I’ll do the links first, so that the truly adventurous can read all this stuff for themselves. These are all PDFs (except the link to SCOTUSwiki). The District Court opinion and the order denying rehearing en banc with the Katzmann, Parker, and Cabranes opinions are quite long (about 48 and 72 pages, respectively). The rest are fairly short.
District Court opinion
2nd Circuit panel opinion (per curiam, reprinted in full above)
2nd Circuit order denying rehearing en banc, with concurrences by Judges Katzmann and Parker, and dissent by Judge Cabranes
Additional dissent from denial of rehearing en banc by Chief Judge Jacobs
Additional concurrence in denial of rehearing en banc, by Judge Calabresi
SCOTUSwiki on Supreme Court’s consideration of Ricci, including merits briefs and numerous amicus briefs
So what is this case actually about? Here’s what happened, according to the District Court opinion. The city of New Haven administered two tests that would determine promotion to the ranks of Lieutenant and Captain within its fire department. It had worked with outside consultants to try to ensure that the tests would not have a racially discriminatory impact. However, for whatever reason, it didn’t work. White test-takers seemed to do disproportionately well; black and Hispanic test-takers did poorly. And, based on the results and the city’s promotion rules, all 8 of the promotions to Lieutenant would go to white candidates, and all but 2 of the 7 promotions to Captain would go to white candidates (the other 2 would go to Hispanic candidates). No black candidates would have been promoted to either rank, since although some black candidates passed, they did not score high enough.
As a result, the city decided to throw out the test and start over. Based on that action, several white firefighters (including Mr. Ricci) sued, claiming that they had been the victim of reverse racial discrimination.
The whole thing is quite complicated, and you should read the District Court opinion for the details. I think one of the key points is this:
[P]laintiffs do not dispute that the results showed a racially adverse impact on African-American candidates for both the Lieutenant and Captain positions, as judged by the EEOC Guidelines. Pl. L.R. 56 Stmt. ¶ 246; Def. L.R. 56 Stmt. ¶ 246. Thus, it is necessarily undisputed that, had minority firefighters challenged the results of the examinations, the City would have been in a position of defending tests that, under applicable Guidelines, presumptively had a disparate racial impact.
In other words, it is apparently undisputed that, had the city gone ahead with the test results, it would have almost certainly opened itself up to a racial discrimination claim under federal guidelines promulgated by the Equal Employment Opportunity Commission (EEOC). Why?
Specifically, the EEOC “four-fifths rule” provides that a selection tool that yields “[a] selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact….
Here, the evidence shows that on the 2003 Lieutenant’s exam the pass rate for whites was 60.5%, for African-Americans 31.6% and Hispanics 20%. The four-fifths score would be 48%. In other words, African-Americans had a pass rate that was about half the pass rate for Caucasians, yielding an adverse impact ratio (“AIR”) of 0.59, significantly below the AIR of 0.80 that is presumed to not evidence adverse impact under the EEOC Guidelines…. While the parties dispute the Captain’s exam pass rate for African-Americans and Hispanics (see supra note 7), the pass rate for Caucasians was 88%, which is more than double that of minorities and thus by either party’s statistic an AIR far below the four-fifths guideline is yielded.
Now, I’m assuming that all of this is correct. If it is, though, it’s clear that the city was in an impossible situation. If it went ahead with the test, it was virtually assured to be sued for racial discrimination. At that point, it seems to me, it is difficult to hold the city liable for throwing out the test and starting over. The city’s reason for doing what it did was race-neutral: it was trying to avoid being sued for violating federal law.
Of course, there’s unfairness here. Mr. Ricci and the other firefighters worked hard to prepare for the test, and took it in good faith, believing that it was what would determine their promotion. But the source of that unfairness, I think, is not the city’s action, but rather the EEOC’s “four-fifths” guidelines that set what strike me as very rigid requirements for what is and is not an actionable case of racial discrimination. The city thought it had designed a race-neutral selection tool. But the numbers were way below the 80% required by EEOC guidelines, and federal regulations say that such test results “will generally be regarded by the Federal enforcement agencies as evidence of adverse impact.”
