James Bushey v. New York State Civil Service Commission

1985-02-25

Headline: State’s race-based boost of minority civil-service exam scores left intact as Court refuses review, keeping nonminority candidates bumped and leaving public affirmative-action questions unsettled.

Holding: The petition for review was denied, leaving the appeals court’s approval of New York’s race-conscious score adjustments in place while broader constitutional questions remain unresolved.

Real World Impact:

Leaves appeals court ruling allowing state score adjustments in place.
Nonminority applicants can be bumped down ranking by race-based score changes.
Keeps national question about public-employer affirmative action unresolved.

Topics: employment testing, race and hiring, affirmative action, state employers

Summary

Background

Several nonminority applicants challenged New York State’s decision to raise minority candidates’ scores on a Correction Captain exam after reviewing pass rates. The test given to 275 people produced a 25% pass rate for minority candidates and a 48% pass rate for nonminority candidates. The State applied a separate scoring curve for minorities so that the minority mean matched the nonminority mean, which added eight minority passers and put a minority candidate at the top of the list. The applicants sued under the federal anti-discrimination law (Title VII) and the Fourteenth Amendment; a district court sided with the applicants, but the Court of Appeals reversed.

Reasoning

The main question was whether a state agency may unilaterally adopt race-conscious steps to correct statistical disparities without a prior judicial finding that discrimination occurred. The Second Circuit relied on EEOC guidelines and on prior rulings about voluntary affirmative action to allow the State’s score adjustments, while the district court had faulted the State for not first showing a job-related problem with the test. The Supreme Court denied review of the appeals court decision, so the appeals court ruling stands in this case. Justice Rehnquist dissented from denial, urging the Court to decide whether public employers can use race-based preferences without constitutional or judicial authorization.

Real world impact

Because the Court refused to hear the case, the appeals court’s allowance of the State’s race-conscious score adjustments remains in effect for these parties. Nonminority candidates who lose ranking because of similar adjustments may face the same outcome in that circuit. The national constitutional question about when state employers may take voluntary race-based steps remains unresolved.

Dissents or concurrances

Justice Rehnquist, joined by the Chief Justice and Justice White, wrote that the Court should have granted review to decide whether the Fourteenth Amendment permits a state agency to install race-based preferences absent a judicial or statutory finding of discrimination.