Monday, June 29, 2009

Ricci v. DeStefano -- Good God What a Mess!

The city of New Haven, Connecticut administered a firefighter Captain's exam in which almost no minority candidates did well. Rather than risk being sued by the minority candidates who did not do well, the City tossed out the results and promoted no one.

Nevertheless, the firefighters who did the best on the exam sued for a mandatory injunction requiring the City to accept the test results and give them the promotions.

The City won at the district court and the Second Circuit. Today the Supreme Court reversed and ruled that the plaintiffs win as a matter of law.

You can look through the opinions all you want, but here is a basic summary:

-- Kennedy thinks that there wasn't enough evidence showing the exam used was defective, so the City had to accept the test results.

-- Scalia is upset that Title VII was ever passed in the first place and he would find the entire thing unconstitutional if he had half a chance.

-- Alito thinks that the City caved into a poor man's Al Sharpton, so he isn't going to put up with that.


-- Ginsburg believes that all written firefighter exams discriminate against minorities, so she would have allowed the city to win.

But let's be frank. This just makes matters worse as a practical matter.

Let's assume that Shreveport, Lousiana decides tomorrow that it is going to change its firefighter exam so that the same exam is used that is used in New Haven, Connecticut. (And why wouldn't you? The SCOTUS has just decided that the exam is perfectly legal and fine. And you know from experience that minorities do worse on the exam.)

So, the exam results come in and 95% of the top exam finishers are white.

Result under today's decision -- City has to promote the white guys.

OK -- but they put the exam in place just for the pure purpose of getting more whites in, right? Or was it because they knew the test was constitutionally approved? Reason 1 is not legal; I assume reason #2 is.......or is it? We know that desire to avoid lawsuits is not a permissible ground for changing your test. We learned that today.

Ginsburg's dissent has three basic problems:

1) She starts it by saying that she has sympathy for the folks who scored best but were not promoted. Bullshit. She has no sympathy for these people. She believes that they benefited from a flawed test and are not entitled to their positions.

Don't lie. Don't claim that you have sympathy for people who played by the rules, did the best and didn't get in. You do not. You feel that they got picked for a bad reason. Basically you think a starting 9 on a baseball club was picked based upon their knowledge of the rules of the game and not on whether they can play. So don't pretend you are sympathetic. You are not.

2) She agrees that if a city "repeatedly" threw out test results that did not feature minority winners that the city might be liable.

Um, why? If it is proper for a city to say, "Yeah, shit, we are going to get sued for these results" then why isn't it OK for the city to say it 2 or 3 or 4 times? Do you get one free bite at discrimination against white folk?

3) Let me mention it, since no one seems to want to mention it in their opinions. Examine the opposite result:

-- the city of Sante Fe, New Mexico has a Captain's exam and 98% of the winners are black and Hispanic and 2% are white. The white population gets all mad and threatens the mayor with no more money for his campaign or his city, and the white guys threaten legal action. Sante Fe throws out the results so the white guys can try again. of the world, right? You are going to toss out an exam because the white guys didn't do well enough? Al Sharpton better love Tex-Mex food because he is going to be in Sante Fe forever.

THE MESS -- Here is the practical mess. What the court has done is make it easier for cities to use discriminatory tests and get away with it. In fact, if you use a discriminatory test, you have a legal obligation to the white guys to defend it to the end of time.

So now every single time that a city has an exam where the racial result is skewed (pro-white or anti-white) the city will be sued. There is nothing the city can do. If the result is skewed, you have a constitutional obligation to defend it. But when you defend the result, you will be sued for disparate impact discrimination and you will not be able to win a motion to dismiss because there will be prima facie evidence of disparate impact. Then you will have 2 years of discovery on whether the city ignored a "strong basis in evidence" that its test was discriminatory.

What the 5-4 decision does (as Ginsburg correctly notes) is make it impossible for a City to avoid litigation risk. The city is damned if it does and damned if it doesn't.

A case that demonstrates the 5-4 conservative-liberal split on the court and that is not very well-reasoned in any of the 3 opinions.


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