The Ricci Case
“In 2003, the New Haven Fire Department decided to base promotions to the positions of captain and lieutenant primarily on a written exam. But the next year the city threw out the test results when all but one of the eligible candidates for promotion proved to be white. New Haven firefighter Frank Ricci, a high scorer on the test who is white, sued for reverse discrimination.”
I have read many professions of outrage about this decision, but most of them focus on whether it is a good thing or a bad thing that Frank Ricci didn’t get his promotion, rather than what the law requires. This puzzled me. Many of the same people who are outraged by the decision also criticize Judge Sotomayor on the grounds that she will substitute her personal preferences for the requirements of the law as written. One might therefore expect them to consider what the law required in this case, rather than simply asking whether the outcome she affirmed was the one they preferred. Oddly enough, however, they didn’t.
So I decided to read the case for myself. As best I can tell, the argument in the district court ruling, which the Second Circuit accepts, is as follows:
Ricci and his fellow plaintiffs allege that New Haven’s decision to throw out the test was an act of intentional discrimination that violates Title VII of the Civil Rights Act. To prove this allegation, the plaintiffs must first show that there is a prima facie case that they were discriminated against. Next, the defendants can argue that despite this prima facie case, they had a legitimate reason for doing what they did. If they cannot do so, the plaintiffs win; if they can, we move on to step three: the plaintiffs can argue that this supposed reason is a mere pretext disguising discriminatory intent. If they succeed, they win; if not, they don’t.
The District Court found that the plaintiffs had established their prima facie case. However, they also found that New Haven had a legitimate reason for acting as it did: wanting to comply with the very same Title VII under which they are being sued. And they found that this reason was not, as the plaintiffs alleged, a mere pretext. Thus, they found for New Haven.
A lot turns on their finding that New Haven had a legitimate reason for throwing out the test. Here, the central points seem to be as follows: first, New Haven’s concern about violating Title VII was not just an idle worry. Title VII requires employers not just to inspect their hearts and not find any discriminatory intent, but to consider the racial impact of things like tests. And the EEOC, in interpreting this requirement, has given clear guidance about what impact counts as suspect:
“A selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact.”
The rates at which blacks and Hispanics passed the New Haven tests were well below 80% of the rate at which whites passed. That means that those tests were presumptively in violation of the law.
There are various things an employer can do to show that a test that has a disparate impact on some racial group is nonetheless OK. New Haven did not do any of these things, though it does seem to have spent a fair amount of time trying to figure out what accounted for the disparate impact, without success. But the steps New Haven did not take are not required: to get on the right side of the law, you can either take those steps or avoid the disparate impact by scrapping the measure that produces it — unless, of course, scrapping that measure is itself a violation of Title VII.
The plaintiffs argued that scrapping the tests was a violation of Title VII. The Court disagreed. Here again, though, they didn’t pull this conclusion out of thin air. This question is governed by precedents, which the District Court discusses on pp. 31-40. I read one of them (Bushey v. New York State Civil Service Commission), and it is very much on point; I’m not a lawyer, but I think that the court would have had to overturn it in order to decide this case differently. Their basic point, as summarized by the Second Circuit, is this:
“These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability.”
Scrapping the test was race-conscious: the point was to avoid running afoul of Title VII by having a test that so few blacks and Hispanics passed. But it was facially neutral: New Haven did not require that whites pass the test but waive those requirements for blacks, or anything like that; they cancelled the whole test, for everyone. You might wonder whether this really counts as neutral, but the precedents seem pretty clear to me: in Bushey, the action the court said was OK was race-norming their exams (i.e., setting up different curves for different races, so that each race had about the same percentage of people passing.) It’s hard to see how one could say that that’s not discrimination, but scrapping an exam in order to come up with a new one is.
A District Court cannot overturn a previous appellate court decision, but an appellate court can. The Second Circuit could have overturned its own precedents had it seen fit. They did not, for reasons that they explain here.
The basic point of all this is: both the District Court and the Second Circuit seem to me to have been applying the law in accordance with clear precedents. This is what judges are supposed to do. And anyone who thinks that this decision (made by this court) is problematic should not go on to criticize Judge Sotomayor for judicial activism, since no one who genuinely thought there was a problem with substituting one’s own views about what the law ought to be for what it actually says would object to this decision.