"Ricci v. DeStafano" and Judge Sotomayor

What would you do? In 2003, the City of New Haven, Connecticut, paid a reputable firm, specializing in racially neutral promotional civil service exams, $100,000.00 to develop such an exam for New Haven’s fire department. The exam consisted of a written section and an oral section, the oral section being the racial modifier. New Haven then administered the exams. There were 7 vacancies requiring the Captain’s Exam, and 8 vacancies requiring the Lieutenant’s exam. When the exam results were announced, much to the dismay of the city fathers those qualifying for promotion for the 15 vacancies included only two Hispanics and no blacks.

New Haven was faced with a dilemma. The city charter required that the positions be filled according to exam rankings. But it also was dealing with possible violations of federal law and feared a federal action against the city if it hired those who were the most qualified. The Civil Service Board then decided they way to address the problem was to determine promotions by using scores from only 9 of the 25 exam sections, those 9 being the sections where there were the least difference in scores between the racial classes.

Those fire fighters who scored the highest on the overall test, including a white dyslexic firefighter who used extraordinary efforts to pass the exam, sued the city in Federal District Court to certify the results of the entire exam citing violation of the Constitution’s Equal Protection Clause…reverse discrimination.

The district court ruled in favor of the City. It reasoned that the motives of the Civil Service Board fell outside of the “because of” rule necessary to maintain a reverse discrimination lawsuit. This is a common law rule which states that the discrimination must be made “because of” solely racial preferences. The lower court ruled that the decision of the Civil Service Board was motivated by efforts to comply with Title VII of the 1964 Civil Rights Act and avoid further litigation by minorities, not because it preferred blacks and Hispanics to whites.

The case was then appealed to the 2nd Circuit Court of Appeals, and heard by 3 justices, including Justice Sonia Sotomayor, Obama’s current Supreme Court nominee. It wrote: “…because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.” The fire fighters then asked the 2nd Circuit Court of Appeals to hear the appeal en banc (with all justices hearing the appeal) and were denied.

The case has now been appealed to the United States Supreme Court, where oral arguments were heard this past April, with a ruling expected by the end of June. Several of the vacant positions are now filled by black and Hispanic candidates on a “temporary basis.” These folks finished the racially neutral exam at a level below the cut. Would you want to be a fire fighter in a life threatening situation under their command? If your house was burning down and your child was trapped, would you want these folks calling the shots?

You see, the road to hell is always paved with good intentions. Empathy for the minorities that finished at the bottom of the test scale ends in a perverse result where fellow employees and the general public, who may be in harm’s way, get the mediocre rather than best looking out for each other and for us in potentially deadly situations. This isn't a racial issue. It is a public safety issue.