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Important Constitutional Issues Raised by Ricci v. DeStefano:

I share Jonathan Adler's and Judge Jose Cabranes' view that the Second Circuit should have given en banc consideration to the important issues raised in Ricci v. DeStefano, the case where the New Haven Fire Department set aside the results of a promotion exam for firefighters because of the racial distribution of those who would otherwise have been promoted. As Judge Cabranes (a liberal Democrat and Yale Law School [correction: adjunct] professor appointed by Bill Clinton) points out in his dissent to denial of rehearing en banc (available at the above link), the case raises important issues under both the Equal Protection Clause and Title VII of the Civil Rights Act. In this post, I note some additional constitutional issues that Judge Cabranes didn't focus on directly. If time permits, I will address the Title VII issues in a later post. The constitutional issues here are obviously important enough to justify en banc consideration or at least a published opinion by the three judge Second Circuit panel (which instead chose to affirm the district judge's unpublished opinion in a brief, unpublished summary judgment order).

I. The Constitutionality of "Race-Neutral" Decisions to Abolish Public Employment Opportunities out of Racial Motives.

A crucial issue raised by the case is the question of the range of situations whether a "race-neutral" denial of opportunities by government counts as an Equal Protection Clause violation if the government's action was motivated by racial considerations. Although New Haven's decision to deny promotions to those firefighters who qualified for them through the exam was motivated by racial considerations, it was facially "race-neutral" in the sense that it denied promotion to all those who would have qualified for it through the exam, regardless of their race. If there is a violation of the Equal Protection Clause here, it occurred only because the government's formally race-neutral decision was taken out of racial motives. The interesting additional twist here is that the action in question was not the establishment of a supposedly discriminatory promotion system, but the scrapping of one. Decisions to shut down a government program or benefit are usually much harder to challenge on constitutional grounds than decisions to set one up.

This situation is somewhat similar to the 1971 case of Palmer v. Thompson, where a closely divided Supreme Court refused to invalidate a Mississippi city's decision to shut down several public swimming pools rather than allow them to be racially integrated (as a previous court order required). The Court reasoned that the city was not required to provide public swimming pools in the first place, and that the decision to shut down the pools did not affect blacks "differently from whites." In Ricci, New Haven likewise is not required to provide exam-based promotions to firefighters in the first place, and it could be argued that its action affects all racial groups equally in the sense that firefighters of all races are now ineligible to gain promotion on the basis of the exam in question.

However, the public employment context differs from the public service context in a number of ways. In the famous 1976 case of Washington v. Davis (involving police promotions in the District of Columbia), the Court held that a race-neutral promotion system could be unconstitutional if plaintiffs could prove that it had been enacted for the purpose of disadvantaging particular racial groups. But it's hard to say to what extent this principle applies to a situation where a promotion system has been scrapped for racial reasons, as opposed to instituted for them.

Moreover, in Ricci, the city acted as it did precisely because it knew that white (and a few Hispanic) firefighters would otherwise gain promotion, while no black ones would. By contrast, in Palmer it was reasonable for the Supreme Court to assume that both black and white residents of the city would have used the swimming pools had they not been shut down. Be that as it may, it is far from clear whether Ricci falls in the same class of cases as Palmer or whether it falls under the rule announced in Davis. Therefore the Second Circuit should have considered the issue more carefully.

II. Strict Scrutiny and Racial Preferences in Government Employment Decisions.

If a court were to hold that New Haven's action in Ricci was a presumptively unconstitutional racial classification (thereby deciding that the case comes under the Davis rule rather than under Palmer), the city could still prevail if it could prove that its decision passes "strict scrutiny." In a wide range of cases, the Supreme Court has held that racially discriminatory actions by government are constitutional if they pass the test of "strict scrutiny," which requires them to be "narrowly tailored to the advancement of a compelling state interest." Many experts once believed that strict scrutiny is virtually always fatal to the challenged government policy. However, in the 2003 case of Grutter v. Bollinger, the Supreme Court held that affirmative action preferences in state universities can pass strict scrutiny if they are narrowly tailored to the advancement of the state's interest in educational "diversity," which the Court ruled was a "compelling state interest."

