Kennedy's majority opinion correctly recognizes tension between the disparate impact law and disparate treatment law, and correctly recognizes that scrapping the results of a test due to the racial makeup of those that pass is a negative employment action based on race, constituting disparate treatment.

The majority's decision that a "strong basis in fact" for a disparate impact claim is needed to engage in this type of disparate treatment, seems reasonable, though I have no idea if it is justified as a matter of law. Seems like the kind of arbitrary legal standard SCOTUS is apt to set.

It is not clear to me that there was no "strong basis in fact" for a disparate impact suit, based on the dissent's characterization of disparate impact law. Seems like it's *really fucking hard* to get out of a disparate impact suit if there is, in fact, a disparate impact. I don't buy the majority's excuse that 60/40 weighting was a clearly sufficient "business necessity" based on the union contract such that no disparate impact suit could get anywhere.

Maybe remand on this issue would have been better.

Scalia's concurrence is right on, and maybe they should have addressed this issue.

Alito's concurrence is right that the plaintiffs's claim should at least survive summary judgment on the grounds that a reasonably jury could find the fear of litigation was a pretext.

Ginsburg's dissent:

It's BS that the dissent appears to adopt the district court's rationale that scrapping the test because of racially disparate results isn't disparate treatment in the first place. Of course it is. You're making a negative employment decision on the basis of race. It doesn't matter whether the good test-takers had a "vested interest" in promotion, you can't refuse to hire a job applicant based on race regardless of his/her lack of a "vested interest" in the job.

Without explicitly saying so, the dissent is pervaded by the notion that unequal results = unequal opportunity, and that a test producing a racially balanced result is a "better" test.

However, assuming the dissent accurately portrays the law prior to this opinion, the City might have had a hard time justifying it's procedures under the "business necessity" rule, especially the 60/40 weighting of the tests.

There seems to be sufficient facts that a reasonable jury could find that another form of testing would have taken account of the needed characteristics w/o a disparate racial impact.

(http://www.autoadmit.com/thread.php?thread_id=1031646&forum_id=2#12135409)

1. government jobs shouldn't be awarded on the basis of race, either overtly or tacitly.

2. to determine who gets government jobs, objective, anonymous testing is appropriate.

3. given the awful history of racial exclusion in our economy (including in the awarding of government jobs), any government hiring system that results in under-performance by blacks and hispanics must be rejected.

(http://www.autoadmit.com/thread.php?thread_id=1031646&forum_id=2#12135832)

I think 2 may be applicable in some cases, but not necessarily all.

I reject 3.

(http://www.autoadmit.com/thread.php?thread_id=1031646&forum_id=2#12135940)

(http://www.autoadmit.com/thread.php?thread_id=1031646&forum_id=2#12136048)

However, I think evaluating "knowledge of the community" is totally valid in determining who should be policing a community.

(http://www.autoadmit.com/thread.php?thread_id=1031646&forum_id=2#12136157)

I think this is off, based on Kennedy's opinion. It's not "strong basis in fact for a disparate impact suit" as the new standard, but strong basis in fact for disparate impact LIABILITY. (see page 2 of the Ricci opinion's syllabus, part b).

(http://www.autoadmit.com/thread.php?thread_id=1031646&forum_id=2#12135988)

But based at least on Ginsburg's summary of disparate impact law, it seems like there's a pretty strong case for disparate impact liability (which seems ridiculous, but the law seems sort of ridiculous) since the city didn't provide much of a rationale for a 60/40 written/oral test weighting.

On second thought, though, there wasn't *really* strong evidence that some other test would have produced non-disparate results. Maybe that's the key, the the standard seems unclear at best.

(http://www.autoadmit.com/thread.php?thread_id=1031646&forum_id=2#12136034)

I read Ginsburg's dissent, but I don't see why the 60/40 written/oral test weighting heightens the likelihood of finding liability. Written or multiple choice components make a test much more objective, and I've mentioned this in other threads, but the practice of written or multiple choice examinations for promotion to leadership positions within a fire station seems eminently reasonable, if not desirable, since leadership positions require a much more advanced knowledge of firefighting principles, techniques, structural dynamics, and combustion principles, than your regular firefigher is expected to know. I could see the 60/40 test being more questionable for entry level firefighters...

But maybe that's where the dissent and majority simply disagree. Personally, I think the dissent was looking for any reason to find the test format seemingly arbitrary, especially given the steps the city went through to put a race neutral test in place.

(http://www.autoadmit.com/thread.php?thread_id=1031646&forum_id=2#12136094)

There was some evidence that this was the case (i.e. what they did in Bridgeport).

Taking that description of the law as true (which the majority doesn't really contest), then it seems like potential plaintiffs could have gotten past summary judgment if they sued the city.

If that (enough to get past summary judgment) is not a "strong basis in evidence," then what the hell is?

(http://www.autoadmit.com/thread.php?thread_id=1031646&forum_id=2#12136174)