The Obama administration filed an amicus brief with the Supreme Court on February 26 in Ricci v. DeStefano, a much-watched case that the Court will decide this year (the case will be argued on April 22). In it, the City of New Haven threw out the results of its firefighter-promotion exam because of its politically incorrect results (too many whites, and not enough African Americans, did well). The firefighters who did well on the test sued, alleging violations of Title VII of the 1964 Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment, but lost in the district court and court of appeals. (There were some procedural shenanigans in the way the Second Circuit handled the case that Ed Whelan has written about here; it is of interest that the allegations of procedural improprieties involve Judge Sonia Sotomayor, who is often mentioned as a possible Obama pick for the Supreme Court.)
The Obama administration’s brief (with lawyers on it not only from the Justice Department but also from the Labor Department and Equal Employment Opportunity Commission) argues that the City should be permitted to throw out the results of the test so long as it was motivated by a “reasonable” belief that using the results “may” have subjected it to liability under Section 703(k) of Title VII of the 1964 Civil Rights Act. Section 703(k) makes it illegal for employers to use selection devices that have a “disparate impact” on racial groups unless those test are “job related for the position in question and consistent with business necessity.” So long as an employer has this belief, says the brief, there is no violation of Title VII or the Constitution. But, concludes the brief, it’s not clear that the lower courts looked carefully enough into whether this belief was reasonable, nor indeed whether this was the real reason for the city’s action at all, and so it asks the Court to reverse the decision and remand for further proceedings.
While it could have been worse, there are three problems with the administration’s brief. The first is that it does not acknowledge that this is most charitably what is called a “mixed motives” case and that, if it is, the city is going to be liable to at least some degree. There is very strong evidence that the city was motivated in part, if not entirely, by political rather than legal reasons. Under Section 703(m) of Title VII, that’s enough to establish liability.
Second, mere “reasonable” belief that not throwing out the test results “may” result in Title VII liability is just not a tough enough standard for what is clearly the city’s disparate treatment of individuals based on their skin color. The central focus of Title VII is on preventing employers from making employment decisions with an eye on favoring some and disfavoring others based on race (and sex, religion, and national origin). Clearly this is what happened here. For that to be excused, the city must have a belief that is not just “reasonable” that it “may” be in violation of another part of the statute; it must be able to show the court that it indeed would be liable. The test proposed by the Obama administration is too easy.
Third, the part of the brief addressing the Constitution is even worse. The administration denies that choosing selection devices with an eye on the racial bottom line even triggers “strict scrutiny” under the Equal Protection Clause. It then argues that, in any event, such discrimination would be permissible so long as the city “has a strong basis in evidence for believing that the decision is reasonably necessary to comply with Title VII.” Even if the desire to comply with a statute can trump otherwise unconstitutional behavior, surely the employer must show, again, that it would be liable under the statute, not just that it “reasonably” believed that it might be.
But, again, the administration’s brief could have been worse, and if nothing else it’s good that the High Court is not told to rubberstamp what the courts below did. And, to be fair, there is a tough problem in this case: What is an employer to do when Congress has written a statute that mostly tells him not to weigh race in deciding whom to hire or promote, but in a secondary part tells him that he may be liable unless he does consider race? The right answer is to interpret the second part of the statute narrowly, so it doesn’t swallow the first and centrally important part, but it’s too bad that Congress stuck in the second part at all.
The stakes are high. In employment matters, if the desire to avoid a disproportionate result always allows employers to engage in disparate treatment, then Title VII and the Constitution permit quotas. And since the Constitution applies to nonemployment matters, then this approach would also allow, for instance, a university deliberately to fine-tune its selection devices with an eye to putting a ceiling on the number of “overrepresented” groups (say, Asians and Jews).
While I’m at it, let me note that there are some other red flags out there with regard to the new administration’s racial policies. On the same day it filed it Ricci brief, the Justice Department also entered into a settlement that “requires the city of Dayton [Ohio] to hire up to five eligible African-American claimants as police officers and up to nine eligible African-American claimants as firefighters” (quoting the Department’s press release). Again, the challenge was based on the city’s use of tests and certifications; it’s unclear why the relief should require numerical hiring rather than simple nondiscrimination.
Also the same day, the Department of Health and Human Services published in the Federal Register an initiative that targets “ethnic and racial minority groups at risk for substance use and HIV/AIDS . . . ” And the day before that, HHS also proposed a scholarship program open “only” to Native American Indians and Native Alaskans. Should we be using race and ethnicity as a proxy for being “at risk” for HIV/AIDS? And even if we want to improve health care and, in particular, “to service Indians,” are racially (or tribally) exclusive scholarships the way to do it?