The New Republic

The fundamental issue as I understand it is from Rosen's essay on the case here:

"... clearly the core question raised by Judge Jose Cabranes on the lower court: 'May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another'...?"

I am anxious to see the arguments for the answer the employer should disregard those results.

- basman

April 22, 2009 at 8:35pm

p.s. To clarify: I'm anxious to see the *legal* arguments.

- basman

April 23, 2009 at 11:38am

You won't find any legal arguments in McWhorter's piece, one way or the other.  I wlll try to be back this evening with an explanation of the legal arguments -- on both sides.

- dhurtado

April 23, 2009 at 12:13pm

I wasn't looking there for legal arguments, but in any event I'll be happy to see an account of the arguments particularly for disregarding the test results. My sketchy understanding is that the race neutrality of the text is a factual given. I could be wrong about that, mind you.

- basman

April 23, 2009 at 3:45pm

race neutrailty of the test not the text.

sorry

- basman

April 23, 2009 at 4:18pm

Basman, there appear to be two different threads relating to this post; this one, and another one if you access McWhorter's post directly from the TNR homepage.  I'll stick to this thread for now.

The Ricci case involves a provision of Title VII of the Civil Rights Act that prohibits "facially neutral" practices (such as tests) that have an adverse impact on a protected class, unless it can be shown that the practice (test) is job-related and that no alternative exists that has a less adverse impact.  The case does not involve the validity of that Title VII provision (which I will call the "adverse-impact provision").  The provision has been in effect for a long time and I can only speculate on the policy rationale -- probably something like, given the history of discrimination in this country, it should be the employer's burden to demonstrate that a practice that has an adverse racial impact is not the result of discriminatory factors.  

The normal context of a suit involving the adverse-impact provision would be a minority person or group suing an employer for a practice that causes a disparate impact, and, if the plaintiffs establish a prima facie case of a statistically significant adverse impact, the burden shifts to the employer to show that the practice is job-related and that there are no alternatives having a less adverse impact.  In the Ricci case, it is a group of white firefighters that is suing the city of New Haven because it declined to use a test that had a disparate impact, citing its concern that it could not satisfy the requirements of the adverse-impact provision and would be exposed to a lawsuit.

The firefighters are suing New Haven under Title VII and the Equal Protection Clause for intentional discrimination, i.e., the refusal to certify the test.  The issue in the case is whether, or under what circumstances, a defendant can rely on a desire to comply with the adverse-impact provision as a defense to a claim of intentional discrimination.

There is probably not much interest in the issue that is actually before the Court.  People would probably prefer to debate the validity of the adverse-impact provision, but that is not before the Court and it is not likely to be repealed or invaldiated any time soon.  In theory, however, the adverse-impact provision should address at least some of McWhorter's concerns.  If applied correctly, it provides that facially-neutral tests that have a racially disparate impact can be used as long as the content of the test relates to job-performance and there are no alternatives that do not have a disparate impact, or have a lesser disparate impact.  So in spite of the linguistic problems that McWhorter says infects much of the black community, tests that expose those linguistic shortcomings can nevertheless be used as long as the skills tested relate to job-performance, etc.  So for blacks to score well on those tests will require them to take all of the remedial measures that McWhorter wants them to take.

With regard to "race neutrality of the test," it is a given that the test is "facially neutral," but it is also a given that it has a statistically significant disparate impact.  

- dhurtado

April 23, 2009 at 7:48pm

Dhurtado, good concise account, thanks for that.

I have read *around* this case a bit more and this is what I understand. The City wanted to fill top fire fighting positions. The union contract made such promotions dependent on test results. A testing outfit conducted the test. Once test results were certified applicants had to be chosen from the top scores. Apparently black candidates did half as well as white candidates. The test certifier, a board, held a hearing on the issue of the test’s racial bias.  The board split evenly on whether to certify—and didn’t. High scorers sued the City. Their argument was that the decision breached the Title V11 as intentionally discriminating against them and violated their equal protection rights. The City’s argument was that it did not certify because, as you note, it feared Title V11 suit for violating the adverse impact provision. The first instance court—a district court—summarily dismissed the plaintiffs’ case for the reason the City asserted in argument. On appeal, the lower court’s decision was upheld, and in a panel as a whole opinion, opined that the City could not be sued for not certifying.  But then, if I understand this, the court denied a motion for a full court rehearing by a seven to six vote. The dissenters—I have read none of the opinions—raised real disagreements, including that some of the issues are of first instance.

Leave to appeal to SCOTUS was granted.

