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.