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High Court Overturns Ricci: Bad News for Sotomayor?

Obama's nominee for the Supreme Court will now be forced to answer questions about her views on affirmative action.

by
Clarice Feldman

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June 30, 2009 - 12:09 am
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Today, the Supreme Court decided (pdf required) that New Haven violated Title VII of the Civil Rights Act of 1964 in refusing to promote firefighters who’d passed an objectively written and fairly administered exam because no minority firefighters made the grade.

The case, Ricci v. De Stefano, is an important one in the dossier of the president’s nominee for the upcoming vacancy on the court, Sonia Sotomayor, who, while on the Second Circuit, joined the majority in the now reversed opinion.

Undoubtedly the Obama administration was hoping to have the pendency of the Ricci case before the Supreme Court to use as a barrier, blocking her from responding to any questions about her views on affirmative action. But today’s decision makes it unlikely she can continue to hide behind that excuse. It’s now settled law, and she is free to discuss how she interprets it and whether she would agree to uphold it after having taken a contrary position.

Briefly, Judge Kennedy wrote the 5-4 opinion while concurrences were filed by Judge Scalia and Chief Justice Roberts.

Kennedy’s opinion can be fairly summarized as this:

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. In light of our ruling under the statutes, we need not reach the question whether respondents’ actions may have violated the Equal Protection Clause. …

In other words, there is no evidence — let alone the required strong basis in evidence — that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. The City’s discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim.

Justice Scalia asks whether we cannot just move on already from the whole issue of racial quotas and simply rely on the constitutional guarantee of equal treatment. And Chief Justice Roberts is critical of the dissent’s manipulation of the facts, noting under no theory of the case could the city prevail under any points of relevant law:

I join the Court’s opinion in full. I write separately only because the dissent, while claiming that “[t]he Court’s recitation of the facts leaves out important parts of the story,” post, at 2 (opinion of GINSBURG, J.), provides an incomplete description of the events that led to New Haven’s decision to reject the results of its exam. The dissent’s omissions are important because, when all of the evidence in the record is taken into account, it is clear that, even if the legal analysis in Parts II and III–A of the dissent we re accepted, affirmance of the decision below is untenable.

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