« Not So Long Ago | Main | Justice Alito's Disgraceful Concurrence »

June 29, 2009

Comments


To do some throat clearing, I agree that the Alito concurrence is bunk, and I agree that a pure minimalist would remand with the new standard. That being said, there is absolutely nothing unusual about the Court deciding the potentially litigable fact issue rather than remanding for trial. It happens all the time. There have to be at least 20 decisions per term where part of a dissent involves a complaint that majority announced a standard AND applied it, rather than just remanding once the standard was announced. I'm not sure how much a "norm" is really being violated by failing to remand.

Also, the case was up on a cross-motion for summary judgment, so the Court presumably viewed the evidence in the light most favorable to the City. I disagree that they couldn't make out a pretty good case, but I don't think it's beyond that pale to say that, if you're going to use this strong-basis-in-evidence standard, they just can't win.

Of course, there are other elements of hypocrisy here. For starters, The Scalia-Thomas axis of super-determinacy endorses a "strong-basis-in-evidence" standard for allowing an employer to assert the "fear of disparate impact liability" defense. I can just imagine how batshit fucking crazy the two of them would go if a similar standard were announced in, say, a Fourth Amendment case. The sky would fall because there would be no clear ex ante rule to which parties could conform their conduct.

Also, I might be missing something, but it seems that a whole lot of the decision making in this case was distorted to avoid the equal protection question. If the Court decides the statutory question favorably, then maybe the case comes back up on an equal protection challenge. There's little evidence supporting my pet theory all over the place, including the fact that the dissent (and I HATE to agree with david bernstein) strangely did not address the EP argument after they argued that the action was legal under Title VII. I also think that's why Scalia writes expressly to agree with the Court's decision to punt that issue in this case, even though everyone know's he's chomping at the bit to use it to spike the '91 amendments to Title VII.

"But my take is that Ricci is an extremely political opinion – and a deeply flawed one at that. Simply put, it’s politics masquerading as legal doctrine."

Considering our previous discussions, it is difficult to swallow this. In your operative theory of the law, everything is politics masquerading as legal doctrine. So why is this any worse than any other?

"Conservatives like Roberts don’t really (in their heart of hearts) think racial discrimination is a problem anymore. "

This is interesting speculation. How did you get into their heart of hearts? Do you include Kennedy in this too by the way?

"First, there is the threshold question of whether New Haven rejected the tests “because of” race (i.e., whether it was clearly “disparate treatment”). The Court summarily said “yes,” and then proceeded with the subsequent analysis. But the answer isn’t nearly as clear as the Court claimed. As Ginsburg explained, New Haven could have rejected the tests because of various potential flaws."

No, Ginsburg isn't right about this. They purposely didn't investigate why the test had a disparate impact. They threw it out to avoid all that. But they did hire a firm to make sure that it wasn't discriminatory when written.

"The second and third points in the analysis, however, are examples of inappropriate politics (Category #2). To make a long story short, the Court reached decisions it should never have reached, and that it could not procedurally reach at this early stage of the litigation.

To begin, there was the decision not to remand. Remember that the Court announced a new (and demanding) standard regarding when employers can justify decisions based on fear of disparate-impact litigation. The appropriate response (at the summary judgment stage) would have been to send the case back down to let the lower courts take a crack under the newly-announced standard."

This is an amazing turn of argument. Just weeks ago there weren't any questions of fact to be found in the case, which is why it was dismissed on summary judgment in the first place.

Now I tend to agree with you NOW that there are indeed facts that are in dispute, and that the Supreme Court should have allowed them to be tried.

In all previous discussions of Sotomayor and/or the Ricci case the liberal consensus was that there were no facts in dispute which is why summary judgment was so gosh darn appropriate for Sotomayor to agree with. The facts which are dispositive in the new test aren't any less disputed than the facts which were disputed under the misapplied old test. Were you the only liberal commenter who thought there were important factual disputes? Why were you so quiet about that during those discussions. You appear in the comments, why didn't you mention it before? Politics perhaps?

"The legal disputes here were incredibly fact-intensive – and the record was full of material factual disputes that cut to the very heart of the legal issues. In short, the case needed to go to trial."

Zoink!?!?!? Seriously? This was only noticed by conservative commenters here in all the previous threads. Wow. Just, wow.

"The Court, however, concluded that scoring a written exam was vitally necessary to being a firefighter by ignoring other parts of the record."

