Archive
Ricci v. DeStefano: A Review of the Amicus Curiae Briefs
[4/2/09 Note: Since this post was published, more amicus briefs came in for the respondent. The briefs are available at the American Bar Association website (linked below)]
Most of the amicus curiae briefs submitted for the Ricci v. DeStefano case are for the petitioner (Ricci, et. al.). The briefs are generally unhelpful because they presume facts not helpful to help to resolve issues in the Ricci case. One brief adds a much-needed discussion of Connecticut civil service law.
I categorize each amicus brief below.
14th Amendment: Equal Protection Clause
Joe Oakley [Memphis police officers with a similar case]
Summary of argument: Cancelling civil service promotions process [not certifying test results] because the test results indicated that not enough minority candidates qualified for promotion is contrary to the 14th Amendment’s Equal Protection Clause.
Comment: Oakley’s argument is not exactly accurate (test certification does not guarantee promotion). See my previous post here for more information. Additionally, simply certifying the test results on administrative law grounds-the reason provided was not sufficient to prevent test certification-would solve the case and avoid unnecessary entanglement with the Constitution and Title VII.
Concerned American Firefighters Association
Summary of argument: similar to Oakley’s argument.
National Association of Police Officers
Summary of argument: Ricci case represents race-based decision-making which is contrary to the 14th Amendment’s Equal Protection Clause.
Mountain States Legal Foundation (brief here)
Summary of argument: similar to the argument of the National Association of Police Officers.
Claremont Institute Center for Constitutional Jurisprudence
Summary of argument: Racial preferences that are not tailored to remedy past wrongs are always discriminatory. Strict scrutiny must apply to New Haven’s race-based decision not to certify the test results.
Comment: I question the sincerity of this brief. This amicus brief severely edited a statement of Frederick Douglass to support its argument: “Everybody has asked the question . . . “What shall we do with the Negro?” I have had but one answer from the beginning. Do nothing with us! . . . . All I ask is, give him a chance to stand on his own legs! . . . . If you will only untie his hands, and give him a chance, I think he will live.” See Frederick Douglass (Jan. 26, 1865), “What The Black Man Wants,” 4 The Frederick Douglass Papers 59, 68-69 (J. W. Blassingame & J.R. McKivigan eds., 1991).
[Note: The amicus brief's severe edit of Douglass was inspired by Justice Clarence Thomas's dissent in Grutter v. Bollinger.]
The complete statement of Frederick Douglass: ‘”What shall we do with the Negro?” I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are wormeaten at the core, if they are early ripe and disposed to fall, let them fall! I am not for tying or fastening them on the tree in any way, except by nature’s plan, and if they will not stay there, let them fall. And if the Negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! If you see him on his way to school, let him alone, don’t disturb him! If you see him going to the dinner table at a hotel, let him go! If you see him going to the ballot- box, let him alone, don’t disturb him! [Applause.] If you see him going into a work-shop, just let him alone,–your interference is doing him a positive injury. Gen. Banks’ “preparation” is of a piece with this attempt to prop up the Negro. Let him fall if he cannot stand alone! If the Negro cannot live by the line of eternal justice, so beautifully pictured to you in the illustration used by Mr. Phillips, the fault will not be yours, it will be his who made the Negro, and established that line for his government. [Applause.] Let him live or die by that. If you will only untie his hands, and give him a chance, I think he will live. He will work as readily for himself as the white man. A great many delusions have been swept away by this war. One was, that the Negro would not work; he has proved his ability to work. Another was, that the Negro would not fight; that he possessed only the most sheepish attributes of humanity; was a perfect lamb, or an “Uncle Tom;” disposed to take off his coat whenever required, fold his hands, and be whipped by anybody who wanted to whip him. But the war has proved that there is a great deal of human nature in the Negro, and that “he will fight,” as Mr. Quincy, our President, said, in earlier days than these, “when there is reasonable probability of his whipping anybody.” [Laughter and applause.]‘
Summary of argument: “New Haven’s decision to reject the promotional test results was a racial classification that should be subject to strict scrutiny.” The amicus suggested that the Court to order the district court on remand to use the “strong evidentiary basis” standard in Shaw v. Hunt, 517 U.S. 899 (1996) to determine whether New Haven can demonstrate a compelling state interest due to fearing Title VII liability.
