Ricci et al. Vindicated; Ricci Reversed!

The Supreme Court has reversed the Sotomayor-sitting Second Circuit and ruled in favor of Frank Ricci and his fellow New Haven firemen who would have been promoted but for their race. In doing so it rejected the argument of the Obama administration, and favored by the four dissenting Justices (See Footnote 10 of Justice Ginsburg’s dissent, quoted here), that would have vacated the Second Circuit’s decision and remanded the case to the District Court for fact-finding on the city’s intent in refusing to act on the results of its test.

Much of the early commentary understandably concentrates on the likely impact of the Supreme’s implicitly, and in some instances explicitly, repudiating the work of the Second Circuit panel on which Judge Sotomayor sat. See, for example, here, here, here, here, here, and here.

I have just downloaded the nearly 100 pages of opinions and will no doubt have more to say presently. A very quick perusal, however, suggests that the real loser here should be neither Sotomayor nor the City of New Haven but the entire concept of “disparate impact” discrimination, at least as it has been practiced. I have made the point that disparate impact has become increasingly incoherent before — most recently in Eating Its Own Tail, Disparate Impact Itself Has A Disparate Impact — and I strongly suspect that I’ll be making it again after digesting this decision.

Stay tuned….


So far, my favorite comment in any of the opinions today is the way Justice Scalia begins his concurrence:

I join the Court’s opinion in full, but write separately to observe that its resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one….

The difficulty is this: Whether or not Title VII’s disparate-treatment provisions forbid “remedial” race-based actions when a disparate-impact violation would not otherwise result — the question resolved by the Court today — it is clear that Title VII not only permits but affirmatively requires such actions when a disparate-impact violation would otherwise result. See ante, at 20–21. But if the Federal Government is prohibited from discriminating on the basis of race, Bolling v. Sharpe, 347 U. S. 497, 500 (1954), then surely it is also prohibited from enacting laws mandating that third parties — e.g., employers, whether private, State, or municipal — discriminate on the basis of race. See Buchanan v. Warley, 245 U. S. 60, 78–82 (1917). As the facts of these cases illustrate, Title VII’s disparate impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes. That type of racial decision making is, as the Court explains, discriminatory….

To be sure, the disparate-impact laws do not mandate imposition of quotas, but it is not clear why that should provide a safe harbor. Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end? Surely he would. Intentional discrimination is still occurring, just one step up the chain. Government compulsion of such design would therefore seemingly violate equal protection principles….

Indeed. Anyone interested in knowing what I think about disparate impact should proceed immediately to read Justice Scalia’s entire dissent.

Meanwhile, one of the reasons I don’t have to rush to comment further on Ricci is excellent posts by others, such as this one by Hans Bader, this comment by Walter Olson, and this post by Ed Whelan, not to mention others I’ll probably cite later.

Anyone want to place bets on how fast the Dems will move to overturn today’s decision by statute?


I hope no one bet against the Dems. As The Washington Times reported,

Members of Congress said they will try to overturn the ruling through legislation, and D.C. Delegate Eleanor Holmes Norton, a Democrat, vowed to introduce a bill when Congress gets back from its July 4 vacation.

[ADDENDUM to UPDATE II: The above was written before I had seen David Nieporent’s comment below, pointing to Justice Scalia’s dissent. Note to file: Read comments before adding UPDATES.]

Say What? (2)

  1. David Nieporent June 29, 2009 at 12:09 pm | | Reply

    Scalia wrote a concurrence specifically to discuss the issue of striking down Disparate Impact on constitutional grounds; Kennedy’s majority opinion contained a paragraph saying, “We don’t need to decide that here,” but implying that they were ready to do.

  2. Mike Bertolone June 29, 2009 at 4:34 pm | | Reply

    Ruth Bader Ginsburg’s dissent is very telling – her comments are dripping with contempt for “white” males.

    Let’s hope that the majority in this case (Scalia, Thomas , Roberts, Alito & Kennedy)all stay healthy until Obama and the Dems lose the White House.

    This is a great victory for the 14th Amendment – it’s time for the EEOC to get its huge thumb off of the hiring scale!

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