New Haven firefighters in discrimination case get promotions

Cnn.com
November 25, 2009 2:05 p.m. EST

(CNN) -- The city of New Haven, Connecticut, will promote 14 firefighters who were involved in a workplace discrimination case that worked its way to the U.S. Supreme Court.
The firefighters were among the New Haven 20 -- one Hispanic and 19 white firefighters -- who fought the city after it threw out the results of a 2003 firefighter promotion exam that left too few minorities qualified for promotions.
A U.S. District Court issued a judgment finding the city violated the civil rights of a group of the white firefighters when it threw out the exams in 2004, according to Jessica Mayorga, city spokeswoman. The Tuesday decision follows a court action by seven black New Haven firefighters seeking to delay the promotions.
"Yesterday, the court entered an order that provides the City of New Haven with the legal sanction necessary to move forward and promote the fourteen plaintiffs in the Ricci case entitled to promotions," the city said in a statement. "As a result, we intend to do so as soon as practicable."
The firefighters will be promoted to either lieutenant or captain.

Full Story: http://www.cnn.com/2009/CRIME/11/25/new.haven.firefighters/index.html

Another Suit Filed over New Haven Fire Fighter Promotion Test

The Washington Afro
Civil Rights suit This Time Filed by a Black Firefighter
By AFRO Staff


(October 31, 2009) - A Black New Haven, Conn. firefighter has filed suit in federal court, claiming that his civil rights were violated by the way the city scored a 2003 promotion test.The suit, filed Oct. 29, is the second that New Haven has faced over that test, according to The New York Times. In 2003, the city had several vacancies for the ranks of captain and lieutenant and administered the exam, which included both oral and written portions, to 118 test-takers. But according to The Times, African-American firefighters at the time argued that they were underrepresented among the test’s highest scorers, and New Haven officials opted to disregard the test and issue no promotions.That decision led to a 2004 suit by a group of mostly White firefighters which claimed the city discriminated against their performance in refusing to make the promotions. The U.S. Supreme Court in June found in favor of the White firefighters, and the city said it would go forward with the promotions according to the results of the 2003 test.

Full Story: http://www.afro.com/tabId/551/itemId/5122/Another-Suit-Filed-over-New-Haven-Fire-Fighter-Pro.aspx

Another proud baby of affirmative action

USA Today
Posted at 12:16 AM/ET, July 10, 2009 in
Forum commentary, Race Issues/Civil rights - Forum Permalink
Commentary By Laura E. Gómez

Supreme Court nominee Sonia Sotomayor's speeches are like a Rorschach inkblot test: We hear what we want to hear. A few weeks ago, The New York Times reported that in a speech from the early 1990s, Sotomayor acknowledged that her Puerto Rican heritage played a role in her admissions to Princeton University (where she graduated summa cum laude) and Yale Law School (where she was a top student). Her comments may take on new meaning for opponents of affirmative action in light of the Supreme Court's decision last week in the firefighters' case.

Here's what I hear in her remark that she is "an affirmative action baby." I was admitted to Princeton and other Ivy League colleges 10 years after Sotomayor, having attended a public high school in Albuquerque where many students never graduated. Four years later, I graduated with honors from Harvard. Later, I earned two degrees at Stanford and, while clerking on the 9th Circuit Court of Appeals, I was hired to teach law at UCLA. In 2001, I became the second Latina tenured by a Top 20 law school.

Full Commentary: http://blogs.usatoday.com/oped/2009/07/another-proud-baby-of-affirmative-action-.html

Reverse discrimination ruling leaves confusion

San Francisco Chronicle
By DAVE COLLINS, Associated Press Writer
Tuesday, June 30, 2009

The Supreme Court ruling in favor of white New Haven firefighters who said they were victims of reverse discrimination will probably leave employers confused, civil rights advocates and labor attorneys say.
The court ruled 5-4 Monday that the white firefighters were denied promotions unfairly because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as a federal appeals court judge.
The majority of justices said the city was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results. The city said it had acted to avoid a lawsuit from minorities.
While the court upheld that employers still have an obligation under civil rights laws to avoid discrimination in hiring, promoting and compensating workers, the ruling creates confusing standards on how to meet that obligation, said Wade Henderson, president and chief executive of the Leadership Conference on Civil Rights.
"Employers will now face a convoluted minefield when attempting to protect workers from discrimination," Henderson said. "Employers are looking for bright lines ... they're looking for clear directives to help them better understand how they can engage in nondiscriminatory decisions."
The ruling is confusing, Henderson said, because the high court seemed to say that while New Haven officials tried to avoid discrimination, throwing out the test was discriminatory. "It puts employers in a real quandary," he said.
The Obama administration should direct the government's civil rights agencies to offer guidance on the ruling, said Shirley Wilcher, executive director of the American Association for Affirmative Action.
"In the meantime, we're scratching our heads," she said. "We're concerned about the impact on employers who want to comply with the law and do not want to discriminate ... and it's not clear how to do that."

