Supreme Court Argument Preview: Equal Protection & Equal Opportunity in Ricci v. DeStefano

The Supreme Court will hear argument on Wednesday in Ricci v. DeStefano, a case brought by a group of firefighters in New Haven, Connecticut, challenging the City’s decision not to use the results of a promotion exam because the City was concerned, based on the results, that the test was unfair to minority candidates.

In the midst of considering firefighters for promotion, the City of New Haven learned that the examination it had used to determine which firefighters were qualified for the promotion may have created a discriminatory process, as none of the African‐American candidates and only 2 Hispanic candidates for the positions of Lieutenant and Captain would have been eligible for promotion based on the exam results. After holding hearings to reexamine the test with an eye toward equal opportunity laws, the City found that the test may have created a flawed process. It did not act on the results of the potentially discriminatory examination, but instead endeavored to find a fair and lawful alternative. As the briefs of New Haven and its amici demonstrate, this decision was about ensuring the use of a promotion process that was fair and provided an equal opportunity for everyone seeking a promotion.

A group of white firefighters who passed the original test disagreed, and sued the City under the Equal Protection Clause and Title VII of the Civil Rights Act of 1964, the landmark legislation that sought to root out employment discrimination across our nation. With respect to the constitutional claim, the firefighters argue that disregarding the results of the original test based on the race of who passed and who didn’t constitutes intentional and impermissible discrimination against the white firefighters under the Equal Protection Clause.

This is an argument that may well be attractive to the conservative Justices, who adhere to a vision of a “colorblind” Constitution under which “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” in the words of Chief Justice Roberts. The white firefighters in Ricci take this slogan to mean that New Haven should not have attempted to remedy any disparate impact the promotion exam had on minority firefighters because to look at the racial make-up of the successful and unsuccessful test-takers is not “colorblind.” But as will surely come out at argument on Wednesday, this simplistic characterization of constitutional guarantees is unrealistic and likely to thwart efforts to end discrimination rather than to help.

Under the Fourteenth Amendment, state and local governments have a responsibility to ensure equal opportunity and freedom from discrimination for everyone. That takes work, not just hopeful catch-phrases, and it requires watching how different policies and practices actually play out on the ground. When a government employer has evidence that a test or other recruiting process may have been or is likely to be discriminatory, it has a responsibility to reexamine or abandon that process and find one that’s fair and effective. That’s what New Haven did in this case, and it shouldn’t be unconstitutional.

While the Ricci case gestures at broad constitutional debates, the arguments are more likely to focus on the facts and the legal specifics. After all, New Haven hasn’t made any promotion decisions; it has just taken a step back to reexamine the process by which it makes these promotions. In addition, the case was decided at an early stage in the trial court, so the Justices could be interested in avoiding the major constitutional and statutory issues altogether and accept the United States’ position—which will be presented in court, as the Solicitor General was granted argument time—that the case should be sent back to the trial court for more proceedings to flesh out all the facts.

Even so, it will be interesting to see at argument whether the conservative Justices who adhere to an overly simplistic view of a “colorblind” Constitution are willing to push that view of the Fourteenth Amendment even further. We certainly hope that the Court recognizes that a slogan isn’t enough to protect our constitutional rights—which is why the drafters of the Fourteenth Amendment not only mandated equal protection of the laws, but gave Congress the power to make good on that promise—and reaffirms the duty of all employers, both government and private, to ensure that they are using fair and effective promotion policies.