Sunday, August 23, 2009

Ricci - Ginsburg's Dissent

I bet you thought I forgot! Between the media circus, the heated discussion in legal circles, and my own extensive blogging on the matter, I was essentially all Ricci-ed out. Now that I've had some time away from the subject, I am rededicated and proud to present the final installment: Ginsburg's Dissent.

You may recall that I presented an objective overview of Ricci - The Majority. I then had some fun with more subjective interpretations of Scalia, Equal Protection, and the Future of Disparate Impact and most recently, Alito, the Reverend, and Sotomayor. Now, I return to an objective overview for Ginsburg's dissent.

First, I must note that Justice Ginsburg's opinion is by far the longest and contains a wide array of arguments. As this is a blog, I will necessarily present some arguments in a succinct manner that does not do the full argument justice. You are, of course, invited to read her full opinion to get the detailed version.

Disparity and Discrimination
Justice Ginsburg begins with a recounting of the history of discrimination in the firefighting profession. She specifically highlights the history of racial disparity in the New Haven Fire Department. Although racial disparities have largely been eliminated in lower ranks in New Haven, the leadership positions are still disproportionately white.

Ginsburg also recounts the judicial history of disparate impact claims culminating in Congress enacting the Civil Rights Act of 1991.

New Haven's Test was Flawed
Obviously, as it's the basis of the case, New Haven's exam yielded disproportionate results. Half of the Lieutenant candidates were black or Hispanic... none were eligible for promotion following the test (the Captain's test yielded less disparate but similar results). New Haven used a combination written/oral exam. Ginsburg repeatedly brings up the lack of a "performance" test. Further, some of the questions were irrelevant and disparities existed in access to the study materials.

The Majority's Test is Flawed
The majority held that New Haven could have declined to certify the test results following the disparate results only if they had a "strong basis in evidence" to believe they would be liable under a Title VII disparate impact claim. Ginsburg takes issue with the test itself which has little definition in judicial precedent.

She feels the test is not only ill-defined but also too high a hurdle. Such a hurdle places an impediment on future employers wishing to voluntarily comply with Title VII by choosing how best to tread the line between disparate impact and disparate treatment. Voluntary compliance is a goal of Title VII.

Justice Ginsburg would have allowed employers to engage in what the majority labels "disparate treatment" where an employer has "good cause" to believe it faced disparate impact liability (as opposed to the strong basis in evidence standard of the majority). I believe the heart of her opinion, in her own words, is:
“A reasonable endeavor to comply with the law and to ensure that qualified candidates of all races have a fair opportunity to compete is simply not what Congress meant to interdict. I would therefore hold that an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII’s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity.”
New Haven Never had a Chance
Ginsburg takes issue with the majority granting summary judgment for the Plaintiffs. She feels that New Haven should have at least had an opportunity to satisfy the majority's newly announced "strong basis in evidence" test.

She then recounts the numerous flaws with the exam. Established Title VII law dictates that disparate statistics do not yield disparate impact liability where the test used was a "business necessity." Ginsburg refuses to accept that an “outmoded and exclusionary selection process qualified as a business necessity.”

Target: Alito
Justice Ginsburg seems to take particular exception to Justice Alito's concurring opinion in which he painted a picture of racial politics dictating New Haven's decision to reject the test results. Ginsburg argues that heated rhetoric was in plentiful supply from both sides of the debate. She also claims that political considerations, or “placating” a racial minority is not necessarily a Title VII violation. I'm not conveying her anger here, but read for yourself to get a feel for her tone.

I Dissent
Justice Ginsburg's closing line begins “I dissent . . . .” It notably does not include the word “respectfully.” Exclusion of the word “respectfully” is considered a subtle way for Supreme Court Justices to convey extreme displeasure with a majority opinion.