Firefighter Case Heads to Supreme Court

This is a rush transcript from "Hannity," April 3, 2009. This copy may not be in its final form and may be updated.

SEAN HANNITY, HOST: We've all heard about civil rights discrimination lawsuits, but what about reverse discrimination suits? Well, on April 22 you will when the Supreme Court hears the case of 20 New Haven firefighters, and our own Ainsley Earhardt is here with a special investigation into this monumental case — Ainsley.

AINSLEY EARHARDT, FOX NEWS CORRESPONDENT: Thanks, Sean.

As you mentioned, the landmark case is set to be heard in front of the Supreme Court this April. Twenty firefighters from New Haven, Connecticut, are suing the city for reverse discrimination. The firefighters say that their civil rights were violated under the Constitution's equal protection clause when they were denied promotions that they had earned because they were white, not minorities.

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The city feared a lawsuit from minority firefighters if it didn't have a diverse range of commanders.

Now the spotlight is on the Obama administration, who will have to take a stance on whether or not he is for or against the court's ruling, which basically determines whether racial quotas in civil services field are legal or not.

I visited with four of these firemen. Take a look.

(BEGIN VIDEOTAPE)

CPL. MATTHEW MARCARELLI, NEW HAVEN FIRE DEPARTMENT: We feel that we're fighting for our rights, our civil rights. To be treated equally like our counterparts.

EARHARDT (voice-over): Their story starts in 2003 when the city of New Haven administered promotional exams for the positions of lieutenant and captain.

MARCARELLI: The exams consist of a written portion which is given on one day.

Once they do that, then you complete that, you move onto the oral assessment, which is scenario based. So you're asked a series of questions by subject matter experts.

Once that's done, they make a composite score, and that's how you get your ranking.

EARHARDT: And after all their hard work, all 20 scored in the highest bracket, but the city decided to scrap the exam because not enough minorities had scored high enough. They feared a civil rights lawsuit for not filling racial quotas.

CPL. BENJAMIN VARGAS, NEW HAVEN FIRE DEPARTMENT: Everybody had the same amount of time to study. Everybody had the same books, and it all boiled down to not so much who wanted it more, but who was going to put in the time and had the ability to pass and do well on the exam.

MARCARELLI: To know that I wasn't going to get promoted, even though I ranked in the No. 1 position after all that preparation, it was just gut wrenching.

EARHARDT: The New Haven 20 banded together and filed a lawsuit, claiming they were all victims of reverse discrimination. That lawsuit turned into a five-year-long process of appeals and has gone now all the way to the Supreme Court.

MARCARELLI: It's something that shakes what you believe in. Because you believe if you work hard, you're rewarded for that, and that's not necessarily the case.

EARHARDT (on camera): How do you explain that to your kids?

MARCARELLI: Fortunately, they're young enough where I haven't had to do that, but I've thought about often how I'm going to explain that to them.

EARHARDT (voice-over): Earlier this year the Obama Justice Department under Eric Holder filed a brief that conservatives claim would help usher in a new era of, quote, "politically-correct discrimination."

In it the Justice Department sides with the city of New Haven, saying they did have a right to discount the test if they thought they could be sued by minority firefighters for not having a diverse enough fire force.

But they also said the matter should be considered in greater detail by the district court to determine if the tossing of tests was, quote, "pretext for intentional racial discrimination"

Many viewed this as a way for the Obama administration to play both sides without having to make a decision either way.

KAREN TORRE, ATTORNEY FOR FIREFIGHTERS: I think people see our effort to have the same equal rights and civil rights for everyone as somehow a threat, but I think in reality, there are some people who prefer that the civil rights laws not be a standard applicable to all citizens, but — but a system of special preferences.

EARHARDT: But these firefighters will get their day in court, the Supreme Court, on April 22, when all eyes will be on the verdict.

VARGAS: We hope that all Americans are given equal rights as a result of all of this.

(END VIDEOTAPE)

HANNITY: All right. Ainsley is with us.

I wanted to ask one question about this, because they talked about the written part of the test and the oral part of the test. Was the oral part subjective — subjective, or was that the same for everybody?

EARHARDT: It was the same for everyone. Everyone took the exact same test. It was very, very difficult apparently. Some of these guys said that they studied 16 hours a day, took time away from their families. All of those guys you heard from, or most of them, at least, had small children at home. They said their wives were handling the kids while they were studying.

HANNITY: Because they wanted to get — and one guy in that piece said same book, same study time, you know, and for five years now they've had to fight for this.

Let's go into more detail about what the Obama administration is doing here.

EARHARDT: Yes.

HANNITY: And how they want to have it both ways.

EARHARDT: Well, they're kind of not taking a stance. They sided with the city in that briefing, in Holder's briefing, in the Justice Department's briefing, but they're not really taking a stance because it's such a touchy subject.

But this is Obama's chance. He talked about this in the election. This is his chance to come forward and say maybe yes, there is a place for quotas, but in the fire department? You know, when you're fighting a fire...

HANNITY: Yes.

EARHARDT: ... or when your House is on fire, you want the best and the brightest to come and fight that fighter.

HANNITY: No, I think that's a good point. And do you end discrimination with institutionalizing it, or with more of it here?

But when they made the case where only the threat of a lawsuit would justify the city's denial of the promotion, that doesn't make sense to me.

EARHARDT: That doesn't make sense.

HANNITY: So that anyone who threatens a lawsuit, so now promotions are going to be thrown out?

EARHARDT: Exactly. If we have a fear of lawsuits — I mean, and what's so ironic is the city was so fearful of getting lawsuits from the minorities, but it's the other side they're getting lawsuits. So either way they're going to get a lawsuit, so why not do what's right?

HANNITY: Equal protection used in Bush v. Gore. Some would argue, attorneys, that it's difficult to prove, but this seems to be one case where it might — might work for them.

EARHARDT: Right. And when we were talking with them, it seemed pretty cut and dry. I mean, it's just — in this situation at least. I understand that there are quotas that are necessary in certain fields.

HANNITY: Last question: were any of the questions in any way deemed racial? Because that has happened in past cases.

EARHARDT: No, absolutely not. We did ask that question, and they said that it was racially neutral, which meant it was...

HANNITY: It was about firefighting.

EARHARDT: ... the questions were black and white. It was — no pun intended — it was about firefighting. Yes.

HANNITY: Ainsley, great report. Thanks for being with us.

EARHARDT: Thank you.

HANNITY: Appreciate it.

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