Law School's Supreme Court Litigation Clinic files amicus brief in firefighter employment discrimination case
On March 25, the Law School’s Supreme Court Litigation Clinic filed an amicus curiae brief in Ricci v. DeStefano, to be heard by the High Court in April. Samuel Estreicher, Dwight D. Opperman Professor of Law, is counsel of record on the brief.
The case involves an examination given in 2003 by the New Haven Fire Department to test for promotions to open lieutenant and captain positions. No African-Americans scored well enough on the test to merit a promotion, and the city subsequently threw out the results. Seventeen white firefighters and one Hispanic firefighter sued, claiming that they were denied promotions as a result of the test being discarded. The city responded that the examinations may have been fundamentally unfair to minorities and that it had to discard the results because the test appeared to violate Title VII, which prohibits discrimination against a particular group.
Both the U.S. District Court for the District of Connecticut and a three-judge panel of the U.S. Court of Appeals for the Second Circuit concluded that city officials acted within the law when they discarded the test results. They were simply trying to fulfill their obligations under anti-discrimination laws when confronted with test results that produced a disproportionate racial impact, the Second Circuit panel wrote. After a rehearing by the full circuit was denied by a vote of 7-6, the Supreme Court granted review.
The clinic’s brief, filed on behalf of the Society for Human Resource Management, the world’s largest association devoted to human resource management, supports the city’s position. The brief argues that there is no basis for finding that an employer violates Title VII when it refuses to certify test results having an undisputed disparate impact. According to the brief, monitoring for disparate impact and consideration of alternative approaches with lesser disparate impact, are expected, if not required by the Equal Opportunity Employment Commission and reflect responsible employer behavior, not a race-conscious violation of Title VII.
The clinic, a joint project of NYU Law and Jones Day, represents clients pro bono before the Supreme Court. The clinic is directed by Estreicher and by Jones Day appellate specialists Donald Ayer and Meir Feder.
Students participate in the clinic for a full year. In addition to drafting briefs for the clinic's litigation matters, students spend class time learning about the Court as an institution, the certiorari process, approaches to brief writing and oral argument, and other aspects of appellate litigation. Students also have the opportunity to do moot arguments themselves, and they attend and comment on moot courts conducted by the clinic for advocates with upcoming arguments before the Supreme Court.