Reading Ricci: Whitening discrimination, racing test fairness

UCLA Law Review

Volumn 58, Issue 1, 2010, Pages 73-166

  Harris, Cheryl I ^a   West Faulcon, Kimberly ^b  

^a NORTHWESTERN UNIVERSITY   (United States)

^b DUKE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 78649864544     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (498)

1. See Continuation of the Nomination of Sonia Sotomayor to Be an Associate Justice of the Supreme Court of the United States Before the S. Judiciary Comm., 111th Cong. (2009) (statement of Frank Ricci, Director of Fire Services, Connecticut Council on Occupational Safety and Health) [hereinafter Testimony of Ricci], available at http://judiciary.senate.gov/pdf/07-16-09RicciTestimony. pdf.
2. 129 S. Ct. 2658 (2009).
3. Ricci v. DeStefano, 554 F. Supp. 2d 142 (D. Conn. 2006).
4. Ricci v. DeStefano, 530 F.3d 87(2d Cir. 2008) (per curiam).
5. Panel IV ofthe Nomination of Sonia Sotomayor to Be an Associate Justice of the Supreme Court of the United States Before the S. Judiciary Comm., 111th Cong. (2009) (comments by Sen. Hatch of Utah, S. Judiciary Comm.), available at http://www.nytimes.com/2009/07/16/us/politics/16confirm-text.html?pagewanted=65.
6. Available statistics on the racial composition of the New Haven Fire Department include only Black, Latino, and white firefighters. See Ricci, 129 S. Ct at 2691-95 (Ginsburg, J., dissenting). This may reflect the fact that according to a 2004 projection from 2000 census data, Asian/Pacific Islanders were 0.04 percent of the population, and Native Americans just 0.004 percent See LLOYD MUELLER & KARYN BACKUS, CONNECTICUT DEPT OF HEALTH, TOWN-LEVEL BRIDGED RACE ESTIMATES FOR CONNECTICUT (2000). In 2004, Blacks were 30 percent, and Latinos were 16 percent of New Haven's entry-level firefighters. The senior officer ranks were 9 percent Black and 9 percent Latino. Only one of the captains was Black. Ricci, 129 S. Ct. at 2691.
7. The defense of Sotomayor's decision in the case was largely limited to the assertion that her decision followed the law as it existed at the time, not that her decision was substantively correct. See 'Hardball With Chris Matthews' for Monday, July 13, at 2 (July 13, 2009), available at http://www.msnbc.msn. com/id/31905856/ns/msnbc-tv-hardball-with-chris-matthews (quoting Senator Durbin's response to a question Chris Matthews posed regarding Senator Durbin's opinion of Justice Sotomayor's decision in Ricci: "I think her ruling was the only ruling that she could have handed down. It reflected 38 years of court decisions. It reflected the trial court's decision, the appellate panel's decision and the full appellate court, and she joined in to what was clearly the precedent Along came the Supreme Court, and by a 5 to 4 vote, a very close vote, turned it over and said, We're going to do it differently.' How can you hold that against her? I mean, she was really taking the law as given to her over the years and applying the law to the set of facts she was given");
8. CQ Transcriptions, Wade Henderson Testifies at Sonia Sotomayor's Confirmation Hearings, WASH. POST, July 16, 2009, available at http://www.washingtonpost.com/wp-dyn/ content/article/2009/07/16/ AR2009071603085.html ("Judge Sotomayor has participated in thousands of cases and authored hundreds of opinions, but much of the debate about her nomination has concentrated on the difficult case of Ricci v. DeStefano. Whatever one may feel about the facts of this case, we all agree that the Supreme Court, in its Ricci decision, set a new standard for interpreting Title VII of the '64 Civil Rights Act. Using this one decision to negate Judge Sotomayor's seventeen years on the bench does a disservice to her record and to this country.").
9. th on the promotional list, meaning he passed the test with scores higher than one of the Ricci plaintiffs but not high enough to be considered for the eight lieutenant vacancies open when the Ricci case was filed. See infra Part III A.2.a. He was asked to join the Ricci litigation but declined to do so. See Paul Bass, Firebirds, NAACP: Ricci Won't Stop Us, NEW HAVEN INDEP., June 30, 2009, http://www.newhavenindependent.org/archives/2009/06/the-supreme- cou-1.php.
10. New Haven firefighters Abraham Colon and James Watkins have been quoted as follows: '"Do I feel the test should be thrown out? That's not for me to decide,' said Lt. Colon, the department's EMS supervisor who took the captain's test. 'Was the test relevant to our job? No, it was not."' William Kaempffer, Firefighters Say Tests for Promotion Are Flawed, NEW HAVEN REG., Jan. 21, 2004, available at http://www.nhregister.com/articles/2004/01/21/import/ 10840559.txt. '"I think the test was unfair,' said firefighter James Watkins, an African-American who echoed the sentiments of many others in the department He said some of the questions were misleading and outdated and related to tactics in New York, not [New Haven]." William Kaempffer, Fire Exams Pose Problems, City Lawyer Says, NEW HAVEN REG., Jan. 23, 2004 [hereinafter Kaempffer, Fire Exams Pose Problems], available at http://www.nhregister.com/articles/2004/01/23/import/10855004.txt.
11. See Ricci v. DeStefano, 129 S. Q. 2658, 2704 n.12 (2009) (Ginsburg, J., dissenting)
12. (quoting Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d 1017, 1023 (1st Cir. 1974)).
13. See discussion infra Part I.A.
14. As litigants in major civil rights cases seeking to desegregate municipal fire departments, minority and women firefighters often put their careers and well-being on the line. See discussion infra Part I.A.
15. New Haven Local 825 had been on the opposing side of virtually every civil rights lawsuit filed by minority firefighters in New Haven, Connecticut See, e.g., Broadnax v. City of New Haven, 851 A.2d 1113, 1119 (Conn. 2004) (stating that New Haven Firefighters Local 825 intervened in the action as a defendant);
16. New Haven Firebird Soc'y v. Bd. of Fire Comm'rs, 630 A.2d 131, 132 (Conn. App. Ct. 1993) ("Firefighters for Fairness and Equity, Inc., a group comprised of fire fighters whose promotions were at risk, and Local 825 of the International Association of Firefighters, AFL-CIO (union) intervened as defendants.").
17. Fire departments adopted formally neutral employment tests and practices to replace blatantly racial and sexist policies of exclusion in a manner quite similar to the defendant in the seminal Title VII disparate impact case, Griggs v. Duke Power Co., 401 U.S. 424 (1971), which found unlawful an employer's institution of a high school diploma and minimum aptitude test score requirement on the day Title VII took effect in a community where African Americans had long been denied education due to de jure segregation.
18. See discussion infra Part I.A. See, e.g.,
19. Boston Chapter NAACP, Inc. v. Beecher, 504 F.2d 1017, 1023-25 (1st Cir. 1974) (ruling that the state firefighter's exam, which had an adverse impact on minorities and women, "was not professionally developed; its content does not appear to be job related; the cutoff score of 70 is arbitrary;
20. the validation study reveals no correlation to overall measures, either subjective or objective, and only minimal correlation to two individual objective tasks");
21. Hayden v. Nassau County, 180 F.3d 42, 46-47 (2d Cir. 1999) (upholding efforts by the police department to switch from multiple-choice exams that created substantial underrepresentation of women and minorities to a new test that was job related and minimized adverse impact on minorities);
22. United States v. City of New York, 683 F. Supp. 2d 225, 238, 262 (2010) (ruling that the City's firefighter exam "did not actually test for the job-related abilities they were intended to test for," "the examinations were written at an unnecessarily high reading level," and "the chosen cutoff scores for the examinations did not bear any relationship to the necessary job qualifications"; and further characterizing the City's firefighting policies as "34 years of intransigence and deliberate indifference"); The Civil Rights Act of 1991: Hearings on H.R. 1 Before the H. Comm. on Educ. & Labor, 102d Cong. 384 (1991) [hereinafter Civil Rights Act Hearings] (testimony of Brenda Berkman, President, United Women Firefighters).
23. See discussion infra Part III.A.
24. See discussion infra Part III.A.2.
25. Title VII proscribes the use of formally neutral criteria and devices that produce significant adverse impact, unless the employer can demonstrate that they are job related and required by business necessity, and there are no less discriminatory alternatives available. See 42 U.S.C §§ 2000e-2(k)(1)(A)(C) (2006).
26. See Kimberly West-Faulcon, More Intelligent Design: Testing Measures of Merit, 13 U. PA. J. CONST. L. (forthcoming 2011).
27. See discussion infra Part III.B. Gender remains a powerful and complex factor as well. One could say that with respect to certain domains, the victim is more specifically a white male. But as is evidenced by recent reverse discrimination debates, white women have appeared as victims of antidiscrimination policies as well as beneficiaries of them.
28. Compare Grutter v. Bollinger, 539 U.S. 306, 306-07 (2003) (white women plaintiffs challenging operation of affirmative action),
29. with Johnson v. Transp. Agency, 480 U.S. 616, 616-17 (1987) (white women as beneficiaries of affirmative action).
30. See Brief of The Center for Individual Rights et al. as Amici Curiae in Support of Respondents, Ricci v. DeStefano, 129 S. Ct. 2658 (2009) (Nos. 07-1428, 08-328), 2009 WL 815209 [hereinafter CIR brief] (focusing on whites as the primary victims of discrimination today);
31. Richard Talbot Seymour, Affirmative Action Programs Today, A.L.L., Dec 7, 1995, at 2-3 (reporting an upward trend in the filing of reverse discrimination claims with the EEOC from 1987 to 1994);
32. see also James Fraser & Edward Kick, The Interpretive Repertoires of Whites on Race-Targeted Policies: Claims Making of Reverse Discrimination, 43 SOC. PERSP. 13 (2000) (exploring the social psychology of whites' claims regarding reverse discrimination);
33. Linda S. Greene, Race in the 21st Century: Equality Through Law?, 64 TUL. L. REV. 1515 (1990) (describing how the Supreme Court decisions of 1989 undermined affirmative action programs and legitimized whites' reverse discrimination claims);
34. Alexandra Natapoff, Trouble in Paradise: Equal Protection and the Dilemma of Interminority Group Conflict, 47 STAN. L REV. 1059, 1062 (1995) (explaining how "the Court uses the image of a thoroughly multiracial America to recast whites as just another group competing with many others");
35. Angela Onwuachi-Willig, When Different Means the Same: Applying a Different Standard of Proof to White Plaintiffs Under the McDonnell Douglas Prima Facie Case Test, 50 CASE. W. RES. L REV. 53, 53 (1999) ("The idea that Whites, in particular white males, are the new victims of discrimination is steadily gaining acceptance among white Americans.");
36. Cedric Merlin Powell, Rhetorical Neutrality: Colorblindness, Frederick Douglass, and Inverted Critical Race Theory, 56 CLEV. ST. L REV. 823, 841 (2008) (arguing that "individualized reverse race discrimination claims" are overshadowing "legitimate discrimination claims, advanced by injured racial groups");
37. Robin Abcarian et al., Conservatives Say It's Their Turn for Empowerment, LA. TIMES, Sept. 17, 2009, at A1 (noting Ricci's assertion in his Senate testimony that Judge Sotomayor had ruled against him because he is white as tapping into notions of white victimhood);
38. Juan Williams, Affirmative Action's Untimely Obituary, WASH. POST, July 26, 2009, available at http://www.washingtonpost.com/wp-dyn/content/article/ 2009/07/24/AR2009072402101.html?sid=ST2009072403325 ("[Whites] pretend that the nation is already so transformed that a colorblind America is a reality and that affirmative action is superfluous, so much so that white employees in a city fire department-an arena long dominated by Irish and Italian Americans-need help from the Supreme Court to get a promotion.").
39. With regard to the issue of slavery, for example, abolition and advocacy for the liberation of Blacks was seen as a derogation of property rights. See David P. Currie, The Civil War Congress, 73 U. CHI. L. REV. 1131, 1160(2006) (noting a senator's argument in the 37th Congress that the abolition of slaves would diminish slave owners' property rights);
40. Claudia Dale Goldin, The Economics of Emancipation, 33 J. ECON. HIST. 66, 73 (1973) (chronicling the debate in the 37th Congress over paying white slave owners should slavery be abolished).
41. Consider, for example, the debate over President Carter's assessment that race is a driving factor in some of the most virulent criticism of President Obama.
42. See, e.g., Jeff Zeleny & Jim Rutenberg, As Race Debate Grows, Obama Steers Clear of It, N.Y. TIMES, Sept. 17, 2009, at A1.
43. Debate over whether race was a salient factor in explaining the lack of response to the survivors of Hurricane Katrina also revealed a racial divide. See, e.g., Cheryl I. Harris & Devon W. Carbado, Loot or Find: Fact or Frame?, in AFTER THE STORM: BLACK INTELLECTUALS EXPLORE THE MEANING OF HURRICANE KATRlNA 87 (David Dante Troutt ed., 2007) (discussing racial framing of events in Katrina's aftermath as shaping conflicting images of Black survivors as victims and as criminals).
44. The same was true of the question of whether race was implicated in the arrest of Professor Henry Louis Gates. See, e.g., Charles M. Blow, Welcome to the 'Club', N.Y. TIMES, July 25, 2009, at A23.
45. Rowland Nethaway, Standardized Tests Are Fair Way to Assess Skills, TODAY'S NEWS-HERALD, June 1, 2000, at 5 A (contrasting the view of the president of the NAACP Legal Defense and Education Fund, who compared standardized tests used in many public schools with racist tests used to keep Blacks from voting or getting into traditionally white schools or professions, with test supporters' views that the NAACP is simply unhappy with the test results and that "most widely administered standardized tests are painstakingly vetted to be as free of racial or cultural bias as humanly possible").
46. See The U.S. Equal Employment Opportunity Commission, Commission Meeting on Race and Color Discrimination, Remarks of Jocelyn Frye, General Counsel, National Partnership for Women and Families and CoChair, Leadership Conference on Civil Rights Employment Task Force, Apr. 19, 2006 [hereinafter EEOC, Commission Meeting on Race and Color), available at http://www.eeoc.gov/ abouteeoc/meetings/archive/4-19-06/frye.html (noting that whites' claims of discrimination are more successful in court than nonwhites');
47. Cecil J. Hunt II, The Color of Perspective: Affirmative Action and the Constitutional Rhetoric of White Innocence, 11 MICH. J. RACE & L. 477, 477 (2006) (discussing "use of the rhetoric of White innocence in the context of the Court's concern with protecting 'innocent' Whites in affirmative action cases");
48. David Kairys, Searching for the Rule of Law, 36 SUFFOLK U. L. REV. 307, 325 (2003) (noting that a majority of the prevailing plaintiffs in recent race discrimination cases have been white). Recent leading Supreme Court decisions have also tended to focus on whites as the purported victims of discrimination.
