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U.S. Supreme Court takes up 'reverse discrimination' case

White firefighters in New Haven, Conn., say the city should have considered test results.

By Staff writer of The Christian Science Monitor / January 9, 2009



The US Supreme Court has agreed to take up a potential major reverse discrimination case examining the use of race as a factor in government hiring.

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The announcement came Friday afternoon after the justices' private conference earlier in the day. The case will likely be argued in April.

It stems from a 2004 lawsuit filed by white firefighters in New Haven, Conn., who say they passed an exam for a job promotion only to have the test results thrown out because no African-American candidate received a high enough score to also be considered for promotion.

City officials said they wanted to add diversity to management ranks within the fire department. They made special efforts to design a test process that would reduce any bias that might disadvantage minority candidates.

But when no blacks and only two Hispanic applicants qualified for consideration for the management jobs, the city decided to scrap the entire test.

Seventeen white firefighters and one Hispanic firefighter who passed the test sued, claiming the city violated their constitutional right to equal treatment. They also charged that the city violated Title VII of the Civil Rights Act by discriminating against them solely because they weren't black.

A federal judge threw the case out. "The decision to disregard the test results affected all applicants equally," US District Judge Janet Bond Arterton said in a 48-page opinion. Those who passed the test were only given an opportunity for promotion, she said, not a guaranteed job.

The test was designed to narrow the field among potential candidates for seven openings for fire department captains and eight vacancies for lieutenants. Forty-one applicants competed for the captain jobs. Seventy-seven applicants vied for the lieutenant positions.

Among the firefighters who sued was Frank Ricci. He said he studied eight to 13 hours a day to prepare for the test and that he spent more than $1,000 on books and paid someone to record the study materials on tape because he is dyslexic and learns better by listening.

The white firefighters said the city yielded to political pressure from a vocal African-American minister and supporter of New Haven Mayor John DeStefano. The minister had been urging more diversity among managers at the fire department, a goal shared by city officials.

There is no indication in the court record that overt race discrimination played a role in the failure of the 27 African-American job applicants (eight for captain, 19 for lieutenant) to pass a test that had been designed to help them perform well.

City officials justified their invalidation of the hiring exam by noting that the test results – if certified and used – would impose a disparate impact on black job applicants. None would be eligible for the open jobs.

Judge Arterton ruled that the disparate impact justified the use of voluntary race-conscious remedies by the city – the exclusion of the qualified white and Hispanic firefighters.

"New Haven did not race-norm the scores [to favor minority candidates], they simply decided to start over," the judge said. "While the evidence shows that race was taken into account in the decision not to certify the test results, the result was race-neutral: all the test results were discarded."

The firefighters appealed. More than a year and a half later, a three-judge panel of the Second US Circuit Court of Appeals affirmed Judge Arterton's ruling. The panel issued a one-paragraph decision praising Judge Arterton's "thorough, thoughtful, and well-reasoned opinion."

"We are not unsympathetic to the plaintiffs' expression of frustration," the panel wrote. "Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim."

The appeals court panel concluded that city officials acted within the law when they threw out the test results. They were simply trying to fulfill their obligations under anti-discrimination laws when confronted with test results that produced a disproportionate racial impact, the panel said.

The appeals court decision sparked an unusual level of rancor among the 13 judges of the Second Circuit. Six judges voted to re-hear the New Haven firefighters' case. Seven voted to deny a rehearing.

In a 12-page dissent from that denial, Circuit Judge Jose Cabranes said the three-judge panel should have issued a full opinion examining the case. Failing that, the entire Second Circuit should have taken up the case, he said.

"This court has failed to grapple with the questions of exceptional importance raised in this appeal," Judge Cabranes said. "If the Ricci plaintiffs are to obtain such an opinion from a reviewing court, they must now look to the Supreme Court," he said. "Their claims are worthy of that review."

The case is Ricci v. DeStefano (07-1428 and 08-328).

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