I believe that the 2nd Circuit ruling in this case as relates to affirmative action is both confusing and, based on prior Supreme Court precedents, incorrect. Bare with me as I explain. Let’s begin by comparing the rulings in United Steelworkers v. Weber (1979) and Johnson v. Transportation (1987). Both were Title VII rulings, and both figured into the 2nd Circuit ruling relating to the Affirmative Action Plan (AAP) defense.

Brian Weber challenged a voluntary AAP by Kaiser Aluminum. Kaiser had required prior craft experience for skilled jobs, but the unions teaching these crafts historically excluded blacks. As a result, in Weber's plant, only 5 of 273 skilled workers (1.83%) were black, relative to 39% in the local labor force. To correct what was a fairly obvious pattern or practice violation, Kaiser entered into a collective bargaining agreement with the union to temporarily reserve 50% of all new training slots for black employees until the percentage of black craftworkers in a plant is commensurate with the percentage of blacks in the local labor force. Weber sued when slots were then awarded to black employees with less seniority than he had. In a 5-2 ruling upholding the Kaiser AAP, Justice Brennan, speaking for Blackmun, Marshall, Stewart, and White ruled:

The purposes of the plan mirror those of the statute [Title VII]. Both were designed to break down old patterns of racial segregation .... At the same time, the plan does not unnecessarily trammel the interest of white employees. The plan does not require the discharge of white workers ... Nor does the plan create an absolute bar to the advancement of white employees .... [finally] the plan is a temporary measure ... not intended to maintain racial balance, but simply to eliminate manifest racial imbalance

Incidentally, the Weber ruling has since served as the basis for Title VII reverse discrimination cases in a parallel fashion to the strict scrutiny test in 14th Amendment case. Thus, Prong 1 of the Title VII test (an egregious violation) parallels Prong 1 of the strict scrutiny test, which is a compelling government interest, and Prong 2 of the Title VII test (temporary non-trammeling solution) parallels Prong 2 of the strict scrutiny test, which is a solution narrowly tailored to the compelling interest.

In Johnson, a state agency had 238 skilled craft workers, all of whom were male. Additionally, females were underrepresented throughout the agency and were segregated into five of seven job categories. Therefore, an AAP was developed to achieve “a statistically measurable yearly improvement in hiring, training and promotion of minorities and women” in the suspect job categories. Subsequently, Diane Joyce and Paul Johnson were among seven finalists for promotion. Mr. Johnson was rated slightly higher than Ms. Joyce and was recommended by the three supervisors who provided the ratings. However, the agency director, with input from an affirmative action officer whom Joyce petitioned, ordered his subordinate to choose any of the seven finalists. Joyce was selected and Johnson filed a Title VII claim alleging that sex was the "determining factor in [Joyce's] selection." Justice Brennan, speaking for Blackmun, Marshall, Powell and Stevens, echoed Justice Powell's words from the Regents v. Bakke (1978), ruling:

The Agency's Plan thus set aside no specific number of positions for minorities and women, but authorized the consideration of ethnicity or sex as a factor when evaluating qualified candidates for jobs in which members of such groups were poorly represented.

Thus, as in Justice Powell’s ruling in Bakke, sex was considered an extra plus for Joyce, who otherwise, was deemed equally as qualified for promotion as Johnson.

Justice O'Connor concurred on grounds that the manifest statistical imbalance was sufficient for a prima facie Title VII claim. Accordingly:

[The agency] had a firm basis for adopting an affirmative action program. ... when compared to the percentage of women in the qualified work force, the statistical disparity would have been sufficient for a prima facie Title VII case .... [the agency's] affirmative action plan as implemented in this instance ... satisfies the requirements of Weber and Wygant.

Note the use of “firm basis” in O’Connor’s opinion … more on that later. For present purposes, it is important to note that Justice White, the critical fifth vote in Weber, disagreed with O'Connor's assessment, stating:

My understanding of Weber was, and is, the employer's plan did not violate Title VII because it was designed to remedy the intentional and systematic exclusion of blacks ... That is how I understood "traditionally segregated jobs" ... The Court now interprets it to mean nothing more than a manifest imbalance between one identifiable group and another in an employer's labor force.

In other words, White joined the majority in Weber only because he believed there was strong evidence of egregious violations by the union and there were identifiable victims of these violations. He did not believe that a “manifest imbalance” by itself, rose to the level of a pattern or practice of discrimination, which he felt was necessary for relief for identified victims of discrimination.

Now on to my real bone of contention --- the Ricci standard was not created in the Ricci case … rather … it was lifted from Supreme Court reverse discrimination rulings both before and after the Johnson case.

For example, in Wygant v. Jackson (1986), a 14th Amendment case, the Supreme Court ruled against a school board that attempted to defy an agreement with a teacher’s union so that it could layoff two white teachers with more seniority than two maintained black teachers. This was a 5-4 case in which Justice O’Connor was the deciding vote. Justice Powell, who wrote the opinion for the Court, stated the following:

Evidentiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees. In this case, for example, petitioners contended at trial that the remedial program … had the purpose and effect of instituting a racial classification that was not justified by a remedial purpose. In such a case, the trial court must make a factual determination that the employer had a strong basis in evidence for its conclusion that remedial action was necessary. The ultimate burden remains with the employees to demonstrate the unconstitutionality of an affirmative-action program.

For her part, Justice O’Connor piped in that:

This remedial purpose need not be accompanied by contemporaneous findings of actual discrimination to be accepted as legitimate as long as the public actor has a firm basis for believing that remedial action is required.

The reason O’Connor sided with the majority is that she believed the stated basis (role modeling for black students) did not rise to the firm basis standard.

Then in the Johnson case, O’Connor stated the following:

In my view, the proper initial inquiry in evaluating the legality of an affirmative action plan by a public employer under Title VII is no different from that required by the Equal Protection Clause. In either case, consistent with the congressional intent to provide some measure of protection to the interests of the employer's nonminority employees, the employer must have had a firm basis for believing that remedial action was required. An employer would have such a firm basis if it can point to a statistical disparity sufficient to support a prima facie claim under Title VII by the employee beneficiaries of the affirmative action plan of a pattern or practice claim of discrimination.

Then in Richmond v. Croson (1989), another 5-4 ruling under the 14th Amendment case, the Supreme Court struck down a set-aside of municipal funds for minority business enterprises, the rational was provided by Justice O’Connor, who wrote the majority ruling. Accordingly:

None of these "findings," [by the City of Richmond] singly or together, provide the city of Richmond with a "strong basis in evidence for its conclusion that remedial action was necessary."… There is nothing approaching a prima facie case of a constitutional or statutory violation by anyone in the Richmond construction industry.

Justice O’Connor than reiterated the strong basis in evidence standard in Adarand v. Pena (1995), a set-aside case involving federal contractors.

I hope I’ve made my point. The “Ricci” standard is hardly new, and is not distinct from defenses to reverse discrimination claims under either Title VII or the 14th Amendment (or 5th Amendment as in Adarand). Therefore, the 2nd Circuit to reject the so-called “AAP Defense” is tantamount to changing the Supreme Court’s prior rulings in several major pre-Ricci reverse discrimination cases. I think the Supreme Court needs to clarify all of this, if only to alleviate my confusion (Joke).

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