Where There’s Smoke There’s Fire

The Supreme Court tackles ‘race-consciousness’ in the workplace

By William S. Jeffrey & Evan J. O’Brien

The Supreme Court heard arguments on April 22 in Ricci v. DeStefano. The case presents the question whether a municipality may, consistent with the Civil Rights Act and the Equal Protection Clause of the Constitution, refuse to certify the results of a civil-service exam on which white applicants scored disproportionately higher than minority test-takers. We hope that the Supreme Court will take the opportunity of this litigation to clarify its muddled Civil Rights and Equal Protection jurisprudence, chasten recalcitrant lower courts, and hold that the government may not implement a system of “soft” racial quotas under the guise of complying with federal law.

Frank Ricci, a white male, is the lead plaintiff in a group of twenty members of the New Haven Fire Department whose examination scores qualified them for possible promotion to the rank of lieutenant. Ricci scored sixth out of seventy-seven applicants, almost surely qualifying him for the elevation. But before the city certified the results and doled out the promotions, they checked the racial breakdown of the test results. They did not like what they found. As is common, the tests were “race coded;” that is, the test-takers identified their race prior to the exam. City officials discovered that not a single black applicant was eligible for the promotion. The municipal certification board deadlocked, 2-2, and consequently, declined to certify the exam.

Ricci and his co-plaintiffs filed suit in the United States District Court in New Haven, alleging that they were the victims of racial discrimination in violation of Title VII of the 1964 Civil Rights statute, which prohibits employers from failing or refusing to hire, or otherwise discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race.” They also contend that the city violated the Equal Protection Clause of the Fourteenth Amendment, which holds that “No state shall…deny to any person within its jurisdiction the equal protection of the laws.”

Unfortunately, the lower courts that heard Ricci’s case seemed averse to confront squarely the statutory and constitutional issues that the case presented. At the trial stage, U.S. District Judge Janet Bond Arterton, a Clinton appointee, summarily ruled against Ricci. Her Title VII analysis boiled down to the remarkable claim that the city could legally make a race-based employment decision, as it did here, because it sought to avoid being sued by black firefighters who took the test. This requires some explanation. Under the amended §703(k) of the Civil Rights statute, employers may be held liable if they use a “particular employment practice that causes a disparate impact on the basis of race…[and] fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” The record showed that 60.5% of whites passed, as compared to 31.6% of blacks. The city argued that its fear of facing a disparate impact suit from black firemen ineligible for promotion was a legitimate basis for throwing out the test scores.

Judge Arterton’s constitutional analysis was equally unsound. In a classic non sequitur, she concluded in her opinion that since the city meted out no benefits, it could not have committed racial discrimination: “Here, all applicants took the same test, and the result was the same for all because the test results were discarded and nobody was promoted. This does not amount to a facial classification based on race.” She reasoned, as follows, from a series of true premises to a false conclusion: All applicants took the same exam (True). No applicants were promoted (True). Therefore, no applicant was penalized because of his race (False). As George Will aptly quipped, “New Haven’s idea of equal treatment is to equally deny promotions to those who did not earn them and those, including Ricci, who did.”

Ricci appealed to the United States Court of Appeals for the Second Circuit, where further judicial mischief ensued. A three-judge panel composed entirely of Clinton appointees – Judges Rosemary Pooler, Robert Sack, and Sonia Sotomayor – affirmed the District Court’s judgment in a three-paragraph per curiam opinion, a cursory disposition usually reserved for cases of minor importance. And of the three paragraphs, the first two were one sentence-long, while the third did not even mention the Equal Protection Clause. The opinion’s only novel comments were its praise of Judge Arterton’s opinion and, in a Clintonian moment of sensitivity, its admission that the Court was “not unsympathetic to the plaintiffs’ expression of frustration.”

