Posted Aug 15, 2011 11:48 pm CDT
In an unusual 2009 decision, a divided U.S. Supreme Court not only vacated a lower court’s ruling that the city of New Haven, Conn., had a right to discard the results of a promotional test, out of concern that it was racially biased, but ordered the the city to certify the results, which called for the promotion of an almost entirely white group of firefighters.
In siding with the white firefighters in the Title VII disparate-treatment case, the U.S.Supreme Court majority said the city didn’t have to worry about defending subsequent disparate-impact litigation by minorities over a test that disproportionately elevated whites to better jobs:
“If, after it certifies the test results, the city faces a disparate-impact suit, then in light of our holding today it should be clear that the city would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability,” the court wrote.
But Justice Ruth Bader Ginsburg felt so strongly about her dissent in Ricci v. DeStefano, in which three other justices joined, that she read it aloud from the bench in 2009.
And one of the points that she made was that the 5-4 majority ruling not only established a new “strong basis in evidence” standard for defending a disparate-treatment case but circumvented the usual process of allowing the lower courts, on remand, to apply the standard to the facts of the case. That process would also presumably have allowed the city to present evidence to try to prove that a “strong basis” for its position did exist.
“The court’s order and opinion, I anticipate, will not have staying power,” Ginsburg said, and, in fact, it is already effectively being challenged by a leading federal appeals court.
In an opinion today written by the chief judge of the 2nd U.S. Circuit Court of Appeals, an appellate panel reversed a lower court’s determination that this one-sentence 2009 supreme court dicta from Ricci about potential disparate-impact liability precluded a disparate-impact suit by a black New Haven firefighter.
Under traditional principles of issue preclusion, a court ruling is binding only on the parties to the case, not on others bringing separate actions, the New York-based appellate panel points out in Briscoe v. City of New Haven (PDF).
Plus, the 2nd Circuit continues, the strong-basis-in-evidence test was determined in Ricci to apply to disparate treatment cases; the supreme court never held that it applied to disparate impact cases under Title VII.
“To rule for the city,” the court writes, “we would have to conclude that the supreme court intended to effect a substantial change in Title VII disparate-impact litigation in a single sentence of dicta targeted only at the parties in this action.”
The 2nd Circuit emphasizes that it isn’t dictating how the lower court should rule on remand, only that the plaintiff, Michael Briscoe, should get his day in court.
Additional and related coverage:
Connecticut Law Tribune (sub. req.): “White Firefighters Settle, But Attorney Still Angry”
Yale Daily News: “City to pay over $2 million to firefighters in Ricci suit”
Associated Press: “Appeals court in NYC restores New Haven firefighter’s lawsuit over controversial 2003 exam”
Reuters: “Appeals court reinstates African-American firefighter suit”