Wednesday, June 10, 2009

WWKD: Ricci v. DeStefano Will Likely Turn on Justice Kennedy

Although the term "judicial moderate" suggests a judge who lacks a political agenda, moderates possess a tremendous amount of power when the Supreme Court contains equal numbers of liberals and conservatives. After the departure of Justice O'Connor, Kennedy now wields power as the Court's moderate. Kennedy's vote in Ricci v. DeStefano will probably dictate the outcome of that case.

In Ricci, a group of white firefighters challenged a decision by New Haven, Connecticut, to scrap a departmental test used to allocate promotions. If the city had maintained the test, only one nonwhite individual would have qualified for a promotion. The disparity was smaller in prior years. A 3-judge panel of the Second Circuit Court of Appeals sided with New Haven. The full Second Circuit voted 7-6 to deny a rehearing in the case. The Ricci decision has generated more than the usual controversy that accompanies race cases because Supreme Court nominee Sonia Sotomayor sat on the 3-judge panel that approved the city's decision to discard the test.

Ricci, however, is far more complicated than its critics acknowledge. And while Justice Kennedy's vote will likely determine the ultimate outcome of the case, Kennedy's prior stances in race cases could lead him to vote for or against the City of New Haven. Contrary to the politicized discourse surrounding Ricci, the law in this area (and many others) is broad enough to support more than one "correct" conclusion.

Title VII and Disparate Impact
The plaintiffs contend that New Haven violated Title VII (a federal employment discrimination statute) when it scrapped the test results. Title VII bans discrimination by certain employers (including states and municipalities) on the basis of race, sex, religion, and national origin. Congress passed the statute as part of the Civil Rights Act of 1964. Title VII prohibits employment practices that discriminate by purpose or effect.

If the employer uses explicit race-based policies, the case is easy. The more contested area of law, however, involves "neutral" policies that disparately affect members of a particular group. These neutral policies could include aptitude tests or physical endurance requirements for certain jobs. Title VII provides that if a plaintiff can prove that a neutral policy discriminates against a particular class, then the defendant must show that the job requirement serves a "valid" employment goal. Even if the job requirement serves a valid employment goal, the plaintiff can still argue that this goal is attainable with less discriminatory measures or that the employment goal is pretext for discrimination.

Disparate Impact and Ricci
The City of New Haven does not deny that its decision to discard the test was a "race conscious" measure. The city, however, argues that it invalidated the test in order to avoid liability under the impact standard utilized in Title VII cases. An expert witness testified that other tests could have identified qualified individuals with less discriminatory results. The trial judge credited this testimony.

Second Circuit precedent supports the rejection of the plaintiffs' claim. Specifically, in Hayden v. County of Nassau, the Second Circuit held that the defendant's decision to pick from among 25 different tests the test that had the smallest disparate impact on black workers did not violate the statutory or constitutional rights of white and Latino plaintiffs. As the court explained, employers do not violate Title VII when they use policies that seek to avoid the very patterns that courts have deemed illegal under the statute.

Beginning in the 1960s, opponents of Title VII argued that it would cause employers to use quotas. When Congress amended the law in the 1990s to reinstate the impact test (which the Supreme Court had eviscerated) critics described the proposed law as a "quota bill," and President Bush vetoed an initial version of the law (which looks remarkably similar to the enacted version). Now, however, some conservatives have argued that the City of New Haven had no legitimate interest in avoiding liability under Title VII. If the law is indeed a quota statute, then the city presumably has a good argument on the liability issue.

Kennedy, Race and Affirmative Action
The plaintiffs also argue that the City of New Haven violated the Equal Protection Clause of the Fourteenth Amendment. Hayden rejected an Equal Protection claim; accordingly, the Second Circuit ruling seems sound as compared to law within the circuit.

Justice Kennedy has largely opposed the use of race for social policy. Nevertheless, Kennedy has argued that defendants do not violate the constitution by embracing "neutral" policies even if they are "conscious" of race when they do so. In other words, if a governmental defendant wants to minimize the anticipated racial impact of a particular policy, it could, cognizant of this goal, design new policies that seek to lessen the racial effects of its neutral policies. The fact that the defendant considered race, however, would not render the policy decision unconstitutional. This logic separated Kennedy from the conservatives in Parents Involved v. Seattle School District No. 1.

In Parents Involved, a closely divided (5-4) Court invalidated policies used by Seattle, Washington and Jefferson County, Kentucky designed to preserve racial balance in public schools. The 4 conservatives argued that maintaining racial balance was not a "compelling" interest. Kennedy strongly disagreed and wrote a separate opinion to state his objection. Kennedy, however, agreed with the conservatives and argued that the schools' policies where not "narrowly tailored" because race was an explicit part of the diversity plans. Kennedy preferred a "race conscious," but "race neutral" approach. He argued that the school districts could redesign zones and build new schools with racial diversity in mind:
These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible. . . .Executive and legislative branches . . . should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decision maker considers the impact a given approach might have on students of different races. Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly.
The analysis for Kennedy will center on whether the decision to discard the test after the results were publicized amounts to "a crude system of individual racial classifications" or whether it simply represents a race conscious but permissible effort to minimize the impact of laws on particular racial groups. Although it is hard to predict how Kennedy will vote, I believe that he will vote to reverse the ruling. Whenever race looks overt, rather than covert, Kennedy gets queasy - even if the two types of racial decision making are not materially distinct.


