The Supreme Court Breakfast Table
Emily, Linda, and Dahlia:
This case went off the rails when this litigation was launched in medias res. No promotion decisions had been made. Having decided not to certify the test results, the city's civil service board—had it not been for this litigation—would have next proceeded to determine how decisions would be made for this round of promotions, then applied those new criteria to those seeking promotion. What those criteria would have been and who would or would not have been promoted are completely unknowable.
Given that no one had been promoted and no one had been denied promotion, it's very hard to see how the firefighters who brought suit were able to establish the very first element of a Title VII action: the existence of an "adverse employment action."
In addition to satisfying the statute, it would have been far better for the process to judge New Haven actions after promotion decisions were actually made using whatever new standards the city chose to adopt. Completing the process would have shed light on the question of whether there were in fact equally good (or perhaps, better) criteria for determining promotions, and with far less racial disproportion. The city might have adopted a fine new race-neutral set of criteria that seemed fair to all, like using the assessment center approach of which Emily writes. Or, on the other hand, the city might have resorted to a terrible promotion plan that clearly used race in an unlawful way—like rescoring the test to add points to the scores of individuals depending on the race of the individual test-taker.
Which takes us to the fact that Justice Kennedy's opinion relies in part on a
logically flawed, categorical error. He writes: "If an employer cannot rescore a test based on the candidates' race [citing the Title VII provision], then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates. ... "
This is wrong. There is a very powerful difference between setting aside the results of a test based on what you learn from general racial statistics about those who took the test, on the one hand, and adjusting individual test scores on the basis of race, on the other. The first does not require any official determination of any individual's race; one needs nothing more than a general impression of the racial composition of the group as a predicate for taking action. The second—adoption of a unlawful, race-based remedy such as racial rescoring of tests—requires the government to make an official determination of each person's race (and to benefit or burden the person on the basis of that determination).
Using race to identify a problem has never before been considered problematic. It is what necessarily happens before institutions adopt the most widely accepted race-neutral actions, like using admissions criteria for every applicant that have less of a racial impact (for example, accepting students in the top 10 percent of their high-school class, which, in states like Texas, would produce a racially diverse student body). Contrary to Kennedy's assertion, deciding not to use test results should be far less problematic than "rescoring based on race."
Here, all New Haven did was set aside the results of a test. It seems to me that test would have been very hard to defend, given the other questionable employment rules that surrounded it. New Haven counts the multiple-choice test as 60 percent of what determines promotion. That places twice the weight on test-taking as the median for firefighter promotions around the country. How can that unusually great a weight be justified?
Kennedy says only that it was insisted upon by the union. Yep. That was two decades ago, when the union was dominated by the white firefighters. That so great a weight should necessarily be given to a multiple-choice test used to pick leaders out of a group of qualified firefighters is hard to see. A young law professor friend of mine, a very brainy former Supreme Court law clerk, says in an e-mail to me, "I'm pretty certain that if given a chance to prepare I could totally ace the firefighters multiple choice exam—and I'm the last person in the world you would want leading the charge into your burning house."
But in any event, we, and the court, have no way of knowing whether the plan New Haven would have come up with would have seemed better or worse that the system it first undertook to use.
This was thus an improvident and aggressive grant of review by the court, not an "unsought responsibility." The courts should have said, "Let's wait at least until a city has finished its promotion process and taken some adverse employment action before we weigh in."
But then there would have been less to talk about.
Walter Dellinger is a partner at O’Melveny & Myers in Washington, D.C. He filed one of the amicus briefs on behalf of a group supporting gay marriage. The views expressed here are his own.