The Supreme Court’s Post-Racial Turn Towards A Zero-Sum Understanding of Equality

Helen Norton - University of Colorado School of Law

Americans remain deeply divided over the question whether we have yet achieved a “post-racial” society in which race no longer matters in significant ways. 1 How, if at all, this debate is resolved carries enormous implications for antidiscrimination law.

As just one example, characterizing contemporary America as successfully post-racial undermines the central premises of disparate impact theory: that racial disparities are sufficiently suspicious to demand justification and those disparities that remain unjustified are morally and instrumentally objectionable. To those who consider America to have largely achieved post-racial success, such disparities trigger no great suspicion. A post-racial discomfort with noticing and acting upon race thus supports a zero-sum understanding of equality: if race no longer matters, a decisionmaker’s concern for the disparities experienced by members of one racial group inevitably includes the intent to discriminate against others. In other words, one’s view on our post-racial status often drives what one identifies as troubling: attending to race or not attending to race.

Illustrating the significance of these divisions, the Supreme Court’s swing Justices in recent decades found themselves uncomfortable with the use of race-based classifications to further a governmental interest in addressing longstanding racial subordination, yet unwilling to dismiss the strength of that interest given their view of the continuing relevance of race to American life. Justices O’Connor and Kennedy, in particular, remained reluctant to claim complete post-racial success and thus to characterize as inherently suspicious government’s interest in addressing unjustified racial disparities.2 While the Court increasingly moved towards an insistence that government remain color-blind in its actual treatment of individuals, a majority still expressly rejected post-racial assumptions and thus remained unwilling to treat as discriminatory government’s attention to racial impact when choosing among various policy options—for example, efforts to reduce racial isolation by designating school attendance zones with an eye towards neighborhood demographics, or to generate more diverse applicant pools by the targeted recruitment of applicants of color.

I. The Court’s Potential Post-Racial Turn

Recent developments, however, signal the possibility that a majority of the Court has now adopted a new, zero-sum understanding of equality that may be triggered by an assumption of post-racial success. More specifically, the Court in Ricci v. DeStefano for the first time characterized an employer’s attention to its practices’ racially disparate impact against members of some protected classes as evidence of its discriminatory, and thus unlawful, intent against others.3

In Ricci, the Court considered a challenge to an employer’s decision to discard the results of a test that imposed a severe disparate impact against African Americans and Latinos. The New Haven Fire Department had administered promotional examinations to fill vacancies in its supervisory positions; the examinations involved a written and oral component, weighted to comprise 60 percent and 40 percent, respectively, of the applicant’s total score. Based on test-takers’ scores under those tests as weighted, no African Americans or Latinos were eligible for promotion to the position of Lieutenant; no African Americans and two Latinos were eligible for promotion to the position of Captain.

Although all agreed that the tests at issue imposed a severe disparate impact on African American and Latino firefighters, considerable controversy remained over the tests’ accuracy in identifying the best candidates for promotion and the availability of less discriminatory alternatives that might better measure leadership ability. Concerns about the examinations included the city’s failure to consider any alternative methods of evaluation, its failure to justify the 60/40 weighting ratio between the written and oral exam, questions about access to study materials, concerns about the failure to vet the tests with local reviewers familiar with New Haven firefighting practice, and the availability of alternative evaluation methods like the risk assessment centers used by most other fire departments to assess candidates’ leadership and problem-solving skills.

Because of its concerns that the examinations were vulnerable to Title VII challenge in light of their disparate impact and uncertainty over their validity, the city declined to certify the test results, and no firefighter was promoted. The plaintiffs—a group of test-takers who received high scores on the examination—argued that the public employer’s refusal to use a test because of its impact against members of some racial and national origin groups constituted an act of intentional discrimination against members of other groups for both equal protection and Title VII purposes.

Addressing only the Title VII question, a 5-4 Supreme Court granted summary judgment to the plaintiffs. In a decision that may also have constitutional implications, Justice Kennedy’s majority opinion newly characterized as suspicious for statutory purposes the institutional frame of mind that he had previously appeared to endorse: an interest in addressing unjustified racial disparities in recognition that race still too often matters.

Indeed, although Justice Kennedy explicitly rejected post-racial assumptions in earlier opinions,4 such a rejection is difficult to square with his opinion in Ricci. He stripped its factual narrative not only of any discussion of the history of race discrimination both local and national, but also of any explanation of the adoption of disparate impact theory by the Supreme Court and Congress in response to that history. Making no mention of the extended history of inequality to which disparate impact theory responds—nor of the possibility that race continues to play a role in the assessment of ability and thus the distribution of employment opportunities—Justice Kennedy cast the fifth vote to hold, for the first time, that an employer’s attention to disparate impact against some is in fact evidence of its disparate treatment of others. The majority’s premise that Title VII’s disparate treatment and disparate impact provisions are potentially antagonistic thus departs dramatically from the assumptions of past Courts and Congress that attention to employment practices’ racially disparate impact remains entirely consistent with and complementary to Title VII’s objective in ensuring equal employment opportunity for all. That the majority now finds tension between the two unsettles the Court’s longstanding premise that attending to practices’ racially disparate impact is not the sort of attention to race that threatens equality values.