Full Story: http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2009/06/29/national/w070244D76.DTL

American Association for Affirmative Action Expresses Disappointment in Supreme Court's New Haven Firefighters Decision

American Association for Affirmative Action
Press Release

June 30, 2009

Court creates confusion in Ricci v. DeStefano case by imposing a tougher standard for excluding discriminatory selection procedures

Washington, D.C. - June 30, 2009 - The American Association for Affirmative Action (AAAA), an association of equal employment opportunity (EEO), diversity and affirmative action professionals founded in 1974, expressed disappointment in the U.S. Supreme Court's decision in the Ricci v. DeStefano case, handed down on June 29, 2009. In Ricci, the City of New Haven, CT., administered a test for firefighter promotional opportunities and subsequently chose not to proceed when the results showed "adverse impact", i.e., that none of the African-American candidates would have been eligible for promotion. Ricci, a successful white candidate, filed suit alleging that the city's decision was unconstitutional and violated Title VII of the Civil Rights Act of 1964. In a 5-4 decision, the Supreme Court found for the white plaintiffs and held that the city violated Title VII because it needed to establish a "strong basis in evidence" that the exams were not job related or that another, less discriminatory test existed.

"This 'strong basis in evidence' test creates a higher burden for employers who discover that their selection processes may have an adverse impact on women or racial groups," said ReNee Dunman, AAAA's president. "Without articulating what the 'strong basis in evidence' standard means, or remanding the case so this issue can be explained, this ruling also places employers between a rock and a hard place: if they find that their selection processes have an adverse effect on some racial groups or women, they have to risk litigation if they use the tests or if they don't." The Court's decision will lead to confusion and to more litigation. The decision also creates an expectation by the successful candidates that they will be hired or promoted based on the results of the test and effectively limits the employer's discretion.

A majority of the Court acknowledged that employment discrimination continues to exist, however. Total discrimination charges filed with the Equal Employment Opportunity Commission increased 15% in one year from 82,792 in FY 2007 and 95,402 in FY 2008. Fire Departments around the country, including in New Haven, have a long history of excluding minorities and women, and that history is often perpetuated today through vestiges of arbitrary selection procedures from a bygone era. As Justice Ginsburg wrote, "Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow." Employers and governments continue to have an obligation to take proactive measures to end discrimination.

Despite the Court's disappointing ruling, the law continues to require employers to avoid policies that are discriminatory in practice, and there is a range of steps that employers can take to make sure they are providing equal opportunity in the workplace. "We call on the President (and the civil rights agencies, including the Equal Employment Opportunity Commission, the Department of Labor and the Department of Justice) to work with dispatch and issue guidance for employers on their equal opportunity obligations in light of this decision," added Ms. Dunman.

###

Supreme Court Ruling Creates New Legal Standard That Restricts Equal Employment Opportunity

