High Court Rules For White Firefighters

The Supreme Court ruled Monday that the New Haven, Conn., fire department violated the law when it dumped the results of a firefighters promotion exam. Most of the applicants who placed high enough to qualify for promotions were white.

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The U.S. Supreme Court wrapped up its year in a big way today. In the most publicized case, the court ruled on behalf of a group of white firefighters in New Haven, Connecticut. By a vote of five to four, the justices said the firefighters wrongly lost out on promotions because of their race when the city sought to discard test results fearing a lawsuit from minority firefighters. With that ruling, the justices overturned an appeals court decision - a decision that included the woman who may become their new colleague, Justice Sonia Sotomayor.

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: The problem in New Haven was that when the city gave a new promotion exam, no African-Americans scored high enough to win a promotion to lieutenant or captain. The Civil Service Board then held hearings, decided the test was flawed and set aside the results so that a new test could be designed. The city said it voided the tests because under the Civil Rights Act, racially disproportionate test results are suspect. And the city feared it would be sued by black firefighters.

Instead, the white firefighters who didn't get promotions sued. And today the Supreme Court ruled in their favor. Writing for the court majority, Justice Anthony Kennedy said that under the Civil Rights Act, fear of a lawsuit is not enough to justify what Kennedy said here was a good-faith but nonetheless impermissible decision to scrap the test based on, quote, "raw racial statistics." In short, he said all the evidence suggests the city rejected the test because the higher-scoring candidates were white.

A city can only set aside test results, the court said, when there's a strong basis in evidence that the test was either intentionally or unintentionally discriminatory, or that a better test exists that would not produce such racially disproportionate results. No such evidence exists in this case, the court said. And because the test was fair and job-related, the city had no good reason to fear losing a lawsuit if it was brought by minorities. The promotions should go into effect.

In New Haven, the white firefighters were elated. Here is Frank Ricci, the dyslexic white firefighter who studies with flash cards, paid a tutor and scored high on the exam.

Mr. FRANK RICCI (Firefighter, New Haven): I think that this is just proof positive that people should be treated as individuals and not statistics. And that won out at the Supreme Court today.

TOTENBERG: Conversely, New Haven Mayor John DeStefano was disappointed.

Mayor JOHN DESTEFANO (New Haven): I have no doubt that we have more to do in this country to ensure a just and civil society that lives up to the promise of America, a promise that in our time, more than ever, demands the protections afforded by robust civil rights laws.

TOTENBERG: Although today's ruling is a big victory for the white firefighters in New Haven, the decision appeared not to sweep broadly. And it specifically avoided any suggestion that the provision at issue in the Civil Rights Act is unconstitutional. University of Virginia Law Professor George Rutherglen says that the thrust of today's ruling is to make it harder to use tests.

Professor GEORGE RUTHERGLEN (Law, University of Virginia): Cities and other employers, they now have to be very careful once they settle on a test. They are going to be almost bound by the results of it. It will be difficult for them to discard the tests.

TOTENBERG: Michael Rossman, of the conservative Center for Individual Rights, agrees.

Mr. MICHAEL ROSSMAN (Center for Individual Rights): The basic change in reality is employers will not be able to toss out the results of tests solely based upon disparate impact.

TOTENBERG: Greg Coleman who represented the firefighters sees the decision as far-reaching.

Mr. GREG COLEMAN (Attorney): I think it will have a broad effect. Not necessarily based on my feelings that this happens a lot, but that it sets up a set of ground rules for employers in trying to determine how far can they go in making these types of employment decisions, and particularly promotion decisions.

TOTENBERG: But most experts saw the impact of the New Haven case as limited. UVa's Rutherglen observes that the city found itself in an extremely rare situation.

Prof. RUTHERGLEN: They were caught between state law, which had civil service requirements, their union, which had a collective bargaining agreement with them that said how the tests had to be administered, and federal law.

TOTENBERG: University of Washington Professor Eric Schnapper, who also specializes in employment discrimination law, agrees.

Professor ERIC SCHNAPPER (Law, University of Washington): This case could be the Fred Thompson of the Court's term: much anticipated but quickly forgot. It's possible we'll look back in five years and this won't have mattered very much.

TOTENBERG: One of the puzzles about employment testing is that minorities do worse than whites on multiple choice written tests. And under the union contract in New Haven, the multiple choice part of the test was weighted to account for 60 percent of the exam. John Payton of the NAACP Legal Defense Fund, while disappointed in today's ruling, says he thinks such tests will play a smaller and smaller role in the future.

Mr. JOHN PAYTON (President, Legal Defense Fund, NAACP): I doubt there are very many firefighting departments or police departments that do that. And there will probably be even fewer going forward. That's not the way you should pick leaders - give them a multiple choice test. That's not how we would pick you know, a colonel in the army.

