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.]’

Anti Defamation League

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

Department of Justice

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.

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One thought on “Ricci v. DeStefano: A Review of the Amicus Curiae Briefs

  1. I have read the arguments presented before the Supreme Court and various amicus briefs submitted prior to the hearing. The real issues do not seem to have been parsed out to my satisfaction. It is not that we shouldn’t care about disparate impact; it is when we should be thinking about it. HR professionals should be very much familiar with the different types of selection tests and their potential for resulting in adverse impact on minority candidates. It would be malpractice not to consider the issue prior to adopting a test for use. If a test has the potential for adverse impact, it is incumbent on the organization to demonstrate that the test is job related (i.e., conduct a job analysis study and link the examination to the work) and consistent with a business necessity (e.g., feasibility of testing using another method and the validity of the test relative to other methods). Once the organization has selected a testing method and opened a competitive examination, candidates participate in good faith. To make a race-based decision once the results are in, simply because the racial profile of successful candidates is not to someone’s liking is disparate treatment. Had the test resulted in individuals of the “right” racial profile receiving sufficiently high scores, it is clear that the results would have been certified.

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