L1: In 2013, the City of New Haven had 15 vacancies to fill in its fire department: 8 for lieutenants and 7 for captains. Per the city’s agreement with the firefighter’s union, spots were to be filled based on merit. To that end, the City administered an oral exam worth 40% of a candidate’s overall score and a written test to make up the other 60%. 110 firefighters took the test.
The written test was designed by IOS, a company with which the City contracted. IOS spent considerable time reviewing the job requirements and competencies of the various positions before writing the 100 question exam. The materials from which the questions were taken were available to the candidates for $500, who had 3 months to study.
The City’s policy followed the “rule of three” for promotions, requiring that one of the top three scoring candidates was to be chosen to fill each spot. This meant that the 8 lieutenants spots would be filled by the top ten highest scoring candidates- all of whom were white. For the 7 captain positions, 9 of the top 10 candidates for those spots would be automatically eligible. The top 9 included 7 whites and 2 Hispanics.
The City feared they would face a lawsuit for discrimination based on the disparate impact of the testing. After meetings, discussions, and consultation with experts, the City declined to certify results, meaning no one was promoted. As a result, 18 firefighters- 17 white and one Hispanic- filed suit against the City and Mayor John DeStafano, and others alleging racial discrimination in violation of right of equal protection under Section 1983 and the disparate treatment prohibition of Title VII. They claimed that refusal of the City to certify the test deprived them of the opportunity for promotion on the basis of race. The City argued that, had they certified the test, they would have been liable under Title VII for violating the disparate impact clause.
Each side filed a motion for summary judgment in district court. The court found in favor of the city, dismissing the lawsuit. The Second Circuit affirmed. The plaintiffs took their challenge to the Supreme Court, which granted cert in Ricci v. DeStefano, our case of the week.
Justice Kennedy delivered the majority opinion. The Court first considered the statutory disparate treatment claim, in keeping with the Court’s general practice of avoiding constitutional claims when a statutory claim may resolve the matter. Title VII prohibits both disparate treatment and disparate impact. Prior to 1991, Title VII prohibited only disparate treatment; that is, a plaintiff would have to show that an employer’s actions were motivated by an intent to discriminate in order to prevail. The mere fact that an action had the effect of harming a minority group was not actionable. There were, however, a few cases in which the Court held that practices which were not related to a legitimate business purpose and which “operates to exclude [minorities]” violated the statute. After nearly 30 years, Title VII was amended in 1991 to explicitly prohibit disparate impact as well. After the amendment, an employee could establish their claim by showing that an employer has “a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” To rebut this claim an employer must show the complained-of action is related to the performance of the job and necessary for its business. An employee would then have to show there exists an alternative practice that can meet the business need without the disparate impact.
The Court had to determine whether the City’s first duty was to avoid disparate treatment or disparate impact. The Court accepted the premise that the City’s refusal to certify the test results was based on race– too many whites and too few minorities would be promoted by certification. On its face, wrote Kennedy, this action violates Title VII’s prohibition against disparate treatment based on race. Nevertheless, the Court still had to reconcile the City’s catch-22: certify a test they believed left them open to a disparate impact suit, or refuse to certify and face a disparate treatment suit.
The firefighters urged the Court to adopt their position: that an employer may not intentionally discriminate to avoid unintentional discrimination. But the Court was not willing to accept that argument, because both provisions of Title VII are equally enforceable.
On the other hand, the Court was also unpersuaded by the City’s argument that an employer’s good faith attempt to avoid disparate impact was justification for race-based employment decisions, noting the text of the statute allows no such exception to the prohibition against disparate treatment.
The Court cites precedent which held “that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “ ‘strong basis in evidence’ ” that the remedial actions were necessary.” Therefore, to resolve this case, the Court needed to determine whether the test was, in fact, flawed in such a way that it caused the disparate impact. A good faith belief is not enough; the employer must establish the “strong basis in evidence.”
