SPSSI Member Commentary
Faye Crosby Responds to Supreme Court Ruling in Ricci v DeStefano
SPSSI member Faye Crosby of the University of California, Santa Cruz recently authored a commentary on the Supreme Court’s decision in Ricci v DeStefano; a discrimination case in which white firefighters argued that they had been unfairly denied promotions when the city of New Haven, Connecticut threw out an advancement test after too few minorities performed well on the material. The high court’s decision directly rejects an argument to the contrary previously supported by President Obama’s new Supreme Court nominee Sonia Sotomayor. Faye Crosby’s piece will be available shortly on the SPSSI web site’s policy page, as well.
Commentary on Ricci v DeStefano
Author: Faye Crosby
Affirmative action occurs whenever an organization takes measures to make sure that both genders and all racial groups are treated equally. Of course, the measures must be legal. Over the last four decades a great deal of energy has been expended on battles over the legality of various affirmative action measures. The most recent Supreme Court decision related to affirmative action was handed down on June 29, 2009, in the case Ricci v DeStefano, popularly known as the New Haven firefighters case. Although the majority decision in the case never uses the words affirmative action, the case clearly concerns affirmative action.
Many observers awaited the decision with grim anticipation. Some had feared that the decision in the case could spell the end of affirmative action in employment: an extremely conservative decision might have enjoined employers from ever taking racial classifications into account. Others feared that the decision might weaken affirmative action by declaring invalid or illegal the types of statistical analyses that are at the heart of affirmative action as inaugurated in 1965 by Lyndon Johnson’s Executive Order 11246.
It is my view that the Ricci decision has not dealt a crippling blow to affirmative action in employment. Instead, the decision may be seen as a sort of stay of execution. Given the likely composition of the Court in the next period of time, it seems probable that employers will have to make some pin-pointed changes in how they enact affirmative action measures, but sweeping changes are not on the horizon.
The aim of this brief paper is to help non-experts quickly grasp what is at stake in the Ricci case and to understand some of the most important implications of the June 29, 2009 decision. I offer a few observations that may interest employers seeking to comply with the law as newly articulated. My conclusions are based on implicit comparisons between the present decision and other affirmative action decisions reached by the Court.
Some legal concepts must be understood by anyone who wishes to make sense of the Ricci case. The first is the distinction between constitutional law and statutory law. A violation of statutory law is much less far-reaching and serious than a violation of constitutional law.
Concerning discrimination on the basis of race or any other characteristic acquired at birth, the Fourteenth Amendment to the Constitution includes an Equal Protection Clause that prohibits discrimination. Also, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating and notes that employers cannot fulfill their obligation to be non-discriminatory by having practices that appear on their face to be neutral but in reality favor one group over another. In 1971, in the case of Griggs v. Duke Power Co., the Supreme Court sharpened the point by drawing a distinction between disparate treatment and disparate impact. An employer who engages in disparate treatment treats the groups differently. An employer who gives health care insurance to men but not women would, for example, be engaging in disparate treatment. Disparate impact can occur even when treatment appears, on the face of things, to avoid distinctions. An employer who offers to pay for all prostate surgery and no hysterectomies regardless of an employee’s sex would not be liable for disparate treatment discrimination but would be liable in terms of disparate impact. Discrimination that is due to bone fide business necessity is not unlawful. If, for example, a job can be done only by someone who is over 6 feet tall, the employer is not liable for the disparate impact that arises from a height-requirement. If a job can only be done by someone who has knowledge of various materials (demonstrated via a standardized test), then the employer is not violating the law by requiring that workers take the test, even if the percentages of people passing the test are imbalanced along racial or gender lines – assuming, of course, that no other test would allow the employer to gauge knowledge without producing the same racial or sex disparities.
The final concept that is helpful is stare decisis: the rule of precedence. Current Court rulings should conform to the principles articulated in prior Court rulings, and future rulings should conform to past and present rulings. Obviously, vague rulings often impose less constraints on future justices than do very precise rulings.
History of Events in New Haven
The City of New Haven hired an employment firm to develop tests for promotions in its Fire Department. By agreement with the union, the City mandated that the tests would have a written component – which counted 60% of the final score – and an interview component – which counted 40%. The firm went through an elaborate process to develop and administer the tests.
In November and December, 2003, 118 candidates sat for exams to fill seven vacant captain positions and eight vacant lieutenant positions. According to City policy, any position was to be filled according to rankings on the graded tests, with the provision that the successful candidate was to be selected from the top scorers on the relevant test. Thus, the captain positions were to be filled with someone in the top 9 scorers and the lieutenant positions with someone in the top ten.