NAACP Legal Defense Fund
Press Release
June 29, 2009

(New York, NY) - Today's decision in Ricci v. DeStefano is a step backward fromthe goal of equal employment opportunity. A narrow majority of the Court created a new legal standard that places additional hurdles in front of employers seeking to fulfill their obligations under this nation's core antidiscrimination law. The NAACP Legal Defense and Educational Fund, Inc. (LDF) is disappointed that five Justices departed from well-established precedents that were properly applied by the courts below. "The Supreme Court's interpretation imposes new burdens on employers and makes it more difficult to maintain a discrimination-free workplace," said John Payton, LDF President and Director-Counsel. The four dissenting Justices, who joined an opinion authored by Justice Ginsburg, accurately explained the critical need for robust compliance with federal civil rights laws, especially in fire departments, which have historically and notoriously denied employment to African Americans, other people of color, and women. Justice Ginsburg criticized the majority for telling only half the story and ignoring that "[f]irefighting is a profession in which the legacy of racial discrimination casts an especially long shadow." Although we have made some progress as a nation, discrimination in firefighting jobs remains a significant problem. Just this year, the U.S. Department of Justice entered into settlement agreements requiring Portsmouth, Virginia and Dayton, Ohio to cease using discriminatory procedures to hire firefighters. "Faced with the reality of continuing racial exclusion, an employer has a responsibility to abandon unfair employment practices and adopt those that are fair and effective," said John Payton, LDF President and Director-Counsel. While the Court's ruling unnecessarily invalidates New Haven's actions, the majority opinion does not forbid employers from careful and deliberate efforts to develop employment selection procedures that fairly predict workplace success without fencing out entire groups. The Court's majority recognized that "employers' voluntary compliance efforts . . . are essential to [our civil rights laws] and to Congress's efforts to eradicate workplace discrimination." LDF believes that ultimately, employers will be able to comply with this decision and continue to take vigorous steps to ensure equal opportunity for all workers.

Supreme Court Rules for White Firefighters on Job-Test Case

Workforce Management
June 29, 2009

A narrow majority of the Supreme Court ruled on Monday, June 29, that New Haven, Connecticut, could not justify throwing out the results of employment tests that would have promoted only white firefighters to the rank of lieutenant or captain.
The 5-4 majority said that the city had to show a “strong basis in evidence” that the exams were not job related or that another, less discriminatory test existed.
The decision is sure to have an impact on the private sector, where employment tests are increasingly popular. Experts are urging companies to be careful when using them in the wake of the Supreme Court’s ruling.
After administering the promotion tests in November and December of 2003, the city decided not to certify the results because of concerns that it was not fair to African-American candidates and could leave the city open to a lawsuit.
Based on the tests, all the top 10 candidates for lieutenant were white and seven of the top nine for captain were white, along with two Hispanics.
The white firefighters, led by Frank Ricci, sued New Haven, arguing that they were unfairly denied promotions. A district court granted summary judgment in favor of New Haven, and the ruling was upheld by the 2nd Circuit Court of Appeals, where Supreme Court nominee Judge Sonia Sotomayor participated in the decision.
The Supreme Court majority overruled the 2nd Circuit, holding that New Haven effectively discriminated against the white firefighters in order to prevent discrimination against the African-American applicants. The former, “disparate treatment,” and the latter, “disparate impact,” are both prohibited by federal discrimination laws.
But the court ruled that in order to protect minorities against disparate impact, the city had to demonstrate that there was something wrong with the test, which it failed to do.
“[T]here 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,” wrote Justice Anthony Kennedy for the majority that included Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr.
“Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” Kennedy wrote.
In a dissent, Justice Ruth Bader Ginsburg said that the majority ignored evidence of flaws in the New Haven tests....

“Undertaking employment tests should be well thought out before [they] are utilized,” said Linda Cavanna-Wilk, of counsel to Ford & Harrison in New York.* “The decision significantly increases the legal risk associated with the use of selection devices or employment tests. An employer’s back is somewhat against the wall.”
Companies must be prepared to show that exams are relevant in the hiring process.

*[AAAA Note: Ms. Cavanna-Wilk is a professor for AAAA's Professional Development and Training Institute.]

Full Story: http://www.workforce.com/section/00/article/26/51/55.php

A bad test for racial equity

The Boston Globe
June 30, 2009

TO THIS DAY, black and Hispanic applicants suffer unfair disadvantages in the job market, in the form of either overt discrimination or hiring and promotion policies that perpetuate old wrongs. But a ham-handed effort by the City of New Haven to avoid a civil-rights lawsuit - which prompted a stiff response by the US Supreme Court yesterday - could make it harder for employers to change their ways voluntarily.
In 2003, New Haven’s Civil Service Board decided not to certify the results of a Fire Department exam after the results indicated that no black firefighters would be eligible for promotion. Eighteen white firefighters sued. Yesterday, the Supreme Court ruled for them by a 5-to-4 margin.
New Haven was asking for trouble: The city threw out a test that had already been given - after some firefighters spent vast amounts of time and money preparing. The city’s clumsy actions seem to violate basic fairness. And they are sure to fuel opposition to affirmative action, which is still sorely needed in a diverse society.
More complex than it looks New Haven argued that, if it hadn’t overturned the test results, black firefighters could have sued on the grounds that the test effectively discriminated against them. In an opinion by Justice Anthony Kennedy, the court ruled that the city should not have bowed to the threat of a lawsuit, because it could reasonably have defended the test as related to the job of an officer in the Fire Department.
But as a matter of law, the four dissenting justices have the better case. No one has a right to a promotion. And as Justice Ruth Bader Ginsburg points out in her opinion, the majority has now created an impossible standard for employers who’ve kept minorities out previously but choose to mend their ways: Unless they explicitly admit that they’ve put up unnecessary obstacles in the past, employers will be hard-pressed to abolish hiring and promotion practices that disproportionately screen out black and Hispanic employees. Ginsburg writes that “an employer who discards a dubious selection process can anticipate costly . . . litigation in which its chances for success . . . are highly problematic.’’

