"It Is a Sordid Business, This Divvying Us Up by Race"

Yesterday Cato filed a brief in what will be one of the most talked-about cases in the current Supeme Court term, Ricci v. DeStefano.

In Ricci, the City of New Haven, Connecticut developed an exam for firefighters seeking promotion to command positions. The City went out of its way to ensure that the exam was race-neutral and tested only relevant skills and abilities. When the exam results came down, however, white candidates had done better than their African-American and Hispanic peers. Given the few command positions available and the City's rule that the highest scorers on an exam be promoted first, few minority firefighters would thus have been eligible for promotion. After a series of meetings and political machinations, the City refused to certify the results of the exam and promote anyone. Several of the firefighters who would have been eligible for promotion filed a lawsuit, claiming racial discrimination under Title VII.

The district court, affirmed by the court of appeals, granted summary judgment for the defendants, holding that the City's alleged fear of an adverse impact claim (a different type of racial discrimination claim under Title VII) -- based merely on the fact that the exam results yielded a racial disparity -- was a legitimate reason for its decision not to certify the exams.

Cato's brief, joined by Reason Foundation and the Individual Rights Foundation, points out the absurd incentives at play: if the lower court's ruling stands, employers will throw out the results of exams (or other criteria) that produce racial disparity, even if those exams are race-neutral, entirely valid, and extremely important to the employer and (as in this case) the public.

The Case will be argued April 22.

[Cross-posted at Cato's blog.]

No Taxation Without Representation? Ok, I'll Take the No Taxation

The Senate is taking up, and looks ready to pass, legislation granting the District of Columbia full representation in the House of Representatives. And the bill is co-sponsored by Utah's Orrin Hatch, whose state would also get one additional House member -- but only until 2012, when the new census will again reapportion representatives nationwide.

The problem (setting aside the cheap politics of adding one safe seat for each party) is that the DC Voting Rights Act is facially unconstitutional. The plain text of Article I limits representation in Congress to voters residing in "states" -- a species of jurisdiction which the District of Columbia is not. Now, this simple legal fact does not affect the moral argument that the voices of D.C. residents should resound in Congress no less than those of their fellow citizens of the several states. To remedy this historical accident -- the Founders did not conceive that anyone would live permanently in the federal district, because the government was not supposed to grow this large -- we have two constitutional options:

1) A constitutional amendment -- like the 23rd Amendment, which in 1961 (yes, only that recently!) gave D.C. presidential electors, and without which it would be unconstitutional for D.C. residents to cast votes for president; or

2) Retrocession to Maryland -- akin to the part of the original District that was returned to Virginia, all but the land under the Congress, White House, and certain other federal buildings could rejoin Maryland, and the people living there would then be counted toward that state's congressional delegation (and be represented by Maryland's two senators).

Better yet, if the political rallying cry for the D.C. Voting rights movement is "no taxation without representation," then I suggest that we focus on the first part of the equation and cease federal taxation of D.C. residents. Regardless of the optimal solution, however, the course that Congress has chosen simply will not fly if we take the Constitution seriously.

[Cross-posted at Cato's blog.]

As the Supreme Court takes a winter break and the Obama team gets settled in at the DOJ, I’ll be on the road giving speeches and debating several of the most pertinent legal topics facing the incoming administration. Here’s the schedule for my upcoming trip to California and Hawaii, which starts tomorrow. All events are open to the public (though the non-law school events typically charge admission):

• University of San Diego Law School (Warren Hall Rm. 133), February 4 at 12pm — “Judicial Nominations: What’s Gone Wrong and Can It Be Fixed?”
  
• University of San Francisco Law School (Kendrick Hall Rm. 101), February 5 at 12:30pm – ”What Can We Expect from the Obama Administration on Judicial Appointments?”
  
• North Coast Federalist Society Lawyers Chapter (904 MacDonald Ave., Santa Rosa), February 5 at 7pm – “Libel Tourism: The Next Front in the War on Terror”
  
• Princeton Club of N. California (Gordon & Rees, Embarcadero Ctr., SF), February 6 at 12pm — “How I Spent My Summer Vacation: Rule of Law in Iraq”
  
• Stanford University Law School (Rm. 95), February 9 at 12:45pm — “What Role Should Foreign Law Play in U.S. Constitutional Interpretation?”
  
• SF Federalist Society Lawyers Chapter (Harrington’s, 245 Front St.), February 9 at 5:45 pm– ”What Role Should Foreign Law Play in U.S. Constitutional Interpretation?”
  
• Santa Clara University Law School (Bannan Hall), February 10 at 11:45am — “What Can We Expect from the Obama Administration on Judicial Appointments?”
  
• University of Hawaii Law School (Rm. 1 or 2), February 12, 2009 at 12:45pm – “Race-Based Government in Paradise? Hawaii v. OHA“

If you come to one of these events because you learned of it from this blog post, please come up and introduce yourself.

[Cross-posted at Cato's blog.]