If your instinct is that the plaintiffs should win, first ask yourself: if you were in the city’s position, knowing that certifying the results would almost certainly open you up to a discrimination lawsuit, what would you have done?
So that’s what the case is about. If you’re so inclined, read the documents and add your thoughts in the comments. As I said, I think it’s fair to criticize the 2nd Circuit panel on which Judge Sotomayor served for not writing a full opinion on this difficult case. The fact that the Supreme Court subsequently took the case does seem to suggest that the case deserved more attention than it got, and that will be highlighted further if the Supreme Court reverses the decision. Either way, Judge Sotomayor can expect a lot of questions about this case. But it’s hard for me to see what happened here as a serious threat to her nomination. Among other things, Sotomayor was 1/3 of a unanimous panel in the initial decision, and she was on the winning side of a 7-6 vote of the full 2nd Circuit. So even if you think she was wrong, there’s no basis for saying that she did anything outside the “mainstream” here.
I don’t know how heavy the burden is on a defendant to rebut a presumption of racial discrimination, but given that the presumption is rebuttable, I would think that hiring outside consultants to develop a race neutral test would be a strong defense against a lawsuit if New Haven had accepted the test results. New Haven had to know that they would be sued either way. As you rightly point out, the city had no good solution. Either promote based on the test and then defend the test against a lawsuit by the black firefighters or promote while ignoring the test and defend the disregard of the test against a lawsuit by the white firefighters. Given the steps that the city took to ensure that the test wouldn’t discriminate it seems easier for the city to defend the test. (Although there seems to be some factual dispute as to whether the outside consultant company would actually certify that the test was racially neutral)
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p>Politics could also have come into play. New Haven mayor John Destephano got through a tough Democratic primary when he ran for CT Governor in 2006. I would think that being sued for discrimination by black firefighters would hurt more in a Democratic primary then being sued by white firefighters.
do you think the kind of calculus you’re talking about — which lawsuit would be easier to defend — is a race-based calculation? I’m not sure I do; it strikes me more as a standard weighing of litigation risk. If that’s the case, that suggests that the city’s action lacked an intent to discriminate against white candidates, doesn’t it?
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p>On your second point, indeed, the district court’s opinion refers to allegations that political pressure was involved. E.g.,
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New Haven decided to disregard the test (despite state law requiring them to accept the test and despite an agreement with the union to promote based on the test) solely because of the race of the people who would have been promoted. Individuals earned promotions under the system in place and then were denied those promotions because of race. It was a litigation risk to accept the test, but if not accepting the test is unconstitutional then it shouldn’t matter what some rigid EEOC guidelines say.
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p>I think that the EEOC was an attempt to codify Supreme Court disparste impact precedent. But I don’t recall the Supreme Court ever coming up with such a rigid 80% rule. If the statute as applied to this case forces the city to disregard earned promotions on the basis of race because of this rigid rule and despite efforts to create a race neutral test then the statute could be unconstitutional as applied.
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p>And I believe that the EEOC rules have some kind of limited exception when state law contradicts the EEOC. I don’t know enough about whether that exception would apply in this case. But assuming it would, if New Haven would have clearly been able to defend the lawsuit from the black firefighters based on the state exception or based on a strong case rebutting the presumption, but decided not to give the promotions due to political pressure, then shouldn’t that be unconstitutional? How much leeway does your ‘calculus of litigation’ rule allow? What if the city did not have a good faith basis or a reasonable belief that the lawsuit would be successful? Doesn’t the city need more justification to deny promotions based solely on race then a nuisance lawsuit that can be easily defended?
First of all, is it true that the city’s action was in violation of state law? (You said: “despite state law requiring them to accept the test….”) I don’t recall seeing that, but I could have missed it.
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p>Second, I think some of what you’re saying is getting a bit circular.
