Sottomayor. Ricci v DeStefano, and the curious difficulty involved in parsing today's news

Obviously--and it could not have happened any other way--the ideological lines have been drawn with President Obama's nomination of of Federal Appeals Court Judge Sonia Sottomayor to the Supreme Court.

First, let me point out personally that nothing in the nomination surprises me: Sottomayor had long been feted as a potential Obama nominee, and her views are in fact predictably Statist [“The Second Amendment applies only to limitations the federal government seeks to impose on this right," which means the States and municipalities can restrict any weapons they so choose for any reason.], but in replacing Associate Justice David Souter I'm not opposed to some affirmative action. If we're going to have another Statist with traditional liberal/progressive views on the Court, then having a female Hispanic with traditional liberal/progressive views as opposed to another old white guy is probably not a horrible development....

In other words, having watched the SCOTUS drift further and further toward cementing State power at the expense of the individual over the past four decades, whether it does so in a socially liberal or socially conservative manner is not that exciting an issue for me.

But what is interesting is the characterizations of Judge Sottomayor's most publicly significant case [at least at this point], a case in which she didn't actually do much of anything except uphold a lower court without stating an opinion. The case, Ricci v DeStefano, is that reverse-discrimination case fire-figher case from Connecticut.

Let's take a look at how it gets parsed, depending on the source.

First, the NYT:

Judge Sotomayor's most high-profile case, Ricci v. DeStefano, concerns white firefighters in New Haven who were denied promotions after an examination yielded no black firefighters eligible for advancement. Joining an unsigned opinion of a three-judge panel of the appeals court, Judge Sotomayor upheld the rejection of a lawsuit by white firefighters, one of them Hispanic, claiming race discrimination and, as part of the full appeals court, she declined to rehear the case. The Supreme Court is currently considering the case, and Justice Anthony M. Kennedy is the likely swing vote. Among the questions in the case is whether the law should treat diversity in the work force differently from diversity in the classroom. Judge Sotomayor dissented in part in an earlier case, Gant v. Wallingford Board of Education, finding that race discrimination had occurred when a school demoted a black child from first grade to kindergarten.

Crap. From that one you can't even tell what the case was really about, can you?

OK, here's the Libertarian Party view:

Sotomayor is best known for the Ricci v. DeStafano case, in which the New Haven, Conn. fire department decided it didn’t like the results of an officers promotion exam in which whites and Hispanic firefighters outperformed black firefighters. The city threw out the results of the exam, denying several firefighters promotions solely because of their race. The firefighters sued the city, claiming racial discrimination under Title VVI of the Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment.

Sotomayor disagreed, ruling the city has a right to discriminate against white and Hispanic public employees to construct a politically correct racial mix in hiring, even if it goes against the results of a racially-neutral competency exam.

The case is now before the Supreme Court. Sotomayor has had her rulings thrown out by the court a troubling four times. In three of those cases, the Court ruled Sotomayor had incorrectly interpreted the law.

This one's interesting, because it misstates several key facts about the case. New Haven's actual argument was not that they threw out the results to deny white firefighters a promotion because of their race, but because of the fear that not to do so would render them vulnerable to a Title VI discrimination suit from African-American firefighters based on the rather bizarre technicality called facially neutral employment practices. In other words, the Libertarian press release fails to specify the complexity of the issue facing the city of New Haven in terms of the conflict between Title VII and reasonable interpretations of the due process clause of the XIV Amendment. Then the press release attacks Sottomayor for ruling the city has a right to disciminate against white and Hispanic public employees to construct a politically correct racial mix in hiring, which is again a distortion of the case. Take just one point: the case had nothing to do with hiring, only promoting.

If you are going to critique Sottomayor on this one, at least get your facts right.

Which is something, from the other ideological end of the spectrum, that Slate should also learn:

Ricci is a hard case with bad facts—a case that could do serious damage to Title VII, one of Congress' landmark civil rights laws. In 2003, the city of New Haven, Conn., decided to base future promotions in its firefighting force—there were seven for captain and eight for lieutenant—primarily on a written test. The city paid an outside consultant to design the test so that it would be job-related. Firefighters studied for months. Of the 41 applicants who took the captain exam, eight were black; of the 77 who took the lieutenant exam, 19 were black. None of the African-American candidates scored high enough to be promoted. For both positions, only two of 29 Hispanics qualified for promotion.

In other situations like this, minority candidates have successfully sued based on the long-recognized legal theory that a test that has a disparate impact—it affects one racial group more than others—must truly be job-related in order to be legal. You can see why New Haven's black firefighters might have done just that. Why promote firefighters based on a written test rather than their performance in the field? Why favor multiple-choice questions over evaluations of leadership and execution? It's like granting a driver's license based solely on the written test, only with much higher stakes.

Faced with these complaints, which translated into both political and potential legal fallout in a city that is nearly 60 percent African-American, New Haven withdrew its test. But that fueled an intense and also understandable frustration on the part of the white firefighters who'd spent time and money on test-prep materials. They'd succeeded by scoring high, only to be told that now their investment counted for nothing. Frank Ricci is a 34-year-old "truckie"—he throws ladders, breaks windows, and cuts holes for New Haven's Truck 4. His uncle and both his brothers are firefighters. He studied fire science at college. He has dozens of videos about firefighting tagged on a Web site he set up to recruit for the department. He is also dyslexic, which means that his high score on the promotion test was especially hard-won. Ricci and 19 other firefighters sued New Haven, alleging reverse discrimination, in light of Title VII and also the 14th Amendment's promise of equal protection under the law. They said that New Haven shouldn't have thrown out the test.

This sounds like a much more balanced, nuanced, and complete rendition of the case (admittedly from a liberal perspective), until you get to that paragraph I placed in bold, which indicates--sadly--that Emily Bazelon of Slate--has apparently not actually read the case.

Why do I say that? Because the written test in question constituted only 60% of each applicant's final score.

Here's the run-down from the Cornell University Law School [which has the benefit of being written well prior to the Sottomayor nomination]:

The written exams were to account for sixty-percent of the ultimate assessment of a candidate's ability to successfully serve as a lieutenant or captain. See Brief for Petitioner, Frank Ricci et al. at 7. Forty-percent of an individual's assessment consisted of an oral exam evaluating a candidate's ability to lead others in emergency situations. See id. When New Haven officials analyzed the written test results, they found that the pass rate for black candidates was approximately half the pass rate of white candidates. See Brief for Respondent at 5.

So while you may question the test, it is clear that Ms. Bazelon set out to write her piece for Slate in utter innocence of the fact that the written test itself was only one component of the promotion process. I will leave it as an exercise for the student to crunch the numbers and find out that in order for the highest African-American candidate to have placed 13th for Lieutenant and 15th for Captain (with the "rule of three" allowing the Board to promote only the highest scoring three candidates), means that these candidates also had to have performed below the norm on the oral interviews as well. Could those interviews have been biased? Quite possibly, but that's somewhat beside the point.

The point, again, is that what you're being told about Ricci v DeStefano is being driven in almost all cases by ideology rather than the facts of the case, and those carefully constructed narratives are being used to position Sottomayor either positively or negatively for public opinion.

[The reality, by the way, is that Ricci should be in danger of being over-turned by SCOTUS for two reasons: (1) there was never any evidence presented to prove that the test was facially racially neutral, because there really is not any such test; and (2) the appropriate time to challenge such a process as inherently discrimatory (i.e. lacking other measures of excellence) was before participating, not after.]

Be careful with the news, folks. Both sides are making it up.