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June 30, 2009

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But then again, maybe the firefighters’ description of Kimber pushed Alito’s buttons.

ding ding ding ding

Either way, it’s unseemly for a Supreme Court Justice in 2009 to be writing this stuff.

Unseemly, but not at all surprising.

Ricci and Alito Italian. Kimber not. (Ethnic) solidarity forever!

I suppose his point was that if Kimber were an upstanding citizen (defined as one with Colbertesque race blindness) who was, for some reason, kicked off the board looking into these things... that if he were then able to use his influence to persuade the mayor to persuade the panel behind the scenes not to certify the results... that this would be OK?

I don't really get how Alito can acknowledge in his concurrence that Kimber was kicked off the panel by a mayor who was subsequently unable to resist Kimber's entreaties for interference.

One thing I'm somewhat concerned about is whether this decision could be used as precedent to prevent any affirmative action program as a Title VII violation of White rights. The first thing that comes to mind is the promotion system in the United States military. I'm just glad this was decided as an interpretation of Title VII and not some equal protection claim.

Also, I don't really get the point of calling Alito a racist or whatever. Attack his arguments for being irrelevant, shortsighted, and ad hominem; there's no reason to additionally question his motives... Ginsburg doesn't stoop to this so there's no reason for anyone else to do it.

Well, I don't really want to defend Alito here, but I think there's a less insidious explanation.

Alito's seems to think that the dissent would have decided, without remanding, that no reasonable juror could find a triable issue of fact w/r/t whether the desire to avoid disparate impact liability was pretextual. It's not really his burden to construct the likely scenario, just one that a juror could conceivably believe.

I actually think that's fine, as far as it goes. The problem is that the dissent actually would have remanded (see RBG note 10), so they never really argued that no reasonable juror would find pretext. In that respect, the account is gratuitous.

zach - it's a fair question. but i'm coming around to the yglesias view in that i'm tired of accusations of racism being treated as a milltion times worse than actual racist actions.

Now as far as whether Alito is "racist," I'm not crazy about the term b/c I think it tends to shut down debate. also, it's not very descriptive anymore -- these things exist on a spectrum.

but all that said, i don't think there's any doubt that alito's concurrence has inappropriate racial motivations. whether he's being intentional, or whether he's just revealing subconscious whatever, it seems weird to focus on these specific facts.

and everyone knows exactly the sorts of feelings and hostilities that using words like "race riots", etc. trigger. particularly in a case that is viewed popularly as an "affirmative action" case.

I think it's a very problematic concurrence -- and one that Roberts was wise to avoid

publius --

As Kovarsky notes, you're ignoring the substance of Alito's argument. He is making a claim about what a reasonable jury could have found, not what necessarily occurred. Further, for this reason, what the district court's opinion did or did not say about Kimber is irrelevant, as that opinion granted a motion for summary judgment and did not engage in any fact-finding.

JHA

Yeah; I agree that it certainly seems like that's the case, and that it trades in any number of inflammatory stereotypes. That said, the average person whose buttons are easily pushed by this stuff doesn't spend much time reading USSC concurrences. Alito's only thrilling a small coterie of conservative legal minds who still smart from having to sit in class with people there partly thanks to affirmative action, not pushing white people's buttons in general.

I think the "Alito watches too much of the Wire" idea that's been floated is the most accurate criticism. He's floating a conspiracy theory that meshes with his view of city politics and racial preference that's shared with his colleagues. It's not so much dangerous as sad.

I'd like to note an interesting irony. It used to be that subjective tests in promotion like "Leadership skills, command presence, and the like" because they offered excellent leeway for improper racial considerations to control the process. Original disparate impact analysis pushed everyone towards tests so that they could avoid that.

Now tests are apparently so beyond the pale that Ginsburg writes "Relying heavily on written tests to select fire officers is a questionable practice, to say the least." and strongly suggests the very subjective style that caused disparate impact to come to the fore in the first place.

Also I'm not sure I buy that a 60% weight on a written test as relying too heavily on a written exam. Relying entirely on a written exam, is frowned upon (as Ginsberg cites) but 60% is backing way off entirely.

I'm also more than a little irritated that the expert didn't spend much time analyzing the actual questions, and in fact his testimony specifically failed to criticize any of the questions as being sufficiently non-job related.

At some level, at some point, somewhere, wouldn't it be useful to check that out?

I know this is very general comment, but I hate how legal issues get so narrow that we never find out really basic things that are important for understanding how policies like this actually play out.

Sebastian, normative and legal arguments aside, that's a low bar for irony.

