Posted by Jonathan Adler:
"What Really Happened" in *Ricci*:
http://volokh.com/archives/archive_2009_06_07-2009_06_13.shtml#1244821806
Stuart Taylor may "admire many things about Judge Sonia Sotomayor,"
but [1]his latest column raises concerns about the handling of Ricci
v. DeStefano.
The panel's decision to adopt as its own U.S. District Judge Janet
Arterton's opinion in the case looks much less defensible up close
than it does in most media accounts. One reason is that the
detailed factual record strongly suggests that -- contrary to
Sotomayor's position -- the Connecticut city's decision to kill the
promotions was driven less by its purported legal concerns than by
raw racial politics.
Whichever way the Supreme Court rules in the case later this month,
I will be surprised if a single justice explicitly approves the
specific, quota-friendly logic of the Sotomayor-endorsed Arterton
opinion.
Judge Jose Cabranes, Sotomayor's onetime mentor, accurately
described the implication of this logic in his dissent from a 7-6
vote in which the full U.S. Court of Appeals for the 2nd Circuit
refused to reconsider the panel's ruling.
"Municipal employers could reject the results of an employment
examination whenever those results failed to yield a desired racial
outcome -- i.e., failed to satisfy a racial quota," Cabranes wrote.
The Sotomayor-endorsed position allowed such a "race-based
employment decision," Cabranes added, even though the New Haven
exams were "carefully constructed to ensure race-neutrality" and
even though the city had neither found nor tried to find a more
job-related test.
The Cabranes dissent and the voluminous factual record that was
before the Sotomayor panel flatly contradict the widely stated view
that her position was justified by evidence that the exams were not
job-related and that they discriminated against blacks in violation
of the "disparate-impact" provisions of federal civil-rights law.
In fact, neither Sotomayor nor any other judge has ever found that
the exams -- one for would-be fire lieutenants, one for would-be
captains -- were invalid or unfair. Nor has any judge found that
allowing the promotions would have violated disparate-impact law.
Rather, the Sotomayor-endorsed position was that under 2nd Circuit
precedents, New Haven's discrimination against high-scoring whites
must be upheld based solely on the fact that disproportionate
numbers of blacks had failed to qualify for promotion and might
file a disparate-impact lawsuit -- regardless of whether they could
win it.
In my prior posts, I've raised greater concerns about the procedural
handling of the case than the substance, but the two are related.
Insofar as a ruling for the city could establish an extreme precedent
-- which is Taylor's argument -- the belated switch from an
unpublished affirmance without precedential effect to a published per
curiam affirmance that would establish binding circuit precedent
without any explanatory opinion, is harder to justify. I don't know
how much Judge Sotomayor can say about how the case was handled during
her hearings, but she is sure to be questioned about it, particularly
due to [2]news reports suggesting why the case was handled this way.
References
1.
http://www.nationaljournal.com/njmagazine/print_friendly.php?ID=or_20090613_4064
2. http://www.nytimes.com/2009/06/06/us/politics/06ricci.html
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