Legal News

Sotomayor, a District Judge and the Ricci Case: Shades of Vonnegut?

By Jennifer Forsyth

Much has been made about the brevity of a per curiam opinion issued by a three-judge panel of the Second Circuit that included Judge Sotomayor in the Ricci v. DeStefano case. As we’ve discussed here previously, that suit was brought in 2004 by a group of white and Hispanic firefighters when the city of New Haven, Conn., voted not to certify a test after no black firefighters scored well enough on it to merit consideration for promotion.

But if the panel’s opinion leaned toward the short side, the ruling that it upheld — issued by U.S. District Judge Janet Bond Arterton in 2006 — was anything but, totaling 48 pages. In it, she explained why she ruled for the city in granting summary judgment. The three-judge panel called her opinion "thorough, thoughtful and well-reasoned," presumably a justification for why it didn’t need to parrot her in its own full-blown opinion.

But LB was curious as to what Judge Arterton, actually said — and therefore what Judge Sotomayor and her two colleagues implicitly condoned. (See the ruling here.) Here’s what we found:

Arterton looked at the city’s reasoning as to why it needed to scrap the test: that if it didn’t, it would violate Title VII of the Civil Rights Act of 1964, which says that employers can use tests for employment purposes as long as the test is not “used to discriminate against race, color, religion, sex or national origin." In this case, the city argued that certifying the test would have prevented it from promoting black firefighters, which would violate Title VII. Therefore, the city argued, it alternatively shouldn’t be held liable by the white firefighters for attempting to comply with that statute.

Arterton agreed, finding that in fact no discrimination took place against white firefighters who scored better on the test. She wrote that although the "evidence shows that race was taken into account in the decision not to certify the test results, the result was race-neutral: all the test results were discarded, no one was promoted and firefighters of every race will have to participate in another selection process to be considered for promotion.”

In other words, there can be no discrimination because everyone was treated the same. (Justice Scalia, during oral arguments this Spring, scoffed at the city’s argument that its actions were “facially neutral.” “It’s neutral because you throw it out for the losers as well as the winners? That’s neutrality?” This argument reminded Law Blog of “Harrison Bergeron”, the 1961 satirical short story by Kurt Vonnegut, Jr. (right), which began: “The year was 2081, and everyone was finally equal. “)

In ruling for the city, Judge Arterton looked to a 1999 ruling of the Second Circuit — Hayden v. County of Nassau — which held that the rejection of certain parts of an entry-level police department exam did not violate the law even though the modifications were implemented in order to benefit minority applicants. Because all applicants ultimately took the same test, though it had been modified, there was no discrimination.

In the New Haven case, Arterton found, “there is a total absence of any evidence of discriminatory animus toward plaintiffs — under the reasoning of Hayden — “nothing in our jurisprudence precludes the use of race-neutral means to improve racial and gender representation . . . [T]he intent to remedy the disparate impact of the prior exams is not equivalent to an intent to discriminate against non-minority applicants.”

Here’s the bottom line, LBers, and what’d we love for you to weigh in on: Arterton, Sotomayor and the panel think scrapping the test and coming up with another did not discriminate against the White and Hispanic applicants who did well. Justice Scalia, at least based on comments in oral arguments, seems to think the fact that everyone took the same test doesn’t necessarily mean there was no discrimination. Whaddya think?

LB Extra: Click here to see where lawyers in a school finance case actually cited “Harrison Bergeron” only to have Vonnegut say they didn’t understand his story.

Photo: Getty Images

Full post as published by Law Blog - WSJ.com on June 03, 2009 (boomark / email).