Ricci v. DeStefano

The U.S. Supreme Court ruled in favor of Ricci (pronounced Ree Chee, or sometimes Rich ee) and against the City of New Haven, Connecticut. The case has important implications for affirmative action, and less important though interesting implications for the confirmation hearings of Sonia Sotomayor.

The Case.

The city of New Haven instituted an exam for firefighters seeking promotion to lieutenants and captains. The exam was specifically designed to be race neutral and involved a lengthy process of fitting the test to the relevant manuals and the experiences of firefighters. The exam included an oral portion. The assessors were drawn from firefighters outside Connecticut, holding higher ranks than the positions open. Sixty percent of the assessors were minorities.

Frank Ricci suffers from dyslexia. He spent $1,000 on books, studied 13 hours a day, and hired a tutor to read him the material. He placed sixth on the lieutenant's exam, qualifying him for immediate promotion. Here is the Court's description of the results.

Candidates took the examinations in November and December 2003. Seventy-seven candidates completed the lieutenant examination—43 whites, 19 blacks, and 15 Hispanics. Of those, 34 candidates passed—25 whites, 6 blacks, and 3 Hispanics. Eight lieutenant positions were vacant at the time of the examination. [The] top 10 candidates were eligible for an immediate promotion to lieutenant. All 10 were white. Subsequent vacancies would have allowed at least 3 black candidates to be considered for promotion to lieutenant.

Forty-one candidates completed the captain examination—25 whites, 8 blacks, and 8 Hispanics. Of those, 22 candidates passed—16 whites, 3 blacks, and 3 Hispanics. Seven captain positions were vacant at the time of the examination. Under the rule of three, 9 candidates were eligible for an immediate promotion to captain—7 whites and 2 Hispanics.

So, although several black candidates qualified for eventual promotion, none qualified for immediate promotion to open positions.

The City of New Haven threw out the test results on the grounds that no immediate promotion for any Black applicants would open them to lawsuits under Title VII of the Civil Rights Act. Ricci and 19 others sued.

The Supreme Court ruled 5 to 4

that race-based action like the City's in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold standard.

The Court reached that decision on fairly narrow grounds, and did not ask whether the City's actions violated The Equal Protection Clause of the 14^th Amendment.

Comment

Ricci was denied a promotion he had worked very hard to obtain and which he was entitled to under the rules the city had set up. He was denied his promotion solely on the grounds that the results of the exam had a disparate impact on Blacks, i.e., that the racial mix of those who qualified for immediate promotion was not to the City's liking.

This looks to me like a de facto quota system. A quota system, as defined in previous cases such as Bakke, is one which sets aside a number of seats or positions for which only persons of a certain racial identity are allowed to compete. Here we have to assume a de facto requirement that at least one immediate-hire position was reserved for a Black applicant (or one each for lieutenant and captain). That would mean that at least two such positions were not open to persons who were White or Hispanic, or anything other than Black. The fact that the failure to fill the quota resulted in throwing out the whole test, rather than in the preferential promotion of a targeted minority, clouds the issue but doesn't make it any cleaner. Unfortunately, the Court did not address this question.

All the results mean is that the City cannot discriminate against White and Hispanic applicants solely on the basis of their racial identification merely because it imagines it might be sued under Title VII. It has to prove that the results were a violation of Title VII. But the Court also indicated that it thinks that the city cannot make such a case. That's not chopped liver. It provides significant protection for city governments trying to find legitimately race neutral modes of promotion. But it leaves four votes in favor of discriminating against Mr. Ricci just because he's the wrong color.

The case has only small consequences for Judge Sotomayor. Four votes side with her on the substantive issue, which supports the claim that she was in the mainstream on this one. On the procedural issue (she heard this case on the lower court, and voted to dismiss it without examination) the result was more embarrassing. None of the Justices agreed that the case did not deserve to be heard. None of this is likely to affect her confirmation.

Frank Ricci and Sonia Sotomayor both rose from humble positions through very hard work. But under the racialist law of affirmative action, they are not equally disadvantaged.

Comments

[steve]

two wrongs don't make a right. but there are a lot of white mediocrities out there who have achieved much through the mere fact of being white. looking back after 8 years of what can only be called mis-rule, does anybody think george bush was qualified for the presidency? it's funny to me that so many are so aggressively aggrieved by the very thought of affirmative action while the tendency of the mostly white upper and middle-classes to quietly make room in the world for only those who look like them doesn't seem to bother anyone. i've known and seen far too many whites with important jobs who were barely qualified to tie their own shoes to take all this "awful tyranny of racist affirmative action" crap seriously. again, i don't believe 2 wrongs can ever make a right, but until we can acknowledge the pervasiveness of affirmative FOR whites in this society, this will always be a stilted and dishonest conversation.

[KB]

Steve:

I think George W. Bush was qualified for the presidency. The qualifications are stated in the Constitution, and he met them. I am not "aggressively aggrieved by the very thought of affirmative action." But I do think that when one person is chosen for a position over another solely due to race, that that is a bad thing regardless of who benefits. As you say, two wrongs don't make a right. But that is the whole point, isn't it?

I am also very dubious about the effects of affirmative action. Why did Black applicants do so poorly on the firefighter test? Affirmative action does nothing to address that problem. It might make matters worse. Barack Obama served as President of the Harvard Law Review, and taught at the University of Chicago Law School. Did he ever publish anything? Is it really good to wave the ordinary requirements for promising Black candidates? I suspect not.