June 2009

  • June 30, 2009
    Guest Post

    By Helen Louise Norton, Associate Professor of Law, University of Colorado Law School. Prof. Norton's analysis of Ricci v. DeStefano is part of an ACS online symposium, "Experts on Ricci," being published here.
    The Ricci majority takes the view that an employer who seeks to avoid using a test because it may discriminate against some has engaged in intentional discrimination against others. In so holding, the majority characterizes New Haven as declining to use the test in question "solely because the higher scoring candidates were white." The facts, however, are considerably more complicated: not only did the city's test impose a significant disparate impact against firefighters of color, but substantial uncertainty and controversy remain over the availability of less discriminatory, more accurate alternatives as well as the exam's ability to identify successful leaders. Indeed, in contrast to New Haven's exam - which relied only on a paper-and-pencil test and an oral interview to evaluate leadership potential -- two-thirds of fire departments surveyed use assessment centers that evaluate candidates for supervisory positions by requiring them to respond to real-world situations.

  • June 30, 2009
    Guest Post

    By Sarah C. Crawford, Senior Counsel for the Employment Discrimination Project, Lawyers' Committee for Civil Rights Under Law. Ms. Crawford previewed oral arguments in
    Ricci v. DeStefano on ACSblog here. This analysis is part of an ACS online symposium, "Experts on Ricci," being published here.

    "The . . . standard [announced by the majority], as barely described in general, and cavalierly applied in this case, makes voluntary compliance a hazardous venture."
    --Justice Ginsburg, writing for the dissent

    In the 5-4 decision in Ricci v. DeStefano, a narrow majority of justices on the Supreme Court concluded that the city of New Haven, Conn. violated Title VII of the Civil Rights Act of 1964, when it declined to make promotions in the fire department on the basis of a test that screened out almost all of the minority test-takers. With this decision, the Court has endangered critical equal employment opportunity safeguards that have been in place for decades to encourage employers to utilize tests that are both fair and effective.

    Despite the rulings below for the city and fervent arguments on appeal from both civil rights groups and employer groups in defense of the city's actions, most expected the majority to rule along ideological grounds for the Ricci plaintiffs. Nevertheless, the decision offered a number of surprises, particularly in terms of how far the Court was willing to go to rule for these plaintiffs.

    Perhaps the most troubling aspect of the decision is the disregard for the fundamental rule of statutory construction to look to the plain language of a statute and the underlying congressional intent. Looking to the plain language of Title VII, Congress clearly intended for employers to ensure that tests are "job related for the position in question and consistent with business necessity" and to adopt "alternative employment practice[s]" that would lessen a disparate impact. This decision contravenes the clear legislative language and intent of Title VII.

  • June 30, 2009
    Ohio State University law professor Peter M. Shane, who was a participant on a panel discussion about presidential power at the 2009 ACS Convention, talks with ACSblog about the constitutional methods for checking executive power. Shane, author of the recent book, Madison's Nightmare, says that regardless of the constitutional checks on presidential power, "Unless we can create a political context, in which Congress is vigilant in its use of checking-and-balancing power, the president is going to wind up, de facto, with more and more power anyway."

    Watch Shane's interview below or download a video podcast here.



  • June 30, 2009
    Guest Post

    By Josh Civin, Assistant Counsel, NAACP LDF. Mr. Civin's analysis of Ricci v. DeStefano is part of an ACS online symposium, "Experts on Ricci," being published here.

    Today's ruling in Ricci v. DeStefano should prod New Haven and every other employer-public as well as private-to place a premium on carefully developing practices for hiring and promoting employees. Most municipal employers use a better approach to evaluate job candidates than New Haven did here. According to a 1996 study cited by Justice Ginsburg in her dissent, nearly two-thirds of surveyed municipalities used assessment centers, which provide a simulation of the real-world work experiences. This movement away from written, multiple-choice tests makes sense especially for firefighting jobs. As Justice Ginsburg notes, "‘there is a difference between memorizing . . . fire fighting terminology and being a good fire fighter. If the Boston Red Sox recruited players on the basis of their knowledge of baseball history and vocabulary, the team might acquire [players] who could not bat, pitch, or catch.'" Slip Op. at 28, n. 12 (quoting Boston Chapter, NAACP v. Beecher, 504 F.2d 1017, 1023 (1st Cir. 1974)).

    It is likely that the Justices in the majority would not have objected if New Haven had decided from the outset to follow most other fire departments and use an assessment center to select firefighters for promotion to lieutenant and captain. As Justice Kennedy's majority opinion explains, our nation's core equal employment opportunity law, Title VII of the Civil Rights Act of 1964, "does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals regardless of race." Slip Op. at 25.

    What separated the majority and dissenting justices was their conflicting views about what legal standard should apply after an employment practice has been put in place and a municipality takes action to remedy its flaws. The majority's newly created "strong basis in evidence" standard will make it harder-but not impossible-for employers to abandon discriminatory employment practices after they have decided to use them. For this reason, this new standard is contrary to Congress's intent in enacting Title VII and completely neglects the long history of racial exclusion and discrimination especially in fire departments nationwide.

  • June 30, 2009
    UCLA Law School Professor Eugene Volokh, at The Volokh Conspiracy, recently gave praise and encouragement to a former Berkeley Law school student for penning a student article that was cited in a recent Supreme Court dissent by Justice Anthony Kennedy. Carolyn Zabrycki's Testimonial: How Autopsy Reports Do Not Embody the Qualities of a Testimonial Statement, law review article was "cited three times - and seemingly significantly relied on - by Justice Kennedy's dissent in Melendez-Diaz v. Massachusetts," wrote Volokh. Volokh concluded, "A feather in Zabrycki's cap, and (I hope) an encouragement to other students writing student articles."

    Speaking of student authorship, ACS recently announced the winners of the Richard D. Cudahy Writing Competition and its National Student Writing Competition. The Cudahy Writing Competition awards top lawyer and student papers that best reflect Seventh Circuit Judge Richard Cudahy's insight into the institutional forces that determine how doctrine is implemented, and appreciation of the public impact of doctrinal and institutional choices. The winner of the student entry was Dan Walters, of Wisconsin Law School, for his paper, Litigation-Fostered Bureaucratic Autonomy: Exploring the Institutional Roots of a Post-Chevron Moment in Administrative Law and Politics.

    The winning paper of ACS's National Student Writing Competition was Marquette University law school student Nathan Fronk, for his article, Doniger v. Niehoff: An Example of Public Schools' Paternalism and the Off-Campus Restrictions of Students' First Amendment Rights. Fronk's article will be published in the University of Pennsylvania Journal of Constitutional Law, which co-sponsored the competition.