This article first appeared in the St. Louis Beacon, June 30, 2009 - Dividing along ideological lines, the U.S. Supreme Court ruled 5-4 on Monday that New Haven had discriminated against white and Hispanic firefighters in throwing out a promotional exam on which African-American firefighters had done poorly. The decision reverses a lower court decision that had been joined by Judge Sonia Sotomayor.
Justice Anthony M. Kennedy wrote that before the city -- or any other employer -- could throw out a promotional test, it would have to have a "strong basis in evidence" that the test had a discriminatory impact on minority employees. A mere statistical disparity is not enough, Kennedy wrote. The city also would have had to show that the test did not serve a business necessity, which New Haven had not demonstrated. (Click here for background on the case. )
Nor, wrote Kennedy, could New Haven throw out the test because it feared being sued for promoting white firefighters based on a test that had a disparate impact on African-American firefighters.
The decision may make it easier for employers to defend employment practices that are neutral on their face but have a racially discriminatory impact.
The New Haven case has echoes of the long-running dispute in St. Louis over firefighters' promotions. Former Fire Chief Sherman George had balked at a promotions list based on a test on which most African-American firefighters had done poorly. His resistance led to his demotion by Mayor Francis Slay.
Local reaction
Locally, black firefighters refused to comment until their lawyers had a chance to review the decision. Former Fire Chief Sherman George said he would have no comment until he spoke with his lawyer. George has a lawsuit pending against St. Louis Mayor Francis Slay.
On a national level, though, Joseph Muhammad, the New York-based president of the International Association of Professional Black Fire Fighters, decried the ruling.
"We are surprised and very disappointed with this decision. It is clear that the majority of the court is caught up in a time warp. Especially disheartening is the court's failure to see the changing face of race issues and the need for diversity in this country, particularly in our safety forces as they continue to take not only a community but a more global role."
He adds that union believes the ruling "opens the door wide open for cheap and substandard testing and virtually guarantees that persons discriminated against -- whether white, black or Hispanic -- will have to resort to the courts to have their issues redressed. This will sadly make any resolution of discrimination and testing far more adversarial, combative and expensive than it needs to be."
Muhammad said that the ruling wouldn't end the "quest for redefining Title VII of the Civil Rights Act of 1964. As Americans revisit disparate impact, we still contend diversity is a matter of national security and is a compelling state interest in our profession. Members of the IABPFF executive board and our legal counsel will peruse the Supreme Court's decision to determine the impact before we make any other public statements."
Without passing judgment on the political ramifications of the decision, Jeff Rainford, top assistant to Mayor Francis Slay, says the ruling is beneficial in that it provides guidance to St. Louis on this issue after such a long time of uncertainty about what city policy should be.
"Even if they had ruled another way, we're glad to have direction from the U.S. Supreme Court. We don't have to guess anymore. The law is what it is, and we'll abide by the decision."
Rainford said the issues in the court case itself were different from those in St. Louis in that the ruling wouldn't result in any financial judgments against St. Louis.
"We know our place on the pecking order," Rainford said. "We're at the bottom of the pecking order." He meant that city actions are determined in part by court rulings and other federal and state policies.
George joined a friend of the court brief filed by the International Association of Black Professional Fire Fighters defending New Haven's decision to reject the test. It points out that the number of black firefighters has declined by about one-half since the expiration of court degrees desegregating city fire departments. In 1995, blacks constituted 15.3 percent of the professional fire service, whereas the figure was 8.2 percent in 2008. Only 5.8 percent of front-line supervisors are black.
The situation in New Haven was different from St. Louis because it was the mayor who wanted the tests thrown out in New Haven. Under heavy pressure from a politically influential black minister, Mayor John DeStefano opposed certifying the results of the test.
The racial politics that lay behind New Haven's decision was highlighted in a separate opinion by three of the justices in the majority -- Justices Samuel Alito, Antonin Scalia and Clarence Thomas.
A reasonable jury could have concluded, Alito wrote, that the city's "reason for scrapping the test results" was not its concern that it would be sued by black firefighters but "a simple desire to please a politically important racial constituency."
Justice Ruth Bader Ginsburg, who wrote a strong dissent, viewed the New Haven dispute with an entirely different historical lens, characterizing the court's opinion as a throwback to the discriminatory past.
"By order of this Court," she wrote, "New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served -- as it was in days of undisguised discrimination -- by a fire department in which members of racial and ethnic minorities are rarely seen in command positions.
