Experts Applaud Supreme Court’s Decision in New Haven Discrimination Suit

Published June 30, 2009

The United States Supreme Court, in a 5-4 decision issued on Monday, June 29, 2009, ruled the City of New Haven, Connecticut violated Title VII of the federal Civil Rights Act of 1964 in discarding test results that would have resulted in firefighter promotions for 17 white firemen, three black firemen, and two Hispanic firemen. The city’s decision came after its Civil Service Board determined the test results adversely affected minorities because not enough of them passed the oral and written tests, and the city feared it would be sued by minorities for discrimination.

Title VII prohibits intentional employment discrimination based on race or unintentional practices that have “a disproportionately adverse effect on minorities.” Once a plaintiff-employee proves either intentional or unintentional adverse effects, the employer must then prove the practice is “job-related” or required by “business necessity.” The burden of proof then shifts to the employee to show there are alternative and less-discriminatory practices the employer ignored that would adequately meet job-related requirements or business necessity.

The Court found the city discarded the test results based on the racial makeup of those who failed to pass it and further found this violated Title VII. The Court initially related at length the extensive efforts the city took to ensure testing that was racially neutral and strongly related to job-related requirements. The city spent $100,000 to hire an outside consultant specializing in designing tests meeting Title VII requirements. The consultant identified the essential tasks, knowledge, and skills required by the lieutenant and captain positions at stake, interviewed and did ride-alongs with personnel, including minority firefighters at every step of the way. They then designed the written part of the test, which counted for 60 percent, and the oral part, comprising 40 percent. The oral responses were evaluated by a three-person panel, consisting of one white, one black, and one Hispanic. All panelists were from cities other than New Haven, but similar to New Haven in demographics and size. Lists of source material from which questions were taken were provided to test-takers well in advance of the exam.

The Civil Service Board, after numerous hearings, voted not to certify the results, and 18 firefighters sued. One was Hispanic and the other 17 were white. The District Court granted summary judgment for the city, and the firefighters appealed to the Second Circuit Court of Appeals. A panel of that court affirmed in an unpublished one-paragraph opinion. The panel included President Barack Obama’s nominee for the Supreme Court, Judge Sonia Sotomayor. That opinion merely adopted the District Court’s lengthy opinion–this abbreviated opinion is called per curiam–a practice usually reserved for routine, non-controversial cases. A few days later, as controversy erupted, the panel made its short opinion public. The firefighters asked for a hearing en banc–by all of the Circuit judges. The judges voted 7-6 to deny the rehearing, with dissenting opinions by Judge Sotomayor’s two colleagues on the Second Circuit, Chief Judge Jacobs and Judge Cabranes. The appeal to the Supreme Court followed.

In its majority opinion, the Supreme Court found disparate impact but emphasized the testing was fair: The city “thought about promotion qualifications and relevant experience in neutral ways. They were careful to ensure broad racial participation in the design of the test itself and its administration. As we have discussed at length, the process was open and fair.” As a result, the Court held, “the City was not entitled to disregard the tests based solely on the racial disparity in the results.”

The lead opinion was authored by Justice Kennedy and joined by Chief Justice Roberts and Justices Scalia, Alito, and Thomas. Kennedy mentioned the Cabranes dissent in his opinion. Both Justice Scalia and Justice Thomas filed special opinions concurring in the result. Justice Ginsburg, joined by Justices Souter, Stephens, and Breyer dissented.

In his concurring opinion, Justice Alito, joined by Justices Scalia and Thomas, noted the atmosphere of racial tension surrounding the city’s deliberations over the test results. Leaders in the black community threatened race riots, engaged in outbursts at public meetings, and accused those favoring certification of the test results of being bigots and “Klansmen,” Alito wrote.

Justice Ginsburg’s dissent urged that the test procedures were flawed and better ones could have been selected.

Legal experts contacted by The Heartland Institute applauded the Court’s decision. In your coverage of this ruling, you may quote from their comments below or contact them directly for more information.

“One of the firefighters told the New Haven Civil Service Board: ‘Every one’ of the questions on the written test ‘came from the [study] material. … [I]f you read the materials and you studied the material, you would have done well on the test.’ The lead plaintiff Frank Ricci told the Board he has dyslexia and studied eight to 13 hours a day for the test. The people who passed should be promoted, he said, because ‘[w]hen your life’s on the line, second best may not be good enough.’

“No one could ask for a fairer, more racially neutral promotional system and one that’s more job related.

“In addition, the ruling is a major embarrassment for Second Circuit Judge Sonia Sotomayor, President Barack Obama’s nominee for the position of Justice Souter, who is retiring. From the very start, it was clear this case was headed for the Supreme Court, especially in light of the novel issues involved in it. In such an important case, it is unthinkable for a Court of Appeals to pass up the opportunity to pen a detailed legal analysis, if only to show off their scholarship to the high court.

