Ricci v Destefano: Affirmative action and the lessons of adversity

Supreme Court Review

Volumn 2009, Issue , 2009, Pages 83-114

  Rutherglen, George ^a  

^a UNIVERSITY OF VIRGINIA SCHOOL OF LAW   (United States)

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[No Author keywords available]

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EID: 78149276285     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/653644     Document Type: Review

References (72)

1. 129 S Ct 2658 (2009).
2. 426 US 229 (1976).
3. See, for example, David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U Chi L Rev 935(1989)
4. Daniel R. Ortiz, The Myth of Intent in Equal Protection, 41 Stan L Rev 1105(1989).
5. § 703(k)(1)(A)(i), codified as 42 USC § 2000e-2(k)(1)(A)(i) (2006).
6. Brief of the Society for Human Resource Management as Amicus Curiae in Support of Respondents 22-24
7. Brief of Industrial-Organizational Psychologists as Amici Curiae in Support of Respondents 8-21.
8. Weber v United Steelworkers, 563 F2d 216, 230 (5th Cir 1978) (Wisdom, J, dissenting), rev'd, 443 US 193 (1979).
9. Michelle A. Dean, Philip L. Roth, and Philip Bobko, Ethnic and Gender Subgroup Differences in Assessment Center Ratings: A Meta-Analysis, 93 J App Psych 685(2008).
10. Uniform Guidelines on Employee Selection Procedures § 14C, 29 CFR § 1607.14C (2009).
11. Ricci, 129 S Ct at 2684-88 (Alito, J, concurring)
12. id at 2690-95, 2707-09 (Ginsburg, J, dissenting).
13. Ricci v DeStefano, 554 F Supp 2d 142 (D Conn 2006), aff 'd 530 F3d 87 (2d Cir 2008) (per curiam), rev 'd 129 S Ct 2658 (2009). The Second Circuit originally affirmed the district court's judgment with a one-line order, 264 Fed Appx 106 (2d Cir 2008), but this was withdrawn and the two-paragraph per curiam opinion was substituted for it after the Second Circuit voted to deny rehearing en banc. 530 F3d 88 (2d Cir 2008).
14. These judges, including then-Judge Sotomayor, concurred in Judge Katzmann 's opinion, which stated: "The Supreme Court now has before it a petition for certiorari in this case, which I recognize presents difficult issues." 530 F3d at 90 (Katzmann, J, concurring). Judge Calabresi also filed a concurring opinion, offering a subtle and complex argument to the effect that the case was too subtle and complex to be taken en banc. Id at 88-89 (Calabresi, J, concurring).
15. In her dissent, Justice Ginsburg said that she "would not oppose a remand for further proceedings fair to both sides." 129 S Ct at 2707 (Ginsburg, J, dissenting). See also id at 2702-03 and nn 9, 10, 2707. The Obama administration took the same position in its amicus brief. Brief for the United States as Amicus Curiae Supporting Vacatur and Remand 32.
16. Transcript of Oral Argument at 57.
17. For the statement of the city's position in its brief, see Brief of Respondents 27-33. The city also contended that there was evidence of alternatives with less disparate impact than the tests used. Id at 33-37. The city's fear of a lawsuit by minority applicants who failed the tests has since materialized in the aftermath of Ricci. Briscoe v City of New Haven (D Conn, filed Oct 15, 2009). The merits of this lawsuit now seem to be foreclosed by the opinion in Ricci, which gives the city the same "strong basis in evidence" defense to a claim of disparate impact as it has for one of disparate treatment. 129 S Ct at 2681. Even before the decision, however, a decision by the city to discard the test results because the tests were invalid would have protected it from a lawsuit by minority applicants. In the absence of any promotions based on the tests, there would have been nothing for the minority applicants to attack.
18. See John C. Jeffries, Jr., Bakke Revisited, 2003 Supreme Court Review 1.
19. 488 US 469, 500 (1989).
20. 476 US 267, 290 (1986) (O'Connor, J, concurring in part and concurring in the judgment).
21. This feature of the case distinguishes it from Personnel Administrator v Feeney, 442 US 256 (1979), in which the Supreme Court upheld a state veteran's preference statute despite its obvious adverse impact upon women. The Court held that the state had not engaged in intentional sex-based discrimination. Although the state legislature was aware of the preference's adverse impact on women, it did not enact the preference for that reason. "'Discriminatory purpose,' however, implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." Id at 279 (footnotes and citations omitted). By contrast, the city of New Haven was both aware of and acted on the adverse effects of the promotion tests.