"The Court’s recitation of the facts leaves out important parts of the story," wrote Ginsburg. "Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow." In 1972, there was only 1 black among 107 officers on the New Haven department, even though the city's population was 30 percent black.
Ginsburg wrote that the majority "barely acknowledges" the landmark 1971 Supreme Court case -- Griggs vs. Duke Power Co. -- that recognized that job requirements that seem fair in form could have a discriminatory impact that would make them illegal.
Monday's decision will have ripple effects on the confirmation of Sotomayor. The brief opinion that Sotomayor and her colleagues wrote backing the city has been criticized for not providing a detailed analysis of such a difficult legal issue. The case also plays into the criticism that Sotomayor sees the world from a racial point of view.
Nevertheless, the reversal is not thought to jeopardize Sotomayor's confirmation in that the Supreme Court had been expected to rule as it did.
Roger Goldman, law professor at Saint Louis University, said, "had it been 9-0 to uphold the white firefighters, that would have been a lot worse for Sotomayor, but this is exactly the lineup I expected with Kennedy writing the majority opinion."
Goldman pointed out that the lower court ruling was a short, unsigned opinion of three judges on the Second U.S. Court of Appeals, with Sotomayor the most junior. "And that opinion seemed to rely on Second Circuit precedent, to which panels of the Second Circuit judges are bound," he wrote in a email. The full Second Circuit voted 7-6 not to hear the case, splitting on ideological lines.
"In short," Goldman wrote, "just as the Supreme Court and the Second Circuit pretty much divided on ideological grounds, so it is likely the Judiciary Committee and the Senate will divide on their views...with Republicans being concerned about reverse discrimination and Democrats about making sure minorities aren't discriminated against, as has been the case of firefighters for years, particularly with the role of municipal unions dominated by white firemen."
Leland Ware, a law professor at the University of Delaware, said the court had not undercut discrimination law as much as it might have. "The court did not undermine Griggs or the Civil Rights Act of 1991, which codified the disparate impact analysis, as some of us feared," he wrote in a email. All the court did was to say the city didn't have evidence that the test was discriminatory and "went on to hold that the test had been properly validated." Ware criticized the Supreme Court for deciding that there was enough evidence to validate the test, rather than sending the case back to the lower court to make this decision. "An appellate court should not engage in this kind of fact-finding," he wrote.
But Laura Rosenbury, a law professor at Washington University, believes the ruling will make it easier for companies to defend themselves. "Lower courts could rely on the majority opinion...to make it easier for employers to prove that discriminatory policies are justified by business necessity, including the newly coined necessity of avoiding reverse discrimination. If that turns out to be the case, employers will soon get the message that they don't need to worry about supposedly neutral policies that exclude protected groups from certain positions. The disparate impact theory of discrimination will then be dead."
Kennedy, the author of the majority opinion, has been "smack in the middle of the court" on race issues, Goldman wrote. He found in a Louisville school case that integration of public schools is a compelling state interest, something the four more conservative justices on the court did not find. "But he is more conservative than the other centrist, (former Justice) Sandra Day O'Connor," Goldman wrote. Kennedy dissented from O'Connor's 2003 decision upholding the University of Michigan's law school affirmative action plan.
In the New Haven decision, Kennedy was joined by Chief Justice John G. Roberts and Alito, Scalia and Thomas. Roberts did not join the separate opinion that Alito wrote on the details of the racial politics in New Haven. He probably was "not wanting to get into a food fight with Ginsburg," wrote Goldman. Joining Ginsburg in dissent were Justices John Paul Stevens, David H. Souter and Stephen Breyer.
Two kinds of discrimination
The case involves the clash of two types of illegal discrimination -- one called disparate treatment and the other disparate impact.
Disparate treatment was outlawed by Title VII of the Civil Rights Act of 1964, which said that employers may not treat employees differently based on race.
Disparate impact grew out of the 1971 Griggs decision recognizing that job requirements that appear fair could have a discriminatory impact on one race. Black employees challenged Duke Power's high school diploma requirement, which made a disproportionate number of blacks ineligible for jobs. Congress wrote this disparate-impact analysis into law in the Civil Rights Act of 1991.
New Haven argued that it had the discretion to reject the promotion test because it had a "good faith" belief that following the test would open it to a disparate-impact suit. No blacks would be promoted to either lieutenant or captain under the test. All 10 lieutenant appointments would go to whites and seven of nine captain appointments to whites, with the other two to Hispanics.