“In dissenting from denial of the en banc rehearing, Judge Cabranes said that a terse opinion merely adopting the District Court’s ruling, added to the subsequent denial of en banc reexamination, could support the argument that further review by the Supreme Court is barred. This suggests, as many legal scholars have noted, Sotomayor participated in a strategy to deep-six the case and leave intact the ruling against the mostly white fire-fighters. This would be entirely characteristic with Sotomayor’s description of herself as ‘an affirmative action baby’ and fairly brand her as an activist judge.

“This activist judging should be grounds for the Senate to refuse to confirm Sotomayor, but it may not be. How much respect she gets from her colleagues when she gets there is another question. Since Kennedy went out of his way to cite the Cabranes opinion, the answer is probably not much.”

Maureen Martin
Senior Fellow for Legal Affairs
The Heartland Institute
(920) 229-6670
[email protected]

Ricci is a victory for merit over racial politics–which is appropriate given that the ruling overturns a lower court panel that included Sonia Sotomayor. In the blockbuster decision we’d been awaiting all term, the Court reached the correct result: The government can’t make employment decisions based on race. While the city’s desire to get more blacks into leadership positions at the fire department is commendable, it cannot pursue this goal by denying promotions simply because those who earned them happen to have an inconvenient skin color.

“This ruling is the latest in a series of steps the Court has taken to strike down race-conscious actions that violate individual rights–and thus is a blow both to the Obama administration (which sided with the city in Ricci) and to the nomination of Judge Sotomayor. Those who bring cases before the courts deserve much more than empathy or even ‘sympathy’–the word Justice Ginsburg uses in her dissent–they deserve equal treatment under the law.”

Ilya Shapiro
Senior Fellow in Constitutional Studies
Editor-in-Chief of the Cato Supreme Court Review
Cato Institute
(202) 218-4600
cell (202) 577-1134
[email protected]

“All nine justices on the Supreme Court disagreed with the test that the Second Circuit used to justify New Haven’s decision to reject the firefighter’s test because the city did not like the result. And the majority adds that the City of New Haven cannot, under federal law, reject tests that are fair and unbiased simply because it does not like the results.”

Ronald D. Rotunda
The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence
Chapman University School of Law
(714) 628-2698
[email protected]

“The Supreme Court’s decision confirms that Title VII of the Civil Rights Act of 1964 protects Americans of all races from racial discrimination in hiring and promotion at work. The opinion means that employers will no longer be able to justify racial discrimination by claiming that it is a legitimate way to avoid the risk of bogus lawsuits.

“The fact that the Court’s opinions in this case run 93 pages show that the question at issue was important, complex, and new–and thereby highlights how deeply dishonest and unethical Judge Sotomayor was in her treatment of the case in the Second Circuit Court of Appeals, in which she tried to uphold New Haven’s racial spoils system by pretending that the case involved no important or new legal issues.”

David B. Kopel
Research Director
Independence Institute
(303) 279-6536
[email protected]

“Today the Supreme Court upheld the fundamental principle that race is not a permissible basis for governmental employers to use in making hiring decisions. The effect of today’s decision is to make it illegal for governmental bodies to make a finding of racial discrimination in hiring or in administering hiring tests without actual evidence of such discrimination as opposed to just looking at the race of the successful job seekers.”

Paul Fisher
McGuireWoods LLP
Member, Board of Directors, The Heartland Institute
Direct (312) 849-8244
Cell (312) 752-0578
[email protected]

“Today’s decision in Ricci v. DeStefano makes clear that employers may not use fear of litigation to justify hiring decisions based on race. If fear of a disparate impact claim under Title VII would permit employers to abandon nondiscriminatory hiring methods whenever those methods failed to produce an ‘acceptable’ number of minority hires, then the distinction between disparate treatment claims and mandatory quotas would be blurry at best. To allow the fear of litigation to justify racially based hiring in order to ‘get the numbers right’ would undermine the principle of racial evenhandedness that both Title VII and the Fourteenth Amendment are intended to guarantee.”

Rick Esenberg
Visiting Assistant Professor of Law
Marquette University School of Law
Policy Advisor, The Heartland Institute
(414) 288-6908
[email protected]

“It is refreshing to see the Court taking a serious look at the ‘disparate impact’ test for racial prejudice. This is one of the toughest policy areas in our government today.

“This case shows the real danger in making ‘sympathy’ a qualification for becoming a judge. There are two sides in every case, and it seems particularly unjust to encourage or allow judges to adopt the position of the plaintiff, defendant, or third party based on emotion. It will lead to unjust decisions in thousands of other cases at the trial and appellate court level.”

Christopher Hage
President, Chicago Chapter of the Federalist Society
(630) 430-7822
[email protected]