When the exams were scored, a problem became manifest. The pass rate for the tests was racially skewed: for the lieutenant test, approximately 60% of whites passed, but only 30% of African Americans and 20% of Hispanic test-takers. Similar imbalances occurred with the test for promotion to the position of captain. Had the positions been filled on the basis of the tests, whites would have filled all eight lieutenant positions and five captain positions, with Hispanic candidates filling only two positions. Although six black candidates passed the examination for lieutenant and three passed the examination for captain, no black candidate scored high enough to join the top ranks of those to be appointed.
Noting the imbalance in rates of passing and its legal responsibility to avoid disparate impact, the City asked its Civil Service Board (CSB) to hold hearings. In 2004, the CBS held five public hearings. After the hearings, two members of the CBS voted against certification, and two voted in favor, while the last member was recused. Thus the test results were not certified, and the men who would have gained promotion did not.
Seventeen white firefighters and one Hispanic firefighter, all of whom had high marks on the test, then filed suit in the Federal District Court of Connecticut. The Court denied the suit on summary judgment. The plaintiffs appealed the decision, and the Appellate Court (including Judge Sotomayor) upheld the decision, noting that the City acted lawfully to avoid disparate impact even though it had not pin-pointed the source of the imbalance (e.g., the specific questions) or identified other selection methods that would have produced less disparity.
The plaintiffs then appealed to the Supreme Court on both statutory grounds (as a violation of the 1964 Civil Rights law) and constitutional grounds (as a violation of the equal treatment clause of the 14th amendment). The Supreme Court, in a 5-to-4 decision, overturned the decision of lower courts on statutory grounds and did not opine about whether the city’s actions violated the constitution.
A Closer Look At the Opinions
The majority decision was penned by Justice Kennedy and joined by Justices Roberts, Scalia, Thomas, and Alito. Two concurring opinions agreed in whole with the decision and elaborated on some additional points. The dissent was written by Justice Ginsburg and joined by Justices Stevens, Souter, and Beyer.
Majority Decision. The majority decision asserted that the City decided not to certify the exam results solely because of racial disparity and therefore solely on racial grounds. Thus, no matter how well intentioned, the City engaged in disparate treatment. The central question, according to the majority opinion, was whether the liability of disparate impact permitted the City to engage in disparate treatment.
After acknowledging that the City was caught in a difficult situation where certification opened it to liability in terms of disparate impact and refusal to certify opened it to liability in terms of disparate treatment, the opinion noted: “Courts often confront cases in which statutes and principles point in different directions. Our task is to provide guidance to employers and courts for situations when these two prohibitions
could be in conflict absent a rule to reconcile them” (p. 20). The resolution came through the articulation of a new principle: “We hold,” said the decision, “that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action” (p. 26).
The majority opinion focused attention on several points. The opinion acknowledged that the pass rate for both exams did show disparities that are impermissible according to the EEOC. But, said the opinion, aside from the statistics of adverse impact, the City of New Haven failed to show that the exam was faulty or inappropriate. Nor, said Kennedy, did the City demonstrate that an alternative existed which could have produced less imbalance. Kennedy also chided the City for what he saw as a cavalier approach to data, going into some detail about how the City “turned a blind eye” to information that supported the arguments of the pro-certification faction.
Concurring Opinions. Justice Scalia wrote a brief separate opinion stating “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?” (p. 1)
Jutice Alito wrote and opinion joined by Justices Scalia and Thomas. Wrote Alito: “The Court holds—and I entirely agree—that concern about disparate-impact liability is a legitimate reason for a decision of the type involved here only if there was a ‘substantial basis in evidence to find the tests inadequate’” (p. 2). Alito’s opinion goes into detail about the actions of various political players in New Haven in order to rebut the minority opinion claim that the CSB’s process was open, honest, and fair.
Minority Opinion. Justice Ginsberg wrote the dissenting opinion, and it was joined by Justices Stevens, Souter, and Breyer. The minority opinion was dismayed by the majority’s failure to note the back-drop of persistent racism in fire departments including that of New Haven. The minority opinion drew attention to the fact that in other cities (e.g., Bridgeport CT), promotions were based on tests that produced less imbalance than the New Haven system. At the base of the problem, noted Ginsburg, was the City’s decision to give inappropriate importance to the written test, a decision reached primarily due to pressure from the union. The minority decision noted: “The strong-basis-in-evidence standard, however, as barely described in general, and cavalierly applied in this case, makes voluntary compliance [with the stricture against disparate impact] a hazardous venture” (p. 23). Agreeing with the majority view that the “strong basis in evidence” rule is a novel, Ginsburg wondered why the Court broke with the ordinary practice of allowing lower courts to apply any new rule to the case at hand and, instead, applied the new rule itself to the City of New Haven.
