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.”