Quota
Kedar Bhatia [College student, owner of dailywrit.com]
Summary of argument: The district court erred in not applying strict scrutiny to the Civil Service Board’s decision not to certify the test results based on the race of the test passers. Bhatia argued that the New Haven’s consideration of the racial distribution of test passers was an inappropriate criterion for obtaining valid test results. Bhatia considered the system similar to a quota system, which the court has ruled against.
Comment: The failure to certify the test affected the test passers who are White, but the decision not to certify arguably did not occur because the test passers are White. Moreover, no quota system was involved. The city merely did not certify the test results. The passing rates were not determined by membership in a particular race.
Intentional Discrimination
Center for Individual Rights, Center for Equal Opportunity, and the American Civil Rights Institute (brief here).
Summary of argument: New Haven’s decision not to hire is intentional discrimination.
Comment: The test involved in Ricci was for promotion eligibility, the test takers were already firefighters.
The brief also cited New Haven’s argument at the test certification hearing as proof of intentional discrimination. A party can argue what it likes within the rules of evidence but that does not mean it will be accepted. The most significant development is the action of the civil service board, not the arguments of the parties.
Title VII-Job-related tests that are properly validated should not have results overturned because of post-test Title VII adverse impact claims
CATO Institute, Reason Foundation, Individual Rights Foundation (brief here)
Summary of argument: CATO’s brief focused “on the practical problems and skewed incentives that naturally follow a decision allowing employers to justify race-based
discrimination merely because valid exams produce racially disparate results.”
Title VII-No preemption of state and local law
Pacific Legal Foundation and the Center for College Affordability and Productivity (brief here)
Summary of argument: Court decisions demonstrate that Title VII does not preempt state and local anti-discrimination laws.
Title VII
Summary of argument: New Haven’s refusal to certify does not violate Title VII when based on a reasonable belief that the test may violate Title VII disparate impact provisions.
Comment: New Haven should have evaluated the test’s possible violation of Title VII disparate impact provisions during the test validation stage not after administering the test.
Connecticut civil service rules
Bridgeport Firefighters for Merit Employment, Inc.
Summary of argument: Ricci case represents threat to Connecticut’s civil service merit system. The civil service merit system was created to prevent hiring and firing of public employees from being influenced by political factors.
Comment: This case adds valuable case law discussion of Connecticut state law not present in the Ricci case documents.
The Futility of “Colorblindness” (Part 7): Ricci v. DeStefano–Court’s Insistence on Blindly Enforcing “Colorblindness” Is Unjust
The underlying story of the Ricci v. DeStefano case is the idea that Whites are experiencing discrimination like non-White people endure. The courts pick up this theme through confidently supporting supposedly even-handed “colorblindness” without mentioning the superior position of the White race.
This leads to the situation in which there is “colorblindness” in theory, yet injustice to non-Whites in fact.
Examination of the U.S. Census for New Haven, Connecticut (city) and Connecticut at large demonstrates that regardless of the arguments asserting anti-White bias, political power still remains with the White race.
| New Haven, CT (city) | ||
|
Race |
Percentage of population (%) |
Number |
| White |
43.5 |
53,723 |
| Black |
37.4 |
46,181 |
| Native American |
0.4 |
535 |
| Asian |
3.9 |
4,819 |
| Note: Total population: 123, 626.
Source: http://www.census.gov. |
||
| Connecticut | ||
|
Race |
Percentage of population (%) |
Number |
| White |
81.6 |
2,780,355 |
| Black |
9.1 |
309,843 |
| Native American |
0.3 |
9,639 |
| Asian |
2.4 |
82,313 |
| Note: Total population: 3,330,717.
