical, emphasizing that the hypothetical could be distinguished from this case because here City chose to “scuttle” the test based on the race of people who passed, rather than on a neutral comparison of tests’ disparate impacts.

Justice Breyer then asked Mr. Coleman to distinguish this case from Justice Kennedy’s hypothetical in Parents Involved (2007), in which he suggested that a school could redraw its district lines to achieve a more diverse student body. Mr. Coleman responded that, unlike New Haven’s conduct, such redistricting would take account of other considerations in addition to race.

Edwin Kneedler, representing the Government as an amicus in favor of vacatur and remand, had the least eventful argument of the day. Justice Scalia pressed Mr. Kneedler to explain how the Court could allow the disparate treatment that occurred in this case as a means to remedy disparate impact. Mr. Kneedler stated that the City would need to show that its fear of disparate impact was reasonable before it could dismiss the test results; thus, the Government was arguing that the case should be remanded to explore that issue. However, if there was a reasonable concern of disparate impact, the City’s actions should not be viewed as illegal disparate treatment. Mr. Kneedler also argued that diversity should be considered a compelling interest; one that cannot be advanced through quotas, but can be advanced by creating new policies to remedy disparate impact as long as those policies affect all races equally.

Christopher Meade, representing the respondents, was immediately pressed by Justice Alito to answer whether a statistical disparity could be sufficient evidence to justify dismissing the results of an administered employment test. Mr. Meade responded that it was possible, but such a disparity would need to be severe. Here, by contrast, the City also had doubts about the validity of the test, leading it to dismiss the results.

The Chief Justice pressed Mr. Meade to explain why the City’s action was not a racial classification. Mr. Meade argued that because the City did not treat any individual differently based upon his or her race, but rather reacted to the racial make-up of the test results as a whole, its conduct was facially neutral. The Chief retorted that Mr. Meade’s response would enable an employer to throw out test results until it obtained the racial outcome it desired. Mr. Meade stated that in such instances, the repeated re-testing could be used as evidence that the employer’s claimed interest in complying with Title VII was merely a pretext, and would undermine the employer’s argument that there were “equally valid less discriminatory alternatives.”

Justice Kennedy then asked whether Title VII prohibits the dismissal of an employment test’s results, after the test had been administered. Mr. Meade said that § 2000-e(l) only prohibits the alteration of individual exam results, not the refusal to certify all results, and that to rule otherwise would unnecessarily tie the hands of employers who could face disparate impact liability based upon the exam’s overall outcomes. Moreover, Mr. Meade later emphasized, the City did not act based upon the racial make-up of the results alone, but also upon its concerns about the validity of the test. Under Title VII, all an employer should be required to show is that there was some basis to believe that further investigation would reveal a Title VII violation. If that is the case, the employer should not be required to certify the test results.

[edit] Opinion Analysis

The cases of Frank Ricci and his 17 New Haven, Conn., firefighter colleagues — all whites except one Hispanic — now return from the Supreme Court to lower courts, with only one thing settled: their rights under a federal civil rights law were violated.

The Court’s ruling in Ricci, et al., v. DeStefano, et al. (07-1428) and a companion case with the same name (08-328) says nothing at all about a remedy for that violation, and leaves a host of questions to be answered.

Although the Court decided that city officials in New Haven violated Title VII of the federal civil rights law by failing to promote any firefighters to seven slots for captain and eight slots for lieutenant, it is not clear how many slots are open now — whether more or fewer — and it is uncertain whether the lists of promotions that were to be made from the results of the test in the fall of 2003 remain intact.

The decision does not guarantee an individual firefighter, by name, that he will become a captain or a lieutenant in New Haven. And, while the winners of this lawsuit may very well claim that the denial of promotions entitles them to back pay, or even to money damages, the Court did not address any such claim, leaving it for further exploration by other judges.

While the Court seems to have said that, if an employer – public or private – conducts hiring or promotion tests that are legally sound, those who score highest and meet other selection factors cannot be denied a job or a promotion because of race, the decision does not say that the employer has any duty to avoid closing off jobs or the promotions so that no one is chosen (so long as it does not do so for racial reasons).

No duty, whatsoever, to keep slots open is imposed, although it may be doubted whether many employers would alter their payrolls to eliminate job opportunities just to keep from losing a lawsuit.

The decision did make some things clear, and that will influence what can happen next in the New Haven case, in particular. And there are conclusions in the ruling that definitely will apply to other cases, in court now or in the future, involving claims of racial bias in job placement.

First, the Court ruled that the tests used for firefighter promotions in New Haven were legally valid. Second, it ruled that city officials there had failed to show that there were any alternative tests that could have had less of a negative impact on minority test-takers. Third, it ruled that the city had not shown that it had a genuine fear of being sued by minority firefighters if it gave most of the promotions off the 2003 tests to whites. And, fourth, it appeared to rule that, even if the city goes ahead and uses the test results to promote whites for most or all of any open slots, minority firefighters will have no legal complaint that they were victims of discrimination because the city can claim that it had to make promotions to avoid violating Title VII’s protection for the whites who scored best.

For other cases, the Court’s ruling applies to Title VII cases a concept borrowed from race cases under the Constitution — that is, that using a race-based selection criterion will be allowed only if it is shown, by “a strong basis in evidence,” to be clearly necessary to remedy past racial discrimination.

When applied in a case involving a job test that seems to favor whites over minorities, this standard will require the employer to accept the results and implement them unless it can offer “objective” and “strong” evidence that the test was illegal because it was skewed to work against minorities, and unless it can offer “objective” and “strong” evidence that implementing the results will almost certainly bring on a lawsuit by minorities and that is probably would lose that lawsuit.

It will not be enough, the Court made clear, that the employer had a “good faith” belief that the test was skewed against minorities, or a “good faith” fear that it will get sued if it implements the results.

The new standards the Court has imported into the Title VII legal equation are not really specific or well-defined, so it very likely will take future lawsuits to sort out just what the new requirements mean. In practical terms, it is very likely that employers will have to go to greater lengths to assure that testing protocols are race neutral, and will have to have sounder legal advice about the risks they take under Title VII if they apply test results that have a negative impact on minority workers.

Among the large questions that did not get addressed at all, perhaps the most significant was whether government employers, even if they have a ”strong basis in evidence” that they think will justify making a race-based job selection, will escape liability under the Constitution.

The Court said explicitly that it was not ruling on the question of whether compliance with that standard would satisfy the Constitution’s command of racial equality — in other words, whether a government employer genuinely worried that accepting test results would work against minorities can escape a constitutional violation if it casts aside the results and thus shuts out whites who scored better.

(The constitutional uncertainty only affects government, not private employers, because only government employers are bound by the Constitution.)

[edit] Links and further information

Implication of Ricci Argument for School Diversity Question
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