Anonymous said...

The New Haven, a majority black city, argued that they discarded the test for fear of lawsuits, another possible and more likely explanation is that they didn't like the 'results'.
Another thing, your understanding of Title VI is wrong. The statute never prohibited the employees' actions that have adverse impacts on minorities. What the statute prohibits, when it says effects, are merely the actions that are not generally thought o as intentional discrimination. For example, I refuse to hire a minority applicant to serve food in my restaurant, not because I have a racial or religious prejudice('purpose'), but because I am concerned that having say a black employee will hurt my business. That's what Congress meant when it said 'effects.'

gcotharn said...

Appreciate this explanation of the issues.

Whatever test New Haven chose to administer, I don't see how they can, after the fact, make promotion decisions which are based upon racial results.

Separately: there is statistical wackiness in attempting to draw disparate impact racial conclusion based upon the small sample size of a single test for New Haven Fire Captain. I doubt Mathematics would support drawing such a conclusion. The margin for error is likely gigantic; the results of any single test is likely heavily attributed to chance.

Aside: When I had some time, I revisited Sotomayor at Berkeley and cited quotes to justify my blog opinions. Am considering studying the Scalia/race comments you referenced.

Darren Lenard Hutchinson said...

Gcotharn: You said that you "don't see how they can, after the fact, make promotion decisions which are based upon racial results."

But that's exactly what a court would do if a plaintiff sued and a court found that the unvalidated test was either overlybroad or did not a valid business purpose. Basically, people are arguing that it is illegal for an employer to do something that the courts do all the time.

Also, the standard cannot require a certain victory for the plaintiffs in a potential action. Every discrimination plaintiff has to show disparate impact, but when employers take the potential for impact into account, a flexible standard has to apply. Otherwise, the court should require that the employer can only take race into account after losing a lawsuit - which does not reflect the position of Supreme Court jurisprudence.

Finally -- please look at Scalia on race and gender. Also, O'Connor and Ginsburg have interesting comments on race and gender that closely paralllel Sotomayor's statement. the problem with her critics: they fail to contextualize their objections. Supreme Court doctrine is far more complicated than Sotomayor's critics portray it.

Darren Lenard Hutchinson said...

Anonymous: Would you impute "guilt" to lawmakers in a far more common occurrence than your post describes -- an majority white or majority male legislature, court or executive imposing burdens on persons of color and women? Probably not. But if that were the case, then you should consider abortion restrictions and many law enforcement practices unconstitutional.

Second, your limited understanding of Title VII - not Title VI -- is incorrect. First, in Griggs v Duke Power the Supreme Court explicitly held that the law contains an "impact" test. The Supreme Court eviscerated that standard in Wards Cove (1989), but Congress amended the Civil Rights Act in 1990 to reinstitute the impact test. This covers facially "neutral" policies that have a disparate racial or gender impact. Saying a black person will hurt business is a race-based decision -- so it is clearly discriminatory. Your statement of the law in this area is absolutely incorrect.

Anonymous said...

Impact test is not the same thing as adverse impact. What Griggs and its progeny have held was that where the practice carries an adverse impact it raises a rebuttable presumption of the discrimination. As you had mentioned in our post, that the defendant can always avoid liability by justifying his test as job related.
what bothers me in this case is that the city did do due diligence as far as getting this test designed to be job related, specifically keeping in mind that some tests might keep out people for no good reason. So why should they be liable?

Darren Lenard Hutchinson said...

I clearly stated that the pattern could open the door to liablity. Also, the burden-shifting analysis considers not only the disparate impact but -- even if the job requirement pursues a legitimate business purpose -- whether the policy is overly discriminatory. In other words, a court could consider whether a less discriminatry way of attaining the business goal is available. The City presented expert testimony stating that this was true. Remember, the test was more than simply aptitude, but it also included a skills performance as well. Depending on how you weighed the two components, an impact existed.

Anonymous said...

...what I was trying to say in my previous post that their justification for throwing out the test was a pretext.

Darren Lenard Hutchinson said...

PS: Blacks are only 37% of New Haven's population, and the white mayor has a great standing among all racial groups. Just maybe, he cares about diversity. Even if it is because his constituents do, this is not necessarily a bad thing.

Darren Lenard Hutchinson said...

That's your conclusion. The District Court and the appeals panel rejected that contention. So, one possible outcome could remand for a trial on the "pretext" question. This would not undo the legal conclusion about the Title VII liabilty, nor would it state a rule banning consideration of race. The back and forth simply proves the point that this is not the slam dunk case that conservatives pretend it is. At the end of the day, I suspect that the SCT will rule 5-4. Add that to the 2-1 panel decision and the 7-6 en banc decision, and you have potentially 12 or 11 judges voting for the City or 12 or 11 voting against. The breakdown of the judges disproves the portrayal of this case as a blatant wrong. Disagreeing with the outcome is a completely different matter than saying the outcome is unsupported by law. This is absolutely wrong. I disagree with many judicial rulings, but I appreciate their "correctness." The law is far more flexible than people describe it.

Kansas City said...

The effective premise of disparate impact - that blacks will do worse on aptitude and intelligence testing (I realize it applies to other employment prerequisites like a high school diploma or a clean criminal record, but mostly it involves aptitude/intelligence testing) -- has always seemed like a highly offensive and insulting concept to blacks. It can be rationalized, and perhaps was needed at one time, but it now causes more trouble than it is worth.

