Sotomayor Tries to Bury Firefighters' Discrimination Claims

Ricci v. DeStefano, Part 2

“We are not unsympathetic to the plaintiffs’ expression of frustration.” So declared Sonia Sotomayor and her two liberal Second Circuit colleagues in their review of federal district judge Janet Arterton’s convoluted opinion (see Part 1) rejecting the claims of racial discrimination brought by the firefighters in Ricci v. DeStefano.

But as Second Circuit judge (and Clinton appointee) José Cabranes would spell out in his extraordinary dissent from denial of rehearing en banc in June 2008, the panel dismally failed to give plaintiffs’ legal claims the serious attention that they deserved.

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In February 2008, Sotomayor and her panel colleagues Rosemary Pooler and Robert Sack issued an unpublished “summary order” rejecting the firefighters’ appeal of Arterton’s ruling. That order (available as Appendix A to Cabranes’s dissent) had only this single substantive paragraph:

We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

As Joan Biskupic recounts in her celebratory biography of Sonia Sotomayor, Breaking In, Judge Cabranes learned of the ruling by reading his local New Haven newspaper. He was surprised that the panel would deal with a case of such magnitude by a summary order, and the deeper he dug, the more aghast he was. He urged the panel to withdraw its order and issue a full opinion. But the panel refused. He then requested that the Second Circuit rehear the case en banc, but the full court rejected rehearing by a vote of 7 to 6. To compound the damage, the panel re-issued its order as a published ruling that (unlike its summary order) would qualify as binding Second Circuit precedent.

In his dissent from the denial of en banc rehearing, Cabranes vigorously objected to his colleagues’ burial of the firefighters’ claims:

This appeal raises important questions of first impression in our Circuit — and indeed, in the nation — regarding the application of the Fourteenth Amendment's Equal Protection Clause and Title VII's prohibition on discriminatory employment practices. At its core, this case presents a straightforward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another? In a path-breaking opinion, which is nevertheless unpublished, the District Court answered this question in the affirmative, dismissing the case on summary judgment. A panel of this Court affirmed in a summary order containing a single substantive paragraph. Three days prior to the filing of this opinion, the panel withdrew its summary order and filed a per curiam opinion adopting in toto the reasoning of the District Court, thereby making the District Court's opinion the law of the Circuit.

Cabranes found Arterton’s reasoning implausible on its face:

Although it is not disputed that the decision to discard the examination results was based on racial considerations, the District Court determined as a matter of law that no racial discrimination had occurred “because [all of] the test results were discarded and nobody was promoted” and because “nothing in the record in this case suggests that the [defendants] acted because of discriminatory animus toward plaintiffs or other non-minority applicants for promotion.” [Citations omitted; cleaned up.]

The panel’s brisk dismissal of the firefighters’ claims, he explained, was very surprising:

On appeal, the parties submitted briefs of eighty-six pages each and a six-volume joint appendix of over 1,800 pages; plaintiffs' reply brief was thirty-two pages long. Two amici briefs were filed and oral argument, on December 10, 2007, lasted over an hour (an unusually long argument in the practice of our Circuit). More than two months after oral argument, on February 15, 2008, the panel affirmed the District Court's ruling in a summary order containing a single substantive paragraph.

Even worse was the decision of the panel, once it knew that it had escaped en banc review, to re-issue its order as a published and precedential opinion:

This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit. It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination.

And then this killer understatement:

This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.

Cabranes objected that under the panel’s approach, “municipal employers could reject the results of an employment examination whenever those results failed to yield a desired racial outcome — i.e., failed to satisfy a racial quota.”

Cabranes (and his five colleagues who joined his dissent) clearly believed that the Second Circuit panel members acted as they did in order to prevent en banc or Supreme Court review of the firefighters’ claims that they were victims of racial discrimination. Cabranes expressed his “hope that the Supreme Court will resolve the issues of great significance raised by this case” and his judgment that plaintiffs’ claims are “worthy of [Supreme Court] review.”

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The firefighters surely did not take any solace from the statement by Sotomayor and her colleagues that “We are not unsympathetic to the plaintiffs’ expression of frustration.” They were not undertaking to make an “expression of frustration.” They were advancing legal claims that they had been discriminated against on the basis of race. And they expected those legal claims to be addressed seriously.

For Sotomayor at least, it is also difficult to believe that she was “not unsympathetic” to the firefighters’ claims. Sotomayor was deeply distrustful of tests. As her biographer Biskupic writes, she “attributed differences in test scores between well-off whites and disadvantaged minorities to the cultural biases built into testing.” She declared herself “the perfect affirmative action baby”: “My test scores were not comparable to that [sic] of my colleagues at Princeton or Yale,” she acknowledged, so if there had been heavy reliance on those scores, “it would have been highly questionable whether I would have been accepted.”

Unlike some other beneficiaries of racial preferences, Sotomayor was deeply wedded to the system of advantages they conferred on her. Per Biskupic:

She had climbed the ladder of the law not just because she was smart and worked hard but because people in positions of power … sought to hire and promote blacks and Hispanics. Sotomayor understood that she was sometimes chosen over white candidates because of her ethnicity, but she objected to contentions that she was not as qualified or as competent because of the boosts she received.

In short, this “wise Latina” seemed to have learned from “the richness of her experiences” that claims by whites that they had been victimized by racial discrimination did not deserve to be taken seriously.

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I took a special interest in Judge Cabranes’s dissent (and highlighted it at the time) precisely because Sonia Sotomayor was one of the three members of the Second Circuit panel that buried the firefighters’ claims. The 2008 presidential election was some months away, and, as I observed, “Sotomayor is mentioned often as a likely Supreme Court pick in an Obama administration.”

Barack Obama would of course win that election. Eleven days before his inauguration in January 2009, the Supreme Court granted review of the Second Circuit’s ruling.