Justices Zero In On Race-Based Distinctions

by Carole Bass | April 22, 2009 3:20 PM | | Comments (11)

toughTorre.JPGWashington, D.C. — Was it a “race-based” decision? Or simply “race-conscious”?

When New Haven firefighters got their day before the U.S. Supreme Court Wednesday, that turned out to be a central question on the minds of justices determining whether the city unfairly denied promotions.

Five years after the city decided not to use the results of a promotional exam for fire lieutenants and captains, the “New Haven 20” — 19 white firefighters and one Latino — brought their case, Ricci v. DeStefano, to the nation’s highest court. They claim the city violated their rights by not promoting them.

New Haven tossed the exam because white test-takers passed at twice the rate of black applicants.

The question of what legal definition fits that decision emerged as a central issue as the justices spent spent 70 lively minutes Wednesday quizzing lawyers for City Hall, the high-scoring white firefighters, and the Obama administration.

“How do you draw the line,” Chief Justice John Roberts asked at one point, “between race-conscious that’s permitted and racial discrimination that’s not? “

Read the full transcript of the proceedings here.

And for an analysis of the role of the swing vote on the court, Justice Anthony Kennedy, click here.

Frank Ricci made the trip to D.C. to watch the arguments. He is the thwarted firefighter whose name adorned the suit that became the focus of national media attention and may help determine the course of affirmative action in the country.

“We’re just happy that we had our day in court,” Ricci said.

Ricci was accompanied by fellow firefighters, all in uniform. Afterwards, they stood by their local attorney, Karen Torre (pictured above), on a plaza by the Supreme Court steps.

Torre_group1.JPG“What happened to the New Haven 20 has been happening to people around the country. These guys don’t want to be ‘white firefighters.’ They just want to be firefighters. But the city is insisting” on classifying people by race and gender, Torre told reporters.

The city argued that all along they’ve been following federal law.

“Compliance with a federal statute, even a race-conscious federal statute, cannot be deemed a discriminatory purpose,” city lawyer Christopher Meade told the justices.

The $64K Question

If the justices determine that the city made a “race-based” decision, that would make the action discriminatory under the law.

The passed-over firefighters claim that the city’s decision was based on its view that too many white people scored high on the test — or, conversely, that no black firefighters scored high enough to qualify for immediate promotions.

The city contends that it acted out of concern that, because the test results skewed so heavily against black candidates, accepting them might itself violate federal anti-discrimination law. So it decided to start over with a fairer test, it says. (Because of the litigation, no promotions have been made.)

The distinction between permissible “race consciousness” in government decisions and impermissible race discrimination is not new to the Supreme Court. It has previously dealt with the issue in cases involving school desegregation and affirmative action in higher education.

With this case, it was clear in the courtroom Wednesday, the justices are trying to figure out where to draw that line in a new arena: employment. Their decision could have a major impact on a key civil rights law, Title VII of the Civil Rights Act of 1964.

At the heart of the case is a form of discrimination known as “disparate impact” — employment rules that are neutral on their face, but that disproportionately hurt one group, like black people or women. Such measures can be unintentionally discriminatory, or they can be a smokescreen for intentional bias.

Under Title VII, when a test like New Haven’s produces racially disparate results, that in itself is evidence of discrimination. But it’s not proof. If the test was job-related and no better alternatives exist, the test can still be valid.

New Haven says that, when it saw the outcome of the firefighter test, it realized it was vulnerable to a possible Title VII suit by black firefighters. The city also says (belatedly, in the view of the New Haven 20), that it discovered flaws in the test-making process that raised further doubts about its validity. So the mayor-appointed Civil Service Board refused to certify the test results.

Souter: “Damned If You Do…”

Coleman.JPGThat, Gregory Coleman (pictured), the Texas-based lawyer for the New Haven 20 argued before the court, was a “race-based” decision that cannot be justified. “The city said, ‘This comes to the wrong racial result, and therefore there must be something wrong with the test.’”

“The problem I have with your argument,” responded Justice David Souter, “is that it leaves a governmental body in a damned-if-you-do, damned-if-you-don’t situation.” Faced with test results like New Haven’s, he said, an employer’s only choices are “to blunder ahead” into a lawsuit or to prove that it gave a discriminatory test. “Whatever Congress wanted to attain” through Title VII, “it couldn’t have wanted to attain that.”

New Haven says a key distinction between what it did and impermissible race discrimination is that the city didn’t manipulate test scores or promote lower-scoring black candidates. Instead, it dumped all the scores, an action that New Haven’s attorney, Meade, and Deputy Solicitor General Edwin Kneedler for the U.S. government called “facially neutral.”

Several of the most conservative justices were clearly skeptical.

“How you can say that’s neutral, I don’t know,” chided Justice Antonin Scalia. “You would say that if it came out the other way,” if black firefighters aced the test? “I don’t think you’d say that.”

How Many Do-Overs?

“I have trouble with this,” noted Justice Anthony Kennedy, often a swing vote on divisive issues, noting that New Haven did compare individuals’ test scores with their race.

There was one point on which Meade, the city’s lawyer, appeared to reassure the justices. Responding to the New Haven 20’s complaint that upholding the city’s decision would allow it to keep giving new tests until it achieves the desired outcome, Meade said that would not fly. One “do-over” can be valid, he said; a second would not.