The appellants’ arguments include the standard of strict scrutiny is to be applied in this case as it is one of racial classification. The argument here is that City’s refusal to promote based on the appellants’ race should be strictly scrutinized, a standard of review the lower appellate court did not employ. The equal protection argument, as I understand it, is that compliance with Title V11 can’t justify race based preferences. The argued concern is that the City under the appearance of adhering to Title V11 is really engaged in racial quotas. Their further argument is that the Title V11 provision is only to allow remedy for a proved disparate impact. With that proof, then exists the requirement of proof that an equally valid and less discriminatory test was available. The argument is that employers can’t refuse the employment test based solely on adverse impact.

The final argument concerns some other provision that prohibits altering employment test results

The appellants’ brief expands on these arguments: all race-based government actions are subject to strict scrutiny; when the City dismissed test results that made minority promotions more difficult, it denied the white firefighters promotions because they were white – a race-based state action.  The expanded argument is that the City acted solely based upon racially-measured test results.  The claim is that City’s refusal should be deemed/found to be a pretext to deny white promotions.

Strict scrutiny demands a compelling government interest. The argument proceeds then that avoiding a disparate impact can’t be one as it would allow racial balancing and that in any event strict scrutiny requires the City to meet a high onus in proving that disparate impact occurred before remedying it. For that, as noted, the argument is that the City would have to show better alternative tests existed and there is no such evidence on the record. It seems the record does not show the City claiming the test was flawed.

The appellants argue the City’s action violates a provision of Title V11 that they say prohibits employers from granting preferences to prevent racial imbalances.

The City argues that the appellants threaten the concept of disparate impact and say holding that its incapacity to dismiss test results turns evidence of disparate impact into immunity for those benefiting from the disparity. The City argues it can reject test results as long as it has a “good faith” belief that the test caused disparate impact.  Otherwise, employers lose flexibility in complying with Title VII.   As to strict scrutiny, the City argues all examinees equally were denied the effects of their results. Strict scrutiny only arises with a discriminatory intent.

Plainer, both sides disagree on the City’s pass on certification: good faith compliance with Ttitle V11 against intentional race balancing; race based classification against treating all test takers equally. The appellants argue the relevant action is that they are being discriminated against—denied promotions—because of their race. The City says the relevant action is scrapping the test entirely as problematic in itself and as litigation generating. The question arises whether the City would have certified if the test results had been racially balanced. Since the answer is no, then arguably it is apt to say, among other possible characterizations, the City refused to promote high scoring whites. So how is the action of the City to be interpreted?

The U.S. has argued that the case should be remanded for trial before a jury.

What a nightmare for employers: face litigation if you do; face it if you don’t.

- basman

April 24, 2009 at 3:23pm

Sorry, in the hypothetical above if the test results were racially neutral the City would have for sure certified.

Also, to be more clear, my understanding is that the City did not argue below the test was flawed. I could be wrong about that.

Finally, it may be that SCOTUS's treatment of this case may be affected by the fact that the appeal was from a summary disposition of it and it may well accede to the goverment's argument for sending the cae back for a jury trial on the factual issue of the City's motivation in scrapping the test results, amongst others.

- basman

April 24, 2009 at 3:50pm

Basman, my knowledge of the case is based on the journal "Preview of United States Supreme Court Cases," published by the American Bar Association.  I have not read any of the briefs or opinions in the case.  Your understanding of the procedural history is consisent with mine, except that I am not aware of what the arguments were on the petition for rehearing "en banc" in the Second Circuit Court of Appeals.  I think your characterizations of the parties' arguments in the Supreme Court is at least roughly accurate, though, as I said, I have not read the briefs.  A few observations:

There is no dispute in the Ricci case that the test had a racially disparate impact.  If the City had certified the test and the black and Hispanic firefighters had sued, it would have been the City's burden to prove that the test was job-related and that no alternatives were available.  In this case, the City did NOT certify the test, and so the firefighters who scored well on the test (all of them white except for one Hispanic) sued the City for intentional discrimination.  Although the Court will have to sort this out, it seems that if the City reasonably believed that the test might violate Title VII, that should be a sufficient defense to a claim of intentional discrimination.  The issues of "strict scrutiny," "compelling interest," and "narrowly tailored" then would not come into play because there would not be any intentional dicrimination in the first place.

If the Court agrees that an attempt to comply with Title VII can be a defense to a claim of intentional discrimination, then surely it will require that the City's belief that the test might violate Title VII was reasonable.  That will turn the usual framework of proof on its head.  Instead of the City having to prove that the test is job-related and that there is no alternative, the City will have to prove, or at least provide evidence, that the test is NOT job-related, OR that there is a suitable alternative.

