Demolition Specialists: The Supreme Court's 2008/2009 Term

The 2008-2009 term was certainly a busy one for the Supreme Court. It decided 79 cases, 23 of which, according to SCOTUSblog, were split 5-4. Of those 5-4 decisions, 16 were divided along ideological lines. A newly-available Alliance for Justice analysis of the term reveals that "the most ominous theme of the term was the repeated planting of bombs by the Roberts wing of the Court designed to detonate in future terms, including preparations to throw out the Voting Rights Act, eliminate disparate impact violations, dismantle campaign finance law or further erode the rights of criminal defendants."

Ricci v. DeStefano is an example of this approach to dismantling civil rights laws. Alliance for Justice Legal Director Bill Yeomans, an expert in civil rights law who spent decades enforcing civil rights laws with the Department of Justice, provided an insightful analysis of Ricci, which I'd like to share with you today.

Bill Yeomans on Ricci: Supreme Court Rebuilding Barriers?

In Ricci v. DeStefano, the five conservatives on the Supreme Court struck a blow against this nation's most effective weapon for eliminating discrimination from our workplaces: the disparate impact standard of Title VII of the Civil Rights Act of 1964. Over the strong dissent of four justices, the conservative majority held that New Haven, CT engaged in intentional discrimination against white firefighters when it rejected the results of tests for firefighter promotions because they disproportionately excluded African American and Hispanic candidates.

In 1971, in Griggs v. Duke Power Co., a unanimous Supreme Court held that Title VII prohibited employment practices that had a disparate impact on minorities and were not necessary for the job. In Chief Justice Burger's words, Title VII prohibited "employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups..." Some tests were intentional devices to exclude minorities and women, while others were the result of sloppy employment practices. After Griggs, it was no longer necessary to prove that employers intended to discriminate. The focus was on whether hiring and promotion criteria tested for skills that were necessary to perform the job; no calculus tests for sanitation workers or strength tests for accountants. Griggs launched a generation of progress that uprooted entrenched discrimination and desegregated many of our nation's major police and fire departments.

Private plaintiffs, public interest litigators and the Justice Department's Civil Rights Division broke down barriers to minority employment by pursuing litigation and negotiating consent decrees against dozens of states and localities, many of which hired on the basis of legacy, subjective criteria, or flawed employment tests that excluded qualified minority applicants. The result was more professional police and fire departments whose effectiveness increased because they looked more like the communities they served. Chicago, which operated segregated fire houses in 1974, increased African American representation in its fire department from 4% to 20% by 1995. In Los Angeles, the fire department went from 96% white in 1974 to more than 50% nonwhite by 2002, while in Boston minority representation in the firefighting ranks increased from 1% in 1974 to almost 40% by 2000.

Don't let these numbers fool you, however. As New Haven's own situation attests, discrimination and lack of minority representation on fire and police squads is still a very real problem. Though New Haven's population is more than 50% nonwhite, minorities only have an 18% representation in leadership roles within the fire department. Only one of 21 fire captains is African American. This disparity is what New Haven was trying to address.

Opponents of civil rights enforcement, however, are not concerned with these inequalities and fought from the start to eliminate disparate impact enforcement. They contended falsely that it led to quotas. They won a Pyrrhic victory when the Supreme Court, including Ricci author Justice Anthony Kennedy,, severely curtailed the effectiveness of disparate impact lawsuits in Wards Cove Packing Co. v. Atonio. The groundwork for this assault on Title VII was laid in Ronald Reagan's Department of Justice by young anti-civil rights activists, including John Roberts and Samuel Alito. Fortunately, Congress responded by passing the Civil Rights Act of 1991, which incorporated the disparate impact standard into the text of Title VII.

The Court's ruling in Ricci is the latest chapter in the efforts of right wing ideologues to subvert the disparate impact standard. The Court created a new standard, stating that the New Haven needed a "substantial basis in evidence" before it could reject the results of a test that had the overwhelming effect of excluding African Americans and Hispanics from promotion as firefighters. In effect, the Court said that the City would have to prove the case against itself and establish that it had committed a disparate impact violation before it could withdraw the test and start over by searching for a less discriminatory alternative. While the obligations of Title VII remain in full effect, the Court's decision is bound to prove to be a disincentive to employers who want to comply voluntarily with Title VII, but don't want to prove that they have violated Title VII.

In a striking departure from principles that govern appellate review, the Court reversed the case outright, rather than following its usual practice of sending the case back to the lower courts to apply the facts to the new standard in the first instance. The Court's eagerness to impose its judgment was unseemly.

