The Court described the factual basis for finding that the City’s decision not to use the test scores was disparate treatment discrimination against those testtakers — the [...]]]> While the Court’s decision in Ricci v. DeStefano focused mostly on disparate impact law, much of the subsequent discussion has focused on the threshold finding that the City of New Haven’s decision not to use the test scores to promote firefighters was, as a matter of law, disparate treatment discrimination against some white firefighters who would be promoted if the test scores were used. Recent events suggest that the issues raised in those discussion may have to be decided since African-American testtakers have now challenged the use of the test scores as both disparate treatment and disparate impact discrimination.

The Court described the factual basis for finding that the City’s decision not to use the test scores was disparate treatment discrimination against those testtakers — the 17 whites and two Hispanic who would have been promoted if the test scores were used:

“When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate that turned rancorous. Some firefighters argued the tests should be discarded because the results showed the tests to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on the tests. Other firefighters said the exams were neutral and fair. And they, in turn, threatened a discrimination lawsuit if the City, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end the City took the side of those who protested the test results. It threw out the examinations.”

The Court later describes why those facts support, as a matter of law, a finding of disparate treatment discrimination:

“The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. . . . Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white.”

In sum, because the City knew the distribution by race of the test scores and knew that if the scores were used to promote firefighters to lieutenant and captain positions, no African American testtakers and all but two Hispanic testtakers would not get promoted to fill the openings that then existed.  (Over the two year lifetime of the test, three African Americans might be considered for promotion to lieutenant if there were new openings.) While the Court appeared to focus on two racial groups of testtakers – whites and African-Americans — in fact there were six different groups based on three racial groups members which were represented in two groups — those affected favorably by the decision not to use the test scores and those affected unfavorably.

 These are the six different groups:

 1. The  24 African American who, because the City decided not to use the test scores,  now have an improved chance for promotion if some other method is used to make the promotions. The City claims their threat of a disparate impact lawsuit was why it decided not to use the test scores.

2. The three African-American testtakers who might be considered for promotion to lieutenant if there were more openings over the two year life span of the test results. If it was decided not to use the test scores, their chance for promotion probably decline but that would not be known until it was known what the alternative promotion procedures the City might adopt would mean for them.

 3. The 20 Hispanic testtakers who, like the 24 African-American testtakers in group 1, would not have been promoted under the tests.

 4. The 51 white testtakers who did not score high enough to be promoted if the test scores would be used. Like the African-American and Hispanic testtakers in groups 1 and 3, their chances for promotion were improved by the City’s decision not to use the test scores because they had no chance for promotion if the test scores were used.

 5. The 17 white testtakers who did score high enough to be promoted if the test scores were used. With the decision not to use the test scores, their chances for promotion declined. They lost a sure thing and only have some chance for promotion under whatever system the City would decide to use for promotions instead of the test scores.

 6. The two Hispanic testtakers who scored high enough to be promoted if the test scores were used. Like the members of group 5, they have a reduced chance of promotion because they lost a sure thing.    

 In sum, there are six distinct groups involving three different racial groups and two possible outcomes. Each racial group had members in the group that would be treated more favorably if the test scores were used and had members in the group who likely would be treated more favorably if the scores were not used and some alternative selection method was adopted. In other words, the results as to all the testtakers resembles a racial mosaic, with the decisions not made along strict racial lines. This table shows the results as to all six groups: 

                                               Racial Groups

 Based on this, how could the Court conclude, as a matter of law, that the “City rejected the test results solely because the higher scoring candidates were white”? Was it also disparate treatment discrimination against the two Hispanic testtakers who would be promoted if the test scores were used and the three African-American testtakers who had some chance for promotion during the life span of the test results? None of these questions were addressed in Ricci. Why was this solely discrimination against the 17 white testtakers and not anyone else or everyone else?

 The basis for the Court’s conclusion appears to be simply that the City acted with knowledge of the racial impact of using or not using the test scores on all three races, not just the impact on the 17 white testtakers who were the first group to sue. The Court assumed there was no animus against any of the racial groups because there was disparate treatment racial discrimination “[e]ven if respondents were motivated as a subjective matter by a desire to avoid committing disparate-impact discrimination.”

 So, even if the City had subjectively intended to benefit members of the first three groups that included whites, Hispanics and African Americans, its decision not to use the test scores amounts to an intent to discriminate against only one group, the whites who would benefit if the test scores were used. If the City’s decision was disparate treatment discrimination against the white plaintiffs, what is the explanation for it also not being disparate treatment against those members of these two minority groups who were similarly situated to those white plaintiffs? Since those Hispanics and African Americans did not sue, is it simply out of sight, out of mind? 

Deciding to benefit, or not to disadvantage, most of the testtakers be they African-American, Hispanic or white inevitably, for the Court, supports drawing the inference, as a matter of law, that the City acted with an objective intent to discriminate solely against the comparatively small group of whites who were disadvantaged by that decision. Apparently, what got the City in trouble with the Supreme Court was that the City acted, knowing the racial consequences of its decision not to use the test. Of course, the City also had to know that its decision would also disadvantage some Hispanic and African-American testtakers as well as the white plaintiffs and that it would also be to the advantage of members of all three racial groups who would get a new chance to be promoted under whatever alternative promotion system the City might adopt.

Can support for this objective intent rule be found in the Title VII systemic disparate treatment cases where plaintiff establishes liability by proving the existence of an explicit, written employment policy that expressly discriminates? For example, in Los Angeles Department of Water & Power v. Manhart, plaintiffs proved that the defendant had an employment policy requiring all women to contribute more for their pensions than all men. That policy was drawn with all women on one side of the classification and all men on the other. That is not the situation in Ricci since members of all three groups fall on both sides of the line and there is no express policy to discriminate.  In International Union, UAW v. Johnson Controls, the Court found that an express employment policy excluding all fertile women but no fertile men from jobs making batteries was systemic disparate treatment even though non-fertile women and all men were not disqualified. This is not Ricci since not all members of one racial group were on one side of the line as the men were in Johnson Controls and, again, there was no express policy drawing any racial division. Those cases give little support to the idea that disparate treatment liability can be found without an express classification and with impact that leaves members of all racial groups on both sides of the line.

It is also not clear that the systemic disparate treatment cases based on statistical evidence proving the employer had an intentionally discriminatory employment practice support the holding in Ricci. In Teamsters and Hazelwood School District, the statistics established intent, even in the absence of proof that no African Americans were, respectively, over-the-road truckers or school teachers. In the situation of an “inexorable zero” of African-American truckers in Teamsters and the statistically significant absence of African-American teachers in Hazelwood is quite different from the statistics in this case where disparate treatment was found even though the white plaintiffs were only 25% of all the whites who took the test. Looking at the statistics alone, it would seems to be unlikely to support drawing an inference of intentional race discrimination against the members of any of the six groups without drawing the same inference as to the members of each of the six groups. That would not be disparate treatment discrimination.

