Last week, the U.S. Court of Appeals for the Second Circuit divided 7-6 over whether to hear Ricci v. DeStefano en banc. The case involves a challenge by several white and Hispanic firefighters to the New Haven Fire Department's alleged failure to use the results of two promotional exams because the NHFD did not like the racial distribution of the results. Denial of en banc review on the Second Circuit is hardly news. The close division of the court, on the other hand, is interesting, as is Judge Cabranes dissent from denial, which begins:
This appeal raises important questions of first impression in our Circuit--and indeed, in the nation--regarding the application of the Fourteenth Amendment's Equal Protection Clause and Title VII's prohibition on discriminatory employment practices. At its core, 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 another? In a path-breaking opinion, which is nevertheless unpublished, the District Court answered this question in the affirmative, dismissing the case on summary judgment. A panel of this Court affirmed in a summary order containing a single substantive paragraph. Three days prior to the filing of this opinion, the panel withdrew its summary order and filed a per curiam opinion adopting in toto the reasoning of the District Court, thereby making the District Court's opinion the law of the Circuit.Judge Cabranes' dissent (which begins on page 9 of the order) was joined by Chief Judge Jacobs, and Judges Raggi, Wesley, Hall, and Livingston. Those voting against en banc review were Judges Calabresi, Straub, Pooler, Sack, Sotomayor, Katzman, and Parker. The original panel consisted of Judges Pooler, Sack, and Sotomayor.The use of per curiam opinions of this sort, adopting in full the reasoning of a district without further elaboration, is normally reserved for cases that present straight-forward questions that do not require explanation or elaboration by the Court of Appeals. The questions raised in this appeal cannot be classified as such, as they are indisputably complex and far from well-settled. These questions include: Does the Equal Protection Clause prohibit a municipal employer from discarding examination results on the ground that "too many" applicants of one race received high scores and in the hope that a future test would yield more high-scoring applicants of other races? Does such a practice constitute an unconstitutional racial quota or set aside? Should the burden-shifting framework applicable to claims of pretextual discrimination ever apply to a claim of explicit race-based discrimination in violation of Title VII? If a municipal employer claims that a race-based action was undertaken in order to comply with Title VII, what showing must the employer make to substantiate that claim? Presented with an opportunity to address en banc questions of such "exceptional important," a majority of this Court voted to avoid doing so.
I respectfully dissent from that decision without expressing a view on the merits of the questions presented by this appeal, in the hope that the Supreme Court will resolve the issues of great significance raised by this case.
Over at Bench Memos, Ed Whelan is dismayed by the court's "apparent shenanigans," which he suggests were motivated by a desire to avoid Supreme Court review of the case. Whatever the motive, the actions of the original panel, the failure to handle an issue of this significance in a published opinion in particular, are highly questionable, to say the least. The New York Law Journal reports further here.
Related Posts (on one page):
- More Opinions on Ricci En Banc:
- Important Constitutional Issues Raised by Ricci v. DeStefano:
- Unpublished but En Banc Worthy:
A psychological portion (probably a Univ. of Chicago Industrial Relations standard test) which ostensibly determines psychological fitness for supervisory or command positions. Naturally, there are no right or wrong answers, only various identifiable profiles which can be assigned a numerical score based on some ranking of ideal to less desired profiles. In practice, a member of the sought after group will be allowed to originate in, say, 3 or even 4 out of 4 possible profiles. Members of another (but less) sought after group may be allowed 2 out of 4 profiles. Members of the least desirable group will be assigned 1 or even 0 possibilities out of the 4 possible profiles. This is called "Adjusting for cultural bias."
Then, the NHFD can create oral interview boards, which supposedly test in "real world" skills (as opposed to book-learned knowledge). They can then contract with, for instance, Operation PUSH to objectively administer and staff the tests.
The written portion of the test will be downgraded to something like 25% of an aggregate score, which weights profiles and interviews more than formal learning or knowledge that actually has some connection to the position.
