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Friday, May 29, 2009

Sotomayor's Disparate Impact

The New York Times has an article today about Sonia Sotomayor's board membership at the Puerto Rican Legal Defense and Education Fund (PRLDEP) starting in the 1980s until she joined the federal judiciary in 1992. According to the article, Sotomayor was far from a passive board member, and took an active interest in supervising and planning legal strategy.

The most interesting part of the article comes at the end, when the article notes that Sotomayor was involved in supervising a lawsuit brought by PRLDEP challenging test scores on the New York City Police exam, on the ground that too few minorities passed the test. Challenging employer conduct on the basis that test scores or other hiring criteria have a racially negative result is known as a "disparate impact" theory.

The PRLDEP case, as described by the Times, has a striking similarity to the Ricci v. DeStefano case in which white New Haven firefighters claimed that they were the victims of discrimination. In the Ricci case, the City of New Haven utilized a racially-neutral officer qualifying exam, specifically designed to avoid inherent or implicit biases which might discriminate against minorities. I'm not sure how a test on firefighting skills could be racially non-neutral, but out of an abundance of caution, New Haven had the test prepared by a third-party vendor which specialized in preparing fire-fighting tests.

New Haven had no intent to discriminate in administering the test, and had an actual intent not to discriminate. To the extent there was a fear of discrimination lawsuits, that fear was sufficient to result in a racially-neutral qualifying exam.

The result of the test, however, was that no blacks would be promoted (using New Haven's criteria for appointment in which test scores played an important part), but 17 whites and 1 Hispanic would get promoted. New Haven, fearing a lawsuit claiming racial discrimination under a "disparate impact" theory, similar to the types of lawsuits brought by PRLDEP, nullified the results. The case now is before the U.S. Supreme Court and may be decided prior to Sotomayor's confirmation hearings. More to come on Ricci, for sure.

The significance of the NY Times article and the Ricci case is not that Sotomayor had a hidden agenda in deciding Ricci. That may or may not have been true given her prior advocacy role at PRLDEP, but would be extremely difficult to prove. What is significant is how legal interest groups, such as PRLDEP, can shape conduct merely by creating a climate of fear of lawsuits focused not on intentional discrimination but on "disparate impact" theories of discrimination, and how Sotomayor was part and parcel of that strategy.

In some cases, the threat of a lawsuit claiming racial discrimination may shape conduct in a positive way, for example, when there is intentional discrimination. Intentional conduct can be deterred. Lawsuits focused merely on results, however, serve little social utility because there is no means of deterring unintentional conduct. Remember, in Ricci there was no evidence that the test itself was inherently biased or that New Haven intended to discriminate.

As the Ricci case shows, the threat of a lawsuit claiming disparate impact can go too far, causing employers to bend so far over backwards as to create absurd, and discriminatory, results. It would be as if the results of a running race, using the racially-neutral test of the time clock, were nullified based on the race of the winners.

Whether Sotomayor's position in Ricci was shaped by her history of using lawsuits as a social tool, or a dispassionate review of the law as applied to the facts of Ricci, is fair game for analysis as part of the confirmation process. Sotomayor's involvement at PRLDEP deserves more scrutiny, and the NY Times should be credited with starting that scrutiny.

Regardless, the failure of Sotomayor and some of her two colleagues to recognize the absurdity of the City of New Haven's conduct in the Ricci case shows a profound lack of judgment, which hopefully will be remedied by the U.S. Supreme Court. And Ricci needs to be explored at the confirmation hearings even though two other appeals court judges voted with Sotomayor, since a collective lack of judgment does not excuse a lack of judgment.

Related Posts:
Sotomayor's Damned Statistics
Release The Sotomayor Memos

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  1. If there is such a culture of fear of impact litigation, didn't New Haven make the right decision to pick a test with less "discriminatory" results?

    Also, I think this will actually turn on Kennedy (obviously). My guess is that he will vote to overturn the ruling, but his own opinions (see Parents Involved) would permit cities to use "race conscious" but facially neutral ways to diminish the racial impact of facially neutral policies. I really never hear people talk about this when they discuss Ricci, but it seems highly relevant. Scalia made similar arguments in Richmond v Croson.

    Accordingly, I would not conclude that the City's conduct was "absurd." It might not comply with the constitutional standard, but given the status of disparate impact standards and the language of Kennedy (and even Scalia) in affirmative action cases, I think this is a close call -- just as the en banc vote reveals. The Supreme Court will probably rule 5-4.

    Finally, did you see this: "Racist" Sotomayor Defends White Employee From Dismissal Due to His Circulation of Racist Literature I am probably sure this position goes against the views of civil rights groups. She was the lone dissenter!

  2. The term "disparate impact" treats those tested as "objects" of the test rather than test takers who achieved certain results. The most common method of avoiding responsibility to allegations is to use the passive voice, e.g. "mistakes were made." The same can be said of "disparate impact." It's as though the preparation time, experience, motivation, and intelligence of the test takers was entirely irrelevant to the scores. It's as though selection was made by random draw and the observation of blacks in the lower tail was evidence of an anomalous test. The fact that some blacks passed the test, albeit not high enough to warrant promotion, is evidence the test was not racially biased.

    The valedictorian of my high school class was black. The salutatorian was black. The bottom 25% of the graduating class was filled with blacks. What are we to conclude about the grading system of my high school?

    Citing the "fear of a lawsuit" as grounds for rejecting the test is one of the scariest things I've ever heard. It completely validates the notion that "shakedowns" of companies from Sharpton, Jackson, et al, are having a deleterious effect on operations.

    I was often told, in college, that "people of color cannot be racist because they lack power." Well, I see more than enough "power" here - power that I never had to affect the outcome of a hiring/promotion decision in my favor!