But white and Hispanic firefighters argued that New Haven's decision to jettison the test was disparate treatment because it was intentional discrimination based on race. Frank Ricci, in whose name the suit was brought, appeared at public hearings to argue that the results be certified. Ricci, who has dyslexia, told of having asked a neighbor to read study materials on to a tape so he could study more effectively and give the test "give it his best shot."
Ricci argued that avoiding the unintentional discrimination of disparate impact cannot justify the intentional discrimination of disparate treatment.
Kennedy rejected all of these arguments and set out to reconcile the two requirements of Title VII. He found principles to reconcile the two approaches to discrimination in cases involving the 14th Amendment's requirement of "equal protection." He noted that in an important Supreme Court decision rejecting a minority set-aside program in Richmond, Va. in 1989, the court had insisted on a "strong basis in evidence" that racial preferences are necessary to address past discrimination.
"Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions," Kennedy wrote.
Kennedy wrote that employers may make race-based decisions when "there is a strong basis in evidence of disparate-impact liability." Kennedy said employers did not need evidence of a "provable, actual violation" before acting. But they need more evidence than a good faith belief they might be sued.
Kennedy acknowledged that New Haven had an obligation "to take a hard look" at the test, given the low pass rate of African-Americans and the fact that no black candidate would qualify for a promotion. This is evidence of a "prima facie" case of disparate-impact, he wrote, but it is not the "strong basis in evidence" now required by the court.
The city would only have been liable under a disparate-impact suit if the exams were not "job-related" in service of a "business necessity," or if there is a less discriminatory test that is equally valid.
There was no question but that the exams were job-related, Kennedy wrote, because the testing company had developed the tests after a painstaking procedure in which minorities were overrepresented.
He also rejected the city's contention that an alternative test would have been fairer. The city argued, for example, that changing the weight of the written and oral portion of the exam, to give the oral more importance would have allowed the promotion of several black firefighters. This could have violated Title VII's prohibition against rescoring employment tests, the court said.
Kennedy also said there were only a "few stray (and contradictory) statements in the record" advocating the use of "assessment centers" instead of written tests. Assessment center are designed to test practical firefighting skills and eliminate racial bias.
Kennedy's decision avoided the controversial question of whether Title VII's disparate-impact provisions violate the 14th Amendment's promise of equal protection. Scalia wrote separately to say the decision merely "postpones the evil day" when the court will have to decide to decide that question.
"Title VII's disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of
their policies, and to make decisions based on (because of) those racial outcomes. That type of racial decisionmaking is, as the Court explains, discriminatory," he wrote.
Ginsburg wrote that the dispute in New Haven had to be seen in the context of the "entrenched inequality" that has existed in New Haven for years. Until the 1970s, a combination of nepotism, patronage and discrimination resulted in a fire department with only one black officer. Even at the time of the 2003 dispute about the test, only one black fire captain was among 21 on the department.
Instead of carefully considering what kind of test would fairly measure firefighters for promotion, she wrote, the city stuck to the traditional approach of a test that gave a 60 percent weight to a written test and 40 percent to an oral test.
Ginsburg pointed out that the disparate-impact strand of discrimination law was codified because of a 1989 Supreme Court decision making it easier for employers to prove a business necessity for a neutral practice with a discriminatory effect.
New Haven could have defended the business necessity of its test under the 1989 decision. But that's the decision that Congress explicitly overturned in the Civil Rights Act, Ginsburg said. Kennedy's return to a more relaxed reading of business necessity is the reason that Rosenbury of Washington University fears that Monday's decision will make it easier for employers to defend neutral practices with a discriminatory effect.
Ginsburg also wrote that, "Relying heavily on written tests to select fire officers is a questionable practice." She cited a decision from St. Louis in 1980 stating that a fire officer's job "involves complex behaviors, good interpersonal skills, the ability to make decisions under tremendous pressure and a host of other abilities -- none of which is easily measured by a written, multiple choice test."
Ginsburg wrote that an employer should be able to set aside an employment test where there is "ample cause to believe its selection process was flawed and not justified by business necessity."
The opinion featured sharp exchanges between Ginsburg and Alito. Ginsburg wrote that the white firefighters' case elicited her "sympathy." Alito shot back that "'sympathy' is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law."
Robert Joiner contributed to this report.
William H. Freivogel heads the School of Journalism at Southern Illinois University Carbondale.
