Justice Kennedy for a 5-4 Court split along ideological lines. The Court reverses outright, and rejects the Obama Administration's suggestion that the case be vacated and remanded for further proceedings. Justices Scalia and Alito wrote concurring opinions. Justice GInsburg wrote the dissent. More on SCOTUSBlog.
UPDATE: The opinion is here — it's a long one: 93 pages.
SECOND UPDATE: Here is how Justice Kennedy summarizes the Court's holding:
We conclude that race-based action like the City’s in thiscase is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold standard. As a result, the City’s action in discarding the tests was a violation of Title VII. In light of our ruling under the statutes, we need not reach the question whether respon-dents’ actions may have violated the Equal Protection Clause.And the opinion concludes:
The record in this litigation documents a process that, atthe outset, had the potential to produce a testing proce-dure that was true to the promise of Title VII: No individual should face workplace discrimination based on race. Respondents thought about promotion qualifications and relevant experience in neutral ways. They were careful to ensure broad racial participation in the design of the testitself and its administration. As we have discussed at length, the process was open and fair.My initial thoughts: I'm inclined to think the Court is correct, though I am somewhat surprised that the justices did not coalesce around a narrower holding, such as that suggested by the Obama Administration (vacate and remand for further consideration of whether New Haven's purported justification for invalidating the test was a pretext). From a super-duper-quick perusal, it seems that one significant effect of this ruling is that it could shield employers from disparate impact liability where avoiding such a suit could give rise to this sort of disparate treatment suit. I'll be curious to see how much this holding is dependent on the specific facts of this case, as New Haven had gone out of its way to develop a fair test and there was evidence that the city was motivated by more than potential Title VII liability. More later.The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the City’s refusal to certify the results. The injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the City had established for the promotional process. Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe. Confronted with arguments both for and against certifying the test results—and threats of a law-suit either way—the City was required to make a difficult inquiry. But its hearings produced no strong evidence of a disparate-impact violation, and the City was not entitled to disregard the tests based solely on the racial disparity in the results.
Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.
Petitioners are entitled to summary judgment on their Title VII claim, and we therefore need not decide the underlying constitutional question. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.
A 7-2 or 8-1 would have made her look out of the mainstream; as it stands she's no more unreasonable than Souter, Breyer, Stevens, and Ginsburg.
That's a fair point, but the pertinent discussion will center around areas where she departed from even them, if any. If none, and she survives the scrutiny of having crossed Vice President Kennedy, then she's good to go.
It's a good way to find out if she's got the right stuff to survive some heat, for sure. If she chokes and blows it, shame on her.
I think the more relevant issue is the fact that the Supreme Court spent 93 pages on a case that she and the rest of the panel disposed of in a single paragraph.
Quite clearly, it was a difficult, complex affirmative action case, and yet it was such a "no brainer" for Sotomayor that she was comfortable signing on to a rubber-stamp per curiam opinion. That's the troubling aspect of this, and it should be thoroughly examined during the confirmation hearings.
Standing alone, I don't think this means very much. Plenty of issues may be clear as a matter of existing Supreme Court jurisprudence, and therefore may warrant only a brief opinion by the Court of Appeals. If the Supreme Court wants to use one of those cases to refine or clarify its jurisprudence, of course, it's going to devote substantially more space to explaining what it is doing. I'm not sure that that's what happened here, but the focus on the length of the respective opinions is somewhat of a simplistic analysis without more context.
Good point. I had forgotten about that. But I do think an effective defense of her nomination for the TV cameras will be "she voted the same way as the guy she's replacing, who, you know, what nominated by a Republican."
My own review was very quick, and mostly consisted of reading the syllabus, but I'm not sure why the decisions would shield employers in disparate impact suits. Instead, it seemed like the main question is whether there was a strong basis for an employer to be held liable for disparate impact under existing law.
While I'm sure this decision will be portrayed as Roberts Court conservatism, big business friendly, blah blah blah, I actually think in reality it's going to be business unfriendly. For any test where there's a racially disparate impact, the employer is going to be whipsawed by a disparate treatment suit if it invalidates the test or a disparate impact suit if it lets it stand. The main winners will be discrimination attorneys.
