with whom
Judge CALABRESI, Judge POOLER, Judge SACK, and Judge SOTOMAYOR join, concurring in the denial of rehearing en banc:At the heart of the dissent from the denial of rehearing en banc is the assertion that there was no Supreme Court or circuit law to guide this district court, or future district courts faced with similar claims. I disagree. The district court correctly observed that this case was unusual. Nonetheless, the district court also recognized that there was controlling authority in our decisions — among them, Hayden v. County of Nassau, 180 F.3d 42 (2d Cir.1999) and Bushey v. N.Y. State Civil Serv. Comm’n, 733 F.2d 220 (2d Cir.1984), cert. denied, 469 U.S. 1117, 105 S.Ct. 803, 83 L.Ed.2d 795 (1985). These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability.
Insofar as the dissent suggests that the plaintiffs produced evidence of a racial classification or the imposition of a quota, I think it entirely mistaken. Although the City acted out of a concern that certifying the exam results would have an adverse impact on minority candidates — and although, as the panel noted in its decision, the result was understandably frustrating for applicants who passed the test — the City’s response, to decline to certify any of the exams, was facially race-neutral. The City did not classify or confer any actual benefit on applicants on the basis of race. The dissent’s citations to Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995), and City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), are therefore inapposite.1 See Hayden, 180 F.3d at 49 (distinguishing those cases as “concerned with select affirmative action tools, such as quota systems, set-aside programs, and differential scoring cutoffs, which utilize express racial classifications and which prevent non-minorities from competing for specific slots or contracts.”).
Because there was no racial classification, the plaintiffs bore the burden of persuasion on the issue of discriminatory pur*91pose. Jana-Rock Constr., Inc. v. N.Y. State Dep’t of Econ. Dev., 438 F.3d 195, 204 (2d Cir.2006). Here, however, there was no evidence of a discriminatory purpose; according to the record evidence, the City was motivated by a desire to comply with, and avoid liability under, Title VII and its implementing regulations. See Bushey, 733 F.2d at 226 (“It is settled that voluntary compliance is a preferred means of achieving Title VII’s goal of eliminating employment discrimination.” (internal quotation marks and alteration omitted)); see also Hayden, 180 F.3d at 51 (“A desire to reduce the adverse impact on [minority] applicants ... is not analogous to an intent to discriminate against non-minority candidates.”).
I think the dissent also quite unfairly caricatures the district court’s evaluation of the plaintiffs’ Title VII claim: “Under the District Court’s rationale, it appears that any race-based employment decision undertaken to avoid a threatened or perceived Title VII lawsuit is itself immune from scrutiny under Title VII.” This is simply not the case. Prior to reaching its conclusion, the district court assessed whether the examination results demonstrated a statistically disproportionate adverse racial impact under the EEOC Guidelines and whether the City had presented evidence to support its belief that less discriminatory alternatives to this particular test existed. This analysis shows that, contrary to the dissent’s suggestion, the district court did not rubber stamp the City’s proffered non-discriminatory reason for not certifying the exam results.
Moreover, I hardly think that in order to decline to certify the exam results, the City was required to prove, through a validation study or some other means, that its own tests were not “job related for the position in question and consistent with business necessity,” 42 U.S.C. § 2000e-2(k)(l)(A)(i) (defining affirmative defense to prima facie case of disparate impact violation). In fact, our case law explicitly rejects that proposition. See Bushey, 733 F.2d at 226 (disagreeing with the assertion that “before adopting remedial measures” the employer must “prove that [the] prima face case [of a disparate-impact Title VII violation] was not rebuttable through job-related explanations”).
I also disagree with the dissent’s view that en banc review is warranted because the district court analyzed the plaintiffs claims using the McDonnell Douglas pretext test rather than the Price Waterhouse mixed-motive test. See Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). As the dissent is well aware, the plaintiffs did not argue the mixed-motive theory; a non-party raised it in an amicus brief. “Although an amicus brief can be helpful in elaborating issues properly presented by the parties, it is normally not a method for injecting new issues into an appeal, at least in cases where the parties are competently represented by counsel.” Universal City Studios, Inc. v. Corley, 273 F.3d 429, 445 (2d Cir.2001); see also Bano v. Union Carbide Corp., 273 F.3d 120, 127 n. 5 (2d Cir.2001) (same).
Finally, the dissent suggests that the panel’s per curiam opinion inappropriately adopted the reasoning set forth in the district court’s opinion, one that the panel recognized was “thorough, thoughtful, and well-reasoned.” The adherence of a Court of Appeals to the decision and reasoning of a district court is anything but novel. In fact, the practice pre-dates the formal establishment of this Court in 1891 by at least fifty years. United States v. Libellants & Claimants of the Schooner Amistad, 40 U.S. 518, 590, 15 Pet. 518, 10 L.Ed. *92826 (1841) (“The Circuit Court, by a mere pro forma decree, affirmed the decree of the [Connecticut] District Court----And from that decree the present appeal has been brought to this Court.”). This Court has followed this practice on numerous occasions in appeals covering myriad issues. See, e.g., In re Bankers Trust Co., 450 F.3d 121, 123 (2d Cir.2006) (per curiam); Murphy ex rel. Estate of Payne v. United States, 427 F.3d 158, 159 (2d Cir.2005) (per curiam); In re Red Dot Scenic, Inc., 351 F.3d 57, 58 (2d Cir.2003) (per curiam); United States v. Gluzman, 154 F.3d 49, 50 (2d Cir.1998); Trans World Airlines, Inc. v. Sinicropi, 84 F.3d 116, 116 (2d Cir.) (per curiam), cert. denied, 519 U.S. 949, 117 S.Ct. 360, 136 L.Ed.2d 252 (1996).
The plaintiffs were entitled to a careful and thoughtful review of their claims. The panel decided that the district court had given them just that, and thus adopted the district court’s reasoning in its per curiam opinion. Nothing more is required.
. It may be worth noting that the Croson Court based its decision partly on the fact that "[tjhere [was] nothing approaching a prima facie case of a constitutional or statutory violation by anyone in the Richmond construction industry-” Croson, 488 U.S. at 500, 109 S.Ct. 706. Here, by contrast, the City was faced with a prima facie case of a violation of Title VII. See Gulino v. N.Y. State Educ. Dep’t, 460 F.3d 361, 382 (2d Cir.2006) (defining prima facie case of disparate-impact liability under Title VII); Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir.2001) (same); see also 42 U.S.C. § 2000e-2(k) (codifying the disparate-impact theory of liability and legislatively overruling Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 659, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989)).