E.g. it's ironic that, before birth control, "casual sex" was transgressive and now with birth control you see people comfortable with -even believing in the normalcy of- "casual" sex, the very behavior that used to be socially sanctioned.

Ginsburg doesn't stoop to this so there's no reason for anyone else to do it.

Because Ginsberg is the epitome of incivility?

Sebastian -

"I'd like to note an interesting irony. It used to be that subjective tests in promotion like "Leadership skills, command presence, and the like" because they offered excellent leeway for improper racial considerations to control the process. Original disparate impact analysis pushed everyone towards tests so that they could avoid that."

I think you are seizing on the proximity of the parenthetical about "leadership skills" to the criticism of the 60/40 written/oral split. You seem to be equating "oral" with "subjective." That's incorrect. IQ tests, for example, are largely "objective" AND orally administered.

Prof Adler - I'm on my phone but I'll quickly respond sloppily. If that's the substance, fine. But how exactly is the mentioning of race riots relevant to that argument. If a jury could rably find influence, why get into all that. And the other stuff.

Publius:

Dude, take a chill pill. As Adler stated above, Alito is simply making the case that summary judgment below (by Sotomayor et al) was simply wrong. To do that, he has to show the facts in the light most favorable to the plaintiffs.

I would understand comments like your (inflammatory and not fairly representing the opinion) from a lay person but it's not appropriate from a law professor of any political stripe. Yet you accuse Alito of being inflammatory. You should be explaining what summary judgment means and why Alito is doing what he is doing. He is saying no such thing about the facts themselves. Yet you call it racially inflammatory for simply citing the record?

He's floating a conspiracy theory that meshes with his view of city politics and racial preference that's shared with his colleagues. It's not so much dangerous as sad.

This is a great summary, but it's potentially both dangerous *and* sad.

From my experience, a whole lot of people have a knee-jerk reaction to American urban politics, and there's just no unpacking it; it's an exemplary definition of prejudice. I would almost object to this being called Alito's 'view', since that word sounds like it's the result of a reasoned assessment. This is stereotyping all the way. The split between the urban and suburban POV is really remarkable in this country; the suburbs are changing, but I don't think it's an exaggeration to say that, for many people in the burbs, the city is a foreign country, just completely alien. Or the Seat of All Evil, in people like Alito's case.

I'd also side-note (non-lawyer here, obviously) that movement conservatives have a literalistic conception of corruption: if it's illegal, like the grubby (mostly) small-time robbery in cities, it's corruption; if it's gigantic, legal corruption, that's fine. In fact, the bigger it is, the more fine it is, so long as it's legal (and of course it usually is, by definition).

BC -

I don't totally agree with Publius, but you are also incorrect in your characterization of Alito's concurrence. He was not "simply making the case that summary judgment below (by Sotomayor et al) was simply wrong."

He was quite explicitly responding to an argument that he attributes to the dissent - that no reasonable juror could find the disparate-impact-avoidance defense pretextual. What is weird about Alito's concurrence is that the dissent does not in fact make that argument; Ginsburg would have remanded on that question.

Justice Alito’s racially inflammatory concurrence doesn’t get any better when you read the lower court opinion (pdf). What’s specifically objectionable is not so much the reference to Kimber, but the needlessly inflammatory description of him.

Since when is the appellate court limited to consideration of the lower court opinion? there is such a thing as the RECORD, you know. If there were evidence of him referencing things outside the record, you might have a point.

Alito starts his factual recitation stating "This admission finds ample support in the record." The admission is that by the district court that a reasonable jury could infer that the city worked behind the scenes to sabotage the certification (without actually considering whether the exam was proper). Everything from there on seems to be the record.


Also I'm not sure I buy that a 60% weight on a written test as relying too heavily on a written exam

So where does the union enter into this? They represented the firefighters and apparently helped determine the testing conditions (the opinion refers to a "decades old" mou/cba that mandated a certain written percentage on the exam). If there was a problem with the structure, you would think they would take some action.

Kovarsky:

Ginsburg would have remanded on that question.

Maybe I'm missing something. I was confused when I read fn 10 in her dissent as it was not clear on what the remand would be. She then later explains at the end but essentially argues against remand on the pretext issue. I'll have to go back and read it again, but I thought her discussion re remand was very confusing. She ends up speaking very favorably of the district court's finding of no genuine dispute. She seems to say that an assertion of "political motivation" insulates the city from consideration of pretext by a jury. I don't agree, and neither did Alito. So, on first read, I think Alito's opinion was non-gratuitous.

I would agree that his recitation would not be all that appropriate if Ginsberg were agreeing that summary judgment was improper, but that is not what she is saying, from what I can tell.

Adler sayeth: . . . you're ignoring the substance of Alito's argument.

