Ricci Reversed:

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.

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.

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.


Ricci and the Sotomayor Nomination:

While I wait for my copy of Ricci to finish printing, here are some quick thoughts on how this decision could influence the Sotomayor nomination.

First, the bottom line: This decision is very unlikely to have a significant effect on the outcome. I find it (almost) inconceivable that she will not be confirmed. A 5-4 reversal, even on a contentious, high-profile issue, will not change that.

The 5-4 nature of the Court's decision reinforces the argument that Sotomayor is a mainstream liberal nominee. The Court split along predictable, ideological lines. Her decision was supported by the Court's four liberals, including the Justice she was tapped to replace, so the case does not suggest that she is a radical or outside of the legal mainstream. Rather, it confirms what we've presumed: She's a liberal judge who is likely to agree with the Court's liberal justices in most closely divided cases in which the justices split along ideological lines.

On the other hand, the fact that it took the Court nearly 100 pages to resolve this question does cast a shadow over the Second Circuit panel's handling of the case, and may raise questions about her judgment. Initially, the panel upon which Sotomayor sat was ready to dispose of the case with an unpublished, unsigned summary order. Whatever the reasons for this (and we've seen some speculation), it's difficult to argue that this case was a simple no brainer of the sort that would justify that sort of resolution — and it's difficult to square the justifications for this disposition with the panel's subsequent decision to affirm the district court with a one paragraph, precedential opinion. The length of the Supreme Court's opinions (a 34-page majority, 39-page dissent, and two concurrences) is evidence that the case raised difficult and weighty issues. It reinforces the position of Judge Sotomayor's colleagues who criticized the panel's initial disposition and, on their own initiative (and without the filing of a petition for rehearing en banc), sought full court review of the case. Yet even if her handling of this case reflects poorly on her judgment, I do not see it as disqualifying, and I do not believe it will prevent her from being confirmed.


Tidbits from Ricci on the Second Circuit's Disposition:

There is relatively little in Justice Kennedy's majority opinion that directly addresses the handling of this case by the U.S. Court of Appeals for the Second Circuit. There are, however, some interesting passages from some of the other opinions that suggest disagreement with how the Second Circuit panel resolved the case.

First, Justice Ginsburg's dissent contains an interesting footnote -- Footnote 10 -- suggesting that she and the other dissenters were prepared to vacate and remand the case as recommended by the Obama Administration's amicus brief.

10. The lower courts focused on respondents' "intent" rather than onwhether respondents in fact had good cause to act. See 554 F. Supp. 2d 142, 157 (Conn. 2006). Ordinarily, a remand for fresh consideration would be in order. But the Court has seen fit to preclude further proceedings. I therefore explain why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party.
This would suggest that even the Court's dissenters believed that the Second Circuit did not properly address the issues raised by the New Haven firefighters, even if they would adopt a standard that would make it difficult for the firefighters to prevail.

There's also some interesting language at the close of Justice Alito's concurrence (joined by Justices Thomas and Scalia) that I read as a subtle rebuke to Judge Sotomayor and the Second Circuit panel (which expressed sympathy to the firefighters in its per curiam opinion), as well as a rejection of an "empathy" standard for judicial decision-making.

Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City's exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City's asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision. The dissent grants that petitioners' situation is "unfortunate" and that they "understandably attract this Court's sympathy." Post, at 1, 39. But "sympathy" is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII's prohibition against discrimination based on race. And that is what, until today's decision, has been denied them.


Ricci as a Defeat for Business Interests Inflicted by "Pro-Business" Conservative Justices:

The Supreme Court's decision in Ricci v. DeStefano has interesting implications for the longstanding debate over whether the Roberts Court is "pro-business." The bottom line is that the business interests were among the big losers here. The Court's ruling makes it difficult for employers to use race-conscious measures to avoid disparate impact liability under Title VII of the Civil Rights Act. And this defeat was inflicted by the supposedly business-friendly conservative justices. Although Ricci addressed promotion decisions by a government employer, the same Title VII standards apply to private employers too.

