Disparate Impact Returns To The Supreme Court

The Supreme Court has agreed to hear Ricci v. DeStefano, the Los Angeles Times reports today. New Haven, Connecticut,

seeking to maintain diversity in its fire department, scrapped a civil-service test after it became clear the white firefighters had the best scores. This would have meant nearly all the promotions would have gone to whites, not blacks.

The white firefighters sued and said they had been victims of “race politics” in the New Haven city government. They urged the justices to rule that the Constitution and federal civil rights law requires employers to use a “race neutral selection process.”

In ruling against the white applicants, lower-court judges said employers had a duty to avoid tests or standards that would leave minorities at a disadvantage.

Ilya Somin discusses this case on Volokh, here, a post that has provoked some interesting comments. Read them all, but, so far, I particularly recommend this one and this one.

UPDATE

Although most of the discussion of Ricci will describe it in black and white terms, it is worth pointing out that one of the 19 New Haven firefighter plaintiffs claiming racial discrimination is Hispanic.

See more on this case by Randy Barnett, pointing to discussions by Ed Whelan here and here describing troubling “Second Circuit Shenanigans,” what a dissent by the respected Clinton appointee Judge José Cabranes suggests was a “judicial effort to bury the firefighters’ claims.”

One of the judges on the three-judge panel whose behavior was severely criticized by Cabranes was Sonia Sotomayor (described by Whelan as “highly controversial—but not highly regarded”), whose name has already appeared on many lists of prospective Obama Supreme Court nominees (such as this one).