New Haven Independent

That’s what one Pulitzer Prize-winning court-watcher, Linda Greenhouse, concludes from a sentence on Page 25 of the majority opinion in Ricci v. DeStefano, the case in which a 5-4 majority ruled Monday that New Haven can’t ignore the results of a fire department promotional exam just because no African-Americans scored high enough. (Read about that here.)

At the heart of the case was Title VII of the Civil Rights Act of 1964. New Haven had argued that it needed to set aside the results of the test because it would otherwise face a lawsuit from black firefighters under Title VII — based on the fact that it had a “disparate impact.” Justice Anthony Kennedy, writing for the majority, said that that’s not good enough: An employer can’t throw out a test’s results just because of who did or didn’t pass. It has to demonstrate a “strong basis in evidence” that the test itself was flawed.

That constitutes a big change. Until now, U.S. courts have interpreted Title VII to mean that the results alone were enough to reconsider the test.

But Kennedy’s opinion did not scuttle Title VII itself, or oppose the idea that employers could make affirmative efforts to avoid racial discrimination before the test’s results.

Justice Antonin Scalia wanted to go further in the Ricci ruling.

He wrote, in a concurring opinion, that the majority opinion merely “postpones the evil day on which the Court will have to confront the question: whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?”

Scalia suggested that the two notions — avoiding a racially “disparate” result on a test, and protecting people’s rights — are at odds.

Kennedy’s majority opinion stated that this case didn’t need to address that question.

Yale law professor Drew Days, a former solicitor general under President Clinton, said from his reading of the various opinions issued Monday, that the rest of the Supreme Court, Scalia’s conservative faction, isn’t ready to follow along Scalia’s path. (Liberal Justice Ruth Bader Ginsburg argued in a dissenting opinion that no such inherent contradition exists between the two notions.)

Linda Greenhouse, who’s also on the Yale Law School faculty, took a different view of the political dynamics revealed Monday.

Greenhouse, who won a Pulitzer Prize during a 30-year stint covering the Supreme Court for The New York Times, pointed to Page 25 of Kennedy’s ruling.

“We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case,” Kennedy wrote.

To Greenhouse, that line is a “warning flare” that a broader revisiting of Title VII may be forthcoming.

She offered a theory for how that line ended up in the opinion: Scalia wanted the majority opinion to tackle the broader issue. When that wasn’t in the cards, he agreed to sign the majority opinion only if it at least “teed up the constitutional issue.”

New Haven Mayor John DeStefano Monday took a similar view to Greenhouse’s.

At a jam-packed City Hall press conference, DeStefano portrayed the Ricci as step one is a larger turning-back of civil rights law. More than once DeStefano, too, mentioned Scalia’s opinion and the justice’s “clear intention” to move beyond Title VII in the case. He called the Ricci decision the latest example of a “continued erosion of civil rights law by the Supreme Court.”

DeStefano said he disagrees with the court’s direction. America still needs “robust civil rights laws” to “live up to a just and civil society,” the mayor said.

Past stories on fire department promotions and the Ricci case:
• Supreme Court Overturns City On Ricci
• Minority Firefighters Vow Post-Ricci Unity
• Ricci Ruling Won’t End Quest
• Ricci, Sotomayor Brand DeStefano
• Firefighter Case Reveals Surprise Obama Stand
• Justices Zero In On Race-Based Distinctions
• Rights Groups Back Black Firefighters
• The Supreme Stakes: Title VII’s Future
• Dobbs v. Bolden
• Latino Group Backs White Firefighters
• Black Firefighters: Ricci Case Poses Grave Threat
• NAACP Backs City In Firefighter Case
• Paging Justice Kennedy
• Fire Inspectors Promoted
• Fire Inspector List Approved
• U.S. Supreme Court To Hear Firefighters’ Case
• Fire Promotions Examined in Supreme Court