Dude, you're ignoring the entire point of publius' argument. The point is that all Alito's hand-waving ridiculousness about Kimber's . . . er . . . blackness . . . is completely immaterial to Alito's "argument" -- such as it is. Now, personally I think it's cute that you think that Alito actually has an argument, and it speaks highly of your upbringing that you give him the benefit of the doubt. But even granting that Alito has a point, and especially if his point is what you describe, it certainly bears no relationship to his description of Kimber.

In other words, thank you for bolstering publius' point by distilling the Alito's argument so as to make his rantings even less palatable.

C.S. -

Ummm . . . no. Insofar as a jury cold have found that the city was motivated by racial politics, rather than its purported desire to avoid a Title VII disparate impact suit, summary judgment was inappropriate. Therefore, the facts Alito describes are not immaterial.

JHA

I haven't seen it noted here that Alito's quotation is a little dishonest. Alito is quoting a Plaintiff's memo as if it were unquoted text in the District Court decision. The District Court opinion continues to note that while a jury may see meddling by the city, that it is not logical to infer that this led to discrimination against Ricci by the CSB. The District Court doesn't claim that a jury would see the CSB decision as a pretext for appeasing the Black power structure, but rather as an act that heads off potential adverse impact and in doing so appeases Black political leaders.

Alito's having it both ways -- he says that his court proves that there's no evidence supporting an adverse impact concern, but that a reasonable jury could see expression of such a concern as a pretext. The District Court says that a reasonable jury could find evidence for adverse impact and could see an additional motive by some defendants (not necessarily the CSB). Alito's interpretation is that the District Court says that a reasonable jury could find that the CSB justification was merely a pretext for placating an angry Black man. He picks one of two findings by the District Court and distorts it severely, inventing support for his conspiratorial narrative where there isn't any.

CS -

I am not clear what you are saying. The point is that the CSB's invalidation of the test is consistent with two different explanations:

(1) A politically important racial constituency (a crude phrase, I admit) is pissed off at the results, and gets them thrown out without any further inquiry. This would be facially impermissible disparate-treatment under Title VII.

(2) The CSB realized that it was creating the disparate impact without a legitimate business reason, and that there were viable, alternative means of testing candidacy that did not have similarly disparate impacts.

Alito believes (albeit incorrectly) that the dissent is arguing that no reasonable juror could ever believe (1) (the appellate standard for review of a summary judgment motion). To conduct that inquiry, you are supposed to view the facts in the light most favorable to the non-movant. What you are calling his "ranting" is his attempt to explain what a juror could conceivably believe. All that Kimber stuff is in the briefing, I believe. I think JHA's point is that it's not relevant whether it's in the Second Circuit opinion, because it's still in the summary judgment record.

In the end, I wouldn't side with Alito's account of local racial politics, but it's hardly beyond the pale in the sense that would bar a trial of fact issues on it.

What is weird about Alito's concurrence is that the dissent does not in fact make that argument

Alito may have originally been responding to a prior draft of the dissent, and did not think the changes significant enough to warrant reworking his own product.

BC,

"Maybe I'm missing something. I was confused when I read fn 10 in her dissent as it was not clear on what the remand would be. She then later explains at the end but essentially argues against remand on the pretext issue."

I understand it as follows. Basically, the Second Circuit looked at the subjective intent of the CSB in deciding to ditch the test results. It concluded that, because it intended/good-faith-believed that it would be subject to disparate impact litigation, it was entitled to summary judgment. Ginsburg doesn't endorse the subjective intent standard. She wants a mroe objecive "good cause" standard. She's saying that she would have remanded for an evidentiary determination under that more objective standard. She goes on to explain that, because the majority decided the case under its newly-announced standard, she would go ahead and explain how she would have decided the case under her good cause standard (even though she would prefer a remand).

JHA: How are the following facts Alito introduces from record relevant ...
- "He continues to call whites racist if they question his actions."
- Mayor DeStafano testified to Kimber's character (this means DeStafano owes him something?) when Kimber was charged with various acts of high assholery.
- Kimber has many ties to the community and is a good political organizer

I guess the point is that DeStafano was maneuvering behind the scenes on Kimber's behalf *and* Kimber scared the CSB into deciding his way because of his decades-long career of being a scary Black guy?

DeStefano's testimony to Kimber's character is the most puzzling. All this says, objectively, is that DeStefano thought he was a good guy in 1996. That's it. If anything, one could imagine that Kimber owes DeStefano something... such as maybe not threatening a race riot in his city or whatever. There's no way for a reasonable jury to interpret that as evidence that DeStefano could be persuaded to pressure the CSB on Kimber's behalf a decade later. Certainly the specifics of Kimber's alleged crime aren't remotely relevant.

