New York Law School

Author Archive

Endangering Title VII

On June 29, 2009, the last day of the United States Supreme Court’s 2008–09 term, the Court rendered the much anticipated decision in Ricci v. DeStefano, 129 S. Ct. 2658, 174 L. Ed. 2d 490 (2009). Ricci was quickly dubbed the “white firefighter’s case” by many, however, the case involved much more than the firefighters’ asserted right to a promotion.

Ricci involved a promotional examination administered by New Haven, Connecticut to members of the New Haven Fire Department to identify those applicants who merited promotions. Knowing that promotional examinations have historically had a disparate-impact on minorities, the City hired a professional testing firm, Industrial/Organizational Solutions Inc. (“IOS”) to develop a racially-neutral exam. When the results of the examination were released the City realized that its efforts to ensure impartiality were not realized, as the results demonstrated stark racial disparities. Specifically, no African-American candidate did well enough on the exam to qualify for a promotion and only two Hispanic candidates were eligible for a promotion based on their score. After careful consideration, including numerous hearings by the New Haven Civil Service Board, the City decided not to certify the results of the examination for fear that they would be sued by minority test takers because of the disparate impact of the examinations and the existence of less discriminatory alternatives to identify promotion candidates. The City immediately went back to the drawing board to develop a testing mechanism that would not produce such adverse results. Read more

Barrier to the Ballot

The right to vote is a fundamental right that goes to the core of an individual’s liberty. A right so sacred that it is protected by both the 15th Amendment and the Voting Rights Act of 1954. Earlier this year, the Supreme Court had occasion to rule on a new voting restriction in Crawford v. Marion County Election Board, 128 S. Ct. 1610, 170 L. Ed. 2d 574 (2008). In 2005, the Indiana legislature passed Indiana’s Senate Enrolled Act No. 483, (“the Act”) which requires voters to present identification prior to casting a ballot. Persons living and voting in a state-licensed facility, such as a nursing home, are exempt from the statute’s identification requirement. The Act also provides an exemption for those who have a religious objection to being photographed and those who are indigent. These persons are allowed to submit provisional ballots, which are counted if the voter executes an appropriate affidavit before the circuit court clerk within ten days following the election. Those who possess valid identification but are unable to present it when voting may also file a provisional ballot. The provisional ballot is only counted if the voter presents identification to the circuit court clerk within ten days of the election. Read more