-
Subscribe
Subscribed
Already have a WordPress.com account? Log in now.
In the 5-4 decision, the U.S. Supreme Court released its decision in Ricci v. DeStefano this morning. The case, an appeal from a ruling of the Second Circuit Court of Appeals, deals with Title VII of the Civil Rights Act of 1964 in the context of firefighter testing and promotion procedures. Title VII prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin. The plaintiffs were all firefighters employed by the City of New Haven, Conn., who applied for promotion and took the necessary exams in 2003. The exams were prepared by an Illinois company that specialized in entry-level and promotional examinations for police and fire departments. The company’s vice-president subsequently testified that all of the questions were drawn from or based in the syllabus, and that the exam was facially neutral. However, when the results came in, all but one of the top candidates was white (the exception was Hispanic). New Haven’s Civil Service Board, charged with certifying the results, held hearings in which the “very significant disparate impact” was raised by the City’s corporation counsel, who “strongly advocated against certifying the exam results” (because “a statistical demonstration of disparate impact,” standing alone, “constitutes a sufficiently serious claim of racial discrimination to serve as a predicate for employer-initiated, voluntar[y] remedies – even . . . race-conscious remedies”). The Board ultimately decided not to certify the results, relying on federal, state and local anti-discrimination laws. It argued that it had a good-faith belief that Title VII mandated non-certification, and that the City could have faced Title VII liability for adopting a practice having a disparate impact on minority firefighters.
When Ricci and some of the other applicants sued, alleging violations of Title VII and their equal protection rights, the district court upheld the City’s decision and granted it summary judgment, finding that the defendants’ “motivation to avoid making promotions based on a test with a racially disparate impact, even in a political context, [did] not, as a matter of law, constitute discriminatory intent;” and that there was no Equal Protection violation in the decision not to use the promotional exams. “None of the defendants’ expressed motives could suggest to a reasonable juror that defendants acted ‘because of’ animus against non-minority firefighters who took” the exams. The Second Circuit – a panel that included now Supreme Court nominee Sonia Sotomayor – affirmed in a very brief, two-page decision. After the Supreme Court agreed to hear the case, IMLA filed an amicus brief in support of the City.
In today’s ruling, the Supreme Court reversed and remanded, focusing only on the Title VII issue and finding it unnecessary to deal with the Equal Protection arguments. Justice Kennedy delivered the opinion of the Court, ruling that the City’s action in discarding the tests violated Title VII: a “race-based action like the City’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The [City], we further determine, cannot meet that threshold standard.” Fear of litigation alone could not justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.
Certain government actions to remedy past racial discrimination – actions that were themselves based on race – were constitutional only where there was a “strong basis in evidence” that the remedial actions were necessary. Applying the strong-basis-in-evidence standard to Title VII, before an employer could engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional, disparate impact, the employer had to have a strong basis in evidence to believe it would be subject to disparate-impact liability if it failed to take the race-conscious, discriminatory action. Here, the Board’s hearings produced no strong evidence of a disparate-impact violation. The majority of the Court concluded that all of the evidence demonstrated that the City rejected the test results only because the higher-scoring candidates were white. Without some other justification, the Court held that this express, race-based decision-making was prohibited.
A threshold showing of a significant statistical disparity and nothing more was far from the required strong basis in evidence that the City would have been liable under Title VII had it certified the test results. That was because the City could be liable for disparate-impact discrimination only if the exams at issue were not job-related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. Based on the record the parties developed through discovery, there was no substantial basis in evidence that the test was deficient in either respect.
Accordingly, the City’s race-based rejection of the test results could not satisfy the “strong basis in evidence” standard. “On this basis, we conclude that petitioners have met their obligation to demonstrate that there is ‘no genuine issue as to any material fact’ and that they are ‘entitled to judgment as a matter of law.’”
The majority concluded that “[o]ur holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.”
The decision is available online at http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf
Posted By: H. Lawrence Hoyt, Boulder County Attorney
[*with apologies to Mr. Steinbeck, and to the distaff majority of the human race, who are subsumed within the references “man, men, mankind” far too readily.]
Race has always been a lightning rod in American culture, even before the forced transport of African men and women into slavery. The literature is replete with references in the early 1600’s regarding the “savages” that occupied North America before Europeans took that land away.
In light of the events of last year, culminating in the election of the first American president of African descent, it is worthwhile to examine whether we have “arrived” at that long-awaited, “post-racial” America. There are certainly those who assert that this is the case, at least as an adjunct to a long-held political position, such as the lack of continuing need for the Voting Rights Act’s Section 5 pre-clearance process.
The same argument will be present in future consideration by state voters on initiatives to stop affirmative action in their states. See, e.g., Richard Sammon’s column at Kiplinger.com “Affirmative Action – A Minefield in the Making?”
These initiatives got their start, as is so often the case, in the Golden State of California, where a multi-millionaire, Wade Connerly, pushed for the adoption of Proposition 209 in 1996, as a reaction to the success of programs to ensure the inclusion of women- and minority-owned construction firms in government-contracted projects.
As for President Obama, Mr. Connerly has already opined that he is no “post-racial” American icon. See Connerly, “Obama Is No ‘Post-Racial’ Candidate”, guest editorial in the Wall St. Journal, June 13, 2008. He has failed Mr. Connerly’s litmus test, in that he supports continued enforcement of the 1964 Civil Rights Act, including, where necessary, affirmative action programs designed to create opportunity for diverse populations historically on the receiving end of discrimination and exclusion.
