Much ink has been spilled over the suit brought by several New Haven firefighters against the city for scrapping the results of a promotional qualification exam, with the firefighters alleging Title VII employment discrimination claims (both disparate treatment and disparate impact) and constitutional Equal Protection claims for the city’s decision to scrap those results, allegedly, because an insufficient number of African-Americans had passed the test as compared to whites and latinos.

In my humble opinion, the case is procedurally too premature for constitutional review by the Supreme Court. The firefighters weren’t wrong to allege a whole host of possible scenarios ranging from intentional race-based decision-making to mere unnecessary creation of a racially-biased outcome; that’s inherent in any claims brought by any plaintiff, since none of us know what "really" happened in the defendant’s mind nor what the jury will find.

The problem is that their claims were dismissed on summary judgment prior to any factual finding, leaving open a number of issues which would show which type of claim they are actually able to prove at trial and whether the evidence, and not merely the allegations, raised constitutional issues.

The Supreme Court thus needs to review the factual evidence as broadly as possible, with all reasonable inferences in the plaintiffs’ favor, and, per long-standing doctrine, the court is to avoid constitutional questions if possible. Let me quote two paragraphs from SCOTUSBlog:

[P]etitioners contend that the City’s action violates Title VII.  Section 2000e-2(j), they explain, prohibits employers from “granting preferences to prevent racial imbalances.”  To comply with this provision, the City must prove that its use of race was lawful.  Specifically, to avoid Title VII becoming a pretext for discrimination, Title VII should be read as requiring respondents to show a “strong basis in evidence” that disparate impact did in fact occur.  Under this standard, summary judgment was inappropriate based upon the facts uncovered during discovery.  Finally, for the reasons stated above, and as shown by its legislative history, § 2000e-2(l) prohibits the City’s action.

According to the government[‘s amicus brief], the City’s decision did not, absent evidence of it being a pretext, violate the Equal Protection Clause because it was facially neutral – at most a form of disparate impact itself, without evidence of disparate intent.  Even if the Court were to find otherwise, compliance with Title VII is a compelling governmental interest when there is a “strong basis in evidence” that the employer, if it had not acted, would have violated Title VII’s demands. However, the government concedes, because the petitioners have raised a question of fact as to whether the City’s decision not to certify was unreasonable or pretextual, the case should go before a jury.

Here’s 2000e-2(j) & (l):

(j) Preferential treatment not to be granted on account of existing number or percentage imbalance

Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor-­management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.


(l) Prohibition of discriminatory use of test scores

It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin.

Apparently, the (l) issue wasn’t even really addressed much by either party or the court at the trial level. The (j) issue, too, plays into a bigger factual question of just what New Haven was doing.

That means most of the "issues" raised by the briefs and the commentators are unnecessary for the court’s review: everything could be decided on the grounds that the firefighters could show that New Haven’s justifications are merely a pretext for imposing a race-based quota, which would be illegal under existing law.

The unique posture lead to some interesting questions at today’s oral argument:

JUSTICE ALITO: Mr. Kneedler, could you explain how summary judgment in favor of the defendants on the Title VII disparate treatment claim can possibly be affirmed, even if the employer had reason to believe that the test that was given would expose itself to liability under a disparate impact theory? If that’s not the employer’s real reason for refusing to go ahead with the promotions, then isn’t there liability under a disparate treatment — under a disparate treatment theory, and that’s a question for the jury? So how can we possibly affirm summary judgment here?

JUSTICE STEVENS: Mr. Kneedler, can I ask you this? You — you’ve recommended that we set aside the summary judgment and send the case back for a hearing.
JUSTICE STEVENS: What is the issue of fact that you think needs to be decided?
MR. KNEEDLER: As I’ve mentioned to Justice
Ginsburg, I think it would go — there are several things. One, it would go to the justifications that were advanced by, that identified by the district court here that do not fit into this framework, do not fit into complying with the Title VII disparate impact test, and those are promotion of diversity and — and role models.
That is — that is one. Also the district court did not apply what we believe is the right test, whether the employer had a reasonable basis for believing that what it was doing was necessary or a reasonable basis to believe it might be violating the disparate impact test. If it did not have a reasonable basis then we believe there would be a triable issue for the jury.
JUSTICE GINSBURG: When — when I asked that you question, you said that one issue of fact was whether the board was acting in response to improper influence, to racial politics.
MR. KNEEDLER: Yes. That — the district court rejected that argument and whether or not that should be revisited on remand is — is another matter. We’re —
JUSTICE SCALIA: Isn’t that a controverted issue of fact? How can you possibly get around that?
JUSTICE SCALIA: I mean, one side says what you say is just pretext; the real reason was just politics. Isn’t that an issue of fact that has to be tried?
MR. KNEEDLER: Well, under this — under this Court’s decisions dealing — dealing with summary judgment, even on questions of intent, the — the plaintiff ordinarily has to come up with some affirmative evidence that there was — that there was in this case an impermissible racial motive to do that. And the — the district court looked at what the civil service commissioners said and concluded that — that they did not have an impermissible racial motive, that they were responding to concerns about the validity of — of the test.
JUSTICE ALITO: But does the government think that you can just — in a case like this you can just look at what — what is said by the ultimate decision-maker and ignore the input from other people who may have influenced the process?

"Interesting" because of the sources, with Stevens and Ginsburg skeptical about an employment discrimination plaintiff overcoming summary judgment and Scalia and Alito suggesting plaintiffs be permitted to air their grievances in court.

Not what we’re used to in these situations.