The most significant case in which Judge Sotomayor participated that will have bearing on her confirmation to the Supreme Court is in the case of Ricci v. DeStafano, which is currently on appeal to the United States Supreme Court. The facts and legal question presented by this case are set forth below.
In 2003 the New Haven Fire Department administered written and oral examinations for promotion to Lieutenant and Captain. The Department selected IOS, an Illinois company, to design the examinations. The results of the tests were that seven whites and two hispanics and not a single black candidate qualified for promotion. The City's attorney, Thomas Ude, was concerned because of the racially disparate impact of the test. If the black firefighters were able to prove that the test was not job related they would have a valid civil rights claim against the city. Mr. Ude brought the matter to the attention of the New Haven Civil Service Board and he advised the Board that it could refuse to certify the results of the examination if it found that there was a less discriminatory way to determine eligibility for promotion. The Board voted 2 to 2 on whether to certify the results of the test, which had the effect of not certifying the results. The white and hispanic firefighters sued the Board to have the results of the test certified.
The trial court – District Court Judge Janet Bond Arterton – ruled in favor of the Board. She relied primarily upon a 1999 decision of the Second Circuit Court of Appeals (Hayden v. County of Nassau) in which the appeals court had held that Nassau County did not violate the Equal Protection Clause when it decided to use only 9 out of 25 sections of a civil service examination – the nine sections which had the least racially disparate impact. Judge Arterton quoted Hayden in finding that the City of New Haven was not guilty of intentionally discriminating on the basis of race. Here is the key portion of her opinion:
Nothing in the record in this case suggests that the City defendants or CSB acted "because of" discriminatory animus toward plaintiffs or other non-minority applicants for promotion. Rather, they acted based on the following 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. "[T]he intent to remedy the disparate impact of [the tests] is not equivalent to an intent to discriminate against non-minority applicants." Hayden, 180 F.3d at51. None of the defendants' expressed motives could suggest to a reasonable juror that defendants acted "because of" animus against non-minority firefighters who took the Lieutenant and Captain exams.
My Constitutional Law students will recognize the "because of" test from the case of Feeney v. Personnel Administrator. (They were just tested on this point in their own examination and did beautifully!) This is a technically difficult principle of constitutional law. The government does not violate the Equal Protection Clause unless it intentionally discriminates against a particular group – there is no violation of the Constitution unless the government is guilty of purposeful discrimination on the basis of race or some other prohibited factor. Essentially the trial court in the Ricci case ruled that when the New Haven Civil Service Board declined to certify the results of the examination it certainly knew that its decision would have a racial impact, but it did not reach that decision "because" it would harm whites and latinos – instead it was attempting to comply with federal civil rights laws that provide that employment tests and other criteria that have a racially disparate impact may be illegal. Accordingly, Judge Arterton found that the City of New Haven did not violate the Equal Protection Clause, and the white and hispanic firefighters appealed her decision to the Second Circuit Court of Appeals.
A three judge panel of the Second Circuit which included Judge Sotomayor affirmed Judge Arterton's decison in a one paragraph per curiam opinion. The panel stated:
We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.
The white and hispanic firefighters asked the entire Second Circuit to review the panel's decision en banc, that is, for all of the appellate judges to decide the case and not leave it to a three judge panel. By a vote of 7 to 6 the judges of the Second Circuit declined to review the matter en banc. In a brief concurring opinion Judge Calabresi explained why he believed that the decision of the District Court had to be affirmed. Judge Calabresi stated that the plaintiffs could have argued that the City had a "mixed motive" for rejecting the results of the firefighters' examination, but he found that the plaintiffs had waived this argument by failing to raise the point in the District Court.
One could criticize the decision of Judge Sotomayor's panel for its summary disposition of this difficult case. On the other hand, District Court Judge Arterton's decision was thorough and it relied primarily upon binding precedent, leaving little for the appellate court to do unless it chose to overrule its prior decison in Hayden. In addition, whatever you think of the merits of this case, a Civil Service Board has to have some discretion to refuse to certify the results of a flawed civil service test. The difficult question is how much discretion the Board should have. Under Hayden the Second Circuit had given the Board pretty much carte blanche to reject the results of a test that has a racially disparate impact. It would not have been unreasonable to overrule Hayden.
