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Ricci v. DeStefano is an employment discrimination case decided by the Supreme Court of the United States on appeal from a Second Circuit decision. The case garnered notoriety because of the nomination of Sonia Sotomayor to the Supreme Court of the United States.

Ricci v DeStefano was filed by Frank Ricci and seventeen other firefighters against the City of New Haven, Connecticut. Ricci alleged that New Haven engaged in race-based discrimination when it refused to certify an exam that Ricci passed but too many minorities did not pass; the certification of the exam would have led to promotions for the plaintiff firefighters.^[1]

On February 28, 2008, a three-judge panel of the Second Circuit that included Sotomayor wrote a summary order siding with New Haven. On June 9, 2008, the same 3-judge panel withdrew the summary order and published a per curiam opinion in which Sotomayor and the other judges affirmed the decision of the district court, siding with the City of New Haven.^[2]

In a 5-4 reversal, the Supreme Court ruled that New Haven unfairly discriminated against the white firefighters on the basis of race. While there were Constitutional disputes, particularly with the Equal Protection Clause of the Fourtheenth Amendment, the Supreme Court ruled only on the statutory grounds of Title VII.^[3]

The Supreme Court's decision was written by Justice Anthony Kennedy. He was joined by Chief Justice John Roberts and Justices Scalia, Thomas and Alito.

Facts

In 2003, the New Haven fire department was planning to fill seven openings at the captain level and eight openings at the lieutenant level.^[4],^[5] The city conducted a promotion exam designed by the Illinois company, Industrial/Organizational Solutions.^[1] A total of 118 applicants took the exam; 22 of the applicants were African-American. None of the African-Americans scored high enough on the test to qualify for promotion to the position of captain or lieutenant.^[6]

In regards to the seven captain openings, the top nine test takers were seven whites and two Hispanics. ^[7] Nevertheless, the New Haven fire department scrapped the results of the test in order to ward off a lawsuit under Title VII of the Civil Rights Act of 1964 which allows minority workers to sue employers if they can establish that a promotion test exerted a "disparate impact" on minorities.^[8] Additionally, the federal Equal Employment Opportunity Commission has an "80% rule", which says that a job-related test in which the passing rate of a racial minority is less than 80% of the white rate is presumptively flawed.^[1]

Frank Ricci, a white firefighter who has been in the New Haven fire department for eleven years, scored 6th out of the 77 test-takers. ^[9] According to Ricci's sworn statement, he gave up a second job to study 13 hours a day for the test. He is dyslexic, and he paid an acquaintance over $1,000 to read textbooks onto audiotapes. He also took practice tests, used flashcards he made, and participated in a study group and mock interviews.^[8]

After the test results were thrown out, Ricci and seventeen other white firefighters, including one Hispanic firefighter, sued in federal court on the basis that they had been discriminated against because of their race.^[8]

Procedural History

The suit was filed with the United States District Court for the District of Connecticut. Judge Janet Arterton ruled in favor of the city on September 28, 2006, holding that no one suffered any discrimination since no one was promoted.^[1],^[10]

Ricci then filed an appeal of Arterton's decision with the Second Circuit. This case was heard by a three-judge panel that included Sotomayor. The Court issued a summary order on February 15, 2008, affirming the decision of the lower court. ^[11] The opinion has not yet been published. On June 9, 2008, the Court withdrew its summary order and then issued a per curiam opinion, again affirming the decision of the district court.^[12]

On June 12, 2008, the full panel (en banc) of Second Circuit judges were then asked by Ricci to consider the three-judge panel's decision. In a 7-6 decision, running 72 pages, the full panel declined to re-hear the case.^[13]

Ricci then filed an appeal with the Supreme Court of the United States, which agreed to hear the case and conducted a hearing in late April 2009.^[14],^[15]

The Per Curiam opinion

While usually reserved for simple cases and those cases that, in the words of Judge Cabranes of the Second Circuit, "present straight-forward questions that do not require explanation or elaboration by the Court of Appeals," a per curiam opinion was issued by the court. ^[16]It is one paragraph and reads as follows:

We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

^[17]

Title VII and the Second Circuit

Title VII is a federal statute first enacted in 1964 (later amended in 1991) as the Civil Rights Act. It generally prohbits employers from discriminating on the basis of one's race, among other classifications. While intentional discrimination on the basis of race is prohibited, so is any employment action that causes an unintentional case of discrimination (adverse impact). An employer may not "limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." ^[18].

The Second Circuit affirmed the district court's opinion that an employer is not in violation of Title VII if he or she takes action to avoid a racially disparate impact. The test, the court concluded, had a racially disparate impact since no black candidates qualified for a promotion. New Haven could not therefore be faulted for simply trying to avoid a potential case of employment discrimination under Title VII. In the Court's opinion to deny a rehearing, the majority concluded that an employer may take "facially neutral, albeit race-conscious, actions to avoid such liability" under Title VII. ^[19] Thus, although Ricci and others were denied a promotion, the Second Circuit held that New Haven was simply trying to abide by Title VII and was therefore not guilty of any discriminatory offense.