49. See, e.g., Parents Involved in Cmty. Schs., v. Seattle Sch. Dist, 551 U.S. 701 (2007);
50. Gratz v. Bollinger, 539 U.S. 244 (2003);
51. Grutter v. Bollinger, 539 U.S. 306 (2003).
52. See discussion of racial attentiveness infra Part II.A.
53. See Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995) (applying strict scrutiny to a federal affirmative action program even if the purpose is "benign");
54. City of Richmond v. J.A. Croson Co., 488 US. 469 (1989) (holding that the City's affirmative action program requiring minority participation in public works contracts because of a pattern of exclusion was subject to strict scrutiny review, notwithstanding the government's remedial purpose).
55. In addition to prohibiting intentional discrimination - "disparate treatment" - Title VII prohibits "disparate impact"-employment practices that have an unjustified discriminatory effect on the basis of race, gender, or national origin. Title VII of the Civil Rights Act of 1964, 42 U.S.C § 703 (2006). See infra discussion of the Ricci decision in Part I.D.
56. Ricci v. DeStefano, 129 S. Ct 2658, 2664 (2009).
57. See discussion of the "strong basis in evidence" standard infra p. 85.
58. This use of race as a verb builds on and relies upon the work of Kendall Thomas, who first invoked this concept. As he explained, race can be considered not as a noun but as a verb. It is a socially constructed meaning or idea. This meaning is continuously reinforced and cumulatively reenacted through acts and interpretations of those acts. Thus, in that sense "we are raced." See Charies R. Lawrence III, if He Hollers, Let Him Go: Regulating Racist Speech on Campus, in WORDS THAT WOUND: CRITICAL RACE THEORY, ASSAULTIVE SPEECH, AND THE FIRST AMENDMENT 53, 61 (1993) (quoting Kendall Thomas, Comments at Frontiers of Legal Thought Conference, Duke Law School (Jan. 26,1990)).
59. See infra Part ILA (discussing racial attentiveness).
60. Tide VII antidiscrimination law generally and Title VII disparate impact law most specifically have likewise been equated to an affirmative action promotion policy. The conflation of Title VII disparate impact law as equivalent to an explicit race-based affirmative action policy is how political commentators, politicians, and the media have most actively "raced" Ricci-in some instances, grossly misrepresenting the facts in the Ricd case to fit the familiar narrative of prior affirmative action controversies over "minority set-asides," requiring bidders on city and federal contracts to make efforts to use minority subcontractors, and race-conscious admissions policies seeking to achieve greater racial diversity in selective admission to public undergraduate and graduate schools.
61. See, e.g., Christopher Caldwell, The Limits of Empathy for Sorda Sotomayor, TIME, June 8,2009, available at http://www.time.com/time/magazine/ article/0,9171,1901478,00.html (describing Sotomayor's decision in the Ricd case as a defense of "racial preferences");
62. David Paul Kuhn, Left Dodges Moral Debate on Ricci Case, REAL CLEAR PCUTICS, June 30, 2009, htm://www.realclearpolotics.com/articles/2009/06/30/ left-dodges-moral-debare-on-ricci-case.html (describing the dissenting opinion in Ricd as "uphold[ing] the city's effort to find any means to hold fast to conventional affirmative action"). Confusion seemed to reign with regard to how the case and the reaction to it are characterized.
63. Compare Chris Rizo, Obama Says Supreme Court Moving the Bau on Affirmative Action, LEGAL NEWSLINE, July 2, 2009, available at http://www.legalnewsline.com/news/221784obarna-says-supreme-court-moving-the- ball-on-affirmative-action (describing Obama's reaction to the Ricd decision as "praising" the holding favoring white firefighters and noting that the Court was "moving the ball on affirmative action")
64. , with Mark Sherman, Obama: Court Leaves Room for Affirmative Action, ABCNEWS, July 2, 2009, http://abcnews.go.com/Politics/wireStory?id=7987251 (describing the same interview with the AP in which Obama said the Supreme Court was "moving the ball" to limit affirmative action but emphasizing that the ruling still allows employers to take race into account).
65. See Ricci, 129 S. Ct. at 2677.
66. See discussion infra Part II.E (discussing Ricri's repositioning of whites as subordinated and disempowered).
67. This harm has multiple dimensions-group-based and individual. Cf. Complaint at 6, Briscoe v. City of New Haven, No. 3.09-CV01642 (CSH) (D. Conn. Oct. 15, 2009) [hereinafter Briscoe Complaint] (asserting that an individual African American firefighter who is positioned at Rank 24 on the 2003 lieutenant list was harmed by the City's failure to give the oral portion of the exam greater weight because he would have ranked fourth on a list where the oral section was weighted at 70 percent and asserting that African Americans as a group were harmed by failure to properly weight the oral portion because two other African American firefighters would have ranked in the top twelve under this alternative weighting). This case, filed by Michael Briscoe, a candidate for lieutenant, was dismissed in April 2010 on the basis that the decision in Ricd, directing summary judgment for the plaintiffs, effectively foreclosed his disparate impact claim. The court ruled: "Given the logical consequences of the strong-basis-inevidence standard announced in Ricci, the holding in Ricci that the City's action in refusing to certify the 2003 examination results violated Title VII's disparate-treatment prohibition necessarily forecloses a subsequent claim that the results of the same 2003 NHFD promotional examinations must be rejected because they violated Title VII's disparate-impact prohibition."
68. Briscoe v. City of New Haven, No. 3:09-CV-1642 (CSH), 2010 WL 2794212, at *8 (D. Conn. July 12, 2010).
69. Inclusion of a performance-based test component, administered at firefighter "assessment centers," and weighted in order to optimally measure candidates' ability to perform the job of fire officers is an example of one such alternative. See, e.g., Brief of Industrial-Organizational Psychologists as Amici Curiae in Support of Respondents at 12-13, Ricci, 129 S. Ct. 2658 (Nos. 07-1428,08-328), 2009 WL 796281 [hereinafter Industrial- Organizational Psychologists Amicus Brief].
70. The Ricci plaintiffs' complaint was not limited to Title VII. Instead, it included a "kitchensink" list of federal, state, and local statutory and constitutional claims. Complaint in Joint Appendix at 176-98, Ricci, 129 S. Ct. 2658 (Nos. 07-1428, 08-328), 2009 WL 454249 (stated claims included: 42 U.S.C §1983; local claims under the city charter, which provides for a merit-based system of promotion based on competitive examination, prohibits discrimination in classified service on the basis of race, sex, age, national origin, or political or religious opinion, lays down the City Personnel Director's duties regarding civil service examinations, and provides for a "Rule of Three" procedure for selection of the three highest-scoring applicants for promotion in classified service; a First Amendment claim (under the U.S. and Connecticut Constitutions) regarding political affiliation and rights of association; an equal protection claim; and deprivation of property interests without due process under the Fourteenth Amendment).
71. See Ricd, 129 S. Ct at 2673.
72. This Subpart draws on the comprehensive history recounted in the NAACP-LDFs amicus brief. See Brief for NAACP Legal Defense and Education Fund, Inc. as Amicus Curiae Supporting Respondents, Ricd, 129 S. Ct 2658 (Nos. 07-1428, 08-328) [hereinafter NAACP Legal Defense Fund Amicus Brief].
73. The classic example is the use of the high school diploma requirement to screen out Black applicants from higher-paying jobs at the company. See Griggs v. Duke Power Co., 401 U.S. 424 (1971).
74. The congressional record on the 1972 Act includes the 1969 report from the United States Commission on Civil Rights that documented widespread discrimination in public employment and in fire departments in particular.
75. See 118 CONG. REC 1817 (1972) (noting that "barriers to equal employment are greater in police and fire departments than in any other area of State and local government").
76. See Nicole Allan 6k Emily Bazelon, The Ladder, SLATE, June 25, 2009, http://www.slate.com/ id/2221250/entry/2221298 ("In 1973, 18 of 502 firefighters (3.6 percent) were black, and none was Hispanic, though by that time, the city's population was 30 percent minority. None of the 34 captains in the force was black.").
77. Firebird Soc'y of New Haven, Inc. v. New Haven Bd. of Fire Comm'rs, 66 F.R.D. 457 (D. Conn. 1975), of d mem., 515 F.2d. 504 (2d Cir. 1975).
78. Id. at 459-60. This was consistent with national trends. Hearings on the 1991 Civil Rights Acts included testimony from women and minority firefighters who recounted discrimination that continued well after the enactment of the 1972 amendments. Civil Rights Act Hearings, supra note 15, at 384 (testimony of Brenda Berkman, President, United Women Firefighters) ("I took the written test in December, 1977 with 409 other women and 24,000 men. Almost all of us passed. Although 389 women passed the written test, only 88 took the physical test because it was rumored that no women could pass it. We were required to perform seven tests: a dummy cany, a hand grip, a broad jump, a flexed arm hang, an agility test, a ledge walk, and a one-mile run. The rumor turned out to be accurate: although 7,847 men passed the physical exam, not a single woman passed it. I decided to challenge the test because I did not believe it tested fairly for the skills needed 7o be an effective firefighter");
79. The Civil Rights Act of 1990: Hearings on S. 2104 Before the S. Comm. on Labor & Human Res., 101st Cong. 543 ( 1990) (testimony of Carl Cook) ("Mr. Henson says he was a medic, a driver and an acting officer and I was not.
80. In fact, I was certified as a driver in 1979. I drove a fire truck from 1979 until the time I was promoted to Fire Lieutenant in 1984. What Mr. Henson did not tell you was that blacks could not become medics or acting officers because of race discrimination and that the judge found in 1985 that it was unfair to use this discrimination against black people like me. It is not that I did not try to become a medic. I applied for training as a medic in 1976 and again in 1978, but was refused. The sad fact was that black persons were not permitted to have such training. Before the consent decrees, blacks were never made medics or leadworkers or acting officers. The white supervisors picked who they wanted and they always wanted whites.").
81. Firebird Soc'y, 66 F.R.D. at 461-63.
82. See Broadnax v. City of New Haven, 851 A.2d 1113 (Conn. 2004) (finding that the practice of using lower-ranked white officers to fill positions budgeted for higher rank was unfairly increasing the number of whites placed into the candidate pool for promotions in violation of civil service rules);
83. New Haven Firebird Soc'y v. Bd. of Fire Comm'ts, 593 A.2d 1383 (Conn. 1991) (holding that disproportionate promotion of whites to positions not yet vacant was violative of civil service rules); see also NAACP Legal Defense Fund Amicus Brief, supra note 40, at 15-16.
84. See NAACP Legal Defense Fund Amicus Brief, supra note 40, at 17.
85. Id.
86. Ricci v. DeStefano, 129 S. Ct. 2658, 2691 (2009) (Ginsburg, J., dissenting). New Haven's entry-level statistics are actually better than the national numbers-only 8.2 percent of firefighters are Black according to 2008 statistics from the Bureau of Labor Statistics. See Allan 6k Bazelon, supra note 43. However, like the national picture, its supervisory ranks remain predominately white and male. See Brief for International Association of Black Professional Fire Fighters et al. as Amici Curiae Supporting Respondents at 27, Ricd, 129 S. Ct 2658 (2009) (Nos. 07-1428, 08-328), 2009 WL 815205 ("In 2008, only 8.2% were [B]lack, and of first-line supervisors, only 5.8% were [B]lack." (citing U.S. DOL Bureau of Labor Statistics, Labor Force Statistics from the Current Pop. Survey, Table 11 (2008), http://www.bls.gov/ cps/cpsaat12.pd0).
87. U.S. Census Bureau, http://quickfacts.census.gov/qfd/sates.gov/0952000. html (last visited Sept. 14, 2010).
88. Competition for police and fire jobs remains fierce nationally because, relative to other jobs that do not require degrees in higher education or specialized training, both offer relatively good pay and particularly with reference to firefighting-high status. See CAROL CHETKOVICH, REAL HEAT: GENDER AND RACE IN THE URBAN FIRE SERVICE 7 (1997).
89. Kaempffer, Fire Exams Pose Problems, supra note 9 ("And [the City's lawyer] acknowledged that no matter what the Civil Service Commission decides, some people will be unhappy.").
90. When city officials concluded that the results of the 2003 lieutenant and captain examinations constituted adverse impact under Title VII federal employment discrimination law, the City, because of the possibility that the results might be voided, did not notify firefighters of their scores on the 2003 exam. See Ricci, 129 S. Ct. at 2666-67. Letters were mailed to each candidate who took the 2003 exams, informing them of the initial January 22 Civil Service Board meeting. Ricci received notice of the hearing, though he did not initially receive the results.
91. Ed Stannard, A Fire Litmus Test, NEW HAVEN REG., June 28, 2009, available at http://www. nhregister.conVarticles/2009/06/28/news/new-haven/altest.txt- intereting.
92. Ricci v. DeStefano, 530 F3d 88,105-06 app. B (2d Cir. 2008) (district court ruling on CrossMotions for Summary Judgment summarizing five hearings held by the City of New Haven Civil Service Board between January and March 2004 on the issue of whether to certify the test results and summarizing testimony of Chad Legel, Vice President of Industrial/Organization Solutions, Inc. (IOS)).
93. Id. at 106 (quoting Chad Legel, Vice President of IOS).
94. Id. at 107 (quoting Christopher Hornick, PhD). The New Haven Civil Service Board also heard from a number of nonexpert witnesses. These included firefighters like Watkins and Ricci who had taken the 2003 exams and shared their facial, test-taker perspectives on the fairness of the tests. Other nonexpert witnesses criticized New Haven's exams and expressed their view that examinations that weighted the oral portion more heavily than the multiple-choice and/or included a peribrmance-based assessment like those used in other nearby jurisdictions were better alternatives. Still orhers urged the City to conduct a validation study, predicting that such a study would support going forward with promotions without regard to the racial consequences. Id. at 104-05.
