Unpublished but En Banc Worthy:

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 In a path-breaking opinion, which is nevertheless unpublished, the District Court answered this question in the affirmative, dismissing the case on summary judgment.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.

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.

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.

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.

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:
More Opinions on Ricci En Banc:

Via How Appealing I've learned that two more judges on the U.S. Court of Appeals for the Second Circuit have issued opinions respecting the court's denial of en banc review in Ricci v. DeStefano. Judge Calabresi concurred in the denial, and Chief Judge Jacobs dissented. As I suggested in my prior post, I think the dissenters have the better of the argument. Chief Judge Jacobs makes some particularly important points in response to his colleagues' reliance on the Second Circuit's "tradition" of denying en banc (or, as preferred in the Second "in banc") review.

The grant or denial of in banc review is governed by 16 Fed. R. App. P. 35, which says that in banc rehearing is disfavored--unless such review is needed for coherence of the Court's decisions or "the proceeding involves a question of exceptional importance." Fed. R. App. P. 35(a). Accordingly, the next subdivision of Rule 35 requires the petition to explain why the case falls within one or both of these categories. See Fed. R. App. P. 35(b).

This weighing calls for an exercise of discretion. . . .

No doubt, the proper exercise of discretion results in the denial of review in the overwhelming number of cases. And the resulting pattern may resemble the pattern of denial that would result from saying "no" by tradition. But the decision to grant or deny in banc review is like any other discretionary decision in the sense that discretion should be exercised, not elided or stuck in a default position. . . .

The exercise of discretion to hear cases in banc is integral to the judicial process. The advisory notes emphasize that "an en banc proceeding provides a safeguard against unnecessary intercircuit conflicts." See Fed. R. App. P. 35, Advisory Committee Notes 1998 Amendments). In other words, issues of exceptional importance that may divide the circuits should be subject to in banc review lest a three-judge panel adopt a rule of law that would not command a majority vote of the appeals court as a whole, and thereby provoke an avoidable circuit conflict that the Supreme Court would have to resolve.

I do not think it is enough for us to dilate on exceptionally important issues in a sheaf of concurrences and dissents arguing over the denial of in banc review. If issues are important enough to warrant Supreme Court review, they are important enough for our full Court to consider and decide on the merits. Of course, if an in banc poll discloses broad-based agreement with the panel opinion, in banc review may be a spinning of wheels. Under such circumstances, it may very well be an appropriate exercise of discretion to deny rehearing in banc. But to rely on tradition to deny rehearing in banc starts to look very much like abuse of discretion.