Reading Ricci: Whitening Discrimination, Racing Test Fairness

Abstract

This Article posits that the Supreme Court's decision in Ricci v. DeStefano does not evaluate all claims of discrimination on a level playing field but rather "whitens" discrimination and "races" test fairness. The authors explicate how Ricci whitens discrimination by reframing antidiscrimination law's presumptions and burdens to focus on disparate treatment of whites as the paradigmatic and ultimately preferred claim; Ricci races test fairness by finding that efforts to use of job-related assessment tools that correct racial imbalance and better measure merit constitute racially disparate treatment of whites. Under Ricci all forms of racial attentivenes - like attending to the racial impact of promotional exams - become racial discrimination. This conflation derives in part from the application of the colorblindness/race-consciousness dyad, which obscures the more finely grained distinctions between racial attentiveness and inattentiveness that better parse the question of whether, in a given circumstance, taking account of race constitutes race discrimination. Contrary to Ricci's presumptions, not all racially attentive conduct is discriminatory; nor is all racially inattentive conduct nondiscriminatory. Secondly, while Ricci was framed as a reverse discrimination case, the authors evaluate it as a disparate impact claim using empirical analysis to examine the promotional lists at the heart of the Ricci lawsuit and to assess the effect of the City's failure to comply with accepted professional standards for proper test design and test use on Black and Latino firefighters and white firefighters who were not part of the Ricci plaintiff class. From this vantage point, New Haven's exams did not identify the most qualified candidates but instead unfairly and unncessarily reproduced the fire department's racially skewed status quo. Nevertheless, in Ricci, the City's efforts to ameliorate this racial imbalance were themselves treated as attempts to racially rig results, exemplifying how the pursuit of fair testing was raced. The Article concludes by evaluating proposals geared towards rectifying Ricci's dilution of Title VII disparate impact law, situating these alternatives in the broader context of the agenda to prevent the conversion of antidiscrimination law into discrimination itself.

Keywords: Discrimination, Race, Disparate impact, Testing, Title VII