Revisiting Sonia Sotomayor's Most Infamous Case

Ricci v. DeStefano, Part 1

Sonia Sotomayor’s most infamous case as a Second Circuit judge intertwined with her nomination to the Supreme Court. Ricci v. DeStefano exposed the ugly underside of Barack Obama’s “empathy” standard for judging: A judge’s empathy for some litigants in interpreting and applying the law entails antipathy against other litigants.

The case likewise revealed the danger of Sotomayor’s belief that a “wise Latina” judge should draw on the “richness of her experiences” to “reach a better conclusion than a white male who hasn’t lived that life.” Sotomayor, a self-regarding “wise Latina,” drew on the richness of her own experiences to trample the rights of whites not to be victimized by racial discrimination.

As it happens, Second Circuit judge José Cabranes, Sotomayor’s onetime mentor and fellow Puerto Rican, would expose Sotomayor’s shenanigans in an extraordinary dissent from denial of rehearing en banc.

The saga of Ricci v. DeStefano, with its cast of lots of villains and some heroes, is far too large to be packed into a single post. I will tell the beginning of the story here.

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In 2003, the New Haven Fire Department administered examinations for promotion to the ranks of captain and lieutenant. Expert consultants hired by the City of New Haven carefully designed the examinations to be race-neutral. But the City was not happy with the results.

Forty-one applicants took the test to be captain. Of the twenty-two applicants who passed, 16 were white, 3 black, and 3 Hispanic. The percentage of white applicants who passed was markedly higher than the percentage of black and Hispanic applicants who did. Further, the top scorers, who would be eligible for immediate promotion to the existing vacancies, consisted of 7 whites and 2 Hispanics.

The results were roughly similar on the test to be lieutenant. Of the thirty-four who passed, 25 were white, 6 black, and 3 Hispanic. More than half of the white applicants passed; fewer than one-third of the black applicants did; and only one-fifth of the Hispanic applicants. The top scorers who would be eligible for immediate promotion were all white (though new vacancies would arise for the lieutenants who were promoted to captain, and three black applicants would have been eligible for those positions).

The test results triggered intense and racialized political controversy in New Haven. The City responded by declining to certify the test results, so no promotions were made.

Twenty firefighters—nineteen whites and one Hispanic—sued the City and City officials for discriminating against them on racial grounds. I’ll highlight here the two who ended up testifying at Sotomayor’s confirmation hearing.

Frank Ricci was the lead plaintiff. Ricci studied 8 to 13 hours per day to prepare for the lieutenant’s test and spent more than $1000 purchasing books and paying for them to be read on tape (because of his dyslexia). As he told the Senate Judiciary Committee:

I studied harder than I ever had before, reading, making flash cards, highlighting, reading again, all while listening to prepared tapes. I went before numerous panels to prepare for the oral assessment. I was a virtual absentee father and husband for months because of it.

Benjamin Vargas was the Hispanic plaintiff. Like Sotomayor, he was Puerto Rican and proud of his heritage. He and his family likewise sacrificed so that he could study hard to prepare for the captain’s test:

I am the proud father of three young sons. For them, I sought to better my life and so I spent 3 months in daily study preparing for an exam that was unquestionably job-related. My wife, a special education teacher, took time off from work to see me and our children through this process.

Vargas was badly beaten in 2004 in an attack that (as the New York Times reported) he believed was in retaliation for his joining the lawsuit. Other potential plaintiffs, including the black applicants who passed the tests and who would have been in line for promotions down the road if the tests had been certified, faced severe pressure not to sue.

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Federal district judge Janet Bond Arterton probably beats out Sonia Sotomayor as the worst judicial scoundrel in this saga. The firefighters moved for summary judgment on their claims that they had suffered racial discrimination in violation of the Equal Protection Clause and Title VII. The City defendants likewise moved for summary judgment in their favor. Among other things, they claimed that they refused to certify the test results in order to prevent a Title VII disparate-impact lawsuit by minority test-takers.

Judge Janet Bond Arterton

In a long—but, oddly, unpublished—opinion, Arterton granted summary judgment for the defendants. (Arterton’s opinion is Appendix B to Cabranes’s dissent.) I’m going to give Arterton’s opinion special attention because, as we shall see, Sotomayor and her colleagues on the Second Circuit panel on appeal, instead of presenting their own analysis of the legal issues, simply “affirm[ed], substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below.”

On plaintiffs’ Title VII claim, Arterton acknowledged that “Plaintiffs’ evidence — and defendants’ own arguments — show that the City’s reasons for advocating non-certification were related to the racial distribution of the results.” She further concluded that a “jury could infer that the defendants were motivated by a concern that too many whites and not enough minorities would be promoted were the lists to be certified.” Arterton further conceded that defendants hadn’t proven that the very tests they arranged to provide were racially biased and that there were “shortcomings in [defendants’] evidence on existing, effective alternatives” to the tests.

You might reasonably think that all of this would mean that plaintiffs had presented enough evidence to go to the jury (i.e., to get beyond summary judgment) on their Title VII claim. But Arterton somehow determined that “Defendants’ motivation to avoid making promotions based on a test with a racially disparate impact, even in a political context, does not, as a matter of law, constitute discriminatory intent.” In other words, it simply didn’t matter that there was ample evidence that the City had refused to certify the test results because it didn’t like the racial distribution of the results. Such a motivation must be deemed not to have been racially discriminatory.

Arterton, I’ll note, found a Second Circuit ruling from 1999 to be “quite relevant and instructive.” But as Judge Cabranes would observe in distinguishing that ruling:

Neutral administration and scoring — even against the backdrop of race-conscious design of an employment examination — is one thing. But neutral administration and scoring that is followed by race-based treatment of examination results is surely something else entirely. [Boldface added.]

Even more amazingly, Arterton maintained that the “result” of the City’s decision not to certify the test results “was race-neutral”: “all the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process to be considered for promotion.” Never mind that the failure to certify disadvantaged those who would have been eligible for promotion.

If I’m reading her convoluted opinion correctly, Arterton concluded that the City’s “desir[e] to comply with the letter and spirit of Title VII”—and to avoid a Title VII lawsuit by test-takers who didn’t pass—provided a “legitimate non-discriminatory reason” for not certifying the test results. But as Judge Cabranes objects:

Under the District Court’s rationale, it appears that any race-based employment decision undertaken to avoid a threatened or perceived Title VII lawsuit is immune from scrutiny under Title VII. This appears to be so, moreover, regardless of whether the employer has made any efforts to verify that a valid basis exists for the putative Title VII suit.

Arterton similarly concluded that the firefighters’ Equal Protection claim failed because they supposedly could not show that City officials “acted out of an intentionally discriminatory purpose.” In her view, showing discriminatory “animus” was essential to showing intentional discrimination. Thus, she found it exculpatory rather than incriminating that City officials, in her words

acted based on the following concerns: that the test had a statistically adverse impact on African-American and Hispanic examinees; that promoting off of this list would undermine their goal of diversity in the Fire Department and would fail to develop 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 sum, while there are many adjectives that could be used to describe Arterton’s opinion, “thorough, thoughtful, and well-reasoned” would not be among them.