Actually this is an interesting point. Can a purely written test, even if screened against racial bias beforehand, ever be ok if the results don't show racial parity?

"Next, there was the specific analysis of individual questions like the “business necessity” defense. I won’t belabor it, but “business necessity” is a demanding standard that is fact-intensive."

Funny how the fact-intensiveness was so unimportant to the lower court, but suddenly becomes a sign of political activism when ignored.

You might be right. But you're right both times, no?

This case was decide on summary judgment. It was fact intensive the whole time. If you argue that ignoring its fact intensiveness is a sign of political judging, you are going to have to twist awfully hard for that not to be an indictment of Sotomayor.

My take on the ideal judging of the case is that the standard being announced is strict enough that the white firefighters should win at trial, but that the facts are in dispute enough to require a trial (because there were lots of disputed facts). Those facts were just as important in the old test, which is why Sotomayor's decision was bad (especially summary judgment without comment).

But I'm frankly shocked to see you looking at Ginsburg's 'history' and original meaning concepts as legitimate jurisprudential concepts. When did those become important all of the sudden?

well seb -- there's a lot of snark here, much of it untrue or directed at others.

but anyway, i don't think law is ALL politics. i think sometimes there are clear answers, and sometimes there aren't.

As for the SJ argument, this is my first post on it. but i'll take your word on what other people have said.

but here's the thing -- I think it's more plausible for an SJ to go to the other way. it's always easier (as you know) for a defendant to win a case outright on SJ than a plaintiff (defendant only has to win once).

I haven't read the lower court decision so i don't know the exact standard. But i'm assuming they just needed to show some basis for believing the disparate impact violation. it's a lot easier to say that there's no material dispute on that, than to say there's no material dispute on all the various conclusions that went to the firefighters.

but anyway, i don't understand the last point. i never said anything about originalism in the post.

and now i'm going to bed -- i'll deal with rest later, including that scoundrel kovarsky

I'm going to quote myself from the previous thread because it is pertinent:

Hilzoy "But when a test has this kind of disparate impact, the employer has to do something: scrap the test and give a new one, justify the test, something."

More specifically the employer has to do something which is not in itself racially discriminatory against any of the other firefighters.

Merely throwing out the test is not proper as it may be improper racial discrimination against the employees who did well on the test. That is precisely what the case you cite (Bushey) says. The proper thing to do is justify the test. If you can’t justify the test (because there is no validation for instance) then you can scrap the test, because it isn’t valid. By scrapping the test without discovering that the test isn’t justified, you open yourself up to charges of discrimination against those who did well on the test.

The issue before the court in Ricci is NOT whether the test was valid, but whether or not throwing out the test without investigating whether doing so would be discriminatory against those who did well ends up being discrimination under the Act.

The position of the City appears to be that they could have defended the validity of the test, but that they would have gotten sued anyway which would be really expensive to deal with.

The problem with that position is that by not investigating the validity of the test (and in the process finding it invalid for whatever reason), it is very difficult to show that they are not discriminating against those who did well on the test. This properly opens them up to a Title VII fight over their apparent discrimination against those who did well on the test. Basically Title VII puts them in a lose/lose situation (unless they investigate the test and find actual reasons why it ought to be considered invalid). But the fact that the law puts you in a lose/lose situation isn’t a defense (and in fact happens plenty).

Stonetools: "I am kind of mystified as why the City didn't even TRY to defend their test. Can someone explain why they did not do this?"

It depends on when you are asking the question. They didn’t try to defend the test in the court case itself because defending the test doesn’t help them. In fact, at this point successfully defending the test creates liability because it makes it more likely that they impermissibly discriminated against those people who did well on the test. So it actively works against their position in the case to defend the test.

It is important to remember that Ricci is about whether or not throwing out a pre-validated test without investigating whether or not its disparate impact was unrelated to job requirements is potentially discriminatory against those who passed the test.

The town didn't defend the test, nor did it reject the test after discovering that it was not properly related to the job in question. It threw out the test without investigating why there was a disparate impact.

"It appears that they did some due diligence to understand what happened and why."

I don't think they really did. It looks to me like they avoided it. But assume that they did. If they did, we can be certain that they did not find that the test was non-job related and they did not find that it was inconsistent with business necessity.

Because if they investigated and found those things, Ricci wouldn't have a case in a very different way than actually played out.

