Re: Frank Ricci

I would note that Roger Clegg’s Center for Equal Opportunity made this argument to the Court in its amicus brief:

Thus, even if “avoiding disparate impact liability” were the sole motivation for defendants’ decision here[ to discard Ricci’s test results]. . . it would not be sufficient for defendants simply to show that they had a good faith belief that they might be sued, or even that they might be liable. To prevent such a defense from eroding Title VII’s core prohibition against intentional discrimination, defendants should be required to show a strong evidentiary basis for such a belief, much as they have to do under the Equal Protection Clause.

The Court agreed with this argument.

One other note: not even the dissenters would have affirmed the Second Circuit’s “decision.” In that regard the Court repudiated not merely the decision but the jurisprudence — unanimously — of the judge who may be a new colleague.