-
Adieu, Adieu, Remember Me
March 25, 2011 | 39 comments
-
DeMint's Defense of RomneyCare is Ignorant...And Dangerous
March 17, 2011 | 85 comments
-
McConnell Pushing Vote to Block the EPA from Regulating Carbon Emissions
March 17, 2011 | 9 comments
-
More Barbour on Afghanistan
March 16, 2011 | 8 comments
-
House Passes Three Week Spending Bill
March 15, 2011 | 8 comments
The Spectacle Blog
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.”
View all comments (13) | Leave a comment
Leave a Comment
More Blog Posts by Philip Klein
http://spectator.org/blog/2009/06/29/re-sotomayor-overruled
Follow us:
ADVERTISEMENT
Current Issue
- Let's Return to the Gold Standard
- Barney Shuffles Off
- Who's Really Conservative?
- Digital Subscription (Save 78%)
- Buy a single issue (Save 50%)
- Send Spectator as a gift
Clip of the Day
ADVERTISEMENT
JP| 6.29.09 @ 12:19PM
"...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..."
Ginsberg dissent is telling. Nowhere does she mention the oidious practice of quotas and how they would somehow be just and constitutional. Remember, SCOTUS reversed an appeals court ruling that offered very little legal reasoning. Judge Sottomayer and 2 other judges dismissed out of hand the complaints of the plantiffs, pretty much saying sorry and good-day. Ginsberg brings up a strawman (how does she know the firemen who were given the promotions were qualified, when the only metric available -a state mandated test- said they weren't? Is she a firefighter? She never really defended the lower court's ruling from a purely legal, constitutional framework. Saying that written examinations are "discriminatory" a priory doesn't cut it.
What is also telling is that both the majority and dissenting opinions didn't mention at all the shabby way the lower courts treated the plantiffs. In many cases the majority's author will issue a scathing critique of the lower court's performance (see the over turning of the many 9th Circuit Courts opinions) and/or behavior. In this case, it was obvious that the 2nd Court of Appeals performed a grave injustice, but Kennedy and the majority remained silent.
Sean| 6.29.09 @ 1:02PM
"This case presents an unfortunate situation, one New Haven might well have avoided had it utilized a bette selection process in the first place. "
What sort of better selection process could they have come up with? I think by better she meant one that would have promoted more black candidates. So basically she is writing that a job based objective colorblind test is not a good selector of candidates.
Her thinking reminds me of the notion of the Howard Gardner's multiple intelligences. Maybe some of the candidates had high musical intelligence that could of been looked at instead. Or maybe candidates that are bodily-kinesthetic learners could have been given the nod.
Oldefarte| 6.29.09 @ 1:18PM
Brown vs. Bd. of Education [1954] established equal public schools, buildings, textbooks, teachers, computers, school supplies, and TESTS. It did not establish equal intellect or equal wills to succeed. REVERSE DISCRIMINATION is hopefully now illegal; and also hopefully, Sotomayor will not be our next Supreme Court justice!!!!!!!!!!!!!!
Robin| 6.29.09 @ 1:54PM
Being that this was a Title VII decision, I wonder if those who feel they were possibly denied admission to the US Naval Academy, as discussed by Prof Bruce Fleming of USNA here can take this a way to open a case?
"Under Title VII, the ADA, and the ADEA, it is illegal to discriminate in any aspect of employment, including...training and apprenticeship programs;"
The USNA's training leads directly to employment as a commissioned officer in the US Navy or Marine Corps.
Just a thought from an uninformed and uneducated non-lawyer.
Annapolis Capital article: http://www.hometownannapolis.com/news/opn/2009/06/14-47/Guest-Column-The-cost-of-a-diverse-Naval-Academy.html
Aaron| 6.29.09 @ 3:13PM
"This case presents an unfortunate situation, one New Haven might well have avoided had it utilized a bette selection process in the first place"
In other words... I wouldn't have to waste my time if New Haven would simply have handed out 20 applications to 15 blacks, 4 Hispanics and 1 over weight white man who can't pass the physical.
Keep it classy Ginsburg, I'm sure you and Soto will get a long great.
Liberal Reader| 6.29.09 @ 4:02PM
Just so we're clear, the Supreme Court usually chooses to hear cases where it believes the law is unclear, NOT where it believes appellate judges have simply been "wrong" in how they decided those cases.
The Ricci case has its beginnings in a complicated legal statute. Sotomayor (and other judges, including 4 on the Supreme Court) saw things one way, others saw it differently. The grey area in which these legal decisions took place is why these cases are interesting.
Simply boiling it all down to a Sotomayor being "overturned" does your readers a disservice and is frightfully dull and hairbrained.
The Supreme Court is an appellate court. It hears appeals. It does NOT hear evidence or listen to witnesses; there is no jury; it's not like what you see on Law and Order.
