Monday, June 29, 2009

Ricci - The Rest Of The Story

The Supreme Court, in deciding the case of Ricci v. Destefano yesterday, held that, while employers have a duty to make their hiring criteria racially neutral, once they have done that, they can't use race as a basis to disregard merit. This decision . . .

. . . should significantly impact those class of claims where no actual racism is shown but claims of racisim are made on the basis of statistics;

. . . will make it harder for plaintiffs to prevail in "disparate impact" claims and should significantly curb the practice of employers caving to the demands of race baiters;

. . . may well have an important effect in areas outside of employer-employee law where such statistical evaluations of race are used, such as in college admissions and, of critical importance, under the Community Reinvestment Act;

. . . marks a step towards answering whether and to what extent affirmative action is Constitutional under the Equal Protection Clause.

. . . looks bad for Sotomayor but will not by itself derail her nomination.

. . . the little publicized facts of Ricci are that vile race baiting and blatant reverse discrimination were the driving forces behind the City's decision to throw out the test results in that case. The claim of potential liability for disparate impact was a pretext.


The Ricci case was brought by some white and Hispanic firefighters from New Haven, Connecticut under Title VII and the Equal Protection Clause. The firefighters had passed a promotion test that the City refused to certify because no blacks had scored high enough to also be promoted.

The penultimate issue is whether using race as a discrimating factor is constitutional under the Equal Protection Clause. The Supreme Court did not reach that issue, limiting its holding to Title VII law. But as Justice Scalia noted, the case marks a step towards "the evil day" when the Court will have to answer that question.

Title VII allows two ways to prove discrimination. One is actual discrimination against a specific individual. In the legalese of Title VII, that is called "disparate treatment."

The second way is to prove discrimination under Title VII is statistically. If the overall process of hiring and promoting results in minorities being underrepresented, then it raises what is called a "disparate impact" claim. Once a plaintiff statistically shows a disparate impacat, then the employer has to show that the criteria it used was racially neutral and business related. If the employer can show this, then the plaintiff can only prevail if he or she shows that there was an equally viable test or criteria that would not have resulted in the disparate impact.

On the facts of Ricci, it was clear that New Haven took great care to insure that the hiring process would be racially neutral and carefully tailored to question on the most important topics relating to fire fighting duties. The people that were hired to design the test came to New Haven, engaged in extensive interviews and ride alongs, and when they developed the questions, they oversampled minorities to insure that the questions would not inadvertently favor whites. As to the boards for the oral exams, the people that sat on the boards were fire dept. senior personel from outside New Haven, two thirds of whom were minorities.

In short, the City had adopted a hiring criteria that resulted in situation where a minority plaintiff could bring suit and prove a prima facie case of disparate impact because no minorities scored high enough to be promoted. However, to toss the test based simply on this fact would be an unlawful act of racism / "disparate treatment" against those people who passed the test. And that was precisely what the Supreme Court said an employer cannot do. An employer can now only lawfully throw out tests and start over if they can show "a strong basis in evidence that the test was deficient . . ."

The general consensus is that this will make it harder to prove "disparate impact" claims. Further, it should significantly curb the practice of employers caving to the demands of race baiters when they have acted reasonably and without discriminatory intent - which actually is what went on Ricci. I cover those facts in detail at the end of this post.

The decision should also impact outside of employer-employee arena, in areas such as college admissions. Additionally, it might well have an impact on banks and mortgage lenders under the Community Reinvestment Act - that piece of ill advised legislation at the very center of our economic meltdown. The CRA now includes provisions that use statistical analysis to punish banks who have not made "sufficient" loans to minorities, irrespective of whether neutral lending criteria was followed in each and every loan decision. Obama has proposed vastly expanding the CRA under his proposal for massive regulation of our financial sector. But I see no reason that the Ricci decision would not also apply in the banking context.

As to Justice Sotomayor, this Ed Whelan at NRO

Judge Sotomayor thought it appropriate to use an unpublished summary order to dispose of the claims of the New Haven firefighters in Ricci v. DeStefano. Today the Supreme Court issued 93 pages of opinions in the case that Sotomayor acted to bury.

Further, although there is a sharp 5-4 divide among the justices, not a single justice thought that Judge Sotomayor acted correctly in granting summary judgment for the City of New Haven.

All of that is true, but the bottom line is that this was a split decision and trying to make the fine point that there is a significant difference between Sotomayor's handling of the case and the position of the four dissenters will likely be lost in the spin.

Justice Ginsburg wrote a dissent in essence arguing for the good to be had from practicing reverse discrimination in the future to atone for original sins of our forebearers. Richard Epstein does a good job of fisking her stroll down memory lane.