But the main point of this post is what this case tells us about Judge Sotomayor. There are a few conclusions we can reach.
First, Judge Sotomayor cannot be considered an "outlier" or "radical" on the basis of this case. The two other judges on her panel agreed with the per curiam opinion, and most of the judges on the Second Circuit decided not to revisit their decision. She and the other judges affirmed the decision of the District Court which itself deferred to the City of New Haven. Finally, in ruling for the City she and the other judges followed binding judicial precedent.
Second, based upon this case Judge Sotomayor would appear to have a fairly conservative style of judicial decisionmaking. The per curiam opinion that she joined is brief to the vanishing point. This is consistent with Jonathan Turley's criticism of Judge Sotomayor published today that "her view of the law is a bit insular and narrow" and that her opinions lack "a broader historical or theoretical view."
Third, it should be apparent from the Ricci case that Judge Sotomayor is not a "racist" as Rush Limbaugh charged today ("So here you have a racist."). In Ricci she and the other members of her panel ruled against the hispanic plaintiff.
The political maneuvering will be fascinating to watch in the coming days and weeks. I look forward to the debate over Judge Sotomayor's qualifications and what it will mean for the interpretation of the Constitution.
{ 15 comments… read them below or add one }
Thank you for a brief, clear explanation of this case. I have been trying to follow the discussion about Judge Sotomayor's nomination but without the background, it has been difficult.
I am Hayden of Hayden v. Nassau.
The railroaded results of our lawsuit has been used to cloak insidious discriminatory practices committed under the forceful hand of the US Justice Dept. Civil Rights division utilizing "racial profiling" of competitive test results and adjusting those results after a test is given. Since the outright use of racial quotas had been nixed, they came up with a way to "consent decree" municipalities and then manipulate competetive testing with favored test vendors as a way of "coin tossing" test results.
In my case, the government threw roadblocks up every step of the way to "discovery" by our side with the wink and nod of the left-leaning judiciary every step of the way. This included "Republican" judges would held extremely liberal and "progressive" positions. We were granted absolutely NO DISCOVERY and only argued motions all the way to dismissal.
We had expert witnesses that were prepared to testify that the feds violated there own "Federal Guidelines" in employment testing. We were not allowed discovery and never got a fair hearing to present expert witnesses.
Our attorney was rudely cut off and verbally berated every time he tried to make a point in the 2nd Circuit Court of Appeals. A novice Justice Department attorney who happened to be a "minority" member was allowed to ramble on about the history of discrimination and the "plaintiffs" attempts to "roll-back" civil rights.
If the case particulars to the final Hayden v. Nassau decision was studied and reviewed, one would find that we were "railroaded" every step of the way towards this horrendous decision. Thanks to Martin Kaufman, Atlantic Legal Foundation for his single handed attempt to right wrong with this case.
I regret it set the "crappy" precedent it did, bolstering the feds exercise of "racial profiling" in "competitive testing" and ultimately discrimination against citizens as "individuals" deserving equal protection under the law.
One more thing, not everyone lost in the Hayden v. Nassau case. The Special Counsel for Nassau County working alongside the Justice Dept. happen to get appointed to a Federal Judgeship shortly after that decision.
I guess that is one more insurance of "group rights" versus "individual rights and liberty."
I guess no one's interested, Mr. Hayden. You are on the wrong end of the empathy stick.
So far, I have not heard the ethnicity or gender of the other 2 judges who heard the case with Judge Sotomayor. Why are they not blamed for the decision – only her. Further, what ethnicity and gender are the rest of the Court of Appeal who concurred by refusing to review the case? Isn't it interesting that with this case passing through so many hands, that only this one judge is being blamed? Is this just another example of white men/women demonizing a woman of colour for doing something they do not like? Sure smells like it.
Sotomayor followed the law! She did not give her fellow Hispanic Mr. Ricci an empathy break or any special favour. SHE FOLLOWED THE LAW.
So, dear racists, what's the problem?
I can see I am wasting my time commenting here. Intellectual wasteland.
Correct me if I'm wrong but the sole reason that this test was not used was the lack of AfricanAmerican eligibles.
Having read the briefs,it is clear that New Haven took every step possible to avoid an adverse impact on the minority applicants. For example the oral board examiners were predominantly black fire officers from other jurisdictions.