The fact that the conservative justices dealt business interests a major defeat in Ricci doesn't prove that they would be equally indifferent to business concerns in other cases. That said, it's worth noting that the five conservative justices ruled against business interests on an issue that could potentially expose them to a great deal of costly litigation. This fact further weakens already dubious claims that the Roberts Court is systematically advancing a "pro-business" agenda.

Justice Kennedy's majority opinion holds that an employer may not use race-conscious measures to try to avoid "disparate impact" liability under Title VII of the 1964 Civil Rights Act unless it "can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute." A disparate impact lawsuit is a case alleging discrimination by the employer on the grounds that its hiring or promotion standards disproportionately disadvantage minority applicants, even if the employer wasn't deliberately trying to discriminate against them.

The Court's ruling makes life more difficult for employers trapped between the Scylla of Title VII disparate impact liability and the Charybdis of "disparate treatment" suits by white employees ("disparate treatment" suits are cases alleging traditional intentional racial discrimination). If a business adopts a race-neutral hiring or promotion standard that results in few or no minority hires or promotions, it is potentially vulnerable to a disparate impact lawsuit. As several Supreme Court cases make clear, that can happen even if the business was not intentionally trying to disadvantage minorities. But if the business adopts race-conscious measures to try to shield itself from liability (e.g. - by practicing affirmative action, adopting a standard that is more favorable to minority applicants, and the like), it opens itself up to "disparate treatment" lawsuits by whites, such as one the filed by the New Haven firefighters in Ricci.

To avoid this dilemma, business groups have long sought to persuade the courts to interpret Title VII to shield them from liability for race-conscious hiring policies that are intended to prevent disparate impact lawsuits. The Equal Employment Advisory Council, a group representing numerous large corporations and other businesses, filed an amicus brief in Ricci urging the Court to rule for New Haven for precisely this reason.

The five conservative justices weren't buying that argument, however. To be sure, the majority opinion does allow the use of race-conscious measures to avoid disparate impact liability where there is "a strong basis in evidence" to conclude that such liability would otherwise arise. However, Justice Kennedy also emphasized that race-conscious measures to avoid disparate impact liability will only be allowed in "narrow circumstances." Moreover, the Court ruled that such circumstances didn't exist in this case despite the fact that not even one black firefighter could have been promoted based on the results of the original exam. As the Court notes, "[t]he racial adverse impact here was significant, and . . . the City was faced with a prima facie case of disparate-impact liability." It is also important to recognize that, in deciding to grant summary judgment in favor of the plaintiffs, the Court was required to consider the evidence in the light most favorable to the opposing party (New Haven); even under that standard, the Court majority concluded that New Haven loses. Thus, there will likely be many cases where businesses face some substantial risk of disparate impact liability, but will still be forbidden to use race-conscious measures to avoid it.

The fact that business interests will suffer doesn't mean that Ricci was wrongly decided. I believe that private employers should be allowed broad discretion to adopt race-conscious affirmative action plans. But my view of the world is different from that embodied in Title VII, and I think the majority justices interpreted the statute more or less correctly. Right or wrong, the decision definitely isn't pro-business.

UPDATE: In the last part of his opinion for the Court, Justice Kennedy tries to address the conflict between disparate treatment suits and disparate impact:

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.

This gives New Haven and other similarly situated employers a potential safe harbor against disparate impact lawsuits. However, it is not clear that this reasoning extends beyond the context of a decision to decertify an already completed formal test. Most private employers do not use formal test processes like that of the New Haven Fire Department. Even in the testing context, there might not be a "strong basis in evidence" for disparate treatment liability absent the kind extensive record of racial motivation that New Haven compiled in this case (there was a lot of evidence, summarized in Justice Alito's concurring opinion, that the City's true motive for decertifying the test was to increase minority representation in the Fire Department for political reasons unrelated avoiding disparate impact liability.

Related Posts (on one page):

  1. Ricci as a Defeat for Business Interests Inflicted by "Pro-Business" Conservative Justices:
  2. Tidbits from Ricci on the Second Circuit's Disposition:
  3. Ricci and the Sotomayor Nomination:
  4. Ricci Reversed: