In Ricci v DeStefano (2009) the American Supreme Court ruled in a 5 to 4 decision that white firefighters in New Haven, Connecticut were denied promotion based on their race. It has become a well-known case of reverse racism.
Ricci was the lead firefighter in the case; DeStefano was the mayor of New Haven.
This overturns Judge Sotomayor’s decision in a lower court. The case made the press in part because the right was using it to frame Sotomayor as a racist.
The white justices were evenly split, 4 to 4. Clarence Thomas, the only black judge on the court and once the head of the Equal Employment Opportunity Commission under President Reagan, sided with the white firefighters. But he did not write a decision as he often does in civil rights cases.
The decision could make it harder to prove racism in hiring since it will have to be based more on motive (hard to prove) and less on outcome (much easier to show).
In 2003 New Haven gave a test for open positions for lieutenant and captain in its fire department. No blacks scored high enough, even though they had on past tests. New Haven threw out the test fearing blacks would take it to court for using a racist test. Blacks could have done that under Title VII of the Civil Rights Act of 1964 – and most likely would have since the new test favoured whites more than even past tests did.
But it was a no-win: when the city threw out the test, the white firefighters who had scored high took it to court – for reverse racism.
Frank Ricci spent 8 to 13 hours a day studying for the test and spent over $1,000 to buy the books and get them read onto tape since he has trouble reading.
But before you cry for him, first guess how many of the 21 captains in the New Haven fire department are black. Answer: 1. Just one: 5% in a city that is 37% black.
Justice Kennedy, who wrote the decision, joined by Roberts, Alito and Thomas, said that New Haven had no “strong basis in evidence” to fear a lawsuit and, even so:
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.
Justice Ginsburg, writing the dissent, said of the white firefighters:
they had no vested right to promotion. Nor have other persons received promotions in preference to them.
Ginsburg thought New Haven was right to fear a lawsuit. She found it laughable that the city, given its history, was racist against whites.
That the right picked this case to accuse Sotomayor of racism is unfair. First, in most cases regarding racism in employment she rules against blacks and Hispanics. No word about those. Second, in Ricci she was merely part of a panel which let a lower court decision stand. She did not write an opinion as to why.
See also:
Couple of points:
The Second Circuit decision was not made by Judge Sotomayor. It was made by a three-judge panel that included Judge Sotomayor. More, the full Second Circuit panel reviewed the decision and decided not to revise or “re-hear” the matter.
This goes to conservative opposition to Sotomayor’s nomination to the SCOTUS. Conservatives don’t have much foothold here because in general Sotomayor has been somewhat conservative herself.
“since this test favoured whites more than even past tests did” — that was alleged but has not been established. There is also evidence that the City of New Haven went to great lengths to craft a race neutral test, including hiring an outside consultant with expertise in this area. I have not personally reviewed the test, nor have I seen any article or discussion by an actual testing expert on this point.
So-called “Disparate Impact” race discrimination cases arose initially because of of the existence of insidious, unspoken, unwritten understandings between and among whites to exclude blacks from employment. This was (and still is) especially prevalent among the trade unions — plumbers, electricians and such.
Since its creation, though, its use has expanded to become a sort of de facto quota rule. Any time a business entity finds itself with racially disparate results, regardless of the reason, it legitimately fears a “disparate impact” lawsuit. This consideration was the driving force behind the actions of the City of New Haven in the Ricci matter.
For an interesting discussion of the dynamics of the “Disparate Impact” theory at the SCOTUS level, see the link below. The irony is that the Ricci case may make it easier for minorities to maintain “Disparate Impact” cases in the future.
http://www.slate.com/id/2220600/
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Thanks.
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Frankly, the New Haven City should have reviewed the test, question by question if they thought something was wrong. There were in the Catch-22.
Anyway, I guess with Barack Obama being president, Civil Rights are slowly being rolled back. More disparities will show up but now it might be harder to prove. *sigh*
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In the importance of the Sotomayor nomination, the heroes of this story have been lost: Frank Ricci and the diligent firefighters of New Haven, Connecticut. This is a triumph, not merely for them, but for colorblind justice. Ginsburg pointed to the “the starkly disparate results” as “substantial evidence of multiple flaws in the tests New Haven used.” In other words, the mere fact that the test produced different results was proof that it was flawed. Similar reasoning was used to deny the firefighters their promotions, and it was this reasoning that the court struck down in yesterday’s ruling.
While the margin in the decision was razor-thin, it strikes a significant blow in favor of meritocracy in the workplace.
The quota system has never worked and will never work…..Why bother to get a 98 on a test, when another person only has to get a 72 to be qualified for the same job??? The only affirmative action should be in the realm of equal opportunity. If you are black, white, asian, hispanic or whatever…you have the same opportunity to study, work hard and do well on a test as anyone else. Testing and standards for degrees, jobs, positions must remain color blind for them to be truly fair.
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What has been lost in all of the hoopla about Ms. Sotomayor, who is highly qualified to serve as a Supreme Court justice, and Mr. Ricci, who, from what I’ve heard via interviews, ain’t the sharpest knife in the drawer (he had to study 13 hours a day for weeks to pass a firefighter exam?), is the subtle but important legal issue that the SCOTUS majority sidestepped in its result-driven opinion. This area of the law is difficult for employers because of the lack of bright lines. The City of New Haven didn’t discard the test merely because of the result. It discarded the test because it legitimately feared that the result would invite litigation from the black firefighters who did not score high enough to win a promotion. This was a rational business decision by the City. Its Hobson’s Choice was to expose itself to litigation, which would have to be funded by New Haven taxpayers, or discard the test. It opted for what it perceived to be the most fiscally prudent choice.
The SCOTUS ruling was a narrow one. It held that fear of litigation was not a sufficient basis for discarding the test. Now, New Haven’s choices are no longer Hobsonian; they are Sisyphean.
The SCOTUS here had an opportunity to define some bright lines to clarify this complex area of the law. Instead, it blurred already faint, fuzzy lines.
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authority
oops human
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More interesting commentary here:
http://writ.lp.findlaw.com/dorf/20090701.html
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How could any Judge side with racism against another race? This case is obvious and would be obvious to any law student and the only way to discuss this with a law student would be to reverse the colors then when they agree that it is discrimation “against Blacks,” reveal that this is an actual case and AGAINST WHITES! HOW COULD THEY CHANGE THEIR MIND THEN!
THESE FOUR SUPREME COURT JUSTICES KNOW THAT IT IS RACISM BUT THEY VOTED THE WAY THEY DID BECAUSE IF THE VOTE WAS UNANIMOUS, THEN SOTOMAYOR WOULDN’T HAVE A CHANCE IN HELL!
THESE FOUR JUSTICES PLAYED POLITICS WITH THE VOTE PLAIN AND SIMPLE!!! DO WE NEED TO PLAY THE TRICK ON THEM LIKE WE JUST PLAYED ON THE LAW STUDENTS?
JUSTICE OR POLITICS FIRST?
CAN YOU IMAGINE IF AN INTERN, WHO DIDN’T PASS THE TEST, WAS PROMOTED TO “DOCTOR” ONLY TO FILL A QUOTA BASED ON RACE? WOULDN’T YOU LIKE TO KNOW WHO’S OPERATING ON YOU AND WHAT THEIR QUALIFICATIONS ARE?
What was on this test that made it so hard that some couldn’t pass it? ”
What’s that thing you use to get to the upper floors of a burning building?”
“What’s that thing you use to spray water on a burning building?”
If there is a pit-bull and a human, which one do you rescue?”
Are these Blacks still in the fire department? What about firing those who didn’t pass the test? Isn’t that what other companies would do? Aren’t there basic standards and requirements that must be fulfilled to perform the job? IF SOMEONE, NO MATTER THE COLOR, DOESN’T MEET THESE STANDARDS, THEN THEY SHOULD BE LET GO WHICH WILL GIVE SOMEONE ELSE A CHANCE. This will also help OBAMA’S “Create or Save” farce. The person fired will now be unemployed, which he can blame on Bush, but then the person who replaces the fired person, will be on the numbers of those jobs that were “created” which will benefit Obama’s CULT!
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^^^^^^^^^^^^^
You’re losing it, dude.
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wait what was the outcome, it wasn’t clear to me. Did they rule saying yes its reverse racism or no? I don’t get the whole premise…
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Couple of points about the SCOTUS ruling:
1. The trend of recent SCOTUS employment discrimination decisions, led by the conservative justices (mostly Scalia), has been to reduce the showing required of employers to defeat an accusation of discrimination — in other words, to make it more difficult for a plaintiff alleging discrimination to pursue a case. Thus, though the exact facts of Ricci had not been decided by SCOTUS, the extant standard, viewed against the backdrop of the trend, suggested the district court and Second Circuit result (which explains why the majority of that court, plus the district court, ruled as it did)(keep in mind that 21 federal judges ruled on Ricci, with 11 [more than half] ruling consistent with the Sotomayor panel).
2. SCOTUS had to create a new standard to reach its result in Ricci. The fact that SCOTUS created a new standard underscores that, under the extant standard, the Second Circuit’s decision was correct.
3. As noted in a prior post, but for the coincidence that Ricci was white, this was a garden variety discrimination case. Of course, in the vast majority of discrimination cases, the plaintiff is a minority. The new standard created by SCOTUS reversed the prior trend by increasing the showing required of employers to defeat an accusation of discrimination (making it easier for this one class of plaintiffs to pursue a discrimination case), but in the limited circumstance where the employer’s justification is a fear of being sued if it certifies the results of a promotion exam. Why would the SCOTUS create a double standard, for two different classes of discrimination plaintiffs, under these particular facts? Note that nobody questions the legitimacy of the City of New Haven’s fear in this particular case. Note also that, in this unique subset of discrimination cases, there is a higher likelihood that the plaintiff will be white. Thus, we now have two differing standards for employment discrimination cases, and they are distinct along de facto racial lines.
4. Even more unusual than reversing its trend and creating two classes of employment discrimination plaintiffs, SCOTUS departed from normal procedure — which, upon creation of a new standard, would have been to remand to the trial court for an evidentiary hearing under the newly created standard — and simply entered judgment for the plaintiff. This is highly unusual. The record contains no findings of fact by the trial court as to the new standards enunciated by the SCOTUS. Normally, findings of fact are necessary to support any judgment. It certainly raises the question of whether the Ricci case was result-driven more than issue-driven.
5. Ricci. Scalia. Alito. Coincidence? I say this tongue in cheek, but I guarantee you that if the plaintiff had been named Hernandez, and the SCOTUS justices who drove the decision were Sotomayor and Estrada, FreeRepublic would be chockablock with racist invective about the confluence. Wait, I forgot, FreeRepublic is already chockablock with racist invective.
6. Number 5, above, also overlooks the fact that one of Ricci’s co-plaintiffs, Mr. Vargas, was a Latino. I point this out because Sotomayor critics, at least the more conspiracy-theory ones, have tried to draw a loopy, crazy line from the “wise Latina” speech to the Ricci ruling, attempting to conclude that Ricci shows that Sotomayor is racist vs. whites. And Latinos, I guess.
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i think they made the wrong decision. i dont think the white firemen should have won.
i hope it gets reversed….
all i know is, im sick of whites crying reverse racism, when they havent done much to curb racism against blacks yet…
i dont pity whites…they havent even begun to understand what its like.
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another Ricci like case:
http://www.newhavenindependent.org/index.php/archives/entry/ricci_really_redux/
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