22. These efforts appear at various points in its brief: "On the contrary, Title VII and the Constitution permit, indeed favor, the City's limited and reasoned race-neutral action." Brief for Respondents 2. "This case does not involve racial classification but rather raceneutral action-the noncertification applied to all candidates of all races." Id at 14. Compliance with Title VII is "a legitimate nondiscriminatory reason." Id at 24 n 16.
23. 129 S Ct at 2675(quoting Watson v Fort Worth Bank and Trust, 487 US 977, 992 (1988) (opinion of O'Connor, J)).
24. For the most recent analysis to make this point, see Deborah Hellman, When Is Discrimination Wrong? 13 (2008) ("Descriptively, to 'discriminate' is merely to draw distinctions among people on the basis or absence of some trait.").
25. David Faigman et al., A Matter of Fit: The Law of Discrimination and the Science of Implicit Bias, 59 Hastings L J 1389 (2008).
26. International Bhd. of Teamsters v United States, 431 US 324, 335n 15(1977). In a forthcoming article, Professor Richard Primus offers a novel and different account of how the distinction between intentional discrimination and disparate impact evolved.
27. Richard Primus, The Future of Disparate Impact, 108 Mich L Rev draft at 22-23 (2010).
28. He argues that Teamsters signaled a radical departure from how the distinction was understood when it was first advanced by the Supreme Court and that Ricci has perpetuated this departure. He contends that "intentional discrimination and disparate impact were not yet rigorously distinguished from each other" in the early 1970s, and, in particular, in McDonnell Douglas Corp. v Green, 411 US 792 (1973)
29. and, by inference, in Griggs v Duke Power Co., 401 US 424 (1971). Yet in both McDonnell Douglas and Griggs the Court made precisely this distinction. In McDonnell Douglas, the Court reversed a decision that treated the case as one of disparate impact, because it should have been treated as one of intentional discrimination, 411 US at 805-06; and in Griggs, the Court reversed a decision that treated the case as one of intentional discrimination, because it should have been treated as one of disparate impact, 401 US 428-29. Professor Primus also argues that "intentional discrimination and disparate treatment were considered two separate categories" at this time.
30. Primus, 108 Mich L Rev draft at 22.
31. Only in the mid-1970s, on his view, did the Supreme Court equate "intentional discrimination" with "disparate treatment," after it had demoted disparate impact to a secondary theory of liability in Washington v Davis, 426 US 229 (1976). This point about the usage of "disparate treatment," however, demonstrates only that the Supreme Court did not use terminology that was then to be found only in a few obscure decisions, mainly by the EEOC.
32. As Professor Primus candidly acknowledges, "[w]hen Griggs was decided in 1971, no appellate court had yet spoken of 'disparate treatment' in a Title VII case," Primus, 108 Mich L Rev draft at 22-23 and n 100, and no Justice used the term in Griggs, McDonnell Douglas, or Washington v Davis.
33. For the role of fault in civil rights law, see John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 Va L Rev 47 (1998). (Pubitemid 128443477)
34. International Bhd. of Teamsters v United States, 431 US 324, 339, 342 n 23 (1977).
35. For instance, under the Voting Rights Act, Title VI of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. For a summary of these provisions and the decisions interpreting them, see George Rutherglen, Disparate Impact, Discrimination, and the Inherently Contested Concept of Equality, 74 Fordham L Rev 2313, 2317-19 (2006).
36. See note 34 below.
37. See 129 S Ct at 2682 (Scalia, J, concurring).
38. § 703(m), 42 USC § 2000e-2(m) (2006). Under McDonnell Douglas Corp. v Green, 411 US 792, 803-04 (1973), the defendant bears only the burden of production, and only of producing "a legitimate, nondiscriminatory reason" for the disputed decision. The structure of proof in class claims of intentional discrimination is much the same, because the plaintiff still must persuade the trier of fact to find discrimination even after making out a prima facie case. See Hazelwood School Dist. v United States, 433 US 299, 309-13 (1977).
39. 401 US 424 (1971). For instance, the Court stated that Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation." Id at 431.
40. Michael L. Selmi, Was the Disparate Impact Theory a Mistake? 53 UCLA L Rev 701, 738-46 (2006).
41. For an analysis of earlier cases, see George Rutherglen, Disparate Impact Under Title VII: An Objective Theory of Discrimination, 73 Va L Rev 1297, 1320-23 (1987).
42. City of Richmond v J. A. Croson Co., 488 US 419, 493 (1989) (opinion of O'Connor, J)
43. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 146 (1980)
