NOS.

07-1428, 08-328
In the
Supreme Court of the United States
________________
FRANK RICCI, MICHAEL BLATCHLEY, GREG BOIVIN, GARY
CARBONE, MICHAEL CHRISTOFORO, RYAN DIVITO, STEVEN
DURAND, WILLIAM GAMBARDELLA, BRIAN JOOSS, JAMES
KOTTAGE, MATTHEW MARCARELLI, THOMAS J. MICHAELS,
SEAN PATTON, CHRISTOPHER PARKER, EDWARD RIORDAN,
KEVIN ROXBEE, TIMOTHY SCANLON, BENJAMIN VARGAS,
JOHN VENDETTO AND MARK VENDETTO,
Plaintiffs-Appellants,
V.
JOHN DESTAFANO, KAREN DUBOIS-WALTON, THOMAS UDE
JR., TINA BURGETT, BOISE KIMBER, MALCOM WEBER, ZELMA
TIRADO AND CITY OF NEW HAVEN,
Defendants-Appellees.
On Writ of Certiorari to the
United States Court of Appeals
for the Second Circuit
________________
BRIEF OF THE NATIONAL ASSOCIATION OF POLICE
ORGANIZATIONS AS AMICUS CURIAE IN SUPPORT OF
PETITIONERS

WILLIAM J. JOHNSON SCOTT M. ABELES

NATIONAL ASSOCIATIONS OF Counsel of Record
POLICE ORGANIZATIONS, INC. COLIN R. KASS
317 South Patrick Street KIRKLAND & ELLIS LLP
Alexandria, VA 22314 655 Fifteenth Street, N.W.
Washington, D.C. 20005

Attorneys for National

Association of Police
Organizations
February 26, 2009
 i

QUESTIONS PRESENTED
1. Can a court exonerate a local government’s
concededly race-based decision to decline to
certify civil service exam results without
subjecting the decision to strict scrutiny?
2. Can a local government’s conceded racial
balancing survive strict scrutiny where its only
claimed justifications are its three-fold desire to
avoid (i) public criticism, (ii) Title VI lawsuits
brought by minorities, and (iii) a lack of statistical
racial diversity?
 ii

TABLE OF CONTENTS

I. The Lower Court Erred By Drawing A Non-

Existent Distinction Between The Board’s
Race-Based Decisionmaking And
Condemnable Discrimination. ............................. 6
II. The Board’s Actions Cannot Withstand
Strict Scrutiny. ................................................... 15
III. The Decision Below Undermines The
Public Interest In Cohesion, Retention, and
Recruitment In The Public Safety Sector.......... 27
 iii

TABLE OF AUTHORITIES

Page(s)

Cases
Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) ...................................... passim
Biondo v. City of Chicago,
382 F.3d 680 (7th Cir. 2004) .................................21
City of Richmond v. J.A. Croson,
488 U.S. 469 (1989) ...................................... passim
Gratz v. Bollinger,
539 U.S. 244 (2003) ....................................3, 12, 26
Grutter v. Bollinger,
539 U.S. 306 (2003) ...................................... passim
Hill v. Ross,
183 F.3d 586 (7th Cir. 1999)................................13
J.E.B. v. Alabama,
511 U.S. 127 (1994) ..............................................11
Johnson v. California,
543 U.S. 499 (2005) ......................................6, 9, 13
Johnson v. Transportation Agency, Santa Clara
County, Cal.,
480 U.S. 616 (1987) ..............................................22
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) ..............................................23
Miller v. Johnson,
515 U.S. 900 (1995) ..............................................11
Northeastern Fla. Chapter, Associated Gen.
Contractors of Am. v. Jacksonville,
508 U.S. 656 (1993) ..............................................12
 iv

Parents Involved in Cmty Sch. v. Seattle Sch. Dist.

No. 1,
127 S.Ct. 2738 ........................................................6
Regents of Univ. of Cal. v. Bakke,
438 U.S. 265 (1978) ................................................8
Ricci v. DeStefano,
554 F.Supp.2d 142 (D.Conn. 2006).............. passim
Shelley v. Kraemer,
334 U.S. 1 (1948)..................................................11
Washington v. Davis,
426 U.S. 229 (1976) ..............................................15
Wygant v. Jackson Bd. of Educ.,
476 U.S. 267 (1985) ..................................17, 19, 22

Statutes
42 U.S.C. § 2000e-2(j)................................................23

Other Authorities
A. Bickel, The Morality of Consent
(1975) ....................................................................14
Petition for Writ of Certiorari of
Frank Ricci, et al..................................................29
 1

INTEREST OF AMICI CURIAE1

The National Association of Police Organizations,
Inc. (NAPO) is a coalition of police unions and
associations from across the United States that
serves to advance the interests of America’s law
enforcement officers through legislative and legal
advocacy, political action, and education. Founded in
1978, NAPO is now the strongest unified voice
supporting law enforcement officers in the United
States. NAPO represents more than 2,000 police
unions and associations, 241,000 sworn law
enforcement officers, 11,000 retired officers and more
than 100,000 citizens who share a common
dedication to fair and effective crime control and law
enforcement.
NAPO’s interests in this case are straightforward.
Like the firefighter plaintiffs here, many members of
NAPO work for government entities that utilize civil
service testing in order to determine which law
enforcement officers will be promoted, or be deemed
eligible for promotion. NAPO’s members, and
members of organizations that NAPO represents,
invest countless hours of study as well as personal
funds in order to prepare for civil service exams.
How they fare on those exams impacts their careers,
the well-being of their families, and their personal
pride. NAPO is therefore deeply interested in the