There is support in the cases for the proposition that simply being conscious of the race or gender of the affected individuals does not support drawing an inference of intent to discriminate sufficient to support a claim of disparate treatment discrimination. Justice O’Connor, in her concurring opinion in Price Waterhouse v. Hopkins, made it clear that intent to discriminate cannot be found solely on the fact that the race or gender of the person affected by the decision is known to the decisionmaker:

“Race and gender always ‘play a role’ in . . . a benign sense that these are human characteristics of which decisionmakers are aware and may comment on in a perfectly neutral fashion. For example, . . mere reference to ‘a lady candidate’ might show that gender ‘played a role’ in the decision, but by no means could support a rational factfinder’s inference that the decision was made ‘because of’ sex.”

Similarly, in the context of equal protection law, the Court, in Personnel Administrator of Massachusetts v. Feeney, found that an absolute preference for hiring military veterans at a time when men were 98% of the veterans was not intentional discrimination against all women other than the 2% of veterans who were women even though the vast majority of women would be disqualified if even one veteran applied for the job:

“’Discriminatory purpose,’ however, implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”

The concurring opinion of Justice Alito in Ricci argues that the motive for the City deciding not to use the test was the mayor’s fear of the consequences of local, racialized politics aimed at him: “[W]ere the exams certified, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.” Assuming that avoiding the wrath of some members of the community was what drove the decision not to use the test, the City’s announced reason for not using the tests of trying to avoid disparate impact liability seems like a pretext. But, a pretext for what? It is hard to conclude that it is a pretext for discrimination against some of the testtakers. Giving in to political pressure to benefit African-American does not equate with an intent to discriminate against some but not all white, Hispanic and African-American testtakers “because of” their race. Justice Alito’s reasoning is at odds with Hazen Paper Co. v. Biggins, where the Court, in an age discrimination case, held that an illegitimate, even unlawful, intent to discriminate to deny the plaintiff his pension simply was no evidence of age discrimination. Of course, decisions can be motivated by more than one factor, but where is the evidence of another factor other than racial politics or the subjective intent to not disadvantage African American testtakers? If anything, Justice Alito has inadvertently provided a defense in this case that the City did not think to present. Perhaps its best defense would have been to admit that the City gave into political pressures. That may be a lot of things, but it is not evidence of an intent to discriminate “because of” race against the 17 white testtakers who sued first. Whether or not what he claims was the motivation for the City’s action is true, Justice Alito’s position does not support finding the City acted with intent to discriminate against the 17 Riccii plaintiffs.

The Court appeared to take a giant leap from the fact that the City knew the racial distribution of the testtakers and the racial consequences of using the test to concluding, as a matter of law, that the decision not to use the scores was “because of” the race of one of the six different groups. With whites, Hispanics and African Americans in both groups of those affected positively and negatively by whatever decision that was made, it is hard to see where intent to discriminate because of race against these particular plaintiffs played any role at all.

Should civil rights advocates take Ricci as a progressive step forward?  Ricci does seem to have tremendous potential for changing the approach to proving intentional discrimination to the advantage of plaintiffs: Plaintiff can establish liability simply by proving that (1) the defendant knew the racial or gender consequences of its decision and (2) it then made that decision and (3) the plaintiff suffered an adverse employment impact. The intent to discriminate element, which traditionally has been the hardest to prove, becomes simply a question of the defendant’s knowledge of the racial consequences without more.  Not only is plaintiff’s burden of proving intent vastly simplified, the Court’s approach seems to knock out the linkage, the “because of” race element, that supposedly joins a defendant’s intent to discriminate to an adverse employment action suffered by the plaintiff “because of” the victim’s race. All that is necessary is proof that the defendant knew the race of those affected by the decision and that those adversely affected were of one race or another or, as in Ricci, of as many racial groups that are involved. Go back to the opening quote. Once the racial consequences of the use of the test were known, a huge debate broke out, with some claiming the use of the test was discrimination and others claiming the refusal to use the test was discrimination. The City picked one of those two outcomes and the Supreme Court found it liable for discrimination in making that choice. If the City had picked the other outcome, would not there just be a different group of plaintiffs claiming disparate treatment discrimination?

Let’s see how this works now that the City of New Haven has announced that it will implement the test scores to promote firefighters to the lieutenant and captain openings. Without more evidence, the outcome on all six groups is the same though the valence has flipped: As before some, but not all, white testtakers, Hispanic and African-American testtakers are positively affected by using the test scores and some members of all three racial groups are negatively affected.  Assuming no other proof of subjective intent to discriminate because of race against anyone, is the City nevertheless liable for intentional disparate treatment based against those newly affected by the decision to go ahead using the test scores?  Just as in Ricci, the City will be acting, knowing the racial consequences of its action. Only this time, those who were advantaged when the test scores were not used are now disadvantaged and vice versa. This makes the City damned if it does, and damned if it doesn’t. But, that is the outcome that logical consistency seems to require based on the minimalist grounds relied on to find, as a matter of law, disparate treatment discrimination in Ricci.

We may get to find out how this will be worked out since some African-American testtakers who will be disadvantaged if the City goes ahead with its plan to use the test scores have moved to intervene in Ricci at its implementation phase and have filed EEOC charges that the decision to use the test scores is both disparate treatment and disparate impact discrimination. Further, Briscoe v. City of New Haven involves a claim by an African-American testtaker that the test caused disparate impact because of how the test score were weighted with oral test scores to make the rank order list. Briscoe claims that if the weighting were different, he would be among those promoted.

Some might argue that it is wrong to put the City in the situation of being liable to the Ricci plaintiffs for deciding not to use the test scores and to the new plaintiffs for deciding to use the scores. If the standard is in fact to be “color-blind” in decisionmaking that affects employees, that is, that making a decision knowing its racial consequences is disparate treatment discrimination, the result may seem harsh but it seems logically to follow. Further, holding the City liable to both groups does not put it in the position of having mutually inconsistent obligations: Because of Ricci, those white plaintiffs will get promoted (as will the two Hispanics and, if openings subsequently occur within two years, up to three African Americans as well). Because of a disparate treatment challenge recently brought against the City for now deciding to use the test scores, these new plaintiffs also get a remedy, but it would not include replacing those promoted using the test scores. Since these new plaintiffs have yet to be determined to be qualified for promotion, presumably, the City would be ordered to establish a nondiscriminatory system of promotions. Then, if these plaintiffs successfully wend their way through that process, they would be eligible openings for lieutenants and captains that occur after the time span for the use of the test has passed. Presumably, they would receive as backpay and frontpay the difference between their pay as firefighters and lieutenant or captain salaries which would last until they are promoted into openings as they arise.