A crucial question is whether there is any compelling state interest that might justify affirmative action racial preferences in municipal fire department hiring. The district court found that New Haven was motivated, at least in large part, by a desire to promte "racial diversity" in the fire department. I can see a strong argument that there might be a compelling state interest in racial diversity in police department hiring, at least in some cases. A nearly all-white police department in a city with a large black or Hispanic population might not be able to gain the public trust it needs to do its work effectively. For example, minority citizens might be unwilling to give information about suspects and otherwise cooperate with investigations by a police department perceived as a "white" institution. Police brutality problems might also be greater in such a situation.

By contrast, it's much harder to argue that minority residents won't give adequate cooperation to an overwhelmingly white fire department. Owners and residents of burning buildings are unlikely to give much consideration to the racial identity of the firefighters who try to put out the blaze.

Obviously, I'm no expert on fire department policy, so it may be that there is some compelling interest in firefighter racial diversity that I'm missing. Even if there is a compelling state interest here, courts would also have to decide whether the use of racial considerations here was "narrowly tailored" enough. Either way, federal courts will have to consider the constitutionality of affirmative action preferences by government agencies in the wake of Grutter.

Related Posts (on one page):

  1. More Opinions on Ricci En Banc:
  2. Important Constitutional Issues Raised by Ricci v. DeStefano:
  3. Unpublished but En Banc Worthy:
Javert:

A nearly all-white police department in a city with a large black or Hispanic population might not be able to gain the public trust it needs to do its work effectively. For example, minority citizens might be unwilling to give information about suspects and otherwise cooperate with investigations by a police department perceived as a "white" institution. Police brutality problems might also be greater in such a situation.

If true, it's quite an indictment of those minorities.

A crucial question is whether there is any compelling state interest that might justify affirmative action racial preferences in municipal fire department hiring.

An even more "crucial," i.e., fundamental, question is what standards are used to determine a "compelling state interest."
6.16.2008 10:21pm
J. Aldridge:
I'll take a bold stand and say not very many have any idea what the words Equal Protection of the laws means. Therefore, we are going to see incredible theories of racial diversity from courts.

Years ago a wise scholar asked anyone to prove what the Equal Protection Clause means what they think it means. No one could offer any proof.
6.16.2008 11:00pm
jps:
Just because Judge Cabranes is a Clinton appointee does not make him a liberal democrat. He is a moderate and on the more conservative half of the Circuit. Moreover, he was not a Yale professor, but General Counsel of the University.
6.16.2008 11:12pm
Ilya Somin:
Just because Judge Cabranes is a Clinton appointee does not make him a liberal democrat. He is a moderate and on the more conservative half of the Circuit.

I didn't say taht being appointed by Clinton automatically makes him a liberal. However, he in fact is a liberal based on his positions on most legal issues. He may be in the more conservative half of the 2nd Circuit, but that (if true) is because the Second Circuit itself is one of the most liberal in the country.


Moreover, he was not a Yale professor, but General Counsel of the University.

The one role doesn't exclude the other. Moreover, he is not the general counsel any more (a role incompatible with being a judge). In recent years, he has taught courses at Yale Law School as an adjunct.
6.16.2008 11:28pm
Gulf Coast Bandit (mail):
There was a similar reverse discrimination incident in Mobile, AL, involving a friend's relative. Would have been in the Southern District of Alabama. Three or four white firefighters sued the City for promoting a less-qualified black man over them. In the Mobile case, the results of a race-neutral process were set aside, just like what appears to have happened in Ricci.