By the way, there are relatively few disparate impact cases due to the combination of cautious employers and the difficulty of proving a statistically significant disparate impact.

In the New Haven case, I don't know the evidentiary record, but I would surmise that there was not real proof of a statistically significant disparate impact (which would be hard to find based on sample size). It probably was a case of politicians backing off and using the purported threat of a disparate impact claim to avoid aggravating black interest groups.

One problem with allowing employers to back off employment decisions because of a generalized fear of a disparate impact claim is that the fear rationale will always discriminate against whites (sometimes Hispanics).

The best result would be for the Supreme Court to hold that employers can make employment decisions adverse to whites on the basis of disparate impact concerns ONLY if the employer can prove what a black would need to prove - there was a statistically significant disparate impact and, if so, there were other alternative approaches that would have accomplished the result without a disparate impact.

If the Supreme Court was not so politicalized, that result could be supported unanimously. In the actual world of the supreme court, there likely will be four affirmative action votes in favor of New Haven and five votes to reverse with some type of remand to the trial court to consider further issues - perhaps dictated entirely to Kennedy. In effect, the vote may be 4 - 4 - 1, with Kennedy's view being the outcome of the case.

ps - What you missed in the NYTimes article regarding Sotomayer's undistinguished work on the Ricci case was that the apparent reason for the bizarre original summary affirmance of the district court was that the agreement to affirm amoung the three panel judges was fragile and they did not agree on the rationale. So, they issued a summary affirmance that established no precedent. The greater problem in Sotomayer's work on the case was that after the original summary affirmance was challenged, she and the panel lazily adopted the district court order which would have created precedent had it not been reviewed by the Supreme Court.

gcotharn said...

... exactly what a court would do if a plaintiff sued and a court found that the unvalidated test was either overlybroad or did not a valid business purpose. Basically, people are arguing that it is illegal for an employer to do something that the courts do all the time.
Every discrimination plaintiff has to show disparate impact, but when employers take the potential for impact into account, a flexible standard has to apply. Otherwise, the court should require that the employer can only take race into account after losing a lawsuit

Common sense: how could New Haven discover, after the fact, that test material covering chemistry, physics, engineering, medical care, et al created a disparate impact? I see no way to show such test material is biased against anyone.

I doubt New Haven sees a way, either - which is why they are instead arguing they have to invalidate the test results so as to guard against being sued(which threatened lawsuit I suspect could never succeed, due a statistically inadequate sample size). Before a test is announced and administered, New Haven might properly consider the threat of lawsuit. After a test is administered (a test for which a "disparate impact" claim - whether focused on test material or on statistics re racial results - surely would be laughed out of any intelligent room) how in the world can New Haven be allowed to promote based upon the racial breakdown of test results?

This is clear discrimination against Frank Ricci and others who produced high scores on the test. New Haven was running scared of community forces which threatened them, was running scared of lawsuits, and did not care about racially discriminating against Frank Ricci, et al. New Haven was only concerned with running from the greatest threat.

Darren Lenard Hutchinson said...

Gcotharn -- Disparate impact does not require "bias." Instead, it allows plaintiff to prove a prima facie case with statistical evidence. The burden then shifts to the defendant to show that the job requirement is "validated" to serve a legitimate business goal. It then shifts back to the plaintiff, as I stated in the main article. The process seeks to isolate intentional bias and policies that "discriminate" too broadly (even if unintentionally).

Also, employers often discuss policies prior to implementation and consider the race and gender impact of these policies. The use of the impact test makes it wise for any company or governmental employer to do so. That's why employers utilize lawyers - to help with planning. This does not differ from smart tax planning.

Assuming that the impact was unexpected, this does not mean that the city was "running scared of community forces which threatened them." I find it odd that people do not believe that a city as liberal as New Haven does not believe in the concept of diversity. Diversity and the avoidance of liability are perfect reasons to use a less discriminatory approach. Again, the test weighed two components, and depending on the weight given, the disparaty is diminished.

Finally, would you argue that a judge should show "empathy" for the plaintiffs -- unlike New Haven, which you say "did not care"?

Darren Lenard Hutchinson said...

KC - of course, what constitutes "proof" is the big question. In order to prevail in a litigation, the level is proof is quite high. As I have already argued in the comments sectionl, requiring the same level of proof by employers would essentially kill any incentives by employers to make sure that the employment practices do not disparately affect certain classes of workers.

Also, your comment states that the preventive measures will almost always harm whites, but the lack of preventive measures will almost always harm women and persons of color. Should one group's interest prevail over another group's? If so, what standard should apply?

Finally, I agree that some aspects of disparate impact can create appear paternalistic, but this is not always the case. Unless the job requirement really goes towards job performance, then the requirement is arbitrary. Even if it goes towards performance, it might not represent the least discriminatory route. These safeguards help guard against the horror your post describes.

Darren Lenard Hutchinson said...

KC - I forgot to respond to your Sotomayor comment. First, that is not a "substantive" analysis of the case. Second, what basis did the article use to find that the "apparent reason for the bizarre original summary affirmance" was lack of agreement on the reasoning among the panel? Judicial panels do not always agree. Where they eyeing a two-judge opinion plus a concurrence? Three different rulings concurring with each other? I'm not sure.

