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The Firefighters' Case and the Schools

What are the lessons for schools and school employees in the U.S. Supreme Court's decision today in favor of white and Hispanic firefighters in New Haven, Conn.?

After an oral argument session in the case that raised all sorts of education-related parallels, today's decision in Ricci v. DeStefano (Case No. 07-1428) is quite fact-specific about firefighter employment and promotional practices in New Haven.

But there are general principles to be drawn from the case. Justice Anthony M. Kennedy's opinion for a five-justice majority helps clarify the interplay between two key provisions of Title VII of the Civil Rights Act of 1964--the one prohibiting basic disparate treatment (for example, race discrimination), and the one barring so-called disparate-impact discrimination.

"We hold ... that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action," Justice Kennedy said.

The case stems from New Haven's refusal to certify the employment tests of white and Hispanic applicants for promotion in its fire department because back applicants performed poorly on the exams.

At oral argument in April, there was much discussion of the city being in a damned-if-they-do, damned-of-they-don't position. If the city didn't certify the results, it faced a lawsuit from the disappointed white and Hispanic candidates who qualified for promotion. If it did certify the tests, it faced a suit alleging a racially discriminatory disparate impact by the black candidates.

But Justice Kennedy essentially said today that New Haven was damned if it did (engage in racially disparate treatment of the white and Hispanic candidates), but not damned if it didn't.

"Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions," Justice Kennedy said, in an opinion joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

"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," Kennedy said.

Justice Ruth Bader Ginsburg, writing in dissent, said the majority failed to properly account for the court's landmark 1971 decision in Griggs v. Duke Power Co. In that case, the court held that the power company's requirements for a high school diploma and test requirements for employment had a racially disparate impact on black applicants. The court said such requirements could not be used unless the employer could show the requirements were related to the job duties.

Justice Ginsburg even cited a 1981 federal appeals court ruling in a school case that she said helped define this "business necessity" defense. In Williams v. Colorado Springs School District, the U.S. Court of Appeals for the 10th Circuit, in Denver, revived a disparate-impact claim by a group of black teachers who alleged they were disproportionately assigned to black-majority schools.

"If an employer reasonably concludes that an exam fails to identify the most qualified individuals and needlessly shuts out a segment of the applicant pool, Title VII surely does not compel the employer to hire or promote based on the test, however unreliable it may be," Justice Ginsburg said.

Her dissent was joined by Justices John Paul Stevens, David H. Souter, and Stephen G. Breyer.

As I noted back in April, school districts have been embroiled in disparate-impact claims involving employment testing, although tests for prospective educators tend to come at the entry point, not at the promotional stage, as is common in police and fire departments.

Tom Hutton, a senior staff lawyer with the National School Boards Association, in Alexandria, Va., said in an interview today that the ruling helps settle the tension between Title VII's disparate-treatment and disparate-impact provisions. But he said there were only limited scenarios in which school districts have been in the same position as New Haven, trying to justify race-based employment actions.

"In the biggest possible picture, you could say that if we are going to be relying more on tests to establish teacher credentials, then this decision could have some relevance," Hutton said.

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