On Monday, the Supreme Court found that the City of New Haven, CT was guilty of “intentional discrimination” in throwing out the results of a promotion exam because of the lack of diversity of those passing. Namely New Haven placed the demands of unspoken minorities ahead of the seventeen whites and one Hispanic who passed. It is, to my mind, the first ever case of intentional reverse discrimination to win favor before the high court.
Brief History of the Case
Ricci began winding its way to the Supreme Court almost immediately upon completion of the examinations for Captain and Lieutenant issued by the New Haven Fire Department in November/December 2003. The passage rate was 53% overall for the Captain’s exam and just 44% overall for the Lieutenant’s exam. Due to the prevailing civil service regulations within New Haven, not a single one of the nine black firefighters who passed the test would be eligible for promotion as there simply were not enough vacancies.
At the hearings of the Civil Service Board in January-March 2004, despite the fact that most speakers at these hearings (including the firefighters themselves, the representatives of the company that designed the test, and even a competitor of that company) stated that the test did not create a disparate impact as defined by Title VII of the Civil Rights Act, the board split 2-2 on the vote to certify the test and promote those who passed according to the civil service rules of New Haven.
Firefighter Frank Ricci and seventeen others filed suit against the City of New Haven and Mayor John DeStafano, claiming that, in denying them promotion, the city had intentionally discriminated against them solely because of their race. The city, of course, continued to defend their actions by saying that the certification of the exams and promoting under the civil service rules would leave them vulnerable to lawsuits from the black firefighters passed over for promotion.
Amazingly, and without so much as a hearing, both district court judge Janet Bond Atherton and a panel of three appellate judges found in favor of the city, issuing summary judgements for New Haven. While the appellate court later withdrew the summary order, their per curiam decision in favor of New Haven was hardly any better, being only eight sentences long and referencing no case law whatsoever.
After a hearing by the full appellate court was denied, the plaintiffs appealed to the Supreme Court, which granted certiorari.
The Supreme Court’s Ruling
Given the dearth of arguments and case history up to this point, it is a wonder that the Supreme Court was able to make heads or tails out of the mess left them by the Second Circuit.
In order to legally do what New Haven did, Justice Kennedy states that they would have to show strong evidence of disparate impact. In other words, the city must show that the test itself was rigged to eliminate black candidates from achieving promotions. Yet the city never disputed that the tests were fair and business related. The record of the Civil Service Board and earlier records related to the design of the test show that New Haven believed that these tests provided a fair measure of the knowledge that senior management must have. That is until New Haven got unexpected results!
New Haven also contended that alternatives existed that were less-discriminatory, and that the presence of these alternatives justifies their intentional discrimination. They maintained that the 60/40 weighting of the written exam was arbitrary. Yet, this weighting, Justice Kennedy points out, was the result of negotiations between the city and the firefighter’s union. So, obviously, at some point, someone reasonably believed that this weighting was reasonable and appropriate. (Indeed, the city’s contention that a 30/70 weighting of the written examination was necessary before a black candidate would be eligible for promotion strikes me as an arbitrary weighting based on after the fact results; much like the practice of grading on a curve). New Haven further maintains that it could have “banded” the results to make more blacks eligible under the “Rule of Three” provisions of the civil service codes. However, banding would also have been a violation of Title VII and, therefore, would not have been a valid solution.
Justice Kennedy’s conclusion puts it best: “The record in this litigation documents a process that, at the outset, had the potential to produce a testing procedure that was true to the promise of Title VII: No individual should face workplace discrimination based on race. Respondents thought about promotion qualifications and relevant experience in neutral ways. They were careful to ensure broad racial participation in the design of the test itself and its administration. As we have discussed at length, the process was open and fair. The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the City’s refusal to certify the results. The injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the City had established for the promotional process. Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe.”
Justice Antonin Scalia’s concurring opinion takes his colleagues to task for their refusal to rectify Title VII’s disparate impact discrimination with the Fourteenth Amendment, requiring equal treatment. Indeed, it is obvious from this case that New Haven was willing to apply a different, harsher, and openly discriminatory standard to white candidates in the name of equality. As Justice Scalia points out Title VII not only allows, but, indeed, actively requires racial discrimination by telling employers that they must consider the racial consequences of their actions.