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p>But that’s the question, right? You can’t set up as a premise that rejecting the test is unconstitutional, and from there determine whether the city properly weighed litigation risk. The point is that if the justification for the city’s action was to avoid a nearly-certain lawsuit based on a violation of EEOC guidelines, then it would appear that the city’s action was justified, and therefore not unconstitutional.
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p>As to this:
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p>First, it’s regulations, not a statute, as far as I know. Second, I agree (as I said in my original post) that the problem appears to be the rigid EEOC guidelines which seem to have created a near-certainty of being sued based on the test results. But the problem for the plaintiffs is that they didn’t challenge the EEOC guidelines. Instead, they sued the city claiming race-conscious action in violation of Title VII and/or the Constitution. But, again, if the city can justify its action in a race-neutral way (i.e., avoiding being sued), it is probably not liable. Even under strict scrutiny, if you adopt a narrowly-tailored solution to address a compelling interest, you are not liable. The city basically argues that by throwing out the results (and therefore not promoting anyone), it adopted the most narrowly-tailored solution available.
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p>Of course, you are right to ask this:
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p>Excellent questions, and based on my relatively quick read of the opinions in this case and having not looked at the record at all, I can’t answer whether the city did that or not. But I’d want to see a solid argument that a lawsuit based on a violation of EEOC guidelines would nonetheless be fairly described as a “nuisance lawsuit.” That doesn’t seem likely to me, but again, I don’t really know the details.
as to why New Haven couldn’t have defended itself based on the state law exception since CT law required the city to accept the test. I just don’t know enough about the CT law or the EEOC exception to answer what CT law actually requires or whether the exception applied. But that would be another credible defense for New Haven. So rebutting the presumption is one possible defense, and the EEOC exception is another possible defense. I exxagerated a bit in describing the black firefighter’s lawsuit as a ‘nuisance suit’ but what if it’s an easily defensible suit? Or even a possibly defensible suit? How credible must the potential suit be to justify race based discrimination? That’s a tough road for the Supreme Court to go down, fear of a lawsuit justifies race based discrimination.
if I were on the Supreme Court:
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p>In order to discriminate based on race a state entity must show that it’s actions were narrowly tailored to further a compelling government interest. Avoiding litigation is only a compelling interest if both the following conditions are met.
(1) The state has a good faith belief that it will more likely than not lose the litigation.
(2) The state has a good faith belief that it will more likely than not face substantial damages if it loses the litigation.
We will leave to the Circuit Courts to determine what constitutes substantial damages, because the Circuit Courts are where real policy is made. We hope that in making that policy, judges reflect upon their own culture and gender, because then they will be more likely to reach a wise decision.
to replace this:
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p>with this:
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p>”No government agency may discriminate based on race for any reason.”
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p>Wouldn’t that be nice?
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Even as a layperson (regarding the law profession), I find this fascinating. It’s great that BMG has its own legal minds in house to help dissect something as complex as this.
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p>As to why the 2nd Circuit court took the “per curiam” route, it was suggested (by Slate writer Emily Basilon, discussing this case on a Slate podcast) that there might have been a 2-1 split on the outcome, where the lone judge had written a lengthy dissenting opinion, but in the interest of collegiality, the judges closed ranks around the short summary. Basilon clerked for the 1st District, where, she said, this was less likely to happen, whereas it was more in the character of the 2nd District court to do so. Does that sound plausible? Regardless the reason, it prompted the appeals court to hang a big red flag on the case that screamed for the Supreme Court’s attention.
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p>Some detail about New Haven’s promotion rules, from an excellent article by Richard Thompson Ford (also in Slate; sorry to be so limited in my sources, but I really like the analysis there):
And, the same article has a good explanation of how disparate impact is designed to address unintentional as well as intentional discrimination:
Interesting stuff.
seems unlikely to me, as I mentioned in my post. The reason is that, even if one of the three original judges (whether Sotomayor or one of the other two on the panel) disagreed with the panel’s action but chose not to note his or her dissent, once the entire 2nd Circuit was considering rehearing the case en banc, there would seem to be no reason to continue to support the panel’s action. Yet all three panel judges voted against rehearing en banc. It’s possible, but it strikes me as far-fetched.
