an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Merit and Intent: Two Pitfalls of Equal Protection Doctrine
Tomorrow the Supreme Court hears arguments in Ricci v. DeStefano, a case brought by New Haven firefighters challenging the city’s decision to cancel promotions after an exam designed to select the candidates yielded a list with no African-Americans slotted for promotion. The firefighters allege that the city’s decision violates both the Equal Protection Clause and Title VII.
The two sides dispute what motivated the city to decline to certify the test results – a good faith attempt to comply with the requirements of Title VII says the city; an illegitimate intention to achieve racial balancing allege the petitioners. The two sides also dispute the best way to conceive of the relevant action at issue itself. The city claims its action does not involve a race-based classification and thus strict scrutiny does not apply. As the city sees it, it simply decided to abandon the test as the criterion for promotion and in fact promoted nobody, thereby treating everyone the same. The petitioners argue, by contrast, that the city’s action does involve a race-based classification and thus calls for strict scrutiny. Rather than describe the relevant action as the decision to scrap the test, they describe the relevant action as the decision not to promote the high scoring firefighters. This decision was made, allege the petitioners, on the basis of their race.
Intentions could be relevant to constitutional permissibility either because they are relevant to determining whether in fact the state classifies on particular grounds (here, race) or because they are relevant to determining whether such classification is permissible. When the Court says that animus toward a particular group is never a legitimate reason for adopting a particular policy (Romer), it is talking about the way that intentions can be relevant to permissibility. When the Court says that disparate impact, standing alone, is insufficient to conclude that the action is one that classifies on suspect grounds (Feeney), it is speaking to the issue of whether intentions are relevant to determining how best to describe the state action at issue. The first question this case thus raises is whether intentions matter when assessing whether state action violates Equal Protection?
The case also highlights the tremendous pull that merit has in our thinking about when differentiation constitutes wrongful discrimination. The petitioners allege that “[t]heir disappointment in being denied the promotions they earned because of the city’s overtly race-based determinations is no different than that of other Americans who have been discriminated against on account of their race.” The respondents argue that “[t]his approach to tests that raise red flags about whether candidates are being properly evaluated for promotion is precisely the sort of race-neutral, narrow conduct directed toward compliance with Congress’s mandate and assuring a fair and merit-based selection process that the Constitution permits.” While merit-based hiring of firefighters is surely important for the people of New Haven, are both sides correct in assuming that merit has something to do with whether state action violates Equal Protection?
Should the constitutionality of New Haven’s actions depend on what the Court concludes New Haven intended to do? And is merit really constitutionally relevant? The city argues that its action is not race-based because the relevant action is scrapping the test. The petitioners argue that the city’s action is race-based because the relevant action is failing to promote the top scorers based on their race. Of course both are plausible ways to describe the city’s action, just as “putting the key in the door,” “unlocking my office” and “going back for the book I forgot” are all plausible ways of describing my actions last night before I left work. How should we decide who is right? Should the Court try to uncover evidence of actual motives? We might try by asking a counter-factual question. Would the city scrap the test if the firefighters available for promotion were racially balanced? No. So refusing to promote the high scoring white firefighters is an apt description. Would the city refuse to promote the high scoring white firefighters if it could only do so by using explicit racial criteria? Here, the answer is less clear. The city emphasizes that it didn’t use these methods, suggesting that its decision was, at least in part, taken because this race-neutral method was available. The Court’s analysis of whether New Haven’s action violates Equal Protection should not turn on the answer to this counter-factual question. In analyzing the constitutional requirement of Equal Protection, we should ask instead: what is the best way to describe the action? This question does not ask what the city intended, what it thought it was doing, what it would have done if…. Instead, it asks what is the best way to understand or interpret the action?
Second, are the city’s intentions relevant to the action’s permissibility? In order to discuss this question, I will assume that the action is best described as failing to promote the high scoring firefighters based on their race. If this is the city’s action, does it matter whether they do so in order to promote racial balancing or in order to attempt in good faith to comply with Title VII, or for any other reasons? It is notoriously difficult to ascertain the actual motives of governmental actors for a myriad of reasons, not the least of which is that it is difficult to determine one’s own motives at times even though one has more direct access to these. The relevant question is not why they acted but whether the action is permissible. The question the Court should focus on is this: Can a fire department refuse to act on the results of a promotional exam when using the exam yields results that present a prima facie disparate impact claim under Title VII?
Next, consider the relevance of merit. Merit-based hiring may well be important to the people of New Haven. The relevant question is not whether there are good reasons to hire on the basis of merit but rather whether merit is relevant constitutionally. Consider the following variation on the facts. New Haven offers the same test. After receiving the results, the fire chief looks at the names of the firefighters eligible for promotion and notices that they are generally a timid group – not the sort of leaders he thinks are needed in supervisory roles. He decides the test must be flawed. It measures something, just not the right something for what is needed. Do the firefighters who scored well have claims based in Equal Protection? Are they entitled – on constitutional grounds – to be judged by the criteria initially promulgated? While they are surely entitled to our sympathy for the efforts they expended, they are not entitled to be judged by any particular set of criteria, unless New Haven made some sort of promise to them otherwise. If it did, they may have a breach of contract claim, not an Equal Protection claim. Wait, you may be thinking, the decision to scrap the test is this hypothetical case is based on merit. Being an effective leader is important to the job so the fire chief acts rightly in rejecting the test. But that’s too easy. Suppose the fire chief is mistaken in thinking that timid firefighters will not be effective leaders. In reality, these firefighters would make excellent leaders. Do they have an Equal Protection claim? No. Equal Protection is not a protection against mistaken decisions based on erroneous generalizations. Government actors will often make bad decisions. Where a government actor hires or promotes in ways that depart from merit-based hiring, the citizens can complain (if they want merit-based hiring above all else). But the person passed over for promotion despite his merit has no claim based in Equal Protection. Equal Protection requires that the government treat individuals as equally important. It is not a rule setting merit as the key to governmental decisions; nor is it a general bulwark against governmental error. A focus on merit takes us in the wrong direction. The firefighters are not entitled to these jobs based on merit.