If the Court has adopted a something like an absolute “color-blind” test of intent to discriminate for Title VII, the only way employers can insulate themselves from disparate treatment liability is to make employment decisions behind a veil of ignorance as to race. Employers may have to follow the lead of symphony orchestras that have come to use blind auditions when selecting new members of the orchestra. If there was no other evidence of discrimination, the effective use of a veil of ignorance would seem to protect the decisions from claims of disparate treatment discrimination since the racial consequences were not known by the decisionmaker when the decision was made. The “cats paw” case that the Supreme Court recently granted cert. on may illuminate this area of discrimination law.

Where did this radical “color-blind” standard of disparate treatment discrimination come from and how can it be? While, during the Sotomayor nomination proceedings, some talking heads and commentators denounced empathy as a factor in judicial decision making, the Ricci majority, and the dissent, exude empathy for the white plaintiffs who did go to great effort and expense to prepare for the exam and thought they won the prize: test scores high enough to result in their promotions to lieutenant and captain positions. The decision not to use the test scores dashed those expectations. Justice Kennedy expressed it this way:

“[A]fter the tests were completed, the raw racial results became the predominant rationale for the City’s refusal to certify the results. The injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the City had established for the promotional process. Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe.” 

One way of looking at this from a technical point of view is that the Court feels compelled to justify finding that the reduced opportunity for promotion which resulted from the decision not to use the test scores was sufficiently adverse to satisfy the “adverse employment action” element of a disparate treatment discrimination case. Without finding some present impact on these white testtakers, it might be hard to conclude that they had suffered an adverse employment action. Dashing an earned reliance interest does provide an adverse employment action even though nothing has actually happened to these plaintiffs or, in fact, to any of the testtakers. But Justice Kennedy seems to make much more out of this. It appears to be the basis for jumping past the “because of” element of a disparate treatment case so that racial consciousness satisfies the intent to discriminate element which establishes liability when an adverse employment action results from that decision, whether or not that decision was “because of race.” 

Another way of looking at this earned reliance interest issue is as a limit on the scope of application of this newly announced disparate treatment doctrine: The employer does not commit disparate treatment discrimination if its decision that is based on the known racial consequences precedes the creation of reliance interests in anyone. Planning to use some sort of employment practice, such as the written test in Ricci, can include the employer projecting what the racial consequences of that use of that practice might be and revising the plan so as to reduce disparate impact, just as long as all the action takes place before anyone has a reliance interest in the implementation of the employment practice. This meaning seems consistent with Justice Kennedy’s concurring opinion in Parents Involved, as to the ability of school boards to act to establish school attendance policies that take account of the racial populations of the different schools just as long as race is not used to decide the school to which individual students will be assigned. So, not all action when the racial consequences are known constitutes disparate treatment discrimination. But the employer must be “color-blind” when some employees have an established reliance interest. So, perhaps, employers need not establish race-blind procedures to make all employment decisions, as long as no one has any established reliance interest as stake. An important new issue will be, therefore, when reliance interests are created because, once they are, risk averse employers will use race-blind procedures.

Does anyone believe that Ricci is a tremendous progressive step making employment discrimination cases very much easier for plaintiffs? Will a majority of the Court now empathize with the African-American plaintiffs who have challenged the use of the test scores in Ricci as disparate treatment discrimination against them?  If a majority of the Court avoids finding liability as to them, how will they support such a decision, given  the logical consequences of its move toward a color-blind standard of liability in this race conscious society of ours?

The main thrust of Ricci focused on the disparate impact issue and its implications will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought against the City because it has now used the test scores challenged in Ricci. In Ricci, the City argued that its decision not to use the test scores was made to avoid the risk of disparate impact liability to the African-American testtakers who would [...]]]> UPDATE: Seven African-American testtakers in Ricci have moved to intervene in Ricci, which is back at the district court for implementation of the Supreme Court decision. Also, African-American testtakers have filed disparate treatment and disparate impact discrimination charges with the EEOC. All this reported in the Connecticut Employment Law Blog, www.ctemploymentlawblog.com/2009/11/articles/decisions-and-rulings/black-firefighters.

The main thrust of Ricci focused on the disparate impact issue and its implications will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought against the City because it has now used the test scores challenged in Ricci. In Ricci, the City argued that its decision not to use the test scores was made to avoid the risk of disparate impact liability to the African-American testtakers who would not be promoted if the test scores were used.  The Court conceded, as did all the parties, that the use of the test scores would have resulted in a disparate impact on African-American testtakers. Using the “pass rate,” or cutoff score that was set for the test, less than 80% of the minority testtakers passed. More important, the actual use of the test among those who passed would have excluded from immediate promotion all the African Americans and all but two of the 22 Hispanic testtakers. (Three African Americans might have some chance for promotion if new openings occurred in the future during the life cycle of the test.) With that prima facie case of disparate impact discrimination conceded, the focus moved to the business necessity and job relatedness affirmative defense and the plaintiff’s surrebuttal possibility of showing that an alternative was available that served the interests of the City but resulted in less impact.

Given the posture of the case – using the risk of disparate impact liability as a defense to a disparate treatment claim – the City had the burden to prove that it would not be likely to carry its burden of proving the test’s business necessity and job relatedness or that disparate impact plaintiffs would likely be able to prove an alternative way promote to promote firefighters that had less impact. The Court rejected the arguments that the City had to prove it would actually lose such a disparate impact case or that its good faith belief sufficed. Instead, the City had to have a “strong basis in evidence” for believing it would be liable for disparate impact discrimination. In other words, it should be somewhat easier for the City to win the issue of its potential risk of disparate impact liability than it would be if disparate impact plaintiffs actually had to prove the City liable for disparate impact discrimination.

The major focus of the Court turned to whether the City showed it had a strong basis in the evidence that the test was neither “job related for the position in question [nor] consistent with business necessity.” Long story short, the City had spent a lot of money hiring a test consultant who did an analysis of the lieutenant and captain jobs and then drafted a written test asking questions about information relevant to the jobs. Instead of jumping from job analysis to test writing, the next step should have been, at least under the EEOC’s Uniform Guidelines on Selection Procedures, deciding what kind of test should be constructed, if any, and what strategy should be used to validate the test. Under the classic approach established by the professional standards of industrial psychologists, a pen-and-pencil written test for a job that did not require the workers to take such tests as part of the job would have to be validated using criterion-related validation.

Criterion-related validation would require giving the test, hiring all the testtakers, doing a subsequent evaluation of their job performance and then running a correlation coefficient to determine whether the test scores correlated with their subsequent job performance scores. Since criterion-related validation is not used out in the real world, the City’s test consultant simply argued that the written test was content valid, i.e., that the written test was a sample of the lieutenant and captain jobs even though test taking was not part of the job.

Relying on content validation, even though it technically was inappropriate for this written test, would not be not risky if the City had been sued for disparate impact discrimination. Basically, the lower courts have upheld pen-and-pencil tests as content valid even though the job did not require workers to take pen-and-pencil tests as long as the defendants had spent some real money constructing and administering the tests and the test questions asked about the job. So, given the judicial abandonment of the professional test validation standards and if business necessity and job relatedness were the only issues, the City would have prevailed on its affirmative defense. With the test being held to be validated, the City could use it. So, on the issue of the validity of the written test, it is no surprise that the Supreme Court found as a matter of law that the test was job-related and justified by business necessity. If that was the only issue, the City would lack a “strong basis” in evidence that it faced disparate impact liability if it had used the test results.