As I understand it, the City did not conduct a full investigation of those factual issues, but its conern that the test might violate Title VII was based on at least the following:  (1) prior promotion exams the fire department had used did not have a disparate impact, suggesting that the current test might be flawed; and (2) an industrial psychologist who designs testing materials examined the test, and discussed several alternative methods for assessing the candidates' qualifications.  If that latter point were proved to be true, that by itself would render the test violative of Title VII.

In my view, the Court would be hard-pressed to hold that an effort to comply with the Title VII provision in question could never provide a defense to an intentional-discrimination claim.  That would place employers in an impossible situation, as you note.  But the Court very well might hold that the employer's concern about compliance with Title VII must be reasonable.  The Court might then find that the current record is insufficient, and remand the case for a determination of whether the City's concern was reasonable.  

Or, the Court might hold that refusing to certify a test because of a disparate impact is prima facie intentional discrimination, and remand for a trial based on the usual burden-shifting framework, with the burden ultimately on the plaintiffs to prove that the City's professed concern about compliance with Title VII was a pretext for intentional discrimination.

I think the latter holding would be unfair, given the existence ot the Title VII adverse-impact provision.

PS.  I am not aware of a "provision of Title V11 that . . . prohibits employers from granting preferences to prevent racial imbalances."   But perhaps there is one.

- dhurtado

April 24, 2009 at 7:01pm

two comments:

1. Read Cabrenes" second circuit dissent. It's quite illumnating as to the issues; www.ca2.uscourts.gov/.../06-4996-cv_opn2.pdf

2. Here is the transcript of the oral argument. I haven't read it yet myself: www.supremecourtus.gov/.../07-1428.pdf

- basman

April 25, 2009 at 12:37am

Thanks.  I'll try to take a look at both.

- dhurtado

April 25, 2009 at 8:35am

..., it seems that if the City reasonably believed that the test might violate Title VII, that should be a sufficient defense to a claim of intentional discrimination. ...

Of course this raises a big issue in the case: what standard does have the City have to meet? is a reasonable belief suffcient, even if the case was not flawed; does there have to be a belief based on strong evidence; is numeric disparity sufficient and so on? As well, reasonable belief may not be an answer to the issue of intentionality. it depends it seems on how the court constues the City's action. If the City is seen to have scrapped the test because too many non whites scored too low and too many whites scored too high--which is saying the same thing--that is argubaly intentional race based classification, which then attracts an equal protection analysis. it seem to this foreigner to your land's complicated laws that a benign motive can co exist with intentional racial discrimination. If so, then as Cabranes notes there was no strict, or hardly any, scrutiny by the first intance court of the City's action. So on this reading of intentional discrimination, even absent animus, "The issues of "strict scrutiny," "compelling interest," and "narrowly tailored" could well come into play.

...If the City had certified the test and the black and Hispanic firefighters had sued, ...

So it did no certify and the high scorers sued. Scalia and Alito say in thier questioning that two parts of Title V11 are at war with each other: disparate impact as against disparate treatment.

...If the Court agrees that an attempt to comply with Title VII can be a defense to a claim of intentional discrimination, then surely it will require that the City's belief that the test might violate Title VII was reasonable.  That will turn the usual framework of proof on its head.  Instead of the City having to prove that the test is job-related and that there is no alternative, the City will have to prove, or at least provide evidence, that the test is NOT job-related, OR that there is a suitable alternative....

I found the talk of burden shifting somewhat complicated. But what I get is that if the applicants make out a case of disparate impact, then the burden is on the employers to show what you mention: no comparable test with a less disparate impact and that the test tests for what it is meant to test for. But if mere good faith belief is not suffcient--and it's a live issue for Kennedy, Roberts, Alito, Scalia, and I'd imagine Thomas--then the City must show what to escape liability? i'd imagine a basis in evidence for its belief beyong mere numeric disparity of suffcient magnitude. For if the former is suffcient, doesn't that vouch for good faith? And if the City's action is inttentional racial classification, then I take it as you are saying:  "..City having to prove that the test is job-related and that there is no alternative, the City will have to prove, or at least provide evidence, that the test is NOT job-related, OR that there is a suitable alternative...." here it strikes me there are problems for the City based on the summary disposition of the case. On the record before the court, the City has no evidence, I don't think, of any of this. So the case could be sent back for full hearing with fully developed evidence or could be disposed of on the issue of liabilty  and sent back just on the qiestion of damages.

The evidentiary basis of the validity or defectiveness of the test seems gray. Firstly, as I understand it, and mentioned, the City's position seemed hitherto that its good faith belief was enough. There is before the court no evidence of invalidity or defecttiveness as such save for numeric disparity. Secondly, during the hearing on the test prior to any or no certification, a competitor, Hornick, seems to have testified, "I can make you a better test, but you can go ahead and certify on the basis of this one and as Alito quipped "Here's my card." Thirdly, the evidence across the board on the hearing was both supportive and critical of the test and the Board reached no conclusion about it.