The case is closer to Washington v Davis than Feeney. In Washington v Davis black applicants to the police department challenged a test wherein whites were disproportionately achieving higher scores than blacks. The Supreme Court required a showing of discriminatory intent rather than impact before they'd require changes. In New Haven the race neutral exam produced results that the black mayor didn't like. BECAUSE OF THOSE RESULTS (too many white guys) the test was tossed. It sounds like a discriminatory intention to me.
Attempting to comply with the Civil Rights Act after you have already complied with the Civil Rights Act is not a valid basis to do away with merit and fitness based promotions.
Attempting to avoid an adverse impact by taking overt action that creates an adverse impact violates the Equal Protection clause.
Bill,
This was the first time that the City of New Haven used this particular employment test and it had a much greater racially disparate impact than any previous test had. Assuming for the the sake of argument that the city officials of New Haven in good faith were in doubt about whether this new test was sufficiently "job related" to meet federal standards (and I realize that is a matter of credibility), the question remains, "Did the city purposefully discriminate on the basis of race when it abrogated the use of the test?" When Sotomayor's panel issued its summary ruling in the Ricci case applicable precedent from the Second Circuit (Hayden) said that the answer to that question was "No."
It is clear that the City of New Haven knew that its decision would have a racially disproportionate impact, but as Washington v. Davis and Personnel Administrator v. Feeney hold, neither a racially disproportionate impact nor knowledge that a racially disproportionate impact will occur is sufficient to establish the requisite element of "purposeful discrimination." Instead, it must be shown that the city abrogated the test "because of" and not "in spite of" its adverse effect on white and hispanic firefighters. Davis and Feeney offer substantial support for the City's position.
Furthermore, to find "purposeful discrimination" in this case puts the City in a terrible spot. Put yourself in the position of the Law Director for a city that has conducted an employment test that has a racially disparate impact, and in looking at the test after it was administered you conclude that the test was not sufficiently job related to have been used. It just didn't test for the skills that the job calls for. Do you really want to say that the City has presumptively violated the Equal Protection Clause if it decides not to validate the test results?
I think that it is possible that a city or a county could have reasonable grounds throwing out the results of an employment test that has a racially disparate impact. The problem with the Second Circuit's rulings in Hayden and Ricci was that the Court seemed to absolutely defer to the discretion of County and City officials to make that decision, when it would seem more appropriate to make at least some inquiry into the City's motives, if not the reasonableness of its decision. It's a tough choice, though. We don't want to put cities and counties into a legal position of "damned if you do, damned if you don't."
Finally, even if the court had overruled Hayden and found purposeful discrimination, it would not constitute a per se violation of the Equal Protection Clause. So long as the act was undertaken in good faith to achieve a compelling governmental interest, it would be constitutional.
Mr. Hayden, thank you for your earlier contribution to this discussion.
Charles,
Your posting would have been far more effective had you left off the last sentence accusing those who disagree with you of being "racists." That is precisely why Rush Limbaugh is so unpersuasive. He demonizes those who disagree with him and makes no attempt whatsoever to "win hearts and minds." He is not attempting to educate us all but rather to win a loyal audience that is convinced of its moral superiority. Similarly, Bill O'Reilly's persistent rhetoric describing Dr. Tiller as a "baby killer" may have driven up his ratings but it also helped to generate the hateful attitudes that led to Dr. Tiller's murder.
Most of the matters we discuss are questions about which reasonable people and patriotic Americans can reasonably disagree. In particular, there are two sides to the affirmative action debate. America has a long history of discrimination that must be redressed, but persons who are innocent of those acts of discrimination should not be treated unfairly. There are no easy answers to these questions. Racism is still with us and we must be vigilant in fighting it, but disagreement over the results in the Ricci and Hayden cases is not proof of racism.
You are welcome as a contributor, but please consider whether you wish to emulate demogogues like Limbaugh and O'Reilly.
Thank you, Prof. Will Huhn, for your intelligent and insightful posts.
The whole issue is based upon a convoluted legal exercise to perform an end-run around outright racial quotas.
What is legal about giving a "competitive" employment test, that relies heavily on psychometric measures of personality with a minor emphasis on cognitive reasoning (in order to satisfy minimal job related and validity requirements), and then based upon the racial composition of the ranked scoring, (after the test is given), manipulate the result by discarding content that serves to elevate minorities and females, no longer making it competitive? And in order to do that the feds violated their own "Uniform Guidelines" in testing by gutting cognitive content and forsaking validity. However those facts were suppressed throughout our case.