Link to Mobile Register story
6.16.2008 11:41pm
opinio:
As a recent YLS grad and newly minted litigator before CA2, I'd agree with above poster that Cabranes is hardly a "liberal." My perception is that he almost invariably is on the "conservative" side of cases, from siding with the government on civil rights matters to siding with prosecutors in criminal cases to supporting more often than the average judge the deportation of an asylum applicant. As a "liberal" advocate, I am disappointed when I know Cabranes is assigned to a case in which I have interest. I believe my presumption is widely shared among frequent "liberal" litigants in CA2. This is not because Cabranes is right of the average judge on CA2, but rather because of a perception that he is right of the average circuit court judge across the country. It would interest me, however, if Cabranes occupies some fabled middle ground where conservatives and liberals alike view him as playing for the other team. I certainly am not in a position to know whether this is possibly true.
6.16.2008 11:51pm
jps:
So now every one who teaches as an adjunct is going to be referred to as a "professor" on this board? The context in which the "Clinton liberal and Yale professor" comment was made seems like there was some sort of rhetorical agenda- "Look, this Yale prof and flaming liberal even thinks I'm right!"
I never said he was still GC.
6.17.2008 12:45am
jps:
And if Cabranes is only moderate because he is on that renegade liberal 2d Circuit, but you have some special knowledge that he's "really" a liberal judge, by the same token, Rosemary Barkett is actually a conservative... She just "seems" liberal because of how conservative the 11th Circuit is!
6.17.2008 12:50am
Brian G (mail) (www):
I feel sorry for the people of New Haven, especially those who might need one of those men or women to save their lives. In law school, we once argued a similar case. I said that if my liofe depended on it, I sure hope it's a 6 foot 4 235 pound dude rather than a 5 foot 3 100 pound woman. You would have thought I said the n word at an NACCP convention.

Anyway, there has been too much time and resources expended on litigation. What New Haven should do is offer extra training and anounce that anyone who failed is welcome to register for a couple hour training session every Saturday from now untilt he next exam. Anyone who truly wanted to be a firefighter would be there every week. And they would pass the next time around. Shame that loves are risked in the name of diversity.
6.17.2008 12:50am
Asher (mail):
What everyone else said. Cabranes is about as much of a liberal Democrat as Justice Stevens is a conservative Republican. That said, I'm certainly in sympathy with his view of the case and hope the Supremes grant cert. Off the top of my head I can't think of one they've heard quite like it. I'd also say that I don't think the analogy between this case and Palmer v. Thompson is that close, since, as you say, the denial of public services there affected everyone equally. The analogy in the public services context, I'd suggest, is if the town had a public pool that was used almost solely by blacks (whites electing to wade in private pools), and the town closed the public pool simply out of spite, leaving the impoverished blacks of the town with nowhere to swim. Of course, an argument could be made that the town just doesn't have any obligation to offer public pools, but it's a much closer case.
6.17.2008 2:07am
Prison Rodeo (mail):
Interesting. It's well-known in the political science literature (that no one at VC reads) that an en banc decision is much more likely to be picked up on cert by the Supremes than is a decision by a three-judge panel. So, this is very likely a case of the CA2 majority strategically trying not to draw attention to the case.

Which raises another interesting question: This SCOTUS has generally been more than willing to allow circuits to police themselevs, so long as conflicst don't arise. As the dissent notes, this is a case of first impression, and the decision is not clearly at odds with anything anywhere else. So this would normally be a "reach" on cert. Of course, that will not likely stop the Four Horsemen Redux...
6.17.2008 2:24am
tvk:
I was under the impression that the Second Circuit eventually published the opinion, in a per curium opinion adopting the district court's opinion. So the opinion would be considered "published" and have precedential effect, but look as if it was an easy not-worth-the-Supreme-Court's-time case.
6.17.2008 2:54am
Greedy Clerk (mail):
Cabranes is not liberal by any measure of that term (and who knows if he is a "democrat" as Somin posits).

Somin is apparently not willing to admit error and/or ignorance.
6.17.2008 3:24am
Brett Bellmore:
It occurs to me that, unless they're not going to promote any firefighters at all, this doesn't imply merely ending race neutral promotion, it implies replacing it with race discriminatory promotion. Quite different from a municipality getting rid of a race neutral swimming pool, and subsequently not providing any swimming opportunities at all.
6.17.2008 6:46am
Anon321:
Just to pile on ... a friend of mine was recently told by another 2d Circuit judge (appointed by Bush II) that, in his opinion, Cabranes was the most conservative judge on the 2d Circuit. Perhaps there was some hyperbole involved, but I think it's at least fair to say that the conservatives on that court don't unanimously see Cabranes as a liberal.