On a final note, the facts of this case are far more objectionable than I have ever seen in the MSM stories covering it. The City threw out the test not simply out of fear of being sued disparate impact. Reverse racism played a predominant and ugly role. Justice Alito tells us the rest of the story in his concurring opinion.

This story is, I think, truly typical of the split in the African American community. You see on one side the majority of the african american community who take no substantial part in identity politics. On the other side are those for whom identity politics defines everything. Thus, in this case, the vast majority of African Americans who were involved in the hiring process thought it fair and that the results should be certified. Where you get the vile reverse racism is from a race baiting community organizer/Rev. Wright style preacher and a left wing Mayor who feeds the preacher in return for votes.

Here are the facts from Justic Alito's opinion minus the citations:

. . . “[A] jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, theMayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.”

This admission finds ample support in the record. Reverend Boise Kimber . . . is a politically powerful New Haven pastor and a self-professed “‘kingmaker.’” On one occasion, “[i]n front of TV cameras, he threatened a race riot duringthe murder trial of the black man arrested for killing white Yalie Christian Prince. He continues to call whites racist if they question his actions.”

Reverend Kimber’s personal ties with seven-term New Haven Mayor John DeStefano (Mayor) stretch back more than a decade. In 1996, for example, Mayor DeStefano testified for Rev. Kimber as a character witness when Rev. Kimber — then the manager of a funeral home — was prosecuted and convicted for stealing prepaid funeral expenses from an elderly woman and then lying about the matter under oath. “Reverend Kimber has played a leadership role in all of Mayor DeStefano’s political campaigns, [and] is considered a valuable political supporter and vote-getter.” According to the Mayor’s former campaign manager (who is currently his executive assistant), Rev. Kimber is an invaluable political asset because “[h]e’s very good at organizing people and putting together field operations, as a result of his ties to labor, his prominence in the religious community and his long-standing commitment to roots.”

In 2002, the Mayor picked Rev. Kimber to serve as the Chairman of the New Haven Board of Fire Commissioners (BFC), “despite the fact that he had no experience in the profession, fire administration, [or] municipal management.” In that capacity, Rev. Kimber told fire fighters that certain new recruits would not be hired because “‘they just have too many vowels in their name[s].’” After protests about this comment, Rev. Kimber stepped down as chairman of the BFC, but he remained on the BFC and retained “a direct line to the mayor.”

Almost immediately after the test results were revealed in “early January” 2004, Rev. Kimber called the City’s Chief Administrative Officer, Karen Dubois-Walton, who “acts ‘on behalf of the Mayor.’” Dubois Walton and Rev. Kimber met privately in her office because he wanted “to express his opinion” about the test results and “to have some influence” over the City’s response. . . . Rev. Kimber adamantly opposed certification of the test results . . .

On January 12, 2004, Tina Burgett (the director of theCity’s Department of Human Resources) sent an e-mail toDubois-Walton to coordinate the City’s response to the test results. Burgett wanted to clarify that the City’s executive officials would meet “sans the Chief, and that once we had a better fix on the next steps we would meet with theMayor (possibly) and then the two Chiefs.” The “two Chiefs” are Fire Chief William Grant (who is white) and Assistant Fire Chief Ronald Dumas (who is African-American). Both chiefs believed that the test results should be certified.

Petitioners allege, and the record suggests, that the Mayor and his staff colluded “sans the Chief[s]” because “the defendants did not want Grant’s or Dumas’ views to be publicly known; accordingly both men were prevented by the Mayor and his staff from making any statements regarding the matter.” The next day, on January 13, 2004, Chad Legel, who had designed the tests, flew from Chicago to New Haven to meet with Dubois-Walton, Burgett, and Thomas Ude, the City’s corporate counsel. “Legel outlined the merits of the examination and why city officials should be confident in the validity of the results.” But according to Legel, Dubois-Walton was “argumentative”and apparently had already made up her mind that the tests were “‘discriminatory.’” Again according to Legel, “[a] theme” of the meeting was “the political and racial overtones of what was going on in the City.” “Legel came away from the January 13, 2004 meeting with the impression that defendants were already leaning toward discarding the examination results.”

On January 22, 2004, the Civil Service Board (CSB orBoard) convened its first public meeting. Almost immediately, Rev. Kimber began to exert political pressure on the CSB. He began a loud, minutes-long outburst that required the CSB Chairman to shout him down and hold him out of order three times. Reverend Kimber protested the public meeting, arguing that he and the other fire commissioners should first be allowed to meet with the CSB in private.

