Stanford student David Muraskin previews next Wednesday’s argument in Ricci v. DeStefano. Please note that Howe & Russell and the Stanford Supreme Court Litigation Clinic filed a brief in support of respondents in Ricci. That brief, along with all other filings in the case, is available on SCOTUSwiki, here.

On Wednesday, April 22, in Ricci v. DeStefano (07-1428 & 08-328), the Court will consider questions relating to the operation and constitutionality of Title VII of the Civil Rights Act of 1964. They include whether an employer's actions to prevent disparate impact violates Title VII's prohibition on disparate treatment and whether an employer's failure to "certify the result of" an employment test, for fear of disparate impact, violates the Equal Protection Clause. The Court's answers have the potential to fundamentally alter workplace civil rights protections.

In 2003, the New Haven, Connecticut, Fire Department sought to fill captain and lieutenant positions. Because its union contract required promotions to be based upon examinations, the City contracted with Industrial/Organizational Solutions, Inc. ("IOS") to develop exams, which were administered to qualifying applicants.

Pursuant to a City regulation known as the "rule of three," once test results are "certified," the Department must promote from the group of applicants achieving the top three scores. Immediate application of the "rule of three" to these exams would not have allowed for the promotion of any black firefighters. More broadly, black applicants' pass rate on the lieutenant exam was approximately half of the rate for white applicants "“ a disparity more marked than for prior exams. However, if additional vacancies opened, black applicants would have been eligible to be considered for those promotions, based upon these exams' results.

Because of these outcomes, the City's independent exam review board, which must vote to certify test results, held hearings to consider the possibility that the tests were racially biased. The board heard from a representative of an IOS competitor, who testified that the results showed "adverse impact" and that he could design tests with less disparate results and better measuring the jobs' requirements. He also conceded that the City's tests did not show an adverse impact greater than that allowed by law. Another witness, an experienced firefighter, testified that the exams were comparable to those he had taken in the past.

A City official testified that if the board chose to certify the results, then the city could be subject to a disparate impact suit from the minority applicants who did not qualify for promotions. Yet, his testimony may have been contradicted by IOS's "technical validity report." There is some evidence to suggest IOS was prepared to issue such a report, which might have "establish[ed] the City's lawful use of the test results." However, the City argues that IOS never offered to prepare the report nor would the report have "proved" the legality of the test.

Because the exam review board split evenly, 2-2, on whether to certify the exam results (with one member recusing herself based upon a conflict of interest), they were not certified.

A group of white firefighters, one of whom is also Hispanic, who scored some of the highest results on the administered exams, filed suit against the City and its officials, alleging that the City's action violated Title VII and the Equal Protection Clause. On cross-motions for summary judgment, the district court granted the City's motion, agreeing that the City did not need to certify the results because doing so could subject it to litigation for violating Title VII's disparate impact prohibition.

On appeal, the Second Circuit initially affirmed the district court's opinion summarily but subsequently issued a per curiam opinion that praised the district court for a "thorough, thoughtful, and well-reasoned opinion" and concluded that the City could not be held liable for its failure to certify because it "was simply trying to fulfill its obligations under Title VII." Three days later, the Circuit voted 7-6 to deny rehearing en banc, with all six dissenters signing an opinion that questioned the panel's judgment and highlighted the issue for the Supreme Court.

After the Second Circuit issued its initial summary order, the white firefighters filed a petition for certiorari. However, after the panel issued its per curiam opinion, the same firefighters, now represented by former Texas Solicitor General Greg Coleman, filed a second cert. petition, claiming that they feared the first petition had been rendered moot. The Court consolidated the cases and granted cert., largely using the questions presented by the first petition; however, because the second petition better tracks the counsel who wrote the merits briefs and will argue the case, this post focuses on that petition.

The second petition for cert. begins by contending that the Second Circuit's decision creates a split over when to apply strict scrutiny. According to petitioners, strict scrutiny always applies to racial classifications, and the Eleventh Circuit has held that an employer's refusal to create positions because of the applicants' race is a race-based classification. Here, petitioners explain, the City's refusal to provide promotions solely based upon petitioners' race similarly should have been subject to strict scrutiny, and the Second Circuit's failure to do so warrants certiorari.

Petitioners also characterize the Second Circuit's decision as one that creates an exemption to the Equal Protection Clause for compliance with Title VII. Citing a series of cases addressing racial quotas, reversing summary judgments in favor of employers, and holding that "top-scores" on employment exams must be promoted, petitioners contend that four other circuits have held that compliance with Title VII cannot justify "race-based preferences."

Raising the specter of racial quotas, petitioners suggest that the Second Circuit's opinion will allow for racial balancing, which the Court rejected in City of Richmond v. Croson (1989) and Grutter v. Bollinger (2003), and permit governmental entities to engage in racial politics under the guise of complying with Title VII. This, petitioners argue, provides another reason to apply strict scrutiny, as it enables the courts to "smoke out" racial motives.

Petitioners also contend that the Second Circuit opinion misinterprets Title VII itself. Citing the Court's opinion in Furnco Construction Corp. v. Waters (1978), they argue that Title VII only permits employers to remedy proven disparate impact "“ a standard that would require proof that an equally valid and less discriminatory employment test was available. They contend that three other circuits have held that an employer may not refuse to use employment test results based solely on evidence of adverse impact.

Lastly, petitioners argue that § 2000e-2(l) requires employers to honor employment test results. To do otherwise would "“ as they argue the Fifth Circuit has held "“ qualify as "otherwise alter[ing]" the results of an employment test, as prohibited by the provision.