Full editorial: http://www.boston.com/bostonglobe/editorial_opinion/editorials/articles/2009/06/30/a_bad_test_for_racial_equity/

Justices Rule for White Firefighters in Bias Case

The New York Times
June 29, 2009
By ADAM LIPTAK

WASHINGTON — The Supreme Court ruled on Monday that white firefighters in New Haven were subjected to race discrimination when the city threw out a promotional examination on which they had done well and black firefighters poorly.
“The city rejected the test results solely because the higher scoring candidates were white,” Justice Anthony M. Kennedy wrote for the majority, adding that the possibility of a lawsuit from minority firefighters was not a lawful justification for the city’s action.
“Fear of litigation alone,” Justice Kennedy wrote, “cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”
The 5-to-4 ruling, which reversed an appeals court decision joined by Judge Sonia Sotomayor, now a Supreme Court nominee, will have broad impact, lawyers specializing in employment discrimination law said.
“This decision will change the landscape of civil rights law,” said Sheila Foster, a law professor at Fordham.
The new standards announced by the court will make it much harder for employers to discard the results of hiring and promotion tests once they are administered, even if they have a disproportionately negative impact on members of a given racial group.
Public employers that use civil service examinations and similar tests will be most directly affected, but the principle announced by the court applies to all employers and all sorts of procedures used to rank and sort potential and current employees.
Justice Ruth Bader Ginsburg, reading a dissenting statement from the bench, said the majority had undermined a crucial civil rights law. “Congress endeavored to promote equal opportunity in fact, and not simply in form,” she said. “The damage today’s decision does to that objective is untold.”
The New Haven case had drawn wide interest, in part because of Judge Sotomayor’s role in it.
Supporters of her Supreme Court nomination said Monday’s decision changed the law and thus did not reflect negatively on the decision she participated in. Critics asserted that the appeals court’s approach had not been fully endorsed by any justice.
Justice Kennedy, writing for himself and the four members of the court’s conservative wing, said the case required the court to try to reconcile two aspects of Title VII of the Civil Rights Act of 1964, which prohibits race discrimination in employment.
The “original, foundational” core of Title VII, Justice Kennedy wrote, prohibits intentional discrimination against individuals on the basis of race — “disparate treatment,” in the legal jargon. But the law also prohibits some seemingly neutral practices that have a “disparate impact” on members of racial groups.
Many of the plaintiffs in the case — 18 white firefighters, one of them Hispanic — studied intensively for the test, giving up second jobs and missing family celebrations. The lead plaintiff, Frank Ricci, who is dyslexic, said he studied for 8 to 13 hours a day, hiring an acquaintance to tape-record the study materials.
New Haven argued that it had acted in good faith in throwing out the exam results, fearing a disparate-impact suit from minority firefighters.
That was not enough, Justice Kennedy wrote. Indeed, allowing “employers to discard the results of lawful and beneficial promotional exams even when there is little if any evidence of disparate-impact discrimination,” he wrote, “would amount to a de facto quota system.”
But the majority did not rule out consideration of disparate impact altogether. Employers may consider potential racial impact “during the test-design stage,” Justice Kennedy wrote.
And, in “certain, narrow circumstances” after tests are given, he continued, employers may discard the results if they can demonstrate “a strong basis in evidence” that using the results would cause them to lose a disparate-impact suit.
That heightened standard, Justice Kennedy wrote, requires employers to show that the tests were not relevant to the jobs at issue or that other “equally valid and less discriminatory tests were available.”