As to the test administered by New Haven, the Court found that the City had not met that burden. The Court found nothing in the factual record to suggest the test was not job related or a business necessity, or that there existed another testing method of equal validity that would have resulted in a less disparate impact. Citing the steps taken by IOS in creating the test, and testimony from others employed to examine the test after the scores were revealed, the Court found no strong basis in evidence that the test was so deficient as to warrant the imposition of a race conscious remedy. Therefore, the Court held that the firefighters were entitled to summary judgement against the City for its refusal to certify the testing results.
Justice Scalia wrote a concurrence to address briefly the issue the majority avoided: whether the City’s actions constituted a 14th Amendment Equal Protection violation. It was his opinion that the conundrum liked that faced by the City will, at some later point, require the Court to reckon with the conflict between race-based remedies and the Equal Protection clause.
Alito also wrote separately, joined by Thomas, to rebut the dissent written by Justice Ginsburg and joined by Justices Breyer, Souter, and Stevens. Ginsburg began by discussing a long history of discrimination among municipal employers, noting that political patronage and nepotism often took the place of merit in hiring and promotion decisions. The institution of testing for hiring and promoting was a step away from the old system toward equal opportunity. However, the record showed that some of the firefighters who argued against certification pointed out some inequities that still lingered; while some of the applicants could not pay the $500 for study materials and others had to wait a month or more to receive them due to backorders, others already had them due to their family and social connections with other members of the department. These advantages largely favored white candidates. Most of the minority firefighters were first-generation.
The dissent also discussed the report of a consultant hired by the City, who opined that the test was flawed as was the City’s 60/40 written/oral testing formula. The consultant noted that other municipalities using different assessment methods tended to have a more diversity in their successful candidates. Justice Ginsburg believed there to be plenty of evidence in the record that certifying the test could lead to a valid claim of disparate impact, and disagreed with the stringent standard applied by the majority:
“…Congress declared unambiguously that selection criteria operating to the disadvantage of minority group members can be retained only if justified by business necessity. In keeping with Congress’ design, employers who reject such criteria due to reasonable doubts about their reliability can hardly be held to have engaged in discrimination “because of” race. A reasonable endeavor to comply with the law and to ensure that qualified candidates of all races have a fair opportunity to compete is simply not what Congress meant to interdict. I would therefore hold that an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII’s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity.
Alito’s rebuttal took issue with Ginsburg’s conclusion that the evidence supported a claim of disparate impact. Further, he claims that even if she was correct, a reasonable jury could find that the City’s contention that throwing out the test results was intended to rectify adverse impact on racial minorities was nothing more than a pretext. Rather, he thought, a jury might conclude the City’s real motivation was “the desire to placate a politically important racial constituency.” As support for this supposition, Alito discusses some of the infighting which occurred after the results were released. He specifically zeroes in on Boise Kimber, a controversial black pastor and community organizer in New Haven known for threatening “race riots”. Kimber was closely tied to Mayor DeStefano and was outspoken in his advocacy for not certifying the test results. He was named as a defendant along with the City in this suit.
“Taking into account all the evidence in the summary judgment record, a reasonable jury could find the following. Almost as soon as the City disclosed the racial makeup of the list of firefighters who scored the highest on the exam, the City administration was lobbied by an influential community leader to scrap the test results, and the City administration decided on that course of action before making any real assessment of the possibility of a disparate-impact violation. To achieve that end, the City administration concealed its internal decision but worked—as things turned out, successfully—to persuade the [Civil Service Board] that acceptance of the test results would be illegal and would expose the City to disparate-impact liability.
In the end, the City of New Haven certified the results, and 14 of the top 20 highest scoring test takers were promoted. The City also paid the plaintiffs $2 million plus attorney’s fees, and three years of “service time” to apply toward their pensions.
L2: In other SCOTUS news this week: While some Democrats cheered the Court’s decision not to hear a Republican challenge to Pennsylvania’s high court ruling allowing ballots received after election day to be counted, others noted with alarm that the decision to deny the petition was 4-4 on mostly party lines, with Roberts siding with the liberals, and worry what that might mean if the election ends up before the Court.
