Adam has done an excellent job with Ricci in general and Alito's bizarre race-baiting concurrence in particular. But it's worth addressing one more point. According to Kennedy, New Haven acted illegally because there was "no strong basis in evidence" that an "equally valid, less-discriminatory testing alternative" existed. Admittedly, it's hard to say that Kennedy is wrong, exactly, given that his new standard seems to mean that Kennedy knows a strong basis in evidence when he sees it. Nonetheless, as you'll see if you look at the amicus brief filed by DeStefano, the evidence that an equally valid test that wouldn't produce an equally disparate impact existed can be found by heading a couple stops down the Metro-North line:
Because the City's weightings were arbitrary, a different weighting would have been at least as valid. Testimony indicated that neighboring Bridgeport's tests use different weightings and are less discriminatory.
Based on the raw test scores, if the tests were weighted 70%/30% oral/written, then two African-Americans would have been considered for lieutenant positions and one for a captain position.
Seems pretty strong to me, and if Kennedy has any reason to believe that the precise weighting of oral and written exams arrived at (through negotiations, not the judgment of professional testers) is required for a test to be valid he didn't bother to share it. Moreover, assertions that not certifying these particular test results would be a blow to meritocracy notwithstanding, it's also worth noting that the creator of the test "never suggested that the tests were calibrated closely enough to be used to rank-order candidates, which requires that each higher score reflect better anticipated job performance."
And, as Ginsburg pointed out in dissent, the arbitrariness of the test also makes hash of Kennedy's argument that "[t]here is no genuine dispute that the examinations were...consistent with business necessity. [my emphasis.] Perhaps reasonable people can disagree, but the idea that there's "no dispute" that the tests were justified by business necessity is absurd; the point most certainly is subject to dispute, particularly given the strong definition of "business necessity" that was reinstated by the 1991 Civil Rights Act. As Scalia's concurrence ironically also noted, "business necessity" is in fact a "demanding" standard, and if Kennedy was going to hold that New Haven had no reasonable fear that its essentially arbitrary testing process couldn't meet that standard he needed to do better than this feeble hand-waving.
--Scott Lemieux
