Though uncomfortably close, it was a victory for liberty. By a 5-4 margin, the U.S. Supreme Court today in Ricci v. DeStefano overturned a Second Circuit Court of Appeals ruling that defended a local government race-based job promotion policy. The City of New Haven, Connecticut, the High Court said, erred when it scrapped the results of a written exam designed for promoting local firefighters because the highest scorers did not include any blacks. The ruling is especially noteworthy because it rebukes Supreme Court nominee Sonia Sotomayor, who wrote the circuit court decision. Whether the case will be used to bar race-based quotas in the future, however, is less certain.
The case originated in 2003 when the City of New Haven administered tests for promotion to lieutenant and captain within the fire department. Fully 77 persons took the test for eight lieutenant slots. None of the 19 blacks taking the test scored high enough to qualify. The top eight scorers included seven whites and one Hispanic. The City, fearing a “disparate-impact” suit by black firefighters and allied civil-rights groups, quickly discarded the test and called for a replacement version, one presumably more likely to produce a “fair” outcome.
One of the whites left out in the cold was Frank Ricci, someone who went that proverbial extra mile. Though dyslexic, he quit his second job to study for the exam, bought $1,000 worth of reading materials, and studied every chance he could. He wound up finishing sixth. Rather than accept his fate, he sued, alleging that the municipal government had violated Title VII of the Civil Rights Act, which bars intentional race-based employment discrimination. More than a dozen and a half firefighters joined him as co-plaintiffs. Unfortunately, the U.S. District Court ruled for the City. Ricci then appealed and lost. By a 3-0 margin, the Second Circuit of Appeals, in a remarkably terse, unsigned decision penned by Judge Sotomayor, upheld the lower court.
This past April, the Supreme Court heard the case. And today, on June 29, it made clear its view that the City of New Haven lacked the authority to toss out test scores simply because it feared a lawsuit by those who didn’t score high enough. Writing for the majority, Justice Anthony Kennedy opined, “Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.” Joining him were Chief Justice Roberts and Justices Alito, Scalia and Thomas. Dissenting were Justices Ginsburg (author of the dissent), Stevens, Breyer and Souter. As it is David Souter’s soon-to-be-vacated seat that Sotomayor would fill, the decision most likely would have been the same even if the ruling had been postponed until the next session.
While the ruling is gratifying, in the long run it may mean little unless Congress and the courts resolve the ambiguity contained in Title VII of the Civil Rights Act. On one hand, the law expressly prohibits racial discrimination in job hiring and promotion. On the other, it requires employers to ignore test scores that produce a “disparate” racial impact, unless the employer can prove a compelling necessity to retain the test. Typically, providing such proof is expensive and often futile. That’s why the City of New Haven took the easy way out. Hopefully, lawmakers one day will repeal the disparate-impact doctrine altogether so that employers, whether in the private or public sector, won’t have to fear the consequences of hiring on the basis of merit alone. They shouldn’t expect any help, however, from Sonia Sotomayor, who in court rulings and speeches has made clear that she supports race-based job quotas. That’s another way of saying that the Senate ought to look elsewhere to fill Justice Souter’s job slot.