Yale Daily News

It seems obvious that the Supreme Court did not remand to the Appeals Court because it had no confidence in the ability of that court to rule on the law rather than on "feelings," based both on the Appeals Court's inadequate ruling in the case, and on other public statements made by members of that court.
Justice Alito noted in his concurring opinion - mention of which is conspicuously absent from the YDN story - that New Haven never made any credible effort to determine whether the firefighters' promotional exam was a legitimate test of job-related skills. This last is key to any application of the "disparate impact" legal standard.

Wow: no blacks (esp. those that passed, at least the low-rank promo tests) stood with them? Not a single black was willing to step beyond racialism, instead allowing the NAACP to speak for them by hinting at further racially charged lawsuits?

Wow.

So: only whitey can cross the lines (a la civil rights marches)? Too weird.

I exaggerate, certainly, but by how much?

I'm not sure what Rob 69's point is in the second paragraph, but he's right that New Haven never made any credible effort to determine whether the promotional exam was a legitimate test of job-related skills. As Justice Ginsburg pointed out in her dissent, a baseball team owner COULD pick baseball players wholly with a written test of baseball knowledge, and that certainly has some connection to being a good baseball player... you do need to know the stuff... but not a heck of a lot of a connection. It doesn't tell you who can actually pitch, run, or hit.

I bet that if you gave me time to study for this written test, I'd ace it. (As would many Yale grads.) But believe me, I am the LAST person who should be leading firefighters into a burning building, or making high-pressure command decisions about dangerous fire situations. (I'm not the first nerdy person to make this point.)

The moral of the Ricci case, for employers, is simple: get the test right the first time. If you screw up, like New Haven did, and use a bad test that you never bothered to test for job-relatedness and that has a racial disparate impact, DON'T go back and try to fix it. Just take the hit, go ahead and promote a bunch of people with relatives on the force and lots of fire-science books at home who may not be any good at commanding other firefighters in life-and-death situations, hope it works out okay, and come up with a better test for next time.

Justice Ginsburg noted that almost no fire departments around the country are a written knowledge test for 60% of their promotions criteria anymore. They haven't for many years, in fact. Hopefully New Haven will get with the program and do what the rest of the country does for its next tests (assessment centers that actually test who would be better at leading other firefighters in life-and-death situations). Evidence suggests that these better tests will also have much less of a racial disparate impact -- and less of a tendency to produce family dynasties of firefighters who pass on insider knowledge to their sons and nephews.

I love Yalies. You'll jump through hoops to try to justify institutional racism as an antidote to past racism. The use of race as a criterion in the workplace is a terrible mistake that only prolongs racial tensions. It really doesn't matter how many of X group or Y group is in a given workplace. We're all AMERICANS and, as such, should all be given an equal and fair shake at whatever we chose to do.

The use of race as an ameliorating circumstance is... well... racist. What about the disadvantaged whites, or the privileged blacks who get doubly penalized or rewarded respectively?

I enjoyed the comments by "Yale Law grad", reminded me of the saying, when the facts are against you, argue the law..

the facts are the City of New Haven hired an outside firm (which had amply minority representation) to devise a job related, non-bias test to administer..

so to claim that "New Haven never made any credible effort to determine whether the promotional exam was a legitimate test of job-related skills" is at best an artful lie.

the statement "promote a bunch of people with relatives on the force and lots of fire-science books at home who may not be any good at commanding other firefighters in life-and-death situations" is the classic strawman argument.

nice try.

Yes, Ginsburg noted that almost no fire departments around the country are a written knowledge test for 60% of their promotions criteria anymore. What she does not say is that the most likely reason for elimination of those written tests is the exact same fear of Title VII litigation that New Haven says motivated it to throw out its test. The Ricci majority opinion, which IS NOW THE LAW (unlike the collection of incoherent brickbats Ginsburg styles her "dissent") specifically holds that fear of litigation is INSUFFICIENT reason to justify racially-based employment decisions. In other words, most of the cities Ginsburg notes that have eliminated written tests have probably done so in violation of the same law New Haven broke. It's telling that Ginsburg does not add what should be the necessary coda to her observation: ..."and the cities with no tests have been shown in many studies to have suffered no decrease in quality (as measured by performance following promotion) and have been shown to be as good as fire departments that have not eliminated those tests in unbiased evaluations using sound methodologies and conducted by reputable, unconflicted experts."

Worse is yet to come for those who advocate subtle racial reasoning and manipulation into employment considerations. Justice Scalia is correct in noting that “The war between disparate impact and equal protection will be waged sooner or later," and much of Title VII and other federal legislation already on the books is pretty clearly destined to lose that war from the signs in the majority Ricci opinion. But the Court is ALSO on the side of a significant majority of voters in this area, as can be seen from the fact that state after state (including California and Michigan) have passed referendums barring racial preferences and other more subtle racial considerations in many areas of state activity, including admissions to state universities. Yes, Congress can overrule the Court’s interpretation of Title VII, but to do so in the face of opposition from both the judiciary and a substantial majority of voters would be more than foolhardy.

Of course, Congress is often more than foolhardy.

One of the best articles I've read tackling the legal points of this case.
Thank you.

The only way that one can interpret "equal protection" to be in conflict with "disparate impact" would be to argue that one race is more qualified than another. Either the races are equal in ability and the "disparate impact" standard protects disadvantaged races from bias inherent in the system, or the races are not equal and "disparate impact" is thus biased against the more capable race.

It's that simple. If you believe that "disparate impact" based standards, from affirmative action to the Ricci case, are "racist," you are arguing that whites are more capable than other races. Think about that for a second. Let's call a spade a spade - this is just the Bell Curve argument all over again without being so explicit about it.

"Instead of defending her panel's quota-friendly rule and its harsh impact on the high-scoring firefighters, (Supreme Court nominee Sonia) Sotomayor and her supporters have argued that she essentially had no choice. The rule that her panel applied had been dictated, they say, by three precedents of her own court, the U.S. Court of Appeals for the 2nd Circuit . . . The bottom line is that 2nd Circuit precedents did not make Sotomayor rule as she did. Supreme Court precedent favored the firefighters. Sotomayor's ruling was her own." --

National Journal Columnist Stuart Taylor Jr., on Judge Sonia Sotomayor's explanation for her decision in the recently overturned Ricci v. deStefano.