White Firefighters Win Discrimination Suit

The Supreme Court ruled in favor of white New Haven firefighters who claimed they were victims of reverse discrimination. The High Court said the white firefighters were denied promotions because of their race. Harvard Law Professor Charles Ogletree and Nina Perales, Southwestern Regional Counsel of the Mexican American Legal Defense Fund, discuss the merits of the ruling and its potential implications.

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MICHEL MARTIN, host:

I'm Michel Martin, and this is TELL ME MORE from NPR News.

Coming up, he loves his city so much, Antonio Villaraigosa once said being the mayor of Los Angeles is like being a kid in a candy store. But what's so sweet about high unemployment and a staggering deficit? We'll find out in just a few minutes. It's the latest in our series of conversations with leaders of cities in crisis.

But first, one of the most watched cases of the Supreme Court term. Yesterday, the U.S. Supreme Court ruled that white firefighters in New Haven were subjected to racial discrimination when the city threw out the results of a promotional exam in which they had scored better than African-Americans. New Haven officials said they had thrown out the test because they feared litigation by black firefighters, many of whom also passed the test but not with sufficiently high scores to win immediate promotion.

A group of 18 white firefighters, which included one Latino, then argued in a 2004 lawsuit that their rights to equal treatment had been violated. While conservatives are hailing the decision as a step toward color blind employment policies, others believe the ruling could severely undermine efforts to foster diversity in the workplace. And the case is also attracting much attention because Supreme Court nominee Sonia Sotomayor was part of a three-judge panel that sided with a lower court judge and the city of New Haven in throwing out the test. Joining us now to talk about all this is Harvard law professor Charles Ogletree. He's the founding and executive director of the Charles Hamilton Houston Institute for Race and Justice.

Also with us is Nina Perales, Southwestern regional counsel of the Mexican-American Legal Defense Fund also known as MALDF. I welcome you both. Thank you so much for speaking with us.

Ms. NINA PERALES (Southwestern Regional Counsel, Mexican American Legal Defense Fund): Thank you.

Professor CHARLES OGLETREE (Law, Harvard, Founder and executive director of the Charles Hamilton Houston Institute for Race and Justice): Hello, Michel.

MARTIN: Hello. Nina Perales, I'm going to start with you. What was MALDF's position in this case? And I'm curious because Latinos are represented on both sides of the argument. There's a Latino plaintiff in the case. There are Latino judges who've ruled on both sides of the case.

Ms. PERALES: Well, our position in the case, we filed an amicus brief in the case and the position of the Latino Civil Rights community, and I believe most Latinos, is that cities like New Haven should have fair promotional exams because that gives an equal opportunity to every qualified candidate. The exams that were at issue in this case had a disparate impact not just on African-American test takers, but also Latino test takers. And the effect was severe in both cases.

We found the brief particularly to address an argument that was being made by the white firefighters that the court should really just throw out a big chunk of civil rights law when it comes to employment. The plaintiffs were asking the court to throw out the disparate impact standard. We briefed in opposition to that argument in our amicus brief and Justice Kennedy, writing for the majority, rejected the plaintiffs' argument on that point.

MARTIN: And just briefly, what is the disparate impact standard?

Ms. PERALES: Well, the disparate impact standard says that if a practice, which might appear neutral on its face like a written test, when it's put into effect has a discriminatory effect on people because of their race or on the basis of their race that is also discriminatory. That discrimination is more than just an outright race based action. Discrimination also covers instruments or policies or exams that in their effect are discriminatory.

MARTIN: And so your assessment is that the court did preserve the ability to use disparate impact as a standard in some ways? Is that your assessment?

Ms. PERALES: Yes.

MARTIN: Okay. Professor Ogletree what's your assessment of the impact of this case?

Prof. OGLETREE: Well, it's disappointing but not surprising. I think the great aspect of it, even though the court rules in favor of Mr. Ricky(ph) who worked hard, was dyslexic and worked hard to pass his exam was this - Justice Kennedy said this, that the plaintiffs who wanted to throw out all the law, Title VII and disparate impact, their argument he said was overtly simplistic and too restrictive. What's also important is that Justice Alito tried to get rid of the disparate impact standard, but he was not joined, surprisingly, by Chief Justice John Roberts. He was out there on his own.

And I think what this tells us is the battle for employment discrimination and make sure that all people, women, African-Americans, Latinos, whites are not treated differently is still there. And this is not - not at all a litmus test on Judge Sotomayor. In fact, the court goes out of its way to make it clear that they're not rejecting the second circuit's ruling as much as they have created a brand new standard for the first time in Supreme Court ruling.

So those who are going to try to, you know, tack this on to Sotomayor's back and say that she is a affirmative action baby and she supports all these race based remedies, they're wrong. And in fact if you read the entire 93-page decision, particularly Justice Ginsburg's dissent, you'll see this case leaves a lot for debate and in fact that there will be liberals and conservatives who are disappointed that it didn't go far enough or it went too far.

MARTIN: I want to hear more about the whole question of what role this plays and the confirmation discussion around Sonia Sotomayor in a minute. But first, I did want to ask you Professor Ogletree, why is it that some liberal critics are calling this a case of judicial activism on the part of this court?

Prof. OGLETREE: It is.

MARTIN: What does that mean?

