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Tilting at Windmills

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May 27, 2009
By: Hilzoy

The Ricci Case

One of the criticisms of Sonia Sotomayor is that she was part of a panel that affirmed a district court ruling in Ricci v. DeStefano. Here are the basics of the case:

"In 2003, the New Haven Fire Department decided to base promotions to the positions of captain and lieutenant primarily on a written exam. But the next year the city threw out the test results when all but one of the eligible candidates for promotion proved to be white. New Haven firefighter Frank Ricci, a high scorer on the test who is white, sued for reverse discrimination."

I have read many professions of outrage about this decision, but most of them focus on whether it is a good thing or a bad thing that Frank Ricci didn't get his promotion, rather than what the law requires. This puzzled me. Many of the same people who are outraged by the decision also criticize Judge Sotomayor on the grounds that she will substitute her personal preferences for the requirements of the law as written. One might therefore expect them to consider what the law required in this case, rather than simply asking whether the outcome she affirmed was the one they preferred. Oddly enough, however, they didn't.

So I decided to read the case for myself. As best I can tell, the argument in the district court ruling, which the Second Circuit accepts, is as follows:

Ricci and his fellow plaintiffs allege that New Haven's decision to throw out the test was an act of intentional discrimination that violates Title VII of the Civil Rights Act. To prove this allegation, the plaintiffs must first show that there is a prima facie case that they were discriminated against. Next, the defendants can argue that despite this prima facie case, they had a legitimate reason for doing what they did. If they cannot do so, the plaintiffs win; if they can, we move on to step three: the plaintiffs can argue that this supposed reason is a mere pretext disguising discriminatory intent. If they succeed, they win; if not, they don't.

The District Court found that the plaintiffs had established their prima facie case. However, they also found that New Haven had a legitimate reason for acting as it did: wanting to comply with the very same Title VII under which they are being sued. And they found that this reason was not, as the plaintiffs alleged, a mere pretext. Thus, they found for New Haven.

A lot turns on their finding that New Haven had a legitimate reason for throwing out the test. Here, the central points seem to be as follows: first, New Haven's concern about violating Title VII was not just an idle worry. Title VII requires employers not just to inspect their hearts and not find any discriminatory intent, but to consider the racial impact of things like tests. And the EEOC, in interpreting this requirement, has given clear guidance about what impact counts as suspect:

"A selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact."

The rates at which blacks and Hispanics passed the New Haven tests were well below 80% of the rate at which whites passed. That means that those tests were presumptively in violation of the law.

There are various things an employer can do to show that a test that has a disparate impact on some racial group is nonetheless OK. New Haven did not do any of these things, though it does seem to have spent a fair amount of time trying to figure out what accounted for the disparate impact, without success. But the steps New Haven did not take are not required: to get on the right side of the law, you can either take those steps or avoid the disparate impact by scrapping the measure that produces it -- unless, of course, scrapping that measure is itself a violation of Title VII.

The plaintiffs argued that scrapping the tests was a violation of Title VII. The Court disagreed. Here again, though, they didn't pull this conclusion out of thin air. This question is governed by precedents, which the District Court discusses on pp. 31-40. I read one of them (Bushey v. New York State Civil Service Commission), and it is very much on point; I'm not a lawyer, but I think that the court would have had to overturn it in order to decide this case differently. Their basic point, as summarized by the Second Circuit, is this:

"These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability."

Scrapping the test was race-conscious: the point was to avoid running afoul of Title VII by having a test that so few blacks and Hispanics passed. But it was facially neutral: New Haven did not require that whites pass the test but waive those requirements for blacks, or anything like that; they cancelled the whole test, for everyone. You might wonder whether this really counts as neutral, but the precedents seem pretty clear to me: in Bushey, the action the court said was OK was race-norming their exams (i.e., setting up different curves for different races, so that each race had about the same percentage of people passing.) It's hard to see how one could say that that's not discrimination, but scrapping an exam in order to come up with a new one is.

A District Court cannot overturn a previous appellate court decision, but an appellate court can. The Second Circuit could have overturned its own precedents had it seen fit. They did not, for reasons that they explain here.

The basic point of all this is: both the District Court and the Second Circuit seem to me to have been applying the law in accordance with clear precedents. This is what judges are supposed to do. And anyone who thinks that this decision (made by this court) is problematic should not go on to criticize Judge Sotomayor for judicial activism, since no one who genuinely thought there was a problem with substituting one's own views about what the law ought to be for what it actually says would object to this decision.

Hilzoy 10:58 PM Permalink | Trackbacks | Comments (59)

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Comments

Even a test on which the white pass rate far exceeds the minority pass rate can be acceptable if the test has been validated for the job in question. If the test was a valid measure of job-related knowledge, skill, or ability, New Haven would have stood a good chance of prevailing in court.

Posted by: KTinOhio on May 27, 2009 at 11:28 PM | PERMALINK

Hilzoy, for a non-lawyer, you just did a fantastic job of diving into the actual law of Title VII. I'm genuinely impressed. Many commentators on the web with law degrees are sadly not bothering to read the case in detail.

I also think your conclusion is precisely correct: it would definitely have been judicial activism to reach out and unsettle the settled law that an employer is legitimately allowed to try to comply with Title VII - including the "disparate impact" part of Title VII. The Supreme Court may yet reach out and do just that, but they have a little more flexibility to change the law than the Second Circuit does.