The final step in the saga of the Ricci case’s tour through the lower courts was the remarkable denial, by a split vote of 7-6, of an en banc re-hearing. With the exception of astute Court watchers like M. Edward Whelan III of the Ethics and Public Policy Center and National Review Online, few noticed the Second Circuit’s attempt to bury the case from public view. Fortunately, Judge José Cabranes published a tour de force dissent from the denial, in which he excoriated the majority for its failure “to grapple with the questions of exceptional importance raised in this appeal,” questioned the District Court’s summary determination that the city’s actions were race-neutral, and invited the Supreme Court to hear the appeal. Judge Cabranes’ dissent was, so far, the one bright spot in the federal courts’ dismal handling of Ricci’s case.

When the Supreme Court granted review, the Obama administration filed an amicus brief drafted by Justice Department lawyers with input from the Labor Department and the Equal Employment Opportunity Commission. The government maintained that New Haven should be allowed to scuttle the results of the test, provided that it acted on a “reasonable” belief that certification of the scores “may” result in liability claims under §703(k). In other words, the government contends that the 1964 Act allows New Haven to disregard the results of the exam if the city held a “good faith” belief that their test produced a disparate impact and therefore a liability under Title VII. At oral argument, Justice David H. Souter appeared sympathetic to this view: “Why isn’t the most reasonable reading of this set of facts a reading which is consistent with giving the city an opportunity, assuming good faith, to start again?” The government indeed suggests that the case should be remanded for further proceedings. But simply because the lower court neglected to compile an evidentiary record at first is not justification for prolonging this litigation for many more years. In six years, the New Haven force still stands lieutenant-less.

The government goes on to argue that New Haven’s decision to throw out the test does not violate the Equal Protection Clause because the decision was facially neutral. This contention, which the District Court and Court of Appeals accepted uncritically, does not survive scrutiny. When the Deputy Solicitor General expressed this view during oral argument, Justice Antonin Scalia interjected: “It’s neutral because you throw it out for the losers as well as the winners? That’s neutrality?” In any event, even if the Equal Protection Clause is implicated, the Obama administration essentially says that the constitutional claim is trumped by the supposedly compelling government interest of complying with §703(k). It is almost too obvious to observe that the Constitution, as the supreme law of the land, must preempt any interpretation of federal law, and that the government must yield to the command of the Equal Protection Clause.

The essential and repeated emphasis of Title VII is that employers must disregard race and may not treat employees disparately based on racial classifications. Yet §703(k), added as an amendment in 1991, injects the act with an internal dissonance by saying that if an employer disregards the racial stratification of a test, they could be liable to discrimination lawsuits. The administration’s insistence that a “reasonable” or “good faith” belief that a failure to scrap the test “may” result in Title VII liability is too lenient a rule. Under this view, a city would retain the leeway to ignore test results and selection devices that ever produce any kind of disparate impact. The result would be the de facto ability to institute “soft quotas.” The court should reject this argument and relieve the dissonance between §703(k) and the rest of Title VII. Section 703(k) must be read strictly: The city must not just have a “reasonable” belief that it “may” be liable, but must be able to show objectively that it would be liable.

We realize that in order for the proper resolution to be reached, Justice Anthony M. Kennedy must vote with Chief Justice John Roberts, and Justices Scalia, Clarence Thomas and Samuel Alito. He declined to join in full Chief Justice Roberts’s fine opinion two terms ago in the Seattle schools case, and he is famous for his independent streak. Nonetheless, we remain optimistic that Justice Kennedy will rule in favor of Ricci. At the oral argument, he indicated that he “had trouble” with the city’s argument that its decision was truly race-neutral.

In the end, if the Court rules that an employer, for fear of disparate-impact claims, may engage in disparate treatment of individuals based on their race, then they have sanctioned the use of quotas. The city government, the federal courts, and the Obama administration have all let Frank Ricci down. It is time for a majority of the Supreme Court to affirm the Chief Justice’s sentiment in the Seattle case: “The way to stop discrimination based on race is to stop discriminating based on race.”