1 Petitioners and respondents have consented to the filing of

this brief in letters on file in the Clerk’s office. Pursuant to S.
Ct. R. 37.6, NAPO states that no counsel for a party authored
this brief in whole or in part, and that no counsel or party made
a monetary contribution intended to fund the preparation or
submission of the brief.
 2

fair and lawful treatment of exam results by

government entities.
In NAPO’s view, to be both fair and lawful, civil
service exam results must be handled free from the
taint of racial politics. All too often, the process of
law enforcement and the satisfaction felt by its
participants are undermined by the injection of race-
based decisionmaking like that which the lower court
conceded was present in this case. This will not do.
NAPO submits this brief of amicus curiae to explain
why the Equal Protection Clause bars a municipality
from punishing successful civil service exam test-
takers on the basis of their skin color, and why to
hold otherwise would do damage to law enforcement
organizations across the country.
 3

INTRODUCTION AND
SUMMARY OF ARGUMENT
Among the clearest of rules emerging from the
last three decades of this Court’s Equal Protection
jurisprudence is that, without exception, “all
governmental uses of race are subject to strict
scrutiny.” See Grutter v. Bollinger, 539 U.S. 306,
326-27 (2003). Once a court determines that racial
considerations have entered into government’s
decisionmaking, there is no room for dawdling. The
court must place the decision under a microscope,
determine if its justification is compelling and its fit
is narrow, and, except in rare circumstances,
condemn the decision to eternity.
The governmental decision at issue here presents
a textbook case of race-based decisionmaking. The
lower court squarely found that the Civil Service
Board’s refusal to certify the exam results was
motivated by the race of those who performed best.
See, e.g., Ricci v. DeStefano, 554 F.Supp.2d 142, 158
(D.Conn. 2006) (“the evidence shows that race was
taken into account in the decision not to certify the
test results.”). Accordingly, “a most searching
examination” calling for “the most exact connection
between justification and classification” was
required. Gratz v. Bollinger, 539 U.S. 244, 270
(2003) (citation omitted).
The lower court, however, did not apply strict
scrutiny. It engaged instead in a roving exploration,
unbound by any identified level of review, seeking
reasons why the Board’s concededly race-based
decision was somehow not discriminatory. In the
lower court’s view, the Board’s racially-motivated
acts were not discriminatory because: (i) after
 4

dumping the results of the race-neutral exams in the

trash (because white applicants did too well), all
test-takers – regardless of race – had to retake the
exams (the “Square One” theory); (ii) the successful
white applicants lost only an opportunity to be
promoted, not a promotion itself (the “No Blood, No
Foul” theory); and (iii) the Board did not display
racial hatred or “animus” toward those it
disadvantaged; instead, it simply wanted to promote
a different mix of skin colors (the “Benign Motives”
theory). As may well be obvious, the Court has never
held that any of these factors immunizes a race-
based decision from strict scrutiny; its decisions
instead hold to the contrary.
The failure to subject the Board’s decision to
strict scrutiny by itself constitutes reversible error.
But the lower court’s decision should also be reversed
because a straightforward application of strict
scrutiny shows the Board’s decision cannot endure.
This Court’s decisions foreclose the argument that
intentional discrimination can be justified by a
desire to avoid an unintentional racial imbalance in
a public employment roster. Purposeful
discrimination is a problem, not a solution.
That problem does not disappear just because the
Board believed that a federal law compelled its
actions. No federal law requires discrimination. The
federal law to which the defendants pledge
allegiance, Title VII, imposes a general rule of non-
discrimination. In any event, regardless of what
Title VII requires, that statute cannot trump a public
employer’s obligations under the Equal Protection
Clause. Nor does a tacked-on diversity rationale
help. The word “diversity” is not a secret password
that, once intoned, entitles a public employer to play
 5

a straight numbers game, the type of which this

Court has consistently rejected.
Finally, it is worth considering the impact of the
racial politicking that inspired the Board’s decision
on our nation’s public safety and law enforcement
officials. The firefighters taking these tests are not
doing so in their capacity as whites, or as blacks, or
as members of any racial group. They are taking
these tests as individual public servants trying to
make a better life for themselves and the members of
their communities. It is government that comes in
later, introduces division into unity, and, in the case
of New Haven, compounds that division by declaring
winners and losers based on race.
New Haven is hardly alone among municipalities
caving in to pressure groups when making public
safety policy and promotion decisions. Given the
unfortunate impact such decisions have on morale,
cohesion, recruitment, and retention, the Court
should hold such decisions to the same standard it
holds other race-based decisions, strict scrutiny.
Under that standard, fears of lawsuits and of bad
press, and misguided views of a law’s requirements,
cannot justify the racial coding, balancing, and
punishment like that found below.
 6

ARGUMENT
I. The Lower Court Erred By Drawing A
Non-Existent Distinction Between The
Board’s Race-Based Decisionmaking And
Condemnable Discrimination.
This Court’s decisions establish that race-based
decisionmaking of every stripe is inherently suspect
and unwaveringly subject to strict scrutiny. See
Grutter, 539 U.S. at 326-327 (“all governmental uses
of race are subject to strict scrutiny”). The Court has
consistently rejected pleas to lower the standard
where the impacted individuals are white, see
Adarand Constructors, Inc. v. Pena, 515 U.S. 200,
222 (1995) (“the Fourteenth Amendment requires
strict scrutiny of all race-based action by state and
local governments”); where race is said to have been
used for “remedial” or “benign” reasons, see Johnson
v. California, 543 U.S. 499, 505 (2005) (“We have
insisted on strict scrutiny in every context, even for
so-called ‘benign’ racial classifications”); and even
where the race-based decision was unambiguously
made to comply with existing federal law. See
Adarand, 515 U.S. at 208 (construction contract
requiring unlawful set-aside drafted in compliance
with federal Transportation statute). Plainly put,
“race-based government decisionmaking is
categorically prohibited unless narrowly tailored to
serve a compelling interest.” Parents Involved in
Cmty Sch. v. Seattle Sch. Dist. No. 1, 127 S.Ct. 2738,
2770 (Thomas, J., concurring) (citing Grutter, 539
U.S. at 326).
Whether the Board engaged in race-based
decisionmaking is not in dispute here. The lower
court found as a matter of fact that it did: “Plaintiffs’
 7