It now falls to the executive branch -- through the Department of Justice, Equal Employment Opportunity Commission and Department of Labor -- to craft new guidance that will minimize the damage inflicted by the Court's ruling and ensure that Title VII's protections remain robust. Should those efforts come up short, Congress may have to consider whether it must step forward yet again to give force to Chief Justice Burger's simple statement in Griggs that, "[t]he objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees."

For more analysis of this term and the impact Sonia Sotomayor could have upon the Supreme Court, please take a look at our in-depth end of term review.

Follow Nan Aron on Twitter: www.twitter.com/NanAron

Comments

[Ohio9]

This article is a blatant fabrication.

New Haven produced no evidence that their test was racist. They only threw out the results because they didn't like the fact that no blacks scored among the top percentage to qualify for immediate promotion.

Throwing out test results soley because you don't think enough people from a certain ethnic group scored high enough IS relying on quota standard. There is no way around it. New Haven was using quotas, and that was never the intention of Title VII.

The real thing truly shocking about this case was that it ended with a 5-4 verdict. This should have been a 9-0 no brainer.

[buttonz]

Some people study, others get a lawyer and tries to manipulate the law.

[buttonz]

Almost all tests need to be improved in order to filter out the best. This applies to the GRE, SAT, LSAT, and many many many others. There are plenty of smart people denied opportunities because of the type of test or they are simply bad test takers. Tests will be more effective as we change them when we discover more effective ways but to simply throw out a test simply because it doesn't suit a group of people because they grow up with the delusion that white society is out to get them. Stop blaming the system, take responsibility and adapt.

[middleoftheroad]

So let me get this right...you study for a test. You work hard and you pass. You don't make the rules, you don't make the test. BUT, because other people DON'T PASS, you are denied your bump...THATS CRAZY! If anything, they should have changed the process for the next test, NOT deny those who passed. She is not a great judge, she was a political pick.

[ndp4949]

This is a ridiculous point to make in the first place. That this ruling should have any affect on the outcome of Sotomayor's nomination is stupid. First of all, she didn't do anything except uphold the ruling of the lower court. And her two other appeals court judges agreed with her. And 4 Supreme Court justices ruled in the same fashion. So the point being, while you are allowed to disagree with her decision, and your grounds for disagreement hold some water, to say that her decision is an outlier and makes her unfit to be a SC justice, is disingenuous. The only reason this case is even brought up is that the GOP wants to make it about race because its an emotional issue. Its working too. The people who thought that they should overturn Ricci, are against her nomination. The people who thought they should uphold the Ricci decision are for it. They are using it as a wedge issue because they know that they have nothing else. Her legal background is solid, her educational experience is impeccable, she comes highly recommended. So they are throwing darts at issues that they know will ellicit an emotional response. But to say that her reasoning in this case is out of whack in some way from the way judges are supposed to, is again, disingenuous

[LeftRight]

First, you are right about what the city should have done.

Second, you are WRONG about Sonya. She ruled based on the previous case law, which stated that the city was RIGHT to have done what they did. That's since been changed by this SCOTUS, who are the ONLY ones who can change case law!

[edgarcaycedoc]

All that tests ever show is how much the testee thinks like the person who wrote the test. If the test is written by a caucasian, those who pass it will be disproportionately caucasian. Likewise, if written by a African-American, those who pass it will be disproportionately African-American. The same for Hispanic-Americans. Until you can make not only education, but also sociological and economic factors equitable, there will continue to be tests administered that reflect a certain bias.

[Romulus]

What was on this test? Do you know? Was it strictly related to firefighting and the management of subordinate firefighters or did have questions unrelated to the profession?

If the test was strictly about firefighting, how can there be a "black way" of fighting fires and a different "white way" of fighting fires?

[laocoon]

the idea that an apparently neutral criteria might actually have the effect of discriminating against a protected group is shown by many prior cases. the fact that so few minorities score well on a particular test raises the question of whether or not the test has a bias even if it is not intended. people who design tests are aware of the fact that such biases can sneak into any test and that a statistically significant difference is evidence of that sort of bias. this is a case where I see all three sides, the white workers, the city and the minorities all have legitimate concerns for different reasons. EG if a test seemed to pass 98% of whites and only 5% of minorities and I were a minority I would be more than a little suspicious. if I understand this result the minorities still can sue the city and they are not bound by this result in this case as they were never parties.

[Romulus]

It's been 45 years since Title VII. How long is it going to take before we can assume that every race is equally competent and not have to make special allowances for so called minorities? Why is it that whites still seem so much more qualified to pass these tests than blacks, especially?

