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Supreme Court majority decides white firefighters were victims

In one of the toughest, and most politically charged areas of the law, the U.S. Supreme Court this week threw grease on the fire.  A 5-4 decision, with the recent Bush appointees in the majority, upheld the claim of white firefighters that they suffered racial discrimination at the hands of the City of New Haven, Connecticut.  The dispute arose out of a series of examinations for promotion to lieutenant or captain.

The City initially offered an examination for promotion that had not been vetted for cultural bias or relevancy.  Employment decisions must be made on the basis of relevant criteria and cannot be based on any system of criteria that are irrelevant to the job at hand or "arbitrary".  When the results  from this examination came back, the exam would have resulted in an almost all-white batch of promotions in a city where a minority of citizens are white.

Fearful it would be sued for racial discrimination, the City discarded that original exam and put together a new set of criteria which had been carefully designed in an attempt to scrub any cultural or non-relevant criteria.  Of course, this new exam resulted in some minority promotions--which by definition were at the expense of disappointed white candidates who believed that they had earned promotions under the earlier examination.

One of the latter candidates, Frank Ricci, filed suit, alleging race discrimination and illegal conduct under Title VII of the Civil Rights Act of 1964.  Of course, in historical context, if we reverse the race of the original winners and losers, no one would suggest that this was NOT race discrimination, in part because re-designing the examination to "engineer" a certain racial profile in the outcome would have coincided with a known and recognized historical bias.  Once the City utilized a flawed examination on the first set of tests, there was nothing it could do to avoid the brouhaha that resulted: the City administration had created a Hobson's Choice where no action it took could salvage a bad situation.

The white firefighters' case had been rejected at the trial court level in a 44-page opinion, and by a three-judge panel in a 34-page opinion which was affirmed by the full Second Circuit.  Advocates for the City pointed out that while 58 percent of the City is black or hispanic, fewer than half of the black and hispanic candidates passed the initial test, while none of the top 19 scorers were black.  Only 15 percent of the department's officers are minorities.  In short, Justice Kennedy (essentially the swing-vote on all political close-calls this decade) concluded that "[t]here is no evidence that the tests were flawed," and therefore there was no justification for denying Ricci and the original group of successful candidates the promotions they believed they had earned, regardless of the disparate impact of the original test.

The other four Justices would have held that none of the candidates had a vested right to promotion based on any test-result expectation.  On that basis, they would have held that the City was free to construct a promotion-system that it deemed fair, reasonable, and not culturally-biased.  Ultimately, neither of these rationalizations supports a fully satisfactory result, and the City finds itself mired in a headache that could only have been avoided by a well-considered initial promotion policy.  And the arguments over affirmative action and "reverse discrimination" will continue to dominate our public discourse.

Thompson O’Neil, P.C.
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