evidence – and defendants’ own arguments – show

that the City’s reasons for advocating non-
certification were related to the racial distribution of
the results.” Ricci, 554 F.Supp.2d at 152. This was
no slip of the tongue or sloppy draftsmanship. As the
court continued, a “jury could infer that the
defendants were motivated by a concern that too
many whites and not enough minorities would be
promoted were the lists to be certified.” Id. Any
such inference by the jury would be well-founded
indeed; after all, “the evidence shows that race was
taken into account in the decision not to certify the
test results.” Id. at 158 (emphasis added).
Taking no heed of the Court’s precedents, the
lower court declined to subject this concededly race-
based decision to strict scrutiny. In doing so, the
court did not claim the favor of any contrary decision
in the Court’s canon; it did not cite to decisions of
this Court at all. It engaged instead in continued
exploration to determine what effect the Board’s
racially-inspired acts had on various racial groups,
analyzing whether the acts drew “racial
classifications” and inflicted “disparate treatment”
on one class or another. Ricci, 554 F.Supp.2d at 161.
Finding no disadvantaged class, it found no
discrimination, purposeful or otherwise, and thus no
need for heightened scrutiny. Id.
To describe the lower court’s methodology is to
condemn it. The first step of a court’s Equal
Protection analysis – identifying whether the
government act should be subjected to strict scrutiny
– ends when the court finds any use of race by
government. See Grutter, 539 U.S. at 326-327 (“all
governmental uses of race are subject to strict
scrutiny”); Adarand, 515 U.S. at 222 (“the
 8

Fourteenth Amendment requires strict scrutiny of all

race-based action by state and local governments”);
Parents Involved, 127 S. Ct. at 2751 (“when the
government distributes burdens or benefits on the
basis of individual racial classifications, that action
is reviewed under strict scrutiny.”). No further
inquiry into the nature of the decision is warranted
before triggering strict scrutiny of the government’s
reasons; if the act is race-based, it must be justified
under a single uniform standard. See Regents of
Univ. of Cal. v. Bakke, 438 U.S. 265, 291 (1978)
(opinion of Powell, J.) (“[r]acial and ethnic
distinctions of any sort are inherently suspect and
thus call for the most exacting judicial
examination.”).
There was, therefore, no warrant for the lower
court’s roving exploration for “racial classifications”
and “disparate treatment” among groups. Nor was
there any need. What the facts of this case show is
that race-based decisions invariably draw classes
and dispense disparate treatment. Here, the Board
took race “into account” in examining its certification
decision; became “concern[ed] that too many whites
and not enough minorities would be promoted;” and
declined to certify given the “racial distribution of
the results.” Id. at 152, 158. What did the Board do
besides divvy the applicants by race and dispense
favor to the “class” it preferred?
Rather than move forward with the next logical
stage of the inquiry – strict scrutiny – the lower
court engaged in a hair-splitting exercise aimed at
distinguishing between the Board’s race-based
decision on the one hand, and discrimination worthy
of scrutiny under the Equal Protection Clause on the
other. In doing so, the lower court deferred to the
 9

Board’s justifications for its decision, without

subjecting the Board to any burden of proof. This
methodology was wrong on several levels.
First, justifications for race-based
decisionmaking, by definition, are reserved for strict
scrutiny; they cannot immunize decisions from that
inquiry. As the Court has explained, “[p]olitical
judgments regarding the necessity for the particular
classification may be weighed in the constitutional
balance …, but the standard of justification will
remain constant.” Adarand, 515 U.S. at 228 (citation
omitted). Second, deference to those justifications, at
any stage of the inquiry, is inappropriate. See id. at
501 (“blind judicial deference to legislative or
executive pronouncements of necessity has no place
in equal protection analysis”). Third, the burden is
always on the race-based decision maker, not its
victim, to justify its actions. See Parents Involved,
127 S.Ct. at 2766 (courts are to place “the burden on
state actors to demonstrate that their race-based
policies are justified” under strict scrutiny) (quoting
Johnson, 543 U.S. at 506, n. 1).
Setting aside the wrong level of scrutiny, the
wrong amount of deference, and the wrong
placement of the burden of proof, the lower court’s
conclusions that the Board’s race-based decision was
non-discriminatory was faulty. The court formulated
three theories for claiming otherwise. None find
support in this Court’s decisions; instead, this
Court’s decisions reject them all.
• The “Square One” Theory.
The lower court observed that “all applicants took
the same test, and the result was the same for all
because the test results were discarded and nobody
 10

was promoted.” Ricci, 554 F. Supp. at 161. In effect,

the court suggested that since the Board’s race-based
decision returned all applicants to “square one,” the
Board conferred no advantage on any “class” of
competitors. Acceptance of this theory, however,
requires the suspension of reality and a vision of
“group rights” this Court has long rejected.
As the court recognized, forty-one applicants took
the Captain’s exam, and the top nine scorers were
white or Hispanic (seven white, two Hispanic). Id. at
145. Based on New Haven’s “Rule of Three,” which
mandates that a civil service position be filled from
among the three individuals who score best on the
exam, the nine top scorers formed the eligible pool
for filling the seven vacant Captain slots. See id. As
for the Lieutenant’s exam, seventy-seven applicants
took the test, and the top ten scorers, to fill eight
vacancies, were white. Had the Board certified the
results, therefore, no black applicants would have
been promoted.
Accordingly, the Board’s refusal to certify the
scores was no harmless act. Returning all test-
takers to square one, including the top scorers
eligible for promotion (who are known and
identifiable people), resulted in the highest scorers
losing their opportunity to fill the vacant slots.
Worse, fifteen individuals (seven would-be Captains
and eight would-be Lieutenants) appear to have lost
more than an opportunity for promotion. They lost
the promotions themselves.
It is from those individuals’ perspective that
discrimination must be analyzed. Whatever merit
there may be to the district court’s position that both
white and black “classes” of applicants were returned
 11