Finally, when all this does not produce the desired results, the exam reporting will be changed to maintaining multiple lists, one for each identified group. No test or aggregate scores will be revealed, only a numeric ranking on each list of like group members. Then some arbitrary ratio of x number from List #1, y number from List #2, etc., will be the basis for promotion.
Can you tell I've had some personal experience with this?
And isn't New Haven close to Hartford, which is famous for refusing to hire whites with IQ's "too high" for police work?
I wonder if the Griggs v Duke Power court would have ruled the same way had they known the impact of that decision down through the years.
Unfortunately, what I described is 100% accurate. That was the evolution of affirmative action in promotion at the government agency where I worked for 32 years. I did leave out several other iterations for time and space, such as the "rule of five", similar to that mentioned in the OP link. Simplified, the agency gets to consider each bracket of five (or three) candidates, in order of listing, and promote a minimum of only one in each group, and then move on to the next grouping of five. Of course, the agency can promote more than one-in-five, typically once it reaches a target-rich portion of the listing.
My agency also decided that to remedy past errors which prejudiced specific groups, it would simply promote those persons still employed who had been adversely affected (by not being promoted, even if the individuals had never even tested) without exam. This created a list of person to be promoted as vacancies occurred, and negated the point of testing for years, since the only openings were filled from a list of non-testing candidates.
At each recalculation, caused because the prior process failed to obtain the exact mix, the logic more and more assumed Alice-in-Wonderland proportions. Much like that reported in the 2nd Circuit CA...
This constantly changing logic is destructive to the people who really are affected, since it's like the field officials in a football game stopping play to lengthen the field everytime one team gets closer to the goal line. When the other team goes on offense, the same officials rush out, cross off the 40 yard line and repaint the number to 'goal". It seemed a destruction of the process to even concede that there were different teams.
IIRC that was New London, not Hartford.
Must be a pet issue of Whelan's.
And the Supreme Court grants cert on unpublished opinions all the time. The idea that the 2d Circuit was trying to avoid Supreme Court review is ridiculous.
I am shocked, shocked that a court would craft its opinion to protect it from review by a higher court!!!
This happens pretty much every day at every level of the judicial system.
That's ridiculous -- how can an opinion become the law of the circuit unless it is published separately in the Federal Reporter Series for federal appeals court decisions? District court opinions, if they are published, are published in the Federal Supplement. And I presume that the appeals court would be expected to show some independent thought.
It is very easy for an appeals court to avoid Supreme Court review: either don't publish an opinion or -- even better yet -- don't write an opinion at all. And it helps if the district court opinion is unpublished or nonexistent. There is a judge in the Central California federal district court, T.J. "Mad" Hatter, who has a bad reputation for issuing decisions without opinions. Ed Whelan is very naive.
So now the 2nd circuit -- which until last year did not even allow citation of unpublished opinions for any purpose (and still might not allow it if FRAP Rule 32.1 had not been adopted nationally) -- is now adopting an unpublished opinion (a mere district court opinion, yet) as "the law of the Circuit," according to Judge Cabranes' dissenting opinion against denial of an en banc rehearing. This has got to be the living end.
The original post said,
Contrary to my last comment, the 2nd Circuit appeals court is now apparently adopting the entire district court opinion as a published appeals court opinion (I presume that is what Cabranes meant when he said that the opinion is now "the law of the circuit"), so I don't see how the court is trying to avoid Supreme Court review of the case.
AF said,
I think that it is much harder -- maybe almost impossible -- to get Supreme Court cert for an unpublished opinion. Anyway, as I said, the 2nd circuit is apparently now treating this unpublished district court opinion as a published appeals court opinion.
PLR said,
Per curiam opinions can be written opinions. "Per curiam" -- literally meaning "by the court" -- normally just means that the author of the opinion or decision is not identified. Here the opinion was entirely adopted from the district court, so none of the appeals court judges can claim authorship of it, so they just called the adoption "per curiam."