Reverse-discrimination case splits Supreme Court

Justice Kennedy appears to be the tiebreaking vote on whether New Haven, Conn., discriminated against white firefighters.

By , Staff writer of The Christian Science Monitor

The US Supreme Court divided into sharply defined liberal and conservative wings on Wednesday as the high court heard argument in a case involving allegations of reverse discrimination against white firefighters in New Haven, Conn.

As in most highly divisive issues at the high court, the outcome of the case may ultimately depend on the views of Justice Anthony Kennedy. During the 70-minute oral argument Wednesday, Justice Kennedy seemed troubled by the city's decision to throw out all results of a promotion exam only after officials learned that no African-American candidates had scored high enough to be promoted.

"[The city] looked at the results, and it classified the successful and unsuccessful applicants by race," Kennedy told Deputy Solicitor General Edwin Kneedler. "And you want us to say this isn't [using] race [to decide]... I have trouble with this argument."

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In the past Kennedy has expressed distrust of the use of race as a criterion for government decisions and benefits, but he has also been reluctant to embrace the more robust positions of his conservative colleagues.

The case is significant because it lies at the intersection of two important provisions of antidiscrimination law and could provide further clarity to employers seeking to avoid potential discrimination lawsuits.

It focuses on a test given in 2003 to firefighters seeking promotion to lieutenant and captain. When the city determined that no African-American candidates qualified for a promotion it threw out the results. White and Hispanic firefighters who did qualify called it illegal discrimination and filed a lawsuit.

The city says it threw out the test in an effort to comply with civil rights laws, not violate them. New Haven officials said they were worried that if they relied on the results of the test and promoted the white firefighters, the city might be vulnerable to a lawsuit by black firefighters claiming that the test caused an illegal "disparate impact" against minority job candidates.

At issue in Ricci v. DeStafano is whether the city acted properly in throwing out the exam results, or whether city officials should have followed its civil-service rules and awarded the promotions to the top test scores without regard to race or ethnicity.

The case revolves around Title VII of the Civil Rights Act, which requires that job candidates and employees be treated equally without regard to race or ethnicity.

But it is frequently difficult to prove that an employer is engaged in intentional discrimination. For this reason, Congress has also empowered victims of discrimination to sue in instances when an employment practice results in a disparate impact against members of a protected minority group.

Ricci v. DeStefano involves both sides of Title VII. The white and Hispanic firefighters are suing for what they say is intentional discrimination by the city, while the city justifies its decision to throw out the test results on grounds that it was only seeking to prevent a violation of the disparate impact side of Title VII.

Justice Antonin Scalia said that the two provisions seem to be "at war with one another."

Deputy Solicitor General Kneedler and New Haven's lawyer, Christopher Meade, said the law works toward a common goal.

The disparate impact section of the law is a prophylactic against intentional discrimination, Kneedler said. It is designed to encourage employers to self-police their employment practices by halting and correcting any practice that might result in a disparate impact against minority workers, he said.

The justices were divided over whether the completed employment test should have been so easily discarded.

"Shouldn't there be some standard that there has to be a significant – a strong showing after the test has been taken that it's deficient ... before it can be set aside?" Kennedy asked.

Kneedler responded that the Obama administration did not believe such a high showing was necessary because the city invalidated the test results for all candidates, not simply the white candidates. The government viewed the blanket invalidation as racially neutral.

Several conservative members of the court took issue with that view. Chief Justice John Roberts said New Haven's position, if adopted, would create a "blank check to discriminate" against white employees.

One recurring issue during the argument was whether employees who pass a promotion test are entitled to not have the test thrown out.

Kennedy said federal law creates a presumption that such employment tests should not be easily dismissed.

Mr. Meade disagreed. "Just because a test has been administered doesn't mean that Title VII's disparate impact provisions suddenly disappear," he said. "There's no entitlement to be promoted on the basis of a flawed or discriminatory test."

Meade said the alternative would be to force employers to make workplace decisions based on a suspect test. "It's much better for an employer to stop," he said, "rather than to rush forward and to create potentially further discrimination and a more aggressive use of race down the road."

Arguing from the liberal side of the court, Justice David Souter took issue with the firefighters' approach to the case.

"The problem I have with your argument is that it leaves a governmental body like New Haven in a damned-if-you-do, damned-if-you-don't situation," Justice Souter said. Either the city gets sued by the white firefighters, or it gets sued by the black firefighters.

Souter added, "Whatever Congress wanted to attain [in passing Title VII], it couldn't have wanted to attain that kind of a situation."

The firefighters' lawyer, Gregory Coleman, told the justices that the city threw his client's high-ranking test scores out based on a mere "good faith belief" that the city might be sued. He said the city should have to demonstrate more to justify the adverse action against his clients.

"Our firefighters had already taken the test; they had earned their promotions under state law," he said.

A decision in the case is expected by late June.

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