to the starting gate, this Court has long held that

equal protection rights are “guaranteed to the
individual,” and the “rights established are personal
rights.” Shelley v. Kraemer, 334 U.S. 1, 22 (1948)
(emphasis added). Regardless of the “class” to which
he or she belongs, a citizen’s “‘personal rights” must
“be treated with equal dignity.” City of Richmond v.
J.A. Croson, 488 U.S. 469, 493 (1989); Miller v.
Johnson, 515 U.S. 900, 911 (1995) (“[a]t the heart of
the Constitution’s guarantee of equal protection lies
the simple command that the Government must
treat citizens as individuals, not as simply
components of a racial … class.”) (internal citations
and quotation marks omitted). Thus, when the
Board acted from its concern that “too many whites
… would be promoted were the lists to be certified” it
discriminated against those “whites” that passed the
exam but were ordered returned to square one.
Ricci, 554 F.Supp.2d at 152.2
• The “No Blood, No Foul” Theory.
The lower court suggested that “performing well
on the exam does not create an entitlement to
promotion,” implying that a race-based decision must
strip its victim of an “entitlement” in order to be
discriminatory. Id. at 161. While it is true that

2 J.E.B. v. Alabama, 511 U.S. 127, 140 (1994) is on point.

Employing a lower level of scrutiny, the Court held that gender-
based preemptory challenges “cause[] harm” to “the individual
jurors who are wrong-fully excluded from participation in the
judicial process.” Id. (emphasis added). It did so regardless of
the fact that, as the dissent contended, “all groups are subject to
the peremptory challenge” making it “hard to see how any
group is denied equal protection.” Id. at 159 (Scalia, J.,
dissenting) (emphasis added).
 12

some bodies of law require an entitlement or vested

right before a claim may go forward – the law of
takings and of retroactivity come to mind – Equal
Protection is not so stringent: “[t]he ‘injury in fact’ in
an equal protection case … is the denial of equal
treatment resulting from the imposition of the
barrier, not the ultimate inability to obtain the
benefit,” or, as in this case, “the inability to compete
on an equal footing in the bidding process, not the
loss of contract.” Northeastern Fla. Chapter,
Associated Gen. Contractors of Am. v. Jacksonville,
508 U.S. 656, 666 (1993).
The lower court’s vested rights theory has been
repeatedly tested – and roundly rejected – by this
Court. Thus, the Court did not require that Adarand
Constructors show it would have been “the low
bidder on a Government contract” before subjecting
the minority set-aside there to strict scrutiny.
Adarand, 515 U.S. at 211. It did not require the
Gratz plaintiff to show he “‘actually applied’ for
admission as a transfer student” before subjecting
Michigan’s racial scoring system to strict scrutiny,
Gratz, 539 U.S. at 260-61. And it did not require
each of the Parents Involved plaintiffs to prove their
children would necessarily “be denied admission to a
school based on their race” before submitting
Seattle’s program to strict scrutiny. Parents
Involved, 127 S. Ct. at 2751. As the Chief Justice
explained there, “one form of injury under the Equal
Protection Clause is being forced to compete in a
race-based system that may prejudice the plaintiff.”
Id. (citing cases).
New Haven imposed a race-based system that
prejudiced the plaintiffs. Whether it was justified in
doing so is reserved for the strict scrutiny inquiry. It
 13

suffices to say here that while the lower court’s “no-

blood, no foul” theory may find support in
playground games of pick-up basketball, it has no
support in Equal Protection. In that body of law, the
mere placement of a discriminatory “thumb on the
scale” will do. See Hill v. Ross, 183 F.3d 586, 588
(7th Cir. 1999) (Easterbrook, J.) (explaining that
Adarand held that “race may not be employed as a
thumb on the scale” in doling out government favor).
• The “Benign Motives” Theory.
The lower court also refused to apply strict
scrutiny because “[n]othing in the record in this case
suggests that the [defendants] acted ‘because of’
discriminatory animus toward plaintiffs,’” appearing
to require that a race-based decision be driven by
bad motives before it can be labeled discriminatory.
Ricci, 554 F.Supp.2d at 161. The court’s theory
undermines a generation of cases that subject any
and all motives underlying race-based
decisionmaking – good, bad, and ugly – to strict
scrutiny. Moreover, the court failed to recognize
that, even if so-called “benign” motives compelled
the decision, such motives do not automatically save
the decision from condemnation.
As the Court has explained, “[a]bsent searching
judicial inquiry into the justification for … race-
based measures, there is simply no way of
determining what classifications are ‘benign’ or
‘remedial’ and what classifications are in fact
motivated by illegitimate notions of racial inferiority
or simple racial politics.” Croson, 488 U.S. at 493.
The Court has “insisted on strict scrutiny in every
context, even for so-called ‘benign’ racial
classifications.” Johnson, 543 U.S. at 505.
 14

Thus, the lower court’s contention that “plaintiffs

cannot show that defendant’s acted out of an
intentionally discriminatory purpose,” Ricci, 554
F.Supp.2d at 161, was not only (i) premature (as
rendered outside the strict scrutiny analysis), and (ii)
wrongly focused on plaintiff’s proof, see Parents
Involved, 127 S.Ct. at 2766 (placing burden of proof
on defendants), but it was also utterly besides the
point. Parents Involved, 127 S.Ct. at 2774 (Thomas,
J., concurring) (“benign race-based decisionmaking
suffers the same constitutional infirmity as invidious
race-based decisionmaking”).
Finally, it bears emphasis that, even were
“benign” motives justification for declining to employ
strict scrutiny, it is highly questionable that the rule
fashioned by the lower court would apply here. See
Adarand, 515 U.S. at 226 (“‘it may not always be
clear that a so-called preference is in fact benign’”)
(citation omitted). As the lower court noted, a “jury
could infer that the defendants were motivated by a
concern that too many whites and not enough
minorities would be promoted were the lists to be
certified.” Ricci, 554 F.Supp.2d at 152. One interest
to be served, therefore, was the interest in
preventing white test-takers from obtaining the
promotions they had earned because they were white.
This is not a benign interest. This is the antithesis of
a benign interest. See A. Bickel, The Morality of
Consent 133 (1975) (“The lesson of the great
decisions of the Supreme Court and the lesson of
contemporary history have been the same for at least
a generation: discrimination on the basis of race is
illegal, immoral, unconstitutional, inherently wrong,
and destructive of democratic society.”).
* * * *
 15