The thing that I find funny about Ricci is that the conservative critics of decision seem to hold onto an obvious cognitive dissonance since the court decided contrary to conservative preferences on the outcome, but not contrary to conservative preferences on the methodology… the court declined to ‘legislate from the bench’.
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p>Yglesias:
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not that conservatives don’t like Title VII. EEOC regs may not be compatible with Title VII in this case, and the 2nd Circuit kicked the can down the road rather than reconcile the conflict in the law.
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p>David writes:
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p>The results certainly violate the EEOC “four fifths” rule. But to what lengths must the City of New Haven go to meet the EEOC’s regulatory metrics? What sort of twisted exam can be devised which ensures an testing outcome sufficient to meet the EEOC’s regulations? Do they need a white exam to choose X% of the white test-takers, and a black exam choosing Y% black test-takers to ensure compliance with their rule?
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p>Would this not a return to Jim Crow “separate but equal?” That’s what the 2nd Circuit seems to be implying. What other solution could there be for New Haven?
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p>The nub of the discussion here, it seems to me, is what to do about the collision of the non-discriminatory intent of Title VII with the accumulated body of EEOC regulations, at least in the Ricci case. That seems to suggest a lack of bi-directionality to the EEOC’s regulations: it works for to advantage blacks, but at the expenses of race-neutral application of the law.
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p>The 2nd Circuit understands this conflict but is unable to graple with it, hence their conclusion on Page 20 of the pdf which kicks the can up to the SCOTUS rather than rehearing the case en banc.
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p>Perhaps it is the four-fifths rule which is discriminatory and unconstitutional.
… all the questions you’re bringing up were brought up in the original case. The only thing the appeals court did was decide not to overturn.
District Court:
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p>Who determines one’s race for purposes of this kind of examination?
Therefore, it doesn’t matter. If the parties agree, it’s true. 😀
You had an exam. Apparently (correct me If i miss something throughout this spiel) the white test-takers did better than the non-white test takers. This leads to 1 of 2 conclusions.
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p>A) The exam was written in a fashion that the minority test takers were at a disadvantage
B) The minority test-takers just didn’t study hard enough.
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p>Now, I’m not going to make any sort of argument that B is the correct conclusion, but for the safety of the people these firefighters are going to be protecting, isn’t it probably the responsible thing for this exam to be released so it can be seen whether this exam was the cause for racial disparity or the test takers?
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p>I think that people want to avoid making the comment that “oh, they’re black so they’re lazy and did poorly on the exam”, and I agree that just coming to that conclusion is wrong on many levels, shouldn’t that be a question? Not looking at these people who did poorly on the exam as members of a race, but rather as individuals, shouldn’t it be questioned whether they’re lazy?
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p>I’m not in on too many details of this case, so the exam could already be out there and these facts hashed out, but If it hasn’t for some reason, it’s important to know. I feel like there’s some sort of assumption that this test is racist in its writing, and I’m not sure if this is just an unfounded assumption or something meted out in the original suit.
I feel I am as well briefed on this topic (in a short time)as anyone can be. Thank you.
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p>Has anyone speculated that Sotomayor, as a likely prospect for consideration as a SCOTUS candidate (aging justices, uniquely positioned, etc.) might have quietly sought to distance herself from this hot potato by going along with an unsigned “per curiam” and voting to deny an “en banc” review?
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p>I recognize this sounds quite far fetched, but she appears to be a very sharp woman who had to have, at least, contemplated getting a call from the President for one of the SCOTUS vacancies sure to arise.
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p>2. Do you think the SC will reverse it? My guess is yes.
Drives me nuts. Isn’t “Latina” female by definition? It’s like saying “female actress” instead of “actress.”
