Ricci v. DeStefano: The New Haven Firefighters Case and the Triumph of White Privilege

Abstract

Ricci v. DeStefano is the most important recent Supreme Court pronouncement on one of the landmark enactments of the 1960s, Title VII of the Civil Rights Act of 1964. The decision, authored by Justice Anthony Kennedy, held that the white firefighters who topped the civil service list by virtue of their test scores were entitled to promotion, notwithstanding the disparate impact the test had on African-American candidates. The case has the potential to significantly curtail impact litigation under the statute, and certainly will discourage employers from monitoring their selection devices to remove “artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” Griggs v. Duke Power Co., 401 U.S. 424 (1971). This article documents the decision’s dramatic break with past precedent and assesses its procedural irregularities. Professor Brodin, who has written extensively about Title VII over the years, places Ricci in the context of the debate today, in both legal and political circles, about race, affirmative action, and “reverse discrimination.” The author traces the unique history of discrimination in firefighting, and the adverse effect the decision will have on progress towards equal opportunity in the Nation’s firehouses. Finally, he explores our society’s obsession with testing and its stubborn equation of merit with exam success, regardless of whether the exam actually predicts job performance. The piece ends with a discussion of alternative means of personnel selection designed to produce a more productive workforce, without the adverse racial or gender impact of traditional tests.