United States Supreme Court Set to Rule on the Biggest Testing Case Since Griggs v. Duke Power

By Dan A. Biddle, Ph.D
CEO, Biddle Consulting Group

On April 22, 2009, the U.S. Supreme Court (USSC) heard the oral arguments offered by each side in the Ricci v. Destefano testing case. In this case, 18 candidates (17 Whites and 1 Hispanic), who successfully passed two exams for promotion to Lieutenant and Captain positions, are suing the City of New Haven, Connecticut for refusing to certify the exams and make the promotions because the tests had adverse impact (whites scored higher than African-Americans) and were not justifiably valid. The plaintiffs argued that their rights under Title VII and the 14th Amendment Equal Protection Clause were violated.

As with every case that reaches the USSC, this case had a complex history. In the original case, the federal district court granted the defendants’ motion for summary judgment. On appeal, the United States Court of Appeals for the Second Circuit affirmed the lower court’s ruling, reasoning that the City, by refusing to certify the results of the promotional exam, was trying to fulfill its obligations under Title VII (by not moving forward with an invalid test that had adverse impact), and was therefore protected in its actions. By agreeing to hear the case, the USSC is now charged with the difficult task of deciding whether a City can throw out the results of an exam process that they believed (based on a post-administration validity review) would not survive a Title VII validation challenge.

Other critical questions to which the USSC may frame answers include: (1) Do candidates who take a test for a public sector job have a right to expect that the public entity will develop and implement validated selection procedures, regardless of adverse impact? And (2) Will the USSC take this opportunity to redefine “professionally developed tests” as defined in the 8-0 USSC Griggs v. Duke Power Company (401 US 424, 1971) case and allow any test if it is developed professionally to stand regardless of its validity?

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