Legal News

Ricci: What Would Sotomayor Have Done?

By Nathan Koppel

Now that Ricci v. DeStefano is in the books, it's hard not to imagine WWSD: What would Sotomayor have done if she were on the court?

Here's a WSJ article on the ruling, in which a 5-4 majority concluded that New Haven violated civil rights laws when it scrapped the results of a firefighter promotion exam, in which some white candidates scored better than their black peers. (Here’s the opinion.)

Obviously, Sotomayor would have agreed with the dissent's conclusion that New Haven properly rejected the exam results given their disparate impact on minorities ─ a result Sotomayor and two colleagues earlier reached in the case. Still, would Sotomayor have liked the way Justice Ginsburg crafted the dissent?

Ginsburg accused the majority of ignoring "substantial evidence of multiple flaws in the tests New Haven used," which resulted in no blacks qualifying for promotion. A written exam accounted for 60% of an applicant's score, an oral exam accounted for the remainder. Ginsburg seized on expert testimony that there are other testing procedures that rely more heavily on a candidates' ability to demonstrate how they would address a particular problem "as opposed to just verbally saying it or identifying the correct option on a written test."

Written exams, Ginsburg added, citing testing experts, are not the best way to identify candidates with strong leadership and interpersonal skills. New Haven, she writes, "did not closely consider what sort of 'practical' examination would 'fairly measure'" applicants.

Ginsburg's opinion strikes us as fairly expansive, with much on the social science of test taking as well as a nod to the historical record of discrimination in New Haven and beyond. "Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow," she wrote, noting that blacks and Hispanics have long been underrepresented in the New Haven fire department.

Sotomayor, meanwhile, is known to be a minimalist ─ a relatively meticulous judge, who tends not to overreach in her rulings. Yet, Sotomayor also is known to rely heavily on the facts of a case in reaching results and to pay close attention to the practical context in which disputes arises ─qualities in evidence in Ginsburg's ruling, which begins with this proposition: "In assessing claims of race discrimination, 'context matters.'"

Full post as published by Law Blog - WSJ.com on June 29, 2009 (boomark / email).