Source: http://www.census.gov. |
||
Regardless, the Court in the Ricci case will likely mention the population in New Haven and neglect the reality of the majority (and power) of the White race in Connecticut and the United States.
DCPS: A Comment on Chancellor Michelle Rhee and Her Private Foundation Supporters
The Washington Post reports that Chancellor Michelle Rhee seems to have secret benefactors who are willing to pay public school teachers extremely generous pay increases unknown in the educational field. While teachers rightfully deserve that money for the vital job that they do, one always must consider the reasons for the magnificent generosity from private donors. This is especially true for donors seeking anonymity.
This secrecy is problematic. In some of my other posts, I covered some of Ward Connerly’s initiative fights. He too has secret benefactors. The secrecy demands result from the need to protect the business interests and the reputation of the benefactor from the backlash of supporting politically unpopular proposals. The Equal Justice Society published a report on a lawsuit against Connerly that required him to disclose his donors behind his Proposition 209 effort in California [Note: For more about Ward Connerly's money sources, see the website bigmoneyconnerly.com (link in blogroll in left column)].
Rhee’s donors suspiciously have the same request, which leads me to presume that the source of her largess is from the same conservative foundations seeking to undermine public education for charter schools. An example of my concern is the presence of the Walton Family Foundation.
The Walton Family Foundation, created in 1987 by the late Sam Walton, founder of Wal-Mart, has invested heavily in nonunion charter schools, and critics say many of its contributions reflect an agenda that promotes privatization of public education. Blew told Education Week that the foundation is “totally agnostic” about whether a school is public, private or charter, as long as it is effective.
Chancellor Rhee’s actions with these foundations must be carefully monitored.
Relevant foundations to keep an eye on: Bradley Foundation (articles here,) and the DeVos Foundation.
Post script
For more information, consider these articles here, and here.
For more information on the publicly known foundations [Note: no connection implied with the conservative foundations described in the post above], see the following:
Ricci v. DeStefano: A Comment on the Opinion of Judge Jose Cabranes & “Colorblindness”
The Second Circuit’s critique, led by Judge Jose Cabranes, of the District Court’s decision in the Ricci v. DeStefano case is troubling. The test result certification hearing that instead became a test validation hearing is being used as a catalyst for an unjust colorblindness jurisprudence as established in Supreme Court Justice John Marshall Harlan’s dissenting opinion in Plessy v. Ferguson.
The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.
A certain segment of the Second Circuit believes that the mere involvement of race no matter how tenuous requires a searching examination, presumably towards enforcing strict colorblindness.
Neutral administration and scoring-even against the backdrop of race-conscious design of an employment examination (citation omitted)-is one thing. But neutral administration and scoring that is followed by race-based treatment of examination results is surely something else entirely.
The city board’s decision not to certify involved discussion of issues related to race, but did not impugn the racial identity of the aggrieved firefighters. What the city of New Haven essentially did was to hold an administrative proceeding which essentially was a test validation hearing occurring during a test results certification hearing. Judge Cabranes noted that the discussion of racial issues related to testing criteria is permitted if it was a test validation proceeding. Thus, the proper argument would state that the city of New Haven wrongly held a test validation hearing after the test was administered (and was verified by its contractor, as required under the New Haven’s request for proposal). Judge’s Cabranes’s assertion that the city was acting against the test results because too many white firefighters passed is inappropriate.
The judicial claim to the purity of the theory of colorblindness is sullied by the reality of the distribution of societal power which has been concentrated in one racial category-Whites-as Harlan noted in his dissent in Plessy in 1896.
Indeed, in one sense-common humanity-the races are equal. But it would be erroneous to conclude that that common humanity is equal to the equal distribution of power, an error in the Supreme Court’s decisions in Adarand, Croson, and perhaps soon in Ricci.
Moreover, the social power of Whites that Harlan spoke of in his dissent still exists.