95. The group numbered eleven at this time but eventually grew to include twenty plaintiffs and adopted the nickname "the New Haven 20." In Re: Fire Captain and Fire Lieutenant Promotional Examinations: Verbatim Proceedings of the City of New Haven Civil Service Board 17 (Feb. 5, 2004) [hereinafter Feb. 5, 2004 Verbatim Proceedings] ("I'm here on behalf of eleven firefighters who have retained my office to represent them. That list is growing, however. I expect to be representing a fair number more.").
96. At the February 5, 2004 meeting, Torre said the racial differences in promotion were "too statistically insignificant to even be talking about disparate impact, particularly with respect to the Captains' exam." Id. at 21. Despite the history of successful antidiscrimination lawsuits against the City, Torre asserted that there was "absolutely no-no support for the suggestion" that there had been racial discrimination against minorities in civil service promotions in the City over the past twenty years and "absolutely no empirical evidence" to suggest that the promotional tests were biased. Id. at 22, 25-27.
97. Id. at 27, 31. On the morning of the second Civil Service Board meeting, February 5, 2004, an opinion piece authored by Frank Ricci's attorney, Karen Torre, appeared in New Haven's major newspaper. In the essay, Torre asserted that New Haven City Hall had already "made a mockery of the [civil service] merit system" and disregarded the city charter because the City's first African American police chief had "doled out" promotions "along racial lines, often to low-scoring candidates with horrible work records." Karen Lee Torre, Race Politics Again Threaten to Harm City, NEW HAVEN REG., Feb. 5, 2004, available at http://www.newhavenregister.com/articles/2004/02/05/ import/10920055.txt.
98. See Ricci v. DeStefano, 554 F. Supp. 2d 142, 150 (D. Conn. 2006).
99. See infra text accompanying notes 270-271.
100. See discussion infra Part III.
101. Rank-order use refers to the practice of promoting based on the scores as sequentially ordered beginning with the highest scorersand working down. The basic assumption is that a candidate who ranks higher, even by one point, is better qualified than the lower scoring candidate. See infra Part III A.3 for further explanation of the construction of the lists, list rank, and list position.
102. The contract in effect at the time imposed the 60-40 split. See Ricci, 554 F. Supp. 2d at 145 (citing the agreement as the source of the weighting). While the civil service rules called for four types of testing-written, oral, mental/physical, and performance-they did not require any specified weighting. See Joint Appendix, Ricci v. DeStefano, 129 S. Ct. 2658 (2009) (Nos. 07-1428, 08-328), 2009 WL 454249;
103. In Re: Fire Captain and Fire Lieutenant Promotional Examinations: Verbatim Proceedings of the City of New Haven Civil Service Board 28 (Mar. 11, 2004) (hereinafter Mar. 11, 2004 Verbatim Proceedings] (noting that the 60-40 weighting is derived from the union agreement, not civil service rules). There was no expert evidence offered that established the validity of this weighting. Nevertheless, the oral component of the exam has been challenged by white firefighters as unfairly structured to increase the scores of minority candidates who have historically scored lower on past exams than their white counterparts.
104. See William Kaempffer, Racial Tension Flaring Up at NHFD, NEW HAVEN REG., June 20, 2004, available at http://www.nhregister.com/articles/2004/06/20/ import/12022590.txt Indeed, during contract negotiations in prior years, the union sought to have the oral exam eliminated, but the City refused. Id.
105. The current contract is silent on the weighting question. AGREEMENT BETWEEN ClTY OF NEW HAVEN AND NEW HAVEN FIRE UNION, LOCAL 825 INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO, JUL 1, 2006-JUNE 30, 2011 (2006), available at http://ciryofnewhaven.com/HumanResources/pdfs/2006-2011% 20Local%20825.pdf.
106. See discussion of improper test use infra Part III.
107. Ricd, 129 S. Ct at 2670.
108. Ricci, 554 F. Supp. 2d at 150.
109. One member abstained because a relative was among the candidates on the lists. Id. at 150 n.5.
110. Only eighteen of the twenty Ricd plaintiffs scored high enough on the 2003 exams to appear on the promotional list below in Part III. This is the likely reason Ricci plaintiffs Roxbee and Kottage filed a motion to withdraw from the Ricci lawsuit See Plaintiffs' Revised Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment and in Support of Plaintiffs (sic) Motion for Summary Judgment, at 2 n.1, Ricci, 554 F. Supp. 2d 142 (No. 304CV01109). However, they did not actually withdraw from the case.
111. The Ricd plaintiffs' complaint alleged that firefighters without affiliation to the Democratic Party were the victims of purposeful violations of the city civil service rules. Amended Complaint at 16-18, Ricd, 554 F. Supp. 2d 142 (No. 304CV01109).
112. Id. at 38.
113. Id. at 37.
114. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (setting out the order and allocation of proof in claims involving intentional discrimination). Typically, the McDonnell Douglas standard is invoked where the plaintiffs lack direct evidence of discrimination, as the standard relies on inferences from circumstantial evidence.
115. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
116. Id.
117. See id.;seealso St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,507,518 (1993).
118. Burdine, 450 U.S. at 253.
119. Ricci v. DeStefano, 554 F. Supp. 2d 142, 161-62 (2006).
120. See id. at 160.
121. Id. at 156-57.
122. 180 F.3d 42(2dCir. 1999).
123. Id. at 51. While the Ricd plaintiffs sought to distinguish Hoyden on the grounds that the remedy in that case was installed pursuant to court ordered consent decrees, the district court was not persuaded that this distinction was meaningful, noting that the remedial purpose of Title VII would be undermined if an employer had to wait until it was sued before voluntarily pursuing less discriminatory alternatives. Ricd, 554 F. Supp. 2d at 159. Further, the Ricd plaintiffs' complaint that they, unlike the complainants in Hayden, were actually injured because "they were deprived of promotions, and disadvantaged" by having to compete again, was similarly rejected because in the district court's view, the City's decision not to utilize the test results affected all applicants equally. Thus, there was neither any disparate impact, nor a disparate treatment claim. Id.
124. Ricci, 554 F. Supp. 2d at 161-62.
125. Ricci v. DeStefano, 264 F. App'x 106 (2d Cir. 2008).
126. Id. at 107.
127. Ricci v. DeStefano, 530 F.3d 87 (2d Cir. 2008). Under the rules of the Second Circuit, rulings by summary order do not have precedential effect. 2d. Cir. R. 32.1.1. A summary order is typically issued where the law in the jurisdiction is established. Alternately, a published opinion with precedential value is issued when existing law is not yet settled, it is a case of first impression, circuits are split, or there is otherwise cause for analysis of the law to establish precedent on the issue. 2d. Cir. R. IOP 32.1.1. While some Sotomayor critics asserted that the summary order was entered in the case to hide the opinion, if the law is clear, then under the rules, the court can issue a summary order.
128. See Liz Halloran, Sotomayor Opponents Stake Out Lines of Attack, NPR, May 27, 2009, http://www.npr.org/templatesi/story/story/ php?storyid= 104627387 (noting that critics charged rhat Sotomayor's use of the summary order was improper, as it did not address important issues in the case).
129. Obviously, the question of the legitimacy of the use of the summary order turned not only on die facts and governing precedent, but also on vastly different perspectives on how those facts and doctrine were understood and characterized. While it is not entirely clear why the panel decided to withdraw the summary opinion and issue a per curiam opinion, it is likely the case that it was designed in part to respond to the charge that the panel was trying to hide its decision. While both the summary order and per curiam opinion were published, the former appeared in the less well-known Federal Appendix. The publication of the per curiam opinion also allowed the panel to explicitly reaffirm the logic and findings detailed in the district court opinion.
130. Ricci, 530 F3d at 89. Judge Calabresi's opinion in support of the denial of a hearing en banc rested largely on the assertion that the Ricci plaintiffs failed to demonstrate that the City's stated reason for discarding the test result-that it was based on an effort to comply with and avoid liability under Title VII-was pretextual and that the City was actually driven by "directly racial-political reasons" to favor minority applicants. Id.
131. See, e.g., Stuart Taylor Jr., Simple Injustice, NAT'L. J., Dec. 13, 2008, at 10 (arguing that "[a] denial of review would... leave the racial-preference machinery... grinding steadily on without interruption");
132. George F. Will, The Wreck of a Spoils System, WASH. POST, Apr. 26, 2009, at A15 (asserting that when none of the Black candidates did well enough to qualify for the available positions, political pressure from a "rabble rousing minister with close ties to the mayor" produced a decision by the City to cancel the lists).
133. William Kaempffer, White Firefighters File Suit Against City, NEW HAVEN REG., July 9, 2004, available at htm://www.nhregister.com/articles/2004/07/09/ import/12273150.txt
134. Oral argument took place on April 22, 2009. Prior to the election of Barack Obama to the Presidency, the Office of the Solicitor General-which represents the administration's position in cases before the Court-had been occupied by Theodore Olson and other race conservatives whose position with regard to race and antidiscrimination law closely mirrored that of the Ricd plaintiffs. Still, the change m administration did not make for a complete realignment of the government's position in the case. The Obama administration argued that the district court had not "adequately considered whether, viewing the evidence in the light most favorable to petitioners, a genuine issue of material fact remained [on petitioners' disparate treatment claim, including] whether respondents' claimed purpose to comply with Title VII was a pretext for intentional racial discrimination." Though the district court had cited to evidence in support of the City's assertion that its motive was to comply with Title VII, there were also statements that seemed to point to other possible motives, thus requiring a reconsideration of the issue of pretext. Brief for the United States as Amicus Curiae Supporting Vacatur and Remand at 6,
135. Ricci v DeStefano, 129 S. Ct. 2658 (2009) (No. 07-1428).
136. See Ricd, 129 S. Ct at 2672.
137. Id. at 2673.
138. Id. at 2674 (emphasis added).
139. Id.
140. Id. at 2690 (Ginsburg, J., dissenting) (stating that the Ricci majority "ignores substantial evidence of multiple flaws in the tests New Haven used... failfing] to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes").
141. Id. at 2674.
142. Id.
143. Id. (citing Firefighters v. City of Cleveland, 478 U.S. 501, 515 (1986);
144. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 290 (1986) (O'Connor, J., concurring in part and concurring in the judgment)). "Even in the limited situations when this restricted standard could be met, employers likely would hesitate before taking voluntary action for fear of later being proven wrong in the course of litigation and then held to account for disparate treatment." Ricci, 129 S. Ct at 2674.
145. Ricci, 129 S. Ct. at 2674-75.
146. Id. at 2675 ("[W]hen Congress codified the disparate-impact provision in 1991, it made no exception to disparate-treatment liability for actions taken in a good-faith effort to comply with the new disparate-impact provision in subsection (k).").
147. Id. ("That operational principle could not be justified, for Title VII is express in disclaiming any interpretation of its requirements as calling for outright racial balancing.").
148. See, e.g., City of Richmond v. J. A. Croson Co., 488 U.S. 469,510 (1989) (citing Wygant, 476 U.S. at 277;
149. see also Kimberly West-Faulcon, The River Runs Dry: When Tide VI Trumps State AntiAffirmative Action Laws, 157 U. PA. L. REV. 1075, 1150 (2009) (noting that "in the contracting context, the Supreme Court has established that the federal factual prerequisite for adopting a voluntary affirmative action policy is that a government entity that opts to consider race in the contracting process must have evidence sufficient to create a 'strong basis' for the conclusion that the use of race-conscious measures is needed to remedy die effects of discrimination").
150. Ricci, 129 S. Ct at 2677 ("Nor do we question an employer's affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made.").
151. Id.
152. Justice Ginsburg referred to such cases as ones concerning "the constitutionality of absolute racial preferences," id. at 2701 (Ginsburg, J., dissenting), and observed that "[t]his litigation does not involve affirmative action."
153. Id. at 2700.
154. Id. at 2676. Kennedy reasoned that Title VH's prohibition against resecting a test based on the candidates' race, a reference to a psychometric practice known as "race norming," supported the adoption of the higher evidentiary standard.
155. See id.
156. Id.
157. Id. at 2677.
158. Id.
159. 'Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race. And when, during the test-design stage, an employer invites comments to ensure the test is fair, that process can provide a common ground for open discussions toward that end." Id.
160. See id. at 2664-72.
161. See id. at 2679-80 (rejecting 30-70 alternative weighting of oral and written portions of the exam, score banding to take into account standard error of measurement, and performance-based assessment centers as less discriminatory alternatives that were available to the City).
162. Id. at 2680-81.
163. Kennedy's opinion acknowledged that completely forbidding employers to take race-based action in order to avoid disparate impact liability "would run counter to... Congress's intent that 'voluntary compliance' be 'the preferred means of achieving the objectives of Title VII."' Id. at 2674 (rejecting Ricci plaintiffs' suggestion that all race-based action is prohibited by Tide VII, "even if the employer knows its practice violates the [Title VII] disparate-impact provision").
164. Id. at 2681. See discussion infra Part III (explaining how this statement operates to "race" test fairness).
165. Ricci, 129 S. Ct at 2683 (Scalia, J., concurring) ("But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how-and on what terms-to make peace between them.").
166. We say "as a group" to acknowledge that individual whites as well as certain subgroups may, in particular instances, not enjoy the benefits of group membership. For example, white women, like women of color, suffer extreme forms of exclusion in the context of employment and promotion in fire departments throughout the country. The same, however, is not true with respect to all domains.
167. Ricci, 129 S. Ct at 2673.
168. Transcript of Oral Argument at 9, Ricci, 129 S. Ct 2658 (No. 07-1428). Justice Souter further admonished: [A]s I understand it you are imposing your strong basis in evidence test on what you referred to a second ago as the use of race, and that cannot be correct, because the use of race includes raceconscious decisions which are not cliscriminatory decisions, and they certainly do not implicate the-the obligation that you want to impose. You-if-if your argument is going to be coherent with what we start with, it can't be based merely on the use of race because if it does, then you are, in effect, turning any race-conscious decision into a discrimination decision, and that equation we certainly haven't made and we're never going to make. Id. at 18-19.
169. "Can I get back just-just since I don't understand it yet, the distinction between intentional racial discrimination and race conscious action." Id. at 54.
