Firefighter Case Reveals Surprise Obama Stand

by Carole Bass | April 23, 2009 8:20 AM | | Comments (21)

scotus%20020.JPGIt didn’t side with City Hall. Nor did it side with white firefighters accusing the city of reverse discrimination.

In Ricci v. DeStefano, the racially explosive New Haven case before the U.S. Supreme Court, the Obama administration staked a nuanced middle ground.

The administration of the nation’s first black president essentially argued that if New Haven is telling the truth about why it threw out the results of a promotional exam — because it feared that the test violated civil rights law — then the city acted properly. But, the Obama administration says, the white firefighters deserve a chance to prove their claim that the city’s real motive was discriminatory.

That stand became clear first in a neutral brief submitted to the U.S. Supreme Court, then during arguments before the justices Wednesday.

While a lawyer for the city asked the Supreme Court to uphold New Haven’s action, and a lawyer for the “New Haven 20” urged overruling it, Deputy Solicitor General Edwin Kneedler (pictured) argued for a third course: Send the case back to U.S. District Court in Connecticut for a closer look.

Employers “require considerable flexibility in assessing their practices” to avoid discrimination, Kneedler told the justices.

But still, to justify scrapping a test it had already given, “the employer would have to show that his concerns were reasonable ones.” And that, he argued, New Haven has not yet done.

Following the law, or breaking it?

The justices tackled a dizzyingly complicated case.

It dates to 2003, when the New Haven Fire Department hired a consultant to write and administer a written exam for would-be lieutenants and captains. The idea was to construct a test that would measure important technical knowledge, and that would not unfairly tilt against racial minorities. The New Haven 20 say the city made painstaking efforts to assure that the test was job-relevant and fair. The city, without directly rebutting that notion, paints a picture of a sloppy test-creation process, with the consultant omitting crucial steps (and, implicitly, the city failing to correct those deficiencies).

In December 2003, the results came in with a startling racial divide: Black test-takers’ pass rate was about half that of the white applicants’. No black firefighters were among the top scorers who would immediately qualify for promotion.

So instead of asking the Civil Service Board to certify the test results, City Hall advised setting them aside. The city’s then-corporation counsel told the board that the stark racial disparity was, on its face, evidence that the exam might have violated Title VII of the Civil Rights Act of 1964.

With both white and black firefighters threatening to sue, depending on the outcome, the board ditched the exam results. That, the white firefighters contend, was race discrimination that violated the Equal Protection Clause of the U.S. Constitution.

Send it back

After the New Haven 20 lost in U.S. District Court and again at the 2nd Circuit U.S. Court of Appeals, some legal observers expressed surprise that the high court agreed to hear the case. The Supreme Court decides law, not facts. But Ricci is so bound up in its peculiar circumstances that it seems impossible for the Court to avoid wading into the facts.

In a friend-of-the-court brief and in oral arguments on Wednesday, the federal government urged the Court to wade back out.

The government’s position is closer to the city’s than to the white firefighters’. Title VII recognizes that when an employment practice has a disparate impact on one racial or gender group, that can be a sign of intentional or unintentional discrimination. Therefore, a test that white applicants pass at twice the rate of blacks is inherently suspect under the law. The exam could still be valid. But the employer would need to show that it was truly job-related and that no less-discriminatory alternatives existed.

New Haven says concern about running afoul of the disparate-impact law caused it to scuttle the test results. And, it says, that “good faith” belief was all that was needed to justify its decision.

The New Haven 20 says that’s not a good enough reason, that once the test was given and scored, tossing it based on the racial outcome is unconstitutional. “You’re … taking individuals one by one who have already earned promotions, and you’re taking away benefits from them,” firefighters’ lawyer Gregory Coleman told the justices.

Besides, the white firefighters contend, the city’s supposed civil rights concerns were really a smokescreen for City Hall’s desire to discriminate against white firefighters.

The U.S. government agrees with New Haven that a desire to comply with Title VII justifies setting aside the exam — if there is a reasonable basis to think the test was actually discriminatory. That’s a higher standard than simply the “good faith” belief that the city claimed.

What’s more, Kneedler said, it’s not clear from the record whether New Haven’s motive really was Title VII compliance or something else. That something else, he suggested based on the lower court record, might have been diversity in the fire department’s supervisory ranks; a desire for black role models; or racial politics — none of which meets constitutional muster.

Kneedler’s middle ground didn’t satisfy Antonin Scalia, part of the Supreme Court’s right wing.

As soon as the deputy solicitor general took the floor, Chief Justice John Roberts challenged him: “Can you assure me that the government’s position would be the same if this test — black applicants — firefighters scored highest on this test in disproportionate numbers?”