This is important to remember. If they had actually found that it was inconsistent with business necessity, they wouldn't have bothered with a silly "we were afraid of litigation" defense. They would have had an airtight "it was discriminatory under the act" defense.

I also want to note that 9 out of 9 justices of the Supreme Court seem to think that either the wrong standard was applied (the majority position) or that that there were triable issues of fact (the minority position). Even the liberal justices disagreed with Sotomayor's opinion that summary judgment in favor of the city was appropriate.

"I haven't read the lower court decision so i don't know the exact standard. But i'm assuming they just needed to show some basis for believing the disparate impact violation. it's a lot easier to say that there's no material dispute on that, than to say there's no material dispute on all the various conclusions that went to the firefighters."

You're willing to completely rant on the Supreme Court's decision without even realizing that the lower court decision was open to the exact same problem?

Ackkk. No. You can't find out any of the following important facts without a trial:

A) Did the city act properly to avoid discrimination in the design of the test? [and the fact is that they did prescreen the test with an expert company to make sure that they complied with the law, which of course makes summary judgment the other way rather problematic].

B) After discovering the disparate impact did they find that the test was inconsistent with business necessity? [and again the facts available show that they did not get such a finding which makes summary judgment the other way problematic]

Those alone are triable issues.

C) does the decision to throw out the test cause a disparate impact on a racial category which did well?

D) If so, is there a compelling business necessity to do so? [Finally something that there is at least a chance of winning for the defendant's, but still a VERY triable issue].

Sebastian -

I am very confused about your position here. Are you trying to prove that Publius is being inconsistent, or are you trying to prove that the case was correctly decided.

Specifically, this:

"It is important to remember that Ricci is about whether or not throwing out a pre-validated test without investigating whether or not its disparate impact was unrelated to job requirements is potentially discriminatory against those who passed the test."

Huh? I daresay the BIGGEST DISAGREEMENT IN THE WHOLE DECISION is about whether the pre-validated test was scrapped either A) without being investigated (majority) or B) after an extraordinary amount of analysis (dissent).

You may not agree with the dissent, but I'm shocked that you can, with a straight face, say that the case is decided on a mutually shared premise that "its disparate impact was unrelated to job requirements is potentially discriminatory against those who passed the test." Just to name a few:

(1) the CSB understood "their principal task was to decide whether they were confident about the reliability of the exams: Had the exams fairly measured the qualities of a successful fire officer despite their disparate results?Might an alternative examination process have identifiedthe most qualified candidates without creating such significant racial imbalances?" (dissent at 6)

(2) "Seeking a range of input on these questions, the CSB heard from test takers, the test designer, subject-matterexperts, City officials, union leaders, and community members. Several candidates for promotion, who did not yet know their exam results, spoke at the CSB’s first twomeetings." (disesnt at 6)

(3) the CSB also heard evidence that "These disparities, it wassuggested, fell at least in part along racial lines. While many Caucasian applicants could obtain materials and assistance from relatives in the fire service, the overwhelming majority of minority applicants were “firstgeneration firefighters” without such support networks." (dissent at 7)

(4) that in nearby Bridgeport, they did more research into the relative value of the written versus oral components of the investigation, and as a result weighted the oral component more heavily than NH did, because "the oral component, more so than the written component, addressed the sort of “real-life scenarios” fire officers encounter on the job." minority applicants fared better under that weighting. (dissent at 7-8)

(5) in the dissent, at 8-10, Ginsburg describes the expert (Hornick) brought in to explain how the procedures created the adverse impact.

****

You get the picture. The idea that this case is "really" about whether you can throw out a test "only" because of some observed disparate impact is ridiculous. That was the most hotly contested issue between the Majority and the Dissent.

I'm guessing from your comment's coda about how this is some sort of meaningful rebuke to Sotomayor (a claim I will deal with in a minute), I'm just going to infer that this is just some ideologically-motivated thing for you, and that's why your grossly misrepresented something as a shared premise in the case.

Sebastian -

"I also want to note that 9 out of 9 justices of the Supreme Court seem to think that either the wrong standard was applied (the majority position) or that that there were triable issues of fact (the minority position). Even the liberal justices disagreed with Sotomayor's opinion that summary judgment in favor of the city was appropriate. "

The attempt to cast this as a sweeping rebuke of the per curiam opinion that SS signed (she didn't write it) is the strangest meme that's emerged here.

