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.