Monday, June 11, 2012

SCOTUS Denies Cert in Briscoe v. New Haven

ScotusThe City of New Haven can't seem to win for losing. The Supreme Court today denied cert. on Briscoe v. New Haven. You may recall that a couple of years ago when Ricci v. DeStefano was issued, the majority opinion had a particularly puzzling piece. This is what I said at the time

The last piece of the opinion that I am continuing to puzzle over is the second to last paragraph, where the Court makes this cryptic (to me) statement, providing the City with a defense to the disparate impact lawsuit it was afraid of:

If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

I wasn't the only one puzzling. Michael Briscoe filed that disparate impact lawsuit, and while the trial court dismissed it pursuant to this puzzling language, the Second Circuit reversed, finding the claim not precluded by the Ricci case and finding that the Court's statement was mere dicta. Apparently the Supreme Court agreed by not taking the case on cert today. The City settled with the Ricci plaintiffs, I wonder whether it will figure out a way to settle on the disparate impace suit too, or we'll see yet more litigation on this.


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For what it's worth, my own effort to explain Ricci and to defend the Second Circuit's handling of the puzzling dicta, can be found here:

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jun 12, 2012 9:22:02 AM

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