For what it's worth.
6.17.2008 9:08am
Sarcastro (www):
The Second Circuit will live to regret this decision. It will almost certainly cause more Americans to be killed.
6.17.2008 9:49am
whit:

Police brutality problems might also be greater in such a situation


at least you hedge with "might".

i've seen no evidence that police brutality concerns are greater with interacial cop incidents vs. intraracial. in fact, the only evidence i have seen supports that intraracial (iow black cop shoots black suspect) are more common per capita than the opposite (white cop shoots black suspect). heather macdonald referenced those stats in her book, iirc. note that greater use of force =/= necessarily equal 'brutality' of course. but it is an interesting stat that runs contrary to the public/law (mis)perception.

that sets aside the larger issue which is that police and fire should hire the best applicants, regardless of race or gender.
6.17.2008 10:15am
whit:
correction: publiclaY (mis)perception
6.17.2008 10:15am
Kingsley Browne (mail):
I think the Palmer v. Thompson analogy is not very strong, as Ricci does not involve a situation in which the city has simply decided that it will no longer hire firefighters because it does not like the racial composition that it would end up with.

As Ilya points out, there is also an important Title VII issue in this case. The Supreme Court has never held that the diversity rationale can be used to uphold racial preferences under Title VII, and in fact has pretty much said that remedial justifications are the only ones that are permissible. (Of course, the same was true of the Equal Protection Clause before Grutter, but Title VII's command against racial discrimination is more specific than the "equal protection" command of the Fourteenth Amendment). Below is a link to an article criticizing the Clinton Justice Department's reliance on the diversity rationale in the employment setting. It is a bit dated, but there are no intervening Supreme Court Title VII cases that change the analysis.

6.17.2008 10:21am
Kingsley Browne (mail):
Whoops! Maybe I'm too technologically challenged to get the link to actually link. I'll try again, but the link was to my Wayne State web page, and the article is one that appeared in the journal "The Labor Lawyer" in 1997.

Nonremedial Justifications
6.17.2008 10:34am
PatHMV (mail) (www):
Asher... many communities in the South did just that, close public swimming pools rather than desegregate them. I'm not aware of any court case which required a municipality to reopen a closed pool, regardless of the malicious motives behind the closure.
6.17.2008 10:35am
David M. Nieporent (www):
It occurs to me that, unless they're not going to promote any firefighters at all, this doesn't imply merely ending race neutral promotion, it implies replacing it with race discriminatory promotion. Quite different from a municipality getting rid of a race neutral swimming pool, and subsequently not providing any swimming opportunities at all.
Brett beat me to the point. The pool analogy is wrong, because it's not the test that's being denied to people based on race; it's the promotion.

If the town had a race-neutral entrance to the swimming pool, and then locked that door because they worried that too many black people were getting in, but it kept open a white-only door, that would be closer.
6.17.2008 11:18am
AF:
If the motivation to help racial minorities by reducing employment practices with racially disparate impacts is a presumptively unconstitution racial motivation under Palmer v. Thompson, then Title VII itself is presumptively unconstitutional.

I see no reason why the City of New Haven's actions in this case were any more constitutionally questionable than Title VII.
6.17.2008 12:08pm
eddy:
AF -- Do you believe that requiring a college degree for many employment positions is discriminatory because of disparate impact? Isn't disparate impact increasingly seen as a invalid rationale? Are criminal laws overwhelmingly sexist because ten men are incarcerated for every woman?
6.17.2008 12:33pm
David M. Nieporent (www):
AF: Title VII says that neutral requirements with disparate impact are illegal only if they're not job related. New Haven doesn't argue that the test it gives wasn't job related; it's apparently solely concerned with racial balancing.
6.17.2008 12:36pm
AF:
I don't believe that practices with disparate impacts are necessarily discriminatory. But neither do I believe that using facially neutral means to avoid practices with disparate impacts is unconstitutional -- even if it is done with the motivation to benefit the class that would otherwise have been disparately impacted.

