RENEE MONTAGNE, host:
We turn now to what it means that the U.S. Supreme Court ruled in favor of a group of white firefighters in a major case involving discrimination in the workplace. The high court wrapped up its term with a ruling in the much-watched case where the firefighters claimed that a decision by New Haven, Connecticut to set aside the results of a promotion exam amounted to illegal race discrimination.
It was a five-to-four ruling, and added to the impact of the court's decision, it also reversed a ruling by a federal appeals court panel that included Supreme Court nominee Sonia Sotomayor. NPR legal affairs correspondent Nina Totenberg has details.
NINA TOTENBERG: New Haven decided to scrap the results of its firefighter promotion exam after no African-Americans scored high enough to be promoted to lieutenant or captain. The city feared it would be sued by minorities under a provision of the Civil Rights Act that treats such racially disproportionate results with great suspicion.
Yesterday, a divided Supreme Court ruled that the fear of litigation alone cannot justify an employer setting aside the results of a valid promotion exam. Writing for the five-member court majority, Justice Anthony Kennedy said that while the city of New Haven acted in good faith, all the evidence suggests it rejected the tests because the higher scoring candidates were white.
Such a racial rationale, the court said, cannot be justified under the Civil Rights Act. The court did not disturb the provision of the law that treats with suspicion any test that produces rationally disproportionate results, but the justices said that to set aside results for a test already given requires strong evidence that the test was either intentionally or unintentionally discriminatory. And no such evidence of discrimination existed in the New Haven test.
The test, said the court, was fair, job-related, and its detractors put forward no better test as an alternative. Therefore, the promotions must go forward.
In New Haven, white firefighters were overjoyed. Frank Ricci, the lead plaintiff in the case, is a dyslexic who practiced with flash cards and hired a tutor to help him study for the test.
Mr. FRANK RICCI (New Haven, Connecticut Firefighter): I think 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: Although the white firefighters in New Haven won big yesterday, most experts said the impact of the ruling would be quite limited. University of Michigan law professor Richard Primus is so well respected in this area of the law that his work was cited by the court's majority and dissenting justices yesterday.
Professor RICHARD PRIMUS (Law, University of Michigan): It will probably make a big difference in a very small number of cases.
TOTENBERG: University of Washington Professor Eric Schnapper is another employment law expert.
Professor ERIC SCHNAPPER (Employment Law Expert, University of Washington): This case could be the Fred Thompson of the court's term - much anticipated, but quickly forgotten.
TOTENBERG: The reason is that most employers don't hire or promote by rigid adherence to test scores anymore. Part of the legacy of the civil rights law is that employers have had to rethink how they hire and promote, and whether requirements are really related to the job. Police and fire departments have often been the last to change, in part because promotion to rigid adherence to numbers avoids political interference, and in part because some places the type of test is established in the union contract.
In New Haven, for instance, the union contract requires the promotion test to be 60 percent multiple-choice, written exam. This despite the test that test designers agreed that minorities do less well on these pen-and-pencil exams and better on reality simulations. The message from yesterday's Supreme Court ruling is that if a municipality wants to change its testing procedures, it better do it before anyone takes the test. Michael Rosman of the conservative Center for Individual Rights.
Mr. MICHAEL ROSMAN (Center for Individual Rights): The basic change in reality is that employers will not be able to toss out the results of tests solely based upon disparate impact.
TOTENBERG: Professor Primus agrees.
Prof. PRIMUS: My guess is that a lot of municipalities are tonight and tomorrow going to look at the rules that they labor under today and see if there are ways that they can change them.
TOTENBERG: Just where the Supreme Court is on the question of race and testing remains a bit amorphous. There do not appear to be five votes on the court to invalidate the provision of the civil rights law at issue in yesterday's case. Rather, Justice Kennedy, the author of the opinion, charted a deliberate middle ground, narrowing the court's interpretation of the law. Justice Antonin Scalia warned ominously in a concurring opinion that the court would eventually have to confront to the question of whether the provision is constitutional.
In a rare oral dissent from the bench, Justice Ruth Bader Ginsburg, using a rhetorical skewer, said of the conservative majority: The white firefighters understandably attract the court's empathy, even though they have no vested right to promotions and no person has been promoted in their place. It was a barbed reference to conservative criticism of President Obama's stated desire for Supreme Court nominees who have empathy.
Conservative opponents of Mr. Obama's nominee, Sonia Sotomayor, used the word empathy to mock her nomination, and she was, in fact, a member of the lower court panel whose decision was reversed by the Supreme Court yesterday.
But the high court majority made no mention of Sotomayor and no specific comment about the one paragraph opinion she joined and that the court reversed. While Sotomayor's critics are already seeking to use the decision to fan the flames of opposition to her nomination, a separate action taken by the Supreme Court yesterday is likely to aid the Democratic push for a confirmation vote this summer. The court announced yesterday it will rehear an important campaign finance case September 9th, nearly a month before the court had been scheduled to start hearing cases this fall.
The case involves a blistering attack documentary about Hillary Clinton produced by a conservative group for airing on cable TV just before the presidential primaries. The lower courts deemed the movie a long-form ad that, because it was financed with corporate contributions, could not be aired in the run-up to the primaries. Under the campaign finance law, the ad also could not be aired because its contributors were not disclosed.
The controversy initially came to the court on a narrow statutory question, but yesterday, the justices said they want their arguments about whether the court should reverse its own ruling of six years ago, upholding a key provision of the McCain-Feingold campaign finance law. If the court does reverse itself, campaign law experts say much of McCain-Feingold would be gutted.
Trevor Potter, a former chairman of the Federal Election Commission and general counsel to the McCain presidential campaign, was openly aghast at the court's decision to revisit its own ruling.
Mr. TREVOR POTTER (Former Chairman, Federal Election Commission): The idea that just because we've had two justices change, you would now turn around and overturn an entire half of the McCain-Feingold decision that was just decided by this court a couple of years ago seems pretty extraordinary.
TOTENBERG: Chief Justice John Roberts and Justice Samuel Alito were not on the court when it upheld the McCain-Feingold law. The question now is whether their appointments to the court will flip it into holding a major part of the law unconstitutional.
Nina Totenberg, NPR News, Washington.
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