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.
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.
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.
Summary of argument: Petitioners have no basis in the record for suggesting pretextual racial discrimination.
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.
Summary of argument: The failure to certify test results for gross adverse impact does not require strict scrutiny review.
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.
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 is 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.
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.
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.