The Ricci Majority: Five Wrong Answers

Ricci, this term’s blockbuster case, involved a test for New Haven firefighters, so I thought it only fair to subject the Justices to a test of my own—a grammar test, of course. The good news: The Justices have a sterling command of the subjunctive mood, and they place the word “only” with great care.

Overall, then, they get an “A.” But as with any test, there’s always room for improvement. The majority opinion has five glitches that we should all try to avoid:

1. All’s not well

The great authority H.W. Fowler called it “absurd.” Other usage experts find it simply inelegant. I’m talking about following both with as well as rather than and, something Justice Kennedy does here:

“Title VII prohibits both intentional discrimination (known as ‘disparate treatment’) as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as ‘disparate impact’).”¹

Justice Kennedy should have replaced his as well as with and.²

2. Shall I compare thee to a rose?

When you compare your house to a junkyard, you’re suggesting that your house is like a junkyard—messy and unorganized. But when you compare your house with a junkyard, you’re considering how they’re the same, how they’re different, or both.

The Ricci majority got the to-with distinction wrong. By using to with compare in the following sentence, Justice Kennedy appears to suggest that minority firefighters perform differently when people say that they are just like white firefighters:

“All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates.”³

Let’s sum up: When, as here, you are noting similarities and differences between two things, you need with, not to: “how minorities had performed as compared with white candidates.”

3. However, wherever

Like Strunk & White and many others, the current Court avoids starting sentences with however.

But if the Justices want to put however in the middle of a sentence, they need to place it with surgical precision. Kennedy’s hand is shaky here:

“Petitioners would have us hold that, under Title VII, avoiding unintentional discrimination cannot justify intentional discrimination. That assertion, however, ignores the fact that, by codifying the disparate-impact provision in 1991, Congress . . . .”⁴

A midsentence however goes after the word or phrase that contrasts with the previous point. Kennedy isn’t contrasting the assertion with itself. Instead, he’s contrasting what the assertion claims with what it ignores, so however belongs after ignores, not after assertion.

Even better, he could have cut the opening and jumped right in: “Yet when Congress codified the disparate-impact provision in 1991, it . . . .”

4. Strange bedfellows

When you use more than one adjective before a noun, you separate the adjectives with commas only when each modifies the noun independently. So you’d write “a tall, wide building” with a comma, but “a dark red building” without. As clear as that distinction may sound, the Ricci Court got it wrong several times. Consider, for example, this series of adjectives from the majority opinion:

“Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other in certain, narrow circumstances.”⁵

He means “certain narrow circumstances.”

Tip: In a series such as this one, put a comma between your adjectives only if you could put the word “and” between those adjectives. Although you can’t say “certain and narrow circumstances,” you can, for example, say “provable and actual violation,” which is why Kennedy is correct when he writes “provable, actual violation” on the opinion’s next page.

5. Stiff upper lip

Good writers like Justice Kennedy sometimes engage in grammatical overkill, almost as if they’re trying to be the teacher’s pet.

In the two excerpts below, Kennedy uses the possessive gerund, a form that is correct in many cases: We should write “I appreciate your coming today” rather than “I appreciate you coming today.” In other constructions, though, using a possessive gerund is stiff, if not improper.

In the first excerpt, Kennedy is discussing something the New Haven Civil Service Board might do but hadn’t done, making his use of the possessive gerund suspect at best:

“[An expert witness testifying at the hearing] outlined possible grounds for the CSB’s refusing to certify the results.”⁶

Kennedy should have just written that the witness “outlined possible grounds for the CSB to refuse to certify the results.”

In the second excerpt, the possessive gerund is awkward, and it also suggests that the two distinct events were near-simultaneous:

“[U]pon the EEOC’s issuing right-to-sue letters, petitioners amended their complaint to assert that the City violated the disparate-treatment prohibition contained in Title VII . . . .”⁷

A stylist with a lighter touch might have written something like this: “After the EEOC issued right-to-sue letters, petitioners amended their complaint . . . .”

But before you think I’m grading the majority too harshly, let’s turn to the dissent.

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