Zach --

Two points.

On your 3:26 comment, there's nothing dishonest about Alito's quotes. He's noting what a jury could have found, and a reasonable jury could certainly have found the facts to be as the plaintiffs asserted. What the district court did or did not say is irrelevant, as the district court did not do any fact-finding (indeed, that's part of the point -- the district court pretended as if it did not matter what a reasonable jury could have found). The district court found that, as a matter of law, the city's stated concern for a potential disparate impact suit was enough to justify their decision, period, so long as the test results provided a prime facie case of disparate impact.

As for your 3:42 post, an attorney seeking to convince a jury that the city was motivated by racial politics, rather than by fear of a disparate impact suit, would certainly seek to establish that some of those involved (like the mayor, who threatened to prevent certification irrespective of the CSB's determination) were likely to be responsive to racial politics, and the fact Alito describes could certainly be relevant (and no less relevant than claims about discrimination in fire departments some 35 years ago).

JHA

Insofar as a jury cold have found that the city was motivated by racial politics, rather than its purported desire to avoid a Title VII disparate impact suit, summary judgment was inappropriate.

Oh, well, good thing the Court remanded the case back for evidentiary finding and application of their brand-new standard, then.

Ginsburg doesn't stoop to this so there's no reason for anyone else to do it.

Because Ginsberg is the epitome of incivility?

No, no, obviously Douglas Ginsburg didn't stoop to it.

From the District Court Opinion: "Plaintiffs argue that “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, the Mayor would incur the wrath of Kimber and other influential leaders of New Haven’s African-American community.” Pl. Mem. in Opp. at 73.

While a jury could make such an inference, it would not lead to the conclusion that plaintiffs’ First Amendment right to freedom of association was violated as a matter of law."

Alito's words: But even the District Court admitted that “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, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.”

See note 21 in the dissent. Like I said, a little dishonest. There's also a difference between saying a reasonable jury could find that the mayor was acting on Kimber's behalf and finding that the CSB was acting under pressure from Kimber. The District Court is addressing whether the mayor and related folks interfered with Ricci's freedom of assembly, not whether he engineered the CSB decision. Alito suggests that the District Court is commenting on the CSB's deliberative process when it is actually commenting on the mayor's actions and possible motivations.

Whether the mayor threatened to do something regardless of the CSB's determination is also irrelevant to whether the CSB was acting on some pretext. Indeed, if the CSB knew about this, they would be more free to act on the facts absent pressure from the mayor. Put his ass on the line instead.

Yeah; I agree that it certainly seems like that's the case, and that it trades in any number of inflammatory stereotypes. That said, the average person whose buttons are easily pushed by this stuff doesn't spend much time reading USSC concurrences.

Yes, hardly anyone pays attention to what the Supreme Court decides. Further, no one would ever use loaded language from a SCOTUS decision to achieve their own political ends, and even if such a person did exist, they would still have a hard time finding financial backing and a media venue to launch such an effort.

Alito might as well have written his concurrence on a bathroom wall for all the effect it will have, right?

Crafty Trilobite:

"Alito may have originally been responding to a prior draft of the dissent, and did not think the changes significant enough to warrant reworking his own product. "

I agree.

@willf - Exactly what is Alito going to achieve if he's intentionally pushing white people's buttons in inflammatory ways? The means there lack an ends. No one's saying the *decision* isn't important. I just don't see the objective impact of a racially inflammatory concurrence. The only people it inflames are those who already share (share with a rational jury and not with Alito, of course!) a fear of black urban powers threatening accusations of racism (oh no!) against anyone who dares cross their path and who also read USSC concurrences. I'd be interested if any of those people, who tend to have outsized influence, bring up Kimber's supposed meddling in public and the various issues addressed in the dissent and concurrence.

I much prefer Tom Wolfe's version of "Mau-Mauing the Flak Catchers" to Sam Alito's.

Kovarsky:

She's saying that she would have remanded for an evidentiary determination under that more objective standard. She goes on to explain that, because the majority decided the case under its newly-announced standard, she would go ahead and explain how she would have decided the case under her good cause standard (even though she would prefer a remand).

I got that much, but then she goes on and on about the facts and then concludes:

Perhaps the District Court could have been more expansive in its discussion of these issues, but its conclusions appear entirely consistent with the record before it.

How do you interpret that? The record before it was the same record on appeal, presumably (except for the judicial notice Ginsberg treats herself to (actually, I shouldn't say that since someone might have requested it)). I take that as saying summary judgment was appropriate in spite of her "oh, I would remand."

