Mark Tushnet -
THE SUPREME Court’s decision last month in the Ricci case involving New Haven’s test for promoting firefighters is important for two reasons (three, perhaps, if you include the likely quite transient effect on the Senate’s debate over the seemingly inevitable confirmation of Judge Sonia Sotomayor). One is the decision’s implication for employment discrimination law. The other is what it shows us about the strategy of Chief Justice John Roberts and his conservative colleagues for achieving their long-run goals—if we let them get away with it.
Both Justice Anthony Kennedy’s opinion for the five conservative justices and the dissent by Justice Ruth Bader Ginsburg spent a lot of time detailing the facts, and for good reason. Facts matter a lot in employment discrimination law. But, simplifying the story, here’s what happened: New Haven needed to promote several firefighters to supervisor. It signed a contract with a consulting firm to develop a written test to help determine who had the right qualities of leadership. The firm did a fairly extensive survey of what New Haven’s supervisors actually did and offered the city a test. The city decided to administer the test, along with an interview. It gave the written test 60 percent weight in the final evaluation, the interview 40 percent.
When the test was administered, the city discovered that no African American firefighters would be eligible for promotion. The city discarded the test and prepared to develop a new evaluation procedure. A group of firefighters who would have been eligible for promotion under the original test sued. They argued that in discarding the test the city had made a race-based decision—it abandoned the test because of the test’s racial impact. In the jargon of employment law, they claimed that they had been subjected to “disparate treatment” because of their race.
The city didn’t deny that. In defense, it said it discarded the test because it was concerned that African American firefighters would sue for racial discrimination. Employment law recognizes, again in its jargon, claims for “disparate impact” of employment practices such as the administration of tests for promotion that don’t overtly take race into account. And the size of the disparity between the performance of white and African American firefighters would indeed have supported a plausible claim for disparate impact.
But here’s where the case gets really complicated. Employment law gives employers a defense when they engage in disparate treatment. An employer can win a suit against it, even for a decision expressly based on race, if it can show that its decision was justified. Therefore, the question in Ricci was whether the city’s concern about being sued for disparate impact was a permissible justification for discarding the test.
The Supreme Court said it wasn’t. It recognized that New Haven faced a difficult choice—use the test and face a suit by African American firefighters, or discard it and face a suit by white firefighters—and the question was, “Should the city have been afraid that it would lose the African American firefighters’ suit because it couldn’t establish a business necessity for using the test?” The majority said the city would have to have a “strong basis in evidence” for believing that it probably would have lost a disparate impact lawsuit brought by African American firefighters. Analyzing the evidence, the majority said the city didn’t and couldn’t throw the test out.
Ricci could have a significant impact on employment practices. Employment lawyers and courts will have to decide, for example, whether its analysis applies to the initial choice of an employment test. Suppose the consultant offered New Haven two tests, noting that one would have a larger disparate impact than the other, but was, in the consultant’s judgment, somewhat better at determining who would be a good supervisor. Can the city choose the slightly worse one because it wants to minimize the disparate impact of its practice? Or, suppose the city decided to give the interview a weight of 50 percent so as to reduce the overall disparate impact? These and other issues will rattle around in the lower courts for quite a while.
More important, though, is Ricci’s second feature. The case presented only a question of statutory interpretation: What does an employer have to do to establish the justification defense? Justice Kennedy noted that a constitutional problem lurked in the case, though, and Justice Scalia devoted his concurring opinion to it. It’s one that’s been noted by legal academics and, especially, by conservative publicists. Here’s the problem, again in simplified form: It’s unconstitutional for a legislature to enact a statute that gives employers strong incentives to make decisions expressly based on race. Making employers liable for the racially disparate impact of selection practices that are on their face neutral does precisely that.
There’s an even more substantial problem when you shift from employment to education. For a while so-called “10 percent plans” were widely touted as a way for universities to achieve racial diversity in their student bodies without engaging in traditional forms of affirmative action. These plans automatically admit to the state university the top 10 percent of the student body at every high school. Notice, though, that people support 10 percent plans because of their racial impact. Ricci’s observation about the tension between a rule against race-conscious decision-making and disparate-impact suggests that 10 percent plans might be unconstitutional.
And there’s more. A couple of years ago in cases striking down race-conscious voluntary integration programs in the Seattle and Louisville schools, Justice Kennedy said that while school boards couldn’t assign students to schools in an effort to achieve an “appropriate” racial balance in each school, they could pick sites for new school construction that would help achieve such a balance. Again given the constitutional concerns noted in Ricci, it’s unclear exactly why that’s so.
What Ricci does is hint at a serious constitutional question even as it decides only a statutory one. The Roberts Court has used the strategy several times this year. The Chief Justice’s opinion “interpreting” the Voting Rights Act to make it easier for cities to “bail out” of their requirement to get permission from the Justice Department to change their voting rules contained an extensive discussion of the arguments against the Act’s constitutionality. Commentators took the opinion as advice that Congress should modify the Act before the Court gets its hands on it again—perhaps after the Obama Justice Department refuses to allow a Republican-favoring redistricting after the 2010 census.
The strategy seems to be one of softening up those who support Title VII and the Voting Rights Act. The next time around, the Court’s conservative majority can say, “We told you about these problems and you didn’t do anything about them. We’re not really responsible for finding the statute unconstitutional; you are, for failing to clean up the statute.” Or, more likely, the conservatives hope that people will get used to the idea that these popular statutes might actually be unconstitutional, so that when what Justice Scalia called “the evil day” arrives and the Court finds them unconstitutional, people won’t get too upset. (Justice Scalia’s phrase was more ambiguous than he thought.)
Most observers think that President Obama probably won’t get a chance to change the Supreme Court’s conservative orientation because the justices most likely to retire are, like former Justice David Souter, on the liberal side of the Court’s divide. Perhaps the Chief Justice and his allies think that they can outwait President Obama. If not, liberals are going to have to decide how to respond when the Roberts Court drops the other shoe and actually holds important liberal legislation unconstitutional. Franklin Roosevelt unsuccessfully tried to “pack” the Supreme Court when he faced a similar problem in 1937. Are liberals prepared to do anything if we face it in 2012 or 2013?
Mark Tushnet is a professor at Harvard Law School.
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