Yes, Kneedler said.

Later, Kneedler said that setting aside the test was neutral because it affected both whites and blacks. Scalia repeated the question: “You would say that if it had come out the other way?”

“Yes,” Kneedler repeated.

Scalia muttered, “I don’t think you’d say that.”

Read past stories on fire department promotions and the Ricci case:

Justices Zero In On Race-Based Distinctions
Rights Groups Back Black Firefighters
The Supreme Stakes: Title VII’s Future
Dobbs v. Bolden
Latino Group Backs White Firefighters
Black Firefighters: Ricci Case Poses Grave Threat
NAACP Backs City In Firefighter Case
Paging Justice Kennedy
Fire Inspectors Promoted
Fire Inspector List Approved
U.S. Supreme Court To Hear Firefighters’ Case
Fire Promotions Examined in Supreme Court







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Posted by: ron prescott | April 23, 2009 9:18 AM

How about the U.S.Air Force? I retired in 2000 with 22 years of service, I'm white and everyone of us new that black service members not only got promoted with lower scores but they were also helped by higher up black service member, ( big no no in the Air Force no group study). We went to the same boot camp and tec schools, lived in the same barracks and ate in the same dining halls but when it came time for promotion we were treated differently. why?

Posted by: Otrere | April 23, 2009 9:28 AM

We have had reverse discrimination around as public policy long enough. Minorities are well represented in government, academia, entertainment, sports, and industry. Let's return to the American ideal of meritocracy. Regardless of any distinguishing characteristic of the candidates, let's just hire those with the best qualifications. If you have two equally credentialed and capable candidates, then do rock, paper, scissors-no bias in that test.

Posted by: lance [TypeKey Profile Page] | April 23, 2009 9:39 AM

Why is it suprising carol? Because you know he's an out and out racist?

Don't worry, he's still a racist, he just doesn't want to lose votes.

Posted by: Bill | April 23, 2009 10:15 AM

Lawyers of course want to make everything complicated but the real question is what was on the test not what was on the minds of the city. If the test was on things relevant to fire fighting then is was non discriminatory. If it asked questions not directly relevant to fire fighting such as what is the square root of 81 or what is the meaning of antidisestablishmentarianism then is could be viewed as discriminatory.

Posted by: Chris Gray | April 23, 2009 11:36 AM

Hey, Lance, maybe because most administrations would have simply stayed safely out of a question so charged as to bring out the sweetness in you.

Posted by: Moreorless | April 23, 2009 11:57 AM

Sorry Carole; Report the whole truth about Kneedler. He also told the justices that the city should & could test until they get the results they wanted. When he was questioned by Justice Roberts about how many times they could test over & over--Kneedler had no number--meaning as many as necessary. Kneedler represents Obama and the city's view--he has no--I repeat no good will towards the NH20.
The city's atty. feels no one promoted means no one was harmed. Definitely not the way Justice Scalia and Roberts see it--they hammered this guy and Kneedler. Go to the SCOTUS web site and you can read the transcript for yourself. I will say , it was much better seeing it first hand.

Posted by: DAFeder | April 23, 2009 1:03 PM

This country is so stuck in a dysfunctional discussion about race that I would guess that Scalia's muttered comment is correct (and it kills me to say that about that sociopath.)

So let's take race out of the equation. Here's a two-part scenario: what if there were a test -- any test: firefighter, SAT, Wal-Mart checker, Air Force Captain -- on which people who came from neighborhoods with good schools, clean air, and house lots more than 1/2 acre did much better than under-served urban test-takers.

And what if job evaluations later showed that those who scored highly on the test and those who did poorly all did about as well at their jobs?

Should a test like that be thrown out? Obama's statement seems to say that this _may_ be a test that skews against a particular community -- because he (and any reasonable observer) knows there are a lot of tests out there like that. I know from my own classrooms that the traditional ways of getting ahead in school not only aren't the only way to succeed, they're often not even the best way.

Every exam is a test of both the person and the educational environment in which they grew up. You hope the balance tilts toward the former. Whether the New Haven test was like that, I don't know. But to say, minimally, that it _might have been_ inappropriately weighted toward the person's background is no evidence of racism.

And if I can put race back into the scenario: if you willfully ignore the disproportional economic and educational status of predominantly-black neighborhoods, if you willfully ignore the weight of institutional white privilege still prevalent in this country, if you willfully ignore the value of educational and life experiences outside of mostly-white suburbia, well yeah, maybe you're a racist.

