The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action....Justice Scalia has a concurring opinion to note that it "merely postpones the evil day" when the Court will have to decide whether the disparate-impact provisions of Title VII violate the Equal Protection Clause:
[We do not] question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed... and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race....
[T]here is no evidence—let alone the required strong basis in evidence—that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.
[T]he disparate-impact laws do not mandate imposition of quotas, but it is not clear why that should provide a safe harbor. Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end? Surely he would. Intentional discrimination is still occurring, just one step up the chain. Government compulsion of such design would therefore seemingly violate equal protection principles.Scalia (who also joins the Kennedy opinion) writes for himself alone. Justice Alito also has a concurring opinion, and he is joined by
Almost as soon as the City disclosed the racial makeup of the list of firefighters who scored the highest on the exam, the City administration was lobbied by an influential community leader to scrap the test results, and the City administration decided on that course of action before making any real assessment of the possibility of a disparate-impact violation. To achieve that end, the City administration concealed its internal decision but worked — as things turned out, successfully — to persuade the CSB that acceptance of the test results would be illegal and would expose the City to disparate-impact liability. But in the event that the CSB was not persuaded, the Mayor, wielding ultimate decisionmaking authority, was prepared to overrule the CSB immediately. Taking this view of the evidence, a reasonable jury could easily find that the City’s real reason for scrapping the test results was not a concern about violating the disparate-impact provision of Title VII but a simple desire to please a politically important racial constituency.
Finally, the dissenting opinion is written by Justice Ginsburg, and she's joined by Justices Stevens, Souter, and Breyer. She chides Alito for "equat[ing] political considerations with unlawful discrimination."
That political officials would have politics in mind is hardly extraordinary, and there are many ways in which a politician can attempt to win over a constituency — including a racial constituency — without engaging in unlawful discrimination....But was it unlawful discrimination?
Were they seeking to exclude white firefighters from promotion (unlikely, as a fair test would undoubtedly result in the addition of white firefighters to the officer ranks), or did they realize, at least belatedly, that their tests could be toppled in a disparate-impact suit? In the latter case, there is no disparate-treatment violation. Justice Alito, I recognize, would disagree. In his view, an employer’s action to avoid Title VII disparate-impact liability qualifies as a presumptively improper race-based employment decision. I reject that construction of Title VII. As I see it, when employers endeavor to avoid exposure to disparate-impact liability, they do not thereby encounter liability for disparate treatment.
ADDED: This post incorrectly stated that the Chief Justice joined the Alito concurrence. Tom Goldstein observes:
Judge [sic] Alito’s concurring opinion comes much closer to an overt criticism of the rulings of the district court and court of appeals. I found it notable that the Chief Justice - who seems to place a priority on not interjecting the Court into political disputes unnecessarily - does not join the concurrence.
In the end, it seems to me that the Supreme Court’s decision in Ricci is an outright rejection of the lower courts’ analysis of the case, including by Judge Sotomayor. But on the other hand, the Court recognizes that the issue was unsettled. The fact that the Court’s four more liberal members would affirm the Second Circuit shows that Judge Sotomayor’s views were far from outlandish and put her in line with Judge [sic] Souter, who she will replace.