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
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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:

Adarand Constructors v. Pena

Richmond v. J.A. Croson Co.

Equal Employment Opportunity Commission

EEOC on Employment Testing

U.S. Judiciary: Chief Justice John Roberts Issues 2008 Year-End Report

John Roberts, Chief Justice of the United States, issued a 2008 year-end report on the judiciary.

In his 2008 year-end report, the Chief Justice devoted significant time in detailing the judiciary branch’s work to control its costs in light of the economic woes in the United States. The way that the Judiciary branch seeks to achieve cost savings are in the ares of rent (19% of the Judiciary’s $6.2 billion appropriation), personnel (51%) [Essentially, the Chief Justice stated that the Judiciary will seek to do more work without an increase in the number of employees and will rely more on term (1 to 2 year) law clerks rather than career law clerks), and information technology (5%).

Moreover, the Chief Justice stated that, for 2009, the Supreme Court submitted a budget that did not request new spending. Even with that budget, a behind schedule renovation project is still within its budget.

The Chief Justice also mentioned the issue of judicial pay. But unlike previous reports, the Chief Justice emphasized the discussion on the receipt of a cost-of-living adjustment, or COLA, which every federal employee received except judges (Note: see related post here).

I can agree with the COLA argument. Because judge pay cannot be reduced under the U.S. Constitution (Article III, section 1), even with the delay I still support annual Congressional approval of Judiciary COLAs.

However, I question the Chief Justice’s statement about the judiciary’s need for the “best of the best” lawyers to be judges (the chief Justice did not define what constitutes the “best of the best”). Certainly, those nominated to be judges should be intellectually capable. I do not believe however that only those who attended Ivy League-level law schools or achieved a perfect 4.0 GPA in law school are the only ones who possess the requisite intellect.

A judge must possess humane reason and then sufficient intellect in order to apply the merciless law. If a person misses an installment contract payment, a furniture company should not be allowed to confiscate all of a customer’s furniture bought from the store (see Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965). The circuit court did not allow the enforcement of the contract on a theory of unconscionability)? Strict application of law can produce unsatisfactory results.

In terms of judicial pay, I think that the level of pay must reflect the level of decisionmaking power of the judge, while recognizing that that the taxpayer can only afford to pay salaries of a certain level. I think the federal taxpayer has made a good decision in the compensation of judges. However, judicial members and nominees must possess the motivation to serve the public and taxpayer; the person that does not possess this motivation does not belong on the bench regardless of the person’s level of intellect.

In the appendix to the report, the Chief Justice provides an explanation of the workload of the judiciary. I will focus on the Supreme Court’s workload.

2005

2006

2007

Filings

8521

8857

8241

In forma pauperis

6846

7132

6627

Paid docket

1671

1723

1614

Cases:

argued

87

78

75

disposed

82

74

72

signed opinions

69

67

67