Full Story: http://www.nytimes.com/2009/06/30/us/30scotus.html?ref=us

Ruling Offers Little Guidance on Fair Hiring

The New York Times
Published: June 29, 2009

By STEVEN GREENHOUSE

In ruling for a group of white firefighters in New Haven on Monday, the Supreme Court tried to address a damned-if-you-do, damned-if-you-don’t quandary for many cities and other employers: what they should do when an employment test yields results that overwhelmingly favor whites.
But many legal experts said that instead of setting forth clear new rules, the court’s decision left things as muddled as ever for the nation’s employers — and seemed to ensure much more litigation over the explosive issue of employment discrimination.
“We don’t see clear, bright-line guidance here,” said Lars Etzkorn, a program director with the National League of Cities. “This is going to be good for employment lawyers.”
The 5-to-4 ruling applies largely to public-sector hiring and to civil service exams, but could also affect private employers that use tests or other screening methods. The court said that if an employer used a hiring or promotion test, it generally had to accept the test’s results — unless the employer had strong evidence the test was flawed and improperly favored a particular group.
With the court’s ruling making it harder for cities and other employers to throw out tests they conclude are unfair, employers are expected to work harder to make sure their written tests — indeed their entire selection process — are fair.
“The ruling gives employers less flexibility to change the selection process once it’s established,” said Katharine Parker, a lawyer with Proskauer Rose who is chairwoman of the Labor and Employment Committee of the New York City Bar Association. “As a result, employers will want to try to establish bulletproof selection criteria.”
Some may abandon written tests altogether.
To avoid charges of discrimination, many cities have already been moving away from such tests in favor of other methods of hiring and promoting employees in places like fire and police departments. They say written tests are often not the best way to determine who can perform best.
In New Haven, city officials, having concluded that their written test was flawed, said there was another, trusted method to select firefighting lieutenants and captains that posed less of a disadvantage to blacks and Hispanics. That method relies largely on assessment centers where applicants are evaluated in simulated real-life situations to see how they would handle them.
Supporters of the idea say assessment centers do far better than written exams in measuring leadership and communications skills and an applicant’s ability to handle emergencies.

Full Story: http://www.nytimes.com/2009/06/30/us/30impact.html?_r=1&hp

Polling Shows Support For Affirmative Action

CBS News Blogs
June 29, 2009 2:18 PM

The Supreme Court today ruled in favor of white firefighters in the closely watched New Haven, Conn., case, finding that they were unfairly denied promotion. With that in mind, we took a look at recent polling on the public's opinion about affirmation action, which shows that slightly more Americans favor than oppose affirmative action generally. In this particular case, the group of white firefighters, the plaintiffs, believed they were discriminated against when the city of New Haven threw out the results of an exam because too few minorities scored high enough. A CBS News/New York Times Poll, conducted June 12-16, found 50 percent in favor of programs that make special efforts to help minorities get ahead, with 41 percent opposed. For over a decade more Americans have favored affirmative action programs than opposed them.

Full Story: http://www.cbsnews.com/blogs/2009/06/29/politics/politicalhotsheet/entry5122472.shtml

