The Project of the E.L. Wiegand Journal Practice Groups of the E Federalist Society Practice Groups N N B OTA ENE Incorporating Gun Rights: A Second Round in the Chamber for the Second Amendment G by Kenneth A. Klukowski Getting Beyond Guns: Context for the Coming Debate over Privileges or Immunities A by Clark M. Neily III & Robert J. McNamara Miranda with an English Accent by Lauren J. Altdoerffer G A Cold Breeze in California: ProtectMarriage Reveals the Chilling Effect of Campaign Finance Disclosure on Ballot Measure Issue Advocacy—Comment and Rebuttal E Stephen R. Klein & Steve Simpson Nashville in Africa: Intellectual Property Law, Creative Industries, and Development by Mark Schultz & Alec van Gelder The Fourth Amendment Goes to War by Robert J. Delahunty B R OOK EVIEWS Federalism: Political Identity and Tragic Compromise by Malcolm M. Feeley & Edward Rubin Regulation by Litigation by Andrew P. Morriss, Bruce Yandle & Andrew Dorchak Volume 10, Issue 3 November 2009 4 Engage: Volume 10, Issue 3 Th e Federalist Society . Letter from the Editor.. For Law and Public Policy Studies Volume 10, Issue 3 Directors/Offi cers Steven G. Calabresi, Chairman Hon. David M. McIntosh, Vice Chairman Gary Lawson, Secretary Engage: The Journal of the Brent O. Hatch, Treasurer Eugene B. Meyer, President Federalist Society Practice Groups . . . T. Kenneth Cribb, Counselor Board of Visitors provides original scholarship on current, Hon. Robert H. Bork, Co-Chairman Hon. Orrin G. Hatch, Co-Chairman important legal and policy issues. It is a Lillian BeVier Hon. C. Boyden Gray Hon. Lois Haight Herrington collaborative eff ort, involving the hard Hon. Donald Paul Hodel Hon. Frank Keating Harvey C. Koch work and voluntary dedication of each Robert A. Levy Hon. Edwin Meese, III of the organization’s fi fteen Practice Hon. Gale Norton Hon. Th eodore B. Olson Andrew J. Redleaf Groups. Through its publication, Hon. Wm. Bradford Reynolds Nicholas Quinn Rosenkranz these Groups aim to contribute to the Staff President Eugene B. Meyer marketplace of ideas in a way that is Executive Vice President Leonard A. Leo collegial, measured, and insightful—to Senior Vice President & Faculty Division Director Lee Liberman Otis spark a higher level of debate and Erin Sheley, Deputy Faculty Director Barrett Young, Assistant Faculty Director discussion than we often see in today’s Lawyers Division Dean Reuter, Practice Groups Director Lisa Budzynski Ezell, Lawyers Chapters Director legal community. Jonathan Bunch, State Courts Project Director Sarah E. Field, State Courts Project Deputy Director Juli Nix, Deputy Director Likewise, we hope that members David C.F. Ray, Associate Director Hannah DeGuzman, Assistant Director Catherine Zanetti, Assistant Director fi nd the work in the pages to be well- Allison Aldrich, Assistant Director Student Division crafted and informative. Articles are Peter Redpath, Director Daniel Suhr, Deputy Director Kate Beer, Assistant Director typically chosen by our Practice Group Caitlin Carroll, Assistant Director Pro Bono Center Director chairmen, but we strongly encourage Peggy Little International Law and Sovereignty Project members and general readers to send James P. Kelly, III, Director Alyssa Luttjohann, Deputy Director Finance Director us their commentary and suggestions Douglas C. Ubben Development at [email protected]. Patty Price, Director Emily Kuebler, Associate Director Th omas Kraemer, Assistant Director Information Technology Director C. David Smith Membership Director Bridget Brophy Offi ce Management Rhonda Moaland, Director Matt Nix, Assistant Director Engage Volume 10, Issue 3 November 2009 Civil Rights Two Civil Rights Decisions Close Out Supreme Court’s 2008 Term by Christian J. Ward & Edward C. Dawson ............................................................................4 Incorporating Gun Rights: A Second Round in the Chamber for the Second Amendment by Kenneth A. Klukowski ......................................................................................................10 Getting Beyond Guns: Context for the Coming Debate over Privileges or Immunities by Clark M. Neily III & Robert J. McNamara .......................................................................18 Corporations, Securities & Antitrust Looks Can Be Deceiving: Holdout Litigation Under the Foreign Sovereign Immunities Act by Saloni Kantaria ...............................................................................................................26 Judicial Review of Mutual Fund Advisory Fees: Reliance on Markets or Statutory Language? by Joanne T. Medero .............................................................................................................32 Criminal Law & Procedure Miranda with an English Accent by Lauren J. Altdoerff er ........................................................................................................35 Whither the Rule of Lenity by Dan Levin & Nathaniel Stewart ......................................................................................42 Environmental Law & Property Rights Ripening Federal Property Rights Claims by J. David Breemer .............................................................................................................50 Th e Supreme Court and the Judicial Takings Doctrine by Steven Geoff rey Gieseler & Nicholas M. Gieseler ................................................................54 Financial Services & E-Commerce Th e Stop Trading on Congressional Knowledge Act by Stephen M. Bainbridge ....................................................................................................59 Th e Financial Reform Plan: What It Means for Insurance Companies by Laura Kotelman ..............................................................................................................66 Free Speech & Election Law A Cold Breeze in California: ProtectMarriage Reveals the Chilling Eff ect of Campaign Finance Disclosure on Ballot Measure Issue Advocacy by Stephen R. Klein ..............................................................................................................68 Attack Ballot Issue Disclosure Root and Branch: Comment on A Cold Breeze in California: ProtectMarriage Reveals the Chilling Eff ect of Campaign Finance Disclosure on Ballot Measure Issue Advocacy by Steve Simpson ..................................................................................................................74 Rebuttal to Steve Simpson’s Response to A Cold Breeze in California: ProtectMarriage Reveals the Chilling Eff ect of Campaign Finance Disclosure on Ballot Measure Issue Advocacy by Stephen R. Klein ..............................................................................................................78 Politics for Professionals Only: Ballot Measures, Campaign Finance “Reform,” and the First Amendment by Dick M. Carpenter, Ph.D., Jeff rey Milyo, Ph.D. & John K. Ross .........................................80 Intellectual Property Qui-tam-osaurus, the Statutory Dinosaur: Evolution or Extinction for the Qui Tam Patent False Marking Statute? by Trevor K. Copeland & Laura A. Lydigsen ..........................................................................86 Nashville in Africa: Intellectual Property Law, Creative Industries, and Development by Mark Schultz & Alec van Gelder .....................................................................................94 International & National Security Law Th e Fourth Amendment Goes to War by Robert J. Delahunty .................................................107 Litigation Constitutional Limits on Punitive Damages: An Evaluation of the Role of Economic Th eory in Prescribing Constitutional Constraints on Punitive Damage Awards by Dorothy Henderson Shapiro ...........................................................................................115 A Wave of ADA Public Accommodation Lawsuits Moves from Florida and California to the Rest of the United States by Gregory P. McGuire .......................................................................................................123 Professional Responsibility & Legal Education Government Ethics in President Obama’s First Year: A Preliminary Assessment by Richard W. Painter.........................................................................................................128 Religious Liberties Why the Supreme Court Has Fashioned Rules of Standing Unique to the Establishment Clause by Carl H. Esbeck ..............................................................................................................134 Smith, Stormans, and the Future of Free Exercise: Applying the Free Exercise Clause to Targeted Laws of General Applicability by Mark L. Rienzi ..............................................................................................................143 Book Reviews Federalism: Political Identity and Tragic Compromise by Malcolm M. Feeley & Edward Rubin Reviewed by George D. Brown ..................................................................................................149 Regulation by Litigation by Andrew P. Morriss, Bruce Yandle & Andrew Dorchak Reviewed by Margaret A. Little .................................................................................................151 Civil Rights Two Civil Rights Decisions Close Out Supreme Court’s  Term By Christian J. Ward & Edward C. Dawson* T he Supreme Court’s 2008 Term concluded with and participation by African Americans. Th e Justice Department opinions in two closely followed civil rights cases, might have received an order from a court declaring, say, a Northwest Austin Municipal Utility District No. 1 v. literacy test for voter registration unconstitutional only to have Holder (Northwest Austin MUD), and Ricci v. DeStefano (Ricci). a recalcitrant state change its registration requirements enough Both cases were anticipated as presenting possibilities for to evade the court order while retaining their discriminatory sweeping constitutional holdings—in Northwest Austin MUD, purpose and eff ect. Th at type of gamesmanship—which has the invalidation of the Voting Rights Act, and in Ricci, the been compared to a game of Whac-A-Mole3—is what prompted application of Equal Protection analysis to workplace claims inclusion of Section 5 in the 1965 Act. As the Supreme Court of “reverse” discrimination under Title VII. In fact, neither later explained, “Section 5 was a response to a common practice case produced a constitutional seachange, but instead both in some jurisdictions of staying one step ahead of the federal were decided on grounds of statutory interpretation, consistent courts by passing new discriminatory voting laws as soon as the perhaps with Chief Justice Roberts’s articulated preference for old ones had been struck down.”4 a “minimalist” jurisprudential approach. Nonetheless, both Th e Section 5 response was an unprecedented, and still cases achieved signifi cant, incremental change—in recognizing unparalleled, feature in American law—a literal federal veto the Nation’s signifi cant advances in guaranteeing equal voting power over certain laws and policy choices made by state rights to all, and in advancing the vision of antidiscrimination and local governmental entities. Basically, a state or political employment law as a vehicle for ensuring equal, race-neutral subdivision that is covered by Section 5 must get federal employment opportunities. Th is article summarizes and analyzes preapproval—known as preclearance—for any change aff ecting each of the two decisions, and off ers some thoughts about the voting, either by seeking a declaratory judgment from the U.S. respective implications of each for future developments in District Court for the District of Columbia or by submitting voting-rights and employment-discrimination law. the change for vetting by the Attorney General.5 Th e district court or the Justice Department must reject the change if it fi nds I. Northwest Austin Municipal Utility District No. that