170. We say formally because we do not think the evidence supports the idea that completely ignoring race is cognitively possible or normatively desirable. See, e.g., Neil Gotanda, A Critique of "Our Constitution is Color-Blind", 44 STAN. L. REV. 1, 18 (1991). Thus, we do not address here the very real phenomenon of implicit bias in which, despite lack of conscious racial animus, our unidentified beliefs and stereotypes influence our perceptions and our behavior.
171. See Kristin A. Lane, Jerry Kang & Mahzarin R. Banaji, Implicit Social Cognition and Law, 3 ANN. REV. L. & SOC. Sa. 427 (2007);
172. Jerry Kang & Kristin Lane, Seeing Through Colorblindness: Implicit Bias and the Law, 58 UCLA L REV. (forthcoming 2010).
173. Prior court decisions have affirmed this reading of antidiscrimination law. In Roso v. Lago, 135 F.3d 11, 12-13 (1st Cir. 1998),
174. a group of predominantly white former residents of an urban redevelopment area challenged a modification to a redevelopment plan that originally provided a preference to those who were displaced by the project in the selection of tenants for the new housing. Because the effect of this preference would have been to effectively shut out all Black and Latino families from the new housing, the allocation was changed to include some minorities in the applicant pool in order to comply with fair housing requirements.
175. Id. at 14. White former residents of the area charged that the change was racially motivated and thus violated the Constitution as well as Tide VII.
176. Id. at 15. The court rejected the claim, noting that while it was clear that the change in the allocation had been racially motivated-in the sense that the agency had an objective of increasing minority applicants-that did not mean diat it was illegal discrimination. As the court put it, "Every antidiscrimination statute aimed at racial discrimination, and every enforcement measure under such a statute, reflect a concern with race. That does not make such enactments or actions unlawful or automatically 'suspect' under the Equal Protection Clause."
177. Id. at 16. Notably, in this circumstance, the government's actions might be characterized as racially attentive both in the formal sense that it apprehended the racial implications of its facially race-neutral policy and in the more substantive sense that the interests of Black and Latino communities were taken into account. Thanks to Guy-Uriel Charles for pointing out this distinction. We acknowledge that while there is a good deal of interface between both of these notions of racial attentiveness, our major focus is on the perception question-whether race was formally or explicidy noted, marked, or assessed.
178. 375 U.S. 399, 400-01 (1963).
179. In characterizing the census as an example of a racially attentive action that is neither race positive or negative, we do not mean to ignore that the way in which normative and political judgments about race are structured into the data collection process, both at the level of constructing the categories and in determining bow some assignments are made despite the overt reliance on self-classification. See, e.g., Mamv Bbatnagar, Note, Identifying the Identified: The Census, Race and the Myth of Self-Identification, 13 TEX. J. ON C.L.& C.R. 85,94 (2007)
180. (contesting the notion that the census is a neutral data collection process because of how the government creates categories and handles the data so that some persons are reclassified, and structures the census in a way that persistently undercounts minorities). Here, we provisionally characterize the census as racially attentive governmental action that is race neutral primarily because it is not race-specific in its application and its purpose, as distinct from its usage. See Morales v. Daley, 116 F. Supp. 2d 801 (S.D. Tex. 2000),
181. aff'd sub nom. Morales v. Evans, No. 00020693, 2001 U.S. App. LEXIS 23316(5th Cir. Oct 10,2001) (rejecting the plaintiffs' equal protection challenge to race and ethnicity questions on the census because of the distinction between self-classiflcation that underlies the data collection by the census and the government's use of the data and (at least now) the presumption of benign intent).
182. 401 U.S. 424(1971).
183. See, e.g., Devon W. Carbado & Cheryl I. Harris, The New Racial Preferences, 96 CALL REV. 1139(2008) (describing how "anti-preference" admissions regimes that ban considerations of race operate to instantiate a racial preference or advantage for applicants who do not see race as salient);
184. Beverly I. Moran 6k William Whitford, A Block Critique of the Internal Revenue Code, 1996 WIS. L. REV. 751
185. (analyzing how the provisions of the tax code that are non-race-specific operate in ways that systematically disadvantage Blacks). Mapping out the full dimensions of this paradigm is beyond the scope of this Article, but we offer it here to illuminate a conceptual issue in Ricci. We acknowledge that whether a particular action or consequence is race neutral, race positive, or race negative reflects not merely factual but also normative judgments and perspectivai position. Our aim is to offer an analytical tool that challenges the notion that either taking account of race or failing to take account of race is ineluctably tied to particular outcomes.
186. Another example of an effort to offer a more refined consideration of how race might or should figure in particular decisionmaking contexts comes from a critique of the racial classification of sperm donors in assisted reproduction. As one author describes it, major sperm banks not only categorize donors by race, but also organize searches by characteristics that make race one of three primary features, and until relatively recently, shipped vials that were color-coded by race. See Dov Fox, Racial Classification in Assisted Reproduction, 118 YALE L.J. 1844, 1853-54 (2009). This sorting system reinforces and facilitates the exercise of racial preferences that impart negative social meanings, producing what Fox calls "discriminatory expression."
187. Id. at 1854. In response, Fox examines possible alternative methods of organizing the information about the race of the donor: a race-blind method, in which the information would be withheld; a race-sensitive method, in which race would be disclosed along with other donor attributes but would not be a defining feature of the decisionmaking framework; a race-attentive method, which is how the banks currendy present the information by designing the search function to enable prospective parents to select for the donors by race; and finally, a race-exclusive method, in which the race of the donor would become the predominant or determinant factor in the way the information was presented.
188. Id. at 1887-88. Our use of the term race-attentive is not synonymous with this description, but Fox's project, like ours, proceeds from the insight that providing a more nuanced account of the way in which race is con4sidered is important and indeed crucial to a more accurate mapping of discrimination.
189. This dispute over whether efforts to comply with disparate impact law could fairly be characterized as discriminatory spilled over into the opposing views on whether the City's actions were "race neutral," as discussed in the following Subpart. We do not, therefore, mean to treat the description of the City's actions as race neutral as incontrovertible. The point is rather that this characterization - like the question of whether a particular action or policy constitutes a racial classification - is a normativeladen determination. See Richard A. Primus, Equal Protection and Disparate Impact: Round Three, 117 HARV. L. REV. 493 (2003).
190. See Michael J. Zimmer, Ricci's "Color-Blind" Standard in a Race Conscious Society: A Case of Unintended Consequences?, 2010 BYU L REV. (forthcoming) (arguing that while the focus of much commentary has been on the effect of Ricci on disparate impact law, the decision may have inadvertently affected disparate treatment standards by making it possible for plaintiffs to prove that an employer's actions were taken without any evidence of animus or intent to discriminate).
191. While we do not agree with Justice Alito's characterization of the racial context of the City's decision as evidence that it caved to political pressure, see Ricci v. DeStefano, 129 S. Ct 2658, 2683-89 (2009) (Alito, J., concurring), notably even this assessment of whether the City's reason-Title VII compliance-was pretextual, or was otherwise cover for an illegitimate motive, is absent from the majority's decision.
192. One might argue that once the employer admitted that race was a motivating factor in its decision, this supplied the requisite proof. However, under the 1991 Civil Rights Act, while liability attaches to such actions, the employer can offer evidence that it would have reached the same decision anyway, even absent the discriminatory motive, and thereby limit claims for damages or compensatory relief. 42 U.S.C. §2000e-5(g)(2)(B) (2006).
193. In Hayden v. Nassau, the Second Circuit explained in the context of its equal protection analysis: [P]laintiffs are mistaken in treating "racial motive" as a synonym for a constitutional violation. Every antidiscrimination statute aimed at racial discrimination, and every enforcement measure taken under such a statute, reflect a concern with race.
194. That does not make such enactments or actions unlawful or automatically "suspect".... Hayden v. Nassau, 180 F.3d 42, 49 (2d Cir. 1999)
195. (quoting Raso v. Lago, 135 F.3d 11,16 (1st Cir. 1998)). Reducing adverse impact on minorities does not equate to reverse discrimination against whites.
196. See id. at 51 ("[T]he intent to remedy the disparate impact of the prior exams is not equivalent to an intent to discriminate against non-minority applicants.").
197. See Ricci, 129 S. Ct. at 2677.
198. Id. at 2678.
199. The Authors thank Noah Zatz for helping us to clarify this point.
200. Ricci, 129 S. Ct. at 2681.
201. See Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 342 n.23 (1977).
202. Palmer v. Thompson, 403 U.S. 217 (1971).
203. The facts in Palmer v. Thompson are instructive: On May 24, 1962,
204. nine days after the District Court's decision in Clark v. Thompson,
205. the Jackson Daily News quoted Mayor Thompson as saying: '"We will do all right this year at the swimming pools... but if these agitators keep up their pressure, we would have five colored swimming pools because we are not going to have any intermingling.'... He said the City now has legislative authority to sell the pools or close them down if they can't be sold."... On May 24, 1963, the Jackson Daily News reported that "Governor Ross Barnett today commended Mayor Thompson for his pledge to maintain Jackson's present separation of the races." On the next day, the same newspaper carried a front page article stating that "Thompson said neither agitators nor President Kennedy will change the determination of Jackson to retain segregation." During May and June 1963, the Negro citizens... demanded] that the city desegregate public facilities....On the day following this meeting, the Jackson Daily News quoted the mayor as saying, "In spite of the current agitation, the Commissioners and I shall continue to plan and seek money for additional parks for our Negro citizens. Tomorrow we are discussing with local Negro citizens plans to immediately begin a new clubhouse and library in the Grove Park area, and other park and recreational facilities for Negroes throughout the City. We cannot proceed, however, on the proposed $ 100,000 expenditure for a Negro swimming pool in the Grove Park area as long as there is the threat of racial disturbances.'" On May 30, 1963, the same paper reported that the mayor had announced "[p]ublic swimming pools would not be opened on schedule this year due to some minor water difficulty."
206. Id. at 250-51 (White, J., dissenting) (internal citations omitted).
207. See id. at 227.
208. 426 U.S. 229 (1976).
209. Ricci v. DeStefano, 129 S. Ct. 2658, 2681 (2009). Note here that the strong basis in evidence standard is articulated as what the City believes regarding its vulnerability to disparate treatment liability. The original formulation in the opinion, however, describes the standard as applicable to the employer's belief regarding its disparate impact liability.
210. Id. at 2674.
211. The Supreme Court has recognized that facially neutral laws frequently operate to advantage whites and burden minorities, even as it has declined to intervene to ameliorate racial disparities. See McCleskey v. Kemp, 481 U.S. 279, 292 (1987) (refusing to intervene to ameliorate racial disparities in the imposition of the death penalty because of far-reaching implications);
212. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 US. 252, 269 (1977) (upholding a neighborhood's decision to deny zoning for moderate and low income housing, thus protecting real property values for whites, while conceding that the decision would "bear more heavily on racial minorities");
213. Washington v. Davis, 426 U.S. 229, 248 ( 1976) (establishing a presumption that facially neutral laws or rules that create racial disparity violate equal protection unless there is a strong justification the laws "would be far-reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than the more affluent white"). Moreover, scholars in various legal fields have analyzed how facially neutral laws and practices produce racial disparities.
214. See, e.g., Dorothy A. Brown, Race, Class, and Gender Essentiatism in Tax Literature: The Joint Return, 54 WASH. 6k LEE L REV. 1469,1498-1507 (1997) (demonstrating that due to the joint return provisions of the Internal Revenue Code, Blacks are disproportionately penalized with higher taxes as a result of getting married and whites disproportionately receive the benefit of lower taxes when they marry);
215. A. Mechele Dickenson, Race Matters in Bankruptcy, 61 WASH. 6k LEE L REV. 1725, 1743-44, 1756,1771 (2004) (stating because the Bankruptcy Code "generally favors employed debtors with wealth over unemployed debtors or those with income ... [gjiven the racial employment and wealth gaps, the Code systematically favors white debtors");
216. Tanya Dugree-Pearson, Disenfranchisement: A Race-Neutral Punishment for Felony Offenders or a Way to Dimmish the Minority Vote?, 23 HAMLINE J. PUB. L 6k POL'Y 359, 374-75 (2002) (arguing that given the disproportionate numbers of Blacks in prison, facially neutral laws that disenfranchise former offenders "disintegrat[e] the minority vote");
217. Beverly Moran, Race and Wealth Disparity: The Role of Law and the Legal System, 34 FORDHAM URB L.J. 1219,1231 (2007) (analyzing how "[t]he combination of the tremendous tax benefits for home ownership and the private practices and policies that kept blacks from that home ownership shows how the intersection of a neutral law with a race-charged situation compounds race effects").
218. The New Haven Register reported: The Commission on Human Rights and Opportunities [CHRO] recently ruled in favor of the city and dismissed the complaints, filed in June after the city threw out two promotional tests because too few minorities scored well.... Attorney Karen Torre, who represents the firefighters, said she was not surprised by the decision. She filed with the CHRO primarily because the government requires it before filing a civil rights action. She said she's filed a number of complaints with CHRO and lost every one, including one for two white New Haven police officers who were not promoted; they went on to win more than $800,000 from a federal jury. Torre said her experience has been that the CHRO, the state agency that hears discrimination cases, is comprised mainly of affirmative action advocates.
219. See also Williams, supra note 21 (describing Ricci as a case about affirmative action). William Kaempffer, Panel Tosses Firefighters' Discrimination Claim, NEW HAVEN REG., Nov. 6, 2004, available at http://www. nhregister.com/articles/2004/11/06/import/13307990.txt.
220. As Susan Carle's excellent historical analysis of disparate impact points out, there are important differences between disparate impact and affirmative action, deriving from both the underlying rationales animating activists' efforts to install them as well as their operation, as the former works at the front end to encourage employers to avoid discriminatory practices and thereby avoid the need for the latter. Susan D. Carle, A Social Movement History of Tide VII Disparate Impact Analysis (Am. Univ. Wash Coll. of Law Working Paper, Jan. 18, 2010), http://digitalrommons.wcl.american.edu/cgi/view contentcgi?article= 1009&context=fac-worb-papers.
221. The City argued throughout that they acted on "a good faith belief that Title VII mandated non-certification of the examinations." Ricci v. DeStefano, 554 F. Supp. 2d 142,151 (2006).
