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Ricci Aims At Supreme Court, Again

by Thomas MacMillan | Feb 15, 2012 9:03 am

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Posted to: Legal Writes

Melissa Bailey File Photo In a landmark U.S. Supreme Court case, attorney Karen Torre argued that race should not play a role in New Haven’s fire department promotions exams. Now she hopes to take that argument for race-blindness further and have the court strike down part of the 1964 Civil Rights Act.

Meanwhile, thanks to a request by the city, New Haven may once again be on a collision course with the nation’s highest court.

Torre Tuesday morning filed a motion to intervene in the case of Michael Briscoe v. New Haven, in which a black New Haven firefighter is suing the city over the results of a notorious 2003 fire department promotions exam. Briscoe, who scored well on the oral but not the written portion of the exam, argues that the test was not an accurate assessment of job-preparedness.

Brisco’s case was originally dismissed. Then that dismissal was overturned last year. So Briscoe’s case is back in federal court. At a Tuesday afternoon hearing, Briscoe’s attorney, David Rosen, was joined in a 17th floor courtroom at 195 Church St. by city attorneys, and by attorney Torre.

Torre was there because of motion she filed Tuesday on behalf of a group of firefighters made famous by the same controversial 2003 exam Briscoe is suing over. She represented a mostly-white group of 20 firefighters who sued the city after it threw out the results of the test after African-Americans scored poorly. The case, called Ricci v. DeStefano, went all the way to the U.S. Supreme Court, which ruled in favor of the so-called New Haven 20 on June 29, 2009.

Now the New Haven 20 (minus one firefighter who retired) are reunited in a new legal effort. Their motion to intervene states that the interests of the 19 are now at stake in the Briscoe case, and they should be a party to the proceedings.

Torre said the motion is also an attempt to challenge the constitutionality of the disparate impact doctrine established by the 1964 Civil Rights Act, which prohibits employment policies that can be shown to have an adverse impact on a minority group.

Judge Charles Haight Tuesday did not rule on Torre’s motion to intervene. Instead, he issued a stay on all proceedings in the case because the city will file a request Wednesday to have the U.S. Supreme Court consider the appeals court’s decision in favor of Briscoe (overturning the dismissal of the case). The stay will be in place until the high court decides whether or not to take the case.

The city’s request could mean that the nation’s highest court will once again weigh in on New Haven matters. Lawrence Rosenberg, a contract attorney for the city, told Haight that the U.S. Supreme Court may very well decide to take up the Briscoe case and overturn the appeal decision, since the case is so closely related to the Ricci case the justices decided relatively recently. He said the U.S. Supreme Court’s decision on the matter should be clear by May.

Sitting in the gallery Tuesday afternoon was Frank Ricci, the lead plaintiff on Ricci v. DeStefano. He said he and his co-plaintiffs on that case decided to seek to intervene on the Briscoe case because it’s “a direct challenge to the Ricci case.”

Rosen has argued that any decision on the Briscoe case would not have an impact on the settlement reached by the city and the New Haven 20 in the Ricci case, or the group’s promotions. That’s despite the fact that Briscoe’s complaint challenges the validity of the test that found a number of the group worthy of advancement.

Torre sees it differently.

“The liability judgment and remedial relief sought by Briscoe would, in the movants’ view, diminish and impair the judgments and remedial order in Ricci, work to unwind and undermine the natural effects and benefits—both past and future—of those judgments and order, as well as impede the City’s filling of new vacancies in the NHFD’s command ranks,” states Torre’s motion to intervene.

The motion argues that a successful complaint by Briscoe would encourage other lawsuits and create “chaos,” delays, and uncertainty in fire department promotions that would stall the career development of the New Haven 19 and others.

The motion further states that Ricci and his colleagues “seek to intervene in order to seek a declaration that 42 U.S.C.¬ß 2000e-2(k) is unconstitutional on its face and, alternatively, as applied to governmental employment.”

It was this point that Torre mentioned when asked about the motion after Tuesday’s hearing.

In his concurrence to the Ricci decision, Justice Antonin Scalia said that the Supreme Court will at some point “need to confront the constitutionality of disparate impact,” Torre said.

The doctrine is unconstitutional because it “forces employers to label and categorize people along racial lines,” Torre said.

“Let’s get rid of the disparate impact doctrine once and for all,” Torre said. “It’s ‘game on’ for us. We’re going to take up the issue.”

One of the effects of the doctrine is that employers need to pay attention to race and gender to ensure that their policies are not having an adverse impact on any group.

That’s not a bad thing, argued Rosen.

“The value of the disparate impact provision is that it prevents employers from setting height and weight requirements for jobs that women may be able to do,” Rosen said, by way of example. “It avoids some of what the Supreme Court has called ‘the built-in headwinds’ that keep employers from selecting the best people for filling a job.”

Those “headwinds” can include deliberate or unconscious prejudice, Rosen said. “It helps employers get past stereotypes and gets them to focus more on precisely what it takes to succeed on the job.”

One of the lessons from “the last half-century of American history” is that “sometimes it’s useful to pay attention to sex or age or disability to be sure that unfair distinctions are overcome.”

Rosen said he was not surprised by Judge Haight’s decision to stay the Briscoe proceedings. “Meanwhile we’ll all wait and see if the Supreme Court wants to stay involved with the city of New Haven’s 2003 testing process.”


Past stories on fire department promotions and the Ricci case:

Ricci’s Not Over
New Haven 20 Win $2M+; Lawyers Win $3M
Arterton Asks 2nd Judge To Look At Ricci Conflict Claim
Torre Blasts Ricci Judge For Consorting With “Feminists”
Judge Swings Back; Ricci Case Stalls
“Tinney Intervenors” Step Down In Ricci Case
Ricci Victors Seek Damages
After 6-Year Battle, Firefighters Get Badges
•  Ricci Case’s “Tinney Intervenors” Try Again
•  10 More Firefighters Promoted
•  Judge Blocks Black Firefighters’ Move
•  Board Promotes 14 Firefighters
•  Judge Orders Firefighter Promotions
•  Black Firefighters Seek To Halt Promotions
•  Promotions Pitched In Ricci Case
Ricci’s Back In Court
After Ricci Ruling, Black Firefighter Sues City
Ricci Takes The Stand
In D.C., Two Latino Views On Sotomayor
Dems Swing Back On Ricci
ConnectiCOSH Kibosh
Sotomayor: I Didn’t “Hide” Ricci Case
Is Ricci Being Smeared?
Sotomayor Speaks On Ricci
Ricci Takes Center Stage
Watley: I’d Have Promoted Ricci
Firebirds, NAACP: Ricci Won’t Stop Us
“If You Work Hard You Can Succeed In America”
Was He The Culprit?
Supreme Court Overturns City On Ricci
On Page 25, A Hint
Minority Firefighters Vow Post-Ricci Unity
Ricci Ruling Won’t End Quest
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

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