Racial preferences — the plot thickens

The Supreme Court has decided to review the Second Circuit’s decision in Ricci v. DeStefano. In that case, New Haven firefighters — one Hispanic and more than a dozen whites — sued the city after they were denied promotion because the city disregarded the results of its own test for determining who would be promoted. The city threw out the test results because not enough black firefighters scored high enough to earn a promotion. It did so even though the test was designed by experts to eliminate the possibility of racial bias.

The district court granted summary judgment in favor of the city and against the firefighters. it did so even though it stated that there was sufficient evidence to enable a jury to find that the city officials “were motivated by a concern that too many whites and not enough minorities would be promoted.” Notwithstanding the extraordinary significance of her 48-page opinion (sufficient ultimately to cause the Supreme Court to become involved) the district judge, Janet Bond Arterton, declined to publish it. The opinion can be found in the back-end of this link).

On appeal, the Second Circuit affirmed. Astonishingly, the panel, consisting of three Clinton appointees, affirmed the district court’s ruling in a summary order that contains only one non-descript substantive paragraph. Months later, in response to a petition for review by the entire Second Circuit, the panel added a citation to the unpublished district court opinion in the Westlaw and LexisNexis databases.

The full Second Circuit voted 7-6 not to rehear the case. As Ed Whelan recounts, Judge Cabranes, a Clinton appointee, issued a scathing dissent from the decision not to grant review. He wrote:

This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit. It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at he core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination.

The Supreme Court’s decision to review Ricci signals the failure of the Second Circuit’s effort to keep the case “under wraps.”

Ricci promises to be an enormously significant case on the merits. It also presents some interesting subplots. First, what position will the Obama Justice Department take? If it supports the city’s racial discrimination on behalf of African-Americans, as it no doubt will be inclined to do, it risks some political fall-out.

Second, one of the Second Circuit judges who upheld New Haven’s racial discrimination, but (to the disgust of Judge Cabranes) was too gutless to write an opinion, is none other than Sonia Sotomayor, considered a prime candidate for nomination to the Supreme Court.

Any way you look at this case, it seems like a losing proposition for Judge Sotomayor, as she plainly recognized the first time around. Let’s hope it’s a winning proposition for the firefighters who were denied promotion because of their race, and for others who stand to lose employment opportunities as a result of racial spoils systems.

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