Like many other pieces of commentary, the Times raises the connection to Sonia Sotomayor, who took part in the 2nd Circuit's decision that was overruled. By doing so, it misses a chance to discuss why the decision was reached, and what the decision means, for Ricci, for whites, for blacks, and for Title VII of Civil Rights Act. What I see (caveat: I only imagine I've attended law school and I am omitting way too much information) is a Court split between process and outcome. The rightish five base their opinion on the procedure that New Haven used to implement the test, and the leftist four focus on the outcome of the procedure. By emphasizing the reasonableness of the process used by New Haven (the city consulted with minority groups in devising its officer test) and the unreasonableness of abandoning its established process (the city did not have any firm evidence that its actions discriminated against the minority candidates who did not pass the exam), the majority ruled that disparate treatment is more objectionable than disparate outcomes.
In other words, the outcomes of a process are dependent on many factors; therefore, due diligence in establishing a process is enough to indemnify organizations from discriminatory action, no matter the outcome. There is no way to determine a significant correlation between the exam (in this case) and the outcome, therefore, how the exam was implemented matters. According to the majority, New Haven erred, and thus created disparate treatment against the candidates who took pains to pass the exam, when it abandoned the results of the exam. The dissent of the minority argued in contrast that outcome matters, especially for a city with the racial history and demography of New Haven, no matter how reasonable and diligent the city was in establishing its policy to not discriminate.
I am surely not iterating anything not already explained, and done so in a far superior way, by other commentators. However, I do want to emphasize two things:
a.) Making this decision about Sotomayor abases the realtime experience of Frank Ricci and the other people for who this case mattered. Frank Ricci felt discriminated against, it seems, because he is white. Micro-parsing the decision as a commentary on Sotomayor's thinking (digging through the runes of footnote #10, say) elides the effects on the people involved and the law that emerges. They are what matters, so explain and analyze these dimensions instead of creating barren hypotheticals and imaginary mindsets of the judge.
b.) Ginsburg's comment - that Ricci should not have an expectation of promotion even if he operated by the rules established - creates an untenable situation: any good faith effort to play by the established rules and policies of an organization means nothing if the outcome fails to achieve some non-qualificational result. Let me reemphasize that I am not fan of testing nor do I accept the "meritocracy" of systems. And I would not ignore the social context of any outcomes from a process used to assign worthiness. But I do understand the pragmatics of adaptation. If I enter into a system with well-established process for excelling, unless I recognize and call attention to the unfairness inherent, I have every reason to expect the rewards of working the process. Moreover, the system is itself nothing but those processes. They can be changed, if they do not produce a result aligned with the institutional goals, afterward, of course. But that should entail a more comprehensive deliberation, not a spontaneous reaction. Which did New Haven undertake?
It is precisely because I recognize the contingency of things and the ultimate fallibility of human constructs that I agree with the minority report, in essence. But the result of the dissent in this case just puts more onus on the organization (here, New Haven and its fire department) to continually evaluate its procedures, its goals and aims, and its validity in its community. The question is whether New Haven had already undertaken such a review. The majority attempt to make reasonable, and fair, the extent any organization must go to establish such a review process. We can disagree whether these limits go far enough, or not. But to argue that results determine whether an organization went far enough simply vacates any steps an organization takes. The ends do not justify the means. To argue otherwise undermines any human effort to act mindfully, and surrenders a large quantum of human agency to a politically and socially viable vision.
ADDED: After reading the post exchange on Ricci over at Slate, especially this one from Emily Bazelon, I am sticking with my comments. I will, however, cop to being on her side. I do not share the snideness of Alito, and I can not imagine that Kennedy et. al. understand completely the kinds of justice they anticipate their ruling dispenses. Perhaps my thinking comes from my negation of the 80% rule for discrimination (if a racial group scores less than 80% of a majority group on an exam, there is de facto discrimination - more or less). In other words, I do not accept that standard as a qualification of discrimination by itself. There innumerable reasons for disparity on exams. Did New Haven make an effort to check the validity and reliability of the exam beforehand? If so, as I express above, I can accept the decision of the majority. For me, it comes down to how due diligence is determined. The Court only minimally answered that question in this decision
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