Affirmative Action Under Review Today: Ricci v. DeStefano

This morning, the Supreme Court will hear arguments in Ricci v. DeStefano, an affirmative action case involving the promotion of firefighters in New Haven, Connecticut. According to The New Republic’s Jeffrey Rosen, the city administered a promotion test in 2003, which had been validated by independent experts pursuant to federal law to ensure that it focused on job-related skills instead of purely cognitive ones. None of the top-scoring candidates for 15 available positions were African American. As Rosen explains, a local preacher contacted the mayor to suggest that the test should not be certified due to its racial disparities. The local civil-service board deadlocked as to whether the test should be certified. As a result, the city declined to certify the test, denying promotions to those who passed the test. Nineteen white fire fighters, along with one Hispanic fire fighter, sued the city for its refusal to certify the test.

The case highlights an important tension between Title VII law and constitutional requirements deriving from Equal Protection. Title VII requires employers to examine whether facially neutral hiring practices that produce a disparate impact are justified on grounds of “business necessity.” In that sense, Title VII asks employers to focus on the race of the candidates that the tests produce. At the same time, Equal Protection case law addressing employment practices appears to forbid racially-conscious hiring practices. This leaves employers like the New Haven Fire department in a bit of a bind. May they take the race of the firefighters eligible for promotion into account or not? In a post on Balkinization yesterday, Deborah Hellman criticizes the fact that the briefs in the case focus heavily on the question of what exactly the New Haven fire department intended to do. As she explains, one can easily describe the city’s aim as either racial balancing (forbidden under the Equal Protection Clause) or a good faith attempt to comply with Title VII (which is permitted). In her excellent book When is Discrimination Wrong?, Hellman carefully and cogently argues that when it comes to determining whether state action constitutes wrongful discrimination, “It’s Not the Thought that Counts.”

Here’s how her view would handle Ricci v. DeStefano. First, her approach would pose the question as one of objective interpretation rather than of mining the subjective motivations or intentions of the New Haven Civil Service Board. Her approach would ask: may a state employer decline to hire on the basis of a facially neutral hiring method when doing so produces a disparate impact? We do not need to know whether the Board declined to use the test because of the disparate impact. We need only ask whether it is constitutionally permissible not to use a test with a disparate impact. The answer to this question is likely to be yes. But that’s not all. As she also discusses in the book, facially neutral action that produces disparate impact can sometimes violate Equal Protection. It does so when the social meaning of the action demeans anyone or any group. So, as Hellman explains in the book, the Court wrongly decided the 1971 case, Palmer v. Thompson, because the city of Jackson, Mississippi’s decision to close the only public swimming pool rather than integrate was clearly understood as sending the message that white kids couldn’t possibly swim with black kids, thereby demeaning African-Americans. The relevant question in Ricci is thus does the Board’s decision to abandon the test and promote nobody demean the high scoring white and one Hispanic firefighter? While Hellman’s approach doesn’t tell us how she would answer this question, I think the clear answer here is that it would not.

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5 Responses

  1. Joe says:

    The test was already restructured once to probe on-the-job knowledge? How is it that not a single African American met testing requirements? And only one Hispanic?

  2. AF says:

    I think this post is mistitled. Deciding not to use a test that has a disparate impact is not affirmative action. It is New Haven’s inaction, not its action, that is at issue.

  3. AF says:

    I think this post is mistitled. Deciding not to use a test that has a disparate impact is not affirmative action.

  4. I would guess you are really saying that the firefighters SHOULDN’T feel demeaned – but maybe instead they’ll just feel like morons for wasting their time prepping and taking a test that, unfortunately for the city mavens, didn’t give the city the desired cover to impose what they thought firefighting leadership should look like (I guess because the city leaders think raging fires douse more readily in the face of “diversity”)

    Would any of you feel demeaned if – under the guise of “disparate impact” – law school hiring comittees started ignoring the schools’ names on your diplomas or your lofty GPAs or the prestige of the various Reviews you all get published in? I would think it’d be hard to argue that getting the talent level right in law schools somehow trumps getting it right in our fire stations.

  5. PPinLA says:

    I have read the oral arguments and various amicus briefs and do not believe the issues have been parsed out in the discussion. It is not that we should not consider the potential for adverse impact on minority candidates in employment testing; the real question is when we should consider it. HR professionals are, or should be, fully aware of the different personnel selection testing methods and their potential for adverse impact. A first year student should know that a written test of specific knowledge and general abilities coupled with top-down selection will almost certainly result in adverse impact on blacks and hispanics. If diversity was a goal, they should have tested other constructs or used a different testing method. At any rate, they should have completed a validation study to support the use of the test to show it was job-related and consistent with a business necessity. To act surprised at the results after the test was administered is ridiculous. Once an organization chooses to use a test and opens a competitive examination, the candidates participate in good faith. To refuse to refer someone for promotion based on their race is a case of disparate treatment. The language is that race was a determining factor in an employment decision, which is a decision to refer someone for hire, transfer, promotion… Surely intentional discrimination is worse than using a test that is facially neutral but has an adverse impact on some groups. At any rate, malpractice is no excues for intentional discrimination.