Â Â Â Â 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.Â The facts and legal question presented by this case are set forth below.
Â Â Â Â In 2003 the New Haven Fire Department administered written and oral examinations for promotion to Lieutenant and Captain.Â The Department selected IOS, an Illinois company, to design the examinations.Â The results of the tests were that seven whites and two hispanics and not a single black candidate qualified for promotion.Â The City's attorney, Thomas Ude,Â was concerned becauseÂ of the racially disparate impact of the test.Â If the black firefighters were able to prove that the test was notÂ job related theyÂ would haveÂ a valid civil rights claim against the city.Â 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 determineÂ eligibility for promotion.Â The Board voted 2 to 2 on whether to certify the results of the test, which had the effect of not certifying the results.Â The white and hispanic firefighters sued the Board to have the results of the test certified.
Â Â Â Â The trial court – District Court Judge Janet Bond Arterton – ruled in favor of the Board.Â 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 ofÂ a civil service examination – the nine sections which had the least racially disparate impact.Â Judge Arterton quoted Hayden in finding that the City of New Haven was not guilty of intentionally discriminating on the basis of race.Â 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.Â
Â Â Â Â My Constitutional Law students will recognize the "because of" test from the case ofÂ Feeney v. Personnel Administrator.Â (They were just tested on this point in their own examination and did beautifully!)Â This is a technically difficult principle of constitutional law.Â 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.Â 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.Â 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.
Â Â Â Â A three judge panel of the Second Circuit which included Judge Sotomayor affirmed Judge Arterton's decison in a one paragraph per curiam opinion.Â 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.Â
Â Â Â Â 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.Â By a vote of 7 to 6 the judges of the Second CircuitÂ declined to review the matter en banc.Â In a briefÂ concurring opinion Judge Calabresi explained why he believed that the decision of the District Court had to be affirmed.Â 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 foundÂ that the plaintiffs had waived this argument by failing to raise the point in the District Court.
Â Â Â Â One could criticize the decision of Judge Sotomayor's panel for its summary disposition of this difficult case.Â On the other hand, District Court Judge Arterton's decision was thorough andÂ it relied primarily upon binding precedent, leaving little for the appellate court to do unless it chose to overrule its prior decison in Hayden.Â In addition, whatever you think of the merits of this case, a Civil Service BoardÂ has to have some discretion to refuse to certify the results of a flawed civil service test.Â The difficult question is how much discretion the Board should have.Â Under Hayden the Second Circuit had givenÂ the Board pretty much carte blanche to reject the results of a test that has a racially disparate impact.Â It would not have beenÂ unreasonable to overrule Hayden.
Â Â Â Â But the main point of this post is what this case tells us about Judge Sotomayor.Â There are a few conclusions we can reach.
Â Â Â Â First, Judge Sotomayor cannot be considered an "outlier" or "radical" on the basis of this case.Â 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.Â She and the other judges affirmed the decision of the District Court which itself deferred to the City of New Haven.Â Finally, in ruling for the City she and the other judges followed binding judicial precedent.
Â Â Â Â Second, based upon this case Judge Sotomayor would appear to have a fairly conservative style of judicial decisionmaking.Â The per curiam opinion that she joined is brief to the vanishing point.Â 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."
Â Â Â Â 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.").Â In Ricci she and the other members of her panel ruled against the hispanic plaintiff.
Â Â Â Â The political maneuvering will be fascinating to watch in the coming days and weeks.Â I look forward to the debate over Judge Sotomayor'sÂ qualifications and what it will mean for the interpretation of the Constitution.