SCOTUS: Ricci Round-Up

kennedy.jpgACSBlog has a series of discussions about the Ricci case and underlying labor law and the changes that Kennedy’s majority opinion brought to the mix which I thought might be of interest to readers. I especially found Sherrilyn Ifill’s essay helpful.

For my money, the Ricci case takes aim square at Griggs v. Duke Power.  And the question is:  how long will Title VII stand when SCOTUS was willing to do a de novo review of the facts in the Ricci case, rather then the usual practice of remanding back to the District Court for further inquiry?  I sense a shift in civil rights laws if they can find a case to swing it.

And with the right wing bloc of SCOTUS is willing to rewrite the laws from the bench — as in be an activist judiciary?  That is exactly what the right wing cries foul about when they disagree with the outcome of the case, isn’t it?  

Activist judges come in all philosophical stripes.  It’s worth keeping that in mind — and pointing it out whenever it happens.  What Justice Kennedy did was to enunciate a new standard from the bench.  Which is the very model of a modern activist judge, isn’t it?

The NYTimes puts together a similar round robin discussion on the labor law back and forth, with a particularly fine essay from Christine Rodriguez on the real difficulties inherent in these kinds of cases. And the broader questions for municipalities who have to thread through Title VII, fairness and equity questions and still find leaders among their employees:

The narrower question worth asking now is: what might the Ricci case mean for the use of standardized testing? Will it lead employers who want to create diverse workforces – particularly public employers concerned with the prospects of their black and Hispanic constituents – to use standardized tests less frequently, or search harder for alternatives? Or, will it allow employers to rely more heavily on tests while escaping responsibility for using hiring and promotion practices more likely to provide opportunity for racial minorities?

Justice Kennedy emphasizes that standardized tests are “objective” measurements presumably capable of fairly identifying the best applicants. In a sense, testing has been a way to ensure fairness by reducing the influence of nepotism, subjective race-based judgments and the value of informal hiring mechanisms. On the other hand, as Justice Ginsburg points out in dissent, the tests themselves are often tools of exclusion that are not always aligned with the qualities that make for a good firefighter, such as inter-personal skills and “command” presence.

As Steven Greenhouse points out in the NYTimes, the Ricci decision is likely to raise even more questions for municipalities trying to navigate Title VII considerations. But it does make the written test versus other means of identifying leadership candidates a bigger part of the debate, which I think is a good thing for most municipalities anyway.

Written tests have been phased out in most places, in favor of other leadership measurements, and I think the Ricci decision is likely to hasten that trend, don’t you?

Stuart Taylor attempts to advance the canard that the Court was unanimous in its decision — no idea how 5-4 with a concurrence from Alito is "unanimous," but then, I’m not Stuart Taylor trying to do whatever it is that he does when he gets a burr in his shorts (or helping Wendy Long advance her whinery, whatever comes first). It’s clearly the "new new" in right wing talking points, because Sen. Cornyn’s been mouthing it, too.

Never let it be said that there was a talking point, however mathematically challenged, that couldn’t be rinsed, lathered and repeated, I suppose.  It would be nice if talking heads appear on teevee saying it, that the "news" hosts ask how that’s possible in a 5-4 split.  But perhaps it’s asking too much that people prepare in advance for an interview?

18 Responses to "SCOTUS: Ricci Round-Up"
tejanarusa | Tuesday June 30, 2009 09:36 am 1

Written tests have been phased out in most places, in favor of other leadership measurements, and I think the Ricci decision is likely to hasten that trend, don’t you?

Yes, and I hope so.

I have some limited contact with standardized testing and scoring (in fact, just complted a project in that area), though not for professional testing like firefighters. I just don’t think it’s possible to make them race neutral/culture neutral/ethinicity neutral.

I could swear that I read somewhere, while the case was pending, that there was some sort of “practical” type of test as wel in New Haven, on which the black candidates did very well, and that that was part of the consideration in tossing out the written test.

This a.m. I was trying to find something on that (because a discussion on Diane Rehm wasn’t mentioning any other part of the test, although they did at least note that no one has seen the actual exam questions, because it’s sealed). It was fairly hopeless, at least in the short time period to call in, because the SCOTUS decision pretty much dominated the first several pages of links returned.

