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April 22: Reverse Discrimination at the High Court

Case: Ricci v. Destefano

Date: Wednesday, April 22, 2009

Issue: Can local lawmakers—concerned with violating civil rights laws—set aside the results of a civil service exam because a disproportionate number of minority test-takers failed to score high enough to merit promotions?

Background: This racially-charged reverse discrimination case is the first significant affirmative action case to reach the high court in several years. It is also highlights the new Obama Administration's view of the subject and exposes to criticism the decision reached by appellate court judge Sonia Sotomayor, one of the people often mentioned as someone President Obama could select for a seat on the Supreme Court.

2003 was promotions time for the New Haven, Conn. Fire Department. The city hired an outside agency to fairly administer a test to the firefighters looking for advancement. The test was designed to identify the best candidates in a manner that was as racially unbiased as possible. When the results were calculated, no African-American firefighters scored well enough on the test to earn the bump in title or salary. City leaders concerned over lawsuits that could come from acting on the test's racially disparate results scuttled them and promoted no one.

Frank Ricci, who is white, and the 19 other firefighters who scored well sued saying the city violated the 14th Amendment's Equal Protection Clause. Judge Janet Bond Arterton summarily ruled in favor of the city saying it was within its rights to do away the test results—even if the city’s motivation was to placate minority political interests as some have alleged. The ruling also concluded that no constitutional violation took place since no one was promoted all test-takers were treated equally.

The firefighters challenged Judge Arterton’s decision to the Second Circuit Court of Appeals. In a one paragraph order, the court simply affirmed the judge's conclusions. Sonia Sotomayor was one of the three judges who heard the case and produced the short order supporting New Haven's decision. Other members of the Second Circuit sought to rehear the case but came up one vote short in what was essentially a party-line vote.

Interestingly, the judge who authored the dissenting opinion was Jose Cabranes who like Sotomayor was appointed to the bench by Bill Clinton. Cabranes took Sotomayor and the other judges to task for its one paragraph "perfunctory disposition" of the case and said the panel "failed to grapple with the questions of exceptional importance raised in this appeal." This case will undoubtedly receive greater attention should Obama nominate Sotomayor (or Cabranes) to the Supreme Court.

In its brief to the high court, the firefighters plainly ask to be "judged on the strength of their character and the value of their achievements." They argue New Haven's decision to set aside the test results subjected them to the type of discrimination that "is no different than that of other Americans who have been discriminated against on account of their race and found the courthouse doors open to them. [The firefighters] ask nothing more than the basic American right to be judged by who they are and what they have accomplished, not by the color of their skin."

The city responds by saying its decision to toss out the test results was "narrow and prudent" and not done to "benefit minority candidates, adopt affirmative-action policies, or engage in racially proportional promotions." It asks the court to affirm the rulings of the other courts that the decision.

The Obama Administration has effectively sided with the city. In its brief to the Court, it argues that the "district court correctly concluded that a genuine intention to comply with [the 1964 Civil Rights Act's] disparate-impact provisions does not constitute intentional racial discrimination." It contends the city's decision was made in good faith and that governments like New Haven should be afforded "substantial breathing room" to make decision when presented with evidence that it may have violated civil rights laws.

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