Title VII and the Supreme Court

In its 5-4 reversal, the Supreme Court ruled that an employer, such as the City of New Haven, may take action to avoid racially disparate impact only if there is a "strong basis in evidence" that the employer would be subject to liability. In particular, an employer would have to have a "strong basis in evidence" that its action was (1) not job related and consistent with business necessity or (2) that there exists an equally valid, less discriminatory alternative. Here, Justice Kennedy found that the City of New Haven had no substantial basis in evidence for either (1) or (2).^[20] Justice Kennedy wrote the following: "Whatever the City's ultimate aim--however well intentioned or benevolent it might have seemed--the City made its employment decision because of race. The City rejected the test results soley because the higher scoring candidates were white."^[20]

Scalia's Concurring Opinion

In his concurrence Justice Antonin Scalia wrote the following: "I join the Court's opinion in full, but write separately to observe that its resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provision of Title VII of the Civil Rights Act of 1964 consistent with the Constitution's guarantee of equal protection?"^[20]

Alito's Concurring Opinion

In his concurrence Justice Samuel Alito wrote that, even had the dissenting justices had their way, the City would still be precluded from arguing that it had a legitimate reason for discarding the test. Rather, Justice Alito argues, the City discarded the test in order to "place a politically important racial constituency."^[20] In particular, the mayor of New Haven, John DeStefano, had a long-standing political relationship with a powerful African-American Reverend, Boise Kimber, who in 2002 held a position on the New Haven Board of Fire Commissioners "despite the fact that," in the words of the district court, "he had no experience in the profession, fire administration, or municipal management."^[20]

Justice Alito highlighted an episode between Reverend Kimber and the Board of Fire Commissioners:

KIMBER: “I look at this [Board] tonight. I look at three whites and one Hispanic and no blacks. . . . I would hope that you would not put yourself in this type of position, a political ramification that may come back upon you as you sit on this [Board] and decide the future of a department and the future of those who are being promoted. . . . . . “(APPLAUSE).”^[20]

Justice Alito goes on to state the real reason--the illegitimate reason--that New Haven discarded the test results by quoting the fact findings of the district court: "a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.”^[20]

Ginsburg's Dissenting Opinion

In her dissenting opinion Justice Ruth Bader Ginsburg first noted the history of racial discrimination in America, including within fire departments. She also noted an unequal access to study materials. She wrote: "While many Caucasian applicants could obtain materials and assistance from relatives in the fire service, the over-whelming majority of minority applicants were “first-generation firefighters” without such support networks."^[20] She ultimately argued that the City needed merely a "good cause" to suspect that the City would face liability before discarding the test. Since other cities had similar or better tests that yielded less-disparate results, New Haven thus had a legitimate reason, or "good cause," to discard the test.^[20]

Criticism of the Second Circuit Ruling

• Judge Cabranes, a Bill Clinton appointee on the Second Circuit, wrote a lengthy dissent of the Court's denial to rehear the case en banc (as a full court). His chief criticism was that the case presents too many difficult issues to warrant a per curiam opinion. By issuing a per curiam opinion the Court "thereby converted a lenghty, unpublished district court opinion, grapling with significant constitutioanl and statutory claims of first impression, into the law of this Circuit." 530 F.3d 90, 95.

• Cabranes also wrote that Sotomayor's opinion "contains no reference whatsoever to the constitutional claims at the core of this case" and its "perfunctory disposition rests uneasily with the weighty issues presented by this appeal."

• Washington Post columnist Richard Cohen said of the case, "Ricci is not just a legal case but [about a] man who has been deprived of the pursuit of happiness on account of race." Cohen also wrote that the decision by Sotomayor was "noble in its ends and atrocious in its means."^[4]

• George Will said the decision was "indefensible."^[21]

Reaction to the Supreme Court's ruling

The Supreme Court's ruling in Ricci was immediately lauded by conservatives, partly because of what are seen as its implications for evaluating Sonia Sotomayor. The editors of the conservative magazine National Review wrote, "The decision is a sharp rebuke for Second Circuit Judge Sonia Sotomayor...The only consensus the nine justices found was that the handling of the case by Sotomayor’s three-judge appeals-court panel was shoddy."^[22]

External links

• Supreme Court Opinion: Ricci v. DeStefano
• Ricci v DeStefeno on the SCOTUS Wiki. This link includes links to all supporting briefs and filings in the case.
• Transcript of oral arguments before SCOTUS on Ricci

Further reading

• Slate: Supreme Court Breakfast Table - Ricci
• Thomas Sowell: "Empathy" in Action
• NYT: New Scrutiny of Judge Sotomayor's Most Controversial Case
• George Will: On Race, the Slog Goes On
• Jesse Jackson: High Court Ignores the Greater Good
• Michael Barone: Firefighter Case Shows Seamy Side of Racial Politics

References