You have a great roundup of links, which I plan to read when I get back from some essential errands.
You have done a great job of keeping up while handling all those family responsibilities, Christy – and/but we are thrilled to have your more intensive legal analyses back (more often.) And just in time for the Court term’s last decisions! *g*. bbl.

Hugh | Tuesday June 30, 2009 11:06 am 2

I wrote an oxdown on the Ricci case and the Gross before it. As I said in the former, it is clear that the radical conservatives of whom Kennedy is looking increasingly a part are aiming to roll back civil rights law in general and Title VII in particular. They are doing this primarily by shifting the burden of proof on to, and keeping it on, minorities who claim discrimination or governmental units which seek through voluntary action a more diverse workforce.

jayt | Tuesday June 30, 2009 12:37 pm 3


(It Ain’t Activist if You’re a Republican)

Scarecrow | Tuesday June 30, 2009 12:55 pm 4

Christy — see this op-ed from Linda Greenhouse…..ef=opinion

Bottom line: Sotomayor and her panel followed the law as it existed at the time; the 5 justices just changed the law. Greenhouse concludes that if you think this through, that means Ricci should be a non-issue for Sotomayor.

Of course, thinking it through is not the opposition’s plan.

ART45 | Tuesday June 30, 2009 12:56 pm 5

In 1964, Title VII was enacted. It prohibited “disparate treatment” — meaning intentional discrimination based on race — by employers.

The prohibition against “disparate impact” was enacted as part of Title VII in 1991. Disparate impact analysis looks not at whether there was intent to discriminate, but rather at whether discrimination can be discerned based on outcome (e.g., of testing).

The big question in the wake of Ricci is whether the Equal Protection Clause permits disparate treatment in order to avoid disparate impact.

Christy Hardin Smith | Tuesday June 30, 2009 12:57 pm 6
In response to Scarecrow @ 4

Well, that would require being honest about what was done in Ricci — which was that new law was made from the bench with the Kennedy majority opinion. I’ve read through most of the cited case law in the majority, concurring and dissenting opinions, and there is no other way to read the majority opinion than to see it as a new standard.

Christy Hardin Smith | Tuesday June 30, 2009 01:02 pm 7
In response to ART45 @ 5

I think, though, that the Ricci decision will end up raising more questions on that score than it answers. The Ifill essay that I link up above hits this squarely:

“The new standard announced by the Court, is that clear disparate impact is an insufficient basis for an employer to take facially neutral, race conscious actions as the City of New Haven did in this case, when it refused to certify the promotions exams. Instead, an employer must show that “there is a strong basis in evidence of disparate-impact liability.” “

In my mind, that’s going to raise a whole host of litigation questions for municipalities that they weren’t necessarily facing before, don’t you think? How in the hell can you possibly balance that under Title VII criteria?

Any of the labor folks in the audience want to chime in, because I’ve been reading up on this for the last couple of days and I have no solid answers on that one.

Christy Hardin Smith | Tuesday June 30, 2009 01:03 pm 8
In response to jayt @ 3

Sadly, yes. *g*

ART45 | Tuesday June 30, 2009 01:29 pm 9
In response to Christy Hardin Smith @ 7

Do you think it should be OK for a city to try to reduce a racial imbalance in the officer ranks of its firefighting force by straight-out race conscious hiring and promotions?

Christy Hardin Smith | Tuesday June 30, 2009 01:42 pm 10
In response to ART45 @ 9

I think it’s impossible to answer that question in a vaccuum. What is the city’s past practice with hiring? It’s history? The racial make-up of its particular force? The past problems with hiring questions on race and gender in its upper ranks? Are there qualified applicants who have been passed over — racial questions for that, or gender, or not?

Honestly, you can’t just answer that with a pat response without having facts and particulars and history. Would it be the same for a city in the north or in the south? What about one with a long history of Jim Crow law issues even after the civil rights era was long over and done with? Or with a city that has a substantial ethnic population and make-up on the force, but almost all white leadership ranks for years traditionally? Is that fair? What if the whites are better managers and for safety reasons that’s been the better course?

Honestly, it’s impossible to answer a flat out response on something like that. The fact pattern and history is integral in my mind of whatever individual case you look at. It’s not fair to discriminate against someone based on their race or gender any more than it’s fair to discriminate against them because they aren’t ethnic? How do you achieve a fair balance? Wish I knew. *g* But having some minorities and women in leadership roles is important, just as not passing over qualified applicants because they aren’t women or minorities is.