That is not just my view, that is the current state of the law and has been for many years. There may well be four justices on the Supreme Court who would be interested in changing the law to outlaw certain facially neutral anti-disparate impact policies. Based on Kennedy's concurrence in Parents Involved, it is unlikely there are five.
6.17.2008 12:48pm
Kazinski:
I wonder what impact the collective bargaining agreement should have on the outcome. The district court opinion alludes to the fact the oral/written weighing of the test was subject of collective bargaining, so presumably the test itself was the agreed upon method of determining candidates for promotion. Can the City just arbitrarily revise the terms of the union contract, even with the connivance of the union?
6.17.2008 12:55pm
AF:
David, you are mistaken about Title VII. To survive a Title VII challenge, employment practices with disparate impacts must be job-related and there must be no acceptable alternative employment practice with no disparate impact.

The City of New Haven concluded, consistent with Title VII, that there were alternative promotion exams that would have less of a disparate impact. That their motivation may have been to minimize or eliminate racially disparate impacts in promotion does not render their decision constitutionally suspect. That is the same motivation that underlies Title VII's disparate impact provisions.
6.17.2008 12:58pm
Asher (mail):
Asher... many communities in the South did just that, close public swimming pools rather than desegregate them. I'm not aware of any court case which required a municipality to reopen a closed pool, regardless of the malicious motives behind the closure.

Sure, but in my hypo, the pool's already been desegregated and whites stop using the pool, leaving it to blacks alone, who theoretically can't afford to pay dues at the town's private club and therefore have nowhere else to swim. That's different from Palmer, where the pool closing would've affected blacks and whites equally. Maybe this is a better example - there's a park in a white part of town. The whites move out to the suburbs. Now the neighborhood's black. The town says they don't need the park anymore and closes it.

And about this case, I think a pretty important point would be whether or not the Fire Department planned or is planning to promote by some different means anytime soon. If they say they're simply keeping everyone where they are for the forseeable future, they have a case that they can at least argue is controlled by Palmer. If they plan to promote using some blacks-friendly test in the near future, then I think they have a much tougher case.
6.17.2008 1:00pm
David M. Nieporent (www):
That their motivation may have been to minimize or eliminate racially disparate impacts in promotion does not render their decision constitutionally suspect.
I think it does, as I think would be clear if the shoe were on the other foot. If they gave an exam, and "too many" black people passed the exam so they threw out the results and called a do over to get more white people promoted, and then said, "Well, we thought of a new test that more white people could pass," nobody would be defending that.
6.17.2008 1:09pm
AF:
David, you are overlooking the fact that the exam had a facially disparate impact. If an exam had a facially disparate impact on whites, throwing it out would not only be permissible, but potentially required by Title VII.

Unless a plaintiff could prove that throwing out the results was motivated by invidious discrimination, ie racism. And that's the rub. No court has held that, in the absence of an explicit racial classification, the desire to help minorities by eliminating de facto disparities is constitutionally equivalent to racism.
6.17.2008 1:27pm
CheckEnclosed (mail):
Maybe my reading of Ricci is wrong, but it looks like the city never got to the point of holding a second examination (or third or fourth) that produced the "right" number of non-white promotions, and then deciding to accept the results of that examination (examination being an elastic term in civil service language). At that point, would not some of those who would have been promoted under the first exam., but not the one eventually used, have both standing and a claim that the choice of which set of reults to use violated both Equal Protection and Title VII?

This is not to say that the Ricci case was, strictly speaking, premature, but that there might be further litigation.
6.17.2008 1:51pm
David M. Nieporent (www):
David, you are overlooking the fact that the exam had a facially disparate impact. If an exam had a facially disparate impact on whites, throwing it out would not only be permissible, but potentially required by Title VII.
I don't see how I was overlooking that, when it was one of the elements of my hypo. "Disparate impact on whites" is just another, fancier way of saying "too many black people."
6.17.2008 2:51pm
whit:

I don't believe that practices with disparate impacts are necessarily discriminatory


maybe new haven is following in the footsteps of new london PD. apparently, it's a "connecticut thang"...