I would just like to add one small detail to the story - a procedural thing that I'm more familiar with as a lawyer in the Second Circuit. Some people on the web seem to be criticizing Judge Sotomayor not for how the three-judge panel she was on *resolved* Ricci, but rather, for the fact that they just did it in a short paragraph instead of writing a full opinion. This criticism is very misguided. Not uncommonly, the Second Circuit judges on an appellate panel decide that the District Court judge has done an excellent job, and therefore conclude that nothing is gained by having them essentially rewrite all the reasoning that is already set out in detail by the lower court. So, they do a short paragraph, and in effect just incorporate by reference the reasoning of the trial judge. (It's a feather in the cap of the trial judge when it happens - it means they did an particularly good job.) That is what happened here. It happens all the time. One conservative judge on the court, Jose Cabranes, decided to make a stink about how his colleagues had given the case short shrift. He was well aware that Sotomayor and her panel were not doing anything unusual; he just wanted to prompt his colleagues and/or the Supreme Court to take a closer look at the case. (He succeeded: the Court granted cert.) The allegation that Sotomayor and the other judges on the panel were trying to "bury" or ignore the issues in this case is wholly without connection to reality.

Posted by: J., JD on May 27, 2009 at 11:36 PM | PERMALINK

What really pisses me foo regarding Ricci is that those SCUM REPUGS and "conservatives" make it sound like Sotomayor decided this case, ALL On Her OWN.

I tried to find the breakdown of the court's decision, by who voted for what side of the decision, and what the Final was number wise regarding her fellow Second Circuit judges.

I think this is an important fact to know; what was the breakdown of the judges, and who those other judges were.

Can someone please help me find the facts about the Second Circuit judges who helped make this decision, the brakdown of the final vote, and what are the names of the Second Circuit judges who decided the Ricci case

Posted by: barkleyg on May 27, 2009 at 11:38 PM | PERMALINK

This is a very clear discussion of the case. A minor clarification: a three-judge panel of the circuit court cannot overturn a prior ruling of the court and must follow it. The panel that Sotomayor sat on had no choice but to follow Bushey. All the judges of the court sitting as a single panel ("en banc") can overturn a prior ruling of the court, but no litigant has a right to an en banc hearing and in this case the judges voted 7-6 not to have one.

Posted by: Bloix on May 27, 2009 at 11:38 PM | PERMALINK

Thank you Bloix for the breakdown of the decision. Would you happen to know the names of the judges, what side they took, and most importantly to tell the Repug SCUM to shut their mouths, the Political affiliation of each of the judges?

Posted by: barkleyg on May 27, 2009 at 11:41 PM | PERMALINK

J and Bloix: thanks, especially for the added info.

barkleyg: from the second court decision affirming the district court's decision (linked above):

"Judges Calabresi, Straub, Pooler, Sack, Sotomayor, Katzmann, and B.D. Parker concur in the denial of rehearing in banc. Chief Judge Jacobs and Judges Cabranes, Raggi, Wesley, Hall and Livingston dissent from the denial of rehearing in banc."

Posted by: hilzoy on May 27, 2009 at 11:46 PM | PERMALINK

Barkleyg, you can read the 2nd circuit opinion here.

http://www.cir-usa.org/legal_docs/ricci_2dcir_rhdn.pdf

The judges who sat on the panel with Sotomayor were Rosemary Poole and Robert Sack. Both are Clinton appointees. Google them for their bios.

The vote of the 2nd Circuit not to hear the case en banc was 7-6. You can see the breakdown in the opinion and google the judges for their bios.

Posted by: Bloix on May 27, 2009 at 11:50 PM | PERMALINK

It will probably not be surprising to anyone to know that the 7-6 decision not to rehear the case en banc was split precisely along liberal-conservative lines. All seven more or less liberal judges voted for no rehearing en banc; all six conservative judges voted to rehear. (I will be surprised if the Supreme Court doesn't break down, more or less, in a similar way. Justice Souter, whom Judge Sotomayor is slated to replace, will very, very likely take the same position she took.)

As for the individual judges:

- Judges Calabresi, Straub, Pooler, Sack, Sotomayor, Katzmann, and Parker, who voted not to rehear, are the seven relatively liberal judges. All were appointed by Democratic Presidents except Barrington Parker, who was also originally nominated by Clinton, at the end of his term, but who George W. Bush was nice enough to renominate, so officially he was appointed by Bush.)

- Chief Judge Jacobs and Judges Cabranes, Raggi, Wesley, Hall and Livingston, who voted to rehear, are the six more conservative judges. All were appointed by Republican Presidents except Cabranes, who was a Clinton appointee who has become very conservative over time.

Posted by: J., JD on May 27, 2009 at 11:55 PM | PERMALINK

I have been wondering if Obama sees the Ricci case, and the attention it will get as a result of Sotomayor's nomination, as a benefit. It's fairly easy to understand and it pretty clearly shows that the right's cries of judicial activism have nothing to do with separation of powers but are instead about conservatives' dissatisfaction with the way certain cases come out.

Posted by: Chris on May 28, 2009 at 12:08 AM | PERMALINK

Blix, Hilzoy, and J,JD, thank you very much for providing this information. I was lazy, and must have gone thru the 46 pages too quickly, and missed the page I was looking for.

Thanks again.

Posted by: barkleyg on May 28, 2009 at 12:20 AM | PERMALINK

If New Haven could validate the test as job related than they could continue to use it--most likely they could not. Which raises the question of why conservatives think that a test that had not been demonstrated to be job related should determine who gets a promotion. Beyond this oddity it is in fact conservatives here who want judicial activism. That is they want to use the power of courts to overturn an action of a local government. So much for judicial restraint and federalism.

Camus

Posted by: Camus on May 28, 2009 at 12:50 AM | PERMALINK

This is all true, and interesting, and totally beside the point.

