Wednesday, April 22, 2009
Let me just apologize in advance for my inability to make this analysis concise. I've had a chance to read the oral argument transcript in the Ricci v. DeStefano case and to think about it in more detail. So here goes.
Counsel for the petitioners began by framing the city’s actions as a racial classification and arguing that to guard against racial favoritism, the city had to have a strong basis in evidence to conclude that the test was invalid and decide not to use it. On questioning from Justice Stevens, counsel confirmed that the question (of whether the city’s decision was race-based) was a question of law, and not a question of fact. Justice Ginsburg followed up with a series of hypotheticals about disparate impact, potentially pinpointing the real difficulty with this line of argument–and possibly with the way we think about decisionmaking and discrimination at all.
Motive is ordinarily a question of fact, but this fact can be framed in more than one way. What does it mean to say that the city actors saw the races of those who passed and at what rank, grew concerned about that result, and discarded the results? The question of why they were concerned seems very difficult to tease out, but decisive. If they grew concerned because they feared that the test had a racially disproportionate impact and thought that some other method that assessed who would perform well in the job but without that impact was available, that would seem not to be a racial classification in the equal protection sense–the use of race as a proxy for desert. If they grew concerned that they would not be able to promote enough firefighters of the race that did poorly and desired to promote more from that race without regard to qualifications, that would seem to be a racial classification.
These questions get hidden by shorthand. For example, petitioner’s counsel suggested that if the city actors had been concerned about an “improper test,” there wouldn’t be a problem, but equated “improper test” to “unnecessary . . . not job related and could clearly be done by an identifiable alternative.” But that’s not what will make a test “improper” in disparate impact terms. A test can be job related but still cause an actionable disparate impact if there are other valid alternatives that would cause less of an adverse impact on the identified group. So terms like “validity” and “job-related” are relevant, but don’t by themselves answer the disparate impact question.
Justice Souter expressed concern that the petitioners’ position left the city in an impossible position, violating Title VII no matter what action it takes. Justice Kennedy also picked up on this thread and on Justice Ginsburg’s line of questions, asking whether a city would discriminate if it had a choice of two tests, one of which it knew had a statistical disparate impact and the other of which did not by choosing the one that did not. There was significant discussion about whether every instance of race consciousness was by definition race discrimination.
In another instance of using language that seemed to confuse rather than illuminate the issues, counsel for the petitioners said that purely unintentional discrimination should not be considered a compelling interest to overcome intentional discrimination and then later suggested that a disparate impact could be caused by unintentional discrimination or no discrimination at all.
In the end, petitioners’ argument seemed to boil down to the fact that because the firefighters had all taken the test, nullifying the results impaired their dignity. Justice Kennedy seemed amenable to that argument, suggesting in the argument by counsel for the U.S. (which argued as an amicus on behalf of the legal position of respondent, but arguing for remand on the question of whether the asserted justification was a pretext for discrimination) that this fact meant there should be a strong showing that the test is discriminatory before those results can be discarded.
The United States as amicus argued that Title VII prohibits disparate impact and that this prohibition is essential to the statutory scheme. Chief Justice Roberts asked a question that mirrored the petitioners’ framing of the case “So, can you assure me that the government's position would be the same if this test -- black applicants -- firefighters scored highest on this test in disproportionate numbers, and the City said we don't like that result, we think there should be more whites on the fire department, and so we're going to throw the test out?” Counsel for the government identified the conflation, arguing that there were two separate justifications in the Chief Justice’s question: black firefighters scoring highest in disproportionate numbers (which presumably would be a legitimate reason for the City to question the test); and the motive to have more white firefighters promoted (which might be improper unless there is a compelling reason to promote more white firefighters and this mechanism was narrowly tailored to achieve that). Later in that argument, both Justice Scalia and the Chief Justice expressed skepticism that the government would be arguing the same thing if African American candidates had scored high disproportionately.
Justice Scalia suggested that he agreed in this situation that the disparate treatment and disparate impact provisions of Title VII were at war with one another.
Because the government argued that the belief that a neutral test discriminated in its operation had to be reasonable for it to be used as a defense to a disparate treatment claim, Justice Ginsburg asked what indicia of reasonableness there might be. Counsel for the government suggested a gross statistical disparity, evidence of problems with the job-relatedness of the test, and evidence that there are less discriminatory valid alternatives might be some.
Perhaps the comment most damaging to the respondents’ position was one made by Justice Kennedy, “Counsel, [the city] looked at the results, and it classified the successful and unsuccessful applicants by race. . . . and you want us to say this isn't race? I have -- I have trouble with this argument.” Chief Justice Roberts added, “It didn’t look at names; it just looked at the label of what their race was. That’s all they were concerned about.”
The Chief Justice got right to that point in the argument by counsel for respondents: “how do you draw the line between race-conscious that's permitted and racial discrimination that's not?” Counsel for respondents argued that because no one was treated differently on the basis of race (no African American was promoted while a white person was not) that there was no racial classification, at least in disparate treatment or equal protection terms.
In a line of questions about defenses if the Court were to find a racial classification and find that strict scrutiny applied, respondents agreed that they would have to have a strong basis in evidence that the test violated Title VII in order to have that be a compelling interest. There was also quite a bit of discussion on whether the test has to actually have violated the statute (in absolute terms), or whether it was enough that the defendants reasonably believed that it likely violated the statute.
One of the reasons that this case is so challenging and so divisive is that this case seems to be all about the framing of the issue. It is very difficult to separate that framing from the factual question of the parties’ subjective intent or the credibility question of whether to believe their assertions. The way that the facts and law get merged together make for a doctrinal mess. It seems like people talk past each other constantly.
I would have really appreciated someone on the respondents’ side addressing the so-called reverse discrimination argument head on to say, yes, if white firefighters scored disproportionately poorly as compared to African American and/or Latino firefighters, the City would not have engaged in a racial classification by noticing that and by holding hearings about certification. Upon hearing evidence that there may be alternative measures that would have less impact, or that the test may not be job-related enough, the City could refuse to certify, and that refusal would not be because of race within the meaning of either the Equal Protection Clause or Title VII.
Similarly, on the petitioners’ side, I would really have appreciated an explanation of where the line is between race conscious and racially discriminatory. Perhaps the answer would be that any race conscious decision should be considered discriminatory, which might be problematic under the Court’s jurisprudence, but at least that would address the issue head on. And the rhetoric of full colorblindness is what most people who agree with petitioners’ position seem to be using, labeling this as a reverse discrimination or affirmative action case.
I’m not going to make predictions on outcome because I’m never any good at that sort of thing, but I will make some limited conclusions. First, at least some of the Justices seem to believe that throwing the test out because of racially disparate results even with some evidence of potential alternatives with less impact is necessarily motivated by a desire to promote more people of the race that did disproportionately poorly. If enough of the Justices agree with that, a reversal of the Second Circuit is likely on the horizon. At the same time, some of the Justices seem to disagree with that automatic link and also seem to think that a reversal would put employers in an untenable position, violating Title VII no matter what they do. If enough Justices agree with that, an affirmance might be on the horizon. I think it’s safe to say that this will likely be a divided opinion, and it might be fractured enough on at least some points to produce more than the usual majority and dissent.
I also think it's safe to say as Justice Breyer noted, that this has the potential to be "a very far-reaching decision."