But, even if a defendant proves its written test is job-related and justified by business necessity, the plaintiff has one more bite at the apple. That is by showing that the employer refused to adopt an available alternative that had less disparate impact and served the employer’s legitimate needs. The Court did discuss this and, in light of the weak “available alternative” authority that has been developed in the lower courts, it is not surprising that it found that the City lacked a “strong basis” in evidence that potential disparate impact plaintiffs would prevail on their available alternative surrebuttal claim. While shifting the weighting of the written and oral scores to reduce reliance on the written part of the exam would be an alternative that the Court indicated would have reduced the test’s disparate impact, that was not enough to establish that the test was illegal. The Court found that the City produced no evidence to show that a different weighting would be equally valid in determining who was qualified. In other words, an alternative that reduced the impact of the test was a necessary but not sufficient condition for this surrebuttal stage. There would also have to be a strong basis in the evidence that a change in weighting the scores would have adequately served the employer’s interests. While there was some testimony before the City when it was making its decision whether or not to use the test scores that the City of Bridgeport had reduced the disparate impact of its written exams by changing its weighting with an oral score, the City did not have before it any evidence that doing this would serve the City’s legitimate interests. This is a bit debatable since the claim was made that the revised system used by Bridgeport worked just fine. All in all, applying the prevailing lower court authority to this pen-and-pencil exam, it was likely that the City would not have a strong basis in evidence that it would be liable if it used the test scores. In sum, the Court pretty much applied the prevailing authority from the lower courts regarding job-relatedness, business necessity and available alternatives in deciding that the City would have won, not lost, a disparate impact challenge if it had used the test scores for promotion.

This is where the recent, post-Ricci disparate impact claim, Briscoe v. City of New Haven, comes in. Plaintiff, an African American firefighter who took the test at the same time as the Ricci plaintiffs, claims that he would have been promoted if the weighting were changed and that the weighting of 60/40 favoring the written component had a disparate impact on African Americans. Further, he claims the City knew, even before it decided to use a written test for promotions, that using this 60/40 weighting would have a disparate impact. Nothing was done about the weighting issue because it was a longstanding feature of the collective bargaining agreement between the City and the firefighters’ union even thought the existence of that contract obligation would not be a defense to a disparate impact claim. Briscoe’s claim of impact is that, of the 77 candidates for the lieutenant position, he scored the highest on the oral part of the exam, but his overall score using the 60/40 weighting left him 24^th on the list and thus not eligible to be promoted. His complaint alleges:

“The City did not believe that the 60 percent weighting that it required was job related, and it knew that the weighting would have a disparate impact on African-American candidates: for example, on the lieutenant exam immediately preceding the 2003 exam, the African-American candidates as a group performed substantially better than the white candidates on the oral exam, but they were scored much lower overall because of the 60 percent weighting given to the written test.”

The job-relatedness of the written test, as decided in Ricci, is irrelevant to Briscoe’s claim because he focuses on the impact and job-relatedness of the weight given to the written test scores, not the test itself, when those scores were combined with the oral scores to rank order those who would be promoted. The claim relies on Connecticut v Teal, where the Court upheld a disparate impact challenge to part of an overall selection process – the use of a written test – even though there was no disparate impact resulting at the end of the whole selection process. In Teal, African-American plaintiffs had flunked a written exam and so were not eligible to continue further in the selection process. Because of the impact that the written test scores had in the overall process, they could challenge the test even though when the hiring decisions were finally made there was not a disparate impact on African Americans among those hired.  

Briscoe tries to escape Ricci entirely by making his disparate impact based on fact that the liability of the City is triggered by events that all occurred before the test was administered, before the consequences in terms of the scores of different groups were known and before the City decided not to use the test results because it knew the racial consequences of using the scores. Thus, the argument will be whether or not Ricci has any relevance because Ricci’s focus was at a time after the test had been given, its racial impact was known, including the racial composition of those who would be promoted if the scores were used. In Ricci, Justice Kennedy seems to emphasize that the case focuses on what happened once the test was given.

“Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. . . . Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race.”

That suggests that when the City was planning to use the written test it was required to look, rather than being restrained from looking, at the potential disparate impact of its subsequent use. In other words, Ricci only comes to bear once a test has been given and the successful testtakers have an established reliance interest in its use.

Assuming that the earlier time frame does makes Ricci irrelevant to his claim, Briscoe focuses his attack on the disparate impact of the weighting of the written and oral scores and not the rest of the test as it was constructed by the test consultant. Again, the complaint alleges that:       

“If the oral exam were weighed 60 percent and the written test 40 percent instead of the other way around, the plaintiff would be ranked ninth instead of 24^th and would be promotable. . . . If the written test were not considered [at all], . . three African-Americans would be in the top 12, and the plaintiff would be at the top of the list.”

Briscoe looks more deeply at the issue of what caused the disparate impact in the City’s promotion process than the simple recognition in Ricci that, at the end of the day, the City’s selection process caused a disparate impact on the basis of race. Based on Teal, the weighting element of the selection would appear to make out a prima facie case of disparate impact discrimination. That was not addressed in Ricci because that case focused on the justification, the job-relatedness, of the written test itself, not how the test results were to be used. 

If Briscoe establishes a prima facie case on the weighting issue, the burden of persuasion shifts to the City to demonstrate that the weighting formula it used was “job related for the position in question and consistent with business necessity.” The only evidence in Ricci about the weighting was whether it was an available alternative, an issue upon which the City failed to carry its burden of persuasion. That does not address the business necessity issue as to the weighting at all. And, even if the City did prove that the weighting formula it used was job related and consistent with business necessity, that should still leave to plaintiff the chance to prove that a different weighting formula was an available alternative that the City knew of and failed to adopt. Just because the City failed to carry its burden on that issue in Ricci, would not seem to bar Briscoe from carrying his burden unless the Ricci Court meant that, as a matter of law, the alternative of changing the weighting was not an available alternative. 

While Ricci seemed to adopt the weakened use of the professional test validation standards to justify a written test as job-related for jobs that did not involve test taking, that decision may not foreclose Briscoe. And, of course, if Briscoe is successful, that will have no negative impact on the Ricci plaintiffs, who have been and will be promoted using the results of the test that the Ricci plaintiffs and Briscoe took. If the City failed to carry its burden of proving that the weighting of the written and oral scores was job-related and consistent with business necessity, Briscoe would be entitled to a remedy. Presumably, the City would be ordered to adopt a new promotion process that would either not result in any disparate impact or, if it did, was job-related and consistent with business necessity. Briscoe would then be subjected to the new process and, if he showed himself to be qualified, would get the first opening for lieutenant after the cycle of use of the Ricci test was completed. He should also receive backpay plus front pay until he gets his promotion, with that determined by the difference between his earnings as a firefighter and what he would have earned as a lieutenant.  If, however, the City proved the test was valid but Briscoe proved on surrebuttal that an alternative was available, Briscoe would have to show that he was qualified if that alternative was used. If he did, he would be entitled to promotion once the Ricci test had run its course and back and front pay until that happens.