Consistency is not required here. The right knows it cannot and will not win this one, its goal is simply to exact as much blood as it can to soften up the Democrats for the next fight, which if there is a God will involve Scalia's or Thomas' seat rather than Stevens'.

Angry guys like Thomas and Scalia are at elevated risk for strokes, after all.

Posted by: jprichva on May 28, 2009 at 1:24 AM | PERMALINK

I think the lesson here, and with Steve's post below about "empathy," is that conservatives aren't actually making these criticisms honestly. "Judicial activism" and "strict constructionist" aren't real issues, they're just pretty language to dress up what they truly dislike, which is "judges who make decisions we don't like," and pretend it's a principled position.

Posted by: Redshift on May 28, 2009 at 1:24 AM | PERMALINK

yes, she will be confirmed.

legally: yes, precedent holds.

politically: this is stinky, and will be perceived by a majority as such.

who said: let men not be judged by the color of their skin, but by the content of their character.

on to 2010: it all adds up in the voters' minds.

Posted by: ellen on May 28, 2009 at 1:28 AM | PERMALINK

What a deep and interesting study of an issue the public, while knowing next to nothing about the case, nevertheless has a strong opinion on.

And a hat tip to the posters above for adding to the discussion.

That said, the main stream will continue to bloviate about the poor, dyslexic fireman. Last week that old reliable curmudgeon Pat Buchanan, the last bastion of White Male Defenders, turned purple with rage on Morning Joe.

Posted by: DAY on May 28, 2009 at 6:02 AM | PERMALINK

I would be shocked if the SCOTUS didn't overturn this case and essentially invalidate the 4/5 rate clause from Title VII. What will be more interesting is the effect of Republican venom toward Sotomayor, further defining them as the rich, white, male protectionist party. And while it is irrelevant to this case, it would be interesting to see whether Ricci is as compelling a symbol as, say, Lily Ledbetter. It would also be interesting to know what criteria were ultimately used for promotion after the test scores were tossed out.

Posted by: Danp on May 28, 2009 at 7:10 AM | PERMALINK

politically: this is stinky, and will be perceived by a majority as such.

Shorter -- er, longer -- "ellen": Never mind that Sotomayor had the facts and the law on her side, the right is going to scream that she's a racist in hopes of creating a perception in the voters' minds.

Sure, the right does a great job of creating an alternate perception of reality, but ISTM that they've done a piss-poor job of altering public perceptions -- it takes time, but the American people figure out that whatever the Republicans say is bullshit.

Of course, "ellen"'s dishonest little screeds don't take nearly as long.

Posted by: Gregory on May 28, 2009 at 7:53 AM | PERMALINK

OMIGOD...you actually read up on this and then nicely laid it out here...perhaps you could send this to Blitzer, Matthews, et al (forget Faux News) so they have SOME idea what they are talking about...on the other hand, never mind, it would just confuse everyone if they actually provided factual information for consideration in their 15 second panels of paid for commenters!!!!

Posted by: Dancer on May 28, 2009 at 7:54 AM | PERMALINK

Kudos - what a phenomenally clear and helpful summary of the case. I'd been hearing so much about it but hadn't been able to get the factually summary I was looking for. A thousand thanks.

All best wishes,

Karin

Posted by: KarinJR on May 28, 2009 at 7:56 AM | PERMALINK

I think you know the answer to your confusion.

Judicial Activism =Deciding for what I don't like
Judicial Restraint=Deciding for what I like.

Posted by: Marc on May 28, 2009 at 8:01 AM | PERMALINK

perhaps you could send this to Blitzer, Matthews, et al (forget Faux News) so they have SOME idea what they are talking about

As your own post acknowledges, it isn't Blitzer's and Matthews', et al, job to have some idea of what they're talking about.

Posted by: Gregory on May 28, 2009 at 8:16 AM | PERMALINK

It's pretty obvious to anyone who reads the cases that Sotomayor just followed established law here. And that's true even if the Supremes overturn; which they might, the precedents like Bushey are a quarter-century old now, and times change.

But I'll admit I'm a little surprised that nobody here can find a sympathetic word for the plight of Frank Ricci, who really did get royally screwed by the system here. The city set up rules for promotion, he spent a lot of money getting ready for the tests, and when he did well, the city threw out the results because they didn't like the skin color of the winners.

I'm curious, is everyone just circling the wagons around Sotomayor, or is there still almost monolithic support for affirmative action among the net roots?

Posted by: WoofWoof on May 28, 2009 at 8:38 AM | PERMALINK
But I'll admit I'm a little surprised that nobody here can find a sympathetic word for the plight of Frank Ricci, who really did get royally screwed by the system here.

Why should I feel more sorry for Ricci than I do for those individuals, black and white alike, who were screwed by an unfair test -- a test that did not really test the skills and qualifications necessary for the position that they were all vying for?

Moreover, if the ruling on this case stands, Ricci is not permanently denied his promotion opportunity. He will have the same opportunity that everyone in the department has -- to try again, this time with a test that actually makes sense. He might even do better on such a test. If the ruling is overturned, those other individuals who were denied this opportunity have no such recourse.

The city set up rules for promotion, he spent a lot of money getting ready for the tests, and when he did well, the city threw out the results because they didn't like the skin color of the winners.

Complete nonsense. That is not what happened here and you know it. Come back when you're ready to be serious.

I'm curious, is everyone just circling the wagons around Sotomayor, or is there still almost monolithic support for affirmative action among the net roots?

This discussion has nothing to do with affirmative action and everything to do with whether a specific case was correctly decided, based on the law and on precedent. I can be completely opposed to any and all affirmative action, be completely opposed to Title VII, and still decide that Sotomayor decided the case correctly.

