Justices Weigh Bias In Promotions Test
MICHELE NORRIS, host:
It's ALL THINGS CONSIDERED from NPR News. I'm Michele Norris.
ROBERT SIEGEL, host:
And I'm Robert Siegel. Race was back on the agenda at the Supreme Court today. The justices heard arguments in a case brought by white firefighters in New Haven, Connecticut. They claim that they're the victims of racial discrimination. The justices seemed closely divided, with the decisive fifth vote likely in the hands of Justice Anthony Kennedy. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: Five years ago, the city of New Haven scrapped the results of a fire department exam because no African-Americans and only one Hispanic qualified for promotion to lieutenant or captain. After holding five days of hearings, the city concluded the test was flawed, and that if it didn't design a better test, it would be sued by minority applicants and would likely lose. The city decided to promote no one and to order a new test. But the white firefighters who scored well on the exam and would've qualified for promotion sued instead, claiming that they were the victims of reverse discrimination.
The New Haven 20, as the call themselves - in dress blues - were at the Supreme Court today accompanied by their lawyer, Karen Torre.
Ms. KAREN TORRE (Lawyer): Firefighters have the most dangerous job in this country and the least that we can do is to make sure that they are led by the most competent, knowledgeable and educated commanders, and that those commanders are chosen, not on the basis of their skin color or ethnicity or to suit a political agenda, but on the basis of their knowledge and skills.
TOTENBERG: Lawyers for the city countered that civil service board hearings that took after the exam was given showed the test was flawed, and that other promotion tests would not have produced such racially disparate results. Dennis Thompson represents the International Association of Black Firefighters.
Mr. DENNIS THOMPSON (International Association of Black Firefighters): These tests are obsolete, out-dated and serve no other purpose than to discriminate.
TOTENBERG: Inside the courtroom, lawyer Gregory Coleman, representing the white firefighters, told the justices that New Haven had engaged in racial favoritism when it cancelled the test results. Justice Ginsburg: Suppose a police department gives a physical fitness test, and when the test results come in, women are excluded. The city thinks there's something wrong with this test, that it can probably test for the necessary skills in a way that will not exclude women. Can the city throw the first test and substitute a second test that does not exclude women? Answer: If it was grounded on a desire to have more women on the force, no.
Justice Souter: The trouble is, that leaves a municipality like New Haven in a damned if you do damned if you don't situation, because under the civil rights laws, a test that disproportionately affects one racial or gender group is automatically suspect. So, if New Haven were to go ahead with these promotions it would inevitably face a lawsuit from minorities. Why isn't it reasonable, assuming good faith, for the city to start again? Answer: The city cannot simply say this exam comes to the wrong racial result, and therefore there must be something wrong with the test.
Justice Kennedy: Suppose a city looks at two tests used in other cities. In test A, minorities are well represented. In test B, they are not. Both tests are very good. Can the city choose the test where minorities do well? In other words, is race consciousness ever permissible? Answer: As long as it's an equally good test and the decision is made before the test is given.
Justice Scalia: That's not what happened here. Here you had some applicants who were winners and their promotions were set aside. Justice Breyer: But a city can, in fact, choose a test because it would end up promoting more minorities? Answer: Yes. Justice Breyer: So, what's the difference here? They had experts tell them their test discriminated negatively against minorities. Why can't they decide to have a different test that doesn't do that? Answer: These firefighters had already taken the test and earned their promotions. Justice Ginsburg: These individuals don't have a vested right to promotions from this test when a better test with less disparately racial results is available.
Next up to argue was Deputy Solicitor General Edwin Kneedler, representing the government, which sided mainly with the city of New Haven in this case. Justice Kennedy: The city looked at the results of the test and it classified the successful and unsuccessful applicants by race. You want me to say this isn't race? I have trouble with this argument. Answer: The civil rights statutes require the city to look at racially disproportionate test results. When the city did that, it stopped there and said, we should have a new test. Justice Scalia: And if there'd be a disproportionate number of minorities who passed, you would say it's neutral to set that test aside? I don't think you'd say that.
Representing the city of New Haven, lawyer Christopher Meade told the justices that when an employer learns that a test he's given has a severe impact on one racial group, the employer should be allowed to rectify that situation. The problem with the test here is that it did not create a level playing field, he said. It created the illusion of merit. Chief Justice Roberts: So they get to do do-overs until it comes out right? Answer: No, a second do-over might be a problem. Justice Alito: The city chose the company that framed the test, so what's the basis for thinking it's a flawed test? Answer: There was an arbitrary waiting to favor the written multiple choice part of the test. The test designers skipped key steps in the design process. And previous tests did not have such racially disparate results. A decision in the case is expected by summer.
Nina Totenberg, NPR News, Washington.