222. A variety of media outlets, from major newspapers to popular blogs, referred to Ricci as a "landmark reverse discrimination case." The New Haven 20's efforts to shape the public discourse of the debate were largely successful, as the media often utilized sound bites from Torre and the New Haven 20 in their reporting. See, e.g., Jeremy Kutner, Firefighters in Historic Supreme Court Case Finally Promoted, CHRISTIAN Sa. MONITOR, Dec. 11,2009, available at http://www.csmonitor.com/USA/Justice/2009/1211/ Firefighters-m-historic-Supreme-Court-case-finally-promoted (describing Ricci as a "reverse ciscrimination lawsuit" and ending the article with a quote from Ricd saying that "[t]he debate was always about quality officers and merit over politics");
223. A.G. Sulzberger, Bias Suit a Test of Resolve for Hispanic Man, N.Y. TIMES, July 2, 2009, at A20 (presenting a piece about Vargas, the only nonwhite in the New Haven 20, and quoting him as saying, "I want [my sons] to have a fair shake, to a get a job on their merits and not because they're Hispanic or they fill a quota.... What a lousy way to live");
224. Editorial, Obama Team Pushes Quotas, The Justice Department Is Playing Divisive Racial Games, WASH. TIMES, Jan. 22, 2010, at B2
225. ("[I]n Ricd v. DeStefano last year, the Supreme Court ruled in favor of white Connecticut firefighters who were denied promotions they had earned through a fair exam In that case, the high court was clear It rejected anything approaching 'a de facto quota system' ....");
226. Abigail Thernstrom 6k Stephan Thernstrom, Opinion, New Haven's Racial Test: Merit Doesn't Matter for City Firefighters, WALL ST. J., Apr. 22, 2009, at A15 ("The issue in Ricd was simply stated by Judge José Cabranes, dissenting from a cursory, unenlightening opinion by the Second Circuit Court of Appeals. 'At its core,' he wrote, 'this case presents a straight-forward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of anough of another?"');
227. By Attacking Ricci, Democrats Are Comparing Skin Color to a Disbility, SAY ANYTHING BLOG, July 14,2009, http://sayanythingblog.com/entry/by-attacking- ricci-democrats-are-comparing-skin-color-to-adisability (stating that "Ricci, rightfully, accused his employers of reverse discrimination").
228. See Carle, supra note 149, at 6 (noting that opposition to disparate impact theory has been longstanding). Importantly, Carle also notes that disparate impact theory predated Griggs and had been well established under state antidiscrimination law before the Civil Rights Acts of 1964. Id.
229. See Cheryl I. Harris, Whitewashing Race: Scapegoating Culture, 94 CAL L REV. 907,912 (2006) (noting that as notions of biological inferiority have come under criticism, the explanation for ongoing racial disparities offered by conservatives and growing numbers of liberals is that Blacks in particular are culturally deficient, in that they undervalue education and hard work, are unwilling to accept family responsibilities, and are committed to a set of deficient cultural practices).
230. See, e.g., Roger Clegg, The Bad Law of "Disparate Impact", 138 PUB. INT. 79, 86 (2000) ("Disparate-impact theory has always been without merit. A civil-rights suit ought to focus on whether people of different races are treated differently because of their race. That is the common-sense meaning of 'discrimination,' and that is what the 1964 act clearly said and meant. The question of intent, rather than incidental effect, ought to be at the heart of every lawsuit").
231. See, for example, Karen Lee Torre, Ricci's lawyer, in a debate with Victor Bolden at Quinnipiac University School of Law after Ricci. Ricci Revisited, NEW HAVEN INDEP., Aug. 18, 2009, http://newhaveindependent.org/index. php/archives//entry/ricci-revisited/;
232. YouTube.com, New Math: Ricd v. DeStefano, Parts I and III, http://www.youtube.com/watch?v=qBKAw8g8Qw8 (last visited Oct 2, 2010);
233. http://www.youtube.com/watch?v=pFc-CanolQE (last visited Oct. 2,2010);
234. and http://www.you tube.com/watch?v=pqqmtttsigg (last visited Oct. 2,2010).
235. See Primus, supra note 131, at 498-99 (explaining one interpretation of disparate impact doctrine).
236. This hostility to disparate impact doctrine was reflected in the policy decisions under successive conservative Republican administrations in which federal agencies explicitly disavowed disparate impact as part of agency enforcement policy. See, e.g., MICA POLLOCK, BECAUSE OF RACE: HOW AMERICANS DEBATE HARM AND OPPORTUNITY IN OUR SCHOOLS 52 (2008)
237. (describing how the Office of Civil Rights in the Department of Education under Bush-appointee Gerald Reynolds initially conveyed that "employees would not be allowed to pursue disparate impact analysis in evaluating educational opportunity," followed in Bush's second term by a formal entry "into an updated Case Resolution and Investigation Manual guiding OCR employees' work [that] discouraged even potential disparate impact cases")
238. (citing OFFICE FOR CIVIL RIGHTS, OCR CASE RESOLUTION AND INVESTIGATION MANUAL § 106 (2005), available at http://www.ed.gov/about/offices/list/ocr/ docs/ocrcrm.html#.I-6). "In order for OCR to proceed, the complainant must provide OCR with sufficient information to support the factual basis for the complainant's belief that discrimination has occurred and when it occurred. Generally, statistical data alone are not sufficient, absent allegations that actions by a recipient, if true, would violate one of the laws that OCR enforces." OFFICE FOR CiVIL RIGHTS, supra, § 106.
239. 490 U.S. 642 (1989).
240. Conservatives have frequently voiced opposition to disparate impact, often on the grounds that it induces "racial quotas." See, e.g., RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS 232-36 (1992) (discussing how disparate impact theory encourages racial quotas).
241. Indeed, George H. W. Bush's 1990 veto of the amendments to Title VII, designed to overturn the Court's decision in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989),
242. on the issue of business necessity, was predicated on the assertion that the codification of disparate impact amounted to a "quota bill." David S. Broder, Quayle Calls for Mending GOP 'Fissures' on Budget, Gulf, WASH. POST, Nov. 11, 1990, at A13 ('"If the Democrats reject President Bush's compromise proposals and carry through on their promise to re-pass the civil rights bill that Bush vetoed last month, they will live to regret it,' he said. The American people do not want a quota bill... and when the president says it's a quota bill, it's a quota bill, notwithstanding what Ted [Sen. Edward M.] Kennedy [D-Mass.] may say about it,' Quayle declared.");
243. George H.W. Bush, Remarks at a Meeting With the Commission on Civil Rights, 1 PUB. PAPERS 675, 676 (May 17,1990) ("I want to sign a civil rights bill, but I will not sign a quota bill.");
244. George H.W. Bush, Remarks to the National Council of La Raza, 2 PUB. PAPERS 1022,1023 (July 18,1990) ("I wanted to sign the civil rights bill of 1990 and not a quota bill of 1990.").
245. See, e.g., Rothe Dev. Corp. v. Dep't of Defense, 545 F3d 1023 (Fed. Cir. 2008) (holding that DOD's small disadvantaged business program awarding benefits to minority businesses in bidding for DOD contracts was unconstitutional because Congress lacked a strong basis in evidence for concluding that race-conscious contracting was necessary to remedy discrimination in the contracting industry despite congressional reliance on six state and local disparity studies measuring the difference between the number of contracts or contract dollars awarded to minority-owned businesses in a particular market and the number one would expect to be awarded given the minority presence in that market);
246. Charles L. Geshekter, The Effects of Proposition 209 on California Higher Education, Public Employment and Contracting, 21 ACAD. QUESTIONS 296, 308 (2008) (arguing that "[a] simple disparity does not prove discrimination, and no 'group' is ever likely to own any particular kind of business in the same proportion as its share of the state's population").
247. We do not mean to suggest that the only skeptics about disparate impact doctrine are race conservatives who espouse colorblindness; there are those who hold views across the ideological spectrum who have questioned its utility. See, e.g., Michael Selmi, Was the Disparate Impact Theory a Mistake?, 53 UCLA L REV. 701 (2006). Rather, our point is that race conservatives have frequently espoused a particular viewpoint that conflates disparate impact and affirmative action.
248. In each case, racial attentiveness in and of itself was viewed as automatically suspect, even if the classification was benign. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 326-29 (2003) (applying strict scrutiny to a law school admission program that included race as one of several factors to be considered);
249. Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227-38 (1995) (applying strict scrutiny to racial classifications used to increase the percentage of minority participation in federal contracting).
250. 551 U.S. 701 (2007).
251. 539 U.S. at 306.
252. Parents Involved, 551 U.S. at 720-22 (applying affirmative action case law to school integration plans).
253. Ricci v. DeStefano, 129 S. Ct. 2658, 2682 (2009) (Scalia, J., concurring).
254. Parents Involved, 551 U.S. at 748.
255. Ricci, 129 S. Ct. at 2681 ("The injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the City had established for the promotional process.").
256. Parents Involved, 551 U.S. at 747-48.
257. Transcript of Oral Argument at 9, Ricci, 129 S. Ct 2658 (No. 07-1428).
258. Richard Primus makes the interesting point that one way to rescue disparate impact from the threat of constitutional infirmity implicated in Scalia's concurrence in Ricci, which places the doctrine in tension with equal protection, is to adopt a "visible-victims reading" of disparate impact law. Richard Primus, The Future of Disparate Impact, 108 MICH. L REV. 1341, 1368-74 (2010). By this he means that as long as a race-conscious measure does not "visibly burden specific innocent parties," it is less likely to produce a divisive social meaning.
259. Id. at 1369. What is curious about Ricd is the Court's racially selective vision, as it sees whites as the victims of discrimination in a scenario in which they currently, and have historically, almost exclusively occupied all the jobs. The fact that Blacks and Latinos have been shut out is not visible to rhe Court.
260. See Zimmer, supra note 132, at n.56-61 and accompanying text (noting that the Court in Ricci may have inadvertently relaxed the standard of proof for disparate treatment such that liability is established if there is evidence that the decisionmaker was aware of the racial consequence of its decision but further noting that the application of this standard may inure to the benefit of white rather than minority plaintiffs).
261. Testimony of Ricci, supra note 1.
262. See, e.g., Will, supra note 90. See also supra note 151.
263. This conflation of Ricci's claim with affirmative action and "reverse discrimination" was also in evidence during the hearings on the nomination of Justice Sonia Sotomayor, as several senators failed to understand the basic legal distinction. A prime example was Senator Jeff Sessions (R-AL), who questioned her as follows:
264. In 1997 when you came before the Senate ... I asked you this. In a suit challenging a government racial preference, quota or set-aside, will you follow the Supreme Court decision in Adarand and subject racial preferences to the strictest judicial scrutiny .... You made a commitment... to follow Adarand. In view of this commitment... why are the words "Adarand," "[e]qual protection," and "strict scrutiny" [sic] completely missing from any of your panel's discussion of this decision? SOTOMAYOR: Because those cases are not what was at issue in this decision. The Supreme Court parties were not arguing the level of scrutiny that would apply with respect to intentional discrimination .... CQ Transcription,
265. Senator Jeff Sessions Holds a Hearing on Nomination of Judge Sonia Sotomayor to Be an Associate Judge on the U.S. Supreme Court, WASH. POST, June 14, 2009, available at http://www. washingtonpost.com/wp-dyn/content/article/ 2009/07/14/AR2009071401155.html.
266. See Taylor, supra note 90, at 10 (noting that "the stark facts of [the Ricci case] illustrate how racial politics sometimes combine with little-known judicial precedents and 'civil rights' laws to violate the civil rights of working-class and middle-class white, Asian, and (at least in this case) Hispanic Americans").
267. As we have noted above, Title VII protects individuals from gender-based employment discrimination as well-obviously of great significance in the context of the hiring and promotion of firefighters. While our analysis may, in many respects, be equally applicable to gender, we do not discuss that explicitly because the facts in Ricci and the Court's analysis do not mention gender. That said, however, women firefighters have been subject to severe patterns of exclusion that warrant deeper study and analysis.
268. Though the terms "business necessity" and "job related" appear to have semantic differences, courts have used them interchangeably. See United States v. City of New York, No. 07-cv-2067, 2009 U.S. Dist. LEXIS 63153, at *63 (E.D.N.Y. July 22, 2009).
269. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975) (observing that when "the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicant," it becomes the employer's burden to prove that its tests are "job related")
270. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973));
271. City of New York, 2009 U.S. Dist LEXIS 63153, at *89.
272. 401 U.S. 424 (1971).
273. Id. at 430.
274. Ricci v. DeStefano, 129 S. Ct. 2658, 2675-77 (2009).
275. Id. at 2678.
276. See infra Part III.B.1.
277. See Ricci, 129 S. Ct. at 2681.
278. Unless designated as female, the gender of the firefighter is male.
279. The Second Circuit was "not unsympathetic" to the Ricci plaintiffs. Ricci v. DeStefano, 530 F.3d 88, 96 (2d Cir. 2008) ("We are not unsympathetic to the plaintiffs' expression of frustration.").
280. We think it is significant to note again that parts of the "tale" of Ricd differ from the reality of Ricci. Specifically, we are aware of no media, political, or legal account that recognizes the fact that the Ricd plaintiffs were not all "high scoring," as compared to either the Black firefighters who passed the exams but were nevertheless ineligible for promotion, or as compared to other white firefighters who were not plaintiffs in the Ricd litigation. See infra tbl.2 and tbl.3;
281. see also infra Part III.A.2.a.
282. This is a reference to President Obama's description of "empathy" as a qualification for his preferred Supreme Court justice. See Janet Hook & Christi Parsons, Obama Cous 'Empathy' Key to Supreme Court Pick, LA. TIMES, May 2,2009, at A1.
283. Note here the difference between these design and usage flaws and whether a user has conducted a formal "validation study." If a test maker or test user fails to comply with a set of threshold psychological testing best practices, it is virtually impossible for that user to "validate" the test in a formal study. See Industrial-Organizational Psychologists Amicus Brief, supra note 37 (referring to such flaws as "fatal" because of their impact on the validity of the test in question);
284. see also Dan A. Biddle, Ricci v. DeStefano: An Opinion, SIOP EXCHANGE, June 24, 2009, http://siopexchange.typepad.com/the-siopexchange/2009/06/ricci-v- destefano-an-opinion-html;
285. Drinker Biddle, Labor & Employment Alert, U.S. Supreme Court Raises Bar for Employers When Considering Adverse Impact, July 7, 2009, http://www. drinkerbiddle.com/publications/Detail.aspx?pub=1893&servicesearch=323.