Posted by: PaulB on May 28, 2009 at 9:14 AM | PERMALINK

"on to 2010: it all adds up in the voters' minds."

You just keep telling that yourself, dear; I'm sure it will make you feel ever so much better.

Free clue: The Republicans have far more to lose from this contretemps than do the Democrats, given how disgracefully all too many of them have behaved thus far.

Posted by: PaulB on May 28, 2009 at 9:16 AM | PERMALINK

well, by "voters' minds," I meant white people. that's what most people think of when they think of voters.

Posted by: elien on May 28, 2009 at 9:25 AM | PERMALINK

PaulB, I'm not entirely sure I get your point. I think you're trying to say that since the results had a disparate impact, therefore the test was biased and irrelevant, case closed, no argument. Is that your point?

I just don't see how that follows. The city tried to create a non-biased test. I've seen absolutely zero evidence from the test itself showing how certain questions may have been biased (although I'd be very interested to see such evidence if it exists).

As for its relevance to the job, the fact that the city thought it would be expensive to litigate the issue isn't evidence of irrelevance: everybody wants to avoid lawsuits regardless of legal standing. The city certainly thought the test was relevant when they used it.

As for the legal issues, we're in complete agreement that the law was followed here; I was very clear about that in my original comment.

Posted by: WoofWoof on May 28, 2009 at 9:30 AM | PERMALINK

Ms Hilzoy, may I add to the kudos from supra as to your excellent summation.

Both Human Events and Pat Buchanan, as well as Mica are writing that the Republican Party should, once again, become the "Party of Frank Ricci". He is becoming a rallying cry from the neanderthals of the right. Won't be long before the "For The Cause" appears.

Posted by: berttheclock on May 28, 2009 at 9:36 AM | PERMALINK
PaulB, I'm not entirely sure I get your point. I think you're trying to say that since the results had a disparate impact, therefore the test was biased and irrelevant, case closed, no argument. Is that your point?

Oh, please... You simply cannot get this statement from anything I wrote or anything that the court wrote. That is what *you* wrote; please don't project your own biases onto anyone else; it just makes you look foolish.

I just don't see how that follows.

Why should you? It's your own strawman argument. Amazing how easy it is to knock those down, isn't it?

I've seen absolutely zero evidence from the test itself showing how certain questions may have been biased (although I'd be very interested to see such evidence if it exists).

Have you even read the test? A quick Google search showed me half a dozen articles highlighting the flaws in the test, including questions that were completely inapplicable to New Haven (the test borrowed heavily from another test), and a lack of questions regarding the ability to supervise and manage other people, the role that the people were supposedly being tested for.

As for its relevance to the job, the fact that the city thought it would be expensive to litigate the issue isn't evidence of irrelevance:

Gee, that must be why nobody has made such a claim. Funny how that works.

The city certainly thought the test was relevant when they used it.

And thought otherwise when they reviewed it, as did the lower court and the appeals court. Did you have a point to make?

As for the legal issues, we're in complete agreement that the law was followed here; I was very clear about that in my original comment.

Then why the silliness about "circling the wagons" and "monolithic support for affirmative action," when neither is even remotely an apt description of the current discussion?

Posted by: PaulB on May 28, 2009 at 10:08 AM | PERMALINK

I think you're trying to say that since the results had a disparate impact, therefore the test was biased and irrelevant, case closed, no argument. Is that your point?

I won't speak for PaulB, but that is the point of the relevant law -- when the results have such a demonstrable disparity, the test is presumed biased, and the burden of proof is on the city to show it was not. So no, "case closed, no argument" doesn't apply. The city did have an opportunity to make an argument; they simply failed to meet that burden.

The city tried to create a non-biased test.

And your evidence of that is...what, exactly?

In any case, whether the city tried to create a non-biased test is irrelevant. The fact is the city appears to have, in fact, created a biased test.

I've seen absolutely zero evidence from the test itself showing how certain questions may have been biased

So what? The city had its opportunity to demonstrate, against the evidence that whites performed disporprtionately well, that the test was not at fault, and they failed to do so. QED.

Posted by: Gregory on May 28, 2009 at 10:13 AM | PERMALINK

Agreed Woof.

Democrats shouldn't have a tin ear for people who get screwed by the system because they're white.

This is exactly the kind of thing that Obama won voters with when he said "smarter not bigger" government. Is a 4/5ths percentage regardless of sample size reason for disallowing the results of a test (without corroborating evidence of discrimination) smart government? No.
If five black people pass a test and five white people don't, there's probably not discrimination. If five thousand black people pass a test that five thousand white people fail, you've got a better case, but you still need more evidence.

Saying "based on republican standards of jurisprudence the right decision was reached, therefore republicans should be happy with this decision" is a bullshit argument. In the same way that 'we don't want judges legislating from the bench' is also a bullshit argument.

The law is wrong, the decision was understandable. Let's change the laws so that municipalities aren't wasting money on lawsuits getting sued for trying to not get sued. Title VII sounds like a shitty, though well intentioned, law.

Posted by: mark ro on May 28, 2009 at 10:28 AM | PERMALINK

Is a 4/5ths percentage regardless of sample size reason for disallowing the results of a test (without corroborating evidence of discrimination) smart government?

But there was corroborating evidence, if not of discrimination, at least of the fact that it was a crappy test. Throwing it out -- and giving everyone a chance to take a test that actually evaluated relevant qualifications -- is smart government, even if some white males find it threatening to their sense of entitlement.

The law is wrong

Read this thread again and then present your evidence for this assertion. Thanks in advance.

