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Court Rules for New Haven Firefighters Over Promotions

Source: Hartford Courant

Posted on 30 Jun 2009

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The U.S. Supreme Court on Monday ruled in favor of 20 New Haven firefighters who claim in a reverse discrimination case that they were denied promotion for racial reasons.

The 5-4 opinion reverses a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

It could alter employment practices across the country, limiting the circumstances in which employers can be held liable for personnel decisions that touch upon race when there is no evidence of intentional discrimination.

Representatives of both the firefighters and the city are expected to address the decision this afternoon.

The suit, Ricci v DeStefano, turned on an apparent contradiction in Title VII of the Civil Rights Act of 1964, which concerns employment discrimination. The law flatly prohibits race-based discrimination. But it also requires employers to scrap tests that produce "disparate" results among test-takers of different races – unless the employer can prove the test is necessary.

It was apparent from questions by the justices during oral argument on April 22 that philosophical disagreement about racial preference in hiring magnified the divide between the court's conservative and liberal blocs. The argument turned on a central question: Did New Haven, sensitive to employment diversity, act illegally in 2003 when it invalidated a promotion examination because only white candidates for the positions of fire lieutenants and captains scored high enough for promotion?

"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations ad qualified for promotions," Justice Anthony Kennedy wrote for the majority.

The decision reflected the ideological split during oral argument: Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Clarance Thomas joined Kennedy n the majority.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them."

Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday.

Kennedy's opinion made only passing reference to the work of Sotomayor and the other two judges on the 2nd U.S. Circuit Court of Appeals who upheld a lower court ruling in favor of New Haven.

But the appellate judges have been criticized for producing a cursory opinion that failed to deal with "indisputably complex and far from well-settled" questions, in the words of another appeals court judge, Sotomayor mentor Jose Cabranes.

Justice David H. Souter, who sympathized with New Haven's position during oral argument, said the city faced a "damned if you do, damned if you don't situation" when it identified the race of the successful test takers. No matter what the city did, it would have been sued by whatever race viewed itself as losing, he said.

Nancy Ricci, the mother of lead plaintiff Frank Ricci, was carrying a cake into the New Haven office of her son's lawyer, Karen Lee Torree, at about 10 a.m. Monday when she learned the Supreme Court had found for her son and his fellow plaintiffs. She has three sons who are firemen, in New Haven, Middletown and Naugatuck. The cake was decorated with the abbreviation "NHPD" and a photograph of the 20 plaintiffs.

Nancy Ricci's knees buckled momentarily when she heard of the decision.

"See, the justices were for America," she said, after recovering. "Everyone is qualified to be a leader, a commander. New Haven won. The citizens won. Fire and any emergency (services) are color blind."

Ricci's father, James, said: "It's a victory for all firefighters across the country. Now we are going to have the best commanders on the ground. It has been a long struggle,. These guys worked hard to get this far. It is a shame the city of New Haven didn't recognize it."

The 20 plaintiffs in Ricci, one of whom is identified as both Hispanic and white, claim that the city's decision to scrap the examination results before any promotions were made violated their rights to be employed in an environment free from racial classification.

All 20 plaintiffs would have qualified for promotion had the test, which the city purchased for $100,000 from a consultant, been used by the city civil service board. No blacks scored high enough to qualify for promotion. The test was divided between written and oral questions.

The city administered the test to 118 candidates, 27 of whom were black. None of the black candidates scored high enough to qualify for 15 immediately available promotions. After a series of raucous meetings, the city civil service board decided to scrap the examination results and promote no one.

In subsequent litigation, the city suggested the test was racially biased. It said the decision to scrap the results was "race neutral" because it disadvantaged no one group of test takers more than another.

Torre, the New Haven lawyer who sued on behalf of the firefighters in 2004, reacted sharply to the suggestion that the test was biased. During oral argument, Justice Samuel A. Alito Jr. remarked sarcastically that the only criticism of the test came from an executive with a competing test preparation firm. The competitor testified at a civil service hearing in New Haven that, even though he had not read the test, he thought he could have designed a better one, Alito pointed out.

"The only thing wrong with the test is that it didn't suit the political agenda of the mayor of New Haven," Torre has said. Her reference to Mayor John DeStefano refers to an element of the lawsuit that has been little heard from since the case reached the lofty, legal realm of the Supreme Court.

One of the white firefighter claims is that DeStefano jettisoned the promotional exam to satisfy influential, black political supporters who were pushing for a greater black presence in the fire department's officer ranks.

Analysts have said Ricci embodies a number of firsts. It is viewed as the most important race and hiring case of the high court's current term and some speculated it could reshape hiring and promotion policy affecting millions in government and private industry.

President Barack Obama's nominee for the high court, Sotomeyor, twice ruled for New Haven and against the white firefighters as a member of the U.S. 2nd Circuit Court of Appeals. Conservative critics of her nomination have been reviewing her role in the case.

Ricci also is the first case to broadly raise the issue of race and the workplace under the leadership Chief Justice John G. Roberts Jr. And it is the court's first examination of race since Obama's election.

The Obama administration took its first stand on race and civil rights when weighed in once Ricci reached the Supreme Court. The administration sided with New Haven, saying the city was justified in dropping the test if it determined the test had "gross exclusionary effects on minorities." But it urged the high court to send the case back to U.S. District Judge Janet Bond Arterton in New Haven for trial to allow the 20 plaintiffs an opportunity to argue that the city acted with a discriminatory motive.