L3: Relatedly, the Court will, at that point, have three justices who were personally involved in Bush v Gore in 2000 as part of Bush’s legal team.
L4: In “not really news but ok,” Internet commentators note that Kamala Harris failed the bar exam on her first attempt, while Amy Coney Barrett graduated first in her class in law school. Unrelated: apples are not like oranges.
L5: Speaking of the bar exam, how would you like to have all of your law school classmates informed of your failure in a mass email- by your dean?
L6: A bipartisan bill to help prevent veteran suicides was quietly passed and signed into law last weekend, including the new “9-8-8” mental health emergency phone number. Good to know there is still such a thing as a “bipartisan bill”.
L7: The DoJ, joined by eleven states, is about to hit Google with an antitrust lawsuit. The government alleges Google unfairly squashes competition in its search results.
L6 – That a bipartisan bill was passed and signed that addresses such an important issue, tells you everything you need to know about politics in 2020.Report
The Catch-22 is really interesting. Saying that it will be done by “merit”, right there, is one of the mines in the minefield.
And we can argue all day about what “merit” would mean and whether it exists in the first place and, if it exists, how is it measured and can we really say whether one firefighter is better than another?
And, of course, the answer is “OF COURSE MERIT FREAKING EXISTS AND OF COURSE WE CAN SAY THAT SOMEONE DOES A JOB WELL AND SOMEONE ELSE DOES A JOB POORLY”.
It’s when the job doesn’t need to be done that we can wax philosophically about whether it doesn’t need to be done well or whether it matters if it doesn’t need to be done poorly.
“The tests weren’t good!” might be a good argument. “The tests didn’t measure what we wanted tested!” might be a good argument. “The study materials were withheld from potential students!” is a great argument (though it seems to grant that the test, if studied for, would be a good measure).
To tie into the phrasing from the other day, there are socially constructed parts of what makes a good fireman.
But there’s also this thing about putting out fires, investigating fires, and preventing fires.
And talking about how other cultures, including ours, thought that phlogiston existed is not a good way to turn “putting out fires, investigating fires, and preventing fires” into something as socially constructed as employee management.Report
L4: What is “merit”, anyway? Can we even say if it exists?Report
AT the extremes, merit is easy to spot. Look at how the Obama Administration was generally staffed by Ivy League graduates who attended private prep schools. Look at how all of the current Supreme Court justices attended one of two law schools.
It is at the margin that merit begins to have problems.Report
My team members have merit and so it is appropriate to judge them using merit.
Your team members do not have merit and so it is inappropriate to use merit to judge them. You should, instead, look at the disparate impact that resulted in your team members being chosen disproportionately over my team members.Report
L1 – I agree with RBG with regard to the issue of access to testing materials. Had the city planned better and had the test materials available the day the test was announced, and free for any firefighter in the city, it would have had a different case.Report
Maybe. “First-generation” firefighters don’t have friends who are fire-fighters? 2nd-generation firefighters’ parents took the same test? There are no lower cost study alternatives?
And this favors the whites?
This isn’t impossible but it sounds like an effort to assume and/or assert what should be proven.Report
There is a test you want to take for advancement. Study materials for that test are expensive and in short supply and the date of the test is looming, BUT, people with connections/disposable income manage to get access to those materials ahead of others.
That gives some people a leg up in that they have ability to, and more time to, prepare for the test. That is a problem that has already been proven in other cases, and with simple logic.
Had the testing company and the city done the basic job of getting a count of how many people wanted to take the test, and then providing study materials at a nominal, or zero, cost to the examinees, then there is no cause for complaint on that front.Report
This would be a lot more believable if there weren’t weasel words in the reasoning. [“These advantages largely favored white candidates.”]
What does “largely” mean, why are we talking about “candidates” rather than “qualifying scores”, what was the racial break down of the applicants?