I do see the nuance that she might kick it out if the city couldn't show "good cause." Then, I guess, Alito's comments would be potentially superfluous. But Alito would still be in his rights to say, as he does, "even if you are right, the plaintiffs get to a jury." She is saying no, that if she's right and the city shoes good cause, end of story. I think.

And I don't buy her "oh, gee, if it's politically motivated it's not discrimination" line. If your constituency wants to discriminate, then trying to please them through official action is discriminatory.

Here, the only non-discriminatory thing would have been to verify the test, and the City didn't really do that. Their expert, looking at the facts most favorable to plaintiffs, never looked at the test and sucked up to get a contract. It's one thing to say 60/40 tests TEND to not favor minorities and there are GENERALLY better ways to do it, but all the City had to do was verify it. And not (again, looking at the facts through plaintiff's eyes) manipulate the presentation to the CSB to generate the intended result.

Alito may have originally been responding to a prior draft of the dissent

This might explain part of it, and I've never clerked at that level, but I understand they have a pretty good idea of what's going to happen before they put pen to paper.

Here, the only non-discriminatory thing would have been to verify the test

It's sad to think of all those years and dollars wasted, and it was just a matter of objective fact from the get-go. If only you had spoken up earlier, ideally before Bushey v. New York State Civil Service Commission was decided.

Alito can understand and empathize with ethic groups -- IF they're Italian.

Sheesh. and THIS guy has a lifetime appointment.

Previous Supreme Court precedent said that if a test had a "disparate impact," the user (ie. New Haven) had to prove the test was job related.

Is that so bad?

The "conservative" justices just overturned Supreme Court precedent. So much for "don't make law."

"Previous Supreme Court precedent said that if a test had a "disparate impact," the user (ie. New Haven) had to prove the test was job related."

And that is still the rule. The investigation did not find that the test was unrelated to the job.

John F. Blevins,

I find the tone of this post sanctimonious.

Mayor DeStefano is the DeStefano whose name appears on the opinion, and I cannot confirm on Westlaw but believe that Kimber was also a named party in this litigation. I think this belies the fact that their conduct was irrelevant to deciding the case. What Kimber did he was engage in a conspiracy to deny the civil rights of the white firefighters. All Alito did was point this out, and mention that Kimber is a perjuring thug who steals from old ladies. While this may be politically incorrect to point out, if you were on the other ideological side of this issue you would believe that the Alito's concurrence was warranted and that "sunlight is the best disinfectant."

The conduct that Alito's concurrence points out, and not the fact that he points it out, is what is unseemly here. The concurrence details what look like corrupt and unfair tactics by city leaders who wanted the tests results scrapped. They did such unseemly things as calling those supporting certifying the test results klansmen, and used raw political pressure to scrap the test in an entirely results oriented manner which disregarded the merits of the test.

Doing so was pretext, and showed no respect for the reliance interest of the white firefighters on the test. The test may have been imperfect but it is hard to argue that the test was racist or unrelated to firefighting.

What Kimber did he was engage in a conspiracy to deny the civil rights of the white firefighters.

Oh, yes, obviously. That's not even remotely disputable. He successfully put pressure on the Tooth Fairy, too.

Previous Supreme Court precedent said that if a test had a "disparate impact," the user (ie. New Haven) had to prove the test was job related."

The previous precedent was a Second Circuit one, and Bushey explicitly notes that "could" isn't the same thing as "had to":

In other words, the district judge ruled that before taking steps to rectify a perceived violation of Title VII, the State, as an employer, had to meet two burdens--first establish a prima facie case of discrimination and then prove that such prima facie case was not rebuttable through job-related explanations. We hold that, in the context of this case, the imposition of the latter burden on a party seeking to comply voluntarily with Title VII is contrary to the case law and the statute's underlying policy.

Monday's new standard overturns this, and establishes the latter burden as a requirement. Whereupon the majority found for the plaintiffs without remanding the case in order to employ the standard, since Alito and his peers found the plaintiffs' assertions sufficiently convincing (not merely "reasonable" enough to make summary judgment inappropriate).

@Neil

Failing to see how character testimony a decade ago and stealing from old ladies is remotely proof of conspiracy. It's not a question of whether people were mean, it's a question of whether the CSB decision was intentionally making up a disparate impact concern as a pretext for pleasing Kimber.

As far as the Klansman remark goes, they person who allegedly uttered it isn't a defendant in the case (he was a firefighter up for promotion)... although he apparently has strong ties to the mayor's office and is part of this vast, black conspiracy. Because you know when black people don't get what they want they just call in Al Sharpton and start yelling, "racist!"

Also, outing is so edgy!

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