the change has the purpose or eff ect of abridging the right  v. Holder: A Time to Move Forward to vote.6 It almost goes without saying that the administrative In Northwest Austin MUD,1 the U.S. Supreme Court route of submitting changes to the Justice Department is used signaled that it is time to reevaluate four-decade-old far more often than the more cumbersome option of litigating presumptions underlying enforcement of the Voting Rights in the district court. Because the Supreme Court has made clear Act, unanimously requiring the Department of Justice and the that laws subject to Section 5 preclearance “are not now and will U.S. District Court for the District of Columbia to signifi cantly not be eff ective as laws until and unless cleared pursuant to § broaden the availability of “bailout”—i.e., exemption from 5,”7 the Justice Department’s role essentially places the federal Section 5 of the Act–and expressing skepticism regarding Executive Branch in the position of a sort of super-governor, whether Section 5 remains a constitutional exercise of Congress’s with the power to overrule a state’s legislature and its governor. enforcement power. Section 5 was originally set to expire in fi ve years, viewed Congress enacted the landmark Voting Rights Act of 1965 as a temporary, emergency measure, but has been extended “to banish the blight of racial discrimination in voting, which repeatedly, most recently in 2006 until 2031.8 ha[d] infected the electoral process in parts of our country for States and certain localities (counties, parishes, and other nearly a century.”2 Previous statutory attempts to enforce the entities if they register voters) were subjected to Section 5 guarantees of voting rights enshrined in the Constitution had coverage by a formula that takes into account the existence of met with little success in overcoming deep-rooted intransigence a “test or device” and voter registration and turnout rates for in certain parts of the country, notably–and unsurprisingly–in specifi ed presidential election years.9 Th e original 1965 formula the Civil Rights Era South. was reverse-engineered to capture well-known off enders against At a time when a Southern governor might stand in a the voting rights of African Americans, including the states of schoolhouse doorway attempting to stave off court-ordered Alabama, Georgia, Louisiana, Mississippi, South Carolina, and integration, case-by-case litigation of voting rights abuses proved Virginia. It relied on registration and turnout rates from the largely ineff ective at substantially increasing voter registration 1964 presidential election.10 In 1975, Section 5 was extended ..................................................................... for the second time and the coverage formula amended to capture jurisdictions believed to have discriminated against * Christian J. Ward and Edward C. Dawson are partners in the Austin, language minorities, bringing into the fold the states of Alaska, Texas offi ce of Yetter, Warden & Coleman, L.L.P. Ward represented the Arizona, and Texas and counties in states including California plaintiff utility district in Northwest Austin Municipal Utility District No. and New York.11 Th e 1975 formula uses data through the 1972 1, and is president of the Austin Lawyers Chapter of the Federalist Society. Dawson represented the petitioning fi refi ghters in Ricci v. DeStefano. Both presidential election, and subsequent reenactments of Section cases were argued by their partner, Gregory S. Coleman. 5 have involved no further changes to the coverage formula, 4 Engage: Volume 10, Issue 3 meaning that all jurisdictions covered today are covered based less than a tenth of a percent of proposed voting changes now on registration and election data from no later than 1972.12 draw objections from the Justice Department demonstrates Th e Supreme Court also made clear early on that the VRA that Section 5 is an outmoded federal intrusion into local takes a very broad view of what constitutes a change aff ecting government. voting, meaning Section 5’s preclearance requirement extends Th e district court rejected both of the district’s arguments, to tiny alterations or those that have even the remotest eff ect but the Supreme Court reversed, holding that the district on voting,13 which might include personnel policies adopted correctly interpreted the bailout statute to make the district by a school board that did not conduct elections,14 annexation eligible to pursue a bailout.20 Th e Court agreed with the district’s of unpopulated land, or moving a utility district’s polling place reasoning that the prior holdings in Sheffi eld and Dougherty from a residential garage to a public school a short distance away. County compelled the conclusion that “political subdivision” Additionally, and importantly to the outcome of Northwest must be given its ordinary meaning, which obviously includes Austin MUD, the Court, in the 1978 case United States v. Board entities like utility districts.21 of Commissioners of Sheffi eld,15 interpreted Section 5 to require Tellingly, the entire Court signed onto language that any political subunit within the territory of a covered state suggesting that they fi nd the 2006 extension of Section 5 at submit its changes for preclearance, notwithstanding a more least constitutionally suspect. Th e majority noted, for example, restrictive defi nition of “political subdivision” elsewhere in the that “Section 5 goes beyond the prohibition of the Fifteenth Act that appeared to limit the term’s application to counties, Amendment by suspending all changes to state election parishes, and other entities only if they registered voters.16 law—however innocuous—until they have been precleared Th e Supreme Court upheld the constitutionality of Section by federal authorities in Washington, D.C.,” that “the Act also 5 in 1966 but cautioned even then that the 1965 enactment diff erentiates between the States, despite our historic tradition had been supported specifi