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least a published opinion by the three judge Second Circuit panel (which instead chose to affirm the district judge's unpublished opinion in a brief, unpublished summary judgment order).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.