In Ricci, a group of white firefighters challenged a decision by New Haven, Connecticut, to scrap a departmental test used to allocate promotions. If the city had maintained the test, only one nonwhite individual would have qualified for a promotion. The disparity was smaller in prior years. A 3-judge panel of the Second Circuit Court of Appeals sided with New Haven. The full Second Circuit voted 7-6 to deny a rehearing in the case. The Ricci decision has generated more than the usual controversy that accompanies race cases because Supreme Court nominee Sonia Sotomayor sat on the 3-judge panel that approved the city's decision to discard the test.
Ricci, however, is far more complicated than its critics acknowledge. And while Justice Kennedy's vote will likely determine the ultimate outcome of the case, Kennedy's prior stances in race cases could lead him to vote for or against the City of New Haven. Contrary to the politicized discourse surrounding Ricci, the law in this area (and many others) is broad enough to support more than one "correct" conclusion.
Title VII and Disparate Impact
The plaintiffs contend that New Haven violated Title VII (a federal employment discrimination statute) when it scrapped the test results. Title VII bans discrimination by certain employers (including states and municipalities) on the basis of race, sex, religion, and national origin. Congress passed the statute as part of the Civil Rights Act of 1964. Title VII prohibits employment practices that discriminate by purpose or effect.
If the employer uses explicit race-based policies, the case is easy. The more contested area of law, however, involves "neutral" policies that disparately affect members of a particular group. These neutral policies could include aptitude tests or physical endurance requirements for certain jobs. Title VII provides that if a plaintiff can prove that a neutral policy discriminates against a particular class, then the defendant must show that the job requirement serves a "valid" employment goal. Even if the job requirement serves a valid employment goal, the plaintiff can still argue that this goal is attainable with less discriminatory measures or that the employment goal is pretext for discrimination.
Disparate Impact and Ricci
The City of New Haven does not deny that its decision to discard the test was a "race conscious" measure. The city, however, argues that it invalidated the test in order to avoid liability under the impact standard utilized in Title VII cases. An expert witness testified that other tests could have identified qualified individuals with less discriminatory results. The trial judge credited this testimony.
Second Circuit precedent supports the rejection of the plaintiffs' claim. Specifically, in Hayden v. County of Nassau, the Second Circuit held that the defendant's decision to pick from among 25 different tests the test that had the smallest disparate impact on black workers did not violate the statutory or constitutional rights of white and Latino plaintiffs. As the court explained, employers do not violate Title VII when they use policies that seek to avoid the very patterns that courts have deemed illegal under the statute.
Beginning in the 1960s, opponents of Title VII argued that it would cause employers to use quotas. When Congress amended the law in the 1990s to reinstate the impact test (which the Supreme Court had eviscerated) critics described the proposed law as a "quota bill," and President Bush vetoed an initial version of the law (which looks remarkably similar to the enacted version). Now, however, some conservatives have argued that the City of New Haven had no legitimate interest in avoiding liability under Title VII. If the law is indeed a quota statute, then the city presumably has a good argument on the liability issue.
Kennedy, Race and Affirmative Action
The plaintiffs also argue that the City of New Haven violated the Equal Protection Clause of the Fourteenth Amendment. Hayden rejected an Equal Protection claim; accordingly, the Second Circuit ruling seems sound as compared to law within the circuit.
Justice Kennedy has largely opposed the use of race for social policy. Nevertheless, Kennedy has argued that defendants do not violate the constitution by embracing "neutral" policies even if they are "conscious" of race when they do so. In other words, if a governmental defendant wants to minimize the anticipated racial impact of a particular policy, it could, cognizant of this goal, design new policies that seek to lessen the racial effects of its neutral policies. The fact that the defendant considered race, however, would not render the policy decision unconstitutional. This logic separated Kennedy from the conservatives in Parents Involved v. Seattle School District No. 1.