Prof. OGLETREE: That's an excellent question because if you read at least the idea that the court's opinion creates a new standard and they reached out for this case. And in fact, if you look at the concurrent opinions of both Justice Scalia and Justice Alito, who were in the majority, they both write concurrent opinions about whether or not it's time to get rid of disparate impact.

So this Court, when you talk about judicial activism, we always think we're talking about somebody like Thurgood Marshall or William Brennan. But if you look at the case involving Seattle and Louisville kids, where there's a voluntary integration program, 2007. If you look at this case, if you look at the case looking at Section 5 of the Voting Rights Act of 1965 last week, you see the court reaching out to say, now we've got five votes, let's go in a different direction.

That's activism, and even moderate conservatives are saying, wow, this court is really reaching out to try to change the law as much as it can, given the fact that at some point they may no longer be in the majority. But what it really says, Michel, is that one of the most important cases involving race since Brown in 1954, the court seems split five to four. We don't have any clear, concise, and unambiguous views on race, which means it haunted us in the 20th century, it will continue to haunt us in the 21st century.

MARTIN: If you're just joining us this is TELL ME MORE from NPR News. We're talking about the New Haven firefighters' case. It's one of the most watched cases of the Supreme Court term, which ended yesterday. And we're speaking with Harvard law professor Charles Ogletree and Nina Perales. She's the Southwestern regional counsel of the Mexican American Legal Defense Fund. Nina Perales, do you want to weigh on this whole question of judicial activism? Do you think that this is an example of judicial activism on the part of the Supreme Court?

Ms. PERALES: Well, I think the term judicial activism gets used against, you know, against progressive judges and is seldom, you know, used as a phrase against conservative judges who are making new legal standards. But I think, my own observation on this case is that we, as Professor Ogletree observed, we have more conservative members on the court than Justice Kennedy. And because he's currently comprising the swing vote, I think that these decisions tend to revolve more around his perspective and he seems loathe to make big changes in civil rights laws and at the same time he shows a particular disinclination to what he considers, you know, treatment of people on the basis of his race.

So I think this case is very much sort of bound to its facts because the test that New Haven fought to throw out had already been administered. And I think its also bound up in many ways on Justice Kennedy's perspective on these issues.

MARTIN: And what about the whole question of Judge Sonia Sotomayor? She was part of a three-judge panel that upheld the district court's decision supporting New Haven Officials in throwing out the case. And how does this reflect upon her judgment in your view, Nina Perales? And then I'm going to hear from Professor Ogletree on the same question.

Ms. PERALES: It shows that the Judge Sotomayor is very much sort of a straight down the line kind of judge. When she ruled along with the other members of her panel in a very short decision upholding the district court's decision she was following established law in the second circuit. And that's really sort of her trademark, is go straight down the line and apply the law.

In fact, not only did she have the members of her panel agreeing with her, there was a consensus there, but when the plaintiffs sought review by the full second circuit court of appeals, the appeal was rejected. And in that case, seven judges of the circuit court of appeals, which was a majority, sided with the panel that Sotomayor participated on. And that included Democratic and Republican appointees, as did the four justices on the Supreme Court include Democrats and Republican appointees in agreeing with the rationale of Judge Sotomayor's panel.

MARTIN: Professor Ogletree, your take on this question? How does this reflect on her judgment?

Prof. OGLETREE: It reflects the fact that she is careful, she is judicious, she is pragmatic. And in fact, if you look at it, she says the second circuit has decided these issues. Here's the law. It's fairly well-detailed in the district court opinion. And I can't challenge our jurisdiction and I'm not going to expand it, et cetera. And what it says is that she is a very careful judge, someone who has had 17 years of federal experience, who is more experienced than anyone on the Supreme Court now who has tried cases.

And conservatives should be turning cartwheels to think that this is who they're getting on the Supreme Court because there are a lot more progressive folks who could be nominated. But here is a person who is extremely qualified but she is also, in the 3500 or more opinions she's been involved in, a very careful, judicious and sometimes even moderate or conservative judge, who will be the same on the Supreme Court. There will be no change in the balance at all in the Supreme Court.

MARTIN: And finally, Professor Ogletree, we only have a minute left. You said that this question will remain with us. You pointed to the division on this court, the division on the court just below it, U.S. Court of Appeals. How will we see this issue argued again in your opinion?

Prof. OGLETREE: Well, first, there will be a lot of cases coming up, I think, that may not make it to the Supreme Court, where people are going to misinterpret this saying, oh, that's the end of fighting discrimination. Now we've got a black president. We don't have a race problem anymore, we're in a post-racial society so we who are affected by laws, now have a pass. That's not what it's saying and that's not what the court will say? I think, what it means, Michel, is this, is that we still have to make people understand that this was not giving blacks or browns or women something special.

It was applying laws that were a result of 40 years of battles from the '60s to the present. And I see this as a continuation. But I also see brave city leaders trying to figure out why is it in the 1900s we didn't have black firefighters and women and why we have so few now.

MARTIN: Okay.

Prof. OGLETREE: This is a challenge but we will move forward on it.

MARTIN: Harvard law professor Charles Ogletree is also the founding and executive director of the Charles Hamilton Houston Institute for Race and Justice. He was kind enough to join us from KAJX in Aspen, Colorado. We were also pleased to be joined by Nina Perales. She is the Southwestern regional counsel of the Mexican-American Legal Defense Fund. She joined us by phone from San Antonio. I thank you both so much for speaking with us.

Ms. PERALES: Thank you.

Ms. OGLETREE: Thank you.

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