Supreme Court rules 5-4 for Frank Ricci / against Sonia Sotomayor

Swing Justice Anthony Kennedy's majority opinion is fairly narrow, yet broader and braver than my prediction that he'd merely send it back down for retrial on the facts. It's a sizable defeat for the Obama Administration and their Supreme Court nominee.

Perhaps the most striking element of Kennedy's majority opinion is that he never portrays this as the hard, complicated case as the media have been telling everybody. The Supreme Court says: Look at the facts and you'll see this case is a slam dunk.

In effect, Kennedy's ruling implies that what happened to Frank Ricci was such a stinkbomb of blatant disparate treatment on the basis of race that the Supremes don't have to deal all that much yet with the fundamental issue that (as Scalia notes in his concurring opinion) banning Disparate Impact and banning Disparate Treatment are logically and empirically contradictory. Still, the majority casts a jaundiced eye on how much credence they'll give the Disparate Impact talisman that mere statistical disparity between races is prima facie evidence of illegal discrimination.

What we need now is a case that directly challenges the EEOC's Four-Fifths Rule. It's on rockier ground today than yesterday.

Kennedy says, in effect, you just can't do what Mayor DeStefano did to Frank Ricci -- yank the rug out from under him after he took the test because you didn't like the racial results -- at least not without a "strong-basis-in-evidence" that you'd lose a minority plaintiff's disparate impact discrimination lawsuit. And if the facts resemble the facts in New Haven, Kennedy announces, then this here Supreme Court says you won't lose that lawsuit; so don't throw Ricci's test results out. Capisce? (Warning: This here Supreme Court likely to be replaced by a more Obamaesque Supreme Court in not-too-distant future.)

As commenters on this site, have pointed out, the real question is why this modest and perfectly reasonable response to an egregious injustice was merely 5-4 rather than 9-0?

AP reports:

The Supreme Court has ruled that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could alter employment practices nationwide, potentially limiting the circumstances in which employers can be held liable for decisions when there is no evidence of intentional discrimination against minorities.

"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them." [Madame Justice is being disingenuous -- New Haven has promoted "acting" fire captains and lieutenants of the politically preferred races.] Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday.

The Supreme Court ruled (my apologies for the semi-illegibility of the following -- the Supreme Court doesn't seem to know much about HTML yet -- UPDATE - I've cleaned the text up a lot, but not completely):

All the evidence demonstrates that the City rejected the test results because the higher scoring candidates were white. Without some other justification, this express, race-based decision-making is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. ...

Thus, the Court adopts the strong-basis-in-evidence standard as a matter of statutory construction in order to resolve any conflict between Title VII’s disparate-treatment and disparate-impact provisions. ...

(c) The City’s race-based rejection of the test results cannot satisfy the strong-basis-in-evidence standard. ...

(i) The racial adverse impact in this litigation was significant, and petitioners do not dispute that the City was faced with a prima facie case of disparate-impact liability. The problem for respondents is that such a prima facie case—essentially, a threshold showing of a significant statistical disparity, ... and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the test results. ...

That is because the City could be liable for disparate-impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. ... Based on the record the parties developed through discovery, there is no substantial basis in evidence that the test was deficient in either respect. ...

(ii) The City’s assertions that the exams at issue were not job related and consistent with business necessity are blatantly contradicted by the record, which demonstrates the detailed steps taken to develop and administer the tests and the painstaking analyses of the questions asked to assure their relevance to the captain and lieutenant positions. The testimony also shows that complaints that certain examination questions were contradictory or did not specifically apply to firefighting practices in the City were fully addressed, and that the City turned a blind eye to evidence supporting the exams’ validity. ...

(iii) Respondents also lack a strong basis in evidence showing an equally valid, less discriminatory testing alternative that the City, by certifying the test results, would necessarily have refused to adopt. Respondents’ three arguments to the contrary all fail. First, respondents refer to testimony that a different composite-score calculation would have allowed the City to consider black candidates for then-open positions, but they have produced no evidence to show that the candidate weighting actually used was indeed arbitrary, or that the different weighting would be an equally valid way to determine whether candidates are qualified for promotions.

