- The Washington Times
Tuesday, June 30, 2009

Casting a wary eye on affirmative action, the Supreme Court ruled Monday that white firefighters faced unlawful discrimination when their city threw out a promotion test after not enough minorities did well on it.

The 5-4 ruling, one of a flurry of decisions issued on the last day of the court’s 2008-09 session, marked another reversal by the high court for Judge Sonia Sotomayor, President Obama’s nominee to the Supreme Court. It is also part of a steady march rightward for the court on discrimination cases, after recent rulings on voting rights and age discrimination.

Republicans said they will ask Judge Sotomayor about the case at her confirmation hearing next month, but her backers said her nomination is not in jeopardy, and said she was following precedent as an appeals court judge by ruling against the New Haven, Conn., firefighters.

In some of its other decisions Monday, the court declined to allow a lawsuit against four Saudi princes from families of Sept. 11 victims; scheduled more arguments in a campaign-finance case over a movie biography of Hillary Rodham Clinton; and said it would hear arguments from the National Football League, which is seeking an exemption from federal antitrust laws.

The New Haven, Conn., firefighters case presented competing claims of discrimination — the city said it was following one part of Civil Rights Act laws, while the firefighters said they were being denied promotion as required by another part of the law.

Justice Antonin Scalia said eventually the court may overturn key parts of employment discrimination law as violating the Constitution. But for now, he and four other justices ruled narrowly that the city can’t discard a test merely because the statistical outcome was bad for minorities.

“Once that process has been established, and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race,” Justice Anthony M. Kennedy said in an opinion joined by Chief Justice John G. Roberts Jr. and Justices Scalia, Clarence Thomas and Samuel A. Alito Jr.

Critics, including the Obama White House, said the majority was making up new rules for states and localities to figure out — something the critics said was tantamount to judicial activism.

“The Supreme Court clearly had a new interpretation for Title VII of the Civil Rights Act. And so I think some of the very concerns that members of the Senate have expressed about judicial activism seem to be at the very least upside down in this case,” said press secretary Robert Gibbs, who went on to defend Judge Sotomayor, who as part of the 2nd U.S. Circuit Court of Appeals ruled against the firefighters.

Members of Congress said they will try to overturn the ruling through legislation, and D.C. Delegate Eleanor Holmes Norton, a Democrat, vowed to introduce a bill when Congress gets back from its July 4 vacation.

In her dissenting opinion, Justice Ruth Bader Ginsburg said minority firefighters seeking promotion were disadvantaged from the start, including their inability to afford test-preparation materials and exam questions that she said were not relevant to the job.

She called it understandable that New Haven would want to scrap the test results, and she said because the firefighters did not have the right to a promotion in the first place, nobody suffered discrimination when the results were tossed out.

“By order of this court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served — as it was in the days of undisguised discrimination — by a fire department in which members of racial and ethnic minorities are rarely seen in command positions,” she wrote.

The case, Ricci v. DeStefano, was brought by 17 firefighters — 16 whites and one Hispanic — who were eligible for promotion to lieutenant or captain with the results of the exam.

In the run-up to the testing, New Haven went out of its way to try to ensure the exam would not discriminate against minorities — it oversampled minorities in writing questions, and included two minority individuals on each three-person oral-exam panel.

White, black and Hispanic candidates all passed the exams, though whites did so at a higher percentage.

Also, under the city’s rules, the first positions to come open would go to the top scorers. For the lieutenant’s position, the top 10 were all white, while for the captain’s position, the top nine included seven whites and two Hispanics.

With a history of discrimination lawsuits behind it, the city’s civil service board feared that the results would be seen as unintentional discrimination, which would violate the Civil Rights Act’s prohibition on a “disparate impact.” But at the same time, tossing the results would be “disparate treatment” against the firefighters who had scored well - also a violation of the Civil Rights Act.

In issuing his opinion, Justice Kennedy said the court didn’t need to decide on constitutional grounds such as the Equal Protection Clause of the 14th Amendment.

But Justice Scalia said the court will eventually have to face that question and decide if discrimination for the purposes of affirmative action is ever allowed.

“The war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how — and on what terms — to make peace between them,” he wrote in his concurring opinion.

Those sorts of broad issues are bound to come up during Judge Sotomayor’s confirmation hearings, but Sen. Charles E. Schumer, New York Democrat and a member of the Senate Judiciary Committee, said her legal reasoning in this case was sound.

“While the Supreme Court disagreed with the Second Circuit, they in no way undercut Judge Sotomayor’s contention that she was following legal precedent and was bound to do so,” he said.

But conservatives said the case raises major questions about Judge Sotomayor’s legal reasoning, emphasizing both the unsigned summary judgment to which she was a party and her later voting not to have the case heard by the whole appeals court, rather than just the three-judge panel.

“Not only did Judge Sotomayor misapply the law, but the perfunctory way in which she and her panel dismissed the firefighters’ meritorious claims of unfair treatment is particularly troubling,” said Senate Minority Leader Mitch McConnell, Kentucky Republican.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

• Tom LoBianco can be reached at tlobianco@washingtontimes.com.

Copyright © 2023 The Washington Times, LLC.