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June 30, 2009

Yesterday’s decision by the Supreme Court of the United States in Ricci v. DeStafano (Docket No. 07-1428) does little to resolve longstanding questions about the proper place of race in public hiring and promotional processes.  In siding with the appellant, the Court has made the case that process (disparate treatment) outweighs results (disparate impact) in determining whether racial preferences have violated the equal protection clause of the Constitution of the United States.

Previous courts have ruled that results alone could could satisfy the “strong basis in evidence test” used to determine that a process was inherently biased and therefore flawed.  Today’s decision swings the pendulum too far in the other direction by indicating that a sound process alone outweighs what many see as a flawed result.

It’s worth noting that the City of New Haven sought only to retest its candidates for promotion, not to deny promotions outright.  Although the city had apparently gone to great lengths to ensure the fairness of its promotional exam, the written examination still produced an unexpected result.

That the result was unwelcome as well as unexpected should come as no surprise to anyone.  Neither the white firefighters (and one Hispanic) whose promotions were put off by the decision to annul the test results nor the minority candidates who failed to score highly enough to warrant further consideration under the contested process won anything in today’s ruling.  Whether the city will have to promote the highest scoring candidates remains undecided largely because the court failed to add anything substantive to the debate.  Lower courts that now receive the case on remand will have to grope about for a remedy secure only in the knowledge that precedent is no guide.

If we had bothered to pay attention to history, we might have learned that process and results both matter.  A fair process does not always produce results that everyone agrees are fair, especially when such results are projected against a backdrop of bias or neglect.  Clearly, context matters (thank you Justice Ginsberg for noticing this in your minority opinion).  Flawed results will only prove acceptable when people can all agree that the process was fair.  This hardly seems likely in New Haven for the foreseeable future.

The people of New Haven and its firefighters have suffered through a long history of racial bias in hiring and promotion.  If, as those supporting the court majority argue, transparency is required in public hiring and promotional processes, then why not adopt methods that favor diversity and ensure public service agencies reflect the communities they serve?  By telling us only that the written exam’s results do not satisfy the “strong basis in evidence test,” the court has failed to provide any meaningful guidance as to what would justify an outcome as disparate as the one achieved in this case.

Respondents in this case did not argue that racial or ethnic diversity represents a ‘job-related business necessity’ in a public workforce consistent with the provisions of Title VII of the Civil Right Act.  To many, such an argument would have been wrong on its face.  Still others recognize that public employees do not serve themselves.  Rather, they serve a public that longs for opportunities to see public employment as a means to build a better life for everyone in their community.  Until employment practices achieve this end, no one can or should be satisfied with either the process or the results.

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