To much of the outside world — and even to some in law enforcement — the idea that a police department would not accept a recruit because he was simply too smart sounded like a bad joke. But it was no laughing matter to the city of New London, Conn., where Robert Jordan waged and ultimately lost a three-year court battle to become a police officer, after his high score on an intelligence test disqualified him from joining the force.
The 48-year-old Jordan scored 33 points out of a possible 50 on the Wonderlic Intelligence test, an exam administered for the New London Police Department and 13 other Connecticut localities in March 1996. The New London department was seeking five or six candidates who scored between 20 and 27 points, the recommended range for police officers, said Chief Bruce Rhinehart.
Rhinehart and New London officials defended their position by contending that a highly intelligent candidate does not necessarily make an effective police officer. High-scorers, said Rhinehart, will become frustrated and eventually leave, costing the city some $25,000 spent on academy training. Federal District Court Judge Peter Dorsey ruled that the department was reasonable when it rejected the application.
Not only did Jordan score far above that of other academy hopefuls, he even beat the average score of reporters (27) and attorneys (29).
The disqualification, however, turned the NLPD into a laughingstock. Even comedian Jay Leno made fun of the agency, creating a parody of the song "Bad Boys," that included the refrain: "Dumb cops, dumb cops, whatcha gonna do with a low IQ."
6.17.2008 3:35pm
whit:
just for the record, any PD (or fire dept) that purposely seeks out less qualified applicants, either based on race, or IQ deserves the shoddy police force that results...
6.17.2008 3:36pm
AF:
If a disparate impact on whites is an element of your hypo, then the hypo does not prove your point. Not only is not the case that nobody would defend eliminating a policy that had a disparate impact on whites, in some cases Title VII would require it.

For a real-world counterexample outside the employment context, consider the University of California's former policy of giving whites preferential treatment (relative to Asian-Americans) on numerical indicators such as GPA and SATs to address the disparate impact those indicators had on whites.

That policy (which was eliminated by Prop 209) would now be constitutionally suspect because it explicitly classified based on race. But a facially neutral policy attempt to address the same disparate impacts (for example, by eliminating reliance on the SAT or providing admission to the top 4% of every state high school) has never been held unconstitutional.
6.17.2008 3:37pm
whit:

For a real-world counterexample outside the employment context, consider the University of California's former policy of giving whites preferential treatment (relative to Asian-Americans) on numerical indicators such as GPA and SATs to address the disparate impact those indicators had on whites.




correct. the "great lie" in regards to affirmative action (among its other faults) was that racial preferences helped "underprivileged minorities" overcome "systemic racism" that was held by whites.

if "systemic/institutional racism" was really the cause, then asians (specifically japanese americans) wouldn't have done MUCH better on objective measures like the SAT.

note that jews also outperform gentiles, protestants outperform catholics, also.

prior to prop 209, asians were the most hurt by racial preferences, not "privileged whites".
6.17.2008 3:46pm
El Guappo:
I''ll pile on the "Cabranes = liberal" train. The only active Second Circuit judges who I would say are right-wing than Cabranes would be Jacobs and Raggi.
6.18.2008 8:29am
M Hughes (mail):
Black Fires are different than White Fires. Just like Black Patients are different than White Patients. That's why we need black firemen and doctors. I know it's separating...but it's equal.
6.18.2008 10:57am
Brian G (mail) (www):
"Disparate impact" analysis now serves only to give legal validity to what are in reality ridiculous arguments. If too many minorities are failing these tests, then find ways to get them to study harder and work harder. By litigating this nonsense, there is no incentive to improve or learn more if you fail. All you have to say is that I failed because I am [insert identity here] and a court will hear it.

If my house is on fire and/or my life was on the line, I hope that qualified firefighters, not P.C. ones, come and save my bacon. You do too. You won't be looking for diversity at that point. If you are, you are beyond repair.
6.18.2008 3:10pm
Rich Rostrom (mail):
This decision is an open invitation to crypto-discrimination. How? Easy. What could be more racially neutral than random selection? If the random selection isn't what is wanted, discard the result and try again. Each time, use a different randomizing mechanism.

ISTM that refusal to act in a racially neutral manner is logically, if not legally, equivalent to acting in a racially discriminatory manner.
6.19.2008 6:39pm