WASHINGTON – The latest controversial race case landed in the Supreme Court today with extended arguments about the merits of a city's decision to set aside the results of a promotions exam when no African Americans scored well to enough to merit a promotion.
A ruling—expected by June—could impact the hiring practices of employers all across the country.
The issue confronting the justices is at what point does a hiring decision with unmistakable racial overtones go from permissible to unconstitutional.
The packed courtroom included several dozen New Haven, Connecticut firefighters—white and black—some of whom stood in line outside the court in a spotty drizzle since shortly after midnight to make sure they had seats for the arguments which lasted beyond their allotted time.
Gregory Coleman opened up the arguments by telling the justices that the white firefighters he represents were subjected to "regrettable and socially destructive racial politics" when their promotions were set aside by New Haven's city leaders.
After reviewing the results of the promotions exam, the city—fearing civil rights lawsuits from its black firefighters—decided to promote no one. That decision led to the reverse discrimination action by the white firefighters who would have been promoted had the city certified the test results.
Justice David Souter said New Haven was in a "damned if you do, damned if don't situation" and that the city ought to have enough leeway to re-test the firefighters without fear of litigation. But Chief Justice John Roberts was the most vocal critic of that approach. "[T]hey get do-overs until it comes out right?" Roberts wondered.
Roberts was also troubled by the impact of the city's decision on its white firefighters who earned the promotion. New Haven argued and lower courts have so far ruled that because no was promoted no one was unfairly treated. But Roberts didn't buy that argument. "[T]here are particular individuals here," Roberts said and suggested the city was more interested in the racial dynamic of the promotions list than the people themselves. "[I]sn't that kind of a blank check to discriminate," he asked.
Today's reverse discrimination case is the latest racially sensitive case to come before the Court. In recent years it addressed disputes over school admissions and bussing. And just as those cases have impacted the education system, this case could do the same for employers—public and private—all across the country.
As has become custom, the comments of Justice Anthony Kennedy are of interest because his vote is often the one to carry the day in tight cases. Early on in the arguments he was asking about the permissibility of race conscionable decisions. But then later on he took specific issue with New Haven's actions. "[I]t looked at the results, and it classified the successful and unsuccessful applicants by race. And then — and you want us to say this isn't race? I have — I have trouble with this argument."
The case also cast a spotlight on the Obama Administration's views of affirmative action and racial preferences. Deputy Solicitor General Edwin Kneedler argued the city was fundamentally correct in its handling of the case. He said the city should have "considerable flexibility in assessing their practices and deciding on appropriate action if it looks like one of their actions" is reasonably likely to be discriminatory.
Following the arguments lawyers and advocates from both sides gathered outside the court to talk about the case. Frank Ricci, the white firefighter most closely identified with the case said he was happy to have his day in court and asserted that "if you work hard, study and apply yourself, you will succeed."