They designed the test with “outside consultants to try to ensure that the tests would not have a racially discriminatory impact.”
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p>Considering NOT ONE minority test-taker scored high enough, where possibly can New Haven go from here?
Our elected officials (“Lawmakers”) do not get lifetime appointments (except of course lifetime Senators that are re-elected over, over and over again).
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p>Judges and Justices are lifetime appointments BECAUSE they are supposed to be guided solely by legitimately enacted law. If congress does it’s job, they will point this out and grill Ms. Sotomayor. Her biography, ethnic background, raw politics and “empathy” SHOULD play no role in rulings…but she has both a track record AND her own qoutes that prove she is incapable to make non-prejudiced and unbiased rulings from the bench.
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p>It is unlikely opposition to her confirmation will be greater then a speedbump while the majority of citizens, elected officials and media are sleep walking through this administration.
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As I’ve already noted, her actual track record shows unequivocally that our friend Kemo has no idea what he/she is talking about. Just to reprint the headline of the full post,
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p>And, interestingly enough, one of the rare times she disagreed with her colleagues was to object to the majority’s decision that went against a white police department employee accused of mailing racist materials. But I don’t expect those annoying facts to get in the way of Kemo’s talking points, which no doubt are hot off the Limbaugh presses.
to make an argument instead of ethnicity and gender.
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p>If we were to review SCOTUS candidates and found that one candidate was appointed by H.W. Bush as judge to a U. S. District Court. We also found that this same candidate ruled against race discrimination plaintiffs 90% of the time. How would someone from the right (like our buddy Kemo) come to the conclusion that the candidate would make prejudiced and biased rulings favorable to minorities from the bench looking at the candidate’s “track record”?
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p>Please explain.
The minute someone is critical they are instantly a Limbaugh fan or rightwing nut or something.
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p>Do your own research, or take whatever Rush, or any of those other “conservative” talk show hosts tell you OR go the other extreme and blindly follow your new Prez…OR tune into bias media so they can tell you the “truth” and tell you what to believe.
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p>The bottomline and my point is that she’ll get confirmed because the majority of politicians are fearful to put up much of a challenge. She is a hispanic woman we all know the likely political backlash the mere appearance of “picking” on someone because they are minority.
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p>Research: The number of her unwise rulings overturned; her numerous comments and published articles that many would consider COMPLETELY the opposite role of the judicial branch; not to mention the case that sparked this blog.
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p>You are entitled to your opinion, I guess I’ll label you a left-wing liberal Rachel Maddow fanatic.
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p>Good luck. Watch the congressional hearings for yourself and watch how those that dare challenge her are reported.
It’s a fact. She ruled against plaintiffs in race discrimination cases nearly 90% of the time. You haven’t addressed that, presumably because it’s inconvenient for you to have to do so. Well, sorry, but we do try to keep things reality-based around here.
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p>Your “research,” entirely devoid of links or other evidence, is a joke. Sorry, but that’s the fact.
Isn’t rejecting plaintiffs’ discrimination 78 times out of 96 cases, more like 80%?
http://www.washingtontimes.com…
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p>Well, since I am a white male with my upbringing and life experiences I expect my analysis to be superior and a better overall conclusion. (Doesn’t that sound absolutely riduculous?)
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p>David-
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p>Listen, you have nothing to worry about. She will get confirmed. I have no beef with you. Don’t take my critisism of your new favorite justice so personal.
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p>There have been 3 out of 5 (60%) Supreme Court rulings (so far) overturned and other cases she wasn’t overruled, but her logic questioned by higher court. And this doesn’t include Ricci. Equal Opportunity doesn’t always gurantee equal results. In the case of the New Haven Fire Department IT JUST SO HAPPENED none among the most qualified for promotion were black. Solution??? Throw out the results. WRONG ANSWER.
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p>Justice is blind (or supposed to be) right?