cally by evidence of “exceptional that all the States enjoy ‘equal sovereignty,’” and that “[t]he conditions” that could “justify legislative measures not otherwise statute’s coverage formula is based on data that is now more appropriate.”17 As early as the 1982 extension of Section 5, than 35 years old, and there is considerable evidence that it Congress had begun to recognize that the original emergency fails to account for current political conditions.”22 Chief Justice may have passed and Section 5 outlived its usefulness. Its Roberts wrote the majority opinion, with which seven other extension included a newly expansive “bailout” provision for justices (six of whom remain on the Court today) concurred. “political subdivisions,” intended to allow localities that could Justice Th omas concurred in the judgment in part and dissented demonstrate a decade of compliance with the Constitution and in part only to express his view that the Court should have the VRA an exemption from Section 5.18 gone further, reaching the constitutional challenge and striking Northwest Austin Utility District Number One, the utility Section 5 down.23 district for an Austin, Texas neighborhood of about 3,500 Th e Court has indicated that it wants to see bailout residents known as Canyon Creek, sought to take advantage become a frequently-used, eff ective mechanism for reducing of the bailout provision. In 2004, members of the district’s the scope of Section 5 coverage. Th e Court as a whole is at board learned that they had to get federal preclearance before least skeptical whether Section 5 remains a constitutional moving the district’s polling place from a private garage to the remedy at all. Th rough the expansion of bailout and, perhaps nearby public elementary school where the other local elections soon, the eventual ending of Section 5, the nation is ready to were held on the same day. Th ey regarded this as a ridiculous move forward with voting rights enforcement that is no longer federal intrusion into local aff airs, especially given that Canyon based on the presumption that race relations remain mired in Creek did not exist until the late 1980s, long after the turbulent the 1960s. civil rights struggles of the 1960s, and that it has absolutely no II. Ricci v. DeStefano–Walking the Line Between history of voting discrimination. Th e district fi led a bailout suit, Discrimination and “Reverse” Discrimination in as required, in the D.C. federal district court. Recognizing, Employment Testing however, that the Justice Department and others had long interpreted the bailout provision restrictively—specifi cally, In Ricci v. DeStefano,24 decided June 29, 2009, the applying the statutory defi nition of “political subdivision” Supreme Court clarifi ed the law governing the interaction to conclude that governmental units smaller than counties of disparate-impact and disparate-treatment discrimination were ineligible to seek bailout—the district’s suit included claims under Title VII. Th e decision will have wide-ranging an alternative claim that the 2006 reenactment of Section 5 implications for employment practices and litigation under Title exceeded Congress’s constitutional authority. VII in both the public and private sectors and may also signal Th e district argued, based on the statutory language a deeper tension between the commands of the Constitution and the Supreme Court’s holding in Sheffi eld, that it must and the dictates of disparate-impact law under Title VII. In be regarded as a “political subdivision” eligible to bail out. Its addition, the case is notable for the prominent role it played alternative argument was that, under cases including South in the confi rmation hearings of the newest Associate Justice, Carolina v. Katzenbach and City of Boerne v. Flores,19 Congress Sonia Sotomayor. could not reenact Section 5 as a prophylactic measure in 2006 Title VII prohibits intentional acts of discrimination because, so long after the original emergency ended, it was based on race, color, religion, sex, and national origin.25 It also far too broad to be regarded as simply enforcing guarantees prohibits policies that do not intentionally discriminate but in the Fourteenth and Fifteenth Amendments. Th e fact that have a disproportionate adverse eff ect on minorities.26 However, November 2009 5 disparate-impact discrimination only violates Title VII when of 2003. Seventy-seven candidates completed the lieutenant an employer is unable to show that a challenged practice is job- examination—forty-three whites, nineteen blacks, and fi fteen related, or the employee-plaintiff can show that there are less Hispanics. Of those, thirty-four candidates scored high enough discriminatory alternative practices that equally serve the same to qualify for the eligibility list—twenty-fi ve whites, six blacks, legitimate business need. In the public-employment context, and three Hispanics. Based on these results and the “rule of moreover, the constitutional guarantee of equal protection three,” only the top ten scorers could be considered for the requires that any race-based action by a government actor must eight lieutenant positions open at that time. All ten were white. be subjected to strict scrutiny and invalidated in all but the Forty-one candidates completed the captain examination— rarest of circumstances.27 Th e thorny question the Court faced twenty-fi ve whites, eight blacks, and eight Hispanics. Of those, in Ricci was how to resolve these competing commands when twenty-two candidates passed—sixteen whites, three blacks, a governmental employer administers a promotion test that and three Hispanics. Seven of the top scorers were white and produces racially disparate results and has to decide whether to two were Hispanic. Th ere were seven open captain positions, use or reject the test based only on the skewed racial distribution which, together with the rule of three, meant that the top of the scorers. nine scorers could be considered for the immediately-available