Given the success of the Ricci plaintiffs’ disparate treatment claim and assuming Briscoe will be successful on his disparate impact claim, the City of New Haven would appear to be damned for not considering the disparate impact before it set up the promotion procedure and then also damned for trying to take account of that impact once the test was given and the reliance interests of the successful testtakers had been established. But relief to the Ricci plaintiffs is not in conflict with relief to Briscoe: The Ricci plaintiffs get the promotions earned by their test scores and Briscoe would likely get the next opening of a lieutenant slot after the cycle for the use of the test had ended.

With that result, there would certainly be strong incentives for employers to investigate the potential disparate impact of any employment practices before using it and either modifying it to avoid that impact or be confident that its use can be shown to be job-related with consistent with business necessity with no alternative available to its use. Further, once the employment practice is implemented and there exists identifiable people who have legitimate expectations that their success pursuant to that practice would be followed, then it is likely too late for employers to refuse to honor those expectations. To fail to use the results of the practice would trigger disparate treatment liability unless the employer had a “strong basis in evidence” that it would be liable for disparate impact discrimination. One wonders, of course, whether an employer can prevent the creation of any expectations, or reliance interests, by making it clear from the start that the employer reserves the right not to use the results of the employment practice it uses.

While I have been wrestling with these challenges, some of our academic colleagues, have I think, been meeting them – Richard Thompson Ford’s, The Race Card, Kenji Yoshino’s, Covering are two examples.  Most recently, and in some ways the most salient to my own aspirations, is Paul Butler’s recent book, Let’s Get Free:  A [...]]]> I am thrilled to be back at Concurring Opinion – thanks to Solangel, Dan and the other regulars for having me.   The timing of this visit is propitious for me – I am returning from a policy-focused (and surprisingly non-academic) sabbatical and I have been thinking a great deal about how best to stay engaged in policy/politics while also returning to academic culture.  The worlds of advocacy and academia are distinct, obviously, and reconciling them can be challenging.

While I have been wrestling with these challenges, some of our academic colleagues, have I think, been meeting them – Richard Thompson Ford’s, The Race Card, Kenji Yoshino’s, Covering are two examples.  Most recently, and in some ways the most salient to my own aspirations, is Paul Butler’s recent book, Let’s Get Free:  A Hip-Hop Theory of Justice. 

Butler’s book is extraordinary – he is a wonderful writer and tells a compelling story about his days as a prosecutor and his own improbable arrest and trial.   But while books by lawyers about their practice are often fun reads – and this one is – what is most impressive is that Butler’s book is a theory of criminal justice.  Butler is doing far more than telling a good story about lawyering.  He has taken his scholarly agenda (which as many of us know has landed him impressive placements in law reviews) and rendered it readable.  He weaves high level traditional theory, data, narrative, very candid self-critique, and insights from hip-hop.  It may seem like a gimmick to have a sentence containing Snoop Dogg and Jeremy Bentham – but in Butler’s book, it’s not.  He obviously knows both intimately and uses them to brilliant effect (and for the record, I don’t particularly like hip-hop). 

This book intends to engage people outside academia into joining a political/legal struggle for a dramatically different method of criminal justice - most notably for drug offenders.   The first half is a critique of our current system – from Butler’s perspective as an insider resulting from his years as a federal prosecutor.  The second half is his alternative theory of criminal justice – drawn from the outsider’s perspective of “the hip hop nation.”   The first half is fabulous – primarily because Butler is so brutally honest about his own experience and his own complicity in what he now considers to be a failed system. 

 I admit to being more skeptical when I began the second half – which presents his “hip hop” theory of justice.  As a teen ager in the 80s, I danced to “Rapper’s Delight,” too, but I stick with late Temptations rather than many of the other artists he relies upon.    But after reading the book through, I think the idea of bringing insights about crime and punishment from this particular community has enormous utility.  What ultimately persuaded me was Butler’s argument (relying upon Rawls) that the people best situated to devise a system of punishment are those who aren’t sure how they will fare under the system.  And Butler is exactly right that those who make up “the hip hop nation” are “both the most likely to be arrested and incarcerated for crimes and  the most likely to be victims of crimes.”  (131).  Therefore, their ideas about who should be punished and how should be heard.

I don’t necessarily adhere to all of Butler’s arguments, but I deeply admire the book – and the method of bringing his academic ideas into popular culture – while also relying upon one particular form of popular culture’s own ideas.   I would love to hear about other examples of engaged – and engaging – scholarship!

All three volumes focus on Johnson’s ambition for power and leadership. Master of the Senate begins with the history of the Senate and its role in our Constitutional structure as the place where dramatic political and social change goes to die – by design. Even after Senators were directly elected, the longer terms, the rules of the Senate, the [...]]]> I am almost done with Robert Caro’s Master of the Senate, his magnificent biography of the years Lyndon Baines Johnson served in the United States Senate. This is the third volume of his-yet unfinished biography of the life of LBJ. This work in progress is now approximately 2500 pages long and has not even covered the years where LBJ was Vice-President and President.

All three volumes focus on Johnson’s ambition for power and leadership. Master of the Senate begins with the history of the Senate and its role in our Constitutional structure as the place where dramatic political and social change goes to die – by design. Even after Senators were directly elected, the longer terms, the rules of the Senate, the role of seniority, committee chairmanships, the ease of filibuster, and the difficulty of cloture have made the Senate a unique institution.

Caro focuses mostly on two developments in the years between 1948 and 1960 before Johnson was elected Vice-President. First, was his meteoric rise as the first (and possibly last) Senate Majority Leader to wield true power. Second, was his burning ambition to be the first Southerner to be elected President since the Civil War.

These two developments combined in Johnson’ epic struggle to pass the Civil Rights of Act of 1957. Out of burning ambition, but also a complicated attitude toward race that was different than most Southern Senators, Johnson wanted, needed, some, any, civil rights legislation to lay the foundation for a run for the White House in 1960. Passing such legislation meant a weak enough bill so the Southern Bloc (his bloc as Caro makes clear in detail) wouldn’t filibuster, and yet enough of a bill that the Republicans, Northern liberals, and Western Democrats could support. To ensure passage, and no filibuster, Johnson had to stitch together a coalition that had never been successfully created on civil rights from the Jim Crow era on.