There are a lot of complicated issues that I don't understand well enough. But I am learning  as I go along. And I find it entirely interesting. From oral argument I sense a classic left right split with Kennedy tending to swing right. I understand that he is notoriously cold toward affirmative action programs.

- basman

April 25, 2009 at 11:07am

Basman, I will have more to say after having had a chance to read to 2d Circuit opinions and the oral argument transcript.  But I don't think the case is in a procedural posture for the Court to be able hold the City liable for intentional discrimination.  The worst-case scenario for the City is that the Court holds that refusing to certify the test based on the racial disparity of the results establishes a prima facie case of intentional discrimination, reverses the 2d Circuit's affirmance of the summary judgment, and remands the case for further proceedings on whether the City's articulated non-discriminatory reason for declining to certify the test -- that it feared the test violated Title VII -- is really only a pretext for a discriminatory motive.  Since the issue is intent, the City should only have to prove that its belief that the test might violate Title VII was reasonable.  It should not have to show that the test in fact violated Title VII.  That is entirely consistent with the framework that Scalia has championed, and that the Court has adopted, for decades now with regard proving intentional discrimination under either Title VII or the Equal Protection Clause.

But I think the real issue here -- and the reason that the case is novel -- is whether the City's refusal to certify a test that prima facie violates Title VII can, by itself, establish prima facie case of intentional discrimination.  (Recall, there is no dispute that the test had a disparate impact.)

- dhurtado

April 25, 2009 at 7:38pm

Basman, I too find the case interesting.  But my sense is that McWhorter and other readers would be more interested in debating whether Title VII's disparate-impact provision is good policy, which is not an issue that is before the Court.

Be that as it may, I agree that the questions asked by the Court during oral argument reflect a potential diversion of views regarding affirmative action programs.  That would be unfortunate because that is not really what the case is about.  The case is about the intent of Congress as expressed in federal law, that is, whether Congress intended that refusal to implement a practice that prima facie violates Title VII's disparate-impact provision would give rise to a prima facie case of disparate treatment under Title VII.  That question virtually answers itself.

I find myself generally agreeing with the view reflected in Justice Souter's questions, in particular his view that it is inconceivable that Congress intended to put employers in that kind of a bind, and his view that there is a distinction between "race conscious" and "race-based."  It is necessary for governmentt to be race-conscious in order to enforce laws against racial discrimination, and it is necessary for employers to be race-conscious in order to comply with Title VII.  That is not the same thing as discriminatory intent.  

For that reason, I think Judge Cabranes' characterization of the City's motive as being that too many whites scored well on the test and/or that not enough non-whites scored well is disingenuous.  Judge Cabranes' statement of the issue completely omits any reference to Title VII's disparate-impact provision, and his opinion in general marginalizes it.  

My preliminary view is that a claim of disparate treatment based solely on an employer's refusal to implement a practice that presumptively violates Title VII (because it has a statistically significant disparate impact) should be subject to summary judgment.  If the plaintiff can come forward with independent evidence of discriminatory motive, then summary judgment would not be appropriate.  There is some force to an argument that, even where a claim is based solely on refusal to implement a practice that has a disparate impact, the employer should be required to come forward with evidence that the practice is not job-related or that there are better alternatives.  The problem with that, however, is that it will encourage lawsuits, many of which will go to trial, even where an employer's actions have been wholly compliant with Title VII. I do not think that is the balance that Congress intended to strike.

- dhurtado

April 26, 2009 at 12:58pm

It looks like William Saletan over at Slate learned his lesson too well. He was shot at like a varmint

- Anonymous

May 1, 2009 at 9:41am

John, I am hoping to make my way to comment on your Saletan post before it becomes passe.  For now, I note that in the Saletan piece you continue to misstate what the issues are in the Ricci case.  What gives?

- dhurtado

May 4, 2009 at 10:38pm

William Saletan has responded to my comment on his discomfort with No Child Left Behind data being tabulated

- Anonymous

May 5, 2009 at 6:21pm

This idea that Sonia Sotomayor’s line that a “wise Latina woman” has an advantage in judging over a white

- Anonymous

June 9, 2009 at 3:02am

According to Adam Serwer over at The Root , the NAACP’s suit against Wells Fargo for deliberately trawling

- Anonymous

June 16, 2009 at 1:03pm

The Supreme Court’s decision in favor of the New Haven firefighters whose test results were discounted

- Anonymous

June 29, 2009 at 2:37pm