Thompson Ford speculates that the logic of Ricci can't be contained to cases where tests are thrown out; he thinks that Ricci will prevent employers from choosing Test A over Test B because Test B disfavors minorities. But that's exactly what Ricci explicitly says is okay. Kennedy's opinion says that it's not enough to have a good faith belief that you're liable under Title VII disparate impact to throw out a test; you need a strong basis in evidence that you're liable. Now, what constitutes a strong basis in evidence that you're liable? Another test that one knows doesn't produce as disparate effects as the one you're using. That is, if New Haven had simply identified a single test that (a) was equally valid, and (b) didn't fail blacks at as high a rate as the one they did use, they would've won this case on the standard the Court adopts. Therefore, if you're an employer and you're faced with two good tests, one of which has a lot of disparate impact, the other of which doesn't, of course you're allowed to opt for the latter, even if your reasons are solely racial. What Ricci really is, like the voting decision a week prior, is a ruling of constitutional avoidance. The Court narrowly construed, and probably misconstrued, Title VII to prohibit conduct that in their heart of hearts they think it requires or at least allows - because they think that conduct is unconstitutional, and don't want to come out and announce that a piece of the Civil Rights Act of '64 is unconstitutional.

Except that in Ricci there was evidence given that other tests were likely to have less disparate outcomes, and that other testing methodologies had less disparate outcomes.

Essentially what Kennedy said is that you can't invoke Disparate Impact until you get sued.

That's writing new law.

Well, I agree that there was some evidence given to that effect, but it was fairly sketchy. Basically you have a competitor (to the testing company they hired) testifying that the disparate effects from this test were unusually high, and you also have the weighting issue (the weight of the written and oral components). Now, on the Court's theory, you probably could say that the city should win because they could've readministered the test and weighted the oral component higher and gotten different results. But again, what's really going on here is the Court searching for any way they could engineer a win for Ricci without coming out and declaring disparate impact law unconstitutional. In any event, it's hard to see how, if you actually had hard evidence that a specific test would produce better results, you could lose on Kennedy's standard.

Well how sketchy? Consider yourself as the Corp Counsel for NHFD. You are asked for a recommendation in a case that

• Clearly places the burden of proof on you
• already has testimony undermining your ability to prove your case
• costs more to defend than any possible case from the other side.

What do you recommend? I think you are 100% correct that

But again, what's really going on here is the Court searching for any way they could engineer a win for Ricci without coming out and declaring disparate impact law unconstitutional.

THIS IS the issue. Kennedy and Roberts PERSONALLY wanted to vindicate Ricci, but didn't want to overturn Title VII. So they rewrote the law.

it's hard to see how, if you actually had hard evidence that a specific test would produce better results, you could lose on Kennedy's standard.

True, but that essentially shifts the burden back to the complainant. And it takes it out of the regulatory realm and essentially requires that the complainant ALWAYS SUE (becaues if they don't the Kennedy test precludes any accomodation).

That is a rewrite of the law and its intent.

I don't really see how it requires that the complainant always sues, or that the (is this a word?) complainee prove a case against themselves. All New Haven really would have to do, to win this case, is point to a test that does as good a job of testing firefighting ability and doesn't produce wildly disparate results along racial lines. If they had held more thorough hearings, they probably would've hit on something. The bottom line though, is, that yes, they did rewrite Title VII, just as they just rewrote the Voting Rights Act in much more egregious fashion (the statute specifically stipulates what a 'political subdivision' is and Roberts says that definition doesn't mean anything). But they did it because they think that what New Haven did was unconstitutional - and I think that, if you admit that precedents like Croson and the like are good law, regardless of whether you care for them, that result probably follows. They don't want to come out and say that because that would ultimately require them to strike down a piece of the Civil Rights Act, and apparently overtly throwing out cherished pieces of civil rights law is something they're too scared to do. So they're just construing it out of existence. Eventually a case will come down the pike where an employer does have a strong basis in evidence that a test they gave would put them afoul of Title VII, and they'll claim that that's not enough either. I'd prefer a more intellectually honest approach, but I do think that the result, at least, is defensible.

they could have just returned to the exact words of the famous 1964 Civil Rights Act, and declare the re-write in 1991 unconstitutional. Would this work?

