The following essay was written for our Race and the Supreme Court program by John C. Brittain, a professor at the University of D.C. David A. Clarke School of Law.  Professor Brittain is the former dean of the Thurgood Marshall School of Law and one of the original counsel in the landmark Connecticut Supreme Court case on school racial integration, Sheff v. O’Neill.

The Supreme Court's decision in Ricci v. DeStefano clearly established a new standard of a "strong-basis-in-evidence" when an employer decides to disregard test results because it believes the statistical differential pass and fail rates for racial and ethnic minorities may trigger claims of disparate-treatment and disparate-impact provisions under Title VII of the Civil Rights Act of 1964.  Title VII prohibits discrimination in employment.  But this widely publicized and most controversial civil rights case of the 2008 Term of the Supreme Court involving claims of employment discrimination by 17 White and one Latino firefighters in the New Haven Fire Department created ambiguity about the anticipated claims of African American and Latino minority members of the department regarding the test under review in the case.  Did the Supreme Court decision foreclose the opportunity of African American and Latino firefighters to challenge the same test?

After holding that an employer may consider the race of applicants in reviewing test results for the purpose of remedying an unintentional disparate impact so along as the employer has a strong-basis-in-evidence consisting of more than statistical disparity in the test results, the court then proceeded to evaluate the case under the new standard.  Following an examination of the record in the case, the court found on a motion for summary judgment (no trial and only limited discovery) that there was "no genuine issue as to any material fact" and the firefighter plaintiffs were entitled to a judgment as a matter of law.  The mere statistical disparity of the much lower pass rate for Blacks and Latinos on the captain and lieutenant examinations that fell below the Equal Employment Opportunities Commission rule of thumb for courts did not satisfy the new strong-basis-in-evidence test.  Further, the court found that the New Haven test satisfied the Title VII law because a) it was job-related and consistent with business necessity, or b) there were no equally valid, less discriminatory alternatives that the city refused to adopt.  Thus said the court, "fear of litigation alone cannot justify an employer's reliance on race to the determinant of individuals who passed the examination and qualified for promotions."

Justice Anthony Kennedy, author of the majority opinion, created the ambiguity regarding the ability of the minority firefighters to attack the test in question when he concludes that if the City of New Haven certifies the results and faces a disparate impact suit after this decision, it "should be clear that the City would void disparate-impact liability based on the strong basis-in-evidence that, had it not certified the results, it would have been subject to disparate treatment liability" (emphasis added).  Does this mean that the Black and Latino firefighters in the New Haven Fire Department cannot bring a disparate-impact or disparate-treatment claim involving the same examination that gave rise to this case?

A basic law school legal methods analysis of the decision should lead to the conclusion that the minority firefighters' claims have not been decided.  The court's holding that New Haven did not have a strong-basis-in-evidence to cancel the promotion test in no way extinguished the rights of the minority firefighters to attack the test under Title VII.  Rather the Ricci decision only affects the City of New Haven.

The minority firefighters were never parties to the lawsuit nor were the potential claims of violations of Title VII based upon the disparate-treatment and disparate-impact claims to invalidate the test litigated by either the plaintiff firefighter Frank Ricci et. al or the defendant City of New Haven.  In fact, plaintiff Ricci supported the validation of the test to preserve his group's high ranking that has since lead to their promotion.  And the defendant city expressed uncertainty at best about the validity of the test; therefore, it canceled the results only to conduct further study.  However, the city to this day has not admitted its own test lacked validity.  Thus the test in question has not faced the intense scrutiny in the hard-pressed litigation process with testing experts, validity analysis, and comparisons with equally valid and less discriminatory alternatives by hostile parties in the adversary process.  In summary, both the mostly white plaintiff firefighters and the City of New Haven never fully challenged the validity of the test. As a result, the city’s interests are adverse to minority firefighters' claims of disparate-treatment and disparate-impact and, consequently, the holding in Ricci should not bar future claims by the minority firefighters who were not parties to the lawsuit.

Certainly the principle of res adjudicata that bars twice litigating the same claims by the same parties would not apply due to the different interests and parties in the Ricci case.  Nor should the doctrine of issue preclusion that binds a finding in one case upon a similar subsequent case because neither side in Ricci fully litigated the validity of the test within the well-established parameters of legions of Title VII disparate-treatment and disparate-impact law.  The Ricci decision only scratched the surface of the test validity to determine if New Haven has enough strong-basis-in-evidence to take the interim step of canceling the promotion list pending further study of the validity of the examination.  The Supreme Court said no, but did not disturb the rights of minority firefighters to wage their own legal battle.

Nevertheless, the issue whether the Supreme Court decision in Ricci is a bar to claims by minority firefighters will inevitably spawn a new round of litigation.  In fact, such litigation has already begun in New Haven.  After the mandate from the Supreme Court returned to the district court, a group of African American and Latino firefighters moved to intervene in the pending Ricci lawsuit and attached a copy of a proposed complaint to their motion.  The U.S. District Court judge, Janet Arterton, denied the motion with a brief order that left the door open for the minority firefighters to file a new suit.  Ironically, both plaintiff Ricci and the City of New Haven, adversaries in the original case, joined in opposing the minority firefighters' motion to intervene.  The once-adverse parties both asserted that the motion for intervention and any subsequent suit by the minority firefighters would be barred by the Supreme Court decision.  But the district court did not accept that argument, at least for the time being.

Meanwhile, the minority firefighters voluntarily dropped their efforts to intervene in the original lawsuit in preparation for a fresh start. They have filed charges of employment discrimination with the Equal Employment Opportunity Commission, thus setting the stage for the next round in the New Haven firefighters' employment discrimination litigation.

Posted in Race and the Supreme Court