Sotomayor reversed by U.S. Supreme Court in racial discrimination suit

By Linda Bentley | July 1, 2009

‘... the war between disparate impact and equal protection will be waged sooner or later’

Sotomayor & Obama
WASHINGTON, D.C. – On June 29, the U.S. Supreme Court, in a 5-4 decision, ruled in favor of a group of New Haven, Conn. firefighters, who sued the city for discrimination when their test results that would have allowed them to be considered for promotions were thrown out by the city because not enough minorities passed the test.

The court found the city’s actions to be in violation of Title VII of the Civil Rights Act of 1964, which prohibits intentional acts of employment discrimination based on race, color, religion, sex and national origin.

The Supreme Court’s decision in the case, known as Ricci v. DeSteffano, also overturned the opinion of the Second Circuit Court of Appeals, in which Judge Sonia Sotomayor, President Obama’s Supreme Court nominee, affirmed the district court’s ruling in favor of the city’s decision not to certify the tests, effectively denying white firefighters an earned chance at promotions, based exclusively on race.

Plaintiff Frank Ricci stated the test questions were based on New Haven Fire Department’s own rules and procedures, and on “nationally recognized” materials representing accepted standards for firefighting.

Before he even knew whether or not he had passed the test, Ricci said “… the people who passed should be promoted. When your life’s on the line, second best may not be good enough.”

The district court concluded New Haven’s “motivation to avoid making promotions based on a test with a racially disparate impact . . . does not, as a matter of law, constitute discriminatory intent” under Title VII.

Following full briefings and oral arguments, the court of appeals affirmed the district court’s opinion in a one-paragraph, unpublished summary order, which it later withdrew and issued a nearly identical, one-paragraph opinion adopting the district court’s reasoning in its place.

Justice Kennedy, who delivered the opinion of the court, in which Chief Justice Roberts, justices Scalia, Thomas and Alito joined, said all the evidence demonstrated the city chose not to certify the examination results due to the statistical disparity based on race and wrote, “As the District Court put it, the city rejected the test results because ‘too many whites and not enough minorities would be promoted were the lists to be certified.’”

While the city rejected the test results solely because the higher scoring candidates were white, the question at hand was not whether that conduct was discriminatory but whether the city had a lawful justification for its race-based action.

Kennedy stated, “As we have discussed at length, the process was open and fair. The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the city’s refusal to certify the results. The injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the city had established for the promotional process.”

Justice Alito, who also filed a concurring opinion, in which justices Scalia and Thomas joined, took on the dissenting opinion by Justice Ginsberg that sided with the city’s decision to scrap the test results.

Alito wrote, “Almost as soon as the city disclosed the racial makeup of the list of firefighters who scored the highest on the exam, the city administration was lobbied by an influential community leader to scrap the test results, and the city administration decided on that course of action before making any real assessment of the possibility of a disparate-impact violation.”

Justice Scalia, in a concurring opinion, wrote, “I join the court’s opinion in full, but write separately to observe that its resolution of this dispute merely postpones the evil day on which the court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII … consistent with the Constitution’s guarantee of equal protection?”

He stated, “… the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how – and on what terms – to make peace between them.”