Because all race-based decisionmaking by

government is subject to strict scrutiny, and because
the lower court failed to subject concededly race-
based decisionmaking to strict scrutiny, the decision
should be reversed.
II. The Board’s Actions Cannot Withstand
Strict Scrutiny.
The fact that the race-based decionmaking at
issue here involved outright racial balancing is
beyond dispute. After the Board looked at the exam
results it decided to start the process anew because
“too many whites” passed and too many blacks failed.
It was a numbers game pure and simple. Whether
this “racial balancing” was made for the odious and
inherently suspect reason of avoiding “political
backlash” or for more benign purposes matters not.
“[O]utright racial balancing” under the Equal
Protection Clause is “patently unconstitutional.”
See Grutter, 539 U.S. at 330.
“At the heart of the Constitution’s guarantee of
equal protection lies the simple command that the
Government must treat citizens as individuals, not
simply as components of racial, religious, sexual or
national class.” Parents Involved, 127 S.Ct. at 2738
(citations omitted). And because “all government
action based on race” necessarily involve “group
classifications,” they must all be “subjected to
detailed judicial inquiry to ensure that the personal
right to equal protection of the laws has not been
infringed.” Grutter, 539 U.S. at 326.
Because the Equal Protection Clause stands as a
bulwark against all forms of state-sponsored racial
discrimination, see Washington v. Davis, 426 U.S.
229, 239 (1976), it makes no difference whether the
 16

State’s actions are malevolent or benevolent. Simple

“assurances of good intentions cannot suffice,”
Croson, 488 U.S. at 500, rather, to pass muster, the
government must prove that its racial
discriminations are “narrowly tailored measures that
further compelling governmental interests.”
Adarand, 515 U.S. at 227.
Here, the Board offered three reasons for its race-
based decision to discard the exam results. First, it
professed a desire to avoid the “public criticism”
stemming from the promotion of white applicants.
Ricci, 554 F.Supp.2d at 162. Second, it wanted to
avoid potential “Title VII lawsuits from minority
applicants that, for political reasons, [it] did not
want to defend.” Id. Third, it claimed a desire to
promote statistical “diversity” within the fire
department. Id.3
The insufficiency of these justifications become
clear when viewed through the lens of this Court’s
prior cases. Because “distinctions between citizens
solely because of their ancestry are by their very
nature odious to a free people whose institutions are
founded upon the doctrine of equality,” to date, this
Court has only “recognized two interests that qualify
as compelling.” See Parents Involved, 127 S.Ct. at
2752, 2767. “The first is the compelling interest of
remedying the effects of past intentional
discrimination.” Id. at 2752. “The second … is the

3 These interests are treated separately from those identified in

the prior section. Section I addressed the theories advanced by
the court for declining to use strict scrutiny. Section II
addresses the interests advanced by the Board that purport to
satisfy strict scrutiny.
 17

interest in diversity,” which to date has only been

deemed compelling in the limited and unique context
of “higher education.” Id. at 2753.
But even these two interests are narrow in scope.
States may not use racially discriminatory measures
to remedy “societal discrimination,” that is,
“discrimination not traceable to its own actions.” Id.
at 2758 (quoting Wygant v. Jackson Bd. of Educ., 476
U.S. 267, 288 (1985) (O’Connor, J., concurring)).
Likewise, “[r]acial balancing is not transformed from
‘patently unconstitutional’ to a compelling state
interest simply by relabeling it ‘racial diversity.’”
Parents Involved, 127 S.Ct. 2738. Instead, whether
diversity is compelling depends on “context” and on
whether the race of the participants is considered as
only one component in the program in which
diversity is sought. Grutter, 539 U.S. at 327, 337.4
There is, therefore, no argument that the
government here is pressing an interest previously
recognized by the Court as compelling. The only
question is whether the interests the government
does put forth are worthy of that company.

4 Although this case can be decided on narrower grounds, some

members of this Court have suggested that the scope of
compelling government interests is even narrower. Justice
Scalia has argued that the “government can never have a
‘compelling interest’ in discriminating on the basis of race in
order to ‘make up’ for past racial discrimination in the opposite
direction,” since “under our Constitution there can be no such
thing as a creditor or debtor race.” See Adarand, 515 U.S. at
239 (Scalia, J., concurring). Similarly, Justice Thomas has
argued that “only those measures the State must take to
provide a bulwark against anarchy, or to prevent violence, will
constitute a ‘pressing public necessity.” Grutter, 539 U.S. at
353 (Thomas, J., concurring in part, dissenting in part).
 18

• The Public Criticism Justification.

