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.

1 comment:

  1. 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.