In New Haven Firefighters Case, Dissenting Justices Saw More Than Ricci v. DeStefano

My esteemed colleague, Civil Liberties Guide Tom Head, offers a very well-written piece on the Supreme Court's recent ruling in Ricci v. DeStefano, and while his insight is as sharp as always, his analysis of the matter and his final opinion about the case call for a conservative perspective.

Last week, the Supreme Court issued a 5-4 ruling in the reverse discrimination case regarding 19 white firefighters and one Hispanic firefighter who were denied promotions because they outperformed African American firefighters on an objective exam. In this case, the City of New Haven, Conn., bowing to threats of litigation from its minority firefighters, discarded the test's results solely on the basis of the firefighters' race, a direct violation of the Civil Rights Act of 1964.

Typically, I make a point not to refute other Guides' opinions, but in this case, I must depart from tradition for purposes of clarification. After all, Head considers the decision in this case to be an example of "right-wing judicial activism," when the reality is that if the ruling had gone the other way for the reasons outlined in the dissenting opinion, it would have been a clear case of left-wing judicial activism.

Head argues that the Ricci case is not, technically, an affirmative action case; rather, it is about Title VII of the civil rights act and the discrimination of members of an ethnic group -- in this case, African American firefighters. The key issue is whether the test itself was biased, or, more precisely: fair in form, but discriminatory in operation.

This issue is important because the court's conclusion, one way or the other, determines whether New Haven would have been a legitimate target for a lawsuit by the minority firefighters had it certified the test results and thus, had a reasonable fear of being sued.

According to Justice Anthony Kennedy:

We conclude that race-based action like the City's in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold standard. As a result, the City's action in discarding the tests was a violation of Title VII.

Acknowledging its indefensible history of racism, New Haven took great pains to ensure the test was free from bias. While Head argues that the exam contained "material not relevant to the occupation" of being a high-ranking firefighter, none of the exam questions are cited specifically or held up as an example in either the majority ruling or the dissent authored by Justice Ruth Bader Ginsberg. In fact, the very question of relevance itself is subjective, and the conspicuous absence of any direct examples of this argument is enough to create doubt of their existence. It is difficult to image that a city so acutely attuned to the racial sensibilities of its employees would go out of its way to include questions with little -- or, worse -- no relevance whatsoever.

Even Head acknowledges the endeavors the City of New Haven took to ensure the fairness of the exam when he raises the rather ambiguous question of "whether an institution can violate Title VII by working too hard to comply with Title VII."

By not certifying test results, the questions of which were developed by a consulting firm approved by both the city and the minority firefighters, New Haven did indeed violate Title VII by working too hard to comply with it. Unfortunately, the persons harmed by this overzealous preoccupation with the results were not the minorities, but the 19 white firefighters and the single Hispanic firefighter. And when the numbers were finally tallied, and the resulting grades were undesirable, the city sought to appease the minorities out of a sense of guilt for past transgressions by sweeping the exam results under the carpet.

Although Head wants to dismiss the core aspects of the case on a technicality, it is substantively an affirmative action case. Had the results been certified and the minorities sued, the exact same questions would have applied, yet it would, without question (or technicality) be considered an affirmative action case. Head's dismissal of the majority opinion based on "the myth of the 'more qualified white candidate' vs. 'the affirmative-action minority hire'" is at the heart of every affirmative action case regardless of its specific details (in this case the disparate-impact concept of Title VII). In every affirmative action lawsuit, the details are different. The circumstance that makes this case unique is the disparate-impact debate. Regardless of Head's argument (or even mine), how the case is described is less important than what its outcome means.

Finally, Head's assessment that the Ricci decision is an example of right-wing judicial activism is just categorically false. If anything, the dissent in this case, given voice by Justice Ginsberg, obfuscates the details of this particular lawsuit by weaving them into New Haven's history. Instead of deciding the case on its merits, the way the majority did, Ginsberg -- and perhaps the rest of the minority -- based their decision not on the facts unique to Ricci, but on the history of the town's racial problems.

This, at least to me, is the very essence of judicial activism -- overlooking specifics to rule in favor of what the judge believes to be "the greater good."

Too often the philosophy of the dissent in this case shapes the majority ruling in other cases. And those cases, too often, are made at the circuit court level, where, according to President Barack Obama's Supreme Court nominee, Sonia Sotomayor, "policy is made."

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