Academic journal article Texas Review of Law & Politics

Will "Equal" Again Mean Equal?: Understanding Ricci V. Destefano

Academic journal article Texas Review of Law & Politics

Will "Equal" Again Mean Equal?: Understanding Ricci V. Destefano

Article excerpt



Ricci thus leaves the Court with a troubling dilemma it must eventually confront: either retreat from its current colorblind approach to equal protection, or rule disparate impact-a doctrine firmly ensconced in history, precedent, and congressional approved-unconstitutional.

"This nation was founded on the affirmative premise that 'all men are created equal.'"2 Without regard to background, education, or lineage, America has stood on the promise of "equality in rights and in obligations"3 and that "the door ought to be equally open to all."4 Nearly one hundred years later, Frederick Douglass offered this simple pledge of absolute equality-not pity, not sympathy-as the solution to years of slavery of African Americans. ' The passage of the Fourteenth Amendment and its explicit mandate that no State shall "deny to any person within its jurisdiction the equal protection of the laws"" was the answer to Douglass's plea and was the fulfillment of the Declaration of Independence's promise.7 Centuries later, the Court's commitment to color-blindness has remained a consistent marker of equal protection jurisprudence.8

It is against this background that Ricci v. DeStefano9 will be remembered as the case with the greatest impact on race jurisprudence in recent history.10 While the Court's adoption of the strong-basis-in-evidence standard as a matter of Title VII statutory construction is noteworthy, ' Ricas identification of the conflict between the Constitution's equal protection mandate and Title VII's disparate-impact provision12 will haunt the Court in future cases.

This Note responds to Justice Scalia's question in Ricci: "Whether, or to what extent, are the disparate-impact provisions of Title VII . . . consistent with the Constitution's guarantee of equal protection?"14 Section II of this Note introduces the events that led to Ricci and the case's journey from the district court to the Supreme Court. Section III explores the Court's opinion in Ricci, beginning with a discussion of the state of the law before Ricci in Section III (a). Section III (b) addresses the facial impact of Ricci, discussing both the plaintiff-firefighters' and the Court's adoption of the strong-basis-in-evidence standard. Section III(c) explores the Court's treatment of the Equal Protection Clause as it addressed petitioner's Title VII claims and establishes a foundation for Section 111(d) 's inquiry into the constitutionality of Tide VII. Utilizing strict scrutiny review, Section III(d) shows that the disparate-impact provision of Title VII is patently unconstitutional and suggests a means of resolution. Section III(e) provides anticipatory rebuttal to several justifications for Title VII's disparate-impact provision. Section IV concludes this Note.


A. The Facts of Ricci v. DeStefano

The City of New Haven's civil service promotion system requires the City to fill vacancies in classified civil-service ranks with the most qualified individuals, as determined by the results of examinations.15 After each examination, the New Haven Civil Service Board certifies the applicants that passed the examination.16 Under the "'rule of three,' the relevant hiring authority must fill each vacancy by choosing one candidate from the top three scorers on the list."17

In November and December 2003, firefighters took qualification examinations for lieutenant and captain.18 The examination results showed "white candidates outperform [ing] minority candidates, prompting the City to open public debate about the examinations.19 "City officials expressed concern that the tests had discriminated against minority candidates," while Industrial/Organizational Solutions' counsel "defended the examinations' validity" and attributed "any numerical disparity between white and minority candidates . . . to . . . external factors."20

The City eventually threw out the examination results. …

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