Why is it that we still believe that just because a small percentage of blacks do well on a test that there is something wrong with the test? Why don't we assume instead that there is something wrong with these particular blacks? Blacks, in general, have demonstrated that they have just as much native intelligence as whites and can pass the same tests that whites , in general can pass. Don't you think that succcessful blacks like Obama or Justice Thomas had to pass the same tests in college and law school as their white classmates?

[laocoon]

of course that is possible. thank you for making explicit the underlying interpretation that most of you are insistent on making tacitly. it is at heart an argument that the results are 100% due to the blacks and minorities more or less inherently being lesser candidates than the white firemen. i however point out that the applicants were all presumably performing adequately as firemen. I know that i have never seen a proper study of the probabilities involved in this particular test. My point however is that there are cases where the impact of a facially neutral criteria even a test is biased. Have you read any of the seminal cases on disparate impact. Are you familiar with the math or methods of determining probabilities. there are ways to check the validity of a test and one could with a second criteria develop some information about whether or to what degree the bias is in the subjects or the test. Tests do however sometimes have biases. if you dont believe me read up on it.

[RightWingMarine]

I applaud this ruling. Sotomayor was ruling for nothing short of quotas. Not enough minorities had top scores? Keep testing until you do then promot those firefighters. Had the test gone the other way, 19 black and 1 hispanic, would the city have thrown out the test results?

[laocoon]

you dont understand the ruling. doesnt the city at least arguably have the right and maybe the duty to look at whether or not the criteria they intended to use has produced a racially skewed result. if the result is skewed racially cant they decide to discard the criteria and try to develop a new one. that is not a quota system it is just common sense. it is a lot like double checking your work. it is very unlikely that a group of people who have been performing a job satisfactorily would in testing about that job show extreme racial skewing in the results in the absence of some bias in the test. if the idea were to have someone blindfolded pick names out of a hat and he picked all individuals of his race I would be suspicious that the blindfold was defective. that is not a quota system it is using common sense. in this case it is allowing the city to use common sense. a statistician can tell you how likely it is to get such a skewing without an underlying bias. what if it is only 1% chance that without a bias you would get the results created by this test. must the city ignore that?

[Romulus]

According to the author here, SCOTUS said that the city would have to prove that the test was flawed. Considering that the designers of the test asserted that they went out of their way to insure the test was not biased, I think that is a reasonable demand from SCOTUS.

The city didn't even claim that the test was biased. They decided to scrap the results out fear that they MIGHT get sued. Now if they had analysed the tes and therefore decided that it was biased, that would be a different story. But they didn't do that.

[Sean 6399]

Why can't the evaluate the test takers as individuals, and not representatives of some illusionary race concept?

isn't it possible that the "minority" folks who didn't pass the test, simply weren't qualified for the promotion? And it wasn't only white test takers that passed the test either.

Might it not be possible that different individuals of the same "minority" collectivization grouping might be able to pass the test in question? And wouldn't that imply a deficiency in the first group of test takers, and not in the test itself?

I can't help but feel like it's the liberals that are being offensively racist regarding this case. In my opinion, I expect that if the white guys (and others) can pass the test, then any of the minority guys could pass it too (assuming they studied hard and applied themselves). Liberals seem to immediately jump to the conclusion that the test can't be passed by minorities and is therefore unfair. Why not give those guys who failed a chance to study and retake the same test, before assuming that they are simply too disadvantaged to compete on a level playing field?

[garymc8]

YES. The very same WHITE firefighter would have fought that tooth and nail. I have a friend in the fire department and they seem very racist even in the SF bay area.

[Responsible Liberal]

I come from Sweden and in Europe and Sweden we abide by the European Human Rights convention and for us discrimination is discrimination, it does not matter if its reverse. The Swedish Supreme Court as well as the higher EU courts has upheld this view.

Title VII might have been necessary when the Civil Rights legislation was passed, according to the original legislation it should only have been a temporary measure for 5 years. The repeal of Title VII is long overdue as is the repeal of Affarmative Action.

Title VII prohibits employers from using IQ test, cognitive tests and skill tests. It is based on the absurd notion that if a test does not qualify a certain minimum amount of minorities, the test has to be faulty. A fallacy and it disturbs me that my country of choice, the US, should have such an illiberal piece of legislation.

I employ the ones with the best cognitive abilities and most suitable personality traits. Unfortunately fewer minorities have these skill sets, these cognitive abilities and as a consequence there are fewer to employ. The proportion of skilled among minorities are lower than among Caucasian and East-Asians. This reflects whom I would employ and I therefore applaud the Supreme courts decision to ban all discrimination. Discrimination is always discrimination.

I have up until now refused to employ anybody in the US because of Title VII and the risk of persecution by Civil Rights lawyers senseless lawsuits. I will now start employing.

[NedroidPrime]

Well put sir/ma'am!