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

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: Unbelievable | April 22, 2009 4:38 PM

I only hope that this case exposes King John for who/what he is. Enough already of this guy, his cronies and their pc ... Frank Ricci for write-in mayoral candidate.

Posted by: Bob Nierodzik | April 22, 2009 5:12 PM

Karen and F.F.'s - Over thirty years ago I too had a similar experience occur. Unfortunately, at that recent point in time (as regards the Ricci decision); my Dept. leadership HAD to succumb. As a result of that lawsuit, I "sat" within the top 14 applicants for over 1 1/2 years, by which time I had been forced into other employment. I sure wish I could go back and relive those 30+ years MUCH more comfortably.

I'm SO sick and tired of hearing about "racial quotas"; it's no wonder the blacks say that predjudice still exists in our country - THEY refuse to let it die!!

Posted by: Chris Gray | April 22, 2009 5:14 PM

Well, I have been out of touch with NHI for a while and I don't recall a byline by Carole Bass before, but you are a welcome voice, here.

Back in the thick of it, here in New Haven, again, huh? The "New Haven 20" thrusting us back to the forefront of the ... well, let's not mince words, the race war in America that's been part of the so-called culture wars of the '90s and '00s since the '60s. It isn't close to being over and, if you thought that America electing a black man President would solve the problems, ask Malcolm X.

I can't open another window right, now, to do the research about Moyer's guest this week, who wrote "The Wire", but he was speaking about the malaise that allows our urban centers to house the excess population our society does not need to function, to paraphrase him, mostly Black and Latino and nothing is done to improve their lot but consign them to living in an underserved police state.

The reason for race disparity in test results is directly tied to the historical underfunding and wholesale, corrupt mismanagement of urban/black schools. Local control means local mismanagement. (Who says the Feds are the big wasters of tax dollars? Not New Haven residents.) How the Supreme Court's decision, either way, will remedy that, I can't imagine. Malaise is pervasive.

Posted by: Pictures Say a Thousand Words | April 22, 2009 6:41 PM

Mmmm...Three photos of the (white) firefighters with their lawyers, zero photos of the (black) firefighters or the city attorneys. Quotes from the lawyers on the Ricci side, zero quotes from the city's lawyers.

And actually, despite the slant of this article TWO sets of firefighters got their day in court. So much for unbiased reporting. What a shame.

Posted by: Chris Gray | April 22, 2009 10:59 PM

Have to say, since being reminded of Warren Kimbro by Paul and Doug Rae's book and his passing, that half of Kimber's success, it seems to me, is based on that similarity of names which gave him an aura of legend, at least in the press (who could tell which was being talked about?), before he ever spoke a word from a pulpit, or into a politician's ear, here.

At least, it confused me for years.

Posted by: Chris Gray | April 23, 2009 12:10 AM

Wow! An 11pm post made it in by 12am, a late night at the keyboard, indeed! I'll contain my griping about delays, for certain, now!

Posted by: David Samuels | April 23, 2009 10:30 AM

I want to thank Unbelievable & Bob Nierodzik for their posts. Their comments inspire me to continue fighting everyday against institutional racism in this country.

Posted by: Chris Gray | April 23, 2009 11:52 AM

Yeah, the thing about this malaise.

You can't just blame it on the Democrats, as they falsely did on Carter (rememebr Nixon's oil embargo problem?), but it has gone on with both parties for over a century now, with Republicans starving the malaise for votes and Democrats feeding it with patronage for votes, but neither they nor the (once) majority population ever actually addressing the institutional issues, not even prison slavery until 1947 if recent research and writings suggest.

Posted by: Alphonse Credenza | April 23, 2009 4:05 PM

The author is very much mistaken. Latino is not a race. It is an ethnic group. The Latino in question is, I believe, white.

Posted by: kamb | April 23, 2009 11:31 PM

I hope the court does the right thing and shows people that you dont get a pass for a minority or the majority. You will be judged on the merrits of the test you took and nothing else.

King John really needs to go. Will anyone run against this clown who is bankrupting the city!?

Posted by: Philip Avon St. Cyr | May 5, 2009 8:09 PM

Why doesn't anyone question the test itself? (Or why wasn't that covered in this report if the test was indeed analyzed?) That seems to me to be the crux of the matter.

All I did was a Google Search for "biased test questions" to come up with this:

Bias comes in many forms. It can be sex, cultural, ethnic, religious, or class bias. An item may be biased if it contains content or language that is differentially familiar to subgroups of examinees, or if the item structure or format is differentially difficult for subgroups of examinees. An example of content bias against girls would be one in which students are asked to compare the weights of several objects, including a football. Since girls are less likely to have handled a football, they might find the item more difficult than boys, even though they have mastered the concept measured by the item (Scheuneman, 1982a).

An item may be language biased if it uses terms that are not commonly used statewide or if it uses terms that have different connotations in different parts of the state. An example of language bias against blacks is found in an item in which students were asked to identify an object that began with the same sound as "hand." While the correct answer was "heart," black students more often chose "car" because, in black slang, a car is referred to as a "hog." The black students had mastered the concept but were selecting the wrong item because of language differences (Scheuneman, 1982b). Questions that might be asked to detect content, language, and item structure and format bias are listed in Box 2.

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