Second, respondents argue that the City could have adopted a different interpretation of its charter provision limiting promotions to the highest scoring applicants, and that the interpretation would have produced less discriminatory results; but respondents’ approach would have violated Title VII’s prohibition of race-based adjustment of test results ...

Third, testimony asserting that the use of an assessment center to evaluate candidates’ behavior in typical job tasks would have had less adverse impact than written exams does not aid respondents, as it is contradicted by other statements in the record indicating that the City could not have used assessment centers for the exams at issue. Especially when it is noted that the strong-basis-in-evidence standard applies to this case, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) statements in the record. ...

(iv) Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability. ...

... reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, and ALITO, JJ., joined. SCALIA, J., filed a concurring opinion. ALITO, J., filed a concurring opinion, in which SCALIA and THOMAS, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined.

Reading through Kennedy's majority opinion, it appears to be a slapdown of Sotomayor's Second Circuit Court of Appeals, combined with some wishy-washiness to not rule out Disparate Impact in less obviously egregious situations. Kennedy opines:

Our analysis begins with this premise: The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the exami-nation results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified.” ... (respondents’ “own arguments . . . show that the City’s reasons for advocating non-certification were related to the racial distribution of the results”). Without some other justification, this express, race-based decision making violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. ...

The District Court did not adhere to this principle, however. It held that respondents’ “motivation to avoid making promotions based on a test with a racially disparate impact . . . does not, as a matter of law, constitute discriminatory intent.”

And the Government [i.e., the Obama Administration] makes a similar argument in this Court. It contends that the “structure of Title VII belies any claim that an employer’s intent to comply with Title VII’s disparate-impact provisions constitutes prohibited discrimination on the basis of race.” ... But both of those statements turn upon the City’s objective—avoiding disparate-impact liability—while ignoring the City’s conduct in the name of reaching that objective. Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action. ...

But Kennedy doesn't want to abolish "voluntary" quotas, so he shoots down Ricci's attorney's ambitious claim:

Forbidding employers to act unless they know, with certainty, that a practice violates the disparate-impact provision would bring compliance efforts to a near standstill. Even in the limited situations when this restricted standard could be met, employers likely would hesitate before taking voluntary action for fear of later being proven wrong in the course of litigation and then held to account for disparate treatment.

But Kennedy realizes Disparate Impact leads to de facto quotas and he doesn't want that or at least he doesn't want de facto quotas to be too obvious:

Allowing employers to violate the disparate-treatment prohibition based on a mere good-faith fear of disparate-impact liability would encourage race-based action at the slightest hint of disparate impact. A minimal standard could cause employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination. That would amount to a de facto quota system, in which a “focus on statistics . . . could put undue pressure on employers to adopt inappropriate prophylactic measures.” ... Even worse, an employer could discard test results (or other employment practices) with the intent of obtaining the employer’s preferred racial balance. That operational principle could not be justified, for Title VII is express in disclaiming any interpretation of its requirements as calling for outright racial balancing. ... The purpose of Title VII “is to promote hiring on the basis of job qualifications, rather than on the basis of race or color.”

So, what magic formula does Kennedy come up with? I'm still reading, so I'll let you know...

All right, Kennedy's formula for balancing the bans on disparate treatment and disparate impact is called "strong-basis-in-evidence:"

The same interests are at work in the interplay between the disparate-treatment and disparate-impact provisions of Title VII. Congress has imposed liability on employers for unintentional discrimination in order to rid the work-place of “practices that are fair in form, but discriminatory in operation.” ... But it has also prohibited employers from taking adverse employment actions “because of” race. ...

Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers’ voluntary compliance efforts, which are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination. ... And the standard appropriately constrains employers’ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation.

