In the course of considering that last question, I call attention to the curious concurrence of Justice Alito, in which he contends that the New Haven fire dep't may not have been worried about being sued in a disparate impact case at all, but simply caving to the pressure of racial politics. I note that his characterization of the Reverend Boise Kimber resembles the character of Reverend Reginald Bacon in Tom Wolfe's Bonfire of the Vanities. Bacon famously says:
"You're investing in steam control. And you're getting value for money....People own the boilers, but that don't do 'em a bit of good unless they know how to control the steam. If you can't control the steam, then it's powder valley for you and your whole gang. If you ever see a steam boiler go out of control, then you see a lot of people running for their lives."Justice Alito suggests that the New Haven fire dep't caved to Kimber's threats, fearing that he might otherwise release the steam. Alito, quoting the Appendix to the cert petition, says of Kimber: "he threatened a race riot during the murder trial of the black man arrested for killing white Yalie Christian Prince." That's strong stuff, no doubt, but does it make the point that Justice Alito assumes?
If the fire dep't did bow to pressure from Reverend Kimber, it was pressure that was itself due to the disparate impact of the firefighter promotion test results. Kimber was not exerting pressure based on some unrelated concern. He did not, for example, threaten a riot unless government jobs were given to political cronies. Rather, Kimber wanted to see some African-American firefighters promoted to lieutenant and captain, and was concerned that the combination of the "rule of three" and the test results would block that. This was exactly the same concern stated--albeit less flamboyantly--by other critics of the test.
Justice Alito appears to be saying that Kimber's concern--and thus the concern of the city officials who voided the test results--was not that the test was unfair, but that he wanted African Americans promoted regardless of the fairness of the test. But if that's the objection, then Kimber is irrelevant; Justice Kennedy made exactly the same point in the majority opinion by saying that a statistical disparate impact alone does not make out a Title VII case. The city either did or did not present sufficient evidence to show that the disparate impact could violate Title VII.
There is one way around that conclusion that might nonetheless make Kimber relevant, I suppose. Imagine that the city officials, upon learning of the test results, consulted counsel and reasonably concluded both: a) that there was a substantial possibility that the city would be held liable if sued for disparate impact; and b) that nonetheless the test results should be used. Then Reverend Kimber makes noise and the city officials decide that to appease him, they should void the test. Even though they would have an objectively reasonable basis for voiding the test (fear of liability), that reason would not be the real reason, which would be fear of Kimber, which in turn would transfer Kimber's impermissibly race-based motive to the city. This is presumably what Justice Alito means in suggesting that fear of disparate impact liability was pretextual.
But of course conservatives typically dislike this sort of subjective motive inquiry when conventional civil rights plaintiffs bring suit. Do Justices Alito, Scalia, and Thomas really think that city officials should have to have their depositions taken simply because a rabble-rouser made statements that might have been the basis for a city decision that was (by hypothesis here) otherwise objectively grounded? The opinion they joined (in another 5-4 decision with just this lineup) in Iqbal v. Ashcroft (discussed by me here, here and here) strongly suggests otherwise.
Posted by Mike Dorf