The Board’s first reason for scrapping the exam
results was the city’s desire to avoid “public
criticism.” Ricci, 554 F.Supp.2d at 162. Certainly no
case has ever suggested that a state official may
trample upon an individual’s unalienable right – that
“all [people] are created equal” – simply because the
official fears that his name will appear in the
newspapers. Interests such as these are advanced by
hiring better public relations personnel, not by
discrimination. As this Court has recognized, every
race-based government decision reflects the view
that “a politically acceptable burden” can be
“imposed on particular citizens on the basis of race.”
Parents Involved, 127 S.Ct. at 2765. If that view
alone were sufficient to justify state-sponsored
discrimination, nothing would be left of the Equal
Protection clause.
• Compliance With Title VII
Justification.
The Board’s second justification is perhaps more
worthy of discussion, but no more meritorious. The
Board argues that certifying the exam results might
“subject the City to Title VII lawsuits from
minorities that, for political reasons, [it] did not want
to defend.” Ricci, 554 F.Supp.2d at 162 (emphasis
added).
Merely because the Board finds it more politically
palatable to defend this discrimination suit, rather
than discrimination suits brought by minorities, is
hardly compelling. At worst, the desire to avoid
minority litigation by promoting more minorities is
“discrimination for its own sake, forbidden by the
Constitution.” See Croson, 488 U.S. at 496. At best,
 19

that desire reflects an effort to take the path of least

resistance, avoiding the trouble and expense of
litigation by a potentially larger group of individuals.
That is not sufficient. Id. at 508 (“the interest in
avoiding bureaucratic effort” is not a compelling
government interest,” and “‘administrative
convenience’ is not a shibboleth, the mere recitation
of which dictates constitutionality.”).
We acknowledge, however, that – despite what
the lower court found – it may not be the fear of
lawsuits that drove the Board to discriminate, but
the fear of liability. There is no question that, as a
public employer, the City must tread carefully. On
the one hand, it must attempt to “eliminate every
vestige of racial segregation and discrimination;” on
the other, it must “do away with all governmentally
imposed discriminations based on race.” Wygant, 476
U.S. at 277 (citation omitted). But the fact that
these “two interrelated constitutional duties … are
not always harmonious” does not give a public
employer carte blanche to discriminate in favor of
one race and against another. Id.
Rather, a public employer must act “with
extraordinary care” and be prepared to convince a
“trial court” that its chosen course of action was
“necessary” to accomplish its “constitutional duties.”
Id. As this Court has explained, until a judicial
determination of unlawful discrimination has been
made, “an appellate court reviewing a challenge by
nonminority employees … cannot determine whether
the race-based action is justified.” Id. at 278.
No such judicial determination has been made
here. The Board never claimed that its actions were
compelled by the Equal Protection Clause. Nor could
 20

it. At its outer limits, the Equal Protection Clause

permits race-based decision-making to remedy “past
intentional discrimination.” See Parents Involved,
127 S.Ct. 2752. But the record is barren of evidence
that the New Haven Fire Department ever passively
permitted, let alone actively condoned, intentionally
discriminatory employment practices.
Nor can the government argue that it has a
compelling interest in remedying the unintentional
disparate impact the Board claims it would have
caused by certifying the results. While there was a
racial imbalance among the group of passing
applicants, “the Constitution is not violated by racial
imbalance … without more.” Parents Involved, 127
S.Ct. at 2752. There is a “distinction between
segregation by state action and racial imbalance
caused by other factors” that has been “central” to
the Court’s jurisprudence “for generations.” Id. at
2761. If that jurisprudence shows anything, it is
that state action worthy of remedial, race-based
measures must involve intentional racial
discrimination, not color blind actions that merely
have a disparate impact. See id. at 2761 (taking the
dissent to task for failing to recognize the distinction
between “de jure and de facto” segregation).
Unable to point to any constitutional obligation to
discard the exam results, the Board directs its
attention to Title VII. But even if the Board believed
that promoting the highest scoring applicants would
violate Title VII, that is not enough. “The
Constitution and [the Court’s] precedents require
more” than the “good faith” of the state actors who
engage in racial discrimination. Parents Involved,
127 S.Ct. at 2766. Under the two pronged strict
scrutiny test, the Board must establish that (i)
 21

compliance with Title VII is, ipso facto, a compelling

state interest; and (ii) scrapping the test results was
the least restrictive way of complying with Title VII.
The Board can do neither.5
Compliance with Title VI cannot supply a
compelling government interest because a statutory
obligation cannot trump a constitutional command.
The Court made this self-evident observation
“explicit” in Adarand, holding that “[f]ederal racial
classifications, like those of a State,” are not immune
from the strictest scrutiny just because Congress
enacted that classification. Adarand, 515 U.S. at
235. Were it otherwise, the Fourteenth Amendment
would be a nullity. As Judge Easterbrook has
observed, if compliance with governmental
regulations could “supply a compelling governmental
interest in making decisions based on race,” then the
government could “adopt racial quotas” and the
“direction would be self-justifying….Such a circular
process would drain the equal protection clause of
meaning.” Biondo v. City of Chicago, 382 F.3d 680,
684 (7th Cir. 2004) (rejecting argument that Title VII
supplied a justification for the Chicago Fire
Department’s affirmative action plan).6

5 It should be noted that the Board is not claiming that

compliance with Title VII would serve a compelling government
interest; the board is claiming that compliance with Title VII is
itself a compelling government interest.
6 Nor is it relevant that the Board is a local government entity,
compelled to comply with Title VII. If “blind judicial deference
to legislative or executive pronouncements of necessity has no
place in equal protection analysis” when scrutinizing a federal
actor’s compliance with federal law, see Croson, 488 U.S. at 501,
 22

Using a federal law to justify intentional racial

discrimination, irrespective of whether that law
serves a compelling governmental interest, is
problematic enough. Allowing Title VII to do so is
even worse, because this would wipe out the critical
constitutional distinction between public and private
employers. This Court has “always … employed a
more stringent standard … to test the validity of the
means chosen by a State to accomplish its race-
conscious purposes,” than those chosen by private
actors to comply with their obligations under Title
VII. Wygant, 476 U.S. at 279 (emphasis added). It is
for this reason that “public employers must
[separately] justify the adoption and implementation
of a voluntary affirmative action plan under the
Equal Protection Clause,” irrespective of what Title
VII may allow or purport to dictate. Johnson v.
Transportation Agency, Santa Clara County, Cal.,
480 U.S. 616, 620 n. 2 (1987) (rejecting argument
that Title VII and the Equal Protection Clause are
“coterminous.”).
The dangers of allowing Title VII to supplant
Equal Protection analysis is evident. Title VII is
economic legislation, “enacted pursuant to the
commerce power to regulate purely private decision-
making and … [is] not intended to incorporate and
particularize the commands of the Fifth and
Fourteenth Amendments.” Johnson, 480 U.S. at 628
n. 6. As such, no matter how legitimate the interests
served by Title VII, because it is not limited to
remedying past governmental discrimination or

