Supreme Court ducked the issue

The case had drama written all over it: racially charged facts, major legal questions and an opportunity for the court to review and comment on a controversial lower court decision by Judge Sonia Sotomayor, now President Barack Obama's nominee to the Supreme Court.

But even though the court was sharply divided in its decision, it mostly sidestepped the drama by ruling on narrow grounds.

And that's a problem. In ducking the broader issues and avoiding public criticism, the court provided little guidance to state governments and lower courts on how to comply with the law in the future.

The facts of Ricci are straightforward. New Haven decided to throw out the results of a firefighter promotion test when it became apparent that no African-Americans scored high enough to be promoted.

The city was motivated by the fact that if it had certified the results of the test, it would have faced lawsuits from minority firefighters. The white firefighters who did well on the test sued.

The plaintiffs had essentially two claims. First, they argued that civil rights statutes prohibited the city from doing what it did. Second, they argued that even if the statutes permitted New Haven's actions, the Constitution prohibited them.

The court adopted the first argument and held that an employer could only throw out test results if it had a strong evidentiary basis for believing that the test was actually biased. Because this holding was sufficient to decide the case, the court applied its standard practice of declining to consider the more serious constitutional question.

But suppose the facts of Ricci repeat themselves, as they inevitably will; only this time, assume that the local government has a strong reason to believe that the test it gave was biased. The Ricci opinion would lead the officials to believe that to comply with civil rights statutes, they should throw out the test results.

However, as the court made clear, the white test-takers could still sue, and the government might once again lose on the grounds that the Constitution prohibited its actions.

So officials face potential liability no matter what they do. Likewise, lower court judges who will be called upon to rule on such lawsuits have been given no guidance on how to handle the case.

In other words, the Supreme Court, whose job it is to resolve difficult cases in such a way as to let everyone know what the rules are for the future, left a giant question mark — and for no good reason.

To be sure, it sometimes makes sense for the court to avoid hard questions.

For example, on some questions, the court might expect that future cases will provide facts and evidence that shine new light on the question; or that Congress and the president are poised to take some action that renders the question moot; or that public opinion on the issue is shifting.

But Ricci is not such a case. The constitutional question it raised is not going away or changing, and it was ripe to be decided.

In avoiding it the court did nothing other than guarantee that some unlucky people will waste their own money and time (Ricci took about six years to resolve!), as well as the public resources that a protracted lawsuit consumes, dealing with exactly the same arguments and issues again.

Thanks for nothing, Supreme Court. Next time the court has the opportunity to decide a serious, pressing issue, it should do so — even if it invites public criticism. A little drama isn't the end of the world.

Hillel Y. Levin is an assistant professor in the University of Georgia School of Law.

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