286. See Kaempffer, Fire Exams Pose Problems, supra note 9.
287. See supra Part I.A. In addition to prohibiting intentional discrimination-"disparate treatment"-Title VII prohibits "disparate impact"-employment practices that have an unjustified discriminatory effect on the basis of race, gender, or national origin. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 703 (2006).
288. See supra Part I.
289. NEW HAVEN CHARTER art. XXX, §167 (1992).
290. Id.
291. The rule of three only applies to applicants who passed the competitive exam with a score of least 70 percent See id. art. XXX, §160.
292. The contract between the City and the union had called for this weighting since 1986. See excerpts from transcript of New Haven Civil Service Commission meeting on March 18, 2004, in Joint Appendix, Ricci, 129 S. Ct 2658 (Nos. 07-1428,08-328), 2009 WL 454249; see also Kaempffer, supra note 66 (reporting on views of white firefighters regarding the oral exam).
293. The union tried to get the City to discard the oral exam in contract negotiations sometime prior to rhe contract at issue in Ricci. Kaempffer, supra note 66.
294. The case Local 825 v. City of New Haven, like the Ricci litigation, sought to compel the City to certify the exams and make promotions.
295. New Haven Firefighters Local 825 v. City of New Haven, No. Civ.3:04CV1169(MRK), 2005 WL 3531464 (D. Conn. Dec. 22, 2005). The court dismissed the case in 2005, holding that the union had failed to demonstrate that there was no conflict of interest or diversity of views that would prevent the organization from effectively representing its membership.
296. Id. In fact, the union consistently intervened in favor of its white members in virtually all civil rights actions brought against the City by Black firefighters.
297. See New Haven Firebird Soc'y v. New Haven Bd. of Fire Comm'rs, 66 F.R.D. 457 (D. Conn. 1975) (union attorney filed motion to intervene in suit on behalf of seventeen white captains following settlement negotiations between the City and minority firefighters);
298. New Haven Firebird Soc'y v. Bd. of Fire Comm'rs, No. 288183, 1992 WL 134440 (Conn. Super. Ct. June 9, 1992) (union intervened and filed defenses to protect the practice of promoting white firefighters before eligibility lists expired even though there were no vacancies). The union was the only party to appeal the ruling against the practice.
299. See New Haven Firebird Soc'y v. Bd. of Fire Comm'rs of City of New Haven, 630 A.2d 131 (Conn. App. Ct 1993).
300. The union again intervened in Broadnax v. City of New Haven, 851 A.2d. 113 (Conn. 2004), where minority firefighters challenged the practice of underfilling positions whereby lower-ranked white firefighters were placed into positions budgeted for a higher rank. The union once again sought to defend the practice.
301. Id.
302. A representative of IOS, Chad Legal, testified during his deposition that the City did not inquire whether alternative test components or alternative weightings of the written and oral components might better measure which candidates were most qualified to be fire lieutenants and captains. See Ricci, 129 S. Ct at 2691-92 (Ginsburg, J., dissenting) (citing Legal's deposition testimony at A522).
303. Id. at 2664.
304. Id. at 2666.
305. Id. Although Justice Kennedy's opinion suggests that the fact that IOS did job analysis at all and included nonwhites in the tests' design and as interviewers indicates that the test was especially racially sensitive, conducting job analysis to ensure the participation of fair representation of the racial demographics of the workforce for which the test is being designed is actually a requirement
306. See discussion infra Part III.B.
307. See Industrial-Organizational Psychologists Amicus Brief, supra note 37, at 11 ("Leadership in emergency-response crises requires expertise in fire-management techniques and sound judgment about life-and-death decisions.");
308. see also id. ("Simply put, command presence is a hallmark of a successful fire officer.... Virtually all studies of fire management emphasize that command presence is vital to the safety of firefighters at the scene and to the successful accomplishment of the firefighting mission and the safety of rhe public")
309. (citing CHASE SARGENT, FROM BUDDY TO BOSS: EFFECTIVE FIRE SERVICE LEADERSHIP 21 (2006);
310. JOHN F. COLEMAN, INCIDENT MANAGEMENT FOR THE STREET-SMART FIRE OFFICER 21-26 (2d ed. 2008);
311. VINCENT DUNN, COMMAND AND CONTROL OF FIRES AND EMERGENCIES 1-6 (1999)).
312. See Industrial-Organizational Psychologists Amicus Brief, supra note 37, at 15 ("It is wellrecognized by I/O psychologists and firefighters alike that written, pencil-and-paper tests, while able to measure certain cognitive abilities (e.g., reading and memorization) and factual knowledge, do not measure other skills and abilities critical to being an effective fire officer as well as alternative methods of testing do.")
313. (citing MICHAEL A. TERPAK, ASSESSMENT CENTER: STRATEGY AND TACTICS l (2008) (asserting that multiple-choice exams are "known to be poor at measuring the knowledge and abilities of the candidate, most notably that of a fire officer")). The term "fire officer" is used in contrast to the term "firefighter" to refer to higher-ranking firefighters with supervisory responsibilities over entry-level firefighters.
314. See generally Industrial-Organizational Psychologists Amicus Brief, supra note 37.
315. See supra text accompanying notes 197-199.
316. See Part III A.2 for a discussion of the potential claims of the other white plaintiffs and why we include them in the New Haven 13+.
317. Minority firefighters in New Haven have noted that white firefighters are much more likely to have grown up with fathers and brothers who are New Haven firefighters and, as a consequence, have more access to supportive networks in advancing their careers. See Allan & Bazelon, supra note 43. This mattered because unlike minority firefighters who were "first-generation," whites could get help and materials from relatives in the fire department
318. See Ricci v. DeStefano, 129 S. Ct 2658, 2692 (2009) (Ginsburg, J., dissenting). A "fire buff" is a loose term for someone who knows substantial amounts of firefighting-relevant terminology but who does not necessarily have "street smarts" - the ability to perform the actual tasks critical to being a successful firefighter in the real world.
319. Cf. Industrial-Organizational Psychologists Amicus Brief, supra note 37, at 15
320. (citing INT'L ASS'N OF FIRE CHIEFS & NATl FlRE PROTECTION ASS'N FlRE OFFICER: PRINCIPLES AND PRACTICE 28 (2006) (describing the criticism of written tests as producing firefighters who are "[b]ook smart, street dumb")).
321. As noted above, such disparate impact plaintiffs would not have had to prove that New Haven intentionally discriminated against them on the basis of race in order to win their Title VII lawsuit against the City.
322. See supra text accompanying notes 180-181. Before the Supreme Court's ruling in Ricci, minority firefighters in New Haven said that they still might sue.
323. Bass, supra note 8 ("Gary Tinney and James Rawlings insisted that the Firebirds and NAACP won't give up. They will file suit to challenge the test results if indeed the lower court ends up certifying the 2003 promotional exams, Tinney said."). Michael Briscoe filed a disparate impact lawsuit that has since been dismissed as barred by the Ricci opinion.
324. See Briscoe v. City of New Haven, No. 309-cv-1642 (CSH), 2010 WL 2794212 (D. Conn. July 12, 2010). After the Court's ruling in Ricci., other minority firefighters filed Tide VII complaints with the Equal Employment Opportunity Commission (EEOC).
325. See Kaempffer, Fire Exams Pose Problems, supra note 9.
326. Watkins was positioned fifteenth on the lieutenant list of seventy-seven candidates and has since been promoted to lieutenant contingent on his agreement to forfeit any potential backpay claims based on future allegations of discrimination. See William Kaempffer, 10 More Firefighters Receive Promotions, NEW HAVEN REG., Dec. 5,2009, available at http://www.nhregister.com/articles/ 2009/12/05/ news/a3-nefirepromotions-art.txt;
327. CIVIL SERV. BD., QTY OF NEW HAVEN, ELIGIBLE LIST ROSTER FOR FIRE LIEUTENANT 1-3 [hereinafter ELIGIBLE LIST ROSTER FOR FIRE LIEUTENANT] (on file with authors).
328. See Bass, supra note 8.
329. William Kaempffer, Group Says Blacks Will Fight if City Certifies the Exam, NEW HAVEN REG, July 1, 2009, available at http://www.nhregister.com/ articles/2009/07/01/news/new-haven/alfirebirdsrespond.txt.
330. Kaempffer, Fire Exams Pose Problems, supra note 9.
331. See Briscoe Complaint, supra note 36.
332. See Ricci v. DeStefano, 554 F. Supp. 2d 142, 145 n.3 (D. Conn. 2006);
333. Briscoe Complaint, supra note 36, at 6; Bass, supra note 8;
334. Adam Liptak, Justices to Hear White Firefighters' Bias Claim, N.Y. TIMES, Apr. 9,2009, at Al ;
335. EUGIBLE LIST ROSTER FOR FIRE LIEUTENANT, supra note 210, at 1-3. While those sources included rank, position, race, and combined score, they did not include written and oral components. The oral score and written score data in this table is taken from publicly available, unofficial data available at a website expressing support for the position of the Ricci plaintiffs - Adversity.net, which is designated as a website "For Victims of Reverse Discrimination."
336. See Adversity.net, Case 50: New Haven Refused to Promote Firefighters Who Scored Highest on Exam! (June 29, 2009), http://www. adversity.net/newhavenfd/ defaulthtm;
337. see also Ricci, 554 F. Supp. 2d at 145 n.2; Sulzberger, supra note 151;
338. CIVIL SERV. BD., CITY OF NEW HAVEN, ELIGIBLE LIST ROSTER FOR FIRE CAPTAIN 1-2 [hereinafter ELIGIBLE LIST ROSTER FOR FIRE CAPTAIN] (on file with authors).
339. Firefighters with the same combined score are ranked the same but assigned different list positions based on civil service rules.
340. "Promotable" for the purposes of our discussion is a function of where the candidates ranked on the lists and the number of available positions. Although six Black firefighters (positioned 13th, 14th, 15th, 16th, 20th, 22nd and 24th on the lieutenant list) and three Latino firefighters (positioned 27th, 28th and 31st) achieved passing scores, only the firefighters in the first trough tenth positions on the lieutenant list - all of whom were white - could be promoted to fill the eight existing lieutenant vacancies. See Ricci, 554 F. Supp. 2d at 145 n.3. Three Black lieutenants (positioned 16th, 19th, and 22nd on the captain list) and one Latino lieutenant (positioned 13th) had passing scores on the captain exam but did not rank high enough to be considered for one of the existing captain positions. With seven open captain positions, only the top nine candidates were eligible to be promoted to the position of captain. Seven of the nine individuals in the first through ninth positions on the captain list were white. It was also possible that all of the lieutenants promoted to captain would be white because, under the Rule of Three, two of the candidates eligible for promotion - including the two Latino candidates in the seventh and eighth positions on the captain list - could be passed over without violating the rule.
341. Id. at 145 n.2.
342. See infra Part III.A.2.b.
343. See infra tbl.1 & tbl.2.
344. As explained above, we have constructed this table based on a combination of the facts provided in published court opinions in the Ricci and Briscoe litigation, newspaper articles, and the promotional lists now certified and publicly released by the city of New Haven. See Ricci, 554 F. Supp. 2d at 145 n.3;
345. Briscoe Complaint, supra note 36, at 6;
346. Liptak, supra note 215, at Al;
347. Bass, supra note 8;
348. ELIGIBLE LIST ROSTERPOR FIRE LIEUTENANT, supra note 210, at 1-3. While those sources included rank, position, race, and combined score, they did not include written and oral components. The oral score and written score data in dus table is taken from publicly available, unofficial data available at a website expressing support for the position of the Ricci plaintiffs and designated as a website "For Victims of Reverse Discrimination."
349. See Adversity.net, supra note 215.
350. See supra note 220;
351. see also Ricci, 554 F. Supp. 2d at 145 a2;
352. Sulzberger, supra note 151, at A20;
353. ELIGIBLE LIST ROSTER FOR FIRE CAPTAIN, supra note 215.
354. 42 U.S.C. § 703 (k)(1)(A)(ii) (2006).
355. Because several of the white Ricci plaintiffs scored too low on their exams to be promoted, their personal interests might have been better served in a hypothetical suit brought by New Haven 13+ plaintiffs challenging the fairness of the test Specifically, lower-scoring Ricci plaintiffs were not promoted when the City certified the 2003 exams pursuant to the Court's ruling. These white firefighters might have been ranked higher and been promoted had the City originally used an alternative weighting of the multiple-choice and oral test components or used an alternative performance-based test such as a firefighter assessment center.
356. See, e.g., Noah D. Zatz, Beyond the Zero Sum Game: Toward Title VII Protection for Intergroup Solidarity, 77 IND. L.J. 63 (2002). Their pecuniary injury - not being promoted to a higher-paying position because of the City's use of a test that is less job related than available alternatives - would be their basis for standing. The Third Circuit has found standing based on a similar rationale in the context of a gender disaimination claim: "Because the male appellants here have pled specific facts to demonstrate a concrete injury as well as a nexus between the alleged injury and the sex-based discrimination, even though that discrimination was aimed in the first instance at others, we conclude that they have established standing."
357. Anjelino v. New York Times Co., 200 F.3d 73,92 (3d Cir. 2000) (finding that male employees who were the "indirect victims of sex-based discrimination have standing to assert claims under Title VII if they allege colorable claims of injury-in-fact that are fairly traceable to acts or omissions by defendants that are unlawful under the statute").
358. See Bridgman v. Kern, 13 N.Y.S.2d 249, 256 (App. Div. 1939) ("An examination cannot be classed as competitive unless it conforms to measures or standards which are sufficiently objective to be capable of being challenged and reviewed");
359. see also Lenert v. Wilson, 206 N.E2d 294, 296 (Ill. Ct. App. 1965) (case filed by a lieutenant on the Chicago Police Force alleging that "the procedures by which his efficiency was rated for the purposes of promotion violated an Illinois statute requiring all examinations for promotion to be competitive"). We do not suggest that such a claim is as strong as the Black and Latino plaintiffs' Tide VII disparate impact claims. Nevertheless, we note that such a case could have been filed to illustrate the cross-racial impact of the City's failure to use the most job-related test available. These other white firefighters could also have exerted their displeasure at being denied promotion in the political arena - an alternative rationale for the City's decision to refuse to certify the 2003 promotional exams.
