Re: Sotomayor Overruled

The Ricci decision Jeffrey Lord noted earlier came in 5-4, with the breakdown along the predictable lines. Kennedy wrote the opinion of the court, and was joined by Scalia, Thomas, Alito, and Roberts. Scalia and Alito also each filed concurring opinions. 

Here’s the reasoning in Kennedy’s opinion:

The record in this litigation documents a process that, at  the outset, had the potential to produce a testing procedure that was true to the promise of Title VII:  No individual should face workplace discrimination based on race. Respondents thought about promotion qualifications and relevant experience in neutral ways.  They were careful to ensure broad racial participation in the design of the test  itself and its administration. As we have discussed at length, the process was open and fair.

The problem, of course, is that after the tests were completed, the raw racial results became the predominant  rationale for the City’s refusal to certify the results.  The  injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the City had established for the promotional process. Many of the candidates had studied for months, at considerable personal and financial ex- pense, and thus the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe. Confronted with arguments both for and against certifying the test results–and threats of a law-suit either way–the City was required to make a difficult inquiry. But its hearings produced no strong evidence of a
disparate-impact violation, and the City was not entitled to disregard the tests based solely on the racial disparity
in the results.

Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then 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 disparate-treatment liability.

Petitioners are entitled to summary judgment on their Title VII claim, and we therefore need not decide the underlying constitutional question.  The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.

Ginsburg wrote the dissent, and was joined by Souter, Stevens and Breyer.

She wrote:

It is indeed regrettable that the City’s noncertification decision would have required all candidates to go through another selection process.  But it would have been more regrettable to rely on flawed exams to shut out candidates who may well have the command presence and other qualities needed to excel as fire officers.  Yet that is the choice the Court makes today.  It is a choice that breaks the promise of Griggs that groups long denied equal opportunity would not be held back by tests “fair in form, but discriminatory in operation.”

This case presents an unfortunate situation, one New Haven might well have avoided had it utilized a bette selection process in the first place.  But what this case does not present is race-based discrimination in violation of Title VII.  I dissent from the Court’s judgment, which rests on the false premise that respondents showed “a significant statistical disparity,” but “nothing more.”