Four days after the CSB’s first meeting, Mayor DeStefano’s executive aide sent an e-mail to Dubois-Walton, Burgett, and Ude. The message clearly indicated that the Mayor had made up his mind to oppose certification of the test results but nevertheless wanted to conceal that fact from the public:

“I wanted to make sure we are all on the same pagefor this meeting tomorrow. . . . [L]et’s remember, that these folks are not against certification yet. So we can’t go in and tell them that is our position; we have to deliberate and arrive there as the fairest and most cogent outcome.”

On February 5, 2004, the CSB convened its second public meeting. Reverend Kimber again testified and threatened the CSB with political recriminations if they voted to certify the test results:

“I look at this [Board] tonight. I look at three whites
and one Hispanic and no blacks. . . . I would hope that you would not put yourself in this type of position, a political ramification that may come back upon you as
you sit on this [Board] and decide the future of a department and the future of those who are being promoted.

One of the CSB members “t[ook] great offense” because he believed that Rev. Kimber “consider[ed] [him] a bigot because [his] face is white.” The offended CSB member eventually voted not to certify the test results.

One of Rev. Kimber’s “friends and allies,” Lieutenant Gary Tinney, also exacerbated racial tensions before the CSB. After some firefighters applauded in support of certifying the test results, “Lt. Tinney exclaimed, ‘Listen to the Klansmen behind us.’” Id., at 225a. Tinney also has strong ties to the Mayor’s office. After learning that he had not scored well enough on the captain’s exam to earn a promotion, Tinney called Dubois-Walton and arranged a meeting in her office. Tinney alleged that the white firefighters had cheated on their exams — an accusation that Dubois-Walton conveyed to the Board without first conducting an investigation into its veracity. The allegation turned out to be baseless.

Dubois-Walton never retracted the cheating allegation, but she and other executive officials testified several times before the CSB. In accordance with directions from the Mayor’s office to make the CSB meetings appear deliberative, executive officials remained publicly uncommitted about certification — while simultaneously “work[ing] as a team” behind closed doors with the secretary of the CSB to devise a political message that would convince the CSB to vote against certification. At the public CSB meeting on March 11, 2004, for example, Corporation Counsel Ude bristled at one board member’s suggestion that City officials were recommending against certifying the test results. . . . But within days of making that public statement, Ude privately told other members of the Mayor’s team “the ONLY way we get to adecision not to certify is” to focus on something other than “a big discussion re: adverse impact” law.

As part of its effort to deflect attention from the specifics of the test, the City relied heavily on the testimony of Dr.Christopher Hornick, who is one of Chad Legel’s competitors in the test-development business. Hornick never “stud[ied] the test [that Legel developed] at length or in detail,” but Hornick did review and rely upon literature sent to him by Burgett to criticize Legel’s test. For example, Hornick “noted in the literature that [Burgett] sent that the test was not customized to the New Haven Fire Department.” The Chairman of the CSB immediately corrected Hornick. . . . Hornick also relied on newspaper accounts — again, sent to him by Burgett — pertaining to the controversy surrounding the certification decision. Although Hornick again admitted that he had no knowledge about the actual test that Legel had developed and that the City had administered, the City repeatedly relied upon Hornick as a testing “guru” and, in the CSB Chairman’s words, “the City ke[pt]quoting him as a person that we should rely upon more than anybody else [to conclude that there] is a better way — a better mousetrap.” Dubois-Walton later admitted that the City rewarded Hornick for his testimony by hiring him to develop and administer an alternative test.

At some point prior to the CSB’s public meeting on March 18, 2004, the Mayor decided to use his executive authority to disregard the test results — even if the CSB ultimately voted to certify them. Accordingly, on the evening of March 17th, Dubois-Walton sent an e-mail to the Mayor, the Mayor’s executive assistant, Burgett, and attorney Ude, attaching two alternative press releases. The first would be issued if the CSB voted not to certify the test results; the second would be issued (and would explain the Mayor’s invocationof his executive authority) if the CSB voted to certify the test results. Half an hour after Dubois-Walton circulated the alternative drafts, Burgett replied: “[W]ell, that seems to say it all. Let’s hope draft #2 hits the shredder tomorrow nite.”

Soon after the CSB voted against certification, Mayor DeStefano appeared at a dinner event and “took credit for the scu[tt]ling of the examination results.”

Those are some ugly facts indeed, but are hardly unique. To the contrary, this fact pattern is often seen with the race baiting crowd, from Al Sharpton, to Jeremiah Wright to Jesse Jackson, etc. They have suffered a significant blow as a result of Ricci. They only bad thing about this decision is that it was a 5-4 split. Should we lose any of the conservative justices, instead of equal protection of the laws, we will have reverse discrimination ensconced as Constitutional law. God please save the Court . . . at least through 2012.

1 comment:

OBloodyHell said...

> God please save the Court . . . at least through 2012.

Or at least through past 2010, after which it may be possible to stonewall any such decision until after 2012...