There’s enough room in the description to mean anything from “everyone who got a high score had access to the study guides and from the scores the guide made a huge difference” (although I’d hope if that were the case they’d just say something like that);
To “most of the people who got high scores didn’t bother with guides because it’s mostly an Experience+IQ test”.
I’m cynical of the political class wanting to redo a supposedly neutral test only after the outcome is known using weasel worded reasoning.Report
You are talking past me. Re-read my comments.Report
I’ll rephrase.
How important are these study materials, how many of the winners used them, how many of the losers didn’t? There is room in what we know for the study guides to be anywhere from absolutely needed, to somewhat useful, to not useful.
If those guides are dominate in determining who gets what, then it’s weird we’ve got phrases like “largely favored” in the description of the process.
It is flawed reasoning to claim “this was an effect so it must be the dominating effect so let’s re-do things”. It is especially suspect when the rules were agreed upon before hand and the outcome is politically undesirable.
Hmm…in an effort to look up the answers to my questions, I found this: https://en.wikipedia.org/wiki/Ricci_v._DeStefano
The City deliberately, at every step of the way, attempted to make the test minority friendly. They over-sampled minority officers for creating it. Two thirds of their panelists (i.e. the judges giving the oral exam) were minority.
Reading the wiki, it looks like it was a new test but I don’t see it’s exact creation date.Report
The total number of people who even suggest unequal access to study materials was two (out of the scores of people involved). This is why we have this weird situation where “old family networks can get you materials” is stated to be a huge advantage on a brand new test.
That’s the opinion of one person.
https://supreme.justia.com/cases/federal/us/557/557/Report
I’m not claiming it was dominating, I’m claiming that unequal access to materials is stupid and gave RBG a hook.
You spend all this time and effort to make the test itself as fair and balanced as you can, then you go and do something stupid like charging a significant sum for the study materials, or not having enough to meet demand.
I agree with the ruling, I think overall the city made a good faith effort to administer a fair test, with one misstep, and should have certified the results while making sure that next time the study materials are cheaper and better planned for.
Now, if we revisit this 5 years later and the study materials are still an issue, THEN you have a problem.Report
[L7] Every single one of the 11 AG’s that signed on to this suit is Republican. I think it’s particularly significant that the state of WA, home of Microsoft, which operates Bing, isn’t on the list.
This is the product of AG Barr’s DOJ, a thing which has become of political tool, used to attack enemies.
And if Google were to face anti-trust action in a way that seems beneficial to me, it would be over online advertising, over which they have a monopoly.
The claim that they paid Apple to be on IOS is laughable. Everyone pays to play on IOS. There’s nothing unusual about it in the slightest. It’s a big number meant to get people excited, but that’s because folks use it a lot.Report
[L3] And wonder of wonders, Democrats don’t trust this court, and don’t think that they would get a fair hearing before it.Report
L2/L3: The 4 who wanted to meddle in Pennsylvania’s election cited Bush v. Gore as a precendent.
L7: And the suit was announces 2 weeks before the election? Pure coincidence.Report
L2: At this point, the SCOTUS is begging for another 6 justices.Report
For the usual reason, I assume?Report
The usual rule is now, “Because we can.”Report
Because they are blatantly partisan. You can’t appeal to the legitimacy of the Court when iy has none.Report
The first part of Bush v Gore was “you can’t count certain ballots extra special after you know the results so you know how many you need”.
The amazing thing about that is it was 7-2 and not 9-0.Report
L2/3 – The idea that 4 justices are down with unpostmarked ballots being counted three days after an election is seriously unreal third-world bullshit.