(And again, this was based on a short review of the decision, primarily the syllabus, so closer review may reveal different points)
That's not saying a whole lot about her!
1. If there's "existing Supreme Court jurisprudence," then the circuit court opinion should, well, recite some of it. And explain why, despite appellant's arguments (no doubt pointing out precedent to the contrary), their contentions don't carry the day.
2. There was no clear "existing Supreme Court jurisprudence" here. As evidenced by the lengthy opinions in a 5-4 case. That's why it was a complex and difficult case.
3. There were multiple amici briefs and extended oral argument before the Second Circuit. That is not what usually prefaces a one-paragraph opinion.
4. The initial Second Circuit "opinion" wasn't even published. Then, when the rest of the circuit got wind of the case (voting 7-6 to deny rehearing en banc), the panel "published" a one-paragraph opinion adopting the district court's reasoning in full.
Any way you slice it, the "opinion" below was a dodge, both procedurally and substantively, and it should be the subject of a full airing before the Senate committee.
The problem for respondents is that such a prima facie case—essentially, a threshold showing of a significant statistical disparity, and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified thetest results. That is because the City could be liable for disparate-impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. Based on the record the parties developed through discovery, there is no substantial basis in evidence that the test was deficient in either respect.
A prima facie case in a disparate impact context, despite the attempt of New Haven defenders to gloss over this fact, is a ridiculously low threshold. It in no way comes close to implying that there's actually disparate impact liability.
Yes, he has some liberal views but once he takes a side he usually sticks with it. See also his opinions in Campaign Finance, Partial Birth Abortion. He will vote to overturn McConnell and against any campaign finance regulation. He will vote to uphold any late term abortion ban. From Heller it also looks like he will be very strong on 2nd Amendment claims and vote for incorporation.
The Swcond Circuit did not want to make law in this area; the Supreme Court did. The Second Circuit was forced to take this case; the Supreme Court chose to take this case. Can Sotomayor and her colleagues really be faulted for not wanting to stick their necks out?
Surprising. The firehouse near my home growing up was an intellectual salon, with readings from Yeats and Keats interrupted only by frequent chamber orchestra performances.
Yes. 'Sticking their necks out' by writing an opinion that justifies the decision is part of their job description.
That's why I said above that this case guts DI.
Presumably, that should be "didn't" or "could not", or some such.
I have zero doubt in mind that Kennedy would vote to reverse Grutter and Bakke if the issue was raised. None.
Also, based on that paragraph above, I strongly suspect that given the right case, the disparate impact theory is gone too.
Since 2005 Kennedy has upheld the pba ban and will totally overrule Stenberg if the pro choicers appeal the 4th CT en banc that upheld the VA ban. He'll never overrule Casey or ROe but I suspect he will uphold any regulation short of a 1st trimester ban. He has been on the right side of two key aff action/equal protection cases and will overrule Grutter/Bakke in due course. He was on the right side in Heller and will likely vote for incorporation if they accept the cases from the 2nd, 7th and 9th Cts. He will vote to overrule McConnell in a couple months.
All cases that wouldn't happen if O'Connor was still around. Yes, he can be infuriating with his decisions in Hamdan.Boumedienne and the LA death penalty case and the like, but he's still conservative in a numbre of areas and better than O'Connor in many of them. Imagine if he had retired and not her. Imagine if Sotomayor was replacing him instead of Souter? Then we'd really be in trouble.
Are you sure of that? From petitioners' cert reply brief, the Second Circuit panel's not the only CA panel to shirk their duty:
Numerous decisions recognize that disparate-impact discrimination is established only by showing equally valid but less discriminatory exam alternatives, not by mere conjecture about their possible existence. ... see
also Stewart v. City of St. Louis, No. 04-cv-885, 2007
WL 1557414 (ED Mo. May 25, 2007), aff ’d per curiam,
532 F.3d 939 (CA8 2008).
Can we sue to get our money's worth?
Of course. That is the necessary implication of a ruling for the plaintiffs.
Maybe they will, but they did not in fact rule that here, and they may blanch at crossing that line; see Scalia's comments about the "evil day."
One can rule for the plaintiffs -- as the Court did -- solely by finding that (a) there wasn't any disparate impact liability here, and (b) the city wasn't legitimately motivated by attempts to avoid disparate impact liability, but by racial politics.