Would that work? No, and this case didn't require them to do that. Even if they ruled that what New Haven did was unconstitutional, they could've simply said that it wasn't required by Title VII and thereby avoided saying anything about the constitutionality of the statute, just as the Shaw line of cases were decided on the theory that the Voting Rights Act doesn't really require you to draw oddly shaped majority-black districts. Why they choose to take the route of saying that Title VII itself prohibits these sorts of choices on the parts of employers, I don't know, but it does seem that whenever possible the Court likes to portray itself as a bunch of unthreatening minimalists, even if they have to severely contort a statute to avoid dealing with a constitutional question they probably have a sounder argument on.

I don't really see how it requires that the complainant always sues, or that the (is this a word?) complainee prove a case against themselves. All New Haven really would have to do, to win this case, is point to a test that does as good a job of testing firefighting ability and doesn't produce wildly disparate results along racial lines.

And the CSB in New Haven took testimony to that effect. And Kennedy's ruling said that this was not sufficient. Nor was FEAR of action under Title VII sufficient. Instead The City had to actually try and prove that Either the test was biased or that they actually were going to be sued before it could even ENTER into negotiations with those adversely impacted as to what a reasonable alternative might be.

That's a rewrite of the law for which transfers much of the burden of proof from the respondant back to the plaintiff (they have to sue, which means showing standing, etc.) which is the antithesis of the legislative intent. Note that they did not do so because what NH did was "unconstitutional". At least that was their claim. Kennedy's claim was simply that the law as written meant something different.

That's just sill.

Kennedy doesn't want to throw out Civil Rights Law because he's worried about his legacy since he's on his last legs here. Scalia, Alito, Thomas and Roberts very much DO want to.

And no, its not particularly defensible.

Well a lot of this has to do with the makeup of the court. Conservatives who were raised under legally mandated racism make up a disproportionate part of the court (5 out of 9 justices).

Kennedy though is the least ideological of those and is worried about his legacy. so what you are seeing is Scalia, Alito, Thomas trying to overtly overthrow the Berger Court's rulings whilst they still have a disproportionate majority. Roberts is looking to narrow rulings so as to not taint his legacy from the outset as racist.

and Kennedy is trying to apply conservative ideology without coming across as racist since his legacy is on its last legs as well.

Hence the wierd rulings on these issues.

degsme:

Except that in Ricci there was evidence given that other tests were likely to have less disparate outcomes, and that other testing methodologies had less disparate outcomes.

No there wasn't. That cannot be true. A more subjective method cannot have less disparate outcomes according to your argument about unearned white male privilages.

Tarkol:

degsme:

Except that in Ricci there was evidence given that other tests were likely to have less disparate outcomes, and that other testing methodologies had less disparate outcomes.

No there wasn't. That cannot be true. A more subjective method cannot have less disparate outcomes according to your argument about unearned white male privilages.

Wow that's convenient. Rival testing company: "New Haven, if you had contracted OUR company,. this wouldn't have happened! That's why THAT company should never get any more business!"

anotion:

Tarkol:

degsme:

Except that in Ricci there was evidence given that other tests were likely to have less disparate outcomes, and that other testing methodologies had less disparate outcomes.

No there wasn't. That cannot be true. A more subjective method cannot have less disparate outcomes according to your argument about unearned white male privilages.

Wow that's convenient. Rival testing company: "New Haven, if you had contracted OUR company,. this wouldn't have happened! That's why THAT company should never get any more business!"

Degsme has consistently argued the whites have an unfair advantage in any subjective evaluation. Degsme also argues that "there was evidence given that other tests were likely to have less disparate outcomes". Yet the "other" tests Degsme refers to are much more subjective than any written test. So if whites always have the advantage Degsme purports then how can a more subjective evaluation method be more fair?

Yeah, the city just had to "test" the tests before they threw them out. An undesired outcome isn't the same as disparate impact. You give a test that is based on a thorough job analysis. You get results that "disproportionately" favor one race over another. You test the procedures to see if they are valid and necessary. Absent that last step all you have are test scores and there is no disparate impact under the law. The city didn't test their results. Any testimony about bias in the test seems to have come after the fact and was not the basis for throwing out the tests.

Title VII is unconstitutional and needs to be thrown out.

legally mandated racism = Title VII

“disparate impact” does not justify “legally mandated racism”