Sotomayor’s Second Circuit Decisions on Reverse Race Discrimination

There’s only one case involving reverse race discrimination, and it’s probably Judge Sonia Sotomayor’s most controversial decision while on the Second Circuit Court of Appeals. As noted in a previous post, she didn’t author this opinion but was one of three judges who issued a per curiam opinion (one on behalf of the judges participating, instead of written by a specific judge).

This case was appealed from the Second Circuit to the U.S. Supreme Court, and when the Court heard oral argument on the case, it appeared that a majority of the Court is likely to reverse Sotomayor and her Second Circuit colleagues. We’ll see before too much longer. In any event, she’ll be the recipient of numerous questions about this case during her confirmation hearings.

Ricci v. DeStefano, 530 F.3d 87 (2d Cir. 2008)
In Ricci, promotional exams were given to current employees wanting to become lieutenant or captain in the New Haven Connecticut Fire Department. Seventeen white candidates and one Hispanic candidate fared very well on the exams. In order for them to receive appointments to lieutenant or captain, the results of the exams had to be certified by the New Haven Civil Service Board. The board refused to certify the exams based on the legal advice that since only whites and one Hispanic (and no African-Americans and excluding several other Hispanics) would receive promotions, the exams had an disparate impact on African-Americans and Hispanics, exposing the city to liability for race discrimination.

New Haven got sued anyway. The 17 whites and one Hispanic claimed that the refusal to certify the exam results because this could amount to disparate-impact race discrimination was a pretext for intentional race discrimination against the white and Hispanic candidates. In other words, the only reason the employees filing suit had failed to be promoted was because of their race: white and Hispanic. The federal district court granted the city’s motion for summary judgment (to dismiss the case without a trial), and the Second Circuit affirmed.

As explained in the Second Circuit’s per curiam opinion: “The real crux of plaintiffs’ argument is that defendants refused to explore alternatives or conduct a validity study because they had already decided that they did not like the inevitable promotional results if the process continued to its expected conclusion and that their ‘diversity’ rational is prohibited as reverse discrimination under Title VII [of the Civil Rights Act of 1964].” Obviously, therefore, this decision had implications for affirmative action plans and employer efforts to otherwise promote diversity in the workplace.

The three judges on the Second Circuit were unpersuaded. They found that New Haven had not acted on the basis of discriminatory animus but out of the following legitimate concerns: “That the test had a statistically adverse impact on African-American and Hispanic examinees; that promoting off of this list would undermine their goal of diversity in the Fire Department and would fail to develop managerial role models for aspiring firefighters; that it would subject the City to public criticism; and that it would likely subject the City to Title VII lawsuits from minority applicants that, for political reasons, the City did not want to defend.”

One fact that added to the controversial nature of this case was that one of the white firefighters who would have been promoted studied 8-13 hours a day to prepare for the promotional exams and spent $1,000 to purchase written study aids and to pay an acquaintance to read them on tape because the firefighter was dyslexic. The Second Circuit expressed empathy for this firefighter but decided that the law was against him.

Analysis of Ricci Case
Now, we await the Supreme Court’s ruling in this case. It seems to me that this case is about more than affirmative action and diversity as those subjects are traditionally discussed. The Court’s ruling comes at a time when our demographics will, relatively soon, place whites in the minority and, to some extent, turn the usual analysis of race discrimination on its head.

I’m not advocating one result or another in this case, but I think it’s legitimate to ask, given our rapidly changing demographics and given our election of an African-American as president, whether traditional affirmative action is still needed and whether the traditional definition of diversity needs to be reevaluated. The Supreme Court doesn’t have to address these latter points to decide this case, but it’ll be interesting to see if some of the justices choose to do so.

Next week, we’ll examine a more traditional discrimination case decided by Sotomayor under Title VII.

1. 

   Doug says:

   July 13, 2009 at 10:39 am

   This decision is nothing more than a court giving lip service to the actual law. had the test been a non-validated test they could have used the statistical adverse impact argument. This wasn’t the case. Then the court ignored the disability angle for the best scorer on the exam, Mr. ricci. So much for reasonable accommodation if it stands in the way of pre-ordained discrimination against non-minorities.
   The Supreme court has shown this case to be what it was: a philosophically driven conclusion not based upon the lawe and an affront to those who believe the content of their character is more important than diversity…and the color of their skin. Sotomayor was grievously wrong, wrote a ridiculously short commentary amnd illustrates just who she really is…someone willing to discriminate on the color of someone’s skin…she should not be confirmed but will not be Borked and will be placed on the court.
2. 

   John Phillips says:

   July 13, 2009 at 4:19 pm

   Doug,

   Thanks for your heartfelt comment.

   While it’s unlikely Sotomayor wrote the short Second Circuit opinion in Ricci, she did sign on to it. While I’m inclined to believe that her reasoning was based on precedent, not discrimination, this case may represent the beginning of a new era of discrimination law where affirmative action and diversity are looked at differently than they have been in the past. Time will tell.

   Thanks again for your comment.

   John