Regardless, the full circuit rejected a rehearing motion by the plaintiffs, so they didn't think enough was there to warrant another round in the Second Circuit. The vote was close, but it will be close in the SCT as well. I guess the closeness of the votes makes me suspicious of all of the melodramatic descriptions of the case. Clearly it's all about race and affirmative action. I wish people would just come clean on that and stop trying to turn the case into something that reflects negatively on her abilities as a judge. Even if the panel should have written a longer decision, this would hardly disqualify Sotomayor from the SCT. Republicans are whining that her judicial record is so long that they need months to confirm her. If that is the case, the fact that she, along with two other judges, consented to a shorter opinion in this one case (out of thousands) means absolutely nothing.

Kansas City said...

Affirmative action has produced some good results, including Obama, Sotomayer, Powell and Thomas. The problems with it are: (1) it discriminates against more qualified whites because of their race; and (2) it stigmitizes, sometimes unfairly, blacks as the beneficiaries of preferential treatment. Sotomayer will always be regarded as a lesser qualified beneficiary of affirmative action. Her ruling in Ricci does not disqualify her from the court; it reflects her affirmative action mindset and her poor handling of the case is an embarassment for her.

Your comments on disparate impact reflect a misundertanding of what I stated. My point is that if an employer's defense after denying a promotion to a white is alleged concerns about a disparate impact claim by blacks, then the employer should be obligated to prove there was a valid disparate impact claim.

This would not "kill any incentives by employers to make sure that the employment practices do not disparately affect certain classes of workers." It would not affect that AT ALL. Employers still would be potentially liable for such practices. It would only come into play when a white was denied a promotion based on purported concerns about a disparate impact claim.

You also mischaracterizes my comment as "your comment states that the preventive measures will almost always harm whites, but the lack of preventive measures will almost always harm women and persons of color." I said that employer taking action to deny an opportuinty to one who otherwise would receive it because of a concern about disparte impact claims would almost always harm whites. I said nothing about "preventive measures." An employer can take all the preventive measures it wants, but it should not be able to deny a promotion earned by a white because of disparate impact concerns unless it can prove the disparate impact concerns werer valid. it would be a burden of proof the same as other defenses that might be offered by the employer.

Kansas City said...

One last point on Ricci. There is a video at link below where Sotomayer acknowledges that she is a product of affirmative action and that she did not score well enough on tests to get into Princeton and Harvard [?].

So, she was sitting in judgment on the Ricci case with her own knowledge that she would not even have been on the court hearing the case if she did not receive preferential affirmative action treatment. How could she be expected to fairly rule that case? I think she should have disqualified herself. She could have done so without stating why.

Darren Lenard Hutchinson said...

KC: I read the NYT report on the video, and your post distorts her comment. She said her test scores were lower than a lot of people got into those schools - not that she didn't score well enough to get in. Also, I think her accomplishments prove what tons of empircal research already determines (particularly with respect to law school): GPA is a much better predictor of college and law school performance than standardized tests. I suspect that her lower peformance relative to other students results from class. Wealthy students have access to test preparation courses which add signficant points to scores on average. Their better performance has absolutely nothing to do with ability, but instead relates to wealth. CLASS IS A BASIS FOR AFFRIMATIVE ACTION TOO! Isn't that what conservatives say all the time -- us class, not race? Sotomayor grew up in a very poor family. Giving her points should not bother conservatives who believe that poverty is less troubling a basis than race for assisting individuals.

As for your discussion of the impact issue, I reiterate that the question is how do you "prove" this. The City had a report from corporate counsel stating that the test results fell within the 4/5 rule of the EEOC (read the case). This clearly would have given any plaintiffs a "prima facie" case -- unless the court invalidates the EEOC regulation (something I doubt it will do). "Proving" disparate impact could require the city to either offer evidence that would win a case or something much smaller than this. Accordingly, I stand by my original argument that what a court regards as "proof" by employers will play a prominent role. If the court wants evidence that will undoubtedly cause the city to lose a lawsuit "beyond a reasonable doubt," then no employer will engage in the preventive measures that New Haven used. You cannot really dispute this. Throwing around the word "proof" as you have done, does not advance your argument. There are many different standards of proof within the law.

Kansas City said...


It is not correct that the corporate counsel letter stating the test results "fell within the 4/5 rule of the EEOC" [I assume you meant fell "outside" the 4/5 rule, since it is a safe harbor concept] "clearly would have given any plantiffs a 'prima facie' case." The 4/5 rule has nothing to do with a prima facie case in a disparte impact case challenging test results. The prima facie case would require the presentation of a valid statistical analysis establishing that the disparity between black and white test results was at least two standard deviations, i.e., statistically significant.

And sure, the SC holding in Ricci should be that if the city wants to not be held liable for its discrimination againt Ricci because of his race, then the city should be required to present evidence sufficient to "prove" following the test results would have been discrimination against blacks under the disparte impact theory.

Your reference to "beyond a reasonable doubt" has nothing to do with employment law - that is a criminal law concept. There also is nothing mysterious about "proof" in the context of a civil action. The party advocating the position needs to present sufficent evidence to support a finding of "more likely not." The city should be required to present that evidence as an affirmative defense for taking action against Ricci because of his race.