then such deference also has no place when scrutinizing a State

actor’s compliance with that same law.
 23

promoting diversity, it is not confined to serving

“compelling governmental interests.” It is broader in
reach and sanctions more race-conscious actions, at
least by private parties, than has been permitted by
public employers under this Court’s prior decisions.
Nothing in this Court’s prior cases suggests the
Title VII was meant to loosen the restrictions against
state-sanctioned discrimination. Rather, as
Transportation Agency makes clear, the obligation of
a public employer under Title VII was only “intended
to extend as far as” the Constitution allows, not
farther. Id. This is as it should be. To hold
otherwise would only postpone the day when race
will no longer be a factor in governmental hiring
decisions. Parents Involved, 127 S.Ct. at 2768 (“The
way to stop discrimination on the basis of race is to
stop discriminating on the basis of race.”).
The Board’s “Title VII made me do it” theory,
therefore, fails the first prong of the strict scrutiny
test. It also fails the second. Certainly, nothing in
Title VII requires a state or local government to
engage in intentional racial discrimination. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792,
801(1973) (“it is abundantly clear that Title VII
tolerates no racial discrimination, subtle or
otherwise”). To the contrary, Congress made it clear
that an employer’s desire to mitigate or avoid a
disparate impact does not justify preferential
treatment for any group. See 42 U.S.C. § 2000e-2(j).
Because the Board cannot show that certification of
the exam results would violate Title VII, its decision
not to certify the results was not narrowly tailored to
comply with Title VII.
 24

• Racial Diversity Justification.

The Board’s third reason for discarding the exam
results is its claim that promoting off of this list
would “undermine [its] goal of diversity.” Ricci, 554
F.Supp.2d at 162. In the Board’s view, too few
minorities passed the test to ensure that the pool of
supervisors reflects the same racial mix as the pool
of pre-test applicants. But the Board’s desire to have
more black supervisors, “for no reason other than
their race or ethnic origin,” is not merely
insufficiently compelling to justify racial
classifications, it was “discrimination for its own
sake, forbidden by the Constitution.” Parents
Involved, 127 S.Ct. at 2779 (quoting Bakke, 438 U.S.
at 307 (Powell, J.)).
Invocation of the buzzword “diversity” cannot
hide the fact that the Board was really playing a
numbers game. The Board is only the latest of many
state actors to raise the diversity umbrella since the
Court first recognized that, in limited circumstances,
diversity can provide a state with the compelling
interest necessary to justify racial discrimination.
But in Parents Involved, this Court exposed that
ploy and put a definitive end to it. “Racial balancing
is not transformed from ‘patently unconstitutional’ to
a compelling state interest simply by re-labeling it
‘racial diversity.’” 127 S.Ct. at 2758. Put simply,
“racial balance … itself cannot be the goal, whether
labeled ‘racial diversity’ or anything else.” Id. at
2759. Because the “Equal Protection Clause protects
persons, not groups,” id. at 2765, any interest in
promoting diversity must focus on “each applicant as
an individual, not simply as a member of a
 25

particular group.” Id. at 2753 (citing Grutter, 539

U.S. at 326) (emphasis added).
Here, the Board, like the lower court, did not
focus on the successful promotion applicants as
individuals. It scrapped the test results because “too
many whites” and “not enough minorities” had
passed. Ricci, 554 F.Supp.2d at 152. Its decision to
reject the results was, therefore, “tied to … racial
demographics, rather than any pedagogic concept of
the level of diversity needed to obtain” specific,
clearly articulated benefits in the workplace.
Parents Involved, 127 S.Ct. at 2743.
The Board never identified just what would be
compelling about its insistence on a more racially
diverse group of supervisors. Certainly it never
suggested that a different racial mix of supervisors
would lead to faster response times, better service, or
more efficient operations. At most, the Board
speculated that promoting minorities because of
their race, rather than because of their
qualifications, would provide better “managerial role
models for aspiring firefighters.” Ricci, 554
F.Supp.2d at 162. But this just perpetuates the
myth that the only role models an “aspiring
firefighter” looks up to are those with the same color
skin, and not those who have worked hard and
excelled at their jobs. The myth itself “demeans the
dignity and worth” of every applicant and aspiring
firefighter because it judges them “by ancestry
instead of [their] own merit and essential qualities.”
Parents Involved, 127 S.Ct. at 2767.
Nor did the Board conduct the type of “holistic
review” that Grutter held could justify the use of race
to advance diversity in a different context. Grutter,
 26

539 U.S. at 337. The Board did not look at the

individual applicants who passed the City’s exam
and conclude that, aside from their skin color, they
might otherwise contribute to a diverse workplace
by, for example, examining their background,
upbringing, education, interests, or otherwise. The
Board never presented any evidence that a different
crop of applicants would better serve the community.
It simply decided that there were too few minorities
and too many whites.
This is exactly the type of “non-individualized,
mechanical” race-based decision-making that offends
the Constitution. Parents Involved, 127 S.Ct. at 2754
(quoting Gratz, 539 U.S. at 276 (O’Connor, J.,
concurring)). As this Court explained, “this working
backward to achieve a particular type of racial
balance, rather than working forward from some
demonstration of the level of diversity that provides
the purported benefits, is a fatal flaw under our
existing precedent.” Id. at 2758.7

7 Because the Board’s diversity rationale was synonymous with

“patently unconstitutional” racial balancing, the Board has yet
to identify a “compelling governmental interest” to justify its
actions. Thus, there is no need to determine whether the
Board’s actions were “narrowly tailored” to achieve its goals.
Likewise, because the Board has failed to articulate a
compelling interest, there is no merit to the Board’s argument
that discarding the exam results was a necessary first step in
achieving its as-yet-unidentified objectives. In any event, it
should be noted that the Board did not consider any less
restrictive or non-racial alternatives to achieve such
unarticulated interests. Croson, 488 U.S. at 507.
 27