Observations and Implications
Seen in the context of other decisions about race, what aspects of the present decision seem particularly striking? Several observations strike me as important for policy makers and analysts. In addition, employers may also wish to take one particular implication of the present case. Other scholars might produce a different list than mine of important items.
Compared to cases decided in 2003 and 2007 – the most recent affirmative action cases – the present majority opinion appears mild in its language and restrained in its philosophical pronouncements. The majority decision goes out of its way to disagree with some of the more extravagant claims of the petitioners. Specifically, the majority opinion characterizes as overly restrictive the petitioners’ claim that an employer must be in actual violation of disparate impact before using disparate impact as a defense (p. 21). The majority decision also explicitly states that the law allows employers to be race-conscious as they develop tests for hiring and promoting employees. Also absent from the majority opinion, the concurring opinions and the minority opinion is the kind of barbs that Justices flung at each other in the two most recent affirmative action cases. Nowhere in the present majority decision or either of the concurring opinions is there evidence of the sarcasm and vitriol for which Justice Scalia is known or of the sweeping intolerance of opinions that differ from his own that has sometimes been associated with Justice Thomas.
The moderate tone of the opinions might be due in part to the fact that the Ricci case deals with employment issues rather than education. The two most recent sets of decisions concerned the University of Michigan (2003) and school desegregation (Parents Involved, 2007), and both of these decisions evidenced more passion than earlier decisions concerning employment issues. The moderate tone of the majority decision might also be related to the fact that Kennedy was its author. Kennedy was quite moderate in the Parents Involved decision, agreeing with the plurality decision (written by Chief Justice Roberts) that the school districts had erred but disagreeing with the principle, articulated by Roberts, that the constitution prohibits schools from categorizing students along racial grounds.
Consistent with the moderate tone was the circumscribed nature of the decision. The petitioners had presented their challenge on both constitutional and statutory grounds. And, as mentioned above, one possible outcome of the case might have been a declaration that it is unconstitutional for employers to differentiate among employees on the basis of racial characteristics – even if the differentiation is intended to correct disparate impacts. That the Court side-stepped the constitutional issues is extremely important and may signal a lack of consensus on the issue among the justices who formed the majority.
While the majority decision was circumscribed in the sense of refusing to pronounce on constitutional issues, it was otherwise rather broad and vague. The decision offers no guidance about how an employer is to determine whether its decisions that involve disparate treatment have or do not have a sufficiently strong basis in evidence to withstand legal challenge. Nor, in fact, is it entirely clear of what there may be sufficient evidence. Justice Alito refers to evidence that tests are inadequate, while Kennedy refers to evidence of disparate impact liability. Scalia and Ginsburg agree that the present majority ruling simply postpones the day of reckoning about what corrective measures are or are not permissible.
For the moment, the Court seems to have reached an impasse on the question of whether the Civil Rights laws of 1964, 1972, and 1990 comply with the constitution. Conservatives find the statues to be in violation of the Fourteenth amendment. Liberals disagree. Justice Kennedy seems to find fault more easily than liberals do with how organizations put into action programs intended to fulfill civil rights obligations; but he does not question that such programs must exist.
The ambiguities of the present decision may leave employers scratching their heads and worrying about how to comply with the law. My reading of the opinions leads me to offer, albeit tentatively, one piece of advice. When an employer is using standardized assessments to decide whom to hire and whom to promote, the employer needs to differentiate between two distinct phases in the process: the phase of developing appropriate measures of assessment and the phase of implementing the assessment techniques that have been developed. During the former phase, it makes sense to pay close attention to the racial impact of the assessments, finding solid answers to questions such as: do women benefit from the assessment as much as men? Do people of color and white people benefit equally? During the later phase, the less explicit attention drawn to race, the better.
When circumstances do not allow an organization to sequence the development and deployment of standardized assessment measures, the organizations might pay close attention to the expectations that it fosters in its employees. It might warn employees about what is and is that they are rightful due. Had the City of New Haven warned candidates that their promotions rested on the exams proving themselves to be unbiased and balanced as well as on their relative ranking on the exam, it seems likely that the Ricci case might have had a different outcome.