Finally, on Sotomayer, come one, listen to the video tape. She said it would have been "highly questionable" whether she would have been accepted to Princeton or Yale because her scores were "not comparable" to her colleagues. Why would you rely on the NYT rather than listen to the tape? I am in favor of affirmative action based on class, and greatly respect what Sotomayer has accomplished.

However, if you were a white plaintiff challenging affirmative action (or, as in Ricci, the victim of vague concern about a disparate impact claim being asserted), would you be comfortable with a judge who believed that her great success was "the product of affirmative action" that overlooked test results? Of course not. It does not mean Sotomayor is a bad judge or person; she is just not the right judge for that type of case.

gcotharn said...

Are you saying the following:

1) A group of Riccis passed the test

2) the group earned promotion according to the rules which New Haven represented to exist, i.e. score high enough, become a fire captain.

3) the group were denied promotion b/c New Haven had an unstated rule, which was not represented to the group beforehand, and which was based upon racial breakdown of test scores.

4) the group has no legal recourse which deserves to succeed. In other words, Ricci is following his only path of legal recourse, yet he deserves to lose. Ricci, and by extension the rest of the firefighters who scored high on the test, have no legal recourse which deserves to succeed. They are screwed. United States law does not protect them in this situation. They should sue in civil court and take their settlement money and be happy, but they don't get to be Fire Captains in New Haven, Connecticut, USA - even though they earned it - and such is just a quirk of U.S. law at this time.


Disparate impact does not require "bias."[...] The process seeks to isolate ... policies that "discriminate" too broadly (even if unintentionally).

Please replace my sloppy use of "bias" with "discriminate". I don't see how a test covering chemistry, physics, engineering, et al is discriminatory. I read, in the case, where a competing test firm testified that they "could design tests with less disparate results". I say: "tests with less disparate results" is bullshit shorthand for "easier tests". The claim - by the competing test company - amounts to racism in and of itself, given the underlying assumption that black people cannot perform equally on any test of chemistry et al which could possibly be devised. Further, when designing a test: does New Haven prefer to design a test to achieve a racial result in scoring? or to design a test which tests knowledge? If New Haven prefers to design a test to achieve a scoring result(and New Haven board is split 2-2 over this issue), then I would love to sue New Haven on behalf of the family of a deceased person who died in a fire.

I find it odd that people do not believe that a city as liberal as New Haven does not believe in the concept of diversity.

New Haven obviously does believe in diversity amongst fire captains, and I find it inexplicable that they favor diversity over excellence.

If my daughter is imperiled in a burning building, I do not want an affirmative action Fire Captain in command on the ground. I do not a Fire Captain's historical racial grievance to substitute for the merit of extreme knowledge about chemistry, physics, engineering. I do not want someone who passed a watered down test to be in command. I want someone who passed a bastard of a difficult test to be in command. I find it amazing that New Haven wants a Fire Captain of lesser merit to be in command of saving my daughter.

Finally, would you argue that a judge should show "empathy" for the plaintiffs -- unlike New Haven, which you say "did not care"?

Darren, you pursue this empathy angle like Ismael pursued the whale. The result, for Ismael and for you, will be the same.

Empathy is protecting individual rights. New Haven was not concerned with protecting individual rights. New Haven was not concerned with righteous action on behalf of the citizens of New Haven. New Haven was concerned with avoiding the scariest threat. It says something, about this moment in history, that New Haven considered unjustified complaints from affirmative action activists to be a bigger threat than any justified complaints from Ricci et al would ever be.

Kansas City said...

There was an interesting exchange at the end of oral argument. Sotomayer apparently agressively cut off Ricci counsel when he tried to make an argument like gcotharn about safety. She said something like, "look, no one is saying unqualified people should be promoted." With the disclosure of Sotomayer as "the product of affirmative action," that comment is quite revealing (and another reason she should have recused herself). She, of course, feels that she was was qualified for Princeton and Yale, even though she needed affirmative action to get in, so she bristles when someone suggests lower scoring candidates are not qualified.

The issue of qualifications always has been a victim of affirmative action. The affirmative action dodge is that you set minimum qualifications that minorities meet, then you can say they are qualified. The problem, of course, is that they are advanced over persons who, at least based on the test results, are more qualified. More generally, affirmative action seeks to eliminate distinguishing between persons who meet minimum qualifications as to who is the best qualified. It is unfortunate, but inherent in the concept of affirmative action as applied.

Darren Lenard Hutchinson said...

Oh, please. That hardly amounts to a call for recusal. Scalia wrote a law review article calling affirmative action a "disease," but I suspect you do not want him to recuse himself from these cases. There are a number of people who are products of affirmative action, but who are among the best in their fields. In many ways, it's another way of allocating limited seats among greater demand. For people like yourself who view affirmative action as compromising merit, you will always think lowly of people who say they benefitted from affirmative action. Sotomayor's record at Princeton speaks for itself. Apparently, her grades were extraordinary, but her test scores were not. Guess what: her grades at Princeton were extraordinary. Perhaps you under under the mistaken belief that Princeton has an affirmative action program for grading students. It does not. Clearly, her relatively lower SAT did not stop her from graduating at the top of her class. The fact that you still call her unqualified for Princeton despite this performance is ridiculous.

