In Ricci, Supreme Court Majority Saw No Moral Complexity

The first thing I had to realize about Ricci v. DeStefano, the Title VII ruling handed down by the U.S. Supreme Court on Monday, is that it isn't as simple as it looks.

Conservative pundits refer to it as an "affirmative action" case, but technically, it isn't. Title VII isn't an affirmative action statute; it's the nondiscrimination statute that makes up the heart of the Civil Rights Act of 1964. At issue is discrimination against members of ethnic groups. In this case, the members suing on the basis of Title VII are white. The fact that they are white does not make it an affirmative action case. It is important not to confuse the political atmosphere of the ruling--wrapped up in the myth of the "more qualified white candidate" vs. "the affirmative-action minority hire"--with the details of the ruling itself.

At issue is whether the New Haven fire department could be sued under Title VII for rejecting an exam, after the fact, that led to a conspicuously low number of non-white promotions. This is not the first case in which an entity has been successfully sued for discriminating against whites, but it does ask what I think is a new question for the Supreme Court--namely, whether an institution can violate Title VII by working too hard to comply with Title VII. The New Haven fire department could have been sued by non-white students if they had retained the exam, which contains material not relevant to the occupation and seemed to be discriminatory in its effects, or sued by white students if they had discarded the exam. They erred, if they erred at all, on the side of caution--discarding the exam's results. They were sued for this by a group of white firefighters who had passed the test, and the firefighters won in a 5-4 ruling.

What was the basis of the Court's ruling? As Justice Kennedy wrote for the majority:

We conclude 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.

Disparate impact refers to the effects of a discriminatory policy; disparate treatment refers to intent. Justice Kennedy argues that it is acceptable to make a disparate-treatment (i.e., race-conscious) decision to prevent a disparate-impact (i.e., racially discriminatory) outcome, but only if there is a "strong basis in evidence" that there is a disparate impact. Justice Kennedy acknowledged that the statistical impact of the test did benefit whites at a level that would constitute adverse impact under existing civil rights guidelines:

The racial adverse impact here was significant, and petitioners do not dispute that the City was faced with a prima facie case of disparate-impact liability. On the captain exam, the pass rate for white candidates was 64 percent but was 37.5 percent for both black and Hispanic candidates. On the lieutenant exam, the pass rate for white candidates was 58.1 percent; for black candidates, 31.6 percent; and for Hispanic candidates, 20 percent.

But there are two arguments that, Justice Kennedy argues, mitigate this. First, the tests were "job-related and consistent with business necessity." Second, there were no viable alternatives.

In her dissent, Justice Ginsburg takes issue with these claims. First, she points out that the tests' content had been criticized during meetings of the Civil Service Board. One witness stated that the exams "would appear to test a candidate's ability to memorize textbooks," a few specific textbooks that were not necessarily easy for non-white applicants to obtain:

Some individuals, [two candidates] asserted, had the necessary books even before the syllabus was issued. Others had to invest substantial sums to purchase the materials and "wait a month and a half for some of the books because they were on back-order." These disparities, it was suggested, fell at least in part along racial lines. While many Caucasian applicants could obtain materials and assistance from relatives in the fire service, the overwhelming majority of minority applicants were "first-generation firefighters" without such support networks.

Justice Ginsburg also pointed out that Donald Day, who represented the International Association of Black Professional Firefighters, had highlighted at one CSB meeting that the nearby city of Bridgeport used a different testing system which generated more standard, and less racially correlated, results.

Justice Ginsburg also points out some demographic and historical context that is missing in the majority opinion:

In the early 1970’s, African-Americans and Hispanics composed 30 percent of New Haven’s population, but only 3.6 percent of the City’s 502 firefighters. The racial disparity in the officer ranks was even more pronounced: "[O]f the 107 officers in the Department only one was black, and he held the lowest rank above private." Firebird Soc. of New Haven, Inc. v. New Haven Bd. of Fire Comm’rs, 66 F. R. D. 457, 460 (Conn. 1975).

Following a lawsuit and settlement agreement, see ibid., the City initiated efforts to increase minority representation in the New Haven Fire Department (Department). Those litigation-induced efforts produced some positive change. New Haven’s population includes a greater proportion of minorities today than it did in the 1970’s: Nearly 40 percent of the City’s residents are African-American and more than 20 percent are Hispanic. Among entry-level firefighters, minorities are still underrepresented, but not starkly so. As of 2003, African-Americans and Hispanics constituted 30 percent and 16 percent of the City’s firefighters, respectively. In supervisory positions, however, significant disparities remain. Overall, the senior officer ranks (captain and higher) are nine percent African-American and nine percent Hispanic. Only one of the Department’s 21 fire captains is African-American ... It is against this backdrop of entrenched inequality that the promotion process at issue in this litigation should be assessed.

Tough call, right? If I were a member of the Civil Service Board confronted with this conflicting evidence, I don't know for sure whether I'd throw out the test results or not. Members of the CSB felt similarly--the vote on whether to certify the results was a tie, so the results were not certified.

The view of the 5-4 majority is that the issue is really very simple, and that the CSB was not only wrong not to recertify the controversial test results, but was so wrong that its decision not to do so warranted a Title VII racial discrimination lawsuit.

And in his concurrence, Justice Scalia went even further by arguing that disparate impact may not even be sufficient grounds for a Title VII case--that in order to prove that discrimination has taken place, it may be necessary to specifically prove conscious intent rather than documenting discriminatory patterns. "[R]esolution of this dispute," Justice Scalia writes, "merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution's guarantee of equal protection?"

Justice Scalia also suggested last year that intent should be the basis of Voting Rights Act rulings--that, in other words, the two biggest pieces of civil rights legislation should be enforceable only in cases where the defendant, or relevant legislative body, was stupid enough to announce prejudiced intent. To his credit, Justice Scalia does not apply an intent standard only to civil rights protections--in a 1990 landmark ruling, he also applied it to the First Amendment's religious free exercise clause. But if we're talking about repealing the core of the federal legislation that the civil rights movement produced, let's be honest and call this what it is: Right-wing judicial activism.

See also:

• High Court Issues "Right" Decision in New Haven Firefighters' Case (Justin Quinn / About.com: U.S. Conservative Politics)