Posted by: Gregory on May 28, 2009 at 10:38 AM | PERMALINK

Paul, obviously your google-fu is better than mine, can you post some links? I realize you've got your troll-guard up here, but I'm honestly interested and I'd love to see the arguments.

As to the strawman stuff, I said pretty clearly I didn't really get your point and was guessing at it. The stuff about "monolithic support" just has to do with the fact that in the past 10 years or so, I generally see a wide variety of opinions regarding affirmative action on the left; I'm curious as to whether that's changed somewhat or these current discussions are simply because these discussions would be somewhat tangential to the legal points regarding Sotomayor.

Gregory, the city didn't fail to demonstrate anything, they chose not to even try. This isn't a test that a judge threw out while the city tried to defend it; in this case it's the city itself who threw out the test.

In fact, that's why Ricci is kind of stuck in the middle here. The law is written in such a way that assumes actors will try to defend their actions, and generally, that makes sense. In this case, though, the city is trying to achieve diversity; they have absolutely no interest in defending something with a disparate impact.

That really leaves Ricci with no legal recourse at all.

Posted by: WoofWoof on May 28, 2009 at 10:56 AM | PERMALINK
Democrats shouldn't have a tin ear for people who get screwed by the system because they're white.

Funny how I'm just not seeing that. Perhaps you can point me to some of those Democrats, particularly those in a position of authority or prominence?

The law is wrong

Is it? You still have to demonstrate that. I don't think this case will be a good example, though, particularly with a test so flawed. Is there really a problem with insisting on a test that will actually test what is needed for the position that is being filled?

Posted by: PaulB on May 28, 2009 at 10:58 AM | PERMALINK
Gregory, the city didn't fail to demonstrate anything, they chose not to even try.

That's because they reviewed the test and realized that it was indefensible, which is why they threw it out and started over again.

In this case, though, the city is trying to achieve diversity; they have absolutely no interest in defending something with a disparate impact.

Garbage. You simply cannot back up your assertions and you know it. When they saw the disparate impact, they reviewed the test and realized that the test was fatally flawed. At that point, they threw it out and started over again. What would you have had them do instead? If you want the best person for the job, you need to devise a test that will best demonstrate those skills actually needed for the job.

That really leaves Ricci with no legal recourse at all.

Correctly so. Ricci is not "entitled" to the position he's applying for. He's entitled to compete for that position on a level playing field with everyone else applying. He has not been denied this position; he's simply going to have to take a more appropriate test, along with everyone else who applied. In what way is he being treated unfairly? Why should I feel more sympathy for him than I should for those denied the opportunity because they did less well on an inappropriate test?

Posted by: PaulB on May 28, 2009 at 11:05 AM | PERMALINK

"When [New Haven] saw the disparate impact, they reviewed the test and realized that the test was fatally flawed."

We're all speculating as to how the city decided the test was fatally flawed. That said, I don't understand how the city wouldn't know it had an invalid test on its hands until the scores came in. Did the city conduct a job analysis before it developed the test?

Posted by: KTinOhio on May 28, 2009 at 11:21 AM | PERMALINK

the city didn't fail to demonstrate anything, they chose not to even try.

Are you kidding? Then of course they failed to demonstrate. QED.

Posted by: Gregory on May 28, 2009 at 11:25 AM | PERMALINK

I deliberately didn't get into the question what I thought the law ought to be, and whether I thought Ricci got screwed, since my point was just to figure out whether the courts correctly applied the law and existing precedents. That said:

I hate that Ricci studied so hard and the exam got thrown out. As a matter of policy, I don't know what the right answer is. The present law is a response to the problem of employers designing tests in order to discriminate, and to the difficulty of proving intent. It says: look, when a test actually has a disparate impact, it is presumptively discriminatory; it's up to the employer to explain why it is not. Scrap that, and I suspect you'd get a lot of discrimination in disguise. Keep it, and you get Frank Ricci.

Neither alternative is optimal. It would have been much, much better if we hadn't ever discriminated in the first place, and thus had no need for imperfect remedies, attempts to smoke out discriminatory tests, etc. I think I come down in favor of present law, but that doesn't mean I have to like it in this particular case, and in fact, I don't.

Posted by: hilzoy on May 28, 2009 at 11:34 AM | PERMALINK
Neither alternative is optimal.

Definitely. Nobody on either side of the issue really likes this case. I suspect, based on the oral arguments that it will be overturned, but probably on a 5-4 or, at best, a 6-3 vote, with Souter likely voting as did Sotomayor.

The real issue is whether this case says anything about Sotomayor, about her abilities, her biases, and so forth. And there, the answer is clear and definite: no.

Posted by: PaulB on May 28, 2009 at 11:38 AM | PERMALINK

That's because they reviewed the test and realized that it was indefensible, which is why they threw it out and started over again.

You know, we're going back and forth on whether the city actually had evidence that the test was unfair, apart from the disparate impact. I think they didn't because I see a lack of evidence of unfairness, and you think they did, although you provide no evidence for it. If you have evidence, I'd love to see it, but in fact I think we're both just guessing.

And of course, this difference is natural, since there is pretty much no evidence in the record either way. In fact, the DOJ argued that the case should be remanded to establish an evidentiary record.

And that's exactly my argument: Ricci deserves his day in court, and the city should be required to show why they think the test is unfair (the city's contention that throwing out the results is neutral because it affects everyone is pretty ridiculous IMHO).

Hilzoy's comment above illustrates my general point exactly. This was a tough case and the result wasn't entirely fair to everybody. And given our history, there are reasons for that. But why is that so hard for some people to admit?

Posted by: WoofWoof on May 28, 2009 at 12:08 PM | PERMALINK

I would be shocked if the SCOTUS didn't overturn this case and essentially invalidate the 4/5 rate clause from Title VII.