I think they need to be impeached, along with the asshats in Penn.Report
Here is the stay:
Even the clowns in PA admit that the law, as created by the legislature is “unambiguous” about the date, and they went and extended it by fiat, and four asshats at the supreme court backed them up with this BS.
un. fucking. real.Report
It’s a state issue. The Supreme Court has no jurisdiction. Just like Bush v. Gore.Report
From the stay:
https://www.supremecourt.gov/DocketPDF/20/20A54/155080/20200928132635179_Emergency%20Application%20-%20Pennsylvania%20Democratic%20Party%20v.%20Boockvar.pdf
A trio of federal statutes. So, yes the supreme court has jurisdiction.
Un. Fucking. Real.Report
Rehashed Democrat talking point: “Oh come on. We all know that a state can require voters to pass a reading comprehension test in basic Latin and Greek. Alabama has every right to make sure only informed voters are casting ballots! The federal government should have no jurisdiction… States’ rights!”Report
The decision was based on PA’s state constitution, and elections are a state matter.
Also, don’t sabotage the USPS and no extraordinary remedies will be needed.Report
Three federal statues Mike.
This is the VRA in a nutshell. And no one sabotaged the USPS unless you count the changes that started under Obama.
And if you go back to actual voting type voting, THAT doesn’t matter.Report
The voting rights act disagrees with that opinion. The feds have a lot of jurisdiction when it comes to voting. However, it appears that Penn is, by law, an in-hand state but the Trump ADministration’s messing with the post office gave the Democrats in Penn an excuse to make Penn a postmark state instead.
What is odd that there are a couple of states like Iowa that require the ballot to be received the day before election day.Report
While I’m an advocate of well-done vote by mail, making sh*t up as you go is almost a guarantee that Bad Things will happen.Report
You know, if the Dem side was the only one pulling shenanigans in this election, I’d have total sympathy with your position. As things stand, however, I have a little difficulty mustering up any.Report
Ditto, especially when Republican legislatures refuse to take up legislation to address election security issues and/or pandemic related legislation, and then sue a democratic governor who takes matters into their own hands.Report
The only things I have seen in this election from the right have been on the lines of cleaning up voter rolls and other patently legal things. Do you have some other examples?
Because you would think that they would be sued over them if the things they were doing were actually illegal. Certainly nothing as banana republic as this.Report
I still fail to see how its banana republic to extend voting periods by executive order due to a major pandemic when legislative branches refuse – actively – to do so.
But you do you.Report
The only consistent logic in Republican electoral issues is unwavering opposition to voter participation.Report
You could just as easily say that the only consistent logic in Democrat electoral issues is the unwavering support of stuffing the ballot box.
Now, are we all happy with our raw, inchoate hate?Report
Yes, nonexistent fraud is the same as actual disenfranchisement.Report
Same as non-existant disenfranshisement.
And on and on and on and o…Report
Do you encounter people who find this persuasive?
Serious question.Report
I find it to be a persuasive argument before some and not others.
Same as downtown.Report
The winning side doesn’t have to convince the winning side that the winning side didn’t cheat. The winning side has to convince the losing side that the winning side didn’t cheat.Report
Except that there are massive examples of the fraud that are going on. In Texas a bunch of party election officials were arrested for running a drive-thru fake-voter scheme where they even had stacks of driver’s licenses for anyone to use.
One of the elements of any Democracy is that the losing side has to accept that they were defeated in a fair contest. If the contest is rigged, that goes out the window, and the solution can quickly devolve into open warfare.
The trouble is that killing ten million or so Democrats, though easy, won’t fix the problem, because dead people still vote Democrat. The only solution is to make sure the voting is fair and that the votes are all valid.Report
It’s not the extension (that is covered by allowing early voting) its counting ballots that come in post-election day with no post mark ie no proof that they were cast before the election.
As has been summed up:
It doesn’t matter which party, it’s that these idiots have allowed the election to be cast into doubt if it is close. Not to mention this is the rankest sort of judicial activism, overriding the well-worded law of the elected representatives.
And by the way, this isn’t executive order. That would be by the governor.Report
Well I think elections should be decided by which party controls the “official ballot” printing machines. They just keep printing and filling out ballots until their candidate wins. We’ve already had court rulings up there that say even invalid ballots must be counted, so the ballots can all say “Goofy” and “Mickey” and they still count.
