Ricci’s Dicta: Signaling A New Standard for Affirmative Action Under Title VII?

Abstract

The standard for voluntary affirmative action' under Title VII has been in question in recent years. The last United States Supreme Court opinion to directly address the matter is over twenty years old, and the Court's composition has changed since then. In the years since the last Title VII affirmative action opinion in 1987, Congress has passed the Civil Rights Act of 1991, and the constitutional standard for voluntary affirmative action has been addressed by the Court no fewer than five times. The constitutional standard had been crafted by Justice Sandra Day O'Connor; but with her retirement, both the constitutional (Fourteenth Amendment) and the statutory (Title VII) standards for affirmative action have again been obscured.

A recent case, Ricci v. DeStefano, although primarily a Title VII disparate treatment case, nonetheless contains dicta that sheds some light on the Court's thinking about Title VII affirmative action. Commentators trying to make sense of the Supreme Court's confusing decision in the case have debated whether it spells doom for affirmative action or whether, as Professor Charles Sullivan puts it with respect to disparate impact theory, reports of the death of affirmative action as a result of Ricci might be exaggerated. Professor Corrada agrees with those scholars who see Ricci as having left the door ajar for affirmative action plans under both constitutional and statutory standards, but for reasons on which other scholars have not focused.