I would be shocked if it did. The city ought not to be found to have violated someone's civil rights by complying with a facially valid federal regulation, even if that regulation turns out to be invalid, later on.

Posted by: rea on May 28, 2009 at 12:20 PM | PERMALINK

we're going back and forth on whether the city actually had evidence that the test was unfair, apart from the disparate impact.

Again: The law doesn't need evidence of unfairness apart from the disparate impact. Given disparate impact, the test is presumed to be unfair, and the burden of proof is on the city to show it isn't unfair.

The city did not do so.

I think they didn't because I see a lack of evidence of unfairness

But that's irrelevant -- "lack of evidence of unfairness" isn't good enough to stand up in court. They needed proof the test was fair. They chose not to present any, possibly because they realized they couldn't.

and you think they did, although you provide no evidence for it.

Your steadfast refusal to acknowledge the arguments presented to you reflects poorly on you, not your interloquitors.

Ricci deserves his day in court

And he had it. It's just the decision was not in his favor.

Moreover, he still has the opportunity to compete for the job on a level playing field.

But why is that so hard for some people to admit?

Who, exactly, is refusing to admit the outcome isn't optimal for Ricci? hilzoy and PaulB explicitly agreed the outcome was unfavorable to him, and so do I.

ISTM that the key is your preceding statement: given our history, there are reasons for that. Do I detect an implication that minorities are being favored at the expense of white male privilege?

If so, bullshit. As hilzoy painstakingly explained, the law's outcome may have been less than favorable for Ricci, but it's necessary to prevent actual discrimination that's almost certainly to go against nonwhites.

The test was not a good assesment of the qualifications for the job. The city didn't attempt to prove that it was nondiscriminatory. Those two facts are almost certainly related to the fact that the city threw the test out.

Ricci can now compete on a level field with everyone else for a job that he was previously favored to get because he's a white male. Are you prepared to admit what, exactly, your beef with that is?

Posted by: Gregory on May 28, 2009 at 12:23 PM | PERMALINK

The test was not a good assesment of the qualifications for the job.

This is at the heart of things. I've seen absolutely no evidence for this assertion. Maybe it's out there, if so please just point me to it. It certainly won't be the first time I've been wrong about something.

But that's irrelevant -- "lack of evidence of unfairness" isn't good enough to stand up in court. They needed proof the test was fair. They chose not to present any, possibly because they realized they couldn't.

Or possibly because they didn't like the results of the test. Here's the question: does Ricci have the right to find out which is true? If the test gets thrown out, should the city need to show why? The district court granted summary judgment, which basically means no.

And I think that's wrong (although possibly legally compelled under current law). If the city says "oh, we screwed up, the test was unfair, here's why, and here's how we're fixing it", that seems pretty reasonable to me. To say "we don't like the result, we're throwing it out and we don't need to show why", that seems wrong.

Do I detect an implication that minorities are being favored at the expense of white male privilege?

I don't think you do, but then I'm also a believer that we all have hidden prejudices that sneak out sometimes. In fact, I thought I was making the opposite point: that small bits of individual unfairness are necessary to correct our long history of injustice and discrimination.

To sum up: on the political question, the idea that this case reflects poorly on Sotomayor is ridiculous on its face. On the legal question, I'm pretty much in agreement with the Solictor General: the facts matter here.

But on the general question, I think affirmative action in general usually raises complex issues of fairness. I don't have much patience with the crowd that screams endlessly about "reverse discrimination" but never manages to see the constant racism and sexism that pervades American life. On the other hand, it wouldn't hurt us to remember that on the other side there are guys like Ricci who are just trying to follow the rules and get by while powers-that-be move the goalposts around trying to figure this stuff out.

Posted by: WoofWoof on May 28, 2009 at 1:02 PM | PERMALINK

The linked article from the L.A. Times sheds some light on the facts of the case...

http://www.latimes.com/news/opinion/la-oe-westfaulcon24-2009apr24,0,5548886.story

Simply put, the test was not a valid measure of supervisory skills, and some items were irrelevant in New Haven. The city was made aware of these facts by experts in the field. The use of this test would have amounted to psychometric malpractice.

Posted by: KTinOhio on May 28, 2009 at 1:47 PM | PERMALINK

Excellent topic, discussion and clarifications.
Special thanks to Hilzoy and the attorneys for weighing in. Helps my non-legal mind appreciate our system tremendously.

Posted by: Kevin on May 28, 2009 at 1:54 PM | PERMALINK

There's a saying in the law: "Bad facts make bad law."

This case is a fantastic example of that. To get to this point, New Haven had to first go ahead and administer a test without conducting a validation study of it (oops); then a few firefighters (who were white) had to spend a lot of time and money studying, so that they blew the rest of the field out of the water; then New Haven was left in the position defending a test that I don't think was "racially biased," but that basically wasn't that great. So New Haven backed off, on what I'm sure was sound legal advice about how to avoid liability... except that then they got sued, by Ricci and co., who were understandably mad that their hard work didn't pay off.

Result: MESS!

This case should have settled. Since it went all the way to the Supremes, my guess is, bad facts will make bad law. Title VII, which is a pretty important law, is going to become a big mess as the conservative justices try to carve a giant Ricci exception out of it.

Posted by: lawyer on May 28, 2009 at 2:00 PM | PERMALINK

also, kudos to Hilzoy for the clear summary of how Title VII works here.

Everybody seems to assume the public doesn't want to know / can't understand actual legal issues. It's not true. If you explain things clearly, any legal issue is understandable. There may be some more issues like this over the summer of Sotomayor confirmation hearings, so I hope you'll do this again.