I suppose that the reason why she responded to the "danger" argument the way she did is because it -- like you -- misstates Title VII. The burden-shifting standard does not force employers to choose between antidiscrimination and quality. Instead, it seeks to eliminate artificial barriers to employment. Thus, if the test is not validated -- i.e., it is unrelated to quality or is underinclusive in isolating quality -- then it violates the statute.

As an academic, I find it absolutely laughable how much weight that people who are not professors place on standardized tests. Students who pay attention, study hard, and come to office hours perform the best in class. Usually, this corresponds with past achievement -- not a few hours of testing -- and certainly not after a few weeks of expensive test preparation courses.

I noticed you had nothing to say about Sotomayor's performance at Princeton (summa), Yale (law journal), as a judge (not reversed, elevated), or the fact that studies repeatedly show that grades are a greater indicator of merit than test scores. Any serious argument of this subject should at least relate to reality - not imagined horrors that do not exist.

Darren Lenard Hutchinson said...

Gcotharn said: 3) the group were denied promotion b/c New Haven had an unstated rule, which was not represented to the group beforehand, and which was based upon racial breakdown of test scores.

I am not sure what you mean by this. The city said it discarded the test to avoid liability and to promote diversity. I assume the city had preexisting diversity policies -- and liability was created by Congress - not the City.

And I will say the same to you that I said to KC - you ASSUME that the test is the only route to merit. That's the exact opposite of what Title VII requires. I completely understand your argument, because I teach this stuff. But suspend your own position for the moment. Assume that there are various ways to isolate and measure quality. Why should the city be forced to use only one measure? Repeating chemistry, physics, etc. over and over again does not validate the test. Besides there was a subjective component to the test. I have not said that the issues are slam dunk. In fact, I have argued the complete opposite: the case is much closer than it has been portrayed.

Finally, you probably have been serviced by many persons who benefitted from either affirmative action or downright racial and gender discrimination - especially if you are older. Imagine how life was prior to Title VII - no testing, fewer requirements...But "No women" and "no blacks" signs were everywhere. Was that the golden age of merit?

Darren Lenard Hutchinson said...

KC - I only mentioned "beyond a reasonable doubt" because it shows that you can require all types of evidentiary standards. Also, the standard for ADJUDICATION is different from standards in other contexts. In court, a plaintiff would have to show by a preponderence of the evidence that he or she has been a victim of discrimination. But the employer is not in court when it is wondering about liability. So again -- what standard of proof should employers have to meet in order to have a reasonable basis for believing a particular job requirement subjects it to liablity? You could ask the employer to wait and get sued -- that's one way of establishing "proof." Or you could demand clear and convicing evidence, significant evidence, blah blah blah. It still reduces to the level of proof, and you have yet to articulate how that should look. Clearly the city offered some proof, but it has not convinced YOU. But that does not mean no proof was offered in the litigation.

Kansas City said...

Earth to Darren. Ricci and New Haven are in court. The issue is to what extent New Haven's concerns about a disparate impact claim should be a defense in court to the fact that they discriminated against Ricci because of his race. I outline the burden of proof in an earlier comment, which you apparently did not read. In my opinion, the answer is that they need to be able to prove in court that there actually was the basis for a disparate impact claim if they had proceeded with the promotion of Ricci - under the same "more likely than not" [same as preponderance of the evidence] standard as evey other affrimative defense. To put it in simpler terms, they need to prove that there concerns about a disparate impact claim were valid by showing there was a legitimate basis for one.

I have repeatedly said nice things about Sotomayer. Your Scalia example is apples and oranges. He apparently has declared his opinion about affirmative action. Sotomayer has benefited from affirmative action and is now hearing cases that argue what benefited her should be declared illegal. Is that the judge you would want if you were the plaintiff?

One last point. With respect, you seem to never concede anything. You almost never acknowledge a vaid point by someone who disagrees with you. And, you resort to argument that either ignores or misstates what people say when they make a valid point. But you are respectful and intelligent in your responses. So you have an interesting site.

gcotharn said...

I mean this:
New Haven did not say: score high on this test and, if the racial breakdown of scores is satisfactory, then we will promote you to Captain.

I understand you to be saying New Haven's preexisting diversity policies amounted to an in-place policy requiring satisfactory racial breakdown of test scores; I understand your position to be that the men who studied for the test ought to have known about and accounted for New Haven's preexisting policy, and for the possibility that their time expended studying for the test would go for naught.

If this is what you are saying, we disagree. Vehemently.

I don't assume the test is the only route to merit; I don't assume New Haven is forced to use only one measure.

I do say the test is the route to merit and the measure New Haven chose. I do say the test is not discriminatory - I wouldn't bet a nickel on the chances of a discriminatory "subjective component" existing in that test. Throw out all the science questions, et al. This is a test for Fire Captain. A fire Captain will be leading men - approx 70% of which men, in New Haven, will not be black. I do not see how a candidate for such a skilled and responsible job will succumb to subjective components in a test. If a candidate does succumb, is he fit to lead firemen who are 70% non black?

Lets stipulate that a subjective component does exist. I expect the test could be broken down by racial results on science questions vs racial results on the questions containing "subjective components". Why is this not being done? This would win the case for New Haven: would show the test did have discriminatory elements and the test results should be invalidated.

