Rabkin on Ricci: Court Draws a Line, Then Smudges It

The Supreme Court's June 29 5-4 decision in Ricci v. DeStefano reveals the complexity of the case, says Professor Jeremy Rabkin, pointing to a 40-page dissent and a majority opinion nearly as long that is "far from a ringing statement of fundamental principles." "As in so many past cases on racial preferences, the Court has tried to draw a line—and then smudged it," says Rabkin.

The plaintiffs in Ricci v. DeStefano, white and Hispanic firefighters in New Haven, scored high enough on a civil service exam to qualify for promotions; however, the exam was tossed and the promotions denied on the basis that no African-Americans and too few Hispanics scored high enough to merit such promotions. The decision was upheld in a series of opinions up through the Second Circuit Court of Appeals, in which Judge Sonia Sotomayor, currently a nominee to the Supreme Court, afirmed the ruling. The Supreme Court overturned that decision, though not without significant dissent.

Rabkin examines the conflicting viewpoints expressed by the Justices and the concept of "disparate impact" and its effect on decision making.

RICCI Leaves a Lot For Sotomayor To Explain,, June 30, 2009. by Jeremy Rabkin.

"Kennedy's opinion insisted the city would need to have 'a strong basis in evidence' for its claim that the test could be found discriminatory in subsequent litigation. Otherwise, he warned, 'fear of disparate-impact liability would encourage race-based action at the slightest hint of disparate impact' which 'would amount to a de facto quota system.' Justice Ginsburg thought employers should be allowed to discard test results when a test shows a 'disparate impact' and there is 'good cause' to think that differential would justify a discrimination claim. Ginsburg's 'good cause' presumably means more than just any pretext.

"Even under Kennedy's standard, however, the law seems to encourage employers to take race into account to some degree. Justice Kennedy acknowledges that employers are not prohibited 'from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race.' That seems, in fact, to invite employers to glance at the racial implications of tests before they decide which test to use. If employers don't take race into account at any stage, they are increasing their liability to 'disparate impact' lawsuits.

"So if the Constitution requires government to be color-blind, how can it be constitutional for a federal law to nudge employers, even in a somewhat indirect way, into taking race into account in their hiring and promotion decisions? Justice Scalia brought up this concern in a concurring opinion but it says much about the current state of this issue that no other justice joined his opinion."

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