PER CURIAM:
We withdraw our Summary Order of February 15, 2008. Ricci v. DeStefano, 2008 U.S.
App. LEXIS 3293, 2008 WL 410436 (2d Cir. Feb. 15, 2008).
Plaintiffs appeal from a judgment of the United States District Court for the District of
Connecticut (Arterton, J.) granting the defendants’ motion for summary judgment on all counts.
We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion
of the court below. Ricci v. DeStefano, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D.
Conn., Sept. 28, 2006). In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to
validate the exams, was simply trying to fulfill its obligations under Title VII when confronted
with test results that had a disproportionate racial impact, its actions were protected.
CONCLUSION
The judgment of the district court is AFFIRMED.
(Emphasis supplied.) Ricci is an act of judicial restraint. The Second Circuit panel, which included Judge Sonia Sotomayor, deferred to a decision of the elected officials of the City of New Haven. Whether the decision was correct or incorrect, it was decidedly the opposite of judicial activism.
In discussing the issue of empathy, Dahlia Lithwick and Doug Kendall wrote:
Pity poor Frank Ricci. You probably already do. Ricci is a white firefighter from New Haven, Conn., who is the plaintiff in an important civil rights case before the Supreme Court this term. Ricci suffers from dyslexia, which made passing a written exam established by New Haven for promotion to lieutenant especially challenging for him. . . . What does Ricci's dyslexia have to do with the law? Very little, actually. The city of New Haven threw out the results of the test he took because it feared that the examination was discriminatory. . . . Regardless of how you and I may feel about Frank Ricci or how much he deserved to be promoted, discriminatory results like that can run afoul of Title VII of the Civil Rights Act of 1964. And in this case the results of the test far exceeded the statistical cutoff that suggests a constitutional violation has occurred.
. . . We have heard a great deal this week from the right about the stomach-churning evils of empathy. . . [C]onservatives have in fact been playing the empathy card a lot more effectively than progressives in recent years.
. . . When Chief Justice John Roberts battled for the rights of white schoolchildren facing arduous bus trips and educational hardship due to school integration programs in Seattle and Kentucky, he was evincing empathy for the white "victims" of affirmative action. It's a patent falsehood that liberal judges weep and bleed for their plaintiffs while conservative jurists treat plaintiffs with stony indifference. . . The notion that conservative jurists follow the law while liberal jurists emote wildly from the bench is just another political story. And repetition doesn't make it any truer. The best judges combine empathy with adherence to the rule of law. Given that both liberals and conservatives have long sought to benefit from that fact, isn't it high time we were all honest enough to admit it?
(Emphasis supplied.) Another falsehood that is perpetrated is the idea that conservatives are for "judicial restraint" while liberals support "judicial activism." Chief Justice Roberts has become the leading practitioner of judicial activism on the Court. And the much maligned Ricci court was engaged in judicial restraint. The correctness of the results in these cases can be debated. That the Seattle case was judicial activism and that the Ricci decision was judicial restraint can not be debated.
Time for the truth on these matters.
Speaking for me only