Black, Hispanic firefighters gather to express unity

New Haven Register
June 25, 2009

NEW HAVEN — A group of black and Hispanic firefighters and community leaders, who say they face common challenges but sometimes follow divergent paths, stood together in a show of unity Wednesday at a symbolic location in a melting-pot neighborhood.The announcement was what they called a newfound common ground between the two racial groups and an era of better collaboration, forged during a recent series of meetings mediated by the NAACP aimed at “healing,” said James Rawlings, president of New Haven’s NAACP branch.“We face a lot of things together as minorities, and for us, being divided and separate is not a good thing,” said firefighter Terry Rountree, vice president of the New Haven Firebird Society, a fraternal organization of black firefighters. “And from this day forth, hopefully, we can work together and just serve the city better in certain issues that we both deal with as minorities on the Fire Department.”The groups gathered in advance of a Supreme Court decision in Ricci v. DeStefano, a New Haven case that potentially could change the landscape of hiring and promotional practices in the public sector when it comes to race.Regardless of the outcome, Alderman Jorge Perez, a prominent leader in the Hispanic community, said, “We don’t want to let any one issue separate us.“We should not let anything, including the Ricci case, come between the two communities. We have much in common.”A small crowd turned out despite the rain in Fair Haven, a community with a large Hispanic population, in front of a memorial for black soldiers from the 29th Infantry Regiment who fought for the Union in the Civil War.Rawlings called it a “coming together as one group, relative to the kinds of civil rights issues that we have fought collaboratively over the many, many, many years.”At least part of the friction appears to have been rooted in the different positions two fraternal organizations representing blacks and Hispanics took in the Ricci case, which centers on two civil service exams that were thrown out in 2004 because not enough blacks scored high enough to be promoted. The city lobbied the Civil Service Commission to discard the results because they appeared to violate federal law barring disparate impact on any racial group.From the beginning, the Firebirds adamantly and vocally supported the city’s position.The New Haven Hispanic Firefighters Association, meanwhile, has been careful to remain neutral, although the International Association of Hispanic Firefighters, of which the NHHFA is a chapter, filed an amicus brief with the Supreme Court supporting the city.New Haven Firefighter Rene Cordova explained that he founded the NHHFA as a service organization, not a political one, and while he attended Wednesday’s event, he steered clear of the disputed tests. He did agree with the call for unity, and said it should transcend race to include all firefighters on the department.The handful of meetings between the two groups, along with the NAACP and Ronald Morales of the IAHFF, occurred over the last few months.It bothered Lt. Gary Tinney, a Firebird, that the media focused on the African-American position in the Ricci case, when the IAHFF filed a Supreme Court brief taking the same stance.Employment lawsuits the Firebirds filed and won in New Haven have benefited all minorities, not just African Americans, he said.“We had to find a way to communicate better,” Tinney said. “We were being put against each other and it shouldn’t have been the case, because the issues that affect them are the same issues that affect us.”The U.S. Supreme Court is expected to rule within days in the case brought by one Hispanic and 19 white firefighters who claim the city violated their civil rights by throwing out the tests.Morales said Wednesday that the show of unity was important, since blacks and Hispanics face shared challenges in a profession that he says is still dominated by a “good old boy” network that stifles opportunity for all minorities.

Full Story: http://www.nhregister.com/articles/2009/06/25/news/new_haven/a1_--_unity.txt

High court candidate’s ruling scrutinized

New Haven Register
Published: Sunday, May 10, 2009
By Mary E. O’Leary, Register Topics Editor

NEW HAVEN — Judge Sonia Sotomayor has a lot going for her, as President Barack Obama looks to fill the soon-to-be-vacated seat held by Justice David H. Souter.With 16 years of experience in the federal courts, the last 11 as a member of the 2nd U.S. Circuit Court of Appeals in New York, she has been described as a smart, hard worker, who takes no nonsense and expects litigants to be on their toes.Her high-profile decisions include, among others, ending the eight-month long baseball strike in 1995, by siding with labor, and allowing the Wall Street Journal to publish the suicide note of Vincent Foster.Sotomayor’s opinions have been characterized as moderate to liberal and she has not been afraid to disagree with the government on cases involving the White House and the religious rights of prisoners, according to analysts.But the case that will likely get the most scrutiny, if she is nominated, is Ricci v. DeStefano, New Haven’s firefighter case, which is seen as a major referendum on affirmative action with a ruling by the U.S. Supreme Court expected this spring.Sotomayor was on a three-judge panel at the 2nd District Court of Appeals that upheld New Haven’s decision to throw out the test results, where 19 white firefighters and one Hispanic would have been promoted, but no blacks.The panel was criticized by Circuit Judge Jose A. Cabranes for adopting in full the ruling of U.S. District Court Judge Janet Bond Arterton without any elaboration or affirmation, something that is usually reserved for clear-cut, uncomplicated cases.“The questions raised in this appeal cannot be classified as such, as they are indisputably complex and far from well-settled,” Cabranes wrote for the dissenters in a 7-6 vote in which he failed to convince the full court to rehear the appeal.The case goes to the application of the 14th Amendment’s equal protection clause and Title VII’s prohibition on discriminatory employment practices and has generated discussion across the political spectrum.The question is can a city ignore the results of an exam, which was written to ensure race-neutrality, if it “yielded too many applicants of one race and not enough of another?” Cabranes asked.

