Ricci v. DeStefano: Political Power Shift to Occur Due to Decline in White Population; Similar Political Shift Occurred in Richmond, VA

The Supreme Court held oral arguments for the Ricci v. DeStefano case on April, 22, 2009 (use the search box on the right to find my previous posts about the Ricci v. DeStefano case).

Another issue of the case is the ongoing population shift occurring in New Haven. Examining the U.S. Census data on New Haven, the city is experiencing a decline in the number of Whites who live in New Haven. As a result, New Haven will become majority Black sometime in the future.

new haven2

New Haven, CT
1970
(128,751)
1980
(126,109)
1990
(130,474)
2000
(123,626)
White

91711

78326

70263

53723

Black

35606

40235

47157

46181

Source: U.S. Census Bureau.

A similar situation surrounded the City of Richmond v. J.A. Croson case (a case cited in many amicus curiae briefs). In this case, Richmond had a new Black majority (a fact cited in the Court’s majority opinion). The transfer of political power, occurred as the White population left Richmond.

richmond2

Richmond, VA
1970
(239,364)
1980
(219,214)
1990
(203,056)
2000
(197,790)
White

136478

104743

88028

75744

Black

101941

112357

112122

113108

Source: U.S. Census Bureau.

Ricci v. DeStefano: More Amicus Briefs

After writing my previous post about the amicus briefs submitted for the Ricci v. Destefano case, several more amicus briefs were submitted. To see the actual brief summarized here in this post, please click here.

American Civil Rights Union

Summary of argument: The cancellation of the test was based on the race of the petitioners in violation of the Equal Protection Clause. The Court should apply strict scrutiny to New Haven’s decision not to certify the test results.

New York Law School

Summary of argument: Enforcement of Title VII permits the consideration of race. Implicit evaluation of testing can occur even after the test is administered.

NAACP Legal Defense and Educational Fund

Summary of argument: The NAACP provides a history of discrimination in the firefighting job field.

International Association of Black Professional Firefighters (only for docket number 07-1428)

Summary of argument: Argument similar to NAACP’s.

States of Maryland, Arkansas, Iowa, Nevada, and Utah

Summary of argument: Certification of the test would only make petitioners eligible, not entitled to, promotion. The Attorneys General also argued that the petitioners lack standing, and that the decision not to certify is not an adverse employment action.

Society for Human Resource Management

Summary of argument: Petitioners have no basis in the record for suggesting pretextual racial discrimination.

American Civil Liberties Union, Mexican American Legal Defense and Education Fund, LatinoJustice PRLDEF

Summary of argument: Disparate impact provision of Title VII is incompatible with the Equal Protection Clause in cases involving public employment. The Court should resolve issue on narrower grounds, specifically respondents’ efforts to comply with Title VII would survive strict scrutiny.

Lawyers’ Committee for Civil Rights under Law, National Urban League, National Association for the Advancement of Colored People, and the Equal Justice Society

Summary of argument: The failure to certify test results for gross adverse impact does not require strict scrutiny review.

Opportunity Agenda (a project of the Tides Center)

Summary of argument: The case is about the ability of employers, particularly state and local government, to take proactive steps to ensure equal employment opportunity.

Comment: This brief provides an analysis of the effect of institutional discrimination.

The analysis would be even more useful if it showed how its analysis applied to the facts of the case. It would also be helpful for the Opportunity Agenda to provide an analysis of the test for promotions showing the Court where unintentional discrimination occurs and its rationale for addressing the issue.

National Partnership for Women and Families, National Women’s Law Center

Summary of argument: The disparate impact standard necessary as women remain underrepresented in firefighting and other traditionally male jobs. An employer that declines to use a test that imposes a disparate imact on certain protected classes does not violate the disparate treatment rules of Title VII.

Comment: I had a question arise as I read this brief: Is discrimination the sole reason for the under representation of women in firefighting? I figure it is a variety of factors (one of those factors is discrimination). It is an interesting point but the Ricci case involves employment testing rules.

Given the Court’s binary reasoning on race: Either everyone is treated the same or everyone isĀ  not treated the same (for example, Grutter, Parents United). One can argue that if the presence of a homogeneous group of test takers triggered the scrutiny of the test, that would show an impermissibly unequal treatment of people on racial grounds.

The reasons for not certifying the test have to be rooted in the examination itself in the process of developing the examination to be strongly persuasive.

Industrial-Organizational Psychologists

Summary of argument: New Haven correct in not certifying the promotion exam because the flaws of the exam undermined its validity.

Comment: It seems that the amicus writers assert that the New Haven’s test should not have been administered. Some of their assertions raise questions themselves. For example, their point about testing for “command presence” or the ability of a fire officer to have people follow his or her orders on a fire scene. An open question is how could a test be developed for this concept?

International Association of Hispanic Firefighters and the Bridgeport Hispanic Firefighters Association

Summary of argument: Decision to avoid potential discrimination is not itself discrimination. The brief writers also stated that there was compelling, unrefuted evidence to suggest that the
defendants were motivated by a desire to comply with Title VII and avoid using discriminatory promotion criteria.

International Municipal Lawyers Association, the National League of Cities, the National Association of Counties, International Public Management Association for Human Resources

Summary of argument: Requiring local governments to use the results of an employment examination unless the examination violates Title VII or there is a strong basis in evidence of such a violation could cause more law suits, increased costs, and delays in filling public employment positions.

Unemployment Insurance: Employers Can Challenge Unemployment Claims of Former Employees; MD and VA Publish Decisions to Help Claimants in Defending Their Claims

[Update 4/4/10: The New York Times published an article with a similar story as the Post article discussed below.]

The Washington Post published an article about employers protesting unemployment insurance claims of former employees.

Facing an unjustified unemployment insurance challenge on top of a precarious financial situation is an unwelcome experience. This is especially true given employers’ superior position over employees in terms of legal representation and money in the unemployment context.

Fortunately, a couple of the unemployment agencies have published their decisions applying the unemployment law to specific cases. In Maryland, the Internet address for the decisions of the appeals tribunal is https://www.dllr.state.md.us/appeals/decisions/index.shtml. In Virginia , the Internet addresses for the decisions of appeals tribunal are http://www.vec.virginia.gov/vecportal/unins/precedent/index.cfm, http://www.vec.virginia.gov/vecportal/unins/decisions/index.cfm, and http://www.vec.virginia.gov/vecportal/unins/pdfs/vca/vca.pdf.