In other words, employers can't pull the rug out from under employees after they've taken the test, as happened to Ricci et al, unless the employer has a "strong-basis-in-evidence" for believing the they would lose a disparate impact lawsuit, which, according to the Supreme Court, New Haven did not.

For the foregoing reasons, we adopt the strong-basis-in-evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII.

The word "any" in that sentence sounds optimistic: in general, fighting disparate impact against NAMs and fighting disparate treatment against whites are inextricably opposite actions.

Kennedy spends some time explaining what his decision doesn't do:

Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. As we explain below, because respondents have not met their burden under Title VII, we need not decide whether a legitimate fear of disparate impact is ever sufficient to justify discriminatory treatment under the Constitution.

Interestingly, Kennedy treats the EEOC's Four-Fifth's Rule as merely "a rule of thumb for the courts."

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. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed ..., and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race. ...

I can see how Ginsburg could be sore about this. Kennedy is being ingenuous by reading the 1991 Civil Rights Act naively. After all, the Democratic majority that passed the 1991 Civil Rights Act enshrining Griggs' disparate impact theory may have "declaimed" racial preferences in public, but the whole point of the legislation was to provide racial preferences by tipping the balance between Type I and Type II errors in favor of legally preferred groups.

Kennedy goes on:

The problem for respondents is that a prima facie case of disparate-impact liability—essentially, a threshold showing of a significant statistical disparity, ... and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results. That is because the City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt. ... We conclude there is no strong basis in evidence to establish that the test was deficient in either of these respects.

... There is no genuine dispute that the examinations were job-related and consistent with business necessity. The City’s assertions to the contrary are “blatantly contradicted by the record.” ...

If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

Petitioners are entitled to summary judgment on their Title VII claim, and we therefore need not decide the underlying constitutional question. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

In other words, Judge Sotomayor, Welcome to the Big Leagues. Sorry about throwing that 98 mph fastball right under your chin. Too bad that your shiny new uniform got all covered with dirt when you hit the deck.

Justice Scalia points out the bigger issue in a concurring opinion:

JUSTICE SCALIA, concurring.

I join the Court’s opinion in full, but write separately too bserve that its resolution of this dispute merely post-pones 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? The question is not an easy one. ...

The difficulty is this: Whether or not Title VII’s disparate-treatment provisions forbid “remedial” race-based actions when a disparate-impact violation would not otherwise result—the question resolved by the Court today—it is clear that Title VII not only permits but affirmatively requires such actions when a disparate-impact violation would otherwise result. ... But if the Federal Government is prohibited from discriminating on the basis of race, ... then surely it is also prohibited from enacting laws mandating that third parties—e.g., employers, whether private, State, or municipal—discriminate on the basis of race. ... As the facts of these cases illustrate, Title VII’s disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes. That type of racial decision making is, as the Court explains, discriminatory....

To be sure, the disparate-impact laws do not mandate imposition of quotas, but it is not clear why that should provide a safe harbor. Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end? Surely he would. Intentional discrimination is still occurring, just one step up the chain. Government compulsion of such design would therefore seemingly violate equal protection principles. ...

The Court’s resolution of these cases makes it unnecessary to resolve these matters today. But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them.

My suggestion for how to make peace between Disparate Impact and Equal Protection of the Laws:

Ecrasez I'infame!

So, we'll see have to wait and see just how spineless the GOP Senators really are when they get a chance to go after Sotomayor over Ricci v. DeStefano.

Once again, allow me to recommend that the GOP Senators in the Sotomayor hearings call Mayor DeStefano as a witness to beat up on him over the injustice he personally did to Frank Ricci, an injustice upheld, fortunately only temporarily, by Judge Sotomayor. If they are too sensitive to ask tough questions of the Wise Latina, they can ask them of the not so wise white guy.

My published articles are archived at iSteve.com -- Steve Sailer