The Supreme Court Breakfast Table
Emily, Linda, and Dahlia,
I'm working my way toward dealing with the theory of the Ricci opinions, but for now I have a more immediate question about what the court's opinion means: How dependent is the result on the fact that the test had already been given? Can the city of Bridgeport decide not to use a test like New Haven's because of the New Haven results? Can New Haven now immediately vote that it will not use that same test next year, acting on the basis of the record it assembled when it decided not to certify the results of this year's test? Is that an impermissible "race-based decision?"
The one thing that is clear is that something changes once the city has "made clear" its selection criteria. The relevant passage in Justice Kennedy's majority opinion reads as follows:
Nor do we question an employer's affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee's legitimate expectation not to be judged on the basis of race.
So whatever latitude the court is giving employers to undertake "affirmative efforts to ensure that all groups have a fair opportunity," that latitude shrinks considerably at the point at which "employers have made clear their selection criteria." It is plain that the court believes that some kind of entitlement attaches once individuals have taken a test (or even earlier when promotion criteria have been chosen). That may not have very much to do with race, but it could have a potentially significant effect on both public and private employers wholly beyond race. What other litigation can be brought by job or promotion applicants who argue that they had a vested entitlement in the employer's previously selected criteria?
More to come.
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.