Ricci arose out of a dispute over fi refi ghter promotions in promotions. In addition, further vacancies at both the captain New Haven, Connecticut. Th e New Haven Fire Department and lieutenant level were anticipated to arise during the two uses objective oral and written examinations to decide who years the eligibility list would remain in eff ect. should be considered to fi ll vacant lieutenant and captain After receiving these results, city offi cials became worried positions, which are meant to determine the most qualifi ed that the examinations unintentionally discriminated against individuals for command positions. Th is examination system minorities. Some fi refi ghters were upset by the results and for promotions within the classifi ed civil-service industries is threatened to sue the city if it promoted from eligibility lists governed by the city’s charter, in addition to federal and state based on the tests, claiming that because the test results had racial law. Th e promotion process also has separate requirements disparities, the tests violated the disparate-impact provision of through a contract between the city and its fi refi ghter union, Title VII. In addition, city offi cials came under political pressure which specifies that a promotion candidate’s composite from local activists not to certify the results. Th ere was evidence examination score must be determined through an examination in the record that, once the racial distributions of the test scores process that is sixty percent written and forty percent oral. were known, city offi cials orchestrated a campaign designed, for Normally, the city administers the test, and then, once it receives a mixture of political and racial reasons, to result in the rejection the results, the New Haven Civil Service Board (CSB) is asked of the test results. Th e CSB then held several hearings at which to certify the ranked list of applicants who passed by achieving it heard testimony from persons interested in the certifi cation a composite score of seventy or higher. After the list is certifi ed, issue. During these hearings, some witnesses raised questions the city charter requires that a “rule of three” is used by the about the tests that had been given, but at no point were the hiring authority to fi ll the vacancy. Th is rule allows the hiring tests shown to have been impermissibly biased or unrelated to authority (here, the NHFD) to promote any one candidate the jobs for which the applicants were applying. Th e CSB also from among the top three scorers on the list. heard testimony from an expert employed by a competitor New Haven had previously experienced racial disparities of IOS who speculated that it might be possible to design an in the number of eligible candidates for promotion selected equally job-related test that would have less racial numerical through its tests. Th erefore, before administering its 2003 tests, disparity; however, he did not identify any actual alternatives it undertook extensive eff orts to ensure that the tests were fair and moreover advised the CSB that the best thing for it to do and free of any non-job-related tendency to produce racially would be to certify the test results. disparate results. After reviewing various consultants, the Ultimately, the CSB deadlocked by tie vote, which meant City hired Industrial/Organizational Solutions, Inc. (IOS) to that the eligibility list was not certifi ed, and no promotions create and administer the promotional examinations at a cost were made. A group of white and Hispanic firefighters of $100,000. To begin the test-design process, IOS performed who believed they had done well on the tests and had been job analyses for the captain and lieutenant positions. IOS also wrongly denied their chance at promotion sued the city and went through an extensive interview process with incumbent its offi cials, claiming the city had intentionally discriminated captains and lieutenants and their supervisors in order to against them because of their race in violation of Title VII and determine the knowledge, skills, and abilities that are essential the U.S. Constitution’s Equal Protection Clause. Discovery for the positions. Th roughout the research for the test design, later confi rmed that most of the plaintiff s indeed were on the IOS intentionally oversampled minority fi refi ghters to prevent rejected promotion-eligibility lists. Th e plaintiff fi refi ghters the tests from favoring white applicants. IOS compiled a list of argued that the defendants’ decision to throw out the test reading materials approved by the fi re chief and assistant fi re results because of the racial distribution of the successful chief and disseminated that list to the candidates, including candidates was intentional, impermissible racial discrimination the specifi c chapters that were used in the development of the that was not and could not be justifi ed by the defendants’ examination. In addition, IOS took painstaking measures to claimed concerns that certifying the test results would result in make sure that the scoring of the oral portion did not favor impermissible unintentional disparate-impact discrimination.28 any race. Th e defendants countered that the decision not to certify the Th e examinations were given in November and December test results was justifi ed because they had a good-faith belief 6 Engage: Volume 10, Issue 3 that certifying the test results could have exposed the City to allow candidates to sacrifi ce mightily to perform well on a test litigation and potential liability under Title VII’s disparate- and then throw out the test merely because of the raw racial impact provisions. Th e defendants did not argue that the test as numbers produced.30 given was actually fl awed or that they had concrete evidence of Th e respondents continued to maintain that the Equal superior alternatives. Nor did they argue that their actions had Protection Clause was not implicated at all because the been justifi ed on the