Reversing “Reverse Discrimination” By: John Perazzo
FrontPageMagazine.com | Tuesday, June 30, 2009

In one the most significant showdowns over Affirmative Action policies in recent history, the Supreme Court yesterday handed down a 5-4 decision in favor of 18 firefighters in New Haven, Connecticut, who charged that they had been victims of discrimination when the city elected not to promote them within the local fire department solely because of their skin color. The High Court's decision to overturn the decision rendered by Sonia Sotomayor on the Second Circuit Court of Appeals takes on greater significance in light of her nomination to the Supreme Court, as even the most liberal justices criticized her opinion. The court’s ruling in the case of Ricci v. DeStefano is a decisive rejection of Sotomayor's ethnocentric jurisprudence and an affirmation of meri that will have wide-ranging implications for workplaces across America. 

The Supreme Court's decision ruled that New Haven was wrong to throw out test results used to determine which firefighters to promote on the grounds that not enough African Americans passed, warning even the city's rightful fear of litigation could not justify the action. As such, the court's decision is another robust rejection of Sonia Sotomayor's legal reasoning and philosophical qualifications for the bench.

That the decision was written by the media's new favorite justice, “moderate” Anthony Kennedy, further strengthens the case against Sotomayor. However, even the four justicies who sided against Frank Ricci and the qualified firefighters rejected Sotomayor's ruling, instead crafting their own legal justifications for anti-white bigotry. Justice Ruth Bader Ginsburg's dissenting opinion indicated, in footnote 10, that Sotomayor's opinion was based on the wrong legal criterion, and the four justices could not side with New Haven on the basis of her opinion. This means not a single justice agreed with Sotomayor's legal analysis. The Soros-funded Media Matters predictably criticized conservatives for noting that all nine justices, conservative and liberal, rebuffed Sotomayor's argument. Media Matters quoted Ginsburg's opinion that New Haven would have prevailed by applying "what I view as the proper standard" -- which means the court's liberals believed Sotomayor did not apply the correct legal standard, her opinion was inept, and her judicial philosophy is discredited. The New Republic, hardly a right-wing bastion, conceded, "[T]he dissenters (in a footnote noted by Jonathan Adler) elect not to remand -- which would have made the judgment 9-0 -- and instead explain why the city should prevail, albeit on a different ground." (Emphasis added.) 

This embarrassing reversal comes as the Senate is poised to consider placing her on the Court that unanimously struck down her opinion, a disturbingly familiar trend for Sotomayor. Recognizing the damage this high percentage of overturned decisions had on her candidacy, the media raced to save her reputation the best way they know how: by lying. Newsweek dissembled that  only 1.3 percent of her decisions had been overturned by the Supreme Court; however, they included every opinion she had ever written, the vast majority of which had never faced Supreme Court review. In point of fact, at the time of the Newsweek story, 60 percent of Sotomayor's decisions reviewed by the Supreme Court had been overturned. After yesterday's decision, now fully two-thirds of the decisions which have been reviewed by her peers have been rejected. The consequences for her nomination should be pronounced.

What Is At Stake?

In the importance of the Sotomayor nomination, the heroes of this story have been lost: Frank Ricci and the diligent firefighters of New Haven, Connecticut. This is a triumph, not merely for them, but for colorblind justice.

The Ricci case dates back to 2003, when Frank Ricci, a white New Haven firefighter, was one of 118 candidates (including 62 whites, 27 blacks, and 29 Hispanics) to take an exam that his department was using to determine who would be promoted to fill 19 openings for lieutenant and captain positions. In preparation for the test, Ricci, a dyslexic who struggles with reading and retaining information, outworked most of his competition: spending more than $1,000 to purchase books that the city had recommended as study guides and studying 8 to 13 hours a day. When the test scores were tabulated, Ricci’s name was near the top of the list. He should have been promoted. But he wasn’t.

When reviewing the test results, New Haven officials observed that, of the 56 firefighters who passed the exam, not a single African American had scored high enough to qualify for any of the 19 promotion slots. A merit system based exclusively on the test scores would have promoted 17 whites and 2 Hispanics, leaving the city accused of “racism.”

Indeed, when word of the test results got around, a number of local black leaders with political influence thundered that the exam itself was to blame, arguing alternately that it was racially biased on the one hand, and a poor predictor of an applicant’s potential to fulfill the duties of a leadership position on the other. Especially vocal was Rev. Boise Kimber, a key vote-getter for New Haven’s Democratic mayor, John DeStefano. Kimber held that “diversity” ought to be one of the chief considerations guiding the promotion process. By extension, he and his fellow activists demanded that if the fire department was not going to promote at least a few blacks, then it should not promote anyone at all. Moreover, they warned that if the city’s civil service board were to certify the exam results, significant “political ramifications” would result.

Sufficiently intimidated, New Haven officials concurred that the exam most likely was flawed and agreed not to certify the results, just as Kimber and his fellow agitators had demanded. The National Law Journal reported that the city “defended its decision not to certify the results of [the] exams…because it feared Title VII liability if minorities were not promoted into the upper ranks of the department.”

