Dear Walter and Linda and Emily (welcome!),
The Supreme Court has just handed down Ricci, the New Haven, Conn., firefighters case. Justice Anthony Kennedy, writing for a 5-4 court, finds a violation of Title VII. The city loses, and the white and Hispanic firefighters win. Here is the opinion.
This is not the narrow decision some had hoped for. Writes Kennedy:
We conclude that race-based action like the City's in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold standard.
Justice Scalia concurs, writing:
I join the Court's opinion in full, but write separately to observe that its resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution's guarantee of equal protection?
Justice Alito concurs to scold the dissenters for their recitation of the facts. And Justice Ginsburg, who read her dissent from the bench this morning, writes that context matters:
The white firefighters who scored high on New Haven's promotional exams understandably attract this Court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them. New Haven maintains that it refused to certify the test results because it believed, for good cause, that it would be vulnerable to a Title VII disparate-impact suit if it relied on those results. The Court today holds that New Haven has not demonstrated "a strong basis in evidence" for its plea. … In so holding, the Court pretends that "[t]he City rejected the test results solely because the higher scoring candidates were white." … That pretension, essential to the Court's disposition, ignores substantial evidence of multiple flaws in the tests New Haven used.
What does all this mean for cities going forward, and what does it mean for disparate impact—the part of Title VII that prevents employers from basing hiring or promotions on screening that eliminates candidates from one racial group, absent a business necessity?
What does it mean for Judge Sonia Sotomayor's upcoming confirmation hearings? Her Republican critics were fondly hoping that her logic would be rejected today. As Sen. John Cornyn said last week: "The court's decision, I believe, will tell us a great deal about whether Judge Sotomayor's philosophy ... is within the judicial mainstream or well outside of it." Looking forward to everyone's thoughts.