Full Story: http://www.nhregister.com/articles/2009/05/10/news/new_haven/a1judge.txt

Sonia Sotomayor Could Be on Obama's Short List for Replacing Souter

U.S. News and World Report
By Alex Kingsbury
Posted May 11, 2009

President Obama has been vague about what type of jurist he intends to nominate to replace retiring Justice David Souter on the nation's highest court. There's no end of speculation about what the president means when he says he's looking for someone with "heart and empathy" and a keen understanding of "how our laws affect the daily realities of people's lives." But many think that means he intends to diversify the bench.
Indeed, analysts largely agree that Obama is looking for a candidate with a hard-knocks background and wants to appoint either a woman or a minority jurist. That puts Sonia Sotomayor, a woman of Puerto Rican descent from the Bronx who is a federal appeals court judge, atop most short lists. Others mentioned include Solicitor General Elena Kagan, Circuit Court Judge Diane Wood, and Pamela Karlan and Kathleen Sullivan, both professors at Stanford Law School.
Vetters and opposition researchers are zeroing in on Sotomayor, the perceived front-runner. A video from a 2005 forum at Duke University recently surfaced in which Sotomayor appears to jokingly refer to the Court of Appeals "making policy" (a phrase sure to enflame conservatives). But the case most mentioned by critics is her concurrence in a ruling against a group of white Connecticut firefighters who sued over a hiring policy that gave preference to minority candidates. The reverse-discrimination case was appealed to the Supreme Court, which has yet to issue a ruling.
It's both ironic and fitting, court watchers say, that Sotomayor may face the most scrutiny over an affirmative action ruling. Such cases are among the most contentious and intractable in the realm of civil rights issues. If Sotomayor is nominated, it will imply that her gender and lineage, in addition to her legal work, recommend her for the position. Of course, a diverse heritage and background aren't always indicative of a justice's take on civil rights. David Souter, who was a civil libertarian, became a staunchly liberal advocate in civil rights cases over the years. "The next justice will have to fill Souter's enormous shoes in terms of civil rights decisions," says Barbara Arnwine, executive director of the Lawyers' Committee for Civil Rights Under Law. "The list of potential candidates is noteworthy not only because of the diversity of the candidates themselves but also the strength of their legal work."

Full Commentary: http://www.usnews.com/articles/news/national/2009/05/11/sonia-sotomayor-could-be-on-obamas-short-list-for-replacing-souter.html

Supreme Court Ruling Unlikely to End Affirmative Action

New America Media, Commentary, Earl Ofari Hutchinson , Posted: Apr 26, 2009

Editor's Note: In June, the Supreme Court almost certainly will rule that the city of New Haven, Conn. discriminated against white firefighters on its promotional test. But that won’t end affirmative action because repeated polling of Americans has indicated that they favor it, argues NAM contributing writer Earl Ofari Hutchinson.

The U.S. Supreme Court will vote in June whether New Haven, Connecticut discriminated against white firefighters on its promotional test. It’s hardly the first time the Supreme Court has ruled on race related employment and education cases. In each instance the rulings have done much to fuel the notion that a majority of Americans oppose affirmative action.Nothing could be further from the truth.In countless polls and surveys, a solid majority of Americans do vehemently oppose the use of quotas, preferences, set asides and what’s deceptively labeled “reverse discrimination.” They have also backed anti-affirmative action initiatives that have cannily and deceptively played on words to stir outrage and indignation that affirmative action subverts the cherished American values of equality, fair play, and reward for merit. The same polls, however, show that when the pollsters avoid an all-or-none choice between affirmative action as it currently exists and no affirmative action whatsoever a majority of Americans support affirmative action at some level. Title VII of the civil rights law explicitly gives employers the right to ban tests that have a “disparate impact” on racial groups.

Full Story: http://news.newamericamedia.org/news/view_article.html?article_id=33519b2e8cdd31ad62588dfeebbae891

Reverse discrimination case could transform hiring

The Washington Post
By JESSE WASHINGTON
The Associated Press Saturday, April 18, 2009; 3:57 PM