Furthermore, Justice Kennedy’s majority opinion not only created a brand-new evidentiary rule (in other words, that actions like the city’s constitute impermissible disparate treatment discrimination unless the employer can demonstrate a strong basis in evidence for believing that it would otherwise have been liable for disparate impact discrimination), but it then applied that rule to hold for the plaintiffs on summary judgment—suggesting a comfort with traditional yet unexamined measures of merit that also may be shaped by one’s assumptions about America’s post-racial success, at least in the employment context. Recall that considerable uncertainty remained over the tests’ accuracy in identifying the best candidates for promotion and the availability of less discriminatory alternatives that better predict successful performance in leadership positions. In invalidating New Haven’s response to such uncertainty, the Court simply denied its existence.

Decades after concluding that the Equal Protection Clause does not require public employers to reconsider their practices that disproportionately disadvantage people of color so long as those actions are not motivated by an interest in perpetuating racial hierarchy,5 the Court has now concluded that Title VII forbids them (and private employers, too) from doing so under certain circumstances. This may reflect the majority’s assumption of post-racial success (at least in the employment context) that in turn triggers a new, zero-sum understanding of equality. Moreover, if applied in the constitutional setting as concurring Justice Scalia predicted,6 such a turn would have enormous implications for equal protection law: the potential constitutional end of statutory disparate impact standards and perhaps also of an even wider range of important responses to government’s self-analysis of the racial or gender impact of its actions. Examples include public schools’ efforts to increase admissions of students of color through the use of facially race-neutral criteria like economic disadvantage or high school class rank, or government’s choice to fund certain health initiatives to address racial or gender disparities in access to or quality of health care.

II. Challenging a Zero-Sum Understanding of Equality

Such a turn towards a zero-sum understanding of equality, however, is by no means inevitable. Indeed, the Court’s recent antidiscrimination decisions remain susceptible to a number of alternative understandings, some with decidedly narrower implications than others. For example, the Court may view actions like the city’s—in other words, those motivated by a decision maker’s interest in ameliorating racial disparities—with suspicion only when those actions make identifiable third parties like the Ricci plaintiffs worse off in tangible ways. At that point, but not until that point, the Court may see the costs of attending to race for antisubordination ends as outweighing its benefits.

If that is the case, then opportunities remain for shaping the Court’s approach to equality to avoid a collision between antidiscrimination commitments. These include a renewed debate over the social meaning of measures that attend to the impact of various rules or standards on protected class members when choosing among available options that will then apply to all regardless of protected class status. More specifically, disparate impact standards and similar efforts play a powerful role in ensuring that candidates—regardless of protected class status—are selected on actual merit rather than on unexamined yet entrenched assumptions that replicate patterns of subordination at the expense of individual opportunity. Because revisiting the social meaning of such efforts illustrates their win-win possibilities, a zero-sum understanding of equality remains ultimately impoverished.

Consider, then, the possibility of a counter narrative that explores the win-win possibilities created by disparate impact provisions in expanding opportunities for those—regardless of protected class status—who are overlooked by measures that do not accurately assess ability. For example, consider the contentions in a complaint filed against New Haven a few months after the Court’s decision in Ricci.7 Michael Briscoe, the plaintiff in that suit, is an African American firefighter who received the top score of all candidates on the oral exam. If that had been the only measure of merit, he would have been first in line to be promoted. Similarly, if the oral exam had received a 70 percent weighting—the norm for public safety agencies, according to Mr. Briscoe’s complaint—he would have ranked fourth and again would have been eligible for promotion. Even if the written/oral weighting were 40/60 respectively, rather than New Haven’s 60/40, he would have been ranked ninth and thus remained eligible for promotion. Under the city’s 60/40 written/oral weighting, however, he ranked twenty-fourth and was ineligible for advancement.

Mr. Briscoe alleged that the oral examination on which he received the highest score required candidates to respond in detail to real-life fire scenarios and personnel management situations and thus tested not only job knowledge but also managerial and leadership skills, in contrast to the multiple-choice written exam’s focus on memorization. More specifically, he alleged that the

differences between the written test and the oral exam disadvantaged a candidate, like the plaintiff, who had diligently studied and learned all the material taught during years of on-the-job experience and extensive in-service training, compared to one who did little until the run-up to the exam but then memorized the facts that were included in the assigned written materials.8

Mr. Briscoe offers a compelling counter narrative to that of the Ricci plaintiffs—that of a hard-working African American firefighter who excelled on what matters for success in firefighting leadership, only to find that his employer did not value those qualities. In short, although the Ricci plaintiffs’ reliance interests are significant, they may not be the only, and perhaps not the most important, reliance interests implicated by New Haven’s actions in particular and by attention to disparate impact generally. Instead, attention to disparate impact coheres with equality values because it encourages a more accurate measure of, and reward for, individual ability regardless of protected class status by undermining unexamined yet entrenched preferences.