These are really tough questions that municipalities have to answer for themselves all the time. City government is one of the tougher things to manage, and I say that having been a city attorney for one several years ago. All of the personnel issue get magnified substantially when the public eye is on you — it’s not easy making anyone happy, let alone everyone.

esseff44 | Tuesday June 30, 2009 01:59 pm 11
In response to tejanarusa @ 1

I could swear that I read somewhere, while the case was pending, that there was some sort of “practical” type of test as wel in New Haven, on which the black candidates did very well, and that that was part of the consideration in tossing out the written test.

The test had two parts. The applicants had have a certain score on the written in order to be eligible to be interviewed by a 3-person panel made up of fire department officers from across the country with each panel consisting of 1 black, 1 white, and 1 Hispanic.

The union contract had set out the weighting to give 60% weight to the written and 40% to the oral. (Some other districts give a percentage for senority.)

Justices Kennedy and Ginsburg took very different views of the record all the way through and this is one of the issues they treated very differently. Kennedy thought it was reasonable and rational. There was no evidence of it being arbitrary.

At the Civil Service Board hearings, a member of the Firebirds (black firefighters group) from Bridgeport told the board that Bridgeport used a different weighting giving more to the oral and less to the written and that this gave them a better outcome or less disparate impact. Justice Ginsburg latched on to this as evidence of the New Haven test being flawed . Justice Ginsburg did not mention that there are at least two lawsuits by Bridgeport firefighters based on this ‘better’ method. The CS director had changed the weights to less the disparate impact and was challenged for race norming which the courts have ruled is illegal. It’s worth looking into the problems in Bridgeport before declaring them a model for other departments to follow.

The CSB also heard from a competitor of IOS (the consultants who were paid $100,000 to design the New Haven promotion exams) who evaluated the exams. He thought he could have come up with a better exam (and later was hired ) and talked about the use of assessment centers which some departments used instead of written and oral exams that are more performance based. They did not seemed to have been an option at the time in 2003 but he recommended them for the next promotion phase. He recommended that results of the 2003 exam be certified. Could these assessment centers be considered as a better option under the 2-step burder of proof shift in a disparate impact suit brought by the minority firefighters? Is this one of many questions that should have been presented to a jury with witnesses under or and cross-examined? This seemed to be the one thing all nine justices seemed to agree on. The majority put themselves in place of the jury and decided what a reasonable jury would find. They decided the New Haven 20 would prevail and issued a summary judgement. Justice Ginsburg and the minority favored remand as well but balked at the summary judgement and went the other way. (????)

The problem with tests and evaluations is a subjective/objective tension. Standardized tests have been used because they are more objective and if done well can measure knowledge and skills required for a job. The further an employer goes away from standardized tests, the more subjective they become and less tranparent the process becomes. Employers might like that since it’s hard to prove anything one way or another. Employees, however, like to know that there are measurements and objective criteria so that they can look at the playing field and the rules before hand when they are competing for promotions. Civil service exams were instituted to counter nepotism, cronyism and all the other -isms that corrupt the process. No one claims they are perfect and there will always be flaws. They can always be improved. However, every move towards subjective evaluations introduces opportunities for mischief.

References and job performance evaluations has been discarded from the New Haven promotion process because of their subjective nature. Senority is always controversial, but at least it is measurable and tracks with experience related to the job. But it’s not easy to measure things like leadership ability, interpersonal skills, and other personal qualities. It ’s because of these tensions, there will always be a lot of work for labor lawyers and many more cases like this making their way up the ladder.

I think they would have saved themselves a lot of problems here by sending it back for a trial on the facts with the new standard that was introduced and some clear guidelines on how to apply it.

tejanarusa | Tuesday June 30, 2009 02:17 pm 12
In response to esseff44 @ 11

Do you know or have a definition for “assessment centers?”
It’s not clear to me whether you are saying the assessment centers or the writtenn+ oral exams are “more performance-based.”

