New Haven Independent

And it could take a while.

That’s the most likely scenario of several sketched out by a leading Supreme Court expert, Linda Greenhouse, when asked about Ricci v. DeStefano. The court is to issue a decision before its term ends in late June.

The whole country’s watching. Twenty city firefighters, 19 white and one Hispanic, filed the lawsuit in 2004 claiming that New Haven discriminated against them by ignoring the results of promotional exam when no African-Americans scored high enough. The case has become a lightning rod in the national debate over anti-discrimination law. It has also become Exhibit A, with no real Exhibit B or C, in the case opponents are making against Supreme Court nominee Sonia Sotomayor.

While the court’s ruling could bring satisfaction to one or the other side in those national battles, it will likely leave an important remaining chapter in the saga for the 20 people with the most at stake, the firefighters who filed suit. They’ve waited six years for promotions. Even with a sympathetic ruling, they may have to wait longer.

Court-watchers expect the Supremes to rule in the firefighters’ favor. The swing vote on the court, Justice Anthony Kennedy, signaled during oral argument that he didn’t buy the city’s arguments.

But then come the details. Judge Arterton (pictured at the top of the story) will likely have the job of sorting out the justices’ directions back in U.S. District Court on Church Street in New Haven, where the suit landed previously before becoming a national test case.

Specifically what directions Arterton will be given remains to be seen. She will likely be required to hold a new trial.

When Arterton last heard the firefighters’ case, she dismissed it through summary judgment, without a trial. After a lengthy appeals process, the case made its way to the Supreme Court.

For firefighters who’ve been awaiting promotions for nearly six years, that may not mean a swift resolution.

“Folks in New Haven who are expecting a clear ruling out of this, may be quite surprised,” said Greenhouse. Greenhouse covered the Supreme Court for The New York Times for 30 years; she won a Pulitzer Prize doing it. She is now a faculty member at the Yale Law School.

“It may leave them as confused as they’ve been all along,” Greenhouse predicted.

Victor Bolden, the city’s new corporation counsel, and Karen Torre, the plaintiffs’ attorney, both declined to speculate on the Supreme Court’s decision. Torre said the length of a trial would depend on what question it centers on.

Asked how long it might be before firefighters are promoted, attorney W. Martyn Philpot, Jr. broke out in laughter. He took the city to court in 1998 on behalf of six black firefighters who claimed they were snubbed by city promotions on a captain’s test. A state court jury called for plaintiffs to be made whole with adjustments for back pay, pain and suffering, and pensions. The city fought that verdict. Over 10 years after its initial filing, the so-called “underfilling” or Broadnax case is still pending before the state Supreme Court.

Philpot said if the Ricci case comes back for a trial before Arterton, he’d expect it to be addressed expeditiously. Given the importance of the case, he reckoned a trial may be wrapped up before the end of the year.

The Greenhouse Scenarios

In an interview this week, Greenhouse (pictured) broke down the various scenarios that may emerge when the U.S. Supreme Court makes a ruling, which is expected by the end of this month.

The first option is for the justices to side with the city. Given the fact that the court took the case, and the comments made by Kennedy during oral arguments, that scenario is “the least likely,” reckoned Greenhouse.

The city could also come to a negotiated settlement with the plaintiffs, but that’s also unlikely, given how much vested interest there is in this case.

All other scenarios would kick the case back to Judge Arterton in U.S. District Court, likely for a trial. It would be “extremely rare” for the justices to issue a specific remedy with narrow orders, such as ordering that the top test-takers be promoted. More likely, they’ll come back with a new analysis of the law, and ask the lower courts to “apply that analysis to the established facts” of the case. The decision could be as far-reaching as to redefine the Title VII of the Civil Rights Act of 1964, which concerns employment discrimination.

“This is a court that is very skeptical of any government counting by race,” said Greenhouse.

“The court’s decision to hear this case was quite surprising,” she said. “The fact that they took it means it really rubbed them the wrong way and they really wanted to get their hands on it.”

Title VII

Getting their hands on it may mean redefining laws governing discrimination in the workplace.

“The nub of the case,” said Greenhouse, “is the tension between two prongs of Title VII.”

One prong of Title VII is a “black-lettered command” that “you may not discriminate in the workplace on the basis of race.” The other prong says that if an employment practice has a “disparate impact” on the basis of race, then the burden is on the employer to justify why that practice is necessary for the job.

The Ricci case highlights the tension between those two prongs.

After the results of the promotional test came back, the city corporation counsel advised the city that “we’re in disparate impact territory,” Greenhouse explained. The city feared a lawsuit on the basis of a so-called 4/5ths rule laid down by the Equal Employment Opportunity Commission, which enforces Title VII. So it ignored the results of the promotional test. The men who were denied promotion claimed they were discriminated based on race.

The Supreme Court’s decision may address that fundamental tension within Title VII, Greenhouse said.

“If the court doesn’t like the way the Title VII has been implemented, it could write new rules,” she said. “The Supreme Court could find that that [4/5ths] rule is not a proper interpretation of Title VII.” The Supreme Court could “revisit the whole disparate impact rule.”

The court could reissue Title VII, with a message that it’s much more important not to discriminate, rather than draft employment practices guided by avoiding disparate impact.

After a new definition is set, the court could “require the lower courts to rewrite decisions based on those new rules.” That task would fall to the Second Circuit appellate court, and likely back to Arterton.

The Obama Solution

A less far-reaching option is for the court to take a middle ground advocated by the Obama administration.

In a brief, the administration 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.

If the Supreme Court agrees with this line of reasoning, said Greenhouse, it would vacate the Second Circuit finding and send the case back to Arterton to address the firefighters’ argument. That would require more testimony, likely through a trial.

A Valid Test?

The court could also send the case back to Arterton to more fully air another question — whether the promotional tests were valid. If a test can be shown to be “validated,” meaning it tests factors that are related to the job, then it would not be unlawful under Title VII. Such a ruling would require testimony on the substance of the test, likely through a trial.

Spinning In Circles

The court’s final word may prove maddening for New Haveners seeking clarity, Greenhouse said.

The court’s decision could be a combination of the above, or it could be a mixed message that leaves the city to pick it up and say, “Now what?”

That confusion could come in the form of a lack of consensus among justices, said Greenhouse. The case was argued in late April, and is set to be wrapped up by the end of June. “That’s only two months to sort out one of the most complicated cases of the term,” Greenhouse said.

“It’s not out of the question that we would get a decision that has a bottom line that New Haven loses, for instance, but not a majority that says exactly why New Haven loses, which would leave everyone spinning around in circles.”

As evidence of such lack of consensus in the past, Greenhouse pointed to the a school integration case the court ruled on in 2007, titled Parents Involved in Community Schools v. Seattle School District No. 1. In that case, five justices sided with the plaintiffs, but not five justices who agreed upon why.

After issuing an analysis of the law, the Supreme Court often sends the case back to lower courts with vaguely worded instructions to undertake “proceedings not inconsistent with this opinion.”

In Ricci, Greenhouse warned, “The court may not do all that much to clarify what the city has to do next.”

Past stories on fire department promotions and the Ricci case:
• Ricci, Sotomayor Brand DeStefano
• Firefighter Case Reveals Surprise Obama Stand
• 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