Nathan, is the effect of this case that the Supreme Court has ordered New Haven to give Ricci et al their promotions, as based on the test, or is the effect that the Supreme Court is simply saying that Ricci et al have the right to sue and to have their complaint decided by a jury?

If it's the former then I think you're right and this is judicial activism and micromanagement at its finest and that the conservative "local government" types should be up in arms about this, viewing it the same way they view local school boards and anti-porn zoning.

But if it's just that Ricci et al get to have a day in court, who cares? I kind of believe that as a liberal, if your employer tells you "do this and you get a promotion" and you do it and then the employer changes the rules that you should be able to sue them and not have your claim tossed on a summary judgment.

Reading Justice Ginsburg's dissent confirms the fact that the city made the mistake of giving undue weight to the multiple choice exam, 60% of final grade. Her opinion says a neighboring city gives more weight to the scenario related command decision oral portion and has less racial bias in the results. Ginsburg notes a veteran fire chief who commented "I think a person's leader-
ship skills, their command presence, their interpersonal skills, their management skills, their tactical skills could have been identified and evaluated in a much more appropriate way.". (then with a multiple choice test)

Like a lazy professor who wants to alter the final grade impact of a big school exam because 'the fraternity students had a copy of it from last year' (and the teacher's favorites, who complain, and who weren't in the frat didn't) the city cannot get by with changing things after the fact.

Like the lazy professor above who doesn't make a new exam each year, the city was lazy in contracting out the written exam, and negligent in designing the oral/written test process.

It is a mess but the candidates who scored well deserve to get some boost from the process towards promotion, the court is right that the test cannot be completely thrown out.

Hi Nathan,

Thanks for expanding this entry. To be clear, I don't agree with the Ricci plaintiffs, at least, I don't think I do. But I am worried that whereever you think judicial review belongs (or doesn't) in the scheme of things that the Ricci plaintiffs feel like the local government screwed them out of promised raises and promotions by changing the rules midstream. You're a union guy, Nathan. What do you usually say when a worker is given one set of metrics to get a promotion, fulfills them, and then has the promotion yanked away?

It seems to me that the problem here is that these guys never got to put their case in front of a jury. Is the Supreme Court saying anything other than that the lower courts were wrong ti dismiss these cases before full trial? Shouldn't the Supreme Court always err on the side of giving people who feel disenfranchised a hearing?

Regretfully, I tend to side with the majority in this SCOTUS decision. The "disparate impact" element of Title VII has a noble purpose - to rectify discrimination that is subtle or even unintentional by disqualifying hiring, promotion, or similar decisions that yield results severely at odds with the expected distribution of success ratess between majority and minority candidates. That statute should stand, because the nation's history is replete with examples of such discrimination.

However, the Ricci plaintiffs had a legitimate right to present evidence indicating that in this case, the test outcome, although "disparate", did not clearly reflect a disparity due to discrimination, but rather could plausibly be attributed to genuine job-related differences between the two groups.

In my view, the disparate impact clause will still give pause to would-be discriminators, as it should, but today's ruling will also provide a legitimate avenue for redress when a disparate impact is not discriminatory in origin.

I'm of two minds about this decision. On the one hand, the OP is correct that this is an example of judicial meddling in the affairs of a locality. However, there are two mitigating factors here: First, Title VII is (as broadly interpreted in its early years) a blanket license for judicial meddling anyway. If judges can order studnts bused across town to mix up the races a bit, one hardly imagines that scrutinizing hiring practices is a problem. Second, the New Haven decision to throw out the test was made solely as an exercise of racial bias. In this case, it was racial bias in the service of fear of lawsuits, not fear of minorities, but that's just the effects of Title VII. The effect on the disadvantaged group (in this case, the white firefighters) is the same.

I mean, sure, ideally courts wouldn't intervene in these issues, but Title VII doesn't really provide them with that option. Courts have a choice between not enforcing the law and meddling, because bias isn't easy to find or prosecute.

That's why we have "disparate impact" doctrines in the first place. New Haven's action was so silly (giving a test and then rejecting the results on a pure racial basis) that it basically required redress; the Federal Court could have made a case by allowing a trial, but it didn't. With a summary judgment stadard of review, the Supreme Court was obligated to view the facts in the manner most favorable to the party opposing summary judgment.