basis of achieving diversity—they limited cancellation of the results had been race-neutral, and also themselves to the Title-VII-compliance rationale. argued that even if the cancellation were race-based, Title VII After discovery and briefi ng, the district court granted compliance was necessarily a compelling state interest that summary judgment to the defendants. On the equal protection could justify race-based action. On the statutory question, point, the district court reasoned that there had been no racial the respondents changed tack, abandoning their position that classifi cation at all because the test results were thrown out for a mere good-faith fear of possible disparate-impact liability all test takers, without regard to race. On the Title VII issue, was suffi cient to justify scuttling the promotions and arguing the district court concluded that the defendants were immune instead that the evidentiary record objectively demonstrated from liability as a matter of law because they had a subjective that the tests were fl awed and that there were better, available good-faith belief that certifying the test results could result in alternatives. Th is was a diffi cult position to maintain, however, exposure to disparate-impact litigation or liability. Th e Second since the city had expressly conceded in the lower courts that it Circuit affi rmed in a per curiam, one-paragraph opinion that did not have an objective case either that the tests were fl awed merely adopted the district court’s opinion. Judge Sotomayor or that there were known, demonstrably better alternatives, and was one member of the Second Circuit panel. Subsequently, moreover because on summary judgment the petitioners were the appellate court sua sponte considered whether to rehear the entitled to have the evidentiary record read in the light most to case en banc, and voted 7-6 against rehearing over a strenuous their favor. Underpinning all of the city’s arguments, and also and compelling dissent by Judge Jose Cabranes. prominently fi guring in the briefs of several of its amici, was the After the fi refi ghters petitioned for review, the Supreme persuasive theme that adopting the petitioners’ position would Court granted certiorari. Th e central questions before the Court put employers into an impossible position where, having given a were whether and when under Title VII an employer may test that produced racially disparate results, they would be sued engage in intentional racially disparate treatment in order to and exposed to liability no matter what action they took. avoid or forestall potential, unintentional racial disparities, and Th e Supreme Court reversed the Second Circuit in a 5-4 how in the public-employer context this analysis is informed by opinion written by Justice Kennedy, holding that New Haven the constitutional guarantee of equal protection. had violated Title VII by discarding the test results and denying Th e petitioning fi refi ghters argued that the defendants’ lieutenant and captain promotions to the highest-scoring refusal to certify the test results was a race-based action subject candidates based on the test results’ racial distributions. Th e to strict scrutiny under the Equal Protection Clause, and that it majority opinion adopted the petitioners’ proposed “strong basis could not survive that scrutiny because it was neither justifi ed in evidence” standard to resolve the confl ict between Title VII’s by any compelling state interest nor narrowly tailored to achieve provisions. Th at standard, according to the majority, “limits... any such interest. Th ey noted, in particular, the absurdity of discretion to cases in which there is a strong basis in evidence the district court’s conclusion that refusing to certify test results of disparate-impact liability, but it is not so restrictive that it based on the racial distribution of the successful candidates allows employers to act only when there is a provable, actual was “race-neutral” because the offi cials had canceled all the violation.”31 Th e majority reasoned that this standard best candidates’ scores. On the statutory question, the petitioners reconciled the various provisions of Title VII with one another, maintained as their lead position that it is never permissible as well as with the background concerns of constitutional equal to engage in race-based disparate treatment in order to avoid protection. Th e Court did not, however, reach the constitutional a potential disparate-impact violation, because, for public question, fi nding the statutory ground suffi cient to resolve the employers, such disparate treatment violates the Constitution. case. As their fallback position, petitioners argued that if it is ever In light of this statutory standard, the Court held that permissible for a public employer to engage in disparate the respondents’ actions had, in fact, violated Title VII because treatment in order to avoid disparate impact, it can only be the record conclusively failed to demonstrate a strong basis in when the employer has a “strong basis in evidence” to believe evidence to believe that certifying the test results would have that a disparate-impact violation will otherwise result. Th e led to a disparate-impact violation. Th e city could have been petitioners’ suggested “strong basis in evidence” standard was liable for a disparate-impact violation only if the tests were not drawn from the Court’s equal protection cases, such as Richmond job-related and consistent with business necessity, or if plaintiff s v. J.A. Croson Co.,29 which have held that a governmental actor had shown an equally valid, less discriminatory alternative. wishing to take race-based action in order to remedy past Here, however, the record showed that the city had hired an racial wrongs must have a strong basis in evidence to support expert employment test consultant, IOS, which took extensive its belief that remedial action is required. Underpinning the steps to develop and administer race-neutral