Stanford student David Muraskin discusses Wednesday’s argument in Ricci. More of David’s analysis is available on SCOTUSwiki, here.

On April 22, the Court heard an extended — over seventy minutes long "“ argument in Ricci v. Destefano. It clearly struggled with the distinctions and analogies presented by the counsel and the Justices themselves, as the argument was marked by the Justices talking over one another and asking counsel to repeat and clarify their responses.

Greg Coleman, representing the petitioners, spent much of his argument attempting to refine his responses to a series of hypotheticals that appeared to be aimed at influencing Justice Kennedy. The first was posed by Justice Kennedy himself, who asked whether the City of New Haven would be permitted to select an employment qualification test solely based upon the test's record of disparate impact. Mr. Coleman initially responded that if the City were changing the test it currently used, to reduce its disparate impact, the City would need to show that the new test was equally valid and produced less of a disparity. However, when pressed by Justice Kennedy on whether the City's action in his hypothetical would raise Fourteenth Amendment concerns, Mr. Coleman responded that to select a new employment test to replace its existing test, the City would need to show a "strong basis in evidence" that it would be subject to liability for using its existing test.

Justice Souter, picking up on Justice Kennedy's hypothetical, asked whether a comparison of the disparate impacts of available tests could establish a strong basis in evidence that using one of the more disparate exams would expose the City to liability and thus it should use another. Mr. Coleman responded that to select a new test, the City would need to show that the new test would be equally valid. Yet, when asked to clarify this response by Justices Scalia and Kennedy, Mr. Coleman elaborated that if the City had not yet implemented any test, it could choose a test solely on the basis of its record of disparate impact.

Based upon this latter answer, Justice Breyer explained that he could not distinguish the City's action in this case from what Mr. Coleman suggested would be acceptable. Mr. Coleman attempted to differentiate the two situations based upon the fact that, here, the City had already administered the exam when it determined that the results were unacceptable. Mr. Coleman then attempted to bring the argument back to Justice Kennedy's original hypothetical, emphasizing that the hypothetical could be distinguished from this case because here City chose to "scuttle" the test based on the race of people who passed, rather than on a neutral comparison of tests' disparate impacts.

Justice Breyer then asked Mr. Coleman to distinguish this case from Justice Kennedy's hypothetical in Parents Involved (2007), in which he suggested that a school could redraw its district lines to achieve a more diverse student body. Mr. Coleman responded that, unlike New Haven's conduct, such redistricting would take account of other considerations in addition to race.

Edwin Kneedler, representing the Government as an amicus in favor of vacatur and remand, had the least eventful argument of the day. Justice Scalia pressed Mr. Kneedler to explain how the Court could allow the disparate treatment that occurred in this case as a means to remedy disparate impact. Mr. Kneedler stated that the City would need to show that its fear of disparate impact was reasonable before it could dismiss the test results; thus, the Government was arguing that the case should be remanded to explore that issue. However, if there was a reasonable concern of disparate impact, the City's actions should not be viewed as illegal disparate treatment.
Mr. Kneedler also argued that diversity should be considered a compelling interest; one that cannot be advanced through quotas, but can be advanced by creating new policies to remedy disparate impact as long as those policies affect all races equally.

Christopher Meade, representing the respondents, was immediately pressed by Justice Alito to answer whether a statistical disparity could be sufficient evidence to justify dismissing the results of an administered employment test. Mr. Meade responded that it was possible, but such a disparity would need to be severe. Here, by contrast, the City also had doubts about the validity of the test, leading it to dismiss the results.

The Chief Justice pressed Mr. Meade to explain why the City's action was not a racial classification. Mr. Meade argued that because the City did not treat any individual differently based upon his or her race, but rather reacted to the racial make-up of the test results as a whole, its conduct was facially neutral. The Chief retorted that Mr. Meade's response would enable an employer to throw out test results until it obtained the racial outcome it desired. Mr. Meade stated that in such instances, the repeated re-testing could be used as evidence that the employer's claimed interest in complying with Title VII was merely a pretext, and would undermine the employer's argument that there were "equally valid less discriminatory alternatives."

Justice Kennedy then asked whether Title VII prohibits the dismissal of an employment test's results, after the test had been administered. Mr. Meade said that § 2000-e(l) only prohibits the alteration of individual exam results, not the refusal to certify all results, and that to rule otherwise would unnecessarily tie the hands of employers who could face disparate impact liability based upon the exam's overall outcomes. Moreover, Mr. Meade later emphasized, the City did not act based upon the racial make-up of the results alone, but also upon its concerns about the validity of the test. Under Title VII, all an employer should be required to show is that there was some basis to believe that further investigation would reveal a Title VII violation. If that is the case, the employer should not be required to certify the test results.

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