Rickety Ricci III

Today the Supremes heard oral argument in Ricci v. DeStefano, a case brought by 17 white and 1 Hispanic New Haven firefighters whose successful promotion exams were tossed out for racial reasons that I discussed earlier here and here. In their excellent summary and preview of the case in the Wall Street Journal this morning, Abigail and Stephan Thernstrom present the core question clearly:

The issue in Ricci was simply stated by Judge José Cabranes, dissenting from a cursory, unenlightening opinion by the Second Circuit Court of Appeals. “At its core,” he wrote, “this case presents a straight-forward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?”

The Thernstroms, by the way, true to their nature as nice people, were overly generous in describing that abysmal Second Circuit opinion as merely “cursory, unenlightening,” just as the New York Times was true to its nature this morning when it exhibited its familiar editorial flatulence by describing the Second Circuit opinion as “well-reasoned.”

The Times, straining (unsuccessfully) for even-handedness, does give a mild slap of the wrist to the City of New Haven:

With all of the research that has been done on employment testing, it should have had a carefully constructed system for evaluating potential supervisors that could withstand a legal challenge.

The problem with this mild slap is that the city did have “a carefully constructed” system. Its test, as the Thernstroms point out, “had been designed by an experienced Illinois company, Industrial/Organizational Solutions, which routinely scrubbed its assessments for any possible racial bias to protect the agencies from potential civil rights complaints.” Moreover, the only flaw the city found in the test before deciding to ignore it is that only whites and Hispanics did well enough on it to be promoted, leading Justice Kennedy, according to the Associated Press account of the oral argument, to ask the city’s attorney:

So shouldn’t there be some standard that there has to be a significant, a strong showing after the test has been taken that it’s deficient? Before it can be set aside?

Along the same lines,

Chief Justice John Roberts wondered whether the city could continue throwing out tests when it doesn’t like the results. “They get do-overs until it comes out right?” Roberts said.

Seeming to side with the city, according to this report of the argument in the Los Angeles Times, was Justice Souter, who said

the city found itself in a “damned-if-you-do, damned-if-you-don’t situation.” If the city had used the test results, black fighters could sue and say they were excluded because of a discriminatory test. When the city scrapped the results, they were sued by the white firefighters. “Why not give the city an opportunity, in a good faith, to start again?”

The damn problem with this “damned-if-you-do, damned-if-you-don’t situation” is that it’s a situation wholly created by the damned courts. If the courts, and especially the Supreme Court, would interpret the civil rights laws, especially the Civil Rights Act of 1964, as intended and written, i.e., to prohibit treating some individuals better and some worse based on their race, Souter’s artificial dilemma would disappear.

In any event, it’s clear that the city, “for political reasons” noted by the trial judge (discussed here), cared more about avoiding a suit by blacks than by whites, something that bothered Chief Justice Roberts, as noted in the Los Angeles Times article linked above:

Roberts objected to the city’s claim that it had to give greater weight to the test’s impact on blacks.

“Isn’t that kind of a blank check to discriminate” against the white firefighters, he asked. “You don’t care about whether Jones or Smith gets a promotion. All you care about is race.”

And let us not forget Justice Breyer. According to the report of the oral argument in the Wall Street Journal,

Justice Stephen Breyer sought to liken New Haven’s action to Justice Kennedy’s “controlling” concurrence in the [Louisville and Seattle] schools case, where he left open the option for local districts to put campuses in areas likely to draw a mixed student body. Although race conscious, such decisions did not disadvantage any specific individuals, so they were permissible, Justice Kennedy wrote at the time.

The fatal problem — or what I hope will prove to be the fatal problem — with Justice Breyer’s effort is that here there were clear, and sympathetic, individual victims of New Haven’s race-based decision. As noted in the Thernstrom’s Wall Street Journal article cited above,

Frank Ricci, the lead plaintiff, had trusted a test of merit. He had been a firefighter for 11 years and was determined to become a lieutenant. All applicants were given three months to prepare for the exam and provided with a detailed reading list. Mr. Ricci is dyslexic, so he paid an acquaintance more than $1,000 to read textbooks onto audiotapes, made flashcards, took practice tests, worked with a study group and participated in mock interviews. He gave up a second job in order to study long hours. His work paid off: He came in sixth among the 77 candidates who took the exam.

Alas, Mr. Ricci failed the only test that counted for New Haven: his skin is the wrong color.

Finally, let me mention two other comments from the oral argument, one that strikes me as almost pathetic and one that is almost humorous. For almost pathos, here is Justice Ruth Bader Ginsburg, who said that

historically, fire departments have been the preserve of white men, something they maintained through discrimination. She likened the city’s decision to junk the test for another exam to changes made by public-safety departments in physical-strength requirements to accommodate women applicants.

In Justice Ginsburg’s world, in other words (for all practical purposes the same words), just as women are at a physical disadvantage in competing with men, blacks are at a mental disadvantage in competing with whites, Asians, and in this case Hispanics. Maybe I’ll withdraw my “almost.” This is truly pathetic. With friends like this, who needs enemies?

And now, to end on an (almost) humorous note, let’s turn to Deputy Solicitor General Edwin Kneedler, supporting New Haven, who, as quoted in the same Wall Street Journal article, apparently said that “the Obama administration would have the same position even if the city had rejected the test results after only minority applicants had qualified for promotion.”

Sure. Right. You bet. With that comment Deputy Solicitor General Edwin Kneedler deserves at least a guest appearance, and perhaps a permanent spot, on Saturday Night Live, or a new assignment as full-time columnist for The Onion.

UPDATE

A transcript of the oral argument can be found here, and it’s worth reading. (HatTip to Stephan Thernstrom)

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