360. See, e.g., United States v. City of New York, 637 F. Supp. 2d 77 (ED.N.Y. 2009).
361. See 29 CER. §1607.4(D) (2010) (explaining the "four-fifths rule" for adverse impact).
362. Proving unlawful race discrimination under a disparate impact theory requires presenting statistical evidence that the questioned employment policy or practice affects persons of a particular race or gender more harshly than persons of a different race or gender. See Watson v. Fort Worth Bank 6k Trust, 487 US. 977, 994 (1988). While there is no rigid formula for establishing disparate impact, "statistical disparities must be sufficiently substantial."
363. Id. at 995.
364. See 29 C.F.R. §1607.4(D) (explaining the "four-fifths rule" for adverse impact);
365. see also Connecticut v. Teal, 457 U.S. 440,443 n.4 (1982) (describing the Uniform Guidelines on Employment Selection Procedures). Racially adverse impact exists under the four-fifths rule "when the rate of selection of applicants of a particular race is less than eighty percent (four-fifths) of the rate of selection of applicants of other races."
366. West-Faulcon, supra note 104, at 1129.
367. See Hazelwood Sch. Dist. v. United States, 433 U.S. 299,307-08 (1977) ("Where gross statistical disparities can be shown, they alone may... constitute prima facie proof of a pattern or practice of discrimination.").
368. See Joint Appendix at 220-228, 223, Ricci v. DeStefano, 129 S. Q. 2658 (2009) (Nos. 07-1428, 08-328), 2009 WL 454249 (Marcano Affidavit) ("My initial concerns were based on the fact that under Section 4D:. Adverse Impact and the "four-fifths rule" of the Uniform Guidelines on Employee Selection Procedures, the tests at issue in this litigation revealed considerable adverse impact").
369. Ricci v. DeStefano, 129 S. Ct 2658, 2678 (2009).
370. Statistical analysis is useful in assessing whether discrimination has occurred because it is assumed that, absent other legitimate explanation, "non-discriminatory hiring practices will produce a work force that is more or less representative of the racial and ethnic composition of the population in the community from which employees are hired." See Int'l Bhd. of Teamsters v. United States, 431 U.S. 324,340 n.20 ( 1977). Accordingly, a comparison of the expected number of hires yields an indication of whether the difference is likely the product of chance or whether it is not random. Where the differences between the actual and expected numbers are greater than two to three standard deviations, the statistical disparity constitutes evidence of a Tide VII violation.
371. See Hazelwood Sch Dist v. United States, 433 U.S. 299, 307-08 (1977). The standard deviation is the measure of the fluctuation between the actual number of candidates of a particular race selected compared to the number statistically "expected" in absence of racial discrimination.
372. Id. ("[A] fluctuation of more than two or three standard deviations would undercut the hypothesis that decisions were being made randomly with respect to race-"). If an employment selection process is free of discrimination, then the number of nonwhite candidates selected could be modeled on a binomial distribution.
373. RAMONA L PAETZOLD & STEVEN L WILLBORN, THE STATISTICS OF DISCRIMINATION: USING STATISTICAL EVIDENCE IN DISCRIMINATION CASES, 33 (1994). "The measure of the predicted fluctuations from the expected value is the standard deviation, defined for the binomial distribution as the square root of the product of the total sample... times the probability of selecting a [nonwhite candidate] times the probability of selecting a [white candidate]."
374. Castaneda v. Partida, 430 US. 482, 496 n.17 (1977). The hypothesis being tested by this statistical methodology is an assessment of how likely the observed disparity in the actual and the expected number of nonwhites selected would be if in fact that employer is selecting at random with regard to race.
375. See, e.g., PAETZOLD & WILLBORN, supra, at 36.
376. Courts have referred to the four-fifths rule as a "rule of thumb" for determining whether a rebuttable presumption of race discrimination is appropriate. See, e.g., West-Faulcon, supra note 104, at 1121.
377. See also supra text accompanying notes 227-229.
378. The Fisher Exact Test is the preferable statistical analysis in this instance. The two-tailed Fisher Exact Test is a statistical test for significance designed to be more accurate than chi-square analysis when the sample size for the numbers analyzed (n) is small. See, e.g., STALTON A, GLANTZ, PRIMER ON BIOSTATISTICS 158 (6th ed. 2005) ("In small studies, when the expected frequency is smaller than 5, the Fisher Exact Test is the appropriate procedure. The test turns the liability of the small sample size into a benefit").
379. "A number of more sophisticated statistical analyses may also be employed to demonstrate that the racial impact of a particular selection criterion is sufficiently adverse to be considered prima facie evidence of racial discrimination." West-Faulcon, supra note 104, at 1130 ("Courts rely on the results of such statistical analyses to determine whether the success rates for racial groups differ by a statistically significant degree; if such prima facie disparate impact is established, discriminatory animus should be presumed and the burden is placed on the entity making the selections to demonstrate that its policies are not racially discriminatory.").
380. The p-value is the chance or likelihood - "significance probability"- that the observed racial disparity happened by chance (without regard to race). See, e.g., ALAN AGRESTI & BARBARA FINLAY, STATISTICAL METHODS FOR THE SOCIAL SCIENCES 224-25 (3d ed. 1999);
381. PAETZOLD & WILLBORN, supra note 233, at 36. The smaller the p-value, the stronger the evidence that the selection was not random with regard to race, such that smaller p-values are labeled more "statistically significant"
382. Id. at 37;
383. AGRESTI & FINLAY, supra, at 225.
384. We applied the four-fifths rule and the Fisher Exact Test to information described in published court opinions in the Ricci litigation and documents produced by the City. See Ricci v. DeStefano, 554 F. Supp. 2d 142, 145-47 (D. Conn. 2006)
385. ; Joint Appendix at 215-19, Ricci 129 S. Ct. 2658 (Nos. 07-1428, 08-328), 2009 WL 454249. The category "Nonwhite" refers to Black and Latino candidates, and "p" refers to the two-tailed p-value, the probability that the variation between the actual and expected passing rates for the racial groups happened due to chance alone. The superscripts indicate whether variation is statistically significant: †≥ 0.1 indicates "marginal statistical significance," *≥ 0.05 indicates "statistical significance," **≥ 0.01 indicates "strong statistical significance." We note, as did the Ricci district court opinion, that the passing rate and the promotion rate are not identical.
386. See Ricci, 554 F. Supp. 2d at 145-47.
387. They would likely make this argument irrespective of whether the racial differences in candidates' passing rates were statistically significant. William Kaempffer, Accusations of Racial Discrimination Polarize Fire Department, NEW HAVEN REG., June 9,2004, available at http://www.nhregister. com/articles/2004/06709/import/l 1907304.txt ("A group of black firefighters has retained attorney John Williams of New Haven, who has pledged to file his own CHRO complaints against the fire union for its position in the promotional flap.").
388. As the Court noted in its decision in International Brotherhood of Teamsters v. United States, the glaring absence of minority drivers - "the inexorable zero" was powerful evidence of a pattern and practice of o'iscrimination. 431U.S. 324, 342 n.23 ( 1977). This does not mean that statistical significance is always established where zero minorities or women are hired or promoted; instead, statistical significance is a function of the difference between the expected number of hires and the actual number hired.
389. See PAETZOLD & WILLBORN, supra note 233, at 35 n.8. This underscores the point that statistical evidence is important evidence of whether there is disparate impact, but it is neither conclusive evidence of disparate impact, nor determinative of that question.
390. Teamsters, 431 U.S. at 324 (noting stark evidence of class-wide discrimination given the nearly complete absence of Blacks and Latinos in the line driver positions).
391. We have constructed this table based on a combination of the facts provided in published court opinions in the Ricci litigation. See Ricci, 554 F. Supp. 2d at 145 nn.2 & 3. "Nonwhite" refers to African American and Latino candidates. "Not promotable" refers to candidates ineligible for consideration for promotion at the time the New Haven Civil Service Board voted on whether to certify the 2003 promotional lists.
392. On the 1999 lieutenant exam, the highest-ranking white firefighter was in the first position on the list, the highest-ranking African American firefighter was in the fifth position on the list, and the highest-ranking Latino firefighter was tied for the first position. See Joint Appendix at 218, Ricci v. DeStefano, 129 S. Ct 2658 (2009) (Nos. 07-1428,08-328) (Marcano Affidavit). On the 1998 captain exam, the highest-ranking white firefighter was in the first position on the list, the highest-ranking African American firefighter was in the fifth position on the list, and the highest-ranking Latino firefighter was in the fourth position.
393. Id. at 219. The first number is the ranking under the exams at issue in Ricci; the second is ranking under the previous exams.
394. See Joint Appendix at 215-19, Ricci, 129 S. Ct. 2658 (Nos. 07-1428,08-328), 2009 WL 454249 (Marcano Affidavit).
395. See infra tbl.4.
396. Once the New Haven 13+ had filed suit, the City would have had the opportunity to present expert testimony rebutting the plaintiffs' adverse impact evidence. The fact that the Fisher Exact Test yields different conclusions than the four-fifths rule about adverse impact for the captain exam could mean the City had less reason to fear liability for use of the 2003 captain exam than the 2003 lieutenant exam However, there is an equally strong and, possibly, better argument that the potential New Haven 13+ disparate impact plaintiffs could make - that the promotion rate is the "effective pass rate." Table 4 includes our statistical analysis of the promotion rates.
397. The Court has held that statistical significance is relevant to a determination that the disparate results did not occur by chance. See, e.g., Castaneda v. Partida, 430 U.S. 482,496 n.17 (1977) (observing that when expected results and actual results differ by more than two or three standard deviations, the statistical disparities in selection rates constitute evidence of disparate impact). Racial disparate impact under the four-fifths rule exists when the rate of selection of applicants of a particular race is less than eighty percent (four-fifths) of the rate of selection of applicants of other races. A number of more sophisticated statistical analyses may also be employed to demonstrate that the racial impact of a particular selection criterion is sufficiently adverse to be considered prima facie evidence of racial discrimination. In addition to the four-fifths rule, chisquare analysis, confidence-interval analysis, and probability distribution analysis are statistical tests used to demonstrate the adverse impact of selection decisions. Courts rely on the results of such statistical analyses to determine whether the success rates for racial groups differ by a statistically significant degree; if such prima facie disparate impact is established, discriminatory animus should be presumed and the burden is placed on the entity making selections to demonstrate that its policies are not racially discriminatory. In other words, courts rely on evidence of statistical significance to determine whether a rebuttable presumption of race discrimination is appropriate.
398. West-Faulcon, supra note 104, at 1129-30.
399. Ricci, 129 S. Ct at 2678.
400. Id.
401. See infra Part III.B.1.
402. See infra text accompanying note 270.
403. See Will, supra note 90.
404. See infra text accompanying notes 293-294.
405. See 42 U.S.C. §§2000e-2(1)(2006).
406. Id.
407. See Ricci v. DeStefano, 129 S. Q. 2658, 2678 (2009). This mistaken view was foreshadowed by the Wards Cove majority of which Kennedy was a part. In
408. Wards Cove v. Atonio, 490 U.S. 642 (1989), a case prompting Congress's 1991 Amendments to Tide VII, disparate impact was treated as valid only to the extent that it was a mechanism for smoking out discriminatory intent. Under that logic, the good faith of the test designers would be relevant even though, as a matter of current law under disparate impact, it is compliance with professional testing standards, not good faith intent, that determines employer compliance with Title VII.
409. Id.
410. Ricci, 129 S. Ct at 2665, 2681 (noting that "[a]t every stage of the job analyses, IOS, by deliberate choice, oversampled minority firefighters to ensure that the results... would not unintentionally favor white candidates").
411. Kaempffer, Fire Exams Pose Problems, supra note 9.
412. The Department of Justice and the Vulcan Society, a New York African American firefighters association, made similar claims in a Tide VII disparate impact lawsuit filed against the city of New York. See United States v. City of New York, 637 E Supp. 2d 77, 80 (E.D.N.Y. 2009). After the Supreme Court's ruling in Ricci, Michael Briscoe, an African American firefighter who took the 2003 lieutenant examination, filed a lawsuit alleging that the weighting of the multiple-choice portion of the exam at 60 percent constituted unjustified racially adverse impact in violation of Title VII disparate impact law.
413. See Briscoe Complaint, supra note 36.
414. See Industrial-Organizational Psychologists Amicus Brief, supra note 37, at 5 ("In this case, for the reasons set forth below, at least four aspects of the NHFD [New Haven Fire Department] promotional tests were flawed or arbitrary, and thus made it all but impossible for the City to show that the tests were valid.").
415. See Michael Zimmer, Ricci and Briscoe as Disparate Impact Cases, CONCURRING OPINIONS BLOG (Nov. 17, 2009), http://www.concurringopinions.com/ archives/2009/11/ricci-and-briscoe-asdisparate-impact-cases.html (concluding that "if business necessity and job relatedness were the only issues, the City would have prevailed on its affirmative defense" and that the City would have also likely prevailed on the "available alternatives" question but observing that the disparate impact claim of Black firefighters focused on City liability for "events that all occurred before the test was administered" may succeed).
416. See infra text accompanying notes 269-270.
417. City of New York, 637 F. Supp. 2d at 108.
418. 29 CER. § 1607.5(B) (2010).
419. The Griggs job-related merit analysis of employment criteria requires an employer to demonstrate that the test in question accords with generally accepted professional standards for test design and test use. See supra text accompanying notes 178-181.
420. Gulino v. N.Y. State Educ Dep't, 460 F.3d 361, 383 (2d Cir. 2006) (
421. quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975)).
422. The Second Circuit Court of Appeals explained the rationale for this standard in Guardians Association v. Civil Service Commission: A job-related examination is one that accurately tests the capacity of the applicant to do the job for which he is applying, or is "reasonably constructed to measure what it purports to measure." Although this notion is a simple one, the task of determining whether an examination is in fact job-related involves issues and problems which are outside the experience of most laymen.
423. Consequently, courts confronted with litigation of this kind have placed considerable reliance upon generally accepted principles of psychological testing.... 633 F.2d 232, 242 (2d Cir. 1980)
424. (citing Vulcan Soc'y v. Civil Serv. Comm'n, 360 F. Supp. 1265, 1272-73 (S.D.N.Y. 1973));
425. see also Blake v. City of Los Angeles, 595 E.2d 1367,1377-79 (9th Cir. 1979).
426. Cf. Ricci v. DeStefano, 129 S. Ct 2658, 2710 (2009) (Ginsburg, J., dissenting) ("This case presents an unfortunate situation, one New Haven might well have avoided had it utilized a better selection process in the first place. But what this case does not present is race-based discrimination in violation of Title VII.").
