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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2 thoughts on “Ricci v. DeStefano: A Comment on the Opinion of Judge Jose Cabranes & “Colorblindness”

  1. Hear! Hear! Keep an eye on him. Being an academic scholar woefully (when one has the authority/ power seat of a Judge), does not guarantee that one also scores high in the area of humanity.

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  2. I have read the oral arguments and various amicus briefs and do not believe the issues have been parsed out in the discussion. It is not that we should not consider the potential for adverse impact on minority candidates in employment testing; the real question is when we should consider it. HR professionals are, or should be, fully aware of the different personnel selection testing methods and their potential for adverse impact. A first year student should know that a written test of specific knowledge and general abilities coupled with top-down selection will almost certainly result in adverse impact on blacks and hispanics. If diversity was a goal, they should have tested other constructs or used a different testing method. At any rate, they should have completed a validation study to support the use of the test to show it was job-related and consistent with a business necessity. To act surprised at the results after the test was administered is ridiculous. Once an organization chooses to use a test and opens a competitive examination, the candidates participate in good faith. To refuse to refer someone for promotion based on their race is a case of disparate treatment. The language is that race was a determining factor in an employment decision, which is a decision to refer someone for hire, transfer, promotion… Surely intentional discrimination is worse than using a test that is facially neutral but has an adverse impact on some groups. At any rate, malpractice is no excues for intentional discrimination.

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