For starters, the Majority opinion is pretty charitable to the Second Circiut PC opinion (except for that it's so short). The Court basically says that there's a bunch of different precedent out there, and this is obviously just a situation where there is no existing standard and they're going to make one up. This isn't a case about error; it's a case about making a rule to reconcile an indeterminacy created by conflicting statutory provisions.

More importantly, reading the dissent as some sort of rebuke of the PC is flat out wrong. Read footnote 10: "The lower courts focused on respondents’ “intent” rather than onwhether respondents in fact had good cause to act." That was the reason for the possible remand. And on page 12 of the dissent, Ginsburg explains that the "intent" standard was circiut precedent: "Under Second Circuit precedent, the District Court explained, “the intent toremedy the disparate impact” of a promotional exam “is not equivalent to an intent to discriminate against nonminority applicants." In other words, the dissent thought that the Second Circuit precedent, which PC is legally bound to follow, was worng. The dissent did not think the PC (and SS, by joining it) did anything inappropriate. It just thought the Circuit precedent was itself bad.

Does anyone have a link to an Internet version of the decision? My google fu is weak.

"Innocent white people can’t keep paying the price for crimes their ancestors committed."

If by "their ancestors", you mean, "the ancestors of people who happen to look like them". I'd buy that defenders of affirmative action actually believed that "sins of the fathers" stuff, if they showed any sign of caring whether or not YOUR father had actually committed the sins.

As it is, "Innocent white folks can't keep paying the price for the crimes of people in many instances utterly unrelated to them" would be a more accurate statement of the complaint.

This is one of the first cases decided based on the governments mandate in the constitution to be blind to race. It is therefore appropriate that the 5-4 decision was handed down on strict political lines. The discussion here is mostly a rehash of old doctrine for and against affirmative action, never an appropriate legal doctrine. This was, in fact, constitutionally unacceptable discrimination, all Alito stuff aside, that is not and should not be legal in America.

For starters, the Majority opinion is pretty charitable to the Second Circiut PC opinion (except for that it's so short). The Court basically says that there's a bunch of different precedent out there, and this is obviously just a situation where there is no existing standard and they're going to make one up. This isn't a case about error; it's a case about making a rule to reconcile an indeterminacy created by conflicting statutory provisions.

That doesn't help the Sotomayor ruling at all. The ruling at her level was "Affirmed Without Comment" which suggests that the case is so crystal clear that not even a cursory examination was needed. This was a difficult case that needed to be taken seriously at the apellate level.

"other words, the dissent thought that the Second Circuit precedent, which PC is legally bound to follow, was worng. The dissent did not think the PC (and SS, by joining it) did anything inappropriate."

I'll agree on the District Court, I don't expect them to question precedent (though I don't agree that the precedent was so clear even in just the Second Circuit). I don't agree on the apellate court. They knew it was murky and ducked anyway.

Huh? I daresay the BIGGEST DISAGREEMENT IN THE WHOLE DECISION is about whether the pre-validated test was scrapped either A) without being investigated (majority) or B) after an extraordinary amount of analysis (dissent).

You may not agree with the dissent, but I'm shocked that you can, with a straight face, say that the case is decided on a mutually shared premise that "its disparate impact was unrelated to job requirements is potentially discriminatory against those who passed the test." Just to name a few:

You're confusing the legal issue with the story issue. If the city had investigated the *and found* that the test was inconsistent with business necessity, or otherwise not sufficiently related to the actual performance of the job, this would have been a completely different case. They didn't find that the test wasn't sufficiently related to performance of the job. There was testimony suggesting that in the future they might boost the chances of minority applicants doing better by minimizing written tests, but that isn't the requirement. Once the pre-validated test turns out to have disparate impact, you risk discriminating on the basis of race by throwing out the test unless you show that it wasn't properly related to job performance. Their investigation didn't find that.

The case is easy if they found that. It then narrows to whether that finding is in good faith. But they didn't find that. So either they didn't investigate sufficiently, or they investigated and didn't find what you want them to find. There is no disagreement about whether or not they determined that the test failed to be related to the job. They definitley did not find that.

"Innocent white people can’t keep paying the price for crimes their ancestors committed."

I don't have the chops to wade in on Ricci, so (in a novel strategy for me) I will not.

Just wanted to chime in to point out that affirmative action was not created as way to pay back or make up for the "crimes of ancestors".