427. See Transcript of Oral Argument at 8, Ricci, 129 S. Ct 2658 (No. 07-1428) (Justice Souter stating, "And the problem that I have with - with using cases like that and- and essentially the problem I - I have with your argument is that it leaves a - a municipality or a governmental body like New Haven in a - in a damned if you do, damned if you don't situation.").
428. 41 C. F. R.. §60-3.3A (2010).
429. See AM. EDUC. RESEARCH ASS'N, AM. PSYCHOLOGICAL ASS'N, & NAT'L COUNCIL ON MEASUREMENT IN EDUC, STANDARDS FOR EDUCATIONAL AND PSYCHOLOGICAL TESTING (1999).
430. The Uniform Guidelines explicitly require that validation studies conducted by employers demonstrate a test's job-relatedness based on empirical data.
431. See 41 CER. §60-3.5B. The APA Standards set forth the consensus among the professional organizations whose members constitute the experts in the field of the design, use, and interpretation of tests and test scores, including uses as the basis for employment decisions.
432. See id. §60-3.5B (stating that criterion-related, content, and construct validity studies should consist of empirical data).
433. See, e.g., Isabel v. City of Memphis, 404 F. 3d 404 (6th Qr. 2005) (holding that the City failed to meet its burden of producing evidence demonstrating business justification by content validity for the police lieutenants' exam in light of evidence that scores from the written test did not approximate candidates' potential job performance, and the industrial psychologist who developed the test offered testimony that he never attempted to validate the cutoff score and only tested one component of job performance);
434. Williams v. Ford Motor Co., 187 E 3d 533, 540-41 (6th Cir. 1999) (noting that the Uniform Guidelines require that validation studies conform to several technical requirements, and provide that "[ujnder no circumstances will the general reputation of a test... its author... or casual reports of it's [sic] validity be accepted in lieu of evidence of its validity. Specifically ruled out are... nonempirical or anecdotal accounts of selection practices or selection outcomes") (citing 29 CER. §§1607.14,1607.9(A) (2010)).
435. See Washington v. Davis, 426 U.S. 229,247 n.13 (1976).
436. See, e.g., id.
437. Id.
438. Id.
439. Id.
440. Id. To use a concrete example, a fire department's decision to use typing test scores as the basis for ranking candidates on a lieutenant promotional list would be presumed legal under Title VII so long as the test did not result in racial or gender disparate impact- if men and women, whites and nonwhites are represented among the high scorers on the typing test in relatively equal proportion to their representation in the applicant pool. But, if, for example, women performed disproportionately well on the typing test compared to men - sufficient to constitute a prima facie case of disparate impact against men- the burden would be on the City to demonstrate that its use of the typing test meets the legal standard of jobrelatedness. To conduct a criterion-validation of a finger dexterity test for a job involving typing, such as administrative assistant, finger dexterity would be identified as a criterion that would indicate successful performance of the job, and a validation expert would analyze empirical data to determine whether high scores on the finger dexterity test correlate to high levels of success in die job of administrative assistant.
441. See CHARLES A. SULLIVAN, MICHAEL J. ZIMMER & RICHARD F. RICHARDS, FEDERAL STATUTORY LAW OF EMPLOYMENT DISCRIMINATION 113-14 (1980) (presenting this example). Content validation of a typing test for the job of typist would be easily accomplished by the fact that the typing task performed by test takers is the same kind of typing they perform on the typist job (for example, the material test takers type during the test is a draft legal brief, and the typist job involves typing legal briefs).
442. Id. Construct validation is a more complex endeavor. To conduct construct validation, the validation expert would first identify traits associated with typing, such as "the ability to withstand boredom," and analyze data to determine whether the employment test in question measures that trait.
443. Id.
444. 41 C.F.R. §60-3.5G (2010).
445. Id. (stating, without referencing weighting explicitly, that "[t]he evidence of both the validity and utility of a selection procedure should support the method the user chooses for operational use of the procedure, if that method of use has a greater adverse impact than another method of use").
446. See, e.g., AM. EDUC RESEARCH ASS'N, supra note 271, at 5,174 ("We use the term construct more broadly as the concept or characteristic that a test is designed to measure. Rarely, if ever, is there a single possible measure that can be attached to a test score or a pattern of test responses. Thus, it is always incumbent on the testing professional to specify the construct interpretation that will be made on the basis of the score or response pattern.").
447. Indeed, the Brief of the Industrial Psychologists points out that the exams could not have been validated under accepted principles. This is in part because the test designer conceded it did not attempt to measure command presence.
448. See Industrial-Organizational Psychologists Amicus Brief, supra note 37.
449. See Ricci v. DeStefano, 129 S. Ct 2658, 2703-04 (2009) (Ginsburg, J., dissenting) ("Relying heavily on written tests to select fire officers is a questionable practice, to say rhe least").
450. Briscoe's central contention is that New Haven's weighting of the multiple-choice component of the lieutenant exam at 60 percent and the written component at 40 percent resulted in an unjustified racially disparate impact. See Briscoe Complaint, supra note 36. Because the top ten candidates were promotable (eligible) for the eight lieutenant positions available at the time of the filing of the Ricd lawsuit, Briscoe's ranking in 10th place under the 40-60 weighting would make him promotable.
451. The reweighting shows that different white and Latino firefighters would have passed the lieutenant exam. Several other white firefighters also moved up in the rankings under 40-60 weighting, including two who did not pass the lieutenant exam when the composite score was based on a 60-40 ranking but scored above seventy under the reweighting- ranking 27di and 29th. See tbl.5.
452. The shifting of individuals under the alternative weighting goes specifically to the question of the arbitrariness of the 60-40 weighting and illustrates the fact that it had a significant effect. However, we note that the fact that Blacks were moved both up and down on the list under this alternative weighting does not negate the fact that, as a group, Black firefighters would be able to demonstrate adverse impact on their racial group within the meaning of Title VII.
453. This table produces the alternative rankings following a reversal of the weightings of oral and written components on rhe lieutenant exam from Table 2. Table 2 was constructed in the same manner as Table 1, relying on the same sources. Additionally, we relied on specific references to the captains' list.
454. See Ricci v. DeStefano, 554 F. Supp. 2d 142,145 n.2 (D. Conn. 2006);
455. Sulzberger, supra note 151;
456. EUGIBLE LIST ROSTER FOR FIRE CAPTAIN, supra note 215, at 1-2.
457. See Industrial-Organizational Psychologists Amicus Brief, supra note 37, at 5-23.
458. See Ricci v. DeStefano, 129 S. Ct 2658, 2703 (2009) (Ginsburg, J., dissenting) ("Among municipalities still relying in pat on written exams, the median weight assigned to them was 30% - half the weight given to New Haven's written exam.").
459. Id. ("Although comprehensive statistics are scarce, a 1996 study found that nearly two-thirds of surveyed municipalities used assessment centers ('simulations of the real world of work') as part of their promotion processes-[T]he percentage today may well be even higher.").
460. An employment expert who specializes in firefighter assessment testified that he believed there were less discriminatory alternatives to both components of the 2003 exams: There are other alternatives to just the written job knowledge that you used in that initial stage and to the oral interview process that I believe would have demonstrated less adverse impacts, that I believe would have increased the likelihood of getting the best candidates at the top of the list so you would have identified the best possible people and you would not have had artifacts in the development of the test that contributed to the adverse impact that you received. Joint Appendix at 102, Ricd, 129 S. Ct 2658 (Nos. 07-1428,08-328), 2009 WL 454249 (testimony of Dr. Christopher Hornick at New Haven Civil Service Commission meeting on March 11, 2004 identifying firefighter assessment centers and situational judgment tests as less discriminatory alternatives).
461. Joint Appendix at 156-57, Ricd, 129 S. Ct 2658 (Nos. 07-1428,08-328), 2009 WL 454249 (testimony of Thomas Ude at New Haven Civil Service Commission meeting on March 18,2004). 293.
462. See Gulino v. N.Y. State Educ. Dep't, 460 FJd 361,383 (2d Cir. 2006)
463. (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405,431 (1975)).
464. Civil Rights Cases, 109 U.S. 3,25 (1883).
465. Even though rhe Court majority granted summary judgment for the Ricd plaintiffs, and the City was ordered to certify the results and make promotions, minority firefighters still asserted a disparate impact case challenging the 60-40 weighting of the exam to favor the written segments where it was foreseeable that the written component had a disparate impact on Black test rakers. See Briscoe Complaint, supra note 36. Briscoe claimed that the City was well aware that this weighting would disfavor Blacks and proceeded even absent any evidence that the weighting was job related and justified by business necessity.
466. Id. at 6. Arguably, this claim is not precluded by Ricci since it goes to the City's actions and knowledge before the tests were given.
467. See Zimmer, supra note 132. However, the court has dismissed Briscoe's case on the grounds that Ricci's ruling that the City could avoid disparate impact liability based on what it called the strong basis in evidence that it would be subject to disparate treatment liability had it not certified the tests.
468. Briscoe v. City of New Haven, No. 309-cv-1642 (CSH), 2010 WL 2794212, at *8 (D. Conn. July 12, 2010). There are other pre-test administration design flaws that Ricd does not address.
469. See discussion infra Part III. Whether they would be dismissed on the same grounds as the Briscoe litigation is unclear.
470. Under Kennedy's re-articulation of the burden on defendants, the City would not be liable to white firefighters under Title VII disparate impact law even if leading psychometric experts would testify that "there is no good pen and paper test for evaluating supervisory skills."
471. See Ricd, 129 S. Q. at 2703 n.12 (Ginsburg, J., dissenting) (quoting Firefighters Inst, for Racial Equality v. St Louis, 549 F.2d 506,512 (8th Cir. 1977)). We are left to wonder whether Ricci's reasoning will be applied in contexts where nonwhites are the high scorers. We suspect that -in line with the majority's reification of positive rights for whites to enjoy the most beneficial outcomes- evidence suggesting the exams' failure to test a key attribute of job performance would be given greater consideration.
472. We do not mean to suggest that this language is unambiguous. For example, Charles Sullivan has argued that Kennedy's opinion states that Title VII does not prevent an employer from considering how to design a test such that it is fair to all regardless of race before the administration of that test: "Ricci does not mandate a strong basis in evidence for every employer action designed to avoid disparate impact. Rather it applies only to actions taken at the back-end of a selection process when employer or applicant expectations have crystallized and reliance on the process has begun."
473. Charles A. Sullivan, Ricci v. DeStefano: End of the Line or Just Another Turn on the Disparate Impact Road?, 104 NW. U. L. REV. COLLOQUY 201,211 (2009).
474. As one recent case illustrates, the effect of Ricci's strong basis in evidence standard undermines even lawsuits that appear to be solid disparate impact cases. In NAACP v. North Hudson Regional Fire & Rescue, No. 07-1683 (DRD), 2010 WL 1641016 (D.N.J. Apr. 23, 2010), Black firefighter candidates challenged the fire department's use of residency requirements for excluding qualified candidates. Prior to the Supreme Court's decision in Ricd, the district court had issued a preliminary injunction barring the City from hiring until it expanded the residency requirement to include additional nearby counties.
475. Id. at *1. The case went up on appeal.
476. Id. Following the Ricd decision, the case was remanded for consideration in light of Ricci.
477. Id. The district court found that while dus case differed from Ricci on its facts in that it did not involve an exam, it read Ricci to apply to any and all conflicts between the disparate treatment and disparate impact provisions of Tide VII.
478. Id. at *8. Accordingly, the strong basis in evidence standard applied even though the action - the hiring freeze- was taken pursuant to a court order and not voluntarily imposed by the employer. Id. Under this standard, the City's justifications - that it avoided suit by Latino candidates and allowed for the City to attract more Latino candidates as required by a prior settlement agreement - were sufficient to establish business necessity.
479. Id. at * 16-17.
480. Ricci, 129 S. Ct at 2677 (noting that the test developer "made sure that minorities were overrepresented" in the test development and administration phase);
481. id. at 2680 (asserting that the City and the test developer were "careful to ensure broad racial participation in the design of the test itself and its administration").
482. See discussion supra Part III.A. 1.
483. See, e.g., Adams v. City of Chicago, 469 F.3d 609 (7th Cir. 2006) (finding that officers failed to demonstrate that the City had an opportunity to adopt a less discriminatory alternative merit-based promotion system in lieu of promotions based on racially disparate promotional exams);
484. Allen v. City of Chicago, 351 F.3d 306 (7th Cir. 2003) (holding that minority police officers who challenged racially disparate promotional exams failed to demonstrate less discriminatory alternatives to written tests). Notably, however, authority in the Second Circuit seemed to more closely adhere to the standards.
485. See, e.g., Gulino v. N.Y. State Educ. Dep't, 460 F.3d 361 (2d Cir. 2006).
486. This is largely a result of the way in which Ricci appears to relieve the employer of any burden of validation.
487. See David A. Drachsler, Assessing the Practical Repercussions of Ricci, AMERICAN CONSTITUTION SOCIETY BLOG (July 27,2009), http://www.acslaw.org/node/ 13829. 303. 130 S. Ct 2191,2193 (2010).
488. Id.
489. Id. at 2200.
490. This is not to say that disparate impact theory has been definitively buried by Ricci's majority, despite Scalia's aspirations in this regard as expressed in his concurring opinion: "[T]he war between disparate impact and equal protection will be waged sooner or later and it behooves us to begin thinking about how and on what terms to make peace between them."
491. Ricci v. DeStefano, 129 S. Ct. 2658, 2683 (2009) (Scalia, J., concurring). There are arguments to be made about why disparate impact is consistent with equal protection.
492. See, e.g., Richard Primus, The Future of Disparate Impact, 108 MlCH. L REV. 1341 (2010).
493. More substantively, the contortions of doctrine and theory enacted earlier in Parents Involved in Community Schools v. Seatde School District, 551 U.S. 701 (2007), and now in Ricd do not themselves stand up to serious scrutiny.
494. Ricci, 129 S. Ct. at 2697-98.
495. Id. at 2699 (Ginsburg, J., dissenting).
496. 180 F.3d 42, 48-49 (2d Cir. 1999).
497. See Lilly Ledbetter Fair Pay Act of 2009, Pub. L No. 111-2,123 Stat. 5;
498. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).