44. John Hart Ely, The Constitutionality of Reverse Racial Discrimination, 41 U Chi L Rev 723, 736 (1974).
45. Justice Ginsburg thoroughly examined all the evidence in the case and cited only instances of intentional discrimination in the New Haven fire department dating from the 1970s. 129 S Ct at 2690-91 (Ginsburg, J, dissenting).
46. E.g., Miller v Johnson, 515 US 900, 916-17 (1995).
47. 457 US 440 (1982).
48. "The statute speaks, not in terms of jobs and promotions, but in terms of limitations and classifications that would deprive any individual of employment opportunities." Id at 448 (footnote omitted). For constitutional decisions that follow this principle, see Regents of the University of California v Bakke, 438 US 265, 316-18 (1978) (opinion of Powell, J)
49. Gratz v Bollinger, 539 US 244, 270-75 (2003). Both decisions struck down easily administered numerical standards for admission to programs of higher education, insisting instead on individualized treatment of each applicant.
50. Parents Involved in Community Schools v Seattle School District No. 1, 551 US 701, 783-98 (2007) (Kennedy, J, concurring in part and concurring in the judgment).
51. Jeffrey M. Jones, Race, Ideology, and Support for Affirmative Action (Aug 23, 2005) athttp://www.gallup.com/poll/18091/Race-Ideology-Support-Affirmative- Action.aspx. "Support for affirmative action has been known to vary depending on how the question is worded, particularly when the question describes the programs in more detail. Surveys conducted in the past five years by the major polling firms show a range of support from as low as 38% (when the term 'racial preferences' is used) to as high as 64%."
52. In City of Los Angeles, Dep't of Water & Power v Manhart, 435US 702 (1978), a case concerned with sex-based actuarial tables, the Court rejected the argument that sex-neutral actuarial tables would have a disparate impact upon men. "Even a completely neutral practice will inevitably have some disproportionate impact on one group or another. Griggs does not imply, and this Court has never held, that discrimination must always be inferred from such consequences." Id at 710 n 20 (emphasis in original).
53. Uniform Guidelines on Employee Selection Procedures § 4D, 29 CFR § 1607.4D (2009).
54. § 703(k). The actual language first appeared in the Americans with Disabilities Act, passed a year before the Civil Rights Act of 1991.
55. 401 US at 431 (emphasis added).
56. 129 S Ct at 2698.
57. 490 US 642 (1989).
58. The Court went back to the opinion of Justice O'Connor in Watson v Fort Worth Bank and Trust, 487 US 977, 992 (1988) (opinion of O'Connor, J), 129 S Ct at 2675. In this respect, however, Justice O'Connor spoke only for four Justices in a case in which the Court was equally divided.
59. 129 S Ct at 2682 (Scalia, J, concurring). In making this argument, he prominently cited Richard Primus, Equal Protection and Disparate Impact: Round Three, 117 Harv L Rev 493 (2003).
60. See also Charles A. Sullivan, The World Turned Upside Down? Disparate Impact Claims by White Males, 98 Nw U L Rev 1505 (2004).
61. In another decision last Term, under the Voting Rights Act, the Court expressed a similar unwillingness to declare landmark civil rights legislation unconstitutional. Northwest Austin Municipal Utility District Number 1 v Holder, 129 S Ct 2504 (2009).
62. § 703(l), codified as 42 USC § 2000e-2(l ) (2006).
63. § 703(n), codified as 42 USC § 2000e-2(n) (2006).
64. Pub L No 102-166, § 116, 105St at 1071 (1991).
65. Pub L No 102-166 §§ 2(2), 3(2), 105St at 1071.
66. John Rawls, A Theory of Justice 63 (rev ed, 1999).
67. § 703(j), (l ), codified as 42 USC § 2000e-2(j), (l) (2006).
68. 129 S Ct at 2675-76.
69. Johnson v Transportation Agency, 480 US 616, 636-37 (1987)
70. Local 28 of Sheet Metal Workers Intern'l Ass'n v EEOC, 478 US 421, 475-76 (1986) (opinion of Brennan, J).
71. Judge Easterbrook has forcefully made this point. Biondo v City of Chicago, 382 F3d 680, 684 (7th Cir 2004).
72. An exception to this proposition is United Steelworkers v Weber, 443 US 193 (1979), which was conspicuously not cited in any of the opinions in Ricci. That case upheld a oneto-one ratio in training for skilled craft positions. Moreover, it did not require a prima facie case of prior disparate impact on minority employees as a prerequisite for upholding this program. Where Weber did not find a prima facie case of disparate impact to be necessary, Ricci did not find it to be sufficient. The cases can be reconciled only on the ground that the preference in Weber was necessary "to break down old patterns of segregation and hierarchy," 443 US at 208, while no such showing was made in Ricci.