United States (population: 281,421,906 (2000 Census)
| Race | Percentage of population | Number |
| White | 75.1% | 211,460,626 |
| Black | 12.3 | 34,658,190 |
| Native American | 0.9 | 2,475,956 |
| Asian | 3.6 | 10,242,998 |
Ricci v. DeStefano: Test Results Should Be Certified; Application of Racial Quota Cases Inappropriate
The Ricci v. DeStefano case involves an issue of human expectation denied and how to correct it. I think, however, that arguing that the unfairness is based on the race of the test takers is extreme and unfair. The sole question should only be whether the city’s civil service board acted appropriately in denying the certification of the test results. Unfortunately, because of an ill-timed test validation hearing within the certification hearing, the case has become a symbolic case against racial quotas, a situation that is not presented in the case.
The full fact situation for the Ricci case in the District Court of Connecticut is here.
In summary, the facts for Ricci are as follows. In March 2004, the New Haven Civil Service Board (CSB) declined to certify the results for two exams which would have generated lists of eligible persons that could qualify for a promotion to be a captain or Lieutenant of the New Haven Fire Department.
The plaintiffs are 17 White candidates and 1 Hispanic candidate who took the promotional exams, which they passed. The plaintiffs did not receive a promotion in part because the CSB did not certify the test results (passing the test alone does not guarantee promotion).
The district court granted summary judgment for the defendants.
Ultimately, the Ricci case is one of fairness, not race, as asserted by some on the Second Court of Appeals. The test results should be certified, but not for the reasons asserted by some on the Second Circuit or the Supreme Court (see the Questions Presented here and here). The plaintiffs are asserting that they took a test for which there is a result, and, thus, they argue that those test results should be certified. The defendants appear to have discovered after the test was developed, that the test that their contractor prepared was not what they wanted. So, in an attempt to cancel the test and redo the test, the defendants brought up concerns about Title VII.
Unfortunately, the City of New Haven acted too late. The hearing which was described in the district court’s opinion should have occurred when the test was being developed and not at the certification hearing.
Moreover, the review process that the contractor for the city’s department of human resources (DHR) followed is problematic. However, it appears that the DHR left it to the contractor to determine how to develop the test. This was a mistake. The defendants should have identified what they wanted for the test in the RFP as well as DHR review of the test before approving it for use as the promotional test. This process was not done in this case. The request for proposal asked for a test to be written and validated by the contractor. Then the DHR would administer that test.
Thus, the test results should be certified unless the test itself violated Title VII (not shown in the facts of the Ricci case), not that someone could potentially file a claim.
However, I strenuously disagree with the approach of certain members of the Second Circuit. The abhorrent racial quota cases cited by the Second Circuit (Adarand, Croson) are extremely out of context and not on point for the Ricci fact situation (employment testing).
Related links:
Ward Connerly: Possibly Abandoning Anti-Affirmative Action Campaign to Work on Sentencing Reform
In the Colorado Independent, Ward Connerly indicated the possibility that he will no longer work on anti-affirmative action initiatives. This decision may have been influenced by the defeat of the ACRI proposal in Colorado.
In addition, the Ballot Initiative Strategy Center (BISC) has produced a website critiquing the financial relationship between Connerly & Associates and the American Civil Rights Institute. BISC also identifies a reason for the campaigns–Connerly essentially is sponsoring the initiative as a from for large contracting companies that seek to prevent any other competitor from getting state contracts. I have long suspected the authenticity of Ward Connerly’s campaign (primarily his funding comes from right wing organizations). The information from BISC serves as strong confirmation.
Moreover, citizen driven initiatives are not generally popular east of the Mississippi. Many states require initiatives to be approved by the legislature before going to the ballot. Also, Mr. Connerly essentially has exhausted the supply of those states that have citizen driven initiatives.
Perhaps the drive to eliminate affirmative action is not as salient as it once was. In most of the states where the initiative was proposed, there are relatively few non-Whites who could use the programs. This means that any affirmative action program would have little effect on the White majority. Certainly no social power would be transferred to the non-White group.
It is just as well that Ward Connerly finds another issue to pursue.
