The Roberts Court Faces Integration in the Workplace
Ricci v. DeStefano (Nos. 07-1428 & 08-328) - 04/22/09
Almost two years ago, in a 5-4 decision, Chief Justice Roberts, newly appointed by President George W. Bush, wrote a decision dismantling decades of precedent when he rejected efforts by Seattle and Louisville to ensure that their schools were racially integrated. Justice Kennedy joined the four reliable opponents of any remedies for past segregation but left the door open for a future case in which the goal of integrating schools might allow a school district to take race into account in assigning students to schools. Next week, the Court will hear arguments in a case from New Haven, Connecticut, that may test if that door remains open at all, or will be shut forever against efforts to promote racial diversity—this time in the workplace rather than schools.
The Facts
In late 2003, the New Haven Fire Department gave exams for promotion to Lieutenant and Captain. Of the 41 people who took the Captain exam (for 7 vacancies), 25 were white, 8 black, and 8 Hispanic. Of the 77 people who took the Lieutenant exam (for 8 vacancies), 43 were white, 19 black, and 15 Hispanic. No blacks scored in the top ten on either exam, and so it appeared that no backs would be promoted; and only 2 Hispanics scored high enough on the Captain's exam to be eligible for promotion. After conducting extensive hearings, the city agency decided by a tie vote not to certify the exam results—at least in part because of concerns that the impact of the exam results might violate federal law prohibiting race discrimination in promotions.
Seventeen white firefighters and one Hispanic firefighter who took the exam sued in federal court, asserting that the city's "'diversity'" rationale is prohibited as reverse discrimination under Title VII" and the Constitution. But the federal district court rejected their case, in large part because there was no evidence of discriminatory intent by the city and because no one was actually promoted. As Judge Janet Bond Arterton wrote, applying controlling Second Circuit precedent, "[W]hile the evidence shows that race was taken into account in the decision not to certify the test results, the result was race-neutral: all the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process to be considered for promotion."
A three-judge panel, consisting of Judges Pooler, Sack. and Sotomayor (all appointed by President Clinton) of the Second Circuit affirmed in a one-paragraph opinion that adopted the reasoning used by Judge Arterton. The full Second Circuit voted 7-6 to deny rehearing en banc (since that time, one of the 7 voting to deny rehearing has taken senior status), and several judges wrote short opinions explaining their reasoning. Most agreed that the case was worthy of Supreme Court review. The six judges who voted for rehearing included 4 appointed by President George W. Bush, one appointed by his father, and one appointed by President Clinton. The seven voting to deny rehearing consisted of six appointed by President Clinton and one—the only active African-American judge on the court—appointed by George W. Bush.
Supreme Court to Hear the Case
The Supreme Court obliged, granting certiorari on January 9, 2009. In the brief they filed with the Court, the firefighters who sued are asserting that they are victims of discrimination just like "other Americans who have been discriminated against on account of their race and found the courthouse doors open to them," implicitly equating their experience in having perhaps to retake a promotion exam with the legacy of slavery and enforced segregation suffered by African-Americans over a period of centuries. Their brief is carefully crafted to appeal to Chief Justice Roberts and other avid opponents of diversity. Indeed, they begin their brief by asserting that "Our Constitution envisions a society in which race does not matter," and ignoring the important constitutional purpose to undo the effects of slavery and segregation. Unsurprisingly, the brief relies heavily on the decision authored by Roberts less than two years ago that undid decades of precedent governing school desegregation, and the brief makes several references to Justice Kennedy's concurring opinion.
The brief for New Haven argues forcefully that it is perfectly legitimate under federal antidiscrimination law for a municipality to refuse to certify a promotion exam "when faced with a test with a severe adverse [racial] impact." The brief also asserts that the firefighters' constitutional claim—the one that draws directly on Chief Justice Roberts school integration decision from two years ago—is flawed because refusing to certify the exam was a "race-neutral action—the non-certification applied to all candidates of all races," and because there was no evidence of intent to discriminate based on race. Yet it is possible that the archconservatives on the Court, led by Chief Justice Roberts, will find that the necessity of retaking the promotion exam is itself harm that falls primarily on one race. Indeed, the six dissenting judges of the Second Circuit suggested that perhaps "race-based treatment of examination results" may violate the Constitution.
On April 22, the Court will hear arguments in Ricci v. DeStefano (Nos. 07-1428 & 08-328). It is likely that the Court will issue its decision near the end of its Term—perhaps almost exactly two years after its reactionary decision rejecting efforts to diversify public schools.
Obama Administration to Argue in Support of Diversity
One important factor has changed: the Department of Justice of the Obama administration, through the Solicitor General, now supports the side favoring diversity, agreeing with the city that refusing to certify the test results is "race-neutral," unless there is evidence of intent to discriminate. Two years ago, the Bush Justice Department urged the Court to prohibit Seattle and Louisville from taking race into account as part of their effort to maintain school diversity. But whether the Ricci decision will be extended to the employment arena rests largely in the hands of Justice Kennedy and how far open he left the door to government efforts to promote diversity in the workplace.
