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Can you break the law to avoid breaking the law? It sounds like a
riddle, or a logical paradox, but in fact it is the question underlying
yesterday's Supreme Court decision in Ricci v. DeStefano. And like
other riddles, Ricci may have something deeper to teach us.
In 2003, the city of New Haven administered a
test to select firefighters for officer positions. One hundred and
eighteen firefighters, including 68 whites, 27 blacks, and 23 Hispanics
took the test. The top 19 would be eligible for an immediate promotion.
When the tests were scored, those 19 turned out to be 17 whites and 2
Hispanics. Overall, the pass rate for minorities was about one-half
that of white candidates.
The
racial difference in scores concerned city officials. It was enough of
what's called a "disparate impact" that it looked as if the city might
be vulnerable to a federal antidiscrimination lawsuit. Federal law
prohibits employers from treating employees differently on the basis of
race, and it also prohibits the use of apparently neutral employment
tests on which scores vary significantly by race, unless they can be
shown to be based on business necessity. City officials heard various
arguments as to why the test they'd used might be unintentionally
biased, and they heard their lawyers explain how the results could
support a lawsuit for unlawful discrimination. Eventually, the city
took a radical step. It threw out the results of the test entirely.
Unsurprisingly, the white firefighters who'd
scored well sued. Now, they claimed, the city was discriminating
against them. Two lower federal courts ruled in favor of the city, but
yesterday the Supreme Court reversed those decisions. New Haven had
broken the law by throwing out the test scores, the court said.
The vote in the Supreme Court was 5 to 4, which
is one indication that the case was a hard one. Another is that even
the majority admitted that it had to create a new standard to decide
the case. What should happen when an employer discriminates in one way
to avoid discriminating in another is a question that existing law
simply did not answer.
If law runs out, perhaps logic can help? New
Haven had a choice. It could accept the results of a test that had a
disparate impact on minority applicants, or it could reject them. The
two decisions are mirror images in terms of their consequences, one
harming minorities and one harming whites. If one is unlawful, it would
make sense that the other should be, too. But if both options violated
the law, it would be an unendurable paradox. And so, one might think,
the answer must be that both are lawful and New Haven could choose
either.
But as Justice Oliver Wendell Holmes wrote, "The
life of the law has not been logic; it has been experience." There is a
case to be made that the two choices are equivalent, but few people
would accept it. Instead, most find one much worse than the other. And
which one they find worse tends to depend on what they think about the
original racial disparity in scores. Those who think that the disparity
was mostly due to differences in merit tend to think throwing out the
scores was terribly unfair, while those who think the original test was
biased think discarding the results was the right thing to do.
Strip away some of the legal window dressing,
and these different views of the original test seem to be the main
division between the majority and the dissent. It would be nice if we
could bridge the divide, but it is probably impossible. There is
evidence pointing in both directions. New Haven hired an independent
company to design a fair test, the majority notes. But test preparation
materials were expensive and may have been more available to white
candidates, the dissent counters. What people make of the conflicting
claims will depend largely on the perspective that informs their
judgment.
That means that the way people think about Ricci
– and this includes the justices – is in large part shaped not by logic
or law but by their attitudes about the world. In particular, it
depends on whether they think it is more likely that minority
candidates were simply not as good as the whites, or more likely that
there was some unintended bias skewing the results. What drives these
attitudes, as Holmes knew, is experience. The facts of Ricci are an
inkblot in which we all see the pictures life has drawn for us.
Ricci is not the only case in which law runs
out, and in which judges will be guided by experience. When we ask
whether empathy or life history are appropriate qualifications for
judges, we should be thinking about these cases. We like to believe we
write laws that judges can apply as if they were machines. We like to
believe that about the Constitution, too. But in cases such as Ricci,
the human element enters the law. Then we learn a little bit not just
about how our judges think, but about who they are.
The author, Kermit Roosevelt, who clerked for Supreme Court Justice David Souter, teaches law at the University of Pennsylvania's law
school. He's the author of "The Myth of Judicial Activism."
The Christian Science Monitor
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