Caro lays out the cajoling, wheeling, dealing, strong arming, and compromising in the fight for the civil rights bill as well as the complicated linkages between the civil rights bill and other legislation to obtain LBJ’s winning coalition. Among other things, Johnson brokered a deal between Western Democrats who wanted public power and conservative Southern Democrats who wanted the most watered down civil rights bill possible. The Southerners voted for a public power bill they had previously opposed, but did not filibuster the emerging civil rights bills once key changes were made. The Southerners opposed the bill on the floor and voted against it, but would never used the one weapon which could have killed it entirely. The Western Democrats got their public power (at least in the Senate) and supported watering down the civil rights bill which would not hurt them politically back home in that era. Northern Democrats eventually were reconciled to the fact that some bill was better than nothing and Southern Democrats were reconciled to the fact that some bill was inevitable.

Does this remind you of anything currently going on in the Senate? We are seeing the same type of struggle now play out in the Senate over health care reform. Only a fraction of the sausage making is taking place in public, but the same issues of power, leadership, and strategy seems to be unfolding. Some bill, any bill, will probably ultimately pass. Obviously Harry Reid is no LBJ, but the demographics of the House, Senate, and White House are different enough that something is likely to emerge.

But the issues of power, leadership, and strategy remain. Is some bill better than no bill? Is this the first step to more comprehensive reform down the road? Is the watering down of the public option to build coalitions within the Democratic Party, and perhaps a couple of Republicans, leadership, weakness, or just rent seeking? While we will never know, what would LBJ have done on health care, and will we ever see the likes of him as a legislative leader again?

***
Thanks to Danielle, Dan, and the rest of Concurring Opinions for the chance to blog for the month of October. I look forward to the new group of guest commentators for November including my Loyola-Chicago colleague Mike Zimmer.

Volume 57, Issue 1 (October 2009)

Articles

Essay

Comments

Discourse

Th UCLA Law Review is also pleased to announce the launch of a our new website.

The United States Senate recently offered an apology for slavery, which contained an unusual disclaimer prohibiting its use in any claim for monetary reparations. This Essay examines the legal and moral effects of that apology. It analyzes the role of apology within the slavery reparations debate generally as well as the question of whether a stand-alone apology can be a valid form of reparations. It then examines the moral and symbolic effects of the Senate disclaimer, and offers suggestions for bolstering the apology and furthering the restorative justice goals of reparations.

If you’re interested [...]]]> Earlier this week, the Connecticut Law Review CONNtemplations published my short article, Apology Lite: Truths, Doubts, and Reconciliations in the Senate’s Guarded Apology for Slavery. The article’s abstract is:

The United States Senate recently offered an apology for slavery, which contained an unusual disclaimer prohibiting its use in any claim for monetary reparations. This Essay examines the legal and moral effects of that apology. It analyzes the role of apology within the slavery reparations debate generally as well as the question of whether a stand-alone apology can be a valid form of reparations. It then examines the moral and symbolic effects of the Senate disclaimer, and offers suggestions for bolstering the apology and furthering the restorative justice goals of reparations.

If you’re interested in the topic, please take a moment to read the article; it’s not particularly long. If you’ve read the piece, I’m curious as to your thoughts about the Senate’s guarded apology. How serious are the concerns set out in Apology Lite? Can a lite apology be effective? Is it better than no apology? And, what do you think about my suggestions for bolstering the Senate apology?

A Louisiana justice of the peace said he refused to issue a marriage license to an interracial couple out of concern for any children the couple might have. Keith Bardwell, justice of the peace in Tangipahoa Parish, says it is his experience that most interracial marriages do not last long.

“I’m not a racist. I just don’t believe in mixing the races that way,” Bardwell told the Associated Press on Thursday. “I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else.”

Bardwell said he asks everyone who calls about marriage if they are a mixed race couple. If they are, he does not marry them, [...]]]> An incredible story in today’s news:

A Louisiana justice of the peace said he refused to issue a marriage license to an interracial couple out of concern for any children the couple might have. Keith Bardwell, justice of the peace in Tangipahoa Parish, says it is his experience that most interracial marriages do not last long.

“I’m not a racist. I just don’t believe in mixing the races that way,” Bardwell told the Associated Press on Thursday. “I have piles and piles of black friends. They come to my home, I marry them, they use my bathroom. I treat them just like everyone else.”

Bardwell said he asks everyone who calls about marriage if they are a mixed race couple. If they are, he does not marry them, he said.

It’s 2009, the Obama era, and some folks (a JP!) still haven’t gotten the memo on Loving v. Virginia. Mind-boggling.

A less known aspect of the now failed bid was the connection between the bid and one of the landmark cases taught in most civil procedure, civil [...]]]> By this point, everyone probably knows that Chicago finished last among the finalists for the 2016 Summer Olympic and Paralympic Games. Truth be told, I am personally glad that Rio got the games, but civic pride had me hoping that we would come in second, rather than last. I certainly knew a few people who really wanted the games for our fair city, but most actual Chicagoans I talked to were neutral to negative about the whole enterprise, but quite fascinated by the possibility of being able to rent out their homes to tourists for exorbitant sums.

A less known aspect of the now failed bid was the connection between the bid and one of the landmark cases taught in most civil procedure, civil procedure, and complex litigation courses. A temporary 80,000 seat stadium was planned for the opening and closing ceremonies and certain track and field events including the finish of the marathon. The stadium was to have been constructed in Washington Park, a south side neighborhood just west of Hyde Park and the University of Chicago campus. The park would have been the site of massive improvements and some sort of smaller permanent facility would have survived the end of the Games.

The residential portion of Washington Park immediately to the south of the actual park was the site of one of the many ugly incidents in the early part of the 20th century as many Chicago neighborhoods sought to maintain segregated communities in the face of the tremendous expansion of the African-American population that came to Chicago seeking work. At one time, the Washington Park neighborhood was all white and subject to a racially restrictive covenant. In the depths of the depression, a white home owner sold to a middle class black family. The family endured harassment beyond description as angry mobs howled outside their home and the family faced daily threats and numerous incidents of vandalism and violence.

On the legal front, there were also attempts to enforce the racially restrictive covenants that were still lawful in the days before the Supreme Court’s 1948 decision in Shelley v. Kramer. But first, the white land owners had to establish that the covenant was enforceable as a matter of contract law. The covenant was to take effect only when 95% of the owners had executed it. An action in the Illinois courts held that the requisite percentage of owners had signed the covenant. Then certain white home owners sought to enforce the covenant against the new black owner arguing that he was bound by the results of the earlier state court litigation.

By now, you may have figured out that I am describing the landmark case of Hansberry v. Lee. In the United States Supreme Court, Justice Stone wrote on behalf of a unanimous court (three Justice concurring in the result). As my civ pro students can tell you, the case holds that Mr. Hansberry could not be enjoined from purchasing or living in his home as a result of the earlier litigation, since he had been neither a party in the earlier case nor adequately represented by either side in what had amounted to a class action under Illinois law. The case matters today for all manner of principles we explore at length in civil procedure, class action, and mass litigation courses, but it also stands as an important early landmark on the way to the later civil rights rulings of Shelley v. Kramer and eventually Brown v. Board of Education.