Posted by: lawyer on May 28, 2009 at 2:09 PM | PERMALINK

This is at the heart of things.

No, not really -- at the heart of things is that the disparate results were, legally, subject to a presumption of bias that put the burden of proof on the city to disprove. They did not do so.

But you can certainly enjoy the same burden of proof. If you want to establish that the test was, in fact, not racially biased, have at it.

I've seen absolutely no evidence for this assertion.

But again, there doesn't have to be evidence that the test was biased; it was legally presumed so, and the burden of proof was on the city -- and now, you -- to prove otherwise.

Or possibly because they didn't like the results of the test.

An assertion, of course, that you have absolutely no evidence for.

But no -- worse yet, you're factually wrong, as you'd know if you'd read hilzoy's original post. You're suggesting that the city wanted to promote minorites over whites, and when they "didn't like" the results of the tests that mostly whites passed, they just willy-nilly threw out the test.

But the case record, cited by hilzoy in her post, shows that the city had a legitimate concern about violating Title VII, and that the burden of proof would be on them to show the test was fair.

But contrary to your insinuation, the city's colution was racially neutral: Get a new test, that everyone has to pass with no favoritism.

Here's the question: does Ricci have the right to find out which is true?

He has the right to take the city to court. He did so, and the judgment went against him, for the reasons that have, by now, been patiently explained to you many times over.

If the test gets thrown out, should the city need to show why?

It did, in its filings with the Court, which the Second Circuit accepted

The district court granted summary judgment, which basically means no.

Not at all -- to the contrary, the case is a matter of . Again, as you'd know if you'd read the post.

If the city says "oh, we screwed up, the test was unfair, here's why, and here's how we're fixing it", that seems pretty reasonable to me.

But again, under the law, the city said "oh, we screwed up, the test is presumably unfair, we can't prove it is fair, and here's how we're fixing it." That seems pretty reasonable to me -- to say nothing of being in full compliance with the law.

To say "we don't like the result, we're throwing it out and we don't need to show why", that seems wrong.

And your evdence that such is actually the case -- in light of the many contrary facts on record -- is....what, exactly?

I don't think you do

Oh, by now I certainly think I do. You keep focusing on the city's supposed need to prove its test was unfair to minorities. They had no such burden -- indeed, they had a burden to prove the test was fair, which, if they could have met it, would have withstood any legal challenge under the same law we're discussing now.

it wouldn't hurt us to remember that on the other side there are guys like Ricci who are just trying to follow the rules and get by

And who, exactly, is not remembering this? And for that matter, it wouldn't hurt us to remember that there are guys like the minority colleagues of Ricci's who are also just trying to follow the rules and get by -- only to be slapped with a test that's presumptively racially biased.

Yes, a white male lost a position of relative advantage over minorities. Given that his position comes at an unfair cost to those same minorities, given your passionate invocation of fairness, I'm sure you'll understand why the loss of white male privilege doesn't seem too tragic.

Moreover, no one's moving the goalposts. Again -- again! -- Ricci had his day in court, and will have an opportunity to compete fairly using a race-neutral test. If your complaint isn't simply that a white man is losing an unfair advantage, what, exactly, is your beef?

Posted by: Gregory on May 28, 2009 at 2:12 PM | PERMALINK

If the test gets thrown out, should the city need to show why?

Let me re-emphasize this point: The city did declare why it threw out the test in its filings to the court. To suggest, as WoofWoof appears to be doing, that the city had some nefarious motive to promote minorities at the expense of while males -- as opposed to setting a race-neutral policy -- WoofWoof would have to assert that the city and its lawyers perjured themselves in their filings with the Court.

Since you're so worked up about assertions without evidence, WoofWoof, I'm dying to see your evidence for that one -- and no, the mere fact that a white male lost an unfair priviliege doesn't count.

Posted by: Gregory on May 28, 2009 at 2:24 PM | PERMALINK

KTinOhio, thanks for the link, albeit to an editorial rather than news piece. I did know about the localization argument, that was made at oral argument also; I honestly don't see how one or two questions makes a big difference though, and it certainly doesn't go to bias (though it does go to relevance).

lawyer, we're pretty much 100% in agreement here. The whole thing's a mess, and Ricci got caught in the middle. But given the current court, the result is likely to be something much worse. Hilzoy made much the same point in comments, originally I was simply surprised that no other commenters had made it.

Gregory, the heart of the case at SCOTUS is about the burden of proof lies, and what level of scrutiny should be applied to the evidence, so debating it here seems a bit pointless. And the ad hominem stuff is overwhelming the argument, so that's usually a good place to stop. Last word is yours.

Posted by: WoofWoof on May 28, 2009 at 2:33 PM | PERMALINK

"...it's necessary to prevent actual discrimination that's almost certainly to go against nonwhites.

The test was not a good assesment of the qualifications for the job. The city didn't attempt to prove that it was nondiscriminatory. Those two facts are almost certainly related to the fact that the city threw the test out.

Ricci can now compete on a level field with everyone else for a job that he was previously favored to get because he's a white male. Are you prepared to admit what, exactly, your beef with that is? "

This case highlights that we are in anything but a post-racial era. You make a lot of huge assumptions here, Gregory, that will happily now see some daylight as a result of this case and this nomination.

FYI, Ricci cannot now nor ever compete on a level playing field. He's dyslexic.

Who really knows how this will play out? The focus on Title VII and justice for all might even eclipse the identity politics here.

We live in interesating times.

