The Supreme Court Today: Promotion Exams and Race; Preemption

In the much awaited ruling on promotion examinations for the New Haven Fire Department, the United States Supreme Court ruled today that the City violated federal civil rights law by refusing to certify the examination results "solely because the higher scoring candidates were white." Ricci v. DeStefano.

The Court divided along liberal/conservative lines. Justice Kennedy wrote the majority opinion. Justice Ginsburg wrote the dissent for herself and Justices Stevens, Souter and Breyer, and maintained that New Haven did not act solely because the higher scoring candidates were white.

The political impact will be immediate. Judge Sonia Sotomayor sat on the panel of the United States Court of Appeals for the Second Circuit which, in a brief opinion, had upheld New Haven's decision not to certify the promotion examination. Her Senate confirmation hearings begin on July 13, and Ricci undoubtedly will be the focus of much of the questioning and political posturing.

New Haven had declined to certify the promotion examination on the grounds the examination results had a disparate impact on racial minorities, and because it believed it would be subject to liability under federal civil rights law if it did certify the results. While the majority of the Court recognized the disparate impact, it concluded that because there was not "a strong basis in the evidence" to conclude that it would be liable if it certified the test results, New Haven had no grounds to refuse the certification.

The majority noted that even if a test result has a disparate racial impact, an employer would be liable under federal civi rights law only if a promotion examination is not job related, or if there existed an equally valid less discriminatory alternative promotion process that the City refused to adopt. The majority concluded that the New Haven test was fair and job related, and that there was no extant testing alternative the City could have adopted. In the view of the dissent, if New Haven had certified the test results it would have faced "formidable obstacles" in defending itself in a civil rights action brought by those who did not receive a promotion.

Preeemption: to determine whether various national banks had violated New York's fair-lending laws, the State's Attorney General sent them letters "in lieu of subpoena" requesting that they provide certain nonpublic information about their lending practices. The federal Office of the Comptroller of the Currency brought suit to enjoin the request on the grounds that the National Banking Act prohibits the states from taking such actions against national banks.

In Cuomo v, Clearing House Association a divided Court concluded that principles of federal preemption do not prohibit a state from bringing judicial proceedings to enforce state laws against national banks. The majority opinion by Justice Scalia was joined by the liberal members of the Court (Ginsburg, Stevens, Souter, and Breyer).

Finally, the Court was expected to decide a third case today, Citizens United v. Federal Election Commission. Instead, the Court directed reargument in September. The Court will decide whether a feature length documentary movie which was critical of presidential hopeful Hillary Clinton was an advertisement subject to federal electioneering regulations.