Re "golden age of merit"
Your question is an invitation to a longer discussion about which we will never agree, as I believe affirmative action dampens competitive excellence, reduces output, reduces scientific and technologic breakthrough, and is generally a scourge upon black people, white people, and all people. In this area, I agree more with Sowell and Shelby Steele, and I agree less with you. And this is why I keep telling myself I ought not comment here, b/c it's pointless and kind of rude to prompt disagreements which you and I will never resolve amongst ourselves - and I try to stay out of unresolvable areas, yet maybe they inevitably will pop up. Whether I comment her again or not, I do appreciate both this blogpost and the give and take from your side, and the give and take from KC(btw- my niece Kacy is named after Kansas City).

Darren Lenard Hutchinson said...

Gcotharn: Your statement of my position is incorrect. Whether or not the employees knew about the policy would not make it legal or illegal. The preexisting liability standards created by the statute potentially justify the city's actions.

I have read Sowell and Steele and many other people on this subject, and I think the subject is far more complicated that either side admits. The fact that someone with "lower scores" can graduate at the top of her class at Princeton should indicate that "scores" are not perfect measures of merit. I also would caution against blending and treating as indistinct employment and admissions to educational institutions. There are different factors at play.

Finally, I am not daunted by debate. I began law school in 1990, and I have debated these arguments in legal settings since that time. Prior to that, I debated them with general knowledge of the subject. As a law professor, students disagree with me. I disagree with students. I disagree with MYSELF. I take complicated positions. On a blog, I am more passionate in my position. Disagreement is not a bother. Check out the blog title once again.

Darren Lenard Hutchinson said...

KC: Thankfully, the "Earth" is large enough to support our vastly different perspectives. Obviously the case is "in court." And the standard that you have finally spelled out would seem to require employers to use the same methodology used at a trial by Title VII plaintiffs. The Court, however, has never required this in affirmative action cases (to my knowledge).

The interesting thing about this thread to me is that it actually proves the point of the blog essay: this is not an uncomplicated case. You "final" analysis searches for a standard for employers to use in order to demostrate that they are seeking to avoid liability for disparate impact litigation. But this is a tacit admission that impact matters and could potentially subject employers to liability -- just as the city claimed. If the Second Circuit (the panel and the en banc judges) was so blatantly wrong, then there would be very little to debate on this issue.

Finally, your argument for recusal is very unpersuasive. First of all, by your own theory, any white/male/upper-class judge who never benefitted from affirmative action and may have been "harmed" by it, should not sit on such a case either because he could show bias against the defendant.

But let's consider some other examples. Before becoming a judge, Rehnquist argued that Plessy should be upheld, and he also argued that the Democratic Party had the right to conduct "white primaries." Yet, he still participated in race discrimination and voting rights cases. Scalia has deemed affirmative action a "disease," but he still sits on affirmative action cases. Scalia wrote a memo saying he knows that jurors and prosecutors operate on racial biases -- and still voted against a race discrimination plaintiff -- but this has not made him unqualified to judge juror bias or selective prosecution cases. Many Supreme Court justices attended wealthier suburban public schools when they were young, but they can still sit on cases challenging funding inequality in schools. If all of these scenarios do not compel recusal, then Sotomayor should not have recused herself. The argument is preposterous.

Kansas City said...


See the article linked below for a good account by a moderate to liberal observer of the shannanigans by the City of New Haven that Sotomayer endorsed. It is even worse than I thought. The reports of oral argument indicated the SCT was likely to break 5 to 4, but it would be a case in which it would be nice to see a larger or even unanimous court reverse.

Sure, an employer should have a defense if promoting Ricci and the others would have subjected them to liability. The issue is what proof is required for an employer to succeed in that defense. You suggest the kind of political drivel relied upon by New Haven is sufficient. I advocate that when and employer discrimminates against whites because of a purported fear of a claim by blacks, the employer should be required to prove that there would have been a valid basis for the claim by blacks.

Finally, on the issue of Sotomayer's recusal, calling someone's argument "prepostrous" does not strengthen your argument. You cite situations where a justice previously expressed an opinion that was contrary to the position of a party. That is an issue of concern (although I don't think grounds for recusal), but a different issue than I raise with Sotomayer. None of your examples are comparable, except the hypothetical of a judge who had been harmed by affirmative action. In that case, yes, just like Sotomayer, that judge is not the appropriate person to rule on a challenge to affirmative action.

SIMPLE QUESTION: Sotomayer has acknowledged personally benefiting from affirmative action. If you were the plaintiff challenging affirmative action, would you be comfortable with her as your judge? Do you really think she should be the judge in such a case?

I'm not even talking about legal grounds for recusal, which I have not researched. I'm talking about judges stepping up and doing the right thing.

Darren Lenard Hutchinson said...

In response to your "simple question": Yes! The law allows affirmative action; so, her benefitting from it does not indicate something sinister or underhanded. Nor does it demonstrate that she is too close to the issue to indicate bias. It does not even prove that she personally supports affirmative action.

If benefitting from affirmative action could disqualify a woman/person of color/poor person, then whites who DON'T benefit from or who are burdened by affirmative action should not hear these cases as well. By the way, Justice Thomas has admitted to being a product of affirmative action. Should he recuse himself from Ricci as well? No - because you like his position on the issue. But that is not a principled position.

If Rehnquist could sit on race discrimination cases after arguing that the Supreme Court needs to just accept that fact that Southern whites do not like black people, then Sotomayor, who graduated at the top of her class -- and who ruled in favor of a white supremacist fired by the NYPD - should be able to sit on affirmative action cases.

