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Analysis: New Haven case turns back the clock on segregation

This article first appeared in the St. Louis Beacon, July 7, 2009 -The skirmishes of half a century of the civil rights movement were visible in last week's U.S. Supreme Court decision in a New Haven firefighters' case - a case that resonated in St. Louis and other large cities where fire and police departments were historically segregated.

The New Haven decision makes it harder for black firefighters to achieve the kind of decisions they won in the 1970s when fire departments like St. Louis and New Haven had only one black supervisory officer and when eating clubs in St. Louis fire houses refused to include black firefighters.

The discrimination at the heart of the New Haven dispute was not the kind of discrimination that created the civil rights movement. It was a reverse discrimination complaint by a group of white and Hispanic firefighters that they were discriminated against when New Haven tried to avoid resegregating its fire department. The city decided not to use the results of a civil service test that would have resulted in no blacks receiving promotions.

To many Americans - and to the majority on the U.S. Supreme Court - the city's refusal to promote the high scorers seemed like unfair reverse discrimination. That feeling of unfairness was amplified by the poignant story of the named plaintiff, Frank Ricci, who told of extraordinary effort he took in surmounting his dyslexia to get a high enough score for promotion.

What got less attention, except in Justice Ruth Bader Ginsburg's dissent, was the historical context. New Haven's fire department - like many around the country - once was segregated and is resegregating at the upper levels.

In the early 1970s, only 1 of 107 officers in the New Haven Department was black. By following the new promotions list with no black officers, Justice Ginsburg wrote, a city that is 60 percent minority "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 same situation existed in St. Louis. Thirty years ago, the 8th U.S. Circuit Court of Appeals showed its exasperation with St. Louis' refusal to integrate the fire department. At the time of the 1978 decision, St. Louis had only one black fire captain among 180 slots.

The number had actually declined in the previous five years as the city dragged its feet, refusing to put into effect federal court plans requiring it to increase the number of African-American captains.

Judge Gerald W. Heaney wrote a strong opinion calling on the city to act. He noted that many fire stations had segregated eating clubs where white firefighters refused to allow black firefighters to join them for meals.

"We cannot ask those black firefighters who have been the victims of discrimination to wait forever for the vindication of their rights," Heaney wrote. He instructed the city to immediately offer promotions to 12 black firefighters who were qualified for the positions.

Judge Heaney, like other appeals court judges around the country, was acting on a new theory of discrimination that had been developed by the U.S. Supreme Court in the 1971 decision of Griggs v. Duke Power. The Supreme Court had said hiring and promotions tests that appeared to be fair in form could be discriminatory in effect. Duke Power's requirement that employees be high school graduates disqualified many black applicants and had nothing to do with how well they could perform many of the jobs.

This was called the "disparate impact" theory of discrimination because many of the job tests had a disparate impact on blacks. An employer still could defend a test that had a disparate impact, but had to show two things:

  1. that the test was job-related to serve a business necessity
  2. that there was no less discriminatory test available that could serve that business necessity.

At the time of the Griggs decision, municipal civil service jobs in America's biggest cities were among the most segregated in the country, according to a study by the U.S. Civil Rights Commission. That began to end.
Big cities that relied on civil service tests to hire police, firefighters and other city employees now became targets of disparate impact lawsuits during the 1970s and 80s. Civil service tests in St. Louis and across the nation were thrown out because they had a disparate impact on minorities or women.

At the time of the Heaney decision in St. Louis, the city was claiming that its written civil service test should be used as the basis for promotion. But Heaney agreed with black firefighters who pointed out that the test did not measure the single most important quality of a fire officer - leadership. Assessment centers, which re-enacted real fire situations, were much better at measuring qualities that related to supervisory fire positions, Heaney concluded.

But the Supreme Court threatened to undermine the desegregation efforts by tinkering with Griggs v. Duke Power. In one of a string of anti-civil rights decisions in 1989, the court made it much harder for employees to win. The court ruled that employees had to prove a test did not serve a business necessity, rather than requiring the employer to show that it did - a switch in the burden of persuasion that threatened to make a big difference in the outcome of cases. Justice Anthony M. Kennedy, the author of the New Haven decision, was part of the majority upending Griggs.

Congress was outraged and switched the burden of persuasion back to businesses when it passed the Civil Rights Act of 1991. That law, for the first time, codified the disparate impact theory of discrimination.

Even with disparate impact written into law, cities have succeeded in defending civil service tests. St. Louis won a 2007 decision from U.S. District Judge Rodney Sippel who found that the 2004 fire captain and battalion chief exams were job-related and served a business necessity because they "tested relevant knowledge, skills and abilities" for those jobs.

Former St. Louis Fire Chief Sherman George was concerned these tests would lead to resegregation of the top ranks of the department and balked at making promotions from them. That led to his demotion.

George and the International Association of Black Professional Fire Fighters warned the Supreme Court in the New Haven case that the number of black firefighters has declined by about one-half in the past decade. 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.

In the New Haven decision, Justice Kennedy said that an employer who finds that a test has a disparate impact on minorities can't just throw out the test to avoid a lawsuit. Throwing out the test could amount to intentional discrimination against the white firefighters, the court reasoned.

A city can only throw out the test if there is a "strong basis of evidence" for taking the action. New Haven did not have that strong basis in evidence, Kennedy said.

Leland Ware, a University of Delaware law professor, disagreed. "If New Haven acted to avoid liability under the disparate impact theory, it did not act with an intent to discriminate against the white and Hispanic test takers," he argued. To read Professor Ware's critique, click here .

In effect, Justice Kennedy had once again undermined Griggs by making it easier for employers to show that their tests serve a business necessity.

Professor Laura Rosenbury of Washington University Law School, wrote last week: "Lower courts could rely on the majority opinion in Ricci 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."

William H. Freivogel heads the School of Journalism at Southern Illinois University Carbondale. 

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.