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Monday, June 29, 2009

Supreme Court Reverses Sotomayor

In a 5-4 ruling authored by Justice Anthony Kennedy, the U.S. Supreme Court has reversed the ruling by Supreme Court Nominee Sonia Sotomayor and two other Court of Appeals judges in the case of Ricci v. DeStefano. [Full opinion and analysis below]

In Ricci, white New Haven firefighters claimed that they were the victims of discrimination. The City of New Haven had utilized a racially-neutral officer qualifying exam, prepared by a company which specializes in firefighting tests, specifically designed to avoid inherent or implicit biases which might discriminate against minorities.

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 (meaning the results were racially skewed regardless of intent), nullified the results.

Sotomayor and her co-panelists on the Second Circuit Court of Appeals adopted a lower court opinion finding that New Haven acted within the law. In a brief per curiam opinion, Sotomayor found that New Haven's conduct was "protected" because New Haven was attempting to avoid an unlawful disparate impact. The full Court of Appeals declined to re-hear the case, although several of the Judges criticised the fact that the Sotomayor panel had relied on the lower court opinion and did not examine the issues on its own.

The U.S. Supreme Court, however, rejected the view that fear of disparate impact lawsuits was a sufficient ground upon which to invalidate an otherwise racially-neutral test. The Court held that in order to justify its actions, New Haven would have had to prove that there were a strong baisis for believing that it actually would have been liable for disparate impact liability had it not invalidated the test.

The Court held that since New Haven's decision explicitly was based on race, the decision presumptively was an invalid violation of discrimination laws, unless there was a legally valid justification. The Court held that regardless of New Haven's "well intentioned or benevolent" intent to protect itself against discrimination lawsuits, such conduct constituted discrimination without legal justification. Because the Court found a violation of the discrimination laws, the Court did not reach the issue of whether New Haven violated the Equal Protection clause of the 14th Amendment to the U.S. Constitution.

The Supreme Court split along the "convervative" vs. "liberal" line, with Kennedy as the decisive vote. Roberts, Scalia, Alito and Thomas joined Kennedy in voting to reverse, and Ginsburg voted to affirm, with Souter, Breyer and Stevens joining her. Scalia and Alito (with Thomas and Scalia joining) also filed separate concurring opinions.

Assuming Sotomayor is confirmed, her presence on the Court would have made no difference in Ricci, since she is replacing Souter. The 5-4 split likely will give Sotomayor's supporters comfort, since while she would have been in the minority, several current Supreme Court Justices agreed with her conclusion in the case. Nonetheless, there is plenty of fodder for Sotomayor's opponents, both in the rejection of her position by the Court and her failure to deal with these issues head on, deferring instead to a lower court's opinion.

One other interesting aspect of the case is the issue of "empathy." Much has been made about Barack Obama's desire for Justices who show "empathy," and Sotomayor made controversial off-the-bench statements regarding how a "wise Latina" judge would view cases (better or at least differently from white male judges). But in the second paragaraph of her Dissent, Justice Ginsburg noted that "sympathy" for the firefighters played no role in deciding the case. So what exactly is "empathy" as a valid attribute for a Supreme Court Justice? And if Sotomayor lets "empathy" enter into her decision making process, does that set her apart not only from Sandra Day O'Connor but also Ruth Bader Ginsburg?

Here is the full set of opinions. Use the Zoom feature within the image box to enlarge the text:

Ricci v DeStefano - US Sup - 07-1428

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  1. Shouldn't any fire department's concern here be to find the most qualified candidate to best protect and serve the community?

    The Ginsburg dissent..."context matters"...is precisely what we were all afraid of (and still are) with Sotomayor. That bias will exist in court cases in order to shield minorities, or in fact, prefer them.

  2. I am surprised it was as close as that. haven't read it yet, but frankly the district court decision was an embarrassment.

