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Court reverses ruling on race

Tue., June 30, 2009

Sotomayor had sided against firefighters

WASHINGTON – In a closely watched case that could have a broad effect on hiring and promotion policies, the Supreme Court ruled Monday that white firefighters who earned top test scores were the victims of illegal discrimination when the city tossed out the results and denied them promotions.

The 5-4 decision sent a warning to employers – private as well as public – that they cannot use their good intentions and concerns about racial diversity as a reason for discriminating against white employees.

Justice Anthony M. Kennedy said the goal of a racially diverse work force cannot justify “a de facto quota system.”

The case, Ricci et al. v. DeStefano et al., had been anticipated not only for its legal significance but also its potential effect on the confirmation hearings of Supreme Court nominee Judge Sonia Sotomayor, who along with two other judges on the 2nd U.S. Circuit Court of Appeals previously rejected the white firefighters’ claims.

The Supreme Court’s overturning of that decision gave new fuel to conservative critics who have questioned Sotomayor’s fairness, although supporters noted that the close decision showed she was no legal radical.

Civil-rights lawyers called Monday’s decision a loss and a setback, but they were not sure how great a loss.

“There’s a lot we don’t know. This seems to leave employers caught between a rock and a hard place,” said John Payton, president of the NAACP Legal Defense Fund.

Clearly, employers cannot follow the example of New Haven, Conn., and cancel a test based simply on the results, he said. But employers can do more to make sure their tests are fair, he added.

Since the 1970s, the court had said employers should not use hiring or promotion tests that would disqualify a disproportionally high number of minority candidates. But Monday, the court pulled back from that approach and said employers cannot discriminate against white job seekers so as to avoid this “disparate impact” on minorities.

Once an employer has given a test that is fair and geared to the job, it is not entitled to disregard it “based solely on the racial disparity in the results,” Kennedy said.

Justice Ruth Bader Ginsburg wrote the dissent, joined by Justices David H. Souter, John Paul Stevens and Stephen G. Breyer.

The Supreme Court’s ruling is a clear win for the white firefighters. Although it stopped short of ruling on constitutional grounds, it says the city violated their rights under the 1964 Civil Rights Act and that they were entitled to be promoted.

The decision highlighted the final day of the court’s term – and the last day for retiring Souter. He agreed with the liberal dissenters who said New Haven was justified in setting aside a test that would have kept any blacks from being promoted.

In a poignant moment in the courtroom, Chief Justice John G. Roberts Jr. said he and his colleagues were sad to see Souter retire after nearly 20 years on the court but added he understood his wish to “trade white marble for White Mountains,” a reference to Souter’s native New Hampshire.

Souter said he was “touched more than I can say” by the kind send-off from his eight colleagues.

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