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Sotomayor on tape: What she said in firefighter race case

She asked probing questions of each side in the reverse-discrimination suit. But the circuit court's 135-word summary order rubbed some the wrong way.

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“What do you do with Justice Kennedy’s observation that there are creative ways to deal with racial diversity?” Sotomayor asked. “Targeting certain groups for more recruiting. Doing other things so that you can undo racial imbalance. Why is this any different?”

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New Haven went to extraordinary lengths to create a fair exam for this particular promotion, Torre said. The city hired a consultant to specifically design the test to help minority candidates qualify for promotions, she said. The reading level was reduced to a fifth-grade literacy rate, and candidates were given a study guide and a three-month study period. The city recruited black and Hispanic fire chiefs from across the country to serve as test assessors. Assessment panels included a majority of African-American or Hispanic assessors, Torre said. Candidates were allowed to bring books and notes into the oral assessment part of the test. There were no time limits. Candidates were urged to take their time and jot down notes before answering, she said.

“What more can we do, Judge Sotomayor?” Torre asked.

New Haven’s turn for grilling

New Haven’s lawyer, Mr. Roberts, said the firefighters’ lawsuit had been properly dismissed because the white firefighters failed to prove the city engaged in unlawful discrimination. He said New Haven officials were merely seeking to comply with the letter and spirit of Title VII.

Roberts said that as long as the city’s civil service board had a “reasonable belief” that a new and different test might reduce the racial disparity of the existing test, it was justified in jettisoning the existing test results.

“At what point does reasonable belief hold up?” Sotomayor asked. “At a certain point there is a vested, an investment by the [firefighters] and by the city itself in this testing procedure. People are making enormous investments. Don’t they have to have some reasonable ground to say there is a question [about the fairness or validity of the test]?”

After the results of the test came back, the city and its civil service board relied on the testimony of a business competitor of the consultant who designed New Haven’s test. The competitor/expert offered an opinion that his test would be better. He did not conduct a detailed examination of the existing test, according to the case record.

“What is the city supposed to do?” Roberts asked. “Should we have certified [the exam results] based on a presumptively discriminatory test, sat back, and waited to be sued by the minorities?”

He added, “The city did exactly what Title VII strongly encourages – voluntary compliance.”

Roberts warned that if the appeals-court panel ruled against New Haven, “you are sending a signal to employers and municipalities: Don’t self-remediate, certify these exams, don’t even look into alternatives.”

Sotomayor took issue with the point. “I don’t know that that’s as far as your adversaries are proposing. What they are saying is you should remediate but you shouldn’t permit race to be the driving force on either end.”

She added: “It should be based on some objective standard. You look at the test and determine whether the test was in fact fair or not. And if you are going to say it was unfair, point to specific ways it was or wasn’t, and make sure there really is a fairer test.”

Roberts disputed Torre’s contention that the test was fair and job-related. “There’s never been a validation study,” he said.

(New Haven’s civil service process provides that, once the test is given, the results are submitted to a validation study to ensure that it was a fair exam. The white firefighters urged the city to conduct an objective validation study to determine if the test was fair or biased. City officials refused to allow a validation study. Instead, they relied on opinion testimony presented in a public hearing expressing doubts about the test and suggesting a better test could be designed.)