Indeed, if you ask me, Scalia’s showing a great deal of sympathy for New Haven. He seems to be saying that New Haven correctly interpreted Title VII as requiring them to openly discriminate against the best candidates for promotion. In doing so, New Haven would run afoul of the Fourteenth Amendment. Scalia points out that Title VII quite possibly creates several equal protection violations: first, it is obvious that Title VII’s disparate impact provisions create a de facto quota system since the system is rigged to produce a racially acceptable result. Second, the Fourteenth Amendment requires that government treats citizens as individuals. However, Title VII overlooks the individual in favor of group definition based on race, gender, etc.
What The Decision Says About Anti-Discrimination Policy
I believe that Justice Scalia is right to point out we, as a country, may have moved the pendulum of discrimination too far in the wrong direction. It is hard to see how Title VII’s apparent endorsement of discrimination comports with the Constitution or, frankly, how it has not become the My Lai of the litigation world (“we had discriminate in order to destroy discrimination”).
The absurdity of current discrimination laws is shown in Ricci. Consider New Haven’s predicament. I do not doubt that they believed that they had a legitimate concern over lawsuits, but it is hard to see how this concern justifies active discrimination not in favor of minorities per se, but in favor of one group of minorities in particular! Consider further that in discrimination lawsuits, the defendant is considered guilty until proven innocent. In other words, had New Haven been sued under Title VII disparate impact provisions, the burden of proof would be on New Haven to prove that it did not discriminate, not on the plaintiff to prove otherwise! This is ass backwards of how our judicial system is supposed to run!
Therefore, is it any wonder that New Haven risked the wrath of white firefighters who, it must be admitted, are far less likely to sue historically than the onslaught of not only black firefighters “passed over” for promotion, but potentially the entire black civil rights industry and a fair portion of the citizenry of New Haven? Of course not! What is surprising is that the Supreme Court granted certiorari on a reverse discrimination case in the first place!
For years, the Right has passed along anecdotal tales of qualified white candidates being passed over for promotion by less qualified minority candidates. These tales are used as proof that the Left means to destroy liberty through the promotion of victimization and vengeance. At the same time, the Left has vilified these tales as apocryphal tripe meant to incite and inflame a fundamentally racist party! Both caricatures have some merit; the tales are meant to incite and the Left does promote a culture of paternalism. But, conservatives are certainly no more racist than liberals are honestly trying to destroy liberty itself.
With Ricci, the Right has, possibly for the first time, hard evidence that reverse discrimination is occurring! They have evidence that even the most race-neutral test known to mankind will be thrown out if the results are either a)not predetermined to provide the “correct” racial outcome or b)thrown out when the unexpected happens (i.e. the “correct” racial outcome does not occur). Ricci opens up a whole Pandora’s Box of nightmares for conservatives, especially with a liberal Congress and President in power!
For the Left, it presents a different set of issues. First off, a total of eleven liberal judges not only failed to stop blatant racial discrimination, but actually appeared to endorse it through their collective failure to seriously consider the plaintiffs’ arguments in Ricci. Secondly, I think that it seriously harms the judicial activist bent of the Democratic Party, which is currently veiled in the polite sounding term “sympathy for the common man.” One could argue that Scalia’s concurrence fires a huge shot across the bow of judicial activism. Title VII, as interpreted by the courts, is extraconstitutional. By taking what was a legitimate Constitutionally-valid reform of American society and twisting it into what has become legalized racism, Title VII has gone beyond anything that our Republic envisioned.
But, what about for the average American? I think that most of us try to live up to Martin Luther King’s challenge to judge each individual by the “content of their character, not the color of their skin.” However, discrimination law, particularly in employment and education, has become so convoluted that it is difficult to imagine that we are not judged (positively or negatively) to some degree by the color of our skin! New Haven judged both sides by the color of their skin. Imagine what it must feel like to know that your promotion was not earned, it was given solely on the basis of what you looked like on the outside. On the other hand, would you want to work for an employer who refused to promote based on merit! I sure as hell wouldn’t.
But, this is the system that Title VII (and Title IX in the education realm) has apparently put in place. How can anyone not feel a little resentful and angry when they are passed over for promotion or denied entry into a top flight college or university! In our quest for racial harmony, our government has stated that judging people by the color of their skin is not only permissible, but actively encouraged provided that the skin color is a darker shade than white! In doing so, our government has inadvertently prolonged racism in our society! It is no longer the overt racism of burning crosses and public lynchings, but the soft racism of quotas and preferences designed to emphasize not quality of character but race itself as if race, not character, is something to be valued above all else!
And Ricci does nothing to correct these flaws. Instead, it now places employers in the untenable position of being able to be sued by everyone and anyone who feels slighted!