Title VII of the 1964 Civil Rights Act is a federal law prohibiting “employment discrimination based on race, color, religion, sex, or national origin.” The law’s purpose was to ban disparate treatment of people representing these various demographics in the hiring and promotion processes. But in a landmark 1971 case, Griggs v. Duke Power Company, the Supreme Court interpreted Title VII as relating not to disparate treatment but rather to disparate impact; not to unequal opportunity but rather to unequal results. Even employer practices that seemed neutral on their face, said the Court, could be considered discriminatory if they resulted in markedly different levels of success by members of various races, colors, religions, sexes, or national origins.

Ever since Griggs, courts have become increasingly inclined to view any differences in the test scores of separate demographic groups as prima facie evidence that the exams in question are invalid because they have a racially “discriminatory effect.” As The Washington Post once put it, “Federal guidelines presume discrimination when a test has such a disparate impact on minorities.” Precisely this mindset prevailed in New Haven.

In response to New Haven’s decision, Frank Ricci and 17 fellow firefighters (16 whites and 1 Hispanic) filed a federal civil-rights lawsuit in 2004 contending that Mayor DeStefano and the city had wrongfully denied them promotions that they deserved. The plaintiffs further charged that the city’s action violated their rights under the Equal Protection Clause of the 14th Amendment.

But the Clinton-appointed U.S. District Judge Janet Arterton dismissed the suit without even a hearing, citing the same concern as the aforementioned New Haven officials had expressed—that if the high-scoring whites were to be promoted, the low-scoring blacks might indeed file a discrimination lawsuit charging that Title VII had been violated. In her 47-page decision, Arterton held that the city was legally justified in throwing out the test results, even if it could offer no specifics regarding what was objectionable about the test.

Next, Ricci and his fellow plaintiffs took their case to the U.S. Court of Appeals for the Second Circuit, where they presented their arguments to a panel of three Clinton-appointed judges—one of them being Sonia Sotomayor. This three-judge panel sided against Ricci and unanimously affirmed the lower New Haven court’s decision to dismiss the test results.

Four years later, all 13 members of the same Appeals Court presided over a retrial of the Ricci case. They again agreed, this time by a 7-6 margin, that the fire department’s test was invalid. Six of the seven judges who ruled with the majority were Bill Clinton appointees. Echoing Janet Arterton, five of those seven judges agreed that the city could be “faced with a prima facie case of disparate impact liability under Title VII” if it were to certify the test results.

Notably, it was a moderate Clinton appointee, Judge Jose Cabranes, who, in his dissent from the majority opinion, said that the Ricci case involved “an unconstitutional racial quota or set-aside.” “At its core,” Cabranes wrote, “this case presents a straightforward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?”

Ricci v. DeStefano finally made its way to the Supreme Court two months ago, setting the stage for yesterday’s ruling. The five justices who voted in favor of Ricci were John Roberts, Antonin Scalia, Clarence Thomas, Samuel Alito, and Anthony Kennedy. Writing the majority decision, Justice Kennedy suggested that if New Haven were to have originally allowed the results of the exam to stand, black firefighters would likely have filed a Title VII discrimination lawsuit. Nonetheless, said Kennedy, “Fear of litigation alone cannot justify the city’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.” He added, “There is no evidence—let alone the required strong basis in evidence—that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the city.”

Justice Ruth Bader Ginsburg suggested otherwise. In a dissent that she joined with Justices John Paul Stevens, Stephen Breyer and David Souter, Ginsburg pointed to the “the starkly disparate results” as “substantial evidence of multiple flaws in the tests New Haven used.” In other words, the mere fact that the test produced different results was proof that it was flawed. Similar reasoning was used to deny the firefighters their promotions, and it was this reasoning that the court struck down in yesterday’s ruling.

While the margin in the decision was razor-thin, it strikes a significant blow in favor of meritocracy in the workplace. Personnel departments nationwide are certain to study this case for guidance in determining the degree to which employers ought to consider race in their hiring and promotion decisions. And though the Ricci case was centered around public employees, many legal experts believe that its mandates will extend also to the private sector. Fordham Law School Professor Sheila Foster, for example, says that Title VII applies to private as well as public employers.

Finally, the Ricci decision is sure to be a hot topic during the Senate confirmation hearings on Sonia Sotomayor, which are due to begin in two weeks. The current ruling unambiguously overturns the decision Sotomayor rendered against Ricci in the Second Circuit Court of Appeals. More importantly, it overturns a ruling that fits a pattern of judicial malpractice by Sotomayor, who rejected test results on the grounds that its earned outcome did not benefit enough members of her preferred minority groups. While part of the Puerto Rican Legal Defense and Education Fund she sued the New York Police Department because in her estimation too few minorities earned high enough test scores to qualify for promotions. She went on to dub the death penalty an expression of "evident racism" and ruled convicted felons should have the right to vote, perhaps from prison, on the grounds that too many preferred minorities had committed felonies. All of her decisions, embodying judicial activism to the core, were motivated by the plaintiffs' membership in a preferred minority group.

The 5-4 split in yesterday’s Supreme Court decision shows with vivid clarity the dividing line between justices who are faithful to the mandates of non-discrimination laws as they are written – regardless of the race or gender of the parties involved – and those inject into the legal code their personal sense of “empathy” and their own prescriptions for retributive justice. If their voices are heeded, Sonia Sotomayor will face justice herself when her confirmation hearings begin on July 13.