examinations. petitioners’ arguments, and that of many of their amici, was Vincent Lewis, a witness at the CSB hearings who examined the compelling theme that it is an insult to individual dignity the tests and had fi refi ghting experience (and who was himself and the fundamental principle of equality for an employer to African-American), testifi ed that the questions were relevant November 2009 7 for both exams. Even the expert witness from IOS’s competitor even if there is a racial disparity in the test results or business recommended that the CSB certify the examination results. policies. Th e employers’ lower liability risk acts as a security for Moreover, there was no record evidence of an equally valid and the applicants who take a hiring or promotional examination. less-discriminatory testing alternative; the vague statements in Applicants will not have to fear that the employers will discard the CSB hearings about possible alternatives were insuffi cient, the tests, studying for which requires considerable fi nancial and and proposed alternatives suggested by the respondents (for personal expenses, whenever the results fail to satisfy a racial the fi rst time) in their Supreme Court briefi ng would have quota or provide the desired diverse outcome. themselves violated Title VII and were thus not equally valid. Th e ruling will also strongly encourage employers to take Justice Alito supplemented the majority opinion with a the necessary steps to ensure its examinations for hiring or concurrence, in which he walked through the record evidence promoting decisions are racially neutral before administering to tell the story of how race and politics impermissibly them. Th e Court specifi cally stated that “Title VII does not infl uenced and determined the respondents’ decision not to prohibit an employer from considering, before administering certify the eligibility list, and rebutted the dissent’s selective a test or practice, how to design that test or practice in order presentation of the evidentiary record.32 Justice Scalia wrote a to provide a fair opportunity for all individuals, regardless of short concurrence “to observe that [the Court’s] resolution of their race.”35 Th is preparation and thoughtfulness before the this dispute merely postpones the evil day on which the Court examination is administered could eventually become the will have to confront the question: Whether, or to what extent, employer’s defense in a disparate-impact suit. Indeed, the are the disparate-impact provisions of Title VII of the Civil extensive precautions taken by the City of New Haven, the Rights Act of 1964 consistent with the Constitution’s guarantee NHFD, and IOS in the test-making process were weighed of equal protection?”33 Th e dissenters, in an opinion written by heavily in the Court’s decision. Justice Ginsburg, criticized the Court for “leaving out important Additionally, certain practices that are currently prevalent parts of the story,” such as the history of discrimination in in employment may come into serious question after Ricci. fi refi ghting.34 Th e dissent also argued that the purported confl ict While employers may face less risk of liability for disparate between disparate-impact and disparate-treatment liability impact, many affirmative action practices that have been was illusory and criticized the majority for not remanding the accepted to increase diversity will face a higher risk of disparate- case to the lower courts for application of the strong-basis-in- treatment liability. One such practice, identifi ed by Roger evidence standard. Clegg, is colleges’ rejection of fi nalist pools for hiring decisions In the short term, the Ricci decision became notable for the when the pool lacks the racial diversity that the employers were attention it received during the confi rmation hearings of Judge seeking.36 Sotomayor. Several Senators asked Judge Sotomayor pointed A contrary consequence of Ricci may be that employers questions about the Second Circuit’s decision in the case, as who simply wish to achieve raw racial balance in their well as the panel’s handling of the case in an unpublished, employment and promotion numbers, whether to avoid being per curiam, one-paragraph opinion. Moreover, two of the sued or to promote diversity, will have a signifi cant incentive to Ricci petitioners, Frank Ricci and Ben Vargas, testifi ed in the avoid giving objective examinations altogether. Once a test is confi rmation hearings held by the Senate Judiciary Committee. developed and given, under Ricci, an employer will need to have It will be interesting to see whether this augurs a trend towards a very solid evidentiary record that the test is discriminatory litigants who had a case before a Supreme Court nominee being before it can decide to throw it out. “But once that process called to testify during that nominee’s confi rmation hearings. In has been established and employers have made clear their any event, however, Ricci’s and Vargas’s testimony was largely selection criteria, they may not then invalidate the test results, uncontroversial, and Justice Sotomayor was confi rmed by a thus upsetting an employee’s legitimate expectation not to be comfortable margin. judged on the basis of race.”37 In the longer term, and more importantly, Ricci will have Finally, and more broadly, the Court’s decision in signifi cant eff ects on employment-discrimination law, and it also Ricci endorses the principle that intentional employment leaves open important statutory and constitutional questions to discrimination is a greater injustice than unintentional racial potentially be resolved in some future case. Importantly, because employment inequality, and that the law must incline towards the decision is grounded entirely in statutory construction, its preventing the former instead of the latter. Th is principle is eff ect extends to both public and private employers. In terms certainly consistent with the Court’s pronouncement in equal of employment