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p>More troubling are her views of the role of the judiciary…and her comments concerning a latina with her experiences coming to a better conclusion then that of a white male.
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p>Regardless of the context, backpeddling attempts or attempts to minimize the significants of those comments…I personally believe that raises some redflags. I’m certain they will be downplayed… and because of political fears I doubt they will be taken seriously or she will really be called to task on those and other “off-the cuff” remarks.
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p>If that doesn’t concern you, we will agree to disagree.
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p>Regardless, she is the next member of our Supreme Court.
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p>FYI – It has been several YEARS since I have listened to Rush Limbaugh and I think I was on a long drive in which my car radio received one station that happened to be a conservative talk radio show. I don’t even care about his opinion on Sonia Sotomayor and am not even at this point aware of any comments he has made.
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p>Have fun with your googling and blogging.
Is that 60% of her cases or 60% of the X% of cases that people appeal or 60% of the Y% cases that are heard for appeal of the X% of cases that people appeal?
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p>I suspect it’s that latter. We can assume, of course, someone on an higher court decides to hear a case, it can be assumed that some percentage of cases are brought before a higher court precisely because someone thinks there is a better than decent chance it should be reversed. This means that probably the majority of cases that are heard for appeal are overturned. This means that what we need is a control group to compare this to (something the conservative blogosphere has been known to overlook – h/t Ed Brayton). What is the average reversal rate for all cases re-heard? Then we can decide if 60% is high.
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p>These questions and their answers represent the difference between spouting statistics and understanding them?
is a stupid statistic. Since 2004, the Supreme Court has averaged a 73% reversal rate on the federal decisions it reviews each term. So actually, Sotomayor’s reversal rate is below the norm — having 2 of 5 decisions affirmed is pretty good. Furthermore, 100% of Alito’s Court of Appeals opinions that went up were reversed. So I guess by your calculation, he’s not as good a judge as Sotomayor. And that’s especially odd, since, given the current conservative bent on the Supreme Court, you’d expect a more liberal judge like Sotomayor to be reversed more often than a more conservative judge like Alito. So Alito must really suck. See how stupid it is?
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p>I’m not taking criticism of Sotomayor “personal.” And she’s not my favorite Justice, and she won’t be when she’s confirmed — I prefer the two I worked for (though one is now retired). What I am trying to do is keep this blog reality-based. That means when people throw out statistics that they don’t understand, or make factual assertions that are incorrect, I correct them. But don’t take it personal. 🙂
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p>I do agree with you that she will be confirmed without much trouble. I’m guessing 80 votes, give or take a handful.
80 votes is a good guess, I’ll say 75.
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p>I don’t take anything said on blogs personal… I would suggest that you don’t label people or pretend you know everything about them because of a comment on a blog.
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p>Good points ref the reversal rate, and perhaps that is or isn’t a stupid statistic. The same can be said of your argument concerning 90% of discrimination cases. Maybe the 90% were no-brainers? Maybe one or two of the other 10% were big cases in which she missed the mark?
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p>All that aside, there is still the issue concerning her role as a judiciary, her comments, and Ricci (to me a no-brainer…I don’t know why it even needs to be debated).
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p>She’ll get through. No politicians want to be portrayed as an old, evil, anti-latina, white male… And you know that is exactly what will happen and PART of the reason she was picked.
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that there were nearly 100 of them, so it’s a much better sample than the reversal rate question. And she disagreed with her colleagues in only a tiny fraction of those cases, which suggests she’s a mainstream judge. (And in one of those cases, she disagreed because she thought the other two judges were insufficiently protective of a white racist’s free speech rights.)
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p>Could a couple of lines in her speeches have been phrased better? Sure. But when you read the whole thing with an open mind, I think you will see that she is making a very mundane point, namely, that everyone’s life experience affects the way they see the world. Judges, like all other humans, are not computers, nor is judging anything like calling balls and strikes in a baseball game, despite John Roberts’ incredibly disingenuous claim that that’s how he sees it.