I certainly agree that any kind of evaluation is to some degree subjective, including performance evaluations and references. Just about anything can be skewed intentionally or by the incompetence or laziness of an evaluator. Not to mention maliciousness.
I sure don’t claim to know the answer to this knotty problem.
But I’d like to hear the talking heads acknowledge the thorniness, not pretend it’s a simple matter of “common sense,” as so many are doing.

tejanarusa | Tuesday June 30, 2009 02:19 pm 13

Ah, just followed Christy’s first link and there, lo and behold, a discussion of assessment centers.
If edit were available, I would edit out the queries in my above post.

esseff44 | Tuesday June 30, 2009 03:38 pm 14
In response to tejanarusa @ 12

The consultant (competitor for contracts to design promotion exams) told the CSB that the city going forward could use assessment centers which were more performance based than the written/oral exam process that New Haven had used in 2003. What is not clear in the record or the decision is whether this had been an reasonable option when the IOS consultants were designing the 2003 process.

Justice Kennedy looked at the record and decided there was NO evidence of the process being so flawed as to invite liability. Justice Ginsburg decided the process was flawed, but she really did not give clear and convincing reasons for saying it was flawed.

Another point they disagreed on strongly was the motivation behind the decision to not certify the tests results. Justice Kennedy delved into the political influences on the decision that seemed to have predetermined the outcome of the process. Were the City officials using fear of litigation as a pretext for not certifying ? This was a very sticky point. It had been ignored by the lower courts . It did not matter what the Civil Service Board decided, the Mayor had already announced that he would overrule the Board if they certified the results. In that case, why did they bother to spend $100,000 and put the applicants through such an ordeal if the outcome had been predetermined? Judge Ginsburg did not address this question. The USA did address it in the amicus brief and that one one of the reasons they recommended vacate and remand for a trail on the facts.

The biggest problem I had was the part where the City claimed that by not certifying, they were treating everyone equally and not engaging in an illegal hiring practice….that it was a race neutral decision and not disparate treatment. This was the axis around which the case spun. The decision not to promote anyone was making a choice between two set of litigants . They chose one and lost. Now they get to face the other set.

MarkH | Tuesday June 30, 2009 06:13 pm 15

Two statistics questions:

From what year (in the past) has it been thought that there were more than sufficient numbers of qualified firefighters from every group (however defined)?

In that time has the makeup of those promoted been equitable or skewed?

Kathryn in MA | Tuesday June 30, 2009 07:16 pm 16

Re standardized testing – my son was declared retarded because he *gasp* didn’t know who Mary Poppins was. I informed the tester that i had never read Mary Poppins to him, but she should ask him about Jewish-centric stories. She didn’t know of any.

robspierre | Tuesday June 30, 2009 11:00 pm 17

To me, the striking thing about this decision is the bizarre notion of “objectivity” that the majority seems to have adopted. Essentially, they are saying that a method can be objective even though it produces a patently subjective outcome.

We know that there is no rational, scientific basis for using a concept as nebulous and unscientific as race to predict intelligence, technical ability, judgement, or any other quality. So, given an objective measure of the qualities required of a fireman, we’d expect to see a random correlation between races and scores on the test. The proportion of the races represented in the group that scored highest would be esentially the same as that in the group that scored lowest.

If we don’t have such a distribution– if, as in this case, the “objective” measure selects for one racial group –then something is wrong somewhere. The measuring standard has to be biased somehow.

That’s logic. Does logic now have any place in the Reago-Bush court?

tejanarusa | Wednesday July 1, 2009 08:58 am 18
In response to Kathryn in MA @ 16

Hah! As my mom would say.
I don’t think it is possible in a country as mixed ethnically and educationally and unbalanced socio-economically to have any kind of “race-neutral” test.

I remember back in the ’70’s when this subject was much in the news, someone made up a short “sample” test skewed to knowledge and terminology common in the black community, as a challenge to white folks trying to define, e.g. “deuce-and-a-quarter.”
It meant a Buick (Electra?) 225.
That’s the only one I can remember from the test – possibly because I knew the answer. I also knew some black folks. ; ) Highly unlikely my mother or her neighbors of any age could have passed that test.
Culturally biased, indeed, but it gave one a sense of what was really meant by culturally biased exams.
This, of course, is why the College Board no longer describes the SAT’s as “aptitude tests.”

There is just no way that someone raised in a house w/o books and parents who don’t even realize the child’s school is doing a bad job, or who don’t see education as worth the effort, is going to do well on those tests, compared to someone whose parents began reading to them in the crib, talking constantly to them, and sent them to private/Catholic/suburban schools.

As a person who did pretty well on standardized tests myself, I needed to be shown why they didn’t work for everyone. but once that happened, it wasn’t hard to see.

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