Posted by: ellen on May 28, 2009 at 2:33 PM | PERMALINK

Ricci's dyslexia obviously didn't hurt his performance on the test that was thrown out, so it shouldn't be a problem when he tests again. If he needs ADA accommodations (e.g., extra time) when he takes the test, he can get them.

Posted by: KTinOhio on May 28, 2009 at 2:40 PM | PERMALINK

by 'the focus....here' I refer more to the general politics of Congress, not so much to the nomination itself.

Posted by: ellen on May 28, 2009 at 2:43 PM | PERMALINK

If following precedent gores the ox of a white male, it's judicial activism.

If overturning precedent gores the ox of a woman or a person of color, it's strict constructionism (or orginialism).

Posted by: Tony Scalia on May 28, 2009 at 2:47 PM | PERMALINK

the fact that he more than made up for his disability through personal grit doesn't refute the fact that the playing field is not nor ever will be level for him.

Posted by: ellen on May 28, 2009 at 2:48 PM | PERMALINK

But but but but ... she ruled against FIREFIGHTERS. After 9/11! /RepubliRant

Of course she ruled FOR firefighters, too. Just not WHITE firefighters.

Sheesh.

Posted by: Sarah Barracuda on May 28, 2009 at 2:51 PM | PERMALINK

I honestly don't see how one or two questions makes a big difference though, and it certainly doesn't go to bias

One more time: Under the law, a test with that disproprotionate a pass rate is presumed biased; the burden of proof is on the defendant to demonstrate that it is not.

If you'd like to take a shot at proving the test was hunky-dory, have at it. But at this stage, your obstinate failure to acknowledge this very basis fact of the case simply can't be attributed to good-faith ignorance.

The whole thing's a mess, and Ricci got caught in the middle.

By virtue of no longer enjoying the unfair advantage of a biased test.

the heart of the case at SCOTUS is about the burden of proof lies, and what level of scrutiny should be applied to the evidence, so debating it here seems a bit pointless.

Nonsense. The burden of proof called for in the law is quite clear. You, on the other hand, have made quite a few unsupported assertions, not the least of which is that the city perjured itself in its statements to the Court. You seem awfully prepared imply that Ricci was somehow the victim of an anti-white conspiracy, but the fact that you don't seem prepared to debate the matter is nothing short of evidence that your opinion is, at best, totally unsupported by established fact.

And the ad hominem stuff is overwhelming the argument, so that's usually a good place to stop.

What are you talking about? Who's arguing against the person -- you -- as opposed to your unsupported arguments? If you don't like the stigma of whining because Ricci is unfairly treated by having an unfair privilege taken away, then perhaps you shoudln't hold -- let alone espouse -- that position. But no one's using personal attacks to argue they shouldn't take your arguments seriously; we're demonstrating the unseriousness of your arguments to do so.

So, the last word is mine? Then I'll notice that you bowed out after being challenged to back up a number of assertions, and let the readers of this forum -- or at least those who hadn't already determined that you're arguing in bad faith -- draw their own conclusions.

This case highlights that we are in anything but a post-racial era.

Specifying the white-entitlement push-button tactics of the GOP, on full display here and in other threads, I'd agree.

In fact, here's a hint: Until certain white males get over their sense of entitlement -- the kind that causes them to see a nearly all-white-male SCOTUS and Senate as the natural default result of meritocracy -- we won't be in a post-racial era.

You make a lot of huge assumptions here, Gregory, that will happily now see some daylight as a result of this case and this nomination.

No assumption at all, jackass. There's no "assumption" involved in laying out the facts of the case to demonstrate that, yes, WoofWoof's beef does seem to be at the loss of an unfair privilege by a white male. I'm open to a counterargument, but no one's trying.

FYI, Ricci cannot now nor ever compete on a level playing field. He's dyslexic.

So what? As others pointed out, that didn't stop him from preparing for the test the first time around. And his dyslexia doesn't justify a non-level playing field such as that created by the test. Being dyslexic entitles him to reasonable accomodation to compensate, but not a special privilege attached to being a white male.

Who really knows how this will play out? The focus on Title VII and justice for all might even eclipse the identity politics here.

We live in interesating times.

You can take your ominous implications of some kind of backlash on the part of aggrieved white males and shove 'em. The Democrats have already been through the Southern Strategy and lost the Dixiecrats to the GOP -- which embraced their racist asses with open arms, I might add.

I'll stipulate the Democrats have already lost the kind of yahoo who buys that kind of hite entitlement codswallop, and the Republicans have 'em. That strategy has resulted in the GOP now being a rump regional -- specifically, Southern -- party at an absolute nadir of power and influence among the non-insane. Demographic trends favor the more inclusive party at a time when the GOP is making a big show of its white-male-entitlement priorities. How's that working out for y'all again?

the fact that he more than made up for his disability through personal grit doesn't refute the fact that the playing field is not nor ever will be level for him.

In what way is this a "fact"? In what way does it entitle him to enjoy an unfair racial advantage over other applicants?

I note, however, that your "personal grit" assertion reserves for you the option to complain about remedial measures for those suffering disabilities. Nice.

Posted by: Gregory on May 28, 2009 at 4:03 PM | PERMALINK

Gregory,

Identity politics r u.

Posted by: ellen on May 28, 2009 at 5:07 PM | PERMALINK

Identity politics r u.

For pointing out that your complaint seems to be that a white male lost an unfair racial advantage?

Riiiiiiiight.

Posted by: Gregory on May 28, 2009 at 5:19 PM | PERMALINK

....not only that, but "ellen" has been going around ominously muttering about a backlash of white male entitlement.

Talk about the pot calling the ketter, er, black.

Posted by: Gregory on May 28, 2009 at 5:22 PM | PERMALINK




 

 

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