Bench Memos

Highlights from the New Haven Firefighters Oral Argument

I was traveling last week, but have now read the transcript of the oral argument in the New Haven firefighters case. The envelopes, please.

Best line: Chief Justice Roberts noting that, on the city defendants’ theory, “they get do-overs until it comes out right” (page 48), meaning that they can throw out test results and keep trying new tests until they get the politically correct results they are after. 

Most surprising: The response of the Obama administration’s lawyer suggesting that the Court bear in mind that “[o]ne of the purposes of the disparate impact test, as this Court has recognized, is as a prophylactic against intentional discrimination, to root it out . . .” (page 29). Surprising because it would (correctly) lead to a narrow construction of the disparate impact test.

Best insights (tie): Scalia observing that the part of the 1964 Civil Rights Act banning disparate treatment and the 1991 part banning disparate impact “are at war with one another” (page 29); and Roberts noting, “It seem to me an odd argument to say that you can violate the Constitution because you had to comply with a statute” (page 52).

Most refreshing: Breyer, alone among the liberals, asking an at least somewhat hostile question to the city’s lawyers (page 50).

Key discussion: Whether “racially conscious” decisionmaking might nonetheless not be “racially discriminatory.” Might, for example, rejecting a test because it leads to racially lopsided results — and instead choosing a test because it is just as good but leads to each racial group getting its share of promotions — fall into this category, at least if the choice is made before the first test is given and the top scorers are known?  The correct answer is that, in the unlikely event that two tests really are equally good but lead to racially different results, then the way the decisionmaker should decide between them is by . . . flipping a coin.

At least, that’s the only principled answer, although the Court is of course capable of drawing a line that is unprincipled but more politically palatable. 

But unprincipled, alas, it will be, and the slippery slope can be demonstrated in a couple of ways. Suppose that the diversity is achieved not by choosing between equally qualified tests but between equally qualified people (the situation in the Piscataway school board case the Court — almost — heard a decade ago, involving a decision to lay off a white teacher rather than an identically qualified black teacher in order to achieve greater diversity): Surely such a layoff must be considered racially discriminatory! Or suppose the test is chosen because the diversity is best described not as favoring the underrepresented but as hostile to the overrepresented, such as changing university admissions criteria not because more blacks and Latinos are desired but because “too many” Jews (or, nowadays, Asians) are getting in: Surely that must be considered racially discriminatory!

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