Federal 2nd Circuit Court of Appeals Judge Sonia Sotomayor along with President Barack Obama during the announcement of her nomination for the US Supreme Court. Her ruling on the affirmative action program for firefighters has been overturned.
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High Court Rules White and Hispanic Firefighters in Conn. Were Unfairly Denied Promotions
By JAN CRAWFORD GREENBURG, ARIANE DeVOGUE and DENNIS POWELL
June 29, 2009 —In a decision that could have sweeping impact on employers across the nation, the Supreme Court ruled today that white and Hispanic firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that Supreme Court nominee Sonia Sotomayor endorsed as an appeals court judge.
Splitting down ideological lines, the court ruled 5-4 that New Haven violated a landmark civil rights law when the city threw out the results of a promotions exam after it was determined that none of the black firefighters who took the test scored well enough to be promoted.
The court's decision will make it harder for employees to sue if they believe employers have made decisions that have a discriminatory impact on them, but are in other respects race-neutral and fair on their face -- as the Court said these promotions exams were.
The case took on an extra layer of significance when President Obama nominated Sotomayor to fill the upcoming vacancy on the Supreme Court. Sotomayor, currently a federal appeals judge, sat on a panel that dismissed the white firefighters' claims -- and 2,000 pages of court papers in filings -- in a one-paragraph ruling.
But Sotomayor's defenders quickly pointed out that the court's four liberals did not agree. They argued that the court is reshaping civil rights law with today's ruling, something Sotomayor could not have done as an appeals court judge. However, those arguments were somewhat diminished, since it appears even the liberal justices would have sent the case back to the lower court and ordered a rethinking of its summary decision.
Congress could now step in and change the civil rights laws and overrule this decision, but it would be a politically difficult endeavor because the white firefighters gained a bit of sympathy for their reverse discrimination claims.
Justice Anthony Kennedy, writing for the majority, said New Haven had violated the landmark Title VII Civil Rights Act of 1991. The city had no good reason to throw out the test results, he said, even if it was threatened by lawsuits by the black firefighters. It's decision to do so, he wrote, amounted to a "de facto quota system," where it was making decisions based on "raw racial statistics."
"We conclude that race-based action like the City's in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not take the action, it would have been liable under the disparate-impact statute," Kennedy wrote. "In light of our ruling under the statutes, we need not reach the question whether respondents' actions may have violated the Equal Protection Clause."
Justice Ruth Bader Ginsburg read an impassioned dissent from the bench, in which she chastised the Court for a decision that she said will do "untold" damage to civil rights laws.
"This case presents an unfortunate situation, one New Haven might well have avoided had it used a better selection process in the first place," she wrote. "But what this case does not present is race-based discrimination in violation of Title VII. Congress endeavored to promote equal opportunity in fact, and not simply in form. The damage today's decision does to that objective is untold."
'The Fired Isn't Going to Discriminate'
When firefighters battle a raging blaze, they can be sure that at least one thing will treat them all equally.
As Connecticut firefighter Ben Vargas said before the ruling, "The fire isn't going to discriminate against a person whether he's black, white or Hispanic... It's going to treat that person the same way."
Connecticut firefighter Ben Vargas said, "The fire isn't going to discriminate against a person whether he's black, white or Hispanic" Connecticut firefighter Ben Vargas, 40, said. "It's going to treat that person the same way."
But in New Haven, Vargas, who is Hispanic, and 19 white firefighters said that is where the equal treatment ends, and discrimination begins. They had alleged that they were denied promotions because the city gave preferential treatment to blacks.
Matt Marcarelli, who is white, got the top score on a promotion exam in 2003 and was first in line for captain. But when the city reviewed all the test results, it found that the pass rate for black candidates was about half the corresponding rate for white candidates. None of the black firefighters scored well enough for an immediate promotion. As a result, the city threw out the test results.
"Every day I go to work I've got to pin this lieutenant's badge on me, it reminds me I got screwed out of a captain's badge because of the color of my skin," Marcarelli, 38, said. "That gets to you."
In New Haven, city officials knew they were headed for a catch 22 when the test results came back. If the city certified the test results, it was confident it could expect a lawsuit from the black firefighters. But when it threw out the test results, it instead got a lawsuit from mostly white firefighters.
Blacks make up about a third of New Haven's 221 firefighters, 15 percent are officers -- eight of 42 lieutenants and one of 18 captains.
The case made it all the way to the U.S. Supreme Court, which heard arguments in April. The decision could affect the hiring and promotion practices for millions of civil servants.
The New Haven case is Chief Justice John G. Roberts' first look at the use of race in civil servant hiring and promotion. Roberts has made no secret of his opposition to public universities' considering race in admissions decisions, although
Victor Bolden, the city's lawyer, supported the decision to scrap the tests. "It looked like the exam might have been discriminatory against some of the minority test takers," he said. "And that was certainly a red flag for the city under the law."
For decades, people of color across the country have filed scores of discrimination lawsuits to challenge testing in fire departments, police departments and public schools.
Civil Rights, Reverse Discrimination and Test Scores
New Haven officials and some of the city's black firefighters argued that and less discriminatory alternatives -- such as oral exams -- should be used rather than written tests.
"Written tests aren't the best to judge a person on how they will perform their jobs," said Gary Tinney, a black firefighter in New Haven.
But whites and Hispanics like Vargas fought back. Opponents have used civil rights laws to argue reverse discrimination. And they have found some success: The city of Chicago recently settled a major case with white firefighters for $7.5 million.
Vargas said civil rights laws should be used to protect his potential promotion. "The civil rights laws, they have nothing in there which state preferential treatment. The civil rights laws are there for everybody; all American citizens have the same exact rights."
Court Term Wraps Up
On the court's final day before summer recess, it did not rule in the case involving the critical movie of Hillary Clinton. In a highly unusual move, the Court will return to the bench three weeks early, on Sept. 9, to hear arguments on whether the campaign finance laws are unconstitutional. This announcement tees up a major first amendment dispute over campaign finance and means Sotomayor will need to be on the bench by then if she will hear it. In other words, expect those hearings to start in July, as scheduled.
Finally, Chief Justice Roberts read a brief letter to Souter from the bench on his last day, and Souter responded with a moving farewell, saying he how he'd enjoyed the privilege of serving 19 terms with his colleagues, and would miss them-- but will carry with him their friendship to New Hampshire.
The Associated Press contributed to this report.
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