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Discrimination Claim Appears to Divide High Court


A divided Supreme Court took up its first examination of race in the Obama era Wednesday, wrestling with claims of job discrimination by White firefighters in a case that could force changes in employment practices nationwide.

The case from New Haven, Conn., pits White firefighters, who showed up at the court Wednesday in their dress uniforms, against the city over its decision 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.

As is often the case with closely fought social issues at the court, Justice Anthony Kennedy appeared to hold the key to the outcome. He seemed concerned that New Haven scuttled the test without determining that there were flaws that might have led to the racially disproportionate results.

“So shouldn’t there be some standard that there has to be a significant, a strong showing after the test has been taken that it’s deficient? Before it can be set aside?” he said.

Kennedy often frowns on racial classifications, yet he is not as opposed to drawing distinctions on the basis of race as his more conservative colleagues.

But where Kennedy saw shades of gray, the rest of the court seemed to view the case clearly in terms of Black and White.

The court’s conservative bloc seemed inclined to side with the White firefighters. “You had some applicants who were winners and their promotion was set aside,” Justice Antonin Scalia said.

Chief Justice John Roberts wondered whether the city could continue throwing out tests when it doesn’t like the results. “They get do-overs until it comes out right?” Roberts said.

The liberals indicated that New Haven did nothing wrong by throwing out the test over concerns that it had an unintended but “disparate impact” on minorities in violation of the 1964 Civil Rights Act. The White firefighters said the decision violated the same law prohibition on intentional discrimination.

A ruling against the city, Justice David Souter said, could leave employers in a “damned-if-you-do, damned-if-you-don’t situation.” Souter’s comment reflected the concern of business interests who said in a court filing that a decision in favor of the White firefighters would place employers in an untenable position of having to choose whether to face lawsuits from disgruntled White or minority workers.

“Whatever Congress wanted to attain” in writing the civil rights law, Souter said, “it couldn’t have wanted to attain that kind of a situation.”

The firefighters’ dispute is one of two major civil rights cases on the court’s calendar in the next two weeks. The other deals with a key provision of the Voting Rights Act.

Underlying both cases are broader questions about racial progress and the ongoing need for legal protections from discrimination for minorities, especially after the election of President Barack Obama.

Even if the court rules for the White firefighters, further lower court proceedings are likely. The Obama administration, though siding mainly with the city, urged the court to allow the lawsuit to proceed on a limited basis.

It also is unclear how the court will distinguish between permissible distinctions on the basis of race and illegal discrimination. Where the line is drawn could determine how broadly employers’ hiring and promotion decisions are affected.

After the arguments, lead plaintiff Frank Ricci stood on the steps of the court with his White colleagues. “We’re all happy to have our day in court,” Ricci said in brief comments to reporters.

At least two Black firefighters from New Haven also were at the court, although in civilian dress.

Dennis Thompson, lawyer for the International Association of Black Professional Fire Fighters, said the court should side with New Haven. “Diversity is essential to the performance of the fire services,” Thompson said after the argument.

Inside the courtroom, Christopher Meade, representing New Haven, made much the same argument. “The problem with a discriminatory test is that it does not set a level playing field. It may create an illusion of meritocracy, but the problem is it not only disfavors certain individuals, but on the flip side, it also necessarily advantages others,” Meade said.

Gregory Coleman, the Texas-based lawyer who represents the White firefighters and the challengers to the voting rights law, said New Haven probably could use a different test in the future to avoid similar problems.

But this case is relatively simple, Coleman said. “Our firefighters had already taken the test,” he said. “They had earned their promotions.”

A decision is expected by late June.

The consolidated cases are Ricci v. DeStefano, 07-1428, and Ricci v. DeStefano, 08-328.

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