A Reversal to the Right
The Supreme Court rules in favor of the white firefighters and shows that its willing to make its own law.
When the conservative-dominated Supreme Court ruled 8-1 in favor of upholding Section 5 of the Voting Rights Act, and 8-1 to strike down a school’s decision to strip search a 13-year-old middle school student in a search of drugs last week, it seemed certain that the Supreme Court planned to lower the hammer in the Ricci case, the Title VII employment discrimination case involving New Haven firefighters. It was a fair expectation that the court would, at some point, assert its more conservative self.
And Monday’s decision in Ricci v. DeStefano doesn’t disappoint. It’s an enormously important decision, not only for the parties in the case, but because of what it reveals about the willingness of the Supreme Court’s conservative majority’s to take arbitrary steps to fashion the results it seeks. The city of New Haven believed that it was acting in accordance with Title VII of the Civil Rights Act of 1964 when it refused to certify the firefighters’ promotion exam that produced starkly disparate results along racial lines, far more racially disparate than the results of previous firefighter promotions’ exams. None of the black firefighters would have qualified for a promotion.
The city of New Haven believed that certifying the result of the exam would make it vulnerable to a Title VII suit filed by minority firefighters. The district court and the court of appeals affirmed that the city officials had acted within the scope of applicable employment discrimination law. The Supreme Court, guided by a sense that white firefighters were entitled to promotions, said that it “search[es] for a standard that strikes a more appropriate balance.” In other words, they looked for a standard that would produce a result more in keeping with the majority’s sense of fairness.
The new standard, announced by the Supreme Court, is that clear, disparate impact is not enough for an employer to take race conscious actions as the city of New Haven did in this case, when it refused to certify the promotion exams, even if that action is not aimed at a single person. Instead, an employer must show that “there is a strong basis in evidence of disparate-impact liability.”
Had the Court stopped here—with the establishment of a new standard for determining whether a municipal employer can make race conscious employment decisions in order to address racial disparities in hiring or promotion—it still would have been a blow to voluntary efforts to remedy discrimination in public sector employment. But the Supreme Court goes much further. It takes the extraordinary step of making the factual determination that there was not “a strong basis in evidence” to justify the city of New Haven’s actions.
This is not a case in which the facts overwhelmingly lead to one obvious conclusion. (Read Justice Samuel Alito’s concurrence and Justice Ruth Bader Ginsburg’s dissent in this case, to have a sense of how differently the fact in this case can be viewed.) The district judge—who had an opportunity to weigh the credibility of the witnesses and to hear the testimony firsthand—should have been given the opportunity to assess the hotly contested facts of this case in light of the court’s new standard. But this might not have produced the result the conservative majority wanted. Rather than remand the case to the district court to apply the new legal standard to the facts, the Supreme Court imposes its own assessment of the facts.