To better understand the personal issues at stake for the Hansberrys throughout this ordeal, we have the moving play A Raisin in the Sun by Lorraine Hansberry, who was a young child when her family moved into their new neighborhood. For a detailed and sensitive history of the underlying facts and the convoluted sets of litigation leading up to Justice Stone’s opinion, we are also fortunate to have Jay Tidmarsh’s chapter on the case in Civil Procedure Stories.

I would like to think that the Olympic Games would have done some good for Washington Park and all the surrounding neighborhoods that Mr. Hansberry and others suffered so greatly to integrate, but as a somewhat cynical Chicagoan I suspect that the burdens would have shared by the public at large and the benefits enjoyed by a privileged few. But if you’re ever in town, I hope you will consider visiting Washington Park and seeing where an important part of legal history took place and where a very different type of sporting history was nearly made this past week. If you get there in the next two weeks, there is even a pretty good circus on the site of where the Olympic Stadium would have been.

Some have asked whether this case warrants treatment as a cyber civil rights issue since it “is just a girl cat fight.”  To be sure, women can deprive other women of their right to be free of unequal treatment on the basis of their gender.  But the larger concern is, for me, convincing skeptics to see the blog attacks on Ms. [...]]]> Dan, Kaimi, and Elizabeth have offered some terrific insights on the issues raised by the court’s unmasking of the “Skanks of NYC” blogger.  Kaimi’s post “Cyber Civil Rights vs Privacy in the ‘Skanks in NYC’ case” in particular did a superb job capturing the issue as discrimination.  I write here to follow up on issues related to the case that folks have discussed with me.

Some have asked whether this case warrants treatment as a cyber civil rights issue since it “is just a girl cat fight.”  To be sure, women can deprive other women of their right to be free of unequal treatment on the basis of their gender.  But the larger concern is, for me, convincing skeptics to see the blog attacks on Ms. Cohen as more than just an interpersonal disagreement between two women, something that tort law can handily address on its own, but rather as gender discrimination.  Tort law would not reach the harm experienced by Ms. Cohen, women, and society due to the blog’s interference with her right to equal treatment.  It would not address the stigma that Ms. Cohen experienced a a result of the blog’s message that she had worth only as a sex object.  Much like sexual harassment in the workplace, the blog suggested that Ms. Cohen constitutes an object of sexual derision, not a person worthy of respect.  Moreover, they interfered with Ms. Cohen’s right to work as an equal.  According to Ms. Cohen, potential employers asked her about the blog, which quite possibly deterred them and others from hiring her.  In a world filled with aspiring models, employers might chose to work with someone who comes with less baggage, even if they do not believe the postings a wit.  And the blog postings harm women as a group and a society as a whole by entrenching gender hierarchy in cyberspace.  Whether current law would support such a claim is certainly in dispute, but such a law could be crafted.  Such a law would play an important expressive role–it would change the social meaning of such harassment of women.

Indeed, as privacy scholar Ian Kerr suggested, maybe the media’s attention to the case can be attributed to its leering interest in a “battle” between two beautiful women?  Maybe coverage of the issue reflects a deeper misogyny: the story has attracted so much attention because it produces an image of women as female wrestlers of sorts, battling it out in their bikinis?

A commentator on Dan’s posting asked whether labeling Ms. Cohen “a liar, ho, and skank” could support a defamation claim, at least under the Doe v. Cahill summary judgment standard to warrant unmasking the defendant.  Courts have upheld defamation awards in cases where defendants’ online postings asserted that plaintiffs were “liars.”  The allegations also might have supported an intentional infliction of emotional distress claim.  As my colleague Greg Young wisely noted to me though, even a rigorous standard like the one in Doe v. Cahill (which I support much like Dan) gives leeway to judges to balance values and risks imposing costs on speech.

Hat tip to Ian Kerr and Greg Young.

When I hear about these situations, I always wonder about the “character and fitness” implications. It seems to me that a law student who is publicly judging a [...]]]> Law students sometimes use the internet to widely disseminate racist or gendered comments about women and minority faculty members. For example, I have heard about law students using teaching evaluation forms or Facebook or Myspace to make comments to the effect that that a female faculty member is a bitch with PMS or that an African-American faculty member is a [insert racial slur]. Indeed, the Auto-Admit debacle from a couple years back revealed that law students or potential law students seem to at least sometimes use the internet to convey vicious gendered and/or racist comments.

When I hear about these situations, I always wonder about the “character and fitness” implications. It seems to me that a law student who is publicly judging a female faculty member negatively on a gendered basis or who is characterizing minority faculty members by way of stereotyping and ugly slurs is raising questions about his/her character and fitness to practice law. In the same way that a lawyer who embezzles is not fit to practice, one might argue that a law student who dismisses individuals with ugly characterizations based only on race or gender might also be of questionable character for purposes of practicing law. Yet not everyone agrees with this assessment, and, with respect to law students using the internet for such attacks, there has not been a lot of discussion about the character and fitness issues raised.

Therefore, the AALS Section on Women in Legal Education will be presenting a panel at the AALS Annual Meeting in New Orleans examining the issues raised – including the character and fitness issues – when law students, lawyers, judges, or potential law students use the internet to make gendered or racist comments. If a student posts on her Myspace page that Professor John Doe, who teaches Gender and Race and the Law, is an “ugly [insert racial slur] who only has a job due to affirmative action,” does that pose a character and fitness concern? Should we care?

There is a call for papers for this panel presentation, and anyone interested in submitting a paper or paper proposal is welcome to e-mail me for the details.

The basic criticism of racial profiling is simple.  A police stop for “Driving while  Black” or “Driving while Brown” was unaccaptable as well as unlawful.  Police should stop suspects based on individualized suspicion rather than reliance on statistical group probablities.  Minorities for years had been complaining of profiling and it appeared that the political will to attack it may have come.  (The Supreme Court in Whren v. United States (1996) had undercut efforts to end [...]]]> Remember when racial profiling was an evil that President Bill Clinton, George W. Bush, and then-Attorney General John Ashcroft claimed would soon be ended.  In 2000, Democratic candidates Al Gore and Bill Bradley sparred in a debate in the Apollo Theater in Harlem about who as President would be tougher on racial profiling.

The basic criticism of racial profiling is simple.  A police stop for “Driving while  Black” or “Driving while Brown” was unaccaptable as well as unlawful.  Police should stop suspects based on individualized suspicion rather than reliance on statistical group probablities.  Minorities for years had been complaining of profiling and it appeared that the political will to attack it may have come.  (The Supreme Court in Whren v. United States (1996) had undercut efforts to end racial profiling in traffic stops through the Fourth Amendment and left a tootless Equal Protection remedy in its place.) Many police departments created policies on profiling; others began to collect  data on traffic stops.  A much-publicized report from New Jersey revealed disparities in the searches of the vehicles of minorities.