I think what it might come down to is whether Republican private sector companies can print more official ballots per day than Democrat government-regulated, government-run ballot printing operations. Given the vast gap in economic performance between the West and the old Soviet Bloc, I’m betting the Republican can churn out fake ballots faster and cheaper than the Democrats, especially if the fake-ballot-printing companies issue stock and attract lots of private investment, allowing them access to more capital than privately held fake-ballot-printing companies, much less government-run fake-ballot-printing operations, which undoubtedly would have limited work hours and union labor. Once they establish market dominance, voters wouldn’t even matter.Report
Florida voters passed a referendum allowing felons to vote. R’s have repeatedly fought that with a variety of excuses including they have to pay their fines first but they won’t tell them how much they owe.
R’s in some states have closed a large number of polling stations in predominantly minority areas.Report
Could you provide some links to that?
I haven’t heard of yet, so can’t tell if it is just Reddit stories or verifiable facts.
Any lawsuits over it?Report
Heck, ALL regular polling stations in my county are closed. Apparently there was some kind of disease that came in from China.Report
https://en.wikipedia.org/wiki/2018_Florida_Amendment_4
It was passed in 2018 and it’s a mess of tangled lawsuits which are happening right now. It’s less “won’t tell them” and it’s more “we don’t have agreed rules yet”.Report
Oh, I remember the felon voting thing, which I approve of. Not surprised there are lawsuits, or, in other words, the yelling at clouds stage.
I was wondering about the other claims made.Report
Lest we forget:https://www.upi.com/Top_News/US/2020/10/13/California-orders-GOP-to-remove-fake-ballot-drop-boxes/3191602557987/Report
Have they been proven to be illegal, or is it still at the yelling at clouds stage?
(Maybe we should just make all ballot harvesting illegal and then there would be zero issues here. Just sayin’)Report
By this standard, the PA thing is resolved.Report
It is resolved, to a certain standard. Just like Bush v.Gore is resolved.
But, much like the lefts disgust at the Republican vote stations, I am disgusted by this.Report
Actually, the California Republicans backed down, and agreed to implement the standard security safeguards on the unofficial boxes they installed.
https://www.politico.com/states/california/story/2020/10/16/california-allows-republican-ballot-boxes-with-safeguards-1326076
So its fair to say that the State of California got what it wanted, increased voter access, and the Republican party now sees the value in ballot harvesting.Report
Hmmm. Doesn’t look like the Rs backed down so much as the state did.
Report
Either way, the voters of California get increased access to balloting, with safeguards.
Can we all agree that this is a win for all involved?Report
Not as long as there is harvesting.
That is a loss for all Americans.Report
The Iraqis had better election security than we do. That’s pretty sad.Report
Was the pastor held liable for anything? Suing someone for political advocacy is… concerning.Report
Everytime I read this case, I’m struck by the hilarity of it. Of course City Hall was going to be concerned about the test results – African-Americans were a part of DeStefano’s political machine (and not Hispanics). That said, of course the test was written in a bias manner – it’s freaking New Haven. The NHPD and NHFD were one of the few areas of government controlled as a fiefdom by white ethnics and everybody knew that.
Then there’s the unspoken spectre in the case, which is Yale. And how Yale students have pushed into the city’s politics more aggressively in the last decades compared to the nadir in the 70s and 80s.
Anyway, I don’t have much to say for the constitutional issues – there is a pickle there. But lol, New Haven.Report
I would like to see a bunch of biased tests next to each other.
This one can be biased in such a way that *THIS* group has an unfair advantage.
That one, by comparison, can be biased in the other direction entirely. Like, the people in the above group sits down to take it and WHAM they totally get cut off at the knees and other, historically marginalized, groups hit it out of the park.
(They should make more tests like the latter and make more people take them. I think we’d learn a lot.)Report