Ricci: The Equal Protection Implications
The question presented for decision in Ricci had two elements, a Title VII aspect and an Equal Protection one:
“When a content-valid civil-service examination and race-neutral selection process yield unintended racially disproportionate results, do a municipality and its officials racially discriminate in violation of the Equal Protection Clause or Title VII when they reject the results and the successful candidates to achieve racial proportionality in candidates selected?”
By deciding the Title VII question, that the City had engaged in disparate treatment discrimination that violated Title VII, the Court said it had avoided deciding the equal protection question: “In light of our ruling under the statutes, we need not reach the question whether respondents’ actions may have violated the Equal Protection Clause.”
The Court went further to emphasize that it was leaving the constitutional claim for another day and that its decision in Ricci on Title VII grounds was not in fact deciding any equal protection claim:
“Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. As we explain below, because respondents have not met their burden under Title VII, we need not decide whether a legitimate fear of disparate impact is ever sufficient to justify discriminatory treatment under the Constitution.”
Based on what the Court said about the constitution in Ricci, this would be the end of the post. But equal protection doctrine is a powerful background issue in Ricci. See, Richard Primus, in The Future of Disparate Impact, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1495870, for a further development of this argument.
Perhaps the powerful impact of constitutional law is that in his opinion for the Court Justice Kennedy draws on equal protection authority that he imports into Title VII to establish the “strong basis in evidence” standard to resolve the conflict that the Court’s decision created between disparate treatment and disparate impact claims of discrimination. The source for this standard was the earlier Supreme Court equal protection decisions, such as Croson and Wygant, involving challenges to affirmative action that involved racial classifications.
Beyond that clear reliance on equal protection doctrine to resolve a Title VII issue, it is possible to tease out Justice Kennedy’s position on the constitutionality of the disparate impact provisions of the Act by looking at the approach he took to the use of race to assign individual students to schools in Parents Involved, where his concurring opinion is the Court’s holding. There he differentiated the use of race consciousness in setting of a school board planning how to set up a system of school assignment that would operate to prevent the resegregation of the schools from the subsequent assignment of students by their race to the schools:
“In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race.”
Similarly in Ricci, now writing for the Court, Justice Kennedy indicates that, before any individuals have established reliance interests or expectations, an employer can act with race consciousness so that its employment practices provide equal employment opportunity for workers. This use of race does not violate Title VII without having to satisfy the “strong basis in evidence” created in Ricci that kicks in once those expectations have been created.
“Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race. And Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race.”
That changes once the employment practice has been used in a way that created reliance interests in some employees: “[O]nce that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race.” Presumably, once those expectations have been created a law requiring that someone act with race consciousness to avoid disparate impact could only be justified as constitutional by proof of a compelling governmental interest. Perhaps in some limited settings the sort of educational diversity relied on in Grutter might work, but a generalized goal of addressing societal discrimination would not.
Claiming that the constitutional issue will eventually have to be decided, Justice Scalia’s concurring opinion stakes out a position at odds with what appears to be the likely position of Justice Kennedy: “[T]he resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one.”
The basis for Justice Scalia’s position articulated in Ricci is that disparate impact law requires employers to act knowing the racial consequences of that action: “[I]t is clear that Title VII not only permits but affirmatively requires such actions [of taking account of race] when a disparate-impact violation would otherwise result. . . . Title VII’s disparate impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes.” For Justice Scalia that renders the disparate impact provisions of Title VII unconstitutional on their face because the law is equivalent to imposing racial quotas:
“[D]isparate-impact laws do not mandate imposition of quotas, but it is not clear why that should provide a safe harbor. Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end? Surely he would. Intentional discrimination is still occurring, just one step up the chain. Government compulsion of such design would therefore seemingly violate equal protection principles.”
The question is what that equal protection jurisprudence amounts to in a sharply divided Court with Justice Kennedy as the swing vote in so many important cases. Given the longstanding dispute over the significance of first Justice Harlan’s famed statement in his dissent in Plessy v. Ferguson that, “Our Constitution is color-blind,” it could be argued that Ricci either adopts, or moves the Court closer to adopting, such a broad standard. Ricci could be seen as further building on the line taken by Chief Justice Roberts in the plurality part of his opinion in Parents Involved, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” But the Chief Justice’s opinion also emphasized the traditional strict scrutiny/compelling governmental interest approach to the constitutionality of racial classifications rather than declaring them to be absolutely prohibited. Going back one generation of reverse discrimination equal protection cases, even Justice Scalia in his dissent in Grutter (though not Justice Thomas in his) acknowledges the vitality of the strict scrutiny approach.
As was the situation in Parents Involved, Justice Kennedy may well be at odds with Justice Scalia and the other rightist members of the Court. He would not likely vote to find Title VII’s disparate impact provisions unconstitutional on their face, but might find them unconstitutional as applied in certain circumstances. With his language about “intentional discrimination. . . one step up the chain,” Justice Scalia’s appears to be challenging the distinction that Justice Kennedy has drawn between acting before versus after reliance interests have been created. That situation would appear to be one step up the chain where Justice Kennedy would find no constitutional problem with the use of race but Justice Scalia would. Justice Scalia, however, appears at most to be speaking for four members of the Court. Given that Justice Kennedy has written for the Court in Ricci and has established the holding in his concurrence in Parents Involved, it appears that there is a risk that the disparate impact provisions of Title VII will be held unconstitutional depends as applied to cases involving established expectations. Alternatively, the use of race by an employer in the planning phase of its use of an employer practice to avoid an adverse racial impact would not be the basis for finding that application of Title VII’s disparate impact provisions was unconstitutional.
In Briscoe v. New Haven, a disparate impact case challenging the City of New Haven’s use of its weighting formula between the written and oral test scores, would arguably escape both Ricci’s Title VII disparate treatment problem as well as an as-applied claim that Tile VII’s disparate impact provisions violated equal protection. This is because the focus is on the time frame when the City was setting up its promotion procedures, well before any individuals had taken the test: Briscoe will claim that no reliance interests had been created at that time and so it was not only constitutionally permissible but statutorily required that the City take steps to avoid disparate impact to African-American and Hispanic testtakers.
In sum, the Ricci Court took one step closer to a statutory and constitutional “color-blind” standard. On one hand, it did not appear to change the equal protection standard applicable to express racial classifications that was established in Adarand Constructors: “[A]ll racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.” On the other hand, it likely expanded the scope of application of strict scrutiny to some, but not all situations, where a governmental actor (or a private actor acting under compulsion of law) takes action, knowing the racial consequences of that action. Strict scrutiny does not apply if that action is taken before expectations have been established or reliance interests created in individuals. But strict scrutiny does apply once those expectations have been established.
Ricci is a cornucopia. It created a new collision between the Title VII obligations of employers to neither intentionally discriminate nor use unjustified practices that caused an adverse impact upon groups protected by the Act. It resolved that collision by importing an equal protection test – the strong basis of evidence — into Title VII. By so readily finding the employer liable for intentional disparate treatment discrimination while incorporating equal protection doctrine into Title VII, it seems to have expanded both Title VII’s disparate treatment and equal protection law to apply the strict scrutiny standard that has been in place since the Korematsu case beyond racial classifications to race conscious decisionmaking. Finally, because it stops short of imposing strict scrutiny to all situations of race conscisous decisionmaking, it reinforces the position of Justice Kennedy as the most significant justice on the Court because he has located himself in the middle of the ideological spectrum of the justices.