practices and litigation, employers will have a protection cases such as Croson, Adarand Constructors, Inc. v. lower liability risk when using appropriate pre-employment and Pena,38 and Parents Involved In Community Schools v. Seattle promotional examinations. Raw racial-disparity statistics will Sch. Dist. No.1,39 but Ricci takes a step forward in carrying this not be suffi cient to allow employers to act to avoid disparate principle into the context of statutory, employment law. impact, and the Court’s opinion at least implies that they Beyond these implications, Ricci raises several intriguing, similarly will not be suffi cient to prove disparate impact in unanswered questions. One is whether, and when, the Court any lawsuit brought by complaining minorities. As long as will have to confront the lurking confl ict between the disparate- the employer can show that the employment examinations impact provision of Title VII and the Constitution’s promise of were a business necessity and job-related in their content and equal protection. Justice Scalia’s concurrence was devoted solely design, the employer will be able to eff ectively fi ght a lawsuit to this point. As he notes, when an employer can ascertain with 8 Engage: Volume 10, Issue 3 certainty that certifying a test (or, more broadly, taking any given 12 See 42 U.S.C. §1973 b(b). employment action) will have impermissible, unintentional 13 See Allen v. State Bd. of Elections, 393 U.S. 544, 566 (1969) (“Th e Voting disparate impact, then Title VII allows and indeed requires the Rights Act was aimed at the subtle, as well as the obvious, state regulations employer to engage in intentional race-based action to avoid which have the eff ect of denying citizens their right to vote because of their race. Moreover, compatible with the decisions of this Court, the Act gives a broad that disparate impact. Yet that action is, by defi nition, disparate interpretation to the right to vote, recognizing that voting includes ‘all action racial treatment mandated by the government, which seemingly necessary to make a vote eff ective.’”). violates the Equal Protection Clause. As Justice Scalia aptly put 14 Dougherty County, Ga., Board of Educ. v. White, 439 U.S. 32, 44 (1978). it, “the war between disparate impact and equal protection will 15 435 U.S. 110 (1978). be waged sooner or later, and it behooves us to begin thinking 16 Id. at 128-29 & n.15, 130-31 & n.18; see also Dougherty County, 439 U.S. about how—and on what terms—to make peace between at 43-44. them.”40 17 South Carolina v. Katzenbach, 383 U.S. 301, 334 (1966). Another important, unanswered question is whether diversity can be a compelling state interest in public 18 42 U.S.C. §1973 b(b). employment. In Grutter v. Bollinger,41 the Court held that 19 521 U.S. 507 (1997). diversity can be a compelling state interest in public higher 20 Nw. Austin Mun. Util. Dist. No. 1 v. Holder, 129 S. Ct. 2504, 2508 education, and in Parents Involved, fi ve justices (including (2009). Justice Kennedy) indicated their belief that diversity can be a 21 Id. at 2513-15. compelling interest in elementary and secondary education. But 22 Id. at 2511-12. the Court has never held that diversity is a compelling interest in 23 Id. at 2517 (Th omas, J., concurring in the judgment in part and dissenting public employment. Th e Ricci petitioners argued, albeit briefl y, in part). that public employment is materially diff erent from education 24 129 S.Ct. 2658 (2009). since the primary consideration should be eff ectiveness at doing 25 42 U.S.C. §2000e-2(a)(1). the required job. Since the Ricci defendants did not assert diversity as a compelling interest to justify their throwing out 26 42 U.S.C. §2000e-2(k)(1)(A)(i). the test results, and since the Court did not reach the equal- 27 See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273 (1986) (plurality protection question, it remains to be settled whether diversity op.). in employment is a compelling state interest that can justify 28 Th e group called themselves “the New Haven 20,” and set up a website, www. race-based action by a government employer. Th e Ricci decision, NewHaven20.com, to gain support and explain their cause. however, may lead some to hope that the fi ve justices in the 29 488 U.S. 469, 500 (1989). Ricci majority would decline to so hold. 30 Several of the petitioners—including lead petitioner Frank Ricci, who is Ricci has shifted the fi eld in employment law away from dyslexic—had gone to extraordinary lengths and expense to prepare for the tests. raw racial numbers, and toward a system that focuses on merit 31 129 S.Ct. at 2676. and qualifi cations to do the job. How far this trend will go, 32 Id. at 2683 (Alito, J, concurring). and whether the Court may in the future explicitly ground it 33 Id. at 2681 (Scalia, J, concurring). not just in Title VII, but in the Constitution itself, remains to 34 Id. at 2689 (Ginsburg, J, dissenting). be seen, as the Court works through these questions in future cases and also as the composition of the Court changes in years 35 Id. at 2676. to come. 36 See Roger Clegg, “Dousing the Fires of Racial Discrimination,” July 28, 2009, available at http://www.popecenter.org/clarion_call/article.html?id=2209. 37 129 S.Ct. at 2676. Endnotes 38 515 U.S. 200 (1995). 39 127 S.Ct. 2738 (2006). 1 129 S. Ct. 2504 (2009). 40 129 S.Ct. at 2683 (Scalia, J, concurring). 2 South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). 3 E.g., Riley v. Kennedy, 128 S.Ct. 1970 (2008) (No. 07-77) (argument by 41 539 U.S. 306 (2003). Pamela S. Karlan). 4 Beer v. United States, 425 U.S. 130, 140 (1976). 5 42 U.S.C. § 1973c(a). 6 Id. 7 Connor v. Waller, 421 U.S. 656, 656 (1975) (per curiam). 8 See 42 U.S.C. §1973 b(a)(8). 9 42 U.S.C. §1973 b(b). 10 See id. 11 See id. Th e 1975 changes brought residents of Manhattan, Brooklyn, and the Bronx under Section 5. A complete list of covered jurisdictions is available at http://www.usdoj.gov/crt/voting/sec_5/covered.php. November 2009 9