Justice O'Connor could only get a job as a legal secretary, although she graduated from the top of her class at Stanford Law School. Should the men on the Court who benefitted from sex-based discrimination against women -- and in favor of men -- recuse themselves from gender cases? Many of the Justices in recent history attended law school when women and blacks were not allowed. They benefitted from discrimination which freed them of any competition. Should they recuse themselves from race and sex cases? Many judges, including Sotomayor, were "tough" prosecutors prior to becoming judges. Should they recuse themselves from criminal procedure cases? If a judge has an abortion, can she sit on an abortion case? If a judge (like Ginsburg) has a serious (potentially fatal) illness, can she sit on a "right to die" case or any medical treatment ruling?

Rehnquist departed from his usual conservative approach to Congressional power in the rights context and voted to uphold the family medical leave act; he did so because he could relate to his daughter needing benefitting from the statute. Should he have recused himself?

Answering "yes" to these hypotheticals would extend the recusal doctrine so far that most cases would have several judges barred from participation. If Sotomayor had a relative or friend in the New Haven fire department who stood to gain from the ruling, then that would compel recusal. Absent a direct and personal stake in the outome of the case, she should not have to recuse herself.

The first two black federal judges (after Thurgood Marshall) faced recusal motions in race and sex discrimination cases. They wrote brilliant opinions rejecting arguments that saw them -- but not whites or males -- as biased. The same logic applies to this situation.

PS: A larger majority might reverse on the "factual" issue of the reason for throwing out the test. I could see it going back for a trial - without the Court doing much at all on the legal questions. But the fact that other liberals agree or do not agree, etc., does not disturb the fact that the case is far more complicated than the one-sided discourse has presented it.

Kansas City said...

The simple question seems to have struck a nerve.

As a matter of common sense, a plaintiff challenging affirmative action would not be comfortable with a judge who benefited from affirmative action. You should be straightforward enough to acknowledge that you would feel the same way in the plaintiff's position -- how about a little "empathy?" Instead, you fall back on legal arguments and analogies that can be used to rationalize and justify the judge not recusing herself. It would be a breath of fresh air for such a judge to recuse herself and for someone like yourself to put aside the liberal mindset and acknowledge the obvious.

You might be right that a larger majority of the supreme court could punt the case back to the district court without saying much on the legal issues. I doubt it happens. Too much politics involved and there at least would be the need to identify some legal issue for the district court to reconsider - which probably could not command a large majority's agreement.

Darren Lenard Hutchinson said...

Actually, your question did not strike "a nerve." Instead, your effort to stretch the law on recusal beyond any practical boundary struck a nerve. The fact that a party is "uncomfortable" with a judge does not compell recusal. I would be uncomfortable having Scalia as a judge on just about any issue of importance to me, but that does not mean the he would have to recuse himself from a case to which I am a party.

Ironically, you seem to criticize me for faling "back on legal arguments," but as a lawyer discussing "the law," I am not sure what else you would expect. Judges do not have the obligation to deliver a "breath of fresh air" to litigants. But, hey, I'll advocate Sotomayor's recusal on affirmative action, if you advocate recusal by Scalia, Alito and Thomas. In his autobiography, Thomas wrote about his miserable personal experiences and reaction to affirmative action. Alito joined a student group opposing affirmative action at Princeton. And Scalia called it a "disease" prior to become a Supreme Court justice. It is "obvious" that these men are totally opposed to affirmative action, and neither has ever voted to uphold an affirmative action policy -- despite Supreme Court precedent which makes it legal under certain circumstances. Sotomayor only stated that she benefitted from affirmative - not that she approved of it. Apparently, she benefitted from it in a manner that is consistent with Bakke and Grutter. There is absolutely no reason to demand that she recuse herself. Is she more "biased" than Alito, Scalia or Thomas? Why?

Kansas City said...

I never said that it would be legal grounds for recusal. And now you seem to agree with me that the plaintiff would not be comfortable with her as the judge. The comparision to Scalia and Alito does not work, since they simply opposed it; they did not personally benefit or suffer from it. Thomas benefited from it, and still does not like it. So I guess he will balance out Sotomayor's likely bias in favor of it.

Darren Lenard Hutchinson said...

I do NOT agree with your argument that a plaintiff would not be comfortable. I simply said that "comfort" is not factor for determining whether recusal is appropriate.

Also, I find your effort to distinguish Scalia and Alito lacking. You have tried to isolate bias in Sotomayor simply because she "benefitted" from affirmative action, even though she has taken no public position on it. But if an individual could not benefit from affirmative action (which means he was burdened by it), then he should receive similar treatment as Sotomayor (i.e., be considered a candidate for recusal). Also, Alito and Scalia attended college when women and people of color were simply not admitted in great numbers -- due to discrimination. They benefitted from gender and race-based discrimination. Shouldn't they recuse themselves from race and gender cases?

Finally, speaking out AGAINST affirmative action indicates a greater degree of bias against a particular claim than simply benefitting from affirmative action -- as the Thomas situation proves. If anything, Alito, Scalia, and Thomas are better candidates for recusal under your "comfort" theory than Sotomayor. Apparently, the only thing that distinguishes them, however, is that they oppose affirmative action, while she (you believe) supports it.

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