The decision is correct (and Justice Ginsburg's dissent nonsense in a summary judgment review context), but it's a reflection of a really, really tortured area of precedent.

The issue raised in this decision was and is very difficult, and that is why the courts divided 8-5 in favor of the city; however, the five votes were a majority when it counted most.

To reverse the requirement the Court placed upon the city, how does one prove though a "strong basis in evidence" that a written test is not discriminatory when it produces a racially disparate result? If the city had certified the test results and the black firefighters had sued, would that not have been the city's burden; just as here the Court said that was the city's burden to prove the test was discriminatory?

A great deal of the problem is what does a written test really test. As writen tests generally and consitently get racially disparate results, they must test something that is inherently different as between whites, blacks and Hispanics in terms of test taking.

I think it reflects generations of poorer education and cultural disparity in such areas as reading comprehension, vocabulary, etc. Compare the education provided in any inner-city school to that provided in a predominately white suburb and then continue that pattern for decades and what you get are disadvantages in the very skills that make for good test taking carried over from generation to generation. Consider that blacks did not benefit from the GI Bill following World War II -- a law that essntially created a large educated white upper-middle class -- and compare the college attendance and graduation rates of whites versus blacks since then, and what you get are disadvantages in the very skills and cultural attitudes that make for good test takers carried over generation to generation.

The really hard question, not addressed by the Court, is how do you filter out that heavily embedded generational disadvantage when you rely on written tests for promotions, admissions to college, etc?

Instead of taking on that hard question (which the City of New Haven attempted in good faith to do) the Court just said too bad folks, white has its privileges.

Instead of taking on that hard question (which the City of New Haven attempted in good faith to do) the Court just said too bad folks, white has its privileges.

That assertion, jthdane, strikes me as unduly dismissive of a genuine desire of the Court to arrive at a reasonable conclusion.

No-one doubts that African Americans have been deprived of educational opportunities available to whites, or that the deprivation has disadvantaged them in some areas relevant to written tests. No-one doubts that we as a society are obligated to correct that imbalance, but what to do in the meantime is not a question that can be answered simply.

Poor test taking skills to some extent reflect underdeveloped skills in the principles of abstraction, generalization, logical deduction, and memorization of basic concepts - i.e., they can't simply be dismissed as an a deficiency in the art of filling in multiple choice blanks. When we rectify the educational disadvantages experienced by minorities, we can expect that their skills in all of these areas will improve.

The Supreme Court was not asked to solve this problem, but to determine whether the written test in question was either deliberately biased or unfair in being unrelated to job performance (remembering that it was only part of the overall evaluation that led to the disputed outcome). The Court concluded that the test could not be so characterized.

Assume then, that they were right, and that the applicants for promotion who didn't make it were therefore less qualified than those who did to make life or death decisions for you and the men under their command when your house is on fire, as suggested by mm232's comments above.

Would you not agree that when a house is burning is not the time to correct educational inequities?

I believe most people will instinctively see it that way, even while they agree that the inequities demand to be corrected.

Nathan's challenge is thus:

"...the comments below the fold ... don't address the core issue of why this unelected nine-member body's majority should be the deciding majority rather than deferring to the local government that balanced many of these issues in making its decision that the multiple-choice test was racially flawed."

It's simple, Nathan. The national legislature decided in 1964 to remove the right of the local government to decide such matters when racism might be part of the picture. Since the job of that unelected, 9-member body is to apply the law, and Title VII of the Civil Rights Act is standing federal law, it has become their job to decide how best to apply that law to that particular locality.

This understanding is the polar opposite of "judicial activism," by the bye. Nathan should adjust his hysterical nomenclature.

It happens that I agree with him in principle, although I don't think he'll want that to be the case when he hears what I mean. As I read the US Constitution, the US Congress really has no business passing laws that affect the hiring practices of New Haven's fire department, even as a means to end discrimination. The entire legal structure of Title VII, and of the Civil Rights Act in general, is a massive assault on limited federalism. If we're going to get the Supremes out of the local government's hair, the right way to do it is to repeal the Civil Rights Act, and allow each state to pass its own anti-discrimination legislation -- or not pass such legislation, if they so choose, because the risk of some locality doing other than the social engineer's desire is the price of genuine liberty.

Given the fact of federal law that dictates local policy, however, the Supreme Court is simply doing its job here.