I've been thinking a bit about Ricci v. DeStefano, the New Haven firefighters case currently before the Supreme Court and in the news because Supreme Court nominee Sonia Sotomayor was on the Second Circuit appellate panel that affirmed the lower court's decision. Conservatives have used Ricci as the poster child for the argument that affirmative action has gone too far and is outmoded, especially with a black president. They have also used it to try to undermine the nomination of Judge Sotomayor. With some exceptions, left of center commentators have not had much to say about the case, the facts of which appear hard to defend. But upon closer inspection, progressives should have more to say about Ricci than they've said so far.
First a quick recap of the facts for the uninitiated. If you wanted to be promoted to captain or lieutenant in the City of New Haven you had a take a written and oral test (the written test counted more than the oral test). The pass rate for the white test takers was double that of the colored test takers and the top scorers were almost all white. The City refused to certify the test, which meant that no one got promoted. Seventeen white firefighters and one Latino claiming racial discrimination. The City defended on the grounds that certifying the tests would subject them to a lawsuit from and liability to firefighters of color.
Ricci is interesting for a number of reasons. First, the case has a very compelling plaintiff, Frank Ricci. Ricci is dyslexic. He took time off from work, paid someone to read to him, and did extremely well on the exam. Straight out of central casting.
Second, the case seems grossly unfair. After Ricci and his fellow plaintiffs studied for the test and did well, the City looked at the racial composition of those who passed the test and then decided that it would scrap the test and not certify it. As Professor Fuentes-Rohwer would say, Uuugly!
Third, neither the district court nor the Court of Appeals gave this case the full treatment that it deserves given the very difficult legal issues that it presents. The Court of Appeals dismissed the case in favor of the City on summary judgment. (For the non-lawyer readers, this means that court believed that there were no issues for a jury because the law entitled the City to prevail on the facts.). The Court of Appeals panel first affirmed the judgment of the district court in a summary opinion. The full Court of Appeals then voted on whether to hear the case en banc (all the active judges on the court would participate as opposed to simply a panel of three). The petition for en banc review was denied (the appellate panel's decision would stand) and prompted a sharp dissent by Judge Jose Cabranes.
Fourth, there is the whole Sotomayor connection and not much more needs to be said about that.
As a point of departure, I'm in rough agreement with parts of Judge Jose Cabranes' opinion dissenting from denial of en banc review. Judge Cabranes raises two points that I find pretty compelling. First, it is not clear to me that the lower court was correct in dismissing this case on summary judgment. There seems to exist a question of fact as to why the City refused to certify the tests, which should have precluded a grant of summary judgment. Second, I also think that Judge Cabranes is correct that the Court of Appeals should have scrutinized the decision below more closely and offered its own independent analysis of the legal issues. By failing to give the case the full hearing it deserves, it looks as if both courts are trying to bury the case. Judge Cabranes' opinion was like a red flag for the Supreme Court inviting it to take the case, which it eagerly accepted.
I have no expectation that the Supreme Court will affirm the Second Circuit in Ricci. I fully expect another 5-4 opinion with Justice Kennedy playing Hamlet but reversing the court below. Nevertheless, I am not convinced that Ricci is ultimately the affirmative action slayer that conservatives make it out to be. As sympathetic as Frank Ricci may be as plaintiff, and I fully grant that he is a sympathetic plaintiff, it does not seem to me that one can sympathize with him without also being sympathetic to the African-American and Latino firefighters whose promotion prospects are more theoretical than actual.
While expressing sympathy for Ricci, denied an opportunity that he felt that he justly deserved, progressives should prompt a conversation about the causes, extent, and fairness of racial inequality. How can we be sympathetic to Frank Ricci who fought difficult circumstances to achieve his goal but we cannot be sympathetic for the black and brown kids who have to attend second-class schools, have extremely difficult home lives, and are more likely to die in a homicide than any other demographic group? Did the Frank Riccis in the New Haven fire department do better on that test because they worked harder, were smarter than their colored counterparts or are there structural disadvantages that account for significant disparate impact that we saw in those promotion tests? Should the City of New Haven use a test for promotion that would disqualify almost all of the Latino and African-American test takers? Is that our vision of a just society?