[UPDATE]: On February 25, 2009, I filed a brief as amicus curiae in this case. You can find it here.

Last week, the court granted review in Ricci v. DeStefano.

In 2003, the city of New Haven attempted to promote a number of firefighters to the ranks of captain and lieutenant based on a number of examinations and performance-related indicators. After reviewing the results, the city opted to leave the recently vacated positions unfilled because the individuals recommended by the examinations were almost all white. They refused to promote any of the firefighters in line with “voluntary compliance with Title VII [of the Civil Rights Act of 1964].” The validity and objectivity of the examination methods used to recommend promotion are undisputed.

Frank Ricci and several of the other recommended officers filed suit alleging violation of their rights stated in Title VII and the Equal Protection Clause of the Fourteenth Amendment. The District Court delivered summary judgement in favor of the city, holding that:

[respondents] acted based on the following concerns: that the test had a statistically adverse impact on African-American and Hispanic examinees; that promoting off this list would undermine their goal of diversity in the Fire Department and would fail to de- velop managerial role models for aspiring firefighters; that it would subject the City to public criticism; and that it would likely subject the City to Title VII lawsuits from minority applicants that, for political reasons, the City did not want to defend.

In the Second Circuit, a three-judge panel voted to uphold the lower court’s decision, finding that “[we] are not unsympathetic to the plaintiffs’ expression of frustration … [but] it simply does not follow that he has a viable Title VII claim.” One of Barack Obama’s oft-mentioned potential Supreme Court nominees, Sonia Sotomayor, sat on the panel and voted for the 3-0 decision.

A few months later, the panel in the Second Circuit suddenly withdrew their opinion and refilled it as a nearly-identical per curiam opinion. A judge on the Court requested, sua sponte, a poll about hearing the case en banc. The only difference between the majority opinion for the panel and the per curiam opinion is the absence of the word ‘substantially’ in the latter from the first sentence of the opinion: “We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below.”

The judges voted 7-6 against rehearing en banc and issued an order (here) which included two concurring opinions and one dissenting opinion.

The question before the court is now whether or not the City of New Haven had sufficient justification to reject the results of the exam that would have promoted mostly-white candidates to the positions of lieutenant and captain. The city claims that it used race-neutral analysis (they didn’t want too many candidates of the same race) to formulate their position but the firefighters who filed suit argue that the City’s system was more like a quota (Gratz).

Petitioners also argue that the district court erred in refusing to apply strict scrutiny to the case. The district court held that because no one had been promoted to the positions in question, everyone was treated equally and there was no race-based depravation to trigger the Adarand strict scrutiny requirement.

The results of this case shouldn’t be surprising. Chief Justice Roberts and Justices Scalia, Thomas, and Alito will almost certainly side with the firefighters. Justice Kennedy has almost always ruled against affirmative action in cases before this court and his general position on the equal protection clause is unsympathetic to programs designed to help minorities. Justices Stevens, Souter, Ginsburg, and Breyer will likely side with the City and vote to uphold the City’s ability to enforce it’s own affirmative action policy.

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