By Cheryl I. Harris and Kimberly West-Faulcon

The Supreme Court’s narrow ruling in Ricci declaring that the City of New Haven discriminated against white firefighters involves more than just one case. It is actually the latest salvo in the war being waged by the Court’s conservative majority to redefine racial discrimination as any and all race-conscious action—even when taken to avoid race discrimination.

Cheryl Harris

In a 5-4 ruling filed on June 29,the Court ruled in favor of 17 white firefighters and one Hispanic firefighter who sued the New Haven, Connecticut Fire Department for discarding promotional tests in an effort to comply with federal employment discrimination law- namely, Title VII of the Civil Rights Act of 1964.

The majority opinion written by Justice Anthony Kennedy leaves intact Title VII’s ban against race- and gender-neutral practices that produce unintended adverse effects on racial minorities and women (known as “disparate impact”) as well as Title VII’s prohibition against intentional discrimination (known as “disparate treatment.”)

However, just as the Court’s earlier decision, in the Seattle, Washington school desegregation case, Parents Involved in Community Schools v. Seattle School District (“Parents Involved”), subjected voluntarily adopted desegregation student assignment policies to the same standard as school segregation itself, the Ricci ruling subjects an employer’s voluntary action to eliminate exclusionary employment tests to heightened review judicial scrutiny like that applied to intentional discrimination.

While not all forms of race-conscious action have been labeled discrimination under this approach, the majority’s analysis threatens to conflate the two. This is part of the conservative fight to radically change employment discrimination law and equal protection doctrine. Despite the election of Barack Obama as President, Ricci reveals that there is no truce and no disarmament in sight.

Justice Antonin Scalia is the most overt in pushing this objective. In a separate opinion, he suggests that Title VII’s disparate impact doctrine is itself unconstitutional. While the majority opinion dealt only with interpreting Title VII, Scalia implicitly chastised his conservative colleagues for not pursuing the ultimate battle, declaring that “the war between disparate impact and equal protection will be waged sooner or later.”

In this respect, in Ricci, as in Northwest Austin Municipal Utility District Number One v. Holder (“NAMUDNO”), the conservative majority reaffirmed key provisions of anti-discrimination law– here Title VII, in NAMUDNO, the Voting Rights Act– but similarly raised and deferred questions regarding each statutes’ constitutionality. In what appears to be an ideological battle to deem even thinking about race or racial effects as equivalent to race discrimination, race-conscious anti-racist law in every domain—education, voting rights and now employment—is now being challenged as racist.

Under such a regime, racial disadvantage could rarely, if ever, be addressed. There has not as yet been a stable majority willing to fully endorse this approach but as Scalia has signaled, the long march towards redefining discrimination is underway.

Kimberly West-Faulcon

This was fully in evidence during the Ricci oral argument, where Chief Justice John Roberts repeatedly expressed confusion about the distinction between race-conscious remedial action and race discrimination while Justice Souter, on the other hand, chastised Ricci’s counsel for erroneously “making no distinction between race as an animating discriminating object on the one hand and race consciousness on the other.”

The Chief Justice’s entanglement in this logical fallacy reflects why in Parents Involved he concluded that race-conscious student assignment policies to maintain integration were a form of race discrimination and why he simplistically admonished that the problem of school segregation is easily solved, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In Ricci, like Parents Involved, the distinction between the remedy and the harm is further blurred– an important tactical maneuver in the war on anti-discrimination law.

There have been two major fronts in this war. The first is the assault on affirmative action and the second, undertaken this term, is the assault on federal statutes like the Voting Rights Act and Title VII that require taking race into account. These challenges have taken the form of “pseudo affirmative action” cases that differ from prior “true” affirmative action cases like Regents of University of California v. Bakke, Richmond v. Croson, and Adarand v. Pena (where the policies at issue considered disadvantaged racial group status in making individual determinations).

Although widely mischaracterized in media accounts, the New Haven fire department action at issue in Ricci was not an affirmative action policy at all: New Haven did not, in this instance, consider race as a plus factor in making promotions. Rather the City took a race-neutral action: it threw out everyone’s test results to start fresh with a new promotion process fair to all races. However, according to the conservative majority in Ricci, because the City looked at the racially disparate impact of its promotional tests—a legally required race-conscious evaluation to avoid racial discrimination against people of color— the City was engaged in a race conscious action that afforded favorable treatment to disadvantaged minorities like traditional affirmative action policies. If Scalia has his way, future cases will apply this flawed reasoning beyond the unique facts in Ricci, a public employer’s rejection of test results contrary to preset rules for civil service promotion.