If you are the defendant(s), who controls a "Federal Consent Decree" to increase minorities in the Nassau Police Department, that was crafted with Federal Judge Jacob Mishler, who is then feeble and senile when Hayden plaintiffs attempt to get their day in court; and all you get are motions to dismiss, no discovery, and a united and unanimous front by the County, Federal Government and the Judiciary to shield the scam- how will truth prevail?
There was an apple-cart to be upset of D.O.J approved psychometric test vendors; D.O.J career hacks who crafted the Nassau Consent decree; Special Counsels; and Minority Special Rights Groups- what would it look like if it was proven that the Nassau Police test, with candidates paying $100 dollars a head to compete, was no better than a coin-flip or a roll of dice in picking police candidates?
What results is a lop-sided horrendous precedent (Hayden V. Nassau) that allows the government to "racial profile" for minority employees at the risk of lower standards and less public safety which results in the elevation of both unfit white and minority candidates.
Please read http://www.ipacweb.org/files/nassau/gottfredson3.html to get a better grasp of what occurred with the Nassau Police Test and the basis for my lawsuit.
Will,
Your posting would have been far more effective had you left off the last sentence accusing those who disagree with you of being "demagogues." That is precisely why your partisan hackmanship is so unpersuasive.
Like a child's relationship to a lovng family whose caretaking compensates him for the injuries he suffered in his early years, the disparate impact concept – originating a generation ago under distinctly different circumstances in the 1974 Griggs vs. Duke Power case – attempts to address antediluvian societal injuries, effectively replacing the concept of equal opportunity with "equal results for the favored group(s)", and punishing today's disfavored group for its perceived excesses. There are several problems with the application of disparate impact, albiet well intentioned, not the least of which is the fact that a substantial portion of the current population is no more predisposed to excesses than the current favored group(s). (New Haven officials, acting as well intentioned parents, did not specifically identify and establish which and how many questions on the tests were unrelated to the jobs before rejecting the test results.)
Taxpayers (individuals) deserve the best high performing firefighters to protect against property damage and loss of life. If the tests validly and reliably identify individuals (not groups) who are the best high performers, they should be accepted by government officials, unless they can prove cutlural bias.
I guess someone at the court read Thomas Paine's "Common Sense".
Ricci prevails. Amen. Chalk one up for common sense and decency. The concept of equal result and disparate impact needed to be junked.
Too bad the theft of my rights and my co-plaintiffs rights can't be restored.
At least Hayden V. Nassau has been unmasked as a fraudulent precedent and a railroad job by racial profilers operating under the protective hand of the government.
It would be nice if someone could post the "non job related" test questions. I think I would like to see the questions that were apparently missed by the minority students and passed by the white students. Since non job related questions that resulted in the invalidation of this test, it stands to reason that the minority students must have "missed" these questions.
We might discover that those who did not pass and those who passed but did not score high enough to get promoted might have done just fine on those "non job related" questions. The assumption seems to be that these questions are the root of the problem. I'm addressing not the "letter of the law" but rather the "spirit." Maybe they failed the "job related" questions.
This would leave us to examine why we would want people who couldn't pass "job related" questions on a "public safety related examination" to be placed in positions of greater authority and responsibility in the public safety arena.
Ostensibly to right a past wrong. Seems a high price to pay…and one that doesn't right the wrong. The most reprehensible wrong (after slavery itself) was the denial of quality basic education and access to institutions of higher learning. It seems that this wrong has been largely and aggressively addressed.
Why then would we take individuals who have access and success in higher learning and not hold them to the same standard as whites? Not doing so seems to say they are not as smart, not able to grasp the relevant material due to some innate shortcoming? Well, they are as smart and they are as capable…as a group. Just as each of our individual shortcomings reflects on us, their individual short comings should reflect on them not their "group."
Should Hayden have been overruled, of course. Disparate impact in some cases does not expose discrimination…it exposes inability, inattentiveness or lack of commitment on the part of individuals. Relying on it throws the baby out with the bath water. Not because discrimination is a thing of the past but because we should not see discrimination where it does not exist nor should we discriminate to absolve ourselves of past discrimination.
Tom S.