In thinking about Ricci, the New Haven firefighter case, I think it may help to shift our focus from "symmetry" to "entitlement." That's how this complicated case has been framed in the public discussion: The firefighters who studied for the test and passed it are said to have been deprived, because of New Haven's purportedly discriminatory reaction to the racially disparate results of the exam, of the promotions to which they were entitled.
Now, entitlement is a powerful concept. The frequent fliers who paid to join the now-defunct Clear Traveler program and who learned yesterday that not only will they no longer get to jump the airport security line but that they will not even get their money back are deprived of something to which they were entitled. But all they have is a breach of contract claim—not a discrimination suit because, of course, everyone who joined the program is in exactly the same place—namely, out of luck. So why does the New Haven case speak to many people so powerfully?
The white (and Hispanic) firefighters who passed the test were not, in fact, entitled to be promoted—under New Haven's "rule of three," they were entitled to be "considered" for promotion, and some number of them would in fact not have been promoted because there were more successful test-takers than there were available promotion slots. The claim of Barbara Grutter in the University of Michigan Law School affirmative action case was a good deal more attenuated than that. Neither she nor any other applicant could really claim entitlement to be admitted to the law school—all they could claim was to be considered on their merits and to have their merits fairly evaluated against those of some thousands of other applicants, many of whom were destined to go away disappointed.
So to understand the Ricci case, I think we have to recognize that "entitlement" is not a particularly useful point of entry. The black test-takers who failed were, of course, entitled to be evaluated by means of an exam that was validly job-related, in that it actually tested the skills actually necessary to perform as an officer in the fire department and not some other set of skills that it might be nice to have. That's basic Title VII law, and that's the nub of this case. Once the disparate results were known, the burden shifted to New Haven to show that the test was a valid one. New Haven had some reason to think that it couldn't meet that burden, and the lower courts agreed, applying settled 2nd Circuit precedent in this area. Title VII contains a single command: Don't discriminate in employment. Simple enough. But in application, it can get complicated, because disparate impact raises the specter of discrimination, which in some instances can be dispelled only by taking race into account in a way that can itself suggest discrimination. So what's an employer to do, and what is a reviewing court to do? The legal principles are, in fact, quite clear. Applying them to the messy facts of real cases is a delicate business—and there has not been much delicacy or nuance in the way the Ricci case has been discussed.
We'll see tomorrow or Monday whether the Supreme Court is up to the challenge. Walter started off our Breakfast Table conversation by talking about "harmonic convergence." I think it's more like a perfect storm. See you tomorrow.