Ricci v. DeStefano – Sotomayor and “Reverse Racism”

This is actually not going to be my regular daily post, but a (hopefully) brief report on the controversial Ricci v DeStefano case argued before the current Supreme Court and on which Sotomayor ruled when it was before the Second Circuit, because cadmaris asked for it (hey, I think that’s your first mention). Regular post to come after this.

The Ricci v. DeStefano saga began in 2003 in New Haven, Connecticut when 118 firefighters applied for 15 captain and lieutenant spots. At the time, consideration for promotion to these firefighting positions was based on a multiple-choice exam. Of the 27 black firefighters who applied, none scored high enough to be elligible for the promotion. Only 2 Latinos scored high enough to be considered. The city of New Haven took a look at their method of promoting and decided that it left them vulnerable to a lawsuit under the Civil Rights Act of 1964 which made it illegal for employers to use tests that have an unjustified racially “discriminatory effect.” They decided a multiple choice test was not the best way to determine who would make a good leader in the firefighting squad. So no firefighters were promoted at that time. In response, 18  white and (key point) Hispanic firefighters sued the city of New Haven for racial discrimination.

Who the hell is Donny Osmond?

The federal district court ruled in favor of the city. Frank Ricci and his fellow firefighters appealed and the case reached a three-judge panel on the Second Circuit Court of Appeals. Sonia Sotomayor was one of these judges.

Now let’s clarify how an appeals court is supposed to work. The appeals court isn’t primarily deciding whether or not the plaintiff or the defendant is correct. It’s also trying to determine whether the lower court applied proper judicial reasoning to reach its verdict. After initially affirming the lower court’s decision without opinion, the court later submitted a per curiam (by the court as a whole) opinion in which it called the trial court’s decision “thorough, thoughtful, and well-reasoned.”

See, the reasoning behind employing Title VII is that, left to their own devices, institutions may intentionally or unintentionally discriminate against minorities in its regular practices. In the case of the multiple choice exam, the city (which is about 60 percent black) determined the test was unintentionally discriminatory, given that Asians and Caucasians tend to do better on those tests. That in itself wasn’t enough to pull the test, but the city also decided (and whether they did this purely out of fear for this very type of lawsuit is up for debate) that a test wasn’t necessarily a reflection of whether an individual would do well in a promotion. So, in short, fearing it was unintentionally excluding a lot of potentially valuable minority firefighters, New Haven revised its method of promotion.

The trial court agreed with the city that Title VII of the Civil Rights Act was applicable in this case and that the city had the right to revise its promotion practices in the interest of finding truly qualified minority applicants. Sotomayor and the other two judges in the appeals court said this was proper reasoning. That’s what conservatives are calling reverse-racism. She didn’t “enact a racist policy” from the bench. She was upholding a law that already existed…essentialy the very opposite of a judicial activist.

Okay, not about firefighting, but hey, I'm a college student.

<Devil’s Advocate>Lead plaintiff Frank Ricci has been a firefighter for 11 years. He gave up his second job so that he could have time to study for this test. He also paid his neighbor a large sum of money to help him study through flashcards, tapes, and other study aids because he has dyslexia. He scored 6 out of 77 for the lieutenant test. It really sucks that a man who tried so hard for something that apparently meant a lot to him didn’t get his promotion.

Moreover, employers shouldn’t have to live in constant fear of being sued for discrimination. Sometimes the best qualified candidates are, shockingly, white. The legal system should not reward those who try to get by on race alone. Rather than fittiing standards to benefit a certaing group of people, shouldn’t people who want the job work as hard as Ricci did to get ahead?</Devil’s Advocate>

Ricci’s story certainly is sad. And I agree that we’re dangerously close to a society where allegations of racism can lead to a loss in court. However, this isn’t a case where New Haven took the qualified white candidates and replaced all or most of them with black or other minority candidates. These firefighters unfortunately composed the data the year that New Haven decided it wanted to weigh different considerations for lieutenant and captain. And an employer, whether it be a public institution like the firefighter department or a private company, has the right to promote diversity if they feel it would benefit their mission — in this case, serving the citizens who were composed of certain demographics. Lest we cry foul against whites, promoting diversity doesn’t necessarily mean expressly disadvantaging whites or even promoting racial diversity. (After all, it’s more about being poor and blue collar versus being rich and well educated).

And so, while Frank Ricci may deserve some sort of reward for his efforts, this lawsuit would set a dangerous precedent for employer freedoms in promoting diversity should it succeed. The Supreme Court heard oral arguments on April 22. Assuming Stevens, Souter, Kennedy, Ginsburg, and Breyer predictably vote to uphold the lower courts’ rulings, then the city’s policy will hold. Roberts, Alito, Thomas, and Scalia will probably vote to reverse it.

But the relevant point is this — anyone using this case as an example of how Sonia Sotomayor is a “racist” either does not know the facts or is deliberately distorting them to push a political agenda….that agenda being “block Obama at every turn.” Conservatives don’t even have a real reason to oppose this appointment. Her philosophy will probably be similar to Souter’s, so the game doesn’t change. They’re just posturing to besmirch Obama, Sotomayor, the Supreme Court, and push their opposition to so-called “judicial activism” (which is only activism if liberals are doing it).

Bottom line: Many conservatives through practice or belief hate the Civil Rights Act, one of our laws. That’s what it boils down to. Had Sotomayor been an activist and ruled that the Civil Rights Act should not have played a part, they would have found something else that indicated that she would bring down some sort of invasion of spics and minorities by crazily enacting policy from the bench (apparently, being part of a group that celebrates Hispanic heritage is a red flag).

All right…what else is going on in the world?

Further reading:

Ricci and Sotomayor – Matt Zeitlin

“Basically, what George Will and Roger Cohen and a lot of Sotomayor’s critics are doing is making a policy argument and then piling on Sotomayor for coming to a legal decision that results in their preferred policy not being implemented.

What’s the phrase for thinking that policy considerations should overhwhelm legal ones? Starts with a J, two words, might end with ism?”

Ricci vs. DeStefano – A Test on Race

In a case decided almost 40 years ago, Griggs vs. Duke Power Co., the Supreme Court explained that Title VII “has not commanded that the less qualified be preferred over the better qualified simply because of minority origins.” Instead, the court said, “What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract.”

And an article from the opposite side, just so I can say that I’m “fair” (right).

The high court’s decision in the case will come in June, before Sotomayor’s confirmation hearings. The problem for her will not be why she sided with New Haven over Frank Ricci. The four liberal-moderate justices currently on the court are likely to agree with her, in the name of preserving Title VII as a tool for fair hiring. There’s even an outside chance that Justice Anthony Kennedy will follow along. The problem for Sotomayor, instead, is why she didn’t grapple with the difficult constitutional issues, the ones Cabranes pointed to. Did she really have nothing to add to the district court opinion? In a case of this magnitude and intricacy, why would that be?