Were the promises to end racial profiling kept? Apparently not.  A report released by the American Civil Liberties Union and the Rights Working Group at the end of June concluded that widespread racial profiling by law enforcement remains a pervasive problem throughout the United States.

What happened?  The persistence of racial profiling should be no real surprise.  As we all know, law enforcement is difficult to reform.  Moreover, the tragic events of September 11, 2001 led to a resurgence of support, including by some prominent academics,  for the profiling of Arabs and Muslims in the newly-proclaimed “war on terror.”  Special registration and a whole plethora of immigration and other security measures targeted Arab and Muslim noncitizens.

Given the reliance on statistical probabilities based on race, national origin, and religion in the “war on terror,” it proved to be difficult to continue the full court press on eradicating racial profiling in ordinary criminal law enforcement.  The so-called logic of profiling allows statistical probabilities to be considered in terrorism and criminal law enforcement.  The result was that the  challenge to racial profiling ebbed.

It should be no surprise that, with the resurgence in racial profiling in the “war on terror,” little has been accomplished since 2001 in the efforts to end racial profiling in ordinary criminal law enforcement.

And the problem of profiling is not limited to the “war on terror” and ordinary criminal law enforcement.  Racial profiling also taints immigration enforcement, with many Latinos and Asian Americans (citizens as well as immigrants) claiming that they are too often profiled by immigration authorities for being undocumented immigrants.  This is a particular problem in the Southwest in the U.S./Mexico border region.  The Supreme Court has sanctioned this practice.  In the 1975 decision of United States v. Brignoni-Ponce, the Court authorized the consideration of “Mexican appearance” as one factor in an immigration stop.  Since that decision, “Mexican appearance” has come to dominate immigration enforcement.  Latinos regularly complain of profiling — as well as other forms of abuse — at the hands of Immigration and Customs Enforcement.   Click here for analysis of the Brignoni-Ponce decision.

The bottom line is this.  Racial profiling remains central to law enforcement in the United States.  Is there the political will to eradicate racial profiling?   Or is the maintenance of racial profiling on the streets of America another collateral impact of the nation’s “war on terror”?

The California Supreme Court has announced that it will issue an opinion in three cases challenging the constitutionality of Proposition 8 at 10 a.m. on Tuesday, May 26, 2009.

I’ve previously blogged some analysis of the case. Like most other observers, I expect that the court will reject both the revision/amendment challenge and the fundamental rights challenge, but will not retroactively nullify the 18,000 marriages that took place before November. That would be, in effect, a partial victory for both sides.

I guess we’ll find out one way or another this Tuesday.

UCLA’s Williams Institute has just issued two studies on the economic effects of gay marriage. The first study, on the relationship between a state’s approach to marriage equality and population migration – documents that members of the “creative class” –  people who “create’ as their job – who are in same-sex relationships were much more likely to move to Massachusetts following the Goodridge decision and the legalization of same-sex marriage. The study’s author suggests that this could improve help the state’s economy in the long-term. A second study shows that same-sex weddings have added over $100 million to the Massachusetts economy  (although this is not even a drop in the bucket in the $300 billion spent in Massachusetts in, for example 2004). Serendipitously, [...]]]> Co-authored with June Carbone 

UCLA’s Williams Institute has just issued two studies on the economic effects of gay marriage. The first study, on the relationship between a state’s approach to marriage equality and population migration – documents that members of the “creative class” –  people who “create’ as their job – who are in same-sex relationships were much more likely to move to Massachusetts following the Goodridge decision and the legalization of same-sex marriage. The study’s author suggests that this could improve help the state’s economy in the long-term. A second study shows that same-sex weddings have added over $100 million to the Massachusetts economy  (although this is not even a drop in the bucket in the $300 billion spent in Massachusetts in, for example 2004). Serendipitously, David Brooks wrote an op ed in the New York Times today, “In Praise of Dullness,” discussing  a different study that found the ideal C.E.O. is ” humble, diffident, relentless and a bit unidimensional,” in short, “not the most exciting people to be around.”  This study complements the work of journalists and political scientists, such as Bill Bishop and Andrew Gelman,  who increasingly find that the high tech centers of the country (including the Boston corridor) attract that same creative class open to new ideas and approving of same sex marriage, while the conscientious, more religious, and conventional family oriented types are drawn to other regions – regions that tend to oppose same-sex marriage.

Do these divisions suggest that opposition to same-sex marriage is in our genes – or at least our personality types? The CEOs and the creative class of the new economy may not belong to different tribes, but they tend to see the world through different lenses that color  their  perceptions.      Thus, those opposed to same-sex marriage are unlikely to be persuaded by these – or any other — data. Different ways of framing issues – including the calls for a reaffirmation of traditional values versus insistence on the need for greater acceptance of diverse family forms – appeal to different worldviews.

When political issues are framed in these terms, practically or metaphorically, they reinforce deeply held beliefs. Such beliefs are resistant to argument, logic, or facts. Indeed, cultural research by Yale’s Cultural Cognition Project  as well as linguist George Lakoff suggests that when empirical data conflict with these beliefs, people reinterpret or deny the empirical findings rather than change their views (cites to all of this work is in the book manuscript for Red Families). Neuroscientists have even shown that different parts of the brain are activated by information that conforms to or challenges people’s beliefs. Consequently, when many people are confronted with new scientific information on issues that are culturally controversial, then religious authorities are more convincing than the cold, hard data.

For those of us who believe in gay marriage, however, bring on more studies like this!

1.  Demographic questions

a.  What is your approximate age?

b.  What is your gender?

c.  What is your race?

d.  What is your level of education?

2.  Survey questions.  Please state what you consider your level of knowledge about each of these events.  Please state whether you have “no knowledge of the event,” “little knowledge of the event,” (you [...]]]> I’m curious as to what level of knowledge people have of some important Jim Crow events. If you’ve got five minutes, please make a comment, to fill this out this brief, completely unscientific survey.  Feel free to do so anonymously or pseudonymously.  I’m not trying to embarrass anyone, I just wonder to what extent certain events are known or unknown, and this is enough to give me some general sense.

1.  Demographic questions

a.  What is your approximate age?

b.  What is your gender?

c.  What is your race?

d.  What is your level of education?

2.  Survey questions.  Please state what you consider your level of knowledge about each of these events.  Please state whether you have “no knowledge of the event,” “little knowledge of the event,” (you have heard it mentioned, but don’t know what it’s about), “some knowledge,” or “lots of knowledge.”  (Yes, it’s not a great methodology, but it’s enough for this purpose.)

Okay, here goes.  Please state what you consider your level of knowledge of:

a.   The Colfax Massacre (a.k.a Colfax Riot)

b.  The Wilmington Race Riot (a.k.a. Wilmington Insurrection)

c.  The St. Louis Race Riot (a.k.a. East St. Louis Riot)

d.  The Tulsa Race Riot.

e.  The Rosewood Massacre (a.k.a. Rosewood Race Riot)

f.  The Greensboro Massacre.

That’s it.  Thanks!