David

Posted by: So Disgusted! | April 23, 2009 1:49 PM

I am so disgusted with the New Haven 20 and it's supporters. How dare they scream "reverse discrimination" when all I hear from them online and out in public (in / out) of uniform are racial slurs and belittling remarks about THEIR FELLOW FIREFIGHTERS. These are the same men and women whom you stand side by side in life-threatening conditions. Are they smart enough to save your ass if you should happen to fall on duty? Give me a break. If anyone is fit to be called racist and discriminatory it is the 20. Ugh!

Posted by: El Guapo | April 23, 2009 3:34 PM

two comments:

1. there is no such thing as reverse discrimination, it is just discrimination. If a group is singled out because of their race it is discriminatory, no matter their color.

2. when it comes to firefighters, I want the people that are best qualified to do the job saving me and my loved ones. when my house is on fire i don't care if the group coming to save me has enough racial diversity, i just want them to do the job well. If a test that focuses on actual knowledge and skills that are part of the job shows that 20 people are better qualified they should be the ones that advance, end of story. If you want more minority firefighters, offer more training opportunities so that they have a better chance at scoring well on exams.

Posted by: Alphonse Credenza | April 23, 2009 4:02 PM

Yes, send it back to CT to get it out of the national limelight. Was Obama elected because he was white or because he was black? Or because of other reasons, such as ability?

"If it asked questions not directly relevant to fire fighting such as what is the square root of 81 ... then is could be viewed as discriminatory." Of course, you mean by this that blacks can't add (subtract?) while hosing down brushfires.

What black man (or man of any race, for that matter) would wish to be promoted on account of the accident of his skin color rather than the merit he shows during his life? Only one without much merit to show.

Posted by: robn | April 23, 2009 7:05 PM

I'd actually love to see this test...anybody got a copy?

Posted by: SOS - DD | April 23, 2009 11:09 PM

So Disgusted! - start watching Sesame Street so you can develop enough brain-power to understand the situation correctly.

El Guapo - based on my same experience 35+ years ago - you're correct. There is no such thing as "reverse-discrimination"; it just came to be known as such, back in the days when Title VII was being invoked by any dumbell who felt he had been wronged.

The rest of you logical thinkers - the NH 20 should have no problem winning their case. (The following text can be found on the internet at this site: )

Title VII to the Civil Rights Act of 1964, prohibits discrimination in employment on the basis of race, color, national origin, religion, and sex.
UNLAWFUL EMPLOYMENT PRACTICES
SEC. 2000e-2. [Section 703]

(h) Seniority or merit system; quantity or quality of production; ability tests; compensation based on sex and authorized by minimum wage provisions

Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 206(d) of Title 29 [section 6(d) of the Labor Standards Act of 1938, as amended].

(j) Preferential treatment not to be granted on account of existing number or percentage imbalance
Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor-­management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.

(l) Prohibition of discriminatory use of test scores
It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin.

Posted by: kamb | April 23, 2009 11:25 PM

To SO DISGUSTED,
You missed the entire point. These men, hispanic and white took a promotional test with their peers. They scored higher and they dont get the job?! How is that fair. They do the same job and have an equal playing field. You brought up something about these firefighter who scored lower saving their butts in a fire. UH DUH!? One has nothing to do with the other.


Whats fair is fair. You promote people based on the test for the promotion, NOT on the color of their skin.

Posted by: Katzit | April 24, 2009 9:40 AM

Clearly the justices did not believe the city and Obama lawyers when they said their position is the same if blacks outpass or ourscore whites. No one believe that for a minute. But interestingly, did the US Department of Justice and the US government just do something that will come back to haunt them. If a city uses one of those test developers known to skew testing procedures to favor blacks and the outcome is more favorable to blacks than whites, then the white can demand that city toss the test results and cite THE US GOVERNMENT's and THE EEOC's statments to the Supreme Court as support. How's that for a mistake? Uhmmm . . .

Posted by: Borist | April 24, 2009 12:33 PM

SO DISCUSTED, should write so ignorant.The firebirds, the silvershield,if white people set up these groups they would be called racist but its alright to have black people do it thens theres no problem.May be white people should start something like THE NAAWP and see what happens the whole country would be in a uproar, give me a brake

Posted by: THREEFIFTHS | April 24, 2009 2:24 PM

Hey Borist
There is a NAAWP in this country,It was started in 1953 in the state of Delaware,And It was rekindled by David DUKE IN 1980.If you would like to join here is the webistie www.naawp.org and there E-mail address NAAWP.ORG@DCEMAIL.COM.P.S.
if you would look up the history of the Naacp,You would see that whites help start them and even today you have whites who run chapters and hold memberships.And last I was told by someone who lives in westhaven that they only have one african american fireman,If true what up with that?