It was an attempt to address the plain and concrete fact that, in spite of laws that nominally guaranteed their equal rights under the law, blacks, women, and other minorities were still getting screwed *at the present time*.

Not 300 years ago, not 100 years ago, not 50 years ago.

Now, in our lifetimes, from the time the laws were passed up to the present day.

There's an argument to be made that affirmative action is discriminatory, and is therefore just substituting one harm for another. I'm not making that argument here, I'm just noting that it's a reasonable one.

What I never hear from folks who *do* make that argument is what other means they would recommend for addressing the underlying issue.

So, publius, are we to take it from this post that you agree the Second Circuit completely mishandled the case? If, after all, there were so many factual disputes, then summary judgment was wholly inappropriate, and the Second Circuit's disposition even more so.

As for why the Court did not remand here, recall that the city had stipulated some of the facts necessary for the Court's conclusions, and it is also fairly clear that the city had not considered the sorts of issues that would be necessary to sustain its action (that is, it never conducted the sort of inquiry that would be necessary to satisfy the majority's standard). I'd agree that, even so, the decision not to remand was close, but hardly beyond the pale given the Court's holding.

JHA

By the way, I'm not just playing devil's advocate - to be clear:

I think Ginsburg (by a fair margin) gets the better of what the standard - which all 9 justices seem to believe has to be created in this case (i.e. does not flow from precedent - should be. The standard the Majority adopts is awful and unworkable in every way that Scalia always complains about when you have indeterminate, "totality of the circumstances," tests in other contexts.

And if I were a truly minimalist Justice, I would have remanded, but it's hardly out of the ordinary for the Court to just decide a case like this on the newly-announced standard.

Alito's concurrence strikes me as unnecessary, because the dissent says that it would have remanded on the question of whether any reasonable juror would find the disparate-impact-avoidance defense pretextual. But the concurrence doesn't strike me as "racially inflammatory." To be candid, New Haven's local political structure does have a seamy identity-politics underbelly, to say the least. I think he's just making the point that a juror could have seen it that way. I also recognize that there was considerable back-and-forth on these opinions before they were published, so he may have written his concurrence before Ginsburg dropped footnote 10 in there, making the concurrence itself less gratuitous.

Sebastian -

"You're confusing the legal issue with the story issue. If the city had investigated the *and found* that the test was inconsistent with business necessity, or otherwise not sufficiently related to the actual performance of the job, this would have been a completely different case."

You're just trying to argue the merits of the case now. You had made the point that this case is "really about," and I quote: "whether or not throwing out a pre-validated test without investigating whether or not its disparate impact was unrelated to job requirements is potentially discriminatory against those who passed the test."

You are portraying the contested issue as though it were a mutually shared premise, between majority and dissent, that the pre-validated test was scrapped without respect to whether some flaw caused the disparate impact. That is just not true. You might believe that the city did that - and you might well be right. My point is simply that the dissent clearly does not agree with that. It's entire point was that scrapping the test on the basis of disparate-impact-avoidance was not pretextual.

I'm not sure how I'm confusing the "story" with the "issue." In fact I think that's quite plainly what you are doing. I'm not saying that the dissent is right, but it certainly does not endorse the premise that you are portraying it as endorsing.

Sebastian -

I am simply pointing out that the dissent does not believe the "issue" is whether you can throw out a pre-validated test simply because there is a disparate impact, and nothing else. The dissent quite clearly believes that the CSB investigated and found a nexus between flaws in its testing methodology and the disparate impact.

You can buy the majority acocunt if you want, but you should not present the issue to laypeople as "really" being about whether it is ok to use a pretextual disparate-impact-avoidance defense, when you know that is not a premise that the majority and defense share.

"The dissent quite clearly believes that the CSB investigated and found a nexus between flaws in its testing methodology and the disparate impact."

But that isn't what the expert testimony shows. The testimony shows repeatedly that the focus was on how to avoid problems in the future, and the expert repeatedly asserts that he hasn't found any problems with the questions themselves (and in fact denies bothering to read all of them closely), nor that the test itself was poorly related to the job. The entire focus was repeatedly on how to avoid disparate impact in the future, not whether or not the test was actually unfair.

And again, on summary judgment, you have to construe such disputed facts in favor of the non-moving party. So all inferences go against the city.

"This is one of the first cases decided based on the governments mandate in the constitution to be blind to race."

Could you cite that clause, please? Thanks.

The comments to this entry are closed.

Blog powered by Typepad