The facts here were egregious. The city went out of its way to develop a valid test, and then threw it out solely based on racial quotas, without any evidence it was actually invalid.
The bolded portion is the Big Lie. It is upon this tenuous logical argument which the liberal dissenters' case rests.
But they assume the conclusion. Most people have an intuitive understanding of a "better test" as being pertinently discriminating, meaning an ability to discriminate between the better firefighters, and worse ones; reliable, meaning it consistently gives the same results, within statistical error; and unbiased, which means that scores are not pushed in one direction or another by irrelevant considerations to firefighting.
But race is not irrelevant to better firefighting. Whether one believes it is by entrenched discrimination, or a poisonous culture, or the evil failures of the Bush Administration's NCLB, or some other reason, it is not an irrelevant factor in other arenas like public schooling; which is one reason why academics and educational psychologists can rigorously talk about issues like "the Black-White achievement gap", a gap that has been quite consistently apparent and undisputed within their data. One could reasonably expect the same issues to be salient in a test, which in some measure, tests and discriminates for a useful crystallized knowledge amongst the firefighters to be promoted.
This is why, consistently, in case after case I have studied, disparate impact plaintiffs seek to entrench worse tests, worse according to any of the aforementioned considerations, not better ones. To Stevens et. al, a test is prima facie better primarily according to the criterion that it not produce a statistical racial disparity, codified in statute by the EEOC's Four-Fifths rule, which firmly flies against all common sense and intuition.
The Court holds that an employer must have a "strong basis in evidence" that an employment practice creates a disparate impact before it can undo that practice. A threat of a disparate impact lawsuit is not sufficient. However, minority plaintiffs do not need a "strong basis in evidence" to file a disparate impact lawsuit. Employers are now caught in a perfect Catch-22 anytime a neutral employment practice creates an outcome that is disproportionate as to any protected category (race, color, sex, religion, etc...). Following through with the practice may result in a disparate impact lawsuit; undoing the practice may result in a disparate treatment lawsuit. Even if the employer wins on summary judgment, defense costs can be crippling for small- and mid-sized employers.
From the majority:
This is awful, awful writing. Why needn't they decide it? If, for some reason, a legitimate fear of disparate impact were sufficient to justify discriminatory treatment under the constitution, the respondents would have won, no?
It's impossible to frame this like there's a possible constitutional defense in this case, and still avoid the constitutional question.
If a test results in a statistical imbalance, an employer faces a lawsuit whether or not they take remedial action. Moreover, the standard is the same in each lawsuit, only with the employer on the opposite sides.
This decision leaves employers between a rock and a hard place.
No. Under your assumption that a legitimate fear of disparate impact suffices to comply with Equal Protection, respondants still lose if Title VII is interpreted as the Court has done so. If Congress re-writes the statute to overrule the Court, then the Constitutional question will have to be addressed.
Maybe not. But if you're not prepared to stick your neck out, do you belong on the Supreme Court? Once you're confirmed, there's nobody left to punt to.
The employer simply has to analyze whether the test was flawed before it makes a decision as to whether to accept or throw out the test. This case just takes the thumb off the scale, so that the employer isn't biased in favor of discarding the test.
This decision shows why we need a Justice like Sotomayor on the court as soon as possible.
Without assuming all imbalances lead to lawsuits, we may see employers facing many more of them. In a statutory case, maybe a thumb on the scale is a good thing?
And Judges most certainly should avoid Constitutional questions when they don't arise. The minority, however, were being a bit too cute by dissenting but not disposing of the case - they should have addressed the Constitutional question.
And undoubtedly Sotomayor and colleagues on the second circuit Bench can be faulted for not wanting to stick their necks out. The aphorism 'hard cases make bad law' does not mean that they should be disposed of and brushed under the carpet!
Finally I don't see this as particularly anti-business. It seems to me from this that you simply have to have appropriate criteria for selection, document those criteria and their assessment, and accept the results. Most large firms do basically this anyway, even though some or most of the criteria are pretty subjective.
So if you don’t act like the boss at work (telling everyone what to do), then you are not qualified to be promoted to be the boss?
Just one cite, please.
Oh those conservative justices all look alike!
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