Posted by: kamb | April 24, 2009 5:40 PM

Hey THREEFIFTHS,
Whats the problem if WH did have one black firefighter? Is there a problem if New Haven has more black officers on the PD than white? Is there a problem if the Dept of Sanitation has more Asian than Spanish?

WHO CARES!?

If you take a test to get a job and the City goes in order of how you scored, than it is what it is. The City of NH had a problem with its police promitional test when they use to skip groups of people who scored higher than minorities. NOW the PD does not do that. They go right in order. The NHPD is a balanced department, not becuase of Affirmative Action, but because they now go right in order to hire and for promotions.

END AFFIRMATIVE ACTION and the GOOD OL' BOY NETWORK!

Highest score gets hired or promoted, thats it.

Posted by: THREEFIFTHS | April 25, 2009 11:02 PM

Kamb
It is a problem,In fact from the people I have talk to In West Haven, They told me that the fire Department never put out when they are giving a test and the people who told me this are Whites that are friends of mine who live in West Haven for all of there life.They also told me that West Haven no woman Firefigthers,You do not find that odd?P.S Must not Forget Milford and Orange.

Posted by: kamb | April 27, 2009 8:23 AM

Hey THREEFIFTHS
Yes I do find that odd. I find it odd that someone tasking a civil service test can't simply call the city or towns human resource department and find out when the test is. Police, Fire, or any other tests are always posted on town and city websites. I've taken them before. Its not some big sevret when a test is but you have to pick up the phone and call.

Posted by: THREEFIFTHS | April 27, 2009 2:22 PM

Kamb
I found out more information about the West haven
Fire department. The City of West Haven Has no control over hiring.West Haven Fire departments are control by district,Who do the hiring,Now I was told that People of color have take the test and have made high scores and are not still hired,In fact the one African American FireFighter
that is in the department came from New Haven.My point is are you telling me that West haven can not find more people of color to work in the fire department? Also did you know that West haven FireDepartment has no 911 Fire Dispatchers of color.Do you not find that being Odd!!Or Is It the Good Old Boys Network.P.S. I forgot To say it again where are the woman fire fighters at in West Haven.And Kamb I did call and ask How Come West haven Does not have fire fighters of color,You call and ask them the same question and tell me the answer you get as to why there is no Woman and FireFighters of color in the town of West Haven.

Posted by: GJB | June 29, 2009 4:45 PM

Title VII was never intended to be fair. It was inacted to balance the equation for minorities who had been discriminated against for over 200 years. Discriminated right up to the last 15-20 years up to and including today. There are still cases being fought where companies and executives have blatantly discriminated against blacks and other minorities in hiring, raises and promotions. Recently in NYS the federal government the one I pay taxes to, said it was ok to redline - charge a higher interest rate to minorities than they do whites, given the same demographic and economic information. Bush stepped in and stopped NYS from pursuing it's own State law against housing discrimination. This happened a few months ago and is still being fought over. My tax money is equal, there is no sub-tax sections were I pay less tax because I'm a minority, so why not everything else? This idea that people in positions of power are making impartial descisions based on the merits of a test, scores or qualifications is ridiculous, especially when they know who scored what or who they are dealing with. These people have used rigged examinations for 30 yrs to prevent blacks and other minorities from getting raises and promotions. Given the quality of the schools the majority of minorities attend, it's not hard to rig a test to ask questions that the average minority never heard of. Did he study any harder, well a person could, but study new never-before-seen information that you should have known in high school, well you're behind the curve before you start. For those who had it, it's a review. For those who don't it's a course. Simply saying there are blacks in many positions is like saying some of my friends are blacks. Doesn't mean you understand what it means to be institutionally and systematically discriminated against in a very underhanded way; a way, that is difficult to ferret out and even more difficult to prove. If you do not believe what I'm saying you doubters should read "Slavery by any other name." It's about 90 years of continued economic style slavery a partnership between corporate America and the States, after The Emancipation Proclamation. So, in the 19th and 20th Century while White America was building their futures and solidifying the future of the children and grandchildren, owning property, establishing businesses and educating their children, we were being refused the same opportunity. These systemic discriminatory actions continued even after the Civil Rights Acts were made into Law. So don't be deceived into thinking that things are so different that striking down these laws won't have an impact. We are not that far removed from the 50's and the 60's that we can take the chance. Especially in this economic climate where people who are in position to help "the term is their own kind" given an opportunity, will do not do so. Also, each minority generation is less tolerate and less non-violent than the one before it when it comes to their Constitutional rights. My parents were of the MLK generation, my generation was of the Panther generation, my kids were of the Tupac generation and they're children are of the hiphop generation and I do not believe will accept a reversal of their rights.

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