TOTENBERG: That theme was picked up by Justice Ruth Bader Ginsburg in her dissenting opinion today. She noted that many departments have created mock fire situations to test for leadership and command qualities, and for knowledge. In a rare oral defense from the bench, Ginsburg used a rhetorical skewer on her more conservative colleagues. The white firefighters understandably attract the Court's empathy, she said. But they had no vested right to a promotion and no person has received promotion in preference to them.

Because of the racially disproportionate results in written multiple choice tests, she observes, most municipalities either have abandoned them or given them less weight. Joining her in dissent were Justices John Paul Stevens, Stephen Breyer and David Souter. This was Justice Souter's last day on the Supreme Court bench. In a letter he read to his colleagues he said, we have agreed or contended with each other over the things that matter to decent people in a civil society.

For 19 terms, I've lived that life with you, all of us sharing our own best years with one another, working side by side as fellow servants and as friends.

Nina Totenberg, NPR News, Washington.

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Court Topples Sotomayor Ruling In Firefighter Case

Sonia Sotomayor i i

The 5-4 ruling means that the federal appeals court opinion on the New Haven firefighters that was endorsed by Supreme Court nominee Sonia Sotomayor (above) will not stand. Getty Images hide caption

itoggle caption Getty Images
Sonia Sotomayor

The 5-4 ruling means that the federal appeals court opinion on the New Haven firefighters that was endorsed by Supreme Court nominee Sonia Sotomayor (above) will not stand.

Getty Images

The city of New Haven, Conn., violated the rights of 20 firefighters when it threw out a promotion exam because too many whites and not enough minorities qualified, the Supreme Court ruled Monday, reversing a decision by an appellate panel that included high court nominee Sonia Sotomayor.

The justices decided in a 5-4 vote that the city's action violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex or national origin.

The justices also said the city failed to demonstrate its primary argument for invalidating the test — that certifying the results would result in unintentional injury to minority firefighters.

"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," Justice Anthony Kennedy wrote in the majority's opinion. Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas joined in the majority opinion.

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 on to Ginsburg's dissent, which she read aloud in court.

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.

After the decision, New Haven Mayor John DeStefano Jr. said everyone involved in the case was acting in good faith — but the city's decision to invalidate the test results was based on 40 years of litigation involving promotion exams.

He referred to retiring Justice Souter's remarks during oral arguments in the case, saying New Haven was in a no-win situation.

"At this moment I must admit that I well recall Justice Souter's comment from the oral argument that the city found itself in a 'damned if you do, damned if you don't situation,' " DeStefano said.

DeStefano said both groups — the minority and the white firefighters — are seeking a system that is fair, and he concurred with Scalia and Ginsburg that the issue is likely to be before the court again.

But Frank Ricci, one of the white firefighters who filed suit, praised the court's decision that he was unfairly denied a promotion because of race. He praised the other firefighters who joined the lawsuit not knowing if they qualified for promotion.

"It's phenomenal that everybody stepped forward and took this position because the exams were valid, and if you work hard you can succeed in America," he said.

The court also released other decisions in the last day of its term before the summer break and the last workday for Souter. In other actions:

• The court issued an order that arguments will be heard Sept. 9 to decide whether the 90-minute film Hillary: The Movie, produced by a conservative political group, should be considered a documentary or a long political advertisement.

Citizens United made the film, which is critical of Clinton, when Clinton was running for the Democratic presidential nomination. The group wanted to make the film available to cable subscribers on demand without complying with federal campaign laws. It also wanted to run ads for the movie.

• The justices refused to hear a Hollywood complaint against a new digital video recording system. The justices said they will not disturb a federal appeals court ruling that Cablevision Systems Corp.'s remote-storage DVR does not violate copyright laws.

For consumers, the action means that Cablevision and perhaps other cable system operators soon will be able to offer DVR service without the need for a box in their homes. The remote-storage unit exists on computer servers maintained by a cable provider.

• The court ruled that New York state can investigate national banks for discriminatory lending practices and other violations if a court issues subpoenas.

The case stems from a New York case in which the state's attorney general was investigating whether national banks were offering lower mortgage rates to whites than to black and Hispanic borrowers. The attorney general requested more information from those banks, including Citibank, JPMorgan Chase and Wells Fargo, but the banks went to court to block the request. They argued that since they were subject to federal law, branch banks were not subject to state lending laws.

The case resulted in a lawsuit supported by 49 states, arguing that only they have the resources to adequately enforce consumer protection laws.

• The justices refused to hear a case involving the state of Missouri's attempt to bar protests near funerals. The state enacted the law aimed at members of the Westboro Baptist Church in Topeka, Kan., who regularly picket the funerals of military service members killed in Iraq and Afghanistan. They claim God allows soldiers to be killed as punishment for the country's sins.

• The court also refused to hear a case involving a school district that is blocking a group of Christian students from forming a campus-based Bible club.

The case stems from a 2001 lawsuit filed by students who wanted to form the Truth Bible Club at Kentridge High School in Washington. The Kent School District blocked formation of the club by refusing to charter it.

From NPR and wire service reports

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