In Parents Involved, a closely divided (5-4) Court invalidated policies used by Seattle, Washington and Jefferson County, Kentucky designed to preserve racial balance in public schools. The 4 conservatives argued that maintaining racial balance was not a "compelling" interest. Kennedy strongly disagreed and wrote a separate opinion to state his objection. Kennedy, however, agreed with the conservatives and argued that the schools' policies where not "narrowly tailored" because race was an explicit part of the diversity plans. Kennedy preferred a "race conscious," but "race neutral" approach. He argued that the school districts could redesign zones and build new schools with racial diversity in mind:
If the employer uses explicit race-based policies, the case is easy. The more contested area of law, however, involves "neutral" policies that disparately affect members of a particular group. These neutral policies could include aptitude tests or physical endurance requirements for certain jobs. Title VII provides that if a plaintiff can prove that a neutral policy discriminates against a particular class, then the defendant must show that the job requirement serves a "valid" employment goal. Even if the job requirement serves a valid employment goal, the plaintiff can still argue that this goal is attainable with less discriminatory measures or that the employment goal is pretext for discrimination.
Disparate Impact and Ricci
The City of New Haven does not deny that its decision to discard the test was a "race conscious" measure. The city, however, argues that it invalidated the test in order to avoid liability under the impact standard utilized in Title VII cases. An expert witness testified that other tests could have identified qualified individuals with less discriminatory results. The trial judge credited this testimony.
Second Circuit precedent supports the rejection of the plaintiffs' claim. Specifically, in Hayden v. County of Nassau, the Second Circuit held that the defendant's decision to pick from among 25 different tests the test that had the smallest disparate impact on black workers did not violate the statutory or constitutional rights of white and Latino plaintiffs. As the court explained, employers do not violate Title VII when they use policies that seek to avoid the very patterns that courts have deemed illegal under the statute.
Beginning in the 1960s, opponents of Title VII argued that it would cause employers to use quotas. When Congress amended the law in the 1990s to reinstate the impact test (which the Supreme Court had eviscerated) critics described the proposed law as a "quota bill," and President Bush vetoed an initial version of the law (which looks remarkably similar to the enacted version). Now, however, some conservatives have argued that the City of New Haven had no legitimate interest in avoiding liability under Title VII. If the law is indeed a quota statute, then the city presumably has a good argument on the liability issue.
Kennedy, Race and Affirmative Action
The plaintiffs also argue that the City of New Haven violated the Equal Protection Clause of the Fourteenth Amendment. Hayden rejected an Equal Protection claim; accordingly, the Second Circuit ruling seems sound as compared to law within the circuit.
Justice Kennedy has largely opposed the use of race for social policy. Nevertheless, Kennedy has argued that defendants do not violate the constitution by embracing "neutral" policies even if they are "conscious" of race when they do so. In other words, if a governmental defendant wants to minimize the anticipated racial impact of a particular policy, it could, cognizant of this goal, design new policies that seek to lessen the racial effects of its neutral policies. The fact that the defendant considered race, however, would not render the policy decision unconstitutional. This logic separated Kennedy from the conservatives in Parents Involved v. Seattle School District No. 1.
In Parents Involved, a closely divided (5-4) Court invalidated policies used by Seattle, Washington and Jefferson County, Kentucky designed to preserve racial balance in public schools. The 4 conservatives argued that maintaining racial balance was not a "compelling" interest. Kennedy strongly disagreed and wrote a separate opinion to state his objection. Kennedy, however, agreed with the conservatives and argued that the schools' policies where not "narrowly tailored" because race was an explicit part of the diversity plans. Kennedy preferred a "race conscious," but "race neutral" approach. He argued that the school districts could redesign zones and build new schools with racial diversity in mind:
These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible. . . .Executive and legislative branches . . . should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decision maker considers the impact a given approach might have on students of different races. Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly.The analysis for Kennedy will center on whether the decision to discard the test after the results were publicized amounts to "a crude system of individual racial classifications" or whether it simply represents a race conscious but permissible effort to minimize the impact of laws on particular racial groups. Although it is hard to predict how Kennedy will vote, I believe that he will vote to reverse the ruling. Whenever race looks overt, rather than covert, Kennedy gets queasy - even if the two types of racial decision making are not materially distinct.
No comments:
Post a Comment