III. The Decision Below Undermines The

Public Interest In Cohesion, Retention,
and Recruitment In The Public Safety
Sector
The foregoing sections of this Brief explain why,
as a legal matter, the Court’s most searching
requirements for government’s race-based
decisionmaking should apply. But NAPO also
believes it is important for the Court to understand
why, as a practical matter, the Court should hold the
type of decisionmaking here to the strictest of
standards. The police departments, officers, and
unions represented by NAPO, just like the fire
departments and firefighters at issue here, must of
course live with and abide by this Court’s decisions
and the impact they have on them as brothers and
sisters-in-arms in the quest for public safety. The
Court, NAPO respectfully believes, should therefore
take heed of just what that impact is before issuing
its decision.
The racial politics injected far too frequently into
the daily lives of public safety officers comes most
often not from the officers themselves – who are, in
the main, effectively colorblind – but rather from the
outside. Those outside sources, often agenda-driven
activists or over-ambitious politicians, can contribute
to a toxic atmosphere in which the paramount duty
of safety and justice risks being crowded out by race-
based fear-mongering. The racial politicking
described by the plaintiffs here, and acknowledged
by the district court, is exceedingly familiar to NAPO
and its constituents. No police or fire department of
modest or greater size is immune from the corrosive
impact of racial politics. Not a single one would
claim that racial politics enhance a department’s
 28

ability to solve crimes or fight fires; indeed,

frequently the opposite is true.
None of this is to say that issues of equality,
opportunity, and diversity are not important to
NAPO and its friends in the public safety arena. To
the contrary, police and fire departments have been
among America’s leaders in offering members of
minority groups opportunities to join their
organizations and advance according to their
abilities. Nor does NAPO suggest that the historic
mistreatment of some minority groups by
governments and their agents have left no
continuing legacy. NAPO’s constituents simply
believe that the best way to do the jobs required of
them in service of the citizenry, and to address these
legacy issues, is to insist that, to the fullest extent
permitted by law, public safety organizations operate
as strict meritocracies.
Such meritocracies contribute to two of the more
important factors in a public safety work
environment: camaraderie and fairness. Among
crime-fighters and firefighters, the importance of
camaraderie can hardly be overstated; when lives
are at stake, the trust and respect bred by
camaraderie directly affects one’s ability to persevere
through the most difficult of circumstances. That
camaraderie is undermined when officers are made
to feel like members of a race, rather than members
of a team.
While camaraderie largely applies to the
relationship among fellow officers, fairness primarily
applies to the relationship between officers and
supervisors. The impact of race-based promotion
decisions does not end when the Board votes; officers
 29

and supervisors must live and cope with these

decisions in their station houses. In addition to
impacting “life in the house,” fairness issues directly
influence NAPO’s constituents’ ability to recruit and
retain the best personnel. If recruits and current
officers understand that they are entering or
working within a world in which they will be judged
based on their abilities and their continuing
acquisition of skills and knowledge, they will find
public service a worthy investment of their time and
sweat. If, however, they are forced to contend with
the implications of non-meritorious factors like the
color of their skin, their gender, or other irrelevant
characteristics in their pursuit of advancement, they
may understandably consider other career
opportunities.
The facts of this case provide a cautionary tale for
the potential of racial politics to inflict a deleterious
impact on a department’s recruitment and retention.
Consider the example of Plaintiff Michael Marcarelli,
a notoriously high-achiever who finished first on the
Captain’s exam. See Pet. for Writ of Cert. of Frank
Ricci, et. al, at 39-40. Mr. Marcarelli, described as
having “extraordinary credentials, education, and
experience,” is precisely the kind of person every
police and fire organization wants to recruit and
cultivate. See id. at 40. The Board’s decision to deny
him his promotion, solely because he is white, can
impose a destructive impact on New Haven’s ability
to keep this particular Mr. Marcarelli, and other
municipalities’ ability to attract and retain Mr.
Marcarelli’s of their own.
Consider also the example of Plaintiff Frank
Ricci. The costs to Mr. Ricci in taking one of the civil
service exams were “8 to 13 hours a day” of study
 30

and more than “$1,000 in funds,” incurred in no

small part because Mr. Ricci is dyslexic and needed
to pay someone to read the study materials onto
tape. Ricci, 530 F.3d at 104. Mr. Ricci also passed
the test, but could not overcome his other
“disability”: his skin color. Again, NAPO’s members
want the Mr. Ricci’s of the world – whether they are
learning impaired in some manner, or perhaps come
from a background in which formal, advanced
education was not an option – to join its
departments, to work hard, and to go as far as their
talents will take them. Their incentives for doing so,
however, are undermined by race-based decisions
like the one at issue here.
Particularly in this new day in which our new
President was launched on the national scene by
declaring “[t]here is not a Black America and a
White America and Latino America and Asian
America – there’s the United States of America,”
NAPO and its partners in law enforcement look
forward to a time in which people are not “black”
police officers or “white” officers, or “black”
firefighters or “white” firefighters. But when they
are just police officers. And firefighters. United in
pursuit of the betterment of our innumerable
communities, free from the corrosive impact of racial
politicking. A decision striking a blow against such
corrosion will help make that ideal a reality.
 31

CONCLUSION
For the foregoing reasons, the Court should
reverse the judgment of the Court of Appeals.

Respectfully submitted,

WILLIAM J. JOHNSON SCOTT M. ABELES

NATIONAL ASSOCIATIONS Counsel of Record
OF POLICE COLIN R. KASS
ORGANIZATIONS, INC. KIRKLAND & ELLIS LLP
317 South Patrick Street 655 Fifteenth Street, N.W.
Alexandria, VA 22314 Washington, D.C. 20005

Attorneys for National

Association of Police
Organizations
February 26, 2009