The Frank Ricci Indecision

July 07, 2009

On Monday, June 29, 2009 the U.S. Supreme Court ruled for the plaintiffs, a group of white firefighters, in the case of Ricci v. DeStefano. According to the Court, New Haven, Connecticut violated Title VII of the Civil Rights Act of 1964 in throwing out the results of a promotion examination. The Court, as is customary in cases in which other claims are decisive, did not consider the question whether New Haven’s behavior violated the Equal Protection Clause of the Fourteenth Amendment.

New Haven had administered the test to 118 firefighters, 25 of whom were black. None of the blacks qualified for promotion to the 15 available positions, while all 20 of the white (including Hispanic) plaintiffs did. Black firefighters who had failed the examination threatened to sue New Haven if it considered the test in making promotion decisions. Their suit would be based on the statute’s disparate impact provision.

It was the disparate impact provision that Pat Buchanan and others had in mind when they accused President George H. W. Bush of having signed a quota bill when he agreed to revisions of the “64 Civil Rights Act in 1991. The elder Bush’s critics said that if employers knew they could be successfully sued for using any measure that disproportionately excluded black applicants, they would seek measures that included proportionate shares of black applicants. That is, they would tacitly follow a quota system.

The facts of Ricci v. DeStefano vindicate Bush’s critics. Shot through American employment law is a requirement that favored minorities be proportionately successful; most applicants who are rejected in cases like this are not so fortunate as to have the legal resources upon which the New Haven firefighters involved in this case could draw. The people who said that Buchanan was race-baiting by making this point now must consider that the Supreme Court has agreed that in this perfectly predictable disparate-results case, the firefighters suffered illegal treatment.

But not unconstitutional treatment. At least, that is how the Court’s opinions read. The Court did not reach the issue of the constitutionality of New Haven’s decision to throw out the test results because, it said, Title VII banned New Haven’s action. How could Title VII simultaneously ban New Haven from throwing out the test results and ban use of promotion criteria that have disparate impacts on different ethnic groups? Because Anthony Kennedy wrote the decisive opinion in the case.

Since the early 1970s, when President Richard Nixon appointed Lewis Powell to the Court, there has been at least one justice who specialized in “moderate” behavior, in writing “non-ideological” opinions. From Powell through Sandra O”Connor to Kennedy, in other words, there has been at least one justice who specialized in never writing a clear opinion that gave applicable guidance to lower courts charged with the task of employing the Court’s reasoning in succeeding cases.

Kennedy said in Ricci that before a government institution could throw out a promotion criterion with a disparate impact, it must have a “strong basis in evidence” that a disparate-impact lawsuit was likely. In other words, it must have good reason to think that if it came to that, Anthony Kennedy would favor the government’s action. Consider yourself a judge on an inferior federal court. Would you find that guidance useful?

Likely not. That is why the head of the New Haven black firefighters” organization said in the New Haven newspaper on Tuesday that he was considering bringing suit against New Haven if it made promotion decisions on the basis of the examination and promoted an all-white group of firefighters to captain and lieutenant. New Haven taxpayers should at some point send Justice Kennedy a token of their thankfulness to him for the burden of ongoing litigation of the matter that they seem certain to have to bear.

The winning attorney in the case, in common with some of the white firefighters, spoke to the media after the Court’s ruling was announced. In different ways, they said that in America, whether an injured party was white, Hispanic, or black was immaterial. These statements reflected the social consensus in the United States. One hopes that someday, they will reflect the law.

New Haven Mayor John DeStefano’s response more accurately reflected thinking in the reigning precincts of the Democratic Party. “Today there is a natural tendency to count winners and losers,” the Hartford Courant had him saying. “I have no doubt that the firefighters who brought the lawsuit genuinely felt that they played by the rules, that they did nothing wrong and that they were egregiously wronged. I also have no doubt that there is another group of firefighters today who feel that the rules are constantly stacked against them and that when they finally do start to get ahead, the rules get changed.”

In other words, maybe the victorious 20 “feel” that they were mistreated, but observers should be equally concerned for the firemen who had come to expect proportionate promotion regardless of examination performance. Each is a “feeling,” a merely visceral response. DeStefano’s understanding of the situation remains that it is wrong to apply a neutrally derived examination on a neutral basis.

James Antle wrote at The American Spectator that this case “exposed the extent to which anti-discrimination laws, intended to protect all Americans regardless of color or creed, can be used by the politically connected to discriminate.” There is nothing new about this, of course. It was perfectly predictable. Since it was predictable, one might hazard the guess that it was intended. And, in one more way, one might ask what exactly the Bush dynasty was good for.