Numerous fire departments across the country may, and do, employ legal race-based affirmative action policies—giving positive consideration to applicants whose promotion increases racial diversity in the higher ranks—in keeping with the constitutional parameters the Supreme Court outlined in prior affirmative action precedent. That law was not changed by Ricci. But Ricci cast his claim as a “reverse discrimination suit,” successfully enticing the court’s majority to apply affirmative action law to a disparate impact case.

The consequence is that the Ricci decision increases the evidentiary burden on employers who, after administering a fill-in-the-bubble multiple-choice test, discard results that the employer suspects have an unjustified racially adverse impact. In Ricci, the New Haven Civil Service Board was advised by the city’s attorney that certifying a promotion list based primarily on the results of the test would be difficult to justify under Title VII.

After five hearings on the matter, the New Haven officials decided there was good reason to believe African-American and Latino firefighters denied promotion could sue the city for violating Title VII’s disparate impact provision and so declined to certify the results of the test, opting instead to recraft the exams to render them both more accurate and fair.

Four members of the Supreme Court, the three-judge Second Circuit Court of Appeals panel including Supreme Court nominee Judge Sonia Sotomayor, and the federal district court trial judge who first presided over the Ricci case, all concluded that New Haven had legitimate reservations about the test. An amicus brief filed in the Supreme Court by employment testing experts agreed that the city would likely have had great difficulty justifying its weighting of the multiple-choice test as 60 percent of a firefighters’ final score, difficulty validating the “cut-score” it had selected as the passing score for the test, and difficulty explaining why it had not replaced or augmented the multiple-choice test with less discriminatory alternatives such as performance based tests administered at “assessment centers.”

Most significantly, the experts believe the city would have been hard pressed to defend the rank ordering assigned to the test scores; while one applicant may have earned a higher score, that score had not been tied to better job performance. (This not only had negative consequences for black and Latino applicants; it meant that white applicants further down the ranking were also affected.) This is why Justice Ginsberg’s dissent criticized the majority opinion for “ignor[ing] substantial evidence of multiple flaws in the tests New Haven used. . . . [and] fail[ing] to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes.”

The immediate impact of the Ricci decision is the imposition of the “strong-basis-in-evidence” standard previously reserved for employers voluntarily adopting race-based affirmative action policies. By requiring employers to have a “strong basis” in evidence that their test is not “job-related” and/or a “strong basis” in evidence that alternative, less discriminatory tests exist – in addition to the threshold evidence of adverse impact (significant statistical disparities), the Supreme Court has made it more difficult for employers to assess when they can take action to avoid disparate impact.

While stopping short of requiring an employer to prove a case against itself before eliminating tests that are needlessly exclusionary- something Title VII and the Supreme Court’s equal protection precedents, including Ricci, make clear- the effect of the decision may well be to muddy the water for employers.

Justice Ruth Ginsburg’s dissent can be read as a part of a plan to resist the ambush of disparate impact doctrine. Her opinion telegraphs the next move for civil rights organizations to come together in another broad coalition like the one that resulted in the Civil Rights Act of 1991. By explaining in her dissent how “Congress formally codified the disparate impact component of Title VII” after a “bare majority” of the Supreme Court tried to weaken Title VII’s disparate impact provision in Wards Cove Packing Co. v. Antonio, Ginsburg is clearly calling on Congress to pass legislation codifying the “good cause” standard endorsed by the four dissenters. This would require an employer to show they have “good cause,” in lieu of a “strong basis in evidence” for its voluntary efforts to remedy adverse impact the employer suspects is unjustified.

While other fixes could be included, there is every reason to believe that this new Civil Rights Act of 2010 would clarify for employers how to voluntarily comply with Title VII’s disparate impact provision. In addition to taking concrete action to correct the doctrine, Ricci also provides another opportunity for the civil rights community to engage the broader resistance to the efforts to eviscerate anti-discrimination law.

It has taken a concerted decades-long campaign for conservatives to get this far in a war of position, but the goal has not yet been achieved. The Court’s internal divisions likely mean that each case will be hard-fought and the outcome difficult to predict. But understanding Ricci in the context of the war over race-consciousness—knowing and articulating the terrain—can only assist in waging an effective fight for racial justice.

Cheryl I. Harris is a professor of law at UCLA School of Law in Los Angeles. She is working on a forthcoming book about resisting color blindness.

Kimberly West-Faulcon is a constitutional law professor at Loyola Law School, Los Angeles and former director of the Western Regional Office of the NAACP Legal Defense and Educational Fund, Inc.