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."