All this "lets throw out the test scores" is hogwash. Every individual has the capability to learn and better themselves, the only factor is motivation.

I bet if these same firefighters take the same test next time, they will study like crazy. If they still can't pass, sorry, but that is how the cookie crumbes.

[bigpaws23]

SCOTUS got this one right. By it's own admission, the city went out of it's way to make sure the test didn't discriminate yet the black firefighters still couldn't pass. The white firefighters were denied their rightful promotions because of the color of their skin. Period.

How does more discrimination eliminate discrimination?

[NedroidPrime]

They claim it is about getting rid of discrimination, but people like this author seem to be looking to perpetuate it.

[THORYOU]

they got rights, right king would be happy all men are equal

[Clavis]

What a shock that right-wing authoritarians would be just as willing to use the Judicial branch of government to hand power and wealth over to the top 1% as they are willing to use the other branches of government.

What's more saddening is that neither Alito nor Roberts would be on the Supreme Court at all if we had Democrats in the Senate who did more than head-fake and pretend to find compromise while appeasing the right and making deals under the table...

[gino618]

When will liberals learn and admit that discriminating against whites doesn't correct discrimination against minorities?

20 top test scores are 19 white applicants, and 1 hispanic, but we can't have that, right? Let's deny them their promotions because no other minorities were able to score as well on the test!

And you honestly, with a straight face, can say THAT is not discrimination against those 20?

The fact is, in that case, 19 of those 20 who were denied promotion were denied because they were white, and not minority. That is discrimination no matter how you want to spin it.

GIVING someone a position because of their skin color is just as discriminatory as denying it to them.

[LeftRight]

No one is denying that it was discrimination against the white and hispanic firefighters. What we are saying is that MAYBE the test was actually biased (whether intentionally or not) against minorities. Now then, I'm not too sure that the solution to stopping discrimination based on race is to discriminate, based on race, but can YOU come up with a better solution??

[NedroidPrime]

The idea of a test that is biased against minorities is an intellectual fallacy. No such thing as a question that a minority cannot answer.

Once you accept that fact, this whole thing looks quite silly

[Responsible Liberal]

The tests as I understand it as well as SCOTUS understand it was as close to unbiased a possible. They had been vetted by independent organizations.

No test is perfect but these test were as close to perfect as perfect can be. To call them faulty as Sotomayor did because the percentage of Latin and African Americans were low or in this case zero is an absurd notion. SCOTUS decision was not a conservative decision it was a decision to uphold the liberal US constitution and Bill of Rights. It is a decision that any liberal left or classic can be proud of.

The US is by the way far less racist and discriminates far less than any European country. i find the allegations in the US absurd that the US is one of the most racist countries. Yes, there are virulent racists but they have no influence on policy what so ever in the US.

[Skepticat]

Problem with multiple choice objective tests is they depend on strong reading and language skills and ability to do "nuance" as much as whatever content is being measured. People with better language skills and more test practice will usually do better - other things being equal. Promotional exams have been in contention for 25 years or more - so it's unlikely that the questions alone discriminated against any particular minority - too many cities have been exposed to lawsuits over this.
I used to teach junior high sciences for a living was a volunteer firefighter/EMT and later a sworn law enforcement officer with instructor certification in several disciplines and now do emergency preparedness training. Suffice it to say - this background and lots of test experience rather than my florid complexion is what would give me advantage in a multiple choice promotional exam over many more capable firefighters with less formal education.
The solution is not quota systems - or nullification of results if sufficient of a particular group don't pass but to provide in house training and opportunities which fill in gaps for all those interested in the promotion.

[LewDan]

That's the typical nonsense floated bu those seeking to perpetuate discrimination. Addressing discrimination IN ANY WAY will of course BE discrimination. The lie is that discrimination itself is not a dirty word.

Discrimination just means making a choice, having a preference. There is nothing wrong with necessary discrimination, appropriate discrimination, or beneficial discrimination. The court and conservatives seek to perpetuate racial discrimination in favor of whites by ignoring those distinctions and pretending that making any choice for any reason is bad, but only when it may be bad for whites of course.

[LeftRight]

The one point that I would say the court made the correct decision on in this case is that they said that the city being worried about a lawsuit from minorities wasn't enough to justify throwing out the test.

[NedroidPrime]

And if they had been sued by the black firefighters?

Just because someone claims r@c1sm, doesn't make it true...

[LeftRight]

I didn't say that it did. The city was worried that they would be sued by the black firefighters because none of them had passed. So they threw out the test. The SCOTUS has decided in the Ricci case that they were wrong to do that, and should have waited until they were sued before they considered throwing it out. I think that the court was right to make that decision!