Ricci v. DeStefano – the New Haven Firefighter case – Which Is Fairer, Multiple Choice or Oral Examinations?

     In a previous post I described the New Haven firefighter case and Judge Sonia Sotomayor's participation in it as a member of the Second Circuit Court of Appeals.  In this posting I will analyze yesterday's 5-4 decision of the Supreme Court reversing the Court of Appeals' decision in that case.  One aspect of this case particularly intrigued me.  As an educator I was very interested in the fact that the type of test that was administered – multiple choice versus oral exams – resulted in different people and different groups doing well, and I look forward to hearing your opinions about the best way to test for leadership positions in the firefighting profession.

     The decision of the Supreme Court in Ricci v. DeStefano, including the concurring and dissenting opinions, is 93 pages long.  I will try to condense the reasoning of the judges from the different opinions but I am sure to leave out many important points. 

     New Haven hired an Illinois company, IOS, to draft and administer the firefighter examinations for promotion to captain and lieutenant.  Under union rules, 60% of the test score had to be based upon a written examination and 40 % from an oral examination.  The written test that IOS constructed consisted of 100 multiple choice questions based upon training manuals and other materials. The oral examinations, also managed by IOS, were conducted by panels selected from 30 high-ranking firemen from out-of-state.

     77 candidates (43 whites, 19 blacks, and 15 hispanics) took the lieutenant examination, and all 10 of the persons who became eligible for promotion to captain were white.  41 candidates (25 whites, 8 blacks, and 8 hispanics) took the captain examination, and of the 9 persons who became eligible for promotion to captain 7 were white and 2 were Hispanic. If the tests had been weighted differently – if the multiple choice test had comprised 30 % of the final score and the oral examination had counted for 70%  – then 3 black candidates would have qualified for promotion to lieutenant or captain.

     Because the test results had such an overwhelmingly disparate impact on blacks the City canceled the test results and intended to develop another means of evaluating firefighters for promotion.  The firefighters who had qualified for promotion under the test sued the city.  The federal District Court ruled in favor of the City and a panel of the Second Circuit Court of Appeals – Judge Sotomayor and two other judges – affirmed the decision of the district court in a very brief opinion in which the court relied on precedent previously handed down by the Second Circuit (the Hayden case).  One of the plaintiffs in that other case, Mr. Hayden, recently submitted a comment on the other thread.  

     Yesterday the Supreme Court reversed the decision of the District Court and the Second Circuit  and entered judgment for the plaintiffs, the New Haven firefighters who had qualified for promotion on the tests.   The plaintiffs raised two issues.  First, they claimed that when it canceled the test results the City violated Title VII – a federal civil rights statute – in that the City was treating them differently because of race.  Second, they claimed that even if the City's action was legal under Title VII it was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.

     Justice Kennedy wrote the opinion for the five justices of the majority.  The City had contended that it had not only the right, but the duty, under Title VII, to cancel the test results, because of the danger that the test itself was unfair to racial minorities.  If an employment test has a racially disparate impact the employer has the burden of proving two facts: that the test was "job related," and that there was no other employment test that would be just as accurate but that would have had a smaller impact on minorities.  Justice Kennedy agreed that under certain circumstances the City had the legal right to abrogate the test results, but he established a fairly high standard for the City to meet.  He ruled before a city can throw out the results of an employment test it has already administered it must have a “strong basis in evidence” to believe that test results that have a disparate impact are not job related or that there is an alternative employment test that would have had less disparate impact that could have been used.  The Court adopted this standard as an interpretation of Title VII, the statute, and it did not reach the question of whether or not the city’s decision violated the Equal Protection Clause. The Court concluded:

Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe. Confronted with arguments both for and against certifying the test results—and threats of a lawsuit either way—the City was required to make a difficult inquiry. But its hearings produced no strong evidence of a disparate-impact violation, and the City was not entitled to disregard the tests based solely on the racial disparity in the results.

     Justice Scalia’s concurring opinion (starting at page 39 of the pdf copy of the case) suggests that the “disparate impact” provision of Title VII itself is unconstitutional.  He thinks that when the law forbids the use of employment techniques that have a racially disparate impact the law is encouraging employers to discriminate on the basis of race.  No other justice joined Justice Scalia's opinion. 

     Justice Alito, in his concurring opinion (starting at page 42 and joined by Justices Scalia and Thomas) goes further than Justice Kennedy but not as far as Justice Scalia in condemning the City's decision to rescind the test.  He comes to the conclusion that a reasonable person could have found that the real reason that the City reversed the test results was simple racism – that the City was responding to political pressure from blacks and that their stated reason to comply with Title VII was simply a pretext.  Accordingly, he thought that this was an additional reason to rule against the City.

     Justice Ginsburg wrote a dissenting opinion (beginning at page 54) for four members of the Court – herself and Justices Stevens, Souter, and Breyer.  She says that the majority opinion “leaves out important parts of the story,” including the history of racial discrimination in the firefighting profession (in New Haven in the early 1970s racial minorities comprised 30 % of the city’s population but only 3 % of the firefighters) – that the white candidates in this case had greater access to study materials because they had relatives in the department – that other cities use different tests that have less racially disproportionate impact – and that multiple choice tests may not be the best way to evaluate leadership capability in the field.  In particular, the dissenters thought that the City of New Haven acted in good faith when it threw out the test results.  The dissenters found that there was substantial evidence that the City was worried that it would not be able to defend the validity of the test if the black firefighters brought a suit under Title VII for "disparate impact." 

     That's the basic problem in this case.  If the City hadn't cancelled the test results, it was potentially vulnerable to a "disparate impact" suit under Title VII from the black firefighters.  When it did cancel the test results, the City was sued by the white and hispanic firefighters for "disparate treatment" in violation of the same law.  In light of that problem, the precise legal standard governing the City's action makes a big difference.  Under the decision of the majority, the City must have "strong evidence" that the test is not job related before it can cancel the results.  The dissent would let the City cancel the results so long as it acts in "good faith."  From the City's perspective the decision of the majority in the Ricci case puts them on the horns of a dilemma.  If a test is administered that has a racially disproportionate impact the City has the burden of proving to black candidates that the test was fair – but it can't cancel the test unless it has strong evidence that it was not fair.  After this case I wouldn't want to sit on a City Council trying to guess how a court two or three years in the future was likely to evaluate the fairness of the test.  Of course, if I were a candidate for promotion I wouldn't want to have to study for a test whose results could be easily thrown out.

     As a last thought, back to the question posed in the title of this piece.  Are multiple choice tests or oral examinations better for evaluating leadership capability in a field like firefighting?  Do you think that the City had a decent argument that the 60-40 weighing (60 for the written portion, 40 for the oral) was, in hindsight, a mistake, and that more reliance should be placed on the oral exams?

Tagged as: equal protection, ricci, Ricci v. DeStefano, sotomayor, supreme court, Title VII