Ricci v. DeStefano: Court Determines Test Results Must Be Certified; Case Decided on Statutory Grounds, and Not on the Equal Protection Clause

This case’s result is not surprising. The pressure of having human expectations rejected was too strong to be ignored. The City of New Haven should have settled this case before reaching this point. After spending additional precious tax revenues to oppose the firefighters who brought the case, New Haven still has to certify the test results.

The Court ruled that it was impermissible for the city of New Haven, Connecticut, to refuse to certify the promotional test results without a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate impact provision of Title VII.

Post script:

A link to my previous post which explains the facts of the case when the case was at the Second Circuit Court of Appeals

A link to the slip opinion

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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 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.

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.

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.

The Futility of “Colorblindness” (Part 7): Ricci v. DeStefano–Court’s Insistence on Blindly Enforcing “Colorblindness” Is Unjust

The underlying story of the Ricci v. DeStefano case is the idea that Whites are experiencing discrimination like non-White people endure. The courts pick up this theme through confidently supporting supposedly even-handed “colorblindness” without mentioning the superior position of the White race.

This leads to the situation in which there is “colorblindness” in theory, yet injustice to non-Whites in fact.

Examination of the U.S. Census for New Haven, Connecticut (city) and Connecticut at large demonstrates that regardless of the arguments asserting anti-White bias, political power still remains with the White race.

New Haven, CT (city)

Race

Percentage of population (%)

Number

White

43.5

53,723

Black

37.4

46,181

Native American

0.4

535

Asian

3.9

4,819

Note: Total population: 123, 626.

Source: http://www.census.gov.

Connecticut

Race

Percentage of population (%)

Number

White

81.6

2,780,355

Black

9.1

309,843

Native American

0.3

9,639

Asian

2.4

82,313

Note: Total population: 3,330,717.

Source: http://www.census.gov.

Regardless, the Court in the Ricci case will likely mention the population in New Haven and neglect the reality of the majority (and power) of the White race in Connecticut and the United States.

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

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