ACRI Ballot Initiative (Colorado, Nebraska): Anti-Affirmative Action Amendment 46 Is Narrowly Rejected by Voters; Nebraska Voters Approve Anti-Affirmative Action Initiative 424
Despite promoting a “Super Tuesday for Civil Rights,” in five states (Colorado, Nebraska, Missouri, Arizona, and Oklahoma), the anti-affirmative action initiative from the American Civil Rights Institute (ACRI) only made it onto the ballots in Colorado and Nebraska. [Note: Please search under "Colorado" or "Nebraska" to find my previous posts on this subject.]
Election day produced a surprising result in Colorado and an expected result in Nebraska.
In Colorado, Amendment 46, sponsored by the ACRI, was narrowly defeated at the polls. The result was NO (50.7% or 1,061,396 votes), YES (49.3 or 1,033,865 votes).
I predicted that the ballot initiative would pass in Colorado. Because it has not, I am happy to eat my words.
However, in Nebraska, a similarly worded initiative as Colorado’s, was approved by voters. Initiative 424′s vote result was YES (58% or 389,372 votes), NO (42% or 287,233 votes). This result was the one I predicted.
Ward Connerly states in the Colorado Independent that he may abandon the drive to end affirmative action to campaign for reforming the use of mandatory minimum sentencing.
Affirmative Action: Study from the Center for Economic Opportunity Flawed
According to The Arizona Daily Star, The Center for Equal Opportunity (CEO) produced a report suggesting that non White applicants to law schools in Arizona get a supposedly unfair advantage over White applicants. Unfortunately, reality presents a different story. As a result, CEO’s report is a polemical document which should be discarded.
The study compares median Law School Admission Test (LSAT) scores and the median grade point average (GPA) in 2006 and 2007 among applicants in different racial classifications. The CEO study presents the difference in the numbers in the charts.
However, the study is flawed because the study neglects to present how many applicants were in each racial classification to the reader. I suppose that if this was done, it would eliminate the need to publish the report at all.
The study allows for the assumption that White and non White applicants apply in the same numbers to Arizona law schools, but the non White applicants get accepted more into the law school with significantly lower scores.
The reality of the situation is that Whites dominate the applicant pool. As a result, most of the accepted students are White. Therefore mere comparison of median LSAT scores and GPAs is inadequate.
The 2000 census for Arizona shows that the overwhelming numbers of residents are White (leading to the presumption that most of the applicant pool and accepted candidates are White as well).
Arizona (population: 5,130,632 (2000 Census) [NOTE: high number of "some other race"])
| Race | Percentage of population | Number |
| White | 75.5% | 3,873,611 |
| Black | 3.1 | 158,873 |
| Native American | 5.0 | 255,879 |
| Asian | 1.8 | 92,236 |
In addition, a columnist states that the public universities in Arizona are not particularly selective. [Note: See my previous post on this subject.] This is not a bad thing because I believe the highest goal for a public university is to provide access to learning to its residents so that they can gain employment to become a responsible state taxpayer as well as provide goods and services to other state residents.
Furthermore, the legal profession is generally a White one.
Considering the truth of the reality ignored by the CEO study presented above, the reader should easily dismiss the polemical arguments of Roger Clegg and the Center for Equal Opportunity.
Post script: I generally take a dim view on the high regard given to admission standarized test scores. The scores are given a undeservedly high status. The LSAT does not directly relate to the actual activities required for law school and legal practice. My criticism is the same for the SAT as well.
ACRI Ballot Initiative: Update–Ballot Proposal Only on Ballot in Colorado and Nebraska
The ballot proposal of the American Civil Rights Institute (ACRI) first proposed in five states (Colorado, Nebraska, Missouri, Arizona, and Oklahoma), is only only the ballot in two states (Colorado and Nebraska) [Note: I have covered the ballot proposals extensively in previous posts. Search on Ward Connerly in the search box in the left column].
This is a surprising, yet excellent development. The U.S. Census clearly demonstrates that the ACRI proposal is not needed, given the profound White majority in the United States.
Media Transparency: Zealously Uncovering the Right Wing’s Activities
