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Is Ricci a Significant Procedural Case?

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7 Responses

  1. Rachel Godsil says:

    Thanks for a great post. The Ricci case did seem to leave questions unanswered — will be wildly curious how these questions are answered in Briscoe.

  2. I concur, Rachel. Superb post, thanks! Danielle

  3. That second-to-last paragraph in Ricci is more than inscrutable; it flat-out doesn’t make sense. It describes in conditional terms what had just happened (the city had refused to certify the test and was subjected to disparate impact liability) but suggests that there is merely a “strong basis in evidence” for the point on which it was in the act of granting summary judgment–which obviously requires quite a bit more. If taken literally, it means that the “strong basis in evidence” standard also applies in a completely different context that was not before the Court, as a defense to a disparate impact claim. It looks to me like a very clumsy and poorly thought-through attempt to foreclose a case like Briscoe.

  4. Michael Zimmer says:

    Jennifer, It is my hunch that Justice Kennedy is trying to foreclose cases such as Briscoe. And, my hunch is that it is because, as the majority appeared to think in Bush v. Gore, the lower courts cannot be trusted to get it right.

  5. AF says:

    I agree with Jennifer Hendricks. Kennedy’s invocation of the “strong basis in evidence” standard with respect to future disparate impacts claims is quite awkward and convoluted. However, I think it’s possible to discern the underlying logic.

    On its face the sentence seems to create a novel and upside-down defense to a disparate impact suit: that there is a strong basis in evidence that the defendants would be subject to a disparate treatment claim if they refused to take the employment action alleged to cause disparate impact. But such a disparate treatment claim is none other than the novel one created by Ricci, which arises precisely when there is no strong basis in evidence to support a disparate *impact* claim. Thus, Kennedy’s sentence boils down to saying there is “clearly” not strong evidence to support a disparate impact claim — from which it follows that such a disparate impact claim would fail.

    I think that in addition to trying to discourage Briscoe-like claims, Justice Kennedy was also trying to address a basic flaw in the Ricci decision — namely, that it created a situation in which employers could (almost) literally be damned if they do and damned if they didn’t, ie subject to meritorious disparate treatment and disparate impact claims for taking or not taking the same employment action. That is an obviously untenable outcome, and I think Kennedy was trying to avoid it.

    If that is true, it suggests that a great deal of existing disparate impact doctrine is open to question — for under current doctrine, the Briscoe plaintiffs’ claims are clearly colorable. Incidentally, that to me is one the most glaring flaws in the Ricci opinion — it seriously underestimates the strength of the minority firefighters’ potential disparate treatment claims under current doctrine. It is a flaw, however, that can be “solved” by weakening current doctrine. That strikes me as Kennedy’s intent.

    While it is certainly relevant, I’m not sure that the applicability of 42 U.S.C. §2000-e(n) is the key question in Briscoe. Assume that the statute does not apply and the plaintiffs are not statutorily barred from bringing their claims. That doesn’t change the fact that the Supreme Court has expressly stated that their claim is without merit as a matter of law. Most judges would consider that binding and would not feel free to entertain the claim.

    However, it is arguable that a lower court judge is not *obligated* to reach that conclusion — Justice Kennedy’s statement is plainly dicta (though perhaps binding dicta, which is not necessarily a contradiction in terms coming from the Supreme Court). If a judge chooses to send the plaintiffs’ disparate impact claims to a jury, I could imagine the Supreme Court coming up with novel ground for entertaining an interlocutory appeal, and granting judgment to the defendants as a matter of law.

  6. cybilG says:

    More than a few observers have surmised that the majority adjudicated the case (much to Ginsburg’s upset)because the district court could not be trusted on remand, which is, to say the least, an unflattering assessment of the trial judge.

  7. RJ says:

    Well, with a district court that disposed of such a significant set of issues by an unpublished ruling, and a circuit panel that threw the case out with the trash in a three-sentence unpublished order (all acts by liberal Clinton appointees), I’d say that confidence in their ability to do justice on remand was trashed as well.

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