NEW HAVEN, Conn. -- Inside a burning building, fire doesn't discriminate between Matthew Marcarelli and Gary Tinney. Inside the New Haven Fire Department, however, skin color has put them on opposite sides of a lawsuit that could transform hiring procedures nationwide.
This week, the Supreme Court will consider the reverse discrimination claim of Marcarelli and a group of white firefighters. They all passed a promotion exam, but the city threw out the test because no blacks would have been promoted, saying the exam had a "disparate impact" on minorities likely to violate the 1964 Civil Rights Act.
Besides affecting how race can be considered in filling government and perhaps even private jobs, the dispute also addresses broader questions about racial progress: Do minorities and women still need legal protection from discrimination, or do the monumental civil rights laws that created a more equal nation now cause more harm than good?
Also, beneath the specific details of the firefighters' lawsuit lies an uncomfortable truth: On most standardized tests, regardless of the subject, blacks score lower than whites.
Reconciling that reality with efforts to ensure "justice for all" remains a work in progress _ one that will be molded by the Supreme Court.
New Haven's population is 44 percent white, 36 percent black and 24 percent Hispanic (who can be any race). At the time of the 2003 test, 53 percent of the city's firefighters, 63 percent of lieutenants and 86 percent of captains were white. Blacks were 30 percent of the firefighters, 22 percent of lieutenants and 4 percent of captains.
Tinney, a black lieutenant who has been a firefighter for 14 years, was seeking a promotion to captain when he took the exam.
He says both the test and his fire department have hidden biases against minorities: The department is historically white, with the first blacks joining in 1957, and jobs, relationships, knowledge and choice assignments are passed on from friend to friend and generation to generation.
"I just call it 'the network,'" Tinney says.
The white firefighters' attorney, Karen Torre, said they would not be interviewed for this story. In a conversation on Fox News' "Hannity" program, Marcarelli said it was "gut wrenching" to learn that he was No. 1 on the test but would not get promoted.
"It's something that shakes what you believe in. Because you believe if you work hard, you're rewarded for that, and that's not necessarily the case," Marcarelli said.

Full Story: http://www.washingtonpost.com/wp-dyn/content/article/2009/04/18/AR2009041801358.html

High Court Poised To Closely Weigh Civil Rights Laws

The Washington Post
Cases Heard as Nation Debates Race

By Robert Barnes
Washington Post Staff Writer
Sunday, April 19, 2009

The Supreme Court has an opportunity to reaffirm or reshape the nation's civil rights laws as it faces a rare confluence of cases over the next two weeks, including a high-profile challenge brought by white firefighters who claim they lost out on promotions because of the "color of their skin."
The cases also touch on the Voting Rights Act, the need to provide English classes for immigrant children and, more tangentially, discriminatory mortgage lending.
The most emotionally charged case is from the New Haven, Conn., firefighters, whose complaints define the real-life quandary that sometimes accompanies government efforts to ensure racial equality.
The firefighters accuse city officials of violating civil rights laws and the Constitution by throwing out a promotions test on which they performed well but no blacks scored high enough to be eligible. The city responds that relying on test results with such wide racial discrepancies could have violated federal law and left them open to being sued by minorities.
The court will hear the arguments, along with the others, in the midst of an evolving national conversation about the role of race and diversity and in the wake of the historic presidential election.

Full Story: http://www.washingtonpost.com/wp-dyn/content/article/2009/04/18/AR2009041802203_pf.html

U.S. Supreme Court To Hear New Haven Firefighters' Race Discrimination Case This Month

courant.com
By DAVID SAVAGE
Tribune Newspapers
April 6, 2009
WASHINGTON —
Frank Ricci, a firefighter from New Haven, spent months listening to study tapes as he drove to work and in the evenings as he prepared for a promotional test. It was a once-a-decade chance to move up to a command rank in the fire department.Ricci earned a top score but no promotion.The city had coded the test takers by race, and of the top 15 scorers, 14 were white and one was Hispanic. Because there were only 15 vacancies in the top ranks of the fire department, it looked like no blacks would be promoted.After a racially charged debate that stretched over four hearings, the city's civil service board rejected the test scores in 2004 and promoted no one."To have the city throw it out because you're white or because you're not African American is insulting," Ricci said when he and 19 other firefighters sued the city for race discrimination.The Ricci case, due to be argued at the U.S. Supreme Court this month, is the first to come before the court under Chief Justice John Roberts that broadly raises the issue of race in the workplace. The outcome could reshape hiring and promotion policies for millions of the nation's public employees — and possibly for private employers as well. And Roberts, leading a five-justice majority, has made clear he believes it is time to forbid the use of race as a factor in the government's decisions.The Obama administration, taking its first stand on race and civil rights, sided with the city and said it was justified in dropping the test if it had "gross exclusionary effects on minorities." Although blacks make up about 31 percent of New Haven's 221 firefighters, 15 percent are officers — eight of 42 lieutenants and one of 18 captains.At issue is whether an employer can weigh the racial effect of a hiring or promotional standard.

Full Story: http://www.courant.com/news/local/hc-firefighter-race-lawsuit.artapr06,0,5219178.story