[Aside: As a modern European-American, I would consider the irony that Mr. Connerly is pushing this doctrine though he is an African-American. However, having read many of the opinions of Justice Clarence Thomas with dismay over his 17 years on the US Supreme Court, the sense of irony has been substantially dampened.]
As noted in his Wall St. Journal guest column, Mr. Connerly (a former Regent of the University of California) is the author of initiatives that in 2008 he sought to place on the ballot in 5 states, Missouri, Oklahoma, Arizona, Colorado, and Nebraska.[1] He succeeded in getting the initiative on the ballot in the latter 2 states.
As noted above, he was the force behind Prop. 209 in California[2], as well as the successful State of Washington initiative (1998), and the “Michigan Civil Rights Initiative” (okay, I admit my sense of irony is still alive and well; calling this a “civil rights initiative” is deceptively charming) in 2006[3]. Opponents of the putative Michigan ballot issue sought to prevent it from being place on the ballot there; the district court judge, while ruling that the ballot issue could be put on the ballot, also found:
The Court finds that the MCRI engaged in systematic voter fraud by telling voters that they were signing a petition supporting affirmative action. However, the MCRI appears to have targeted all Michigan voters for deception without regard to race. Because the Voting Rights Act is not a general anti-voter fraud statute, but rather prohibits practices which result in unequal access to the political process because of race, the Court must conclude that the defendants’ conduct, though unprincipled, did not violate the Act.
Operation King’s Dream v. Connerly , (unreported) 2006 WL 2514115 (E.D.Mich.,2006), appeal dismissed, Operation King’s Dream v. Connerly 501 F.3d 584, 586 (C.A.6 (Mich.),2007)(“notwithstanding the disturbing allegations underlying the Plaintiffs’ complaint, which the district court substantiated, because the opportunity to keep Proposal 2 off the ballot has long since passed, the Plaintiffs’ appeal is dismissed as moot.”)
Apparently taking to heart the rulings in Michigan, Connerly’s latest round of state initiatives have been further refined to obfuscate their true meaning and impact. The initiative filed in Colorado in early 2007 was entitled “Prohibition on Discrimination and Preferential Treatment by Colorado Government” and the ballot issue language that appeared on the statewide ballot in Colorado in November, 2008 as Amendment 46, read as follows:
Shall there be an amendment to the Colorado constitution concerning a prohibition against discrimination by the state, and, in connection therewith, prohibiting the state from discriminating against or granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting; allowing exceptions to the prohibition when bona fide qualifications based on sex are reasonably necessary or when action is necessary to establish or maintain eligibility for federal funds; preserving the validity of court orders or consent decrees in effect at the time the measure becomes effective; defining “state” to include the state of Colorado, agencies or departments of the state, public institutions of higher education, political subdivisions, or governmental instrumentalities of or within the state; and making portions of the measure found invalid severable from the remainder of the measure?
This language was set by the state Title Board, and was affirmed by the state Supreme Court by order September 10, 2007[4].
The proposed constitutional amendment was described to voters statewide in Colorado, as is required, in the publication created by the state’s Legislative Council (staff to the state legislature) known as the “Blue Book”. The description for Amendment 46 was entitled:
Discrimination and Preferential Treatment by Governments
Amendment 46 proposes amending the Colorado Constitution to:
● prohibit Colorado governments from discriminating against or granting preferential treatment to
any individual or group on the basis of race, sex, color, ethnicity, or national origin in public
employment, public education, or public contracting;
● make exceptions for federal programs, existing court orders or other legally binding agreements, and bona
fide qualifications based on sex; and
● provide the same remedies that are available for violations of existing Colorado anti-discrimination law.
Amazingly, despite the reaction one would expect from such a description (“well, duh, of course we don’t want our state or local governments to be discriminating”), Colorado voters turned down Amendment 46, although by a fairly narrow margin (49.2% for, 50.8% against.) However, in Nebraska, a very similarly worded initiative was approved by 58% of state voters.
Next time: we consider the actual legal effect of these initiatives when adopted amending state constitutions: is there any real impact, or has federal law limited the use of affirmative action so significantly that these initiatives are simply a political statement akin to the “English-only” initiatives?
[1] Spillar, Ward Connerly Using Deceptive ‘Civil Rights’ Initiatives to Ban Affirmative Action, MS. Magazine, Winter 2007 http://www.ask.com/bar?q=wade+connerly&page=1&qsrc=0&ab=1&u=http%3A%2F%2Fwww.alternet.org%2Frights%2F77936%2Fward_connerly_using_deceptive_%27civil_rights%27_initiatives_to_ban_affirmative_action%2F
[2] For the full text of the amendment to the California state constitution, see: http://vote96.sos.ca.gov/Vote96/html/BP/209text.htm
[3] The actual ballot language used in Michigan in 2006 was: A PROPOSAL TO AMEND THE STATE CONSTITUTION TO BAN AFFIRMATIVE ACTION PROGRAMS THAT GIVE PREFERENTIAL TREATMENT TO GROUPS OR INDIVIDUALS BASED ON THEIR RACE, GENDER, COLOR, ETHNICITY OR NATIONAL ORIGIN FOR PUBLIC EMPLOYMENT, EDUCATION OR CONTRACTING PURPOSES. See http://www.michigancivilrights.org/media/Actual%20Ballot%20Language.pdf
[4] The standards by which ballot titles are adjudged, as stated on the Colorado Supreme Court website, are whether the initiative concerns a single subject, and if so, is the title fair and not a misleading statement of the meaning of the actual proposed constitutional or statutory amendment text.
International Municipal Lawyers Association - Local Government Blog 