It is old, but I have been analyzing this case, si...

2010-11-25T01:34:12.822-05:00

It is old, but I have been analyzing this case, since I found it interesting.
I found Ginsburg's dissent seriously flawed for at least two major reasons:
1. Her improper understanding of the injury involved.

She says that the firefighters had no vested right to promotion, but in other places, seems to acknowledge a difference between changing a test for the next round of promotions and invalidating the result of a given one (a distinction Breyer and Souter tried to attack during oral arguments. It is confusing, but here is the real injury.

She makes another error:

”First, discarding the results of tests, the Court suggests,calls for a heightened standard because it “upset[s] an employee’s legitimate expectation. This rationale puts the cart before the horse. The legitimacy of an employee’s expectation depends on the legitimacy of the selection method."

However, legitimate expectations can be created on a legitimate expectation of the test being a legitimate selection method. This test was related to firefighting, so it is has a legitimate relation to the promotion.

But, here is the big flaw:

To have a QUANTIFIABLE, NARROWLY DIRECTED accomplishment geared towards a specific purpose invalidated based solely on one's race is a grievous dignitary harm. It is, in itself an act of disparate treatment no matter what the motive. This did not affect all races equally, since it only injured who accomplished high-enough scores on the test.

2. Her failure to factor in the equal protection clause.

Here is the important quote from page 75.

“In construing Title VII, I note preliminarily, equal protection doctrine is of limited utility. The Equal Protection Clause, this Court has held, prohibits only intentional discrimination; it does not have a disparate-impact component”

However, no statute is immune from being implemented with the clause in mind. The concept of requiring a strict scrutiny standard of review for disparate racial treatment is deeply rooted in this clause.

She acknowledges that the equal protection clause does not prohibit disparate impact, but does strongly prohibit disparate treatment, obligating a “strict scrutiny” standard of review. Why would it be constitutional, when no exception to the “strict scrutiny” standard of review has been accepted anywhere else, to demand an exception to avoid something the equal protection does not prohibit? It simply makes no sense.

Her discussion of history is also irrelevant, since it does not change the fact that tests were invalidated based solely on race. Plus, the tests would not have been discarded had there been no black test-takers, which further shows that the results were rejected based solely on race.

I would love to ask Ginsburg this:

Suppose women had a much higher score on a facially neutral law-school test. It could be documented that the women studied in an inordinately diligent and intensive manner, but could not be documented that the men did the same. Suppose the teacher disliked the results, and decided to scrap the test results on the basis of not liking the gender distribution of high scorers. Would Ginsburg consider that gender-neutral? (SARCASM) After all, the women had no vested right to a high grade in the class. To say such would be to be put the cart before the horse, because I am supposedly predisposing the test’s legitimacy (SARCASM).

Hopefully, this analogy shows all my points.

Comments on Lawffice Space - Employment Law Blog: Ricci - Ginsburg's Dissent

It is old, but I have been analyzing this case, si...