    I mean the fire dept ran its test, said, "crap too many white people passed" and then threw out the results. And the district court said that no discrimination (under the 14th A) occurred because everyone was equally denied a promotion.

    That is bull. That is absolutely discrimination and the only question is whether it could be justified. Like i said, i can't believe it was even that close.

  3. It may have been close, but all that matters is that it was decided right. Of course, if the Court gets another liberal, we can all kiss our liberties good-bye.

    Good bye Justice Souter.

  4. Ed Whelan notes that even though four justices voted to affirm, none of them had anything good to say about Sotomayor's flippant handling of the case. Powerline's Paul Mirengoff notes that the USSC found enough material to devote 93 pages to an issue that Sotomayor handled via summary judgement, devoting only a paragraph to the merits of the case.

    Even Ginsburg objected to that nonsense.

  5. The interesting thing about the entire test, to me, was that they went to such extraordinary lengths to ensure that the test did not discriminate.

    Empathy or sympathy, none of it belongs on the Supreme Court. They are supposed to be the most impartial people in law for a reason. The Republicans have enough ammo in this decision to throw at Sotomayor. Don't think it's gonna stop confirmation, but at least let people know EXACTLY where her mindset is. Her behavior in this case is especially telling. Her lack of empathy for the white firefighters means they got the shaft when they were obviously wronged. She looks at justice through racial/sexually motivated lenses. She's only "fair" to those whom she thinks are worse off in life. This case made it obvious.

  6. 5 years they had to wait. Hope they get back pay.

  7. Loved the analysis!

    It sure seems to me that the answer in this case should have been an easy one, all along. Clearly, no employer can be guilty of discrimination under the disparate impact theory unless it REFUSES to take action to correct the discrimination once shown its policies or practices create a disparate impact. Since New Haven went to the trouble of having a racially neutral test designed in the first place, no reasonable person could conclude New Haven refused to take action to correct the disparate impact unless it believed 1) that New Haven had/has the responsibility to judge whether the company designing the racially neutral test did its job properly (i.e. substitute its own notions of fairness for the judgment of the professional testing design company); or 2) that New Haven had a responsibility to make a second, or even unlimited number of attempts to find a suitable racially non-biased test.

    Absent proof that the test design company was itself racially biased, or was known by New Haven to have mishandled or not adequately performed its professional function of designing racially neutral tests, I don't see how anyone, let alone a judge, could reasonably conclude New Haven was justified in fearing a lawsuit under Title 7.

    For some to say the minority in this decision was some kind of loss for civil rights is way over-reaching. Assuming a public entity such as the New Haven Fire Dept had its Section 504 anti-discrimination house in order with its 504 policies, self evaluation, etc.... I don't see how any discrimination lawsuit under the disparate impact theory could ever get legs in the first place, which makes the Circuit decision appear like a shirking of duty even more.

  8. I know this is not on point, but I'd be curious to get your opinon, Prof. J. I wonder if the law articualted in Ricci will be applicable outside of Title VII, and particularly in regards to the racially charged Community Reinvestment Act that has done so much damage to our economy.

    Obama stated in his 89 page proposal for massive government intervention in our economy, “A New Foundation: Rebuilding Financial Supervision and Regulation,” that he intends to expand enforcement of the CRA. The CRA uses an analysis precisely like that in a "disparate impact" claim under Title VII to determine whether financial institutions are making enough loans to minorities. As it stands now, banks cannot defend against a finding of insufficient loans to minorities under the CRA by pointing to their individual portfoloio to show that they have not engaged in discrimination, but rather have applied loan standards evenly and without reference to color. The government applies the CRA to require a racially balanced result.

    If I read Ricci correctly, then application of legitimate, race neutral criteria was what Title VII requires and that it would be an unlawful act of racism for an institution to throw out the results of a test because it did not provide a racially balanced result. Though decided in the context of Title VII, Ricci seems to provide a general principle of law that should be applicable to the misuse of the CRA by our government to engage in outcome oriented, social engineering. What do you think?