FedSoc Blog

Reverse-Reverse Discrimination in New Haven? UPDATED


by Publius
Posted August 17, 2011, 9:25 AM

The WSJ Law Blog reports that two years after the Supreme Court's 2009 decision in Ricci v. DeStefano, holding that New Haven had unconstitutionally discriminated against 20 firefighters when it threw out the results of a promotion test merely because white test-takers outperformed minority test-takers, the litigation continues.

Now, Michael Briscoe, a black firefighter in New Haven, is suing the city because, following the Supreme Court's decision in Ricci, it accepted the results of the test at the basis of the litigation and thus denied him a promotion. He alleges that the fact that the test was 60 percent written and 40 percent oral favored the white firefighters, whereas a 30-70 differential would have resulted in him passing.

After a federal district court decided that the Supreme Court's ruling shielded the city from suit over the test's validity, the Second Circuit Court of Appeals reversed the lower court and held that the suit, based on disparate impact claims under Title VII of the 1964 Civil Rights Act, could go forward. Click here for the court's decision.

The city argued that the Supreme Court had precluded the suit in language in the decision, which stated that "in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results," it would have been subject to liability for race discrimination. The appeals court, however, found that this was merely a "single sentence of dicta" unrelated to the holding of the case.

Click here for a Federalist Society SCOTUScast on Ricci v. DeStefano featuring Michael Rosman. Click here for a paper by Roger Clegg on the Obama Administration's involvement in the case for the Federalist Society's New Federal Initiatives Project.

UPDATE: For a discussion of the Ricci case within a broader argument for a new principle of equality, click here to read Donald J. Kochan's article "On Equality: The Anti-Interference Principle," published earlier this year in the University of Richmond Law Review.

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