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High Court Rules For White Firefighters


This is ALL THINGS CONSIDERED from NPR News. I'm Melissa Block.


And I'm Robert Siegel.

The U.S. Supreme Court wrapped up its year in a big way today. In the most publicized case, the court ruled on behalf of a group of white firefighters in New Haven, Connecticut. By a vote of five to four, the justices said the firefighters wrongly lost out on promotions because of their race when the city sought to discard test results fearing a lawsuit from minority firefighters. With that ruling, the justices overturned an appeals court decision - a decision that included the woman who may become their new colleague, Justice Sonia Sotomayor.

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: The problem in New Haven was that when the city gave a new promotion exam, no African-Americans scored high enough to win a promotion to lieutenant or captain. The Civil Service Board then held hearings, decided the test was flawed and set aside the results so that a new test could be designed. The city said it voided the tests because under the Civil Rights Act, racially disproportionate test results are suspect. And the city feared it would be sued by black firefighters.

Instead, the white firefighters who didn't get promotions sued. And today the Supreme Court ruled in their favor. Writing for the court majority, Justice Anthony Kennedy said that under the Civil Rights Act, fear of a lawsuit is not enough to justify what Kennedy said here was a good-faith but nonetheless impermissible decision to scrap the test based on, quote, "raw racial statistics." In short, he said all the evidence suggests the city rejected the test because the higher-scoring candidates were white.

A city can only set aside test results, the court said, when there's a strong basis in evidence that the test was either intentionally or unintentionally discriminatory, or that a better test exists that would not produce such racially disproportionate results. No such evidence exists in this case, the court said. And because the test was fair and job-related, the city had no good reason to fear losing a lawsuit if it was brought by minorities. The promotions should go into effect.

In New Haven, the white firefighters were elated. Here is Frank Ricci, the dyslexic white firefighter who studies with flash cards, paid a tutor and scored high on the exam.

Mr. FRANK RICCI (Firefighter, New Haven): I think that this is just proof positive that people should be treated as individuals and not statistics. And that won out at the Supreme Court today.

TOTENBERG: Conversely, New Haven Mayor John DeStefano was disappointed.

Mayor JOHN DESTEFANO (New Haven): I have no doubt that we have more to do in this country to ensure a just and civil society that lives up to the promise of America, a promise that in our time, more than ever, demands the protections afforded by robust civil rights laws.

TOTENBERG: Although today's ruling is a big victory for the white firefighters in New Haven, the decision appeared not to sweep broadly. And it specifically avoided any suggestion that the provision at issue in the Civil Rights Act is unconstitutional. University of Virginia Law Professor George Rutherglen says that the thrust of today's ruling is to make it harder to use tests.

Professor GEORGE RUTHERGLEN (Law, University of Virginia): Cities and other employers, they now have to be very careful once they settle on a test. They are going to be almost bound by the results of it. It will be difficult for them to discard the tests.

TOTENBERG: Michael Rossman, of the conservative Center for Individual Rights, agrees.

Mr. MICHAEL ROSSMAN (Center for Individual Rights): The basic change in reality is employers will not be able to toss out the results of tests solely based upon disparate impact.

TOTENBERG: Greg Coleman who represented the firefighters sees the decision as far-reaching.

Mr. GREG COLEMAN (Attorney): I think it will have a broad effect. Not necessarily based on my feelings that this happens a lot, but that it sets up a set of ground rules for employers in trying to determine how far can they go in making these types of employment decisions, and particularly promotion decisions.

TOTENBERG: But most experts saw the impact of the New Haven case as limited. UVa's Rutherglen observes that the city found itself in an extremely rare situation.

Prof. RUTHERGLEN: They were caught between state law, which had civil service requirements, their union, which had a collective bargaining agreement with them that said how the tests had to be administered, and federal law.

TOTENBERG: University of Washington Professor Eric Schnapper, who also specializes in employment discrimination law, agrees.

Professor ERIC SCHNAPPER (Law, University of Washington): This case could be the Fred Thompson of the Court's term: much anticipated but quickly forgot. It's possible we'll look back in five years and this won't have mattered very much.

TOTENBERG: One of the puzzles about employment testing is that minorities do worse than whites on multiple choice written tests. And under the union contract in New Haven, the multiple choice part of the test was weighted to account for 60 percent of the exam. John Payton of the NAACP Legal Defense Fund, while disappointed in today's ruling, says he thinks such tests will play a smaller and smaller role in the future.

Mr. JOHN PAYTON (President, Legal Defense Fund, NAACP): I doubt there are very many firefighting departments or police departments that do that. And there will probably be even fewer going forward. That's not the way you should pick leaders - give them a multiple choice test. That's not how we would pick you know, a colonel in the army.

TOTENBERG: That theme was picked up by Justice Ruth Bader Ginsburg in her dissenting opinion today. She noted that many departments have created mock fire situations to test for leadership and command qualities, and for knowledge. In a rare oral defense from the bench, Ginsburg used a rhetorical skewer on her more conservative colleagues. The white firefighters understandably attract the Court's empathy, she said. But they had no vested right to a promotion and no person has received promotion in preference to them.

Because of the racially disproportionate results in written multiple choice tests, she observes, most municipalities either have abandoned them or given them less weight. Joining her in dissent were Justices John Paul Stevens, Stephen Breyer and David Souter. This was Justice Souter's last day on the Supreme Court bench. In a letter he read to his colleagues he said, we have agreed or contended with each other over the things that matter to decent people in a civil society.

For 19 terms, I've lived that life with you, all of us sharing our own best years with one another, working side by side as fellow servants and as friends.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.