Sotomayor Firefighter Ruling Reversed by High Court

Sheila Foster in Bloomberg, June 29, 2009

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June 29 (Bloomberg) -- A divided U.S. Supreme Court, reversing a decision by Sonia Sotomayor and two other judges, said a Connecticut city violated white firefighters’ rights by canceling planned promotions because no blacks qualified.

The justices, voting 5-4, said New Haven improperly used race as a basis for throwing out the results of a pair of tests administered to candidates for lieutenant and captain positions.

The reverse-discrimination case has become a focal point in the debate over Sotomayor’s nomination to the Supreme Court by President Barack Obama. An appeals court panel that included Sotomayor rejected the white firefighters’ lawsuit, saying the city acted legitimately to avoid discrimination against blacks.

“Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” Justice Anthony Kennedy wrote for the majority.

The justices divided along lines that reflected the majority’s skeptical approach to racial preferences. Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Clarence Thomas joined Kennedy’s opinion.

Trade groups representing employers and human resource managers urged the court to uphold the Sotomayor decision. They said employers should have flexibility when they discover that an employment practice is having a disproportionate impact on particular racial groups.

Dissenting Justices
In dissent, Justice Ruth Bader Ginsburg said the ruling means that New Haven, which is about 36 percent black and 24 percent Hispanic, will be served by a fire department “in which members of racial and ethnic minorities are rarely seen in command positions.”

She added: “The white firefighters who scored high on New Haven’s promotion exams understandably attract this court’s sympathy. But they had no vested right to promotion.”

Still, Ginsburg’s reasoning differed from that of Sotomayor and the appeals court panel. Ginsburg said the lower courts should have asked whether New Haven had an objective basis for fearing it would be successfully sued by minority firefighters under Title VII of the 1964 Civil Rights Act.

The trial and appellate courts focused on the city’s “intent,” rather than the underlying evidence, she said. New Haven argued that it had a “good faith” belief that cancellation was necessary to avoid liability under Title VII.

From the Bench
Ginsburg, who took the unusual step of reading a summary of her dissent from the bench, said she would have supported a ruling sending the case back to the trial court level for additional analysis.

Justices John Paul Stevens, Stephen Breyer and David Souter also dissented. The justices today released their final opinions in their 2008-09 term, the last for the retiring Souter.

Kennedy said the city, in order to legally cancel the promotions, needed to have a “strong basis in evidence” that it would have been liable in a suit by black firefighters.

“There is no evidence -- let alone the required strong basis in evidence -- that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the city,” Kennedy wrote.

“This decision will change the landscape of civil rights law,” said Professor Sheila Foster of Fordham University in New York City. In response to a question, Foster said the closeness of the vote doesn’t diminish the ruling’s impact.

Civil Rights Act
Twenty firefighters -- 19 white and one Hispanic -- sued, saying they were victims of racial discrimination in violation of the Civil Rights Act and the Constitution. The group was led by Frank Ricci, a dyslexic who said he studied up to 13 hours a day and paid hundreds of dollars to have someone tape-record the materials.

The Obama administration largely agreed with the city’s legal contentions, while saying a lower court should revisit what the city’s motivations were.

Conservatives hailed the ruling, saying it raised new questions about Sotomayor’s fitness for the nation’s highest court.

“Today’s decision is a victory for evenhanded application of the law,” John Cornyn, a Texas Republican who serves on the Senate Judiciary Committee, said in a statement. “And while the justices divided on the outcome, all nine justices were critical of the trial court opinion that Judge Sotomayor endorsed.”

John Payton, the president and director-counsel of the NAACP Legal Defense and Education Fund, said the ruling “imposes new burdens on employers and makes it more difficult to maintain a discrimination-free workplace.”

The cases are Ricci v. DeStefano, 07-1428, and Ricci v. DeStefano, 08-328.