Appellate courts review cases that people of learning and wisdom and good faith disagree on because laws that are somehow ambiguous or especially difficult to apply.
DaveS| 6.29.09 @ 6:04PM
Three weeks ago, on these pages, I predicted the 5-4 decision for the firefighters, with the dissenters providing (innocently, perhaps) cover for Sotomayor. The lack of a hearing and explanation at the Sotomayor level was criticized by all nine justices. That tells you something about the willingness to engage on this issue using this case. My only potential error: I thought Thomas would write the majority opinion (some believe he had a hand in it), but it was ultimately delivered by Kennedy. I now figure that a Thomas majority opinion assignment by Roberts would have been defamed in the MSM. The decision should have been 9-0 for the firefighters - if you believe in equal protection.
DaveS| 6.29.09 @ 6:07PM
Dear Liberal Reader: the spelling is 'hare-brained' and Sotomayor was overturned (the judgment of the appeals court is reversed). What don't you understand?
Kindest Regards| 6.29.09 @ 7:43PM
SOTOMAYOR SHALL BE AN ASSET TO THE U.S. SUPREME COURT!
_____________________
SCANDAL! SCANDAL! SCANDAL!
EMERGENCY! EMERGENCY! EMERGENCY!
George W. Bush continuously criminally stalked Margie Schoedinger to the point that she could not get away from it, and she committed suicide in desperation to escape: he murdered her.
“In her suit, Margie Schoedinger states that George W. Bush committed sexual crimes against her, organized harassment and moral pressure on her, her family members and close relatives and friends. As Schoedinger said, she was strongly recommended to keep her mouth shut. . . . Furthermore, she alleges that George Bush ordered to show pressure on her to the point, when she commits suicide” (blog of drizzten).
“One of those ‘very leasts’ [was] George Bush’s personal complicity in the death (murder to be precise) of my friend Margie Schoedinger in September of 2003. Determining the exact whereabouts and contacts of . . . George Bush on September 21 thru 22, 2003, should be entirely lacking in difficulty” (Leola McConnell—Nevada Progressive Democratic Candidate for U.S. Senate in 2010).
McConnell is correct: Bush applying pressure (continuously criminally stalking Margie Schoedinger) purposefully to force Schoedinger to commit suicide does in fact constitute murder where it culminated in her death.
Bush is a racist hate criminal and hates black people (please feel free to see my “GEORGE W. BUSH IS THE WORST PRESIDENT IN U.S. HISTORY” blog). (Schoedinger was an African-American woman.)
BEWARE: If the president of the United States hates one—for whatever reasons—he can continuously criminally stalk one to the point that one cannot get away from it, and one ultimately commits suicide in desperation to escape. He can murder people in this way.
Bush is getting away with his murder of Schoedinger—with no sheriff, prosecutor, or court willing to uphold the rule of law.
Bush’s method of murdering Schoedinger cannot exist in a vacuum: he must have murdered other people in the same way.
Bush should confess, come out with the names of all of the people whom he murdered in the disgusting way he murdered Schoedinger, undergo execution, and accordingly find himself at the intersection where he would be free.
(There are thousands of copies of the information above on the Internet. It exists very extensively in all major search engines. Please feel free to go to any major search engine, type “George W. Bush continuously criminally stalked Margie Schoedinger to the point that she could not get away from it, and she committed suicide in desperation to escape: he murdered her” or “Bush applying pressure (continuously criminally stalking Margie Schoedinger) purposefully to force Schoedinger to commit suicide does in fact constitute murder where it culminated in her death,” hit “Enter,” and find innumerable results.)
_____________________
Andrew Wang
(a.k.a. “THE DISSEMINATING MACHINE”)
B.S., Summa Cum Laude, 1996
Messiah College, Grantham, PA
Lower Merion High School, Ardmore, PA, 1993
BD57| 6.29.09 @ 8:55PM
Liberal Reader has a point - people of good faith do often disagree when arguing these cases.
BUT (there's always a 'but', isn't there?) ...
there's one aspect of the case where NO ONE agreed with the decision below ...
The Supreme Court majority said the lower court got it wrong and the firefighters were entitled to judgment in their favor.
The Supreme Court minority said the lower court got it wrong - the lower court should not have ruled against the firefighters - and said the case should go back down for proper disposition on the merits.
None of the justices said summary judgment in favor of the City (Sotomayor's position) was correct.
Bill| 7.5.09 @ 2:41PM
Hey Liberal Reader I thought the Supreme Court simply rules on constitutionality. I don't know where your "because laws that are somehow ambiguous or especially difficult to apply" fits in. It is a stretch to say most laws are easily understood and written in a manner that is pat. If that was the case 1 million lieyers would be out of work.