Even if one resists Mr. Briscoe’s narrative as yet to be proven,9 other illustrations abound that further this understanding of disparate impact’s meaning as consistent with a commitment to individual worth and dignity. One might similarly imagine, without much effort, a white candidate with outstanding leadership skills who nonetheless may never be identified as such because he performs poorly on standardized tests. Indeed, the designer of the New Haven tests conceded that the examinations did not attempt to measure the critical job qualifications of command presence or supervisory ability.10

Disparate impact provisions’ attention to unjustified disparities also substantially enhances social welfare by improving the practices used to fill key positions in public safety and elsewhere. The disparate impact standard, for example, has triggered reconsideration of a wide range of promotion practices and other devices that failed accurately to measure and predict candidates’ job performance. Reconsidering practices that imposed racially disparate impact led to the creation of selection instruments that more accurately identified top performers. As just one example, Title VII’s disparate impact provision spurred public safety agencies’ development of risk assessment centers that more accurately replicate real-world emergency and management scenarios and thus better predict job performance than more traditional forms of promotional testing like written multiple-choice tests.11

Attention to disparate impact similarly led to changes in employers’ physical ability tests that disproportionately excluded women from firefighting and other traditionally male jobs without a demonstrable connection to workforce quality. To be sure, firefighters and other public safety officers must be strong and fit. But tests too often rewarded candidates’ sprinting speed, even though many fire departments forbid sprinting in practice because it is fatiguing and may exacerbate smoke inhalation. Other tests measured only a certain level of isolated upper body strength, even though successful firefighting requires full-body strength, agility, and stamina. For these reasons, courts in a wide range of jurisdictions have struck down public safety agencies’ ostensibly neutral physical ability tests that disproportionately denied jobs to women without any meaningful relationship to the jobs’ actual physical requirements.12

Many of those who object to race- or gender-based classifications find them offensive in large part for fear that attention to race will obscure what they see as more relevant aspects of individual identity, like ability. They thus share a stake in accurately selecting qualified candidates for leadership roles and other important positions, rather than privileging unexamined tradition over ability. A commitment to actual merit, however, is undermined by a zero-sum understanding of equality that prohibits decision makers from reconsidering what may be poor measures of ability when racial or gender disparities trigger such reconsideration.

Acknowledgments

Helen Norton is an Associate Professor at the University of Colorado School of Law.

A version of this article appeared in the October 2010 issue of the William and Mary Law Review: Helen Norton, The Supreme Court’s Post-Racial Turn Towards A Zero-Sum Understanding of Equality, 52 WM. & MARY L. REV. 197 (2010).

Copyright © 2010 William and Mary Law Review.

  1. Sumi Cho, Post-Racialism, 94 IOWA L. REV. 1589, 1595-98 (2009).
  2. See, e.g., Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 702 (2007) (Kennedy, J., concurring in part and dissenting in part); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995) (O’Connor, J., writing for the majority).
  3. 129 S. Ct. 2658 (2009).
  4. See supra note 2.
  5. Washington v. Davis, 426 U.S. 229 (1976) (holding that the Equal Protection Clause addresses only intentionally discriminatory government actions and thus rejecting a constitutional challenge to the District of Columbia’s examination for police officers that had the effect of disproportionately excluding African Americans from such positions).
  6. Ricci, 129 S. Ct. at 2682-83 (Scalia, J., concurring).
  7. See Plaintiff’s Amended Complaint for Damages and Injunctive Relief, Briscoe v. City of New Haven, Civ. No. 3:09-cv-1642 (CSH) (D. Conn. Nov. 2, 2009).
  8. Id. at 5-6.
  9. The federal district court dismissed Mr. Briscoe’s claim without reaching the merits, ruling that the Ricci Court’s award of summary judgment to the plaintiffs necessarily foreclosed any subsequent disparate impact challenge to the contested examinations. Briscoe v. City of New Haven, No. 3:09-cv-1642, 2010 WL 2794212, at *8 (D. Conn. July 12, 2010).
  10. Ricci, 129 S. Ct. at 2706 (2009) (Ginsburg, J., dissenting).
  11. See, e.g., Winfred Arthur Jr. et al., A Meta-Analysis of the Criterion-Related Validity of Assessment Center Dimensions, 56 PERSONNEL PSYCHOL. 125, 145-46 (2003).
  12. See, e.g., Pietras v. Bd. of Fire Comm’rs, 180 F.3d 468, 474-75 (2d Cir. 1999); Harless v. Duck, 619 F.2d 611, 616 (6th Cir. 1980).

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