Focus on Equal Protection

Atlantic Legal has filed an amicus brief on the merits on behalf of several prominent legal and political science scholars, including well-known legal blogger and UCLA Law Professor Eugene Volokh and Abigail Thernstrom, Vice Chair of the U.S. Civil Rights Commission, in support of petitioners in Ricci v. DeStefano. The case has been described as the most important Equal Protection case in a decade.

It is widely believed that the Court’s decision in this case will have far-reaching effects on disparate impact jurisprudence. Ricci v. DeStefano raises questions as to what steps employers may take where avoidance of possible discrimination against one group may result in discrimination against another group.

The City of New Haven, Connecticut administered a civil service examination for fire department promotions. The exam produced racially disproportionate results B most of the eligible candidates were white, and no black candidates scored well enough to be promoted. As a result, New Haven refused to certify the examination. Ricci and other candidates who scored well on the examination, and thus were eligible for promotion, sued New Haven, claiming racial discrimination against the high-scoring candidates. Ricci and the other petitioners claim New Haven discriminated against them on the basis of race in violation of the Equal Protection Clause and Title VII. New Haven, on the other hand, claimed it was complying with Title VII in declining to certify the exam and thus did not violate either the Equal Protection Clause or Title VII. The district court granted summary judgment for New Haven, reasoning that since no candidates were promoted, there was no discrimination. The U.S. Court of Appeals for the Second Circuit affirmed.

The firefighters argue that the City’s actions constitute intentional race discrimination, because it denied promotions to successful candidates based on race B too few of the candidates who scored well enough to be promoted were of the "correct" race (i.e., African-American). They also argue that intentional discrimination cannot be excused as "voluntary compliance" with Title VII or because the City administration unjustifiably feared that the racial distribution of the exam results might be construed as unintentional disparate-impact discrimination. Permitting intentional discrimination as a remedy for unproven and unasserted unintentional disparate impact subverts the essential purpose of nondiscrimination guarantees, allowing public and private employers to play racial politics in hiring and promotion decisions.

The Court’s decision may help define the extent to which non-minorities, solely because of their race, should shoulder the burden of advancing employment opportunities for minority candidates. A decision in favor of respondents would essentially condone racial classifications as part of employment decisions, undermining laws which prohibit discrimination based on race and would sanction an employers ability to discriminate against whites, as long as they assert good faith, but unfounded, fear of Title VII lawsuits from blacks or other minorities. It could allow employers to administer and reject examinations until they have the desired proportionality in the test results for minorities and whites. A decision in favor of respondents could also send a message to employers that it is permissible for them to cater to lobbyists for certain racial or ethnic groups.

Our amicus brief argued that plaintiffs did not need to show racial animus" to make out a case for intentional discrimination under the Equal Protection Clause. We argue that New Haven’s actions must be reviewed under "strict scrutiny" because race-based government actions trigger strict scrutiny, requiring the government to show both a compelling state interest and that the action was narrowly tailored to meet that interest. The decision not to certify the exam was based on race B New Haven relied on "raw racial labels and distributions" to reach its decision not to certify and thus deny promotion. Even if the decision not to certify was facially race-neutral, a racial motivation may trigger strict scrutiny and the decision not to certify because the higher scoring candidates were not black is a racial motivation which triggers strict scrutiny. New Haven fails strict scrutiny review because New Haven lacks a compelling state interest in declining to certify the exam and denying promotions to the higher scoring candidates.

For a copy of Atlantic Legals brief, click here.