Ricci: Color-Blind Standards in a Race Conscious Society?

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10 Responses

  1. I’m guessing this is an academic exercise and you are not really that aghast at public institutions using test scores for advancement purposes. As law professors, most of you have been relying on test scores to break out from the pack throughout your schooling (and, of course, obtaining a so-called Top Tier school degree somewhere along the line).

    The case arose because the City caved to the political blackmail of a local minister (and why don’t law professors get that exercised about church-state matters when the Liturgical Left is involved). And it continues with the Briscoe case you mentioned. But often overlooked is that the testing (and weighting therein) was not unilaterally imposed by the city but instead was the result of an agreement with the union.

    So by all means let’s push through card check so even more of our work force can be forced to benefit from such enlightment. And can we all continue to work for a just society whereby it is an accepted axiom of the law that it isn’t discrimination when so-called progressives do it.

  2. RJ says:

    Zimmer is drinking some serious Kool-Aid here. For one thing, he doesn’t even have his facts right, a failing he has unfortunately displayed in his prior posts. Second, he is obviously a liberal ideologue wedded to racial preferences for minorities and can’t let it go and his sentiments infect his entire analysis. Third, he is totally ignorant of the reality in New Haven. This case involved deliberate, blatant racial discrimination against whites by a pandering mayor and a city run largely by African-Americans with a decades long history of it. “Disparate impact” concerns, this record showed, was just a pretext for it. If the shoe was the other foot, and a city refused to honor test results because “too many blacks” qualified, I doubt Zimmer would be offering the fantastical arguments he makes here. But such academic hypocrisy is unfortunately a trademark of liberal law professors who never tried a case in their lives, never represented actual victims, never held a real job and are clueless about the workplace of the average American and the racial politics that goes on in it.

  3. harry brooks says:

    Zimmer offers more mumbo jumbo.  Despite the haze of smoke Zimmer blows at the Ricci case and the majority opinion, and his best efforts, in the grand tradition of the liberal professoriate, to obscure the facts and twist the law, Zimmer cannot obsure the simple fact that a group of men who qualified for promotion in what was supposed to be a race-blind process, were denied the jobs because of their race.   It was a politically craven and indefensible act with unconscionable injury caused to those men, their carreers and their families.  That Zimmer would go to such lengths to sanitize the city’s conduct and conceive of fanciful legal theories under which the Ricci holding might be undermined, is disgraceful.  Zimmer should get out of his armchair and visit a firehouse to see real men at work, risking their lives everyday, something Zimmer will never do. Then Zimmer might understand why firefighters who are the victims of his vision of the fire service as a laboratory for disparate impact theorists consider him to be an ass.

  4. RJ says:

    The sheer silliness of Zimmer’s claims about the comparative “numbers” of whites, blacks, etc, who would have benefitted from the city’s do-over of the selection process is demonstrated by the following hypothetical: suppose an employer holds a lottery to decide which 5 of his 15 employees will get Christmas Day off. Six of the employees are black, the rest are white. The lottery results in 4 blacks winning the day off. The employer says: “Oh, that’s not fair, not enough whites got the day off, I’m rejecting those results and holding the lottery anew.” The blacks complain. The employer responds: what are you complaining about? A redo will be to the benefit of all six blacks. I’m sure Zimmer, like most liberals, will worm his way out of his double standards on the issue of race.

  5. Observer says:

    Zimmer’s argument is wacky. He ignores the fact that Ricci involved a small number of vacancies (16 to be exact). As a factual matter, it is undisputed that the city rejected the results of the exam process because too many whites were among the successful applicants for those 16 slots. With a repeat of the selection procedure the city aimed to decrease the number of whites who were eligible for those limited vacancies (which would of course disqualify some of the Ricci plaintiffs to boot). Zimmer posits that the city’s race-conscious decision would have enured to the benefit of numerous whites (by giving all the losing whites another shot at the job). What??????? The whole point of the city’s attempted do-over was to decrease the number of “white” winners. Zimmer stretches, quite amazingly, to turn a pig’s ear into a silk purse.

  6. One can’t help but wonder what Zimmer is thinking. The record in this case is voluminous and finally indicates pretty clearly what the city should do to right this wrong. It also makes it clear as crystal, that the Justices knew exactly what the motive was behind this entire disgraceful waste of taxpayer dollars for political means, while discriminating against the most qualified candidate for promotion to these critical public safety leadership jobs.

    A somewhat confusing spreadsheet that zimmer lays out attempts to place a smoke screen over the fact that there were a limited number of vacancies, also pointing out the number of minority applicants, this was all relative to the number of vacancies. Who benefits from the scuttling of these tests? Those who want a second bite at the apple! How is that a justification? The logic is pathetic and quite maddening.

    Zimmer ignores from his fireplace heated lounge, while sitting in his high back leather chair. Part of an exclusive society, that in fact measures itself through competative examinations, yet wont consider the same measure for one of the nations most critical occupations. Quite frankly if I were a firefighter I would be insulted.

  7. TJ says:

    I think you are stretching a little too much here. In one way, you can say that the test applied in Ricci was (1) the City knew the racial consequences of its decision, (2) it made the decision anyway. And you argue that the court skipped right past the “because of” element.

    But, of course, proof of causation generally involves a “but for” situation. That is, the difference you are missing is that it is very clear in Ricci that, “but for” knowing the racial consequences of its decision, the city would not have made the same decision. This is the key difference between Ricci and your hypo (based on Justice O’Connor) where the employer is aware of the applicant’s race but accords it no weight.

    Now, proving the defendant would have taken the same action anyway is generally a burden on the defendant under Price Waterhouse. But that is just a detail. Proposing that Ricci will lead to a revolution is wishful thinking.

  8. RJ says:

    “Legal Fact Finder” – you are spot on. Actually, if you think about it, Zimmer is in reality just regurgitating the district court’s reasoning. Remember that the only ruling before the SC was the one authored by the district court, as the Second Circuit didn’t write its own opinion but just summarily adopted in toto the district court’s analysis. And the district court’s rationale is pretty much what Zimmer is now floating (nobody was hurt, everybody gets another bite at the apple with a new exam, ho harm, no foul, etc). That ruling was outright reversed. The district court’s Zimmer-like rationale was not only flatly rejected by the majority but, Justice Ginsburg’s defense of it was hammered by Judge Alito in his concurrence. Zimmer is really just arguing that Ginsburg was right and the majority was wrong. And of course, that is a losing argument.

  9. Take a look at the penultimate paragraph in the Court’s opinion in Ricci: “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 that the City would avoid disparate-impact liability based on a strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.” I think the same thing is true if the challenge is framed as a disparate-treatment claim (besides being completely at odds with the intent requirements of Feeney).