Chris Meade, representing the City and its officials, disputed petitioners' claim of a circuit split over the interpretation of Title VII. According to the respondents, this case is unique: although other circuits have addressed what qualifies as disparate impact, they have never considered whether the failure to certify test scores for fear of a disparate impact suit would violate Title VII. Moreover, the Court's decisions make clear that Title VII intends for employers, like the City, to take voluntary remedial actions to prevent disparate impact.

In addition, by failing to raise it in the district court, respondents claim petitioners have waived the question of whether § 2000e-2(l) prohibits the City's action.

On the equal protection issue, respondents contend that the sole issue before the Court is whether the decision not to certify employment test results was a racial classification "“ an issue over which there is no circuit split. Moreover, compliance with Title VII's demands is a sufficiently compelling governmental interest to justify race-based classifications.

In their brief on the merits, petitioners expand upon the arguments made in their second cert. petition. They argue that all race-based government actions are subject to strict scrutiny. When the City acted to benefit minorities, by dismissing the results of tests that made minority promotions more difficult, it correspondingly denied the white firefighters promotions because they were white "“ a quintessential race-based government action. Indeed, petitioners note, the City acted solely based upon racially-calibrated test results. Thus, even if the City's refusal to certify the results was not racially motivated on its face, it should be found to be merely a pretext to deny whites promotions.

Petitioners next contend that avoiding disparate impact cannot be a compelling governmental interest, as this would allow racial balancing and enable employers to "surrender to organized racial lobbies." Moreover, even if compliance with Title VII were a compelling interest, the City should be required to show "strong evidence" that disparate impact in fact occurred before acting to prevent that disparate impact. Without such a strong evidentiary requirement, compliance with Title VII would become a back door to discrimination. Because the City in this case acted based only upon evidence of disparity in the test results, without proof that better alternative tests existed, it could not satisfy such a standard. And in any event, the City's action was not narrowly tailored because it could have provided tutoring for minority applicants or increased the availability of study aids to help minority performance on future examinations.

Finally, petitioners contend that the City's action violates Title VII. Section 2000e-2(j), they explain, prohibits employers from "granting preferences to prevent racial imbalances." To comply with this provision, the City must prove that its use of race was lawful. Specifically, to avoid Title VII becoming a pretext for discrimination, Title VII should be read as requiring respondents to show a "strong basis in evidence" that disparate impact did in fact occur. Under this standard, summary judgment was inappropriate based upon the facts uncovered during discovery. Finally, for the reasons stated above, and as shown by its legislative history, § 2000e-2(l) prohibits the City's action.

The United States filed an amicus brief that was technically a brief in support of petitioners "“ because it argued for remand "“ but which largely previewed the arguments that would be made by the respondents. The government urges the Court not to reach the § 2000e-2(l) issue because it was not properly considered by the lower courts; if it does consider the argument, however, it should reject it, as the City's decision not to certify is not an "alteration" of the test results.

Also the government argues that Congress intended for employers to voluntarily comply with Title VII's demands. Similarly, Congress could not have provided remedies for disparate treatment and disparate impact if it did not intend, following racially biased test results, for employers to act to prevent that disparate impact. Consequently, under Title VII, an employer can reject such results as long as it has a "good faith" belief that its test produced disparate impact.

According to the government, the City's decision did not, absent evidence of it being a pretext, violate the Equal Protection Clause because it was facially neutral "“ at most a form of disparate impact itself, without evidence of disparate intent. Even if the Court were to find otherwise, compliance with Title VII is a compelling governmental interest when there is a "strong basis in evidence" that the employer, if it had not acted, would have violated Title VII's demands. However, the government concedes, because the petitioners have raised a question of fact as to whether the City's decision not to certify was unreasonable or pretextual, the case should go before a jury.

In their merits brief, respondents repeat many of the Solicitor General's arguments in starker terms and argue in favor of summary judgment. The brief warns that accepting petitioners' arguments would "read disparate impact out of" Title VII. Further, a holding that disparate impact cannot be remedied through dismissing test results would turn evidence of disparate impact into a shield for those who benefit from the disparity.

Respondents next assert that employers can reject test results as long as they have a "good faith" belief that the test caused disparate impact. Anything more, respondents cautions, would strip employers of the flexibility that they need to comply with Title VII. The "strong basis" standard proffered by petitioners derives from affirmative-action cases, which are not analogous to compliance with Title VII. But in any event, the City had precisely the kind of "strong basis in evidence" required by that standard: a prima facie case that the City could be subject to liability. There has been no showing by petitioners that the City's action was unreasonable or pretextual. Moreover, the City's action did not violate Section 2000e-2(l), which merely limits employers' manipulation of test scores.

The City also argues that it did not violate the Equal Protection Clause, because its action did not create a racial classification. All exam participants, regardless of race, were denied the effects of their score. At worst, the non-certification had a differential effect, which only requires strict scrutiny if the City also had discriminatory intent, which it did not. In addition, because there is a "strong basis" to believe the tests did not measure proper qualifications, any disparate effect is meaningless, as none of the applicants should have obtained the ranked position they did.

Finally, respondents contend that compliance with Title VII is a compelling interest if "“ as here "“ there is a "strong basis" to believe the employment test violated the statute. Congress has long endorsed such remedies for disparate impact. Moreover, if the Court were to find that this was not a compelling interest it would undermine other federal law "“ which, the Court has suggested, establishes a compelling interest.

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