WASHINGTON – The U.S. Supreme Court appeared to reflect public division about race-conscious employment during arguments Wednesday in a reverse-discrimination suit.
The justices seemed divided about a case in which New Haven,Conn.,disregarded a firefighters' promotional exam because no black candidates and only one Hispanic passed.
The court's decision in Ricci v. DeStefano – one of two major civil rights cases before the court – could change the way employers achieve diversity and counteract discrimination.
“This is a very far-reaching decision,” Justice Stephen Breyer said.
In 2003,the Civil Service Board of New Haven chose to discount the results of a promotional exam when only white firefighters qualified for advancement. Facing different opinions about the test's fairness and relevance,the board decided not to promote any candidate.
The city argued that using the test would have had a disparate – or unintentionally discriminatory – impact on minority candidates,a violation of the 1964 Civil Rights Act.
Since 2003,the available lieutenant and captain positions have been temporarily occupied on a rotating basis based on seniority.
“It's a facially neutral action that applies to everyone the same,” said Christopher Meade,who represents New Haven,about ignoring the test results. “An employer should be able to act when it thinks it could be sued.”
Gregory Coleman,arguing on behalf of Frank Ricci and the 19 other firefighters,countered that New Haven unfairly denied white candidates promotions after seeing the test results without proving that the test was faulty.
Justices acknowledged that a decision in Ricci v. DeStefano could affect employers more broadly, proposing hypothetical situations involving physical-fitness exams,school district boundaries and an employer who thought he didn't receive enough minority applicants.
Justice David Souter said a ruling in favor of the firefighters could create a “damned-if-you-do,damned-if-you-don't situation” for employers who could face a lawsuit any time they threw out a faulty test. But an employer who kept such a test also could be sued for discrimination.
Chief Justice John Roberts and Breyer asked Meade to explain the difference between race-conscious decision-making,which the court has allowed,and intentional reverse discrimination,which is illegal.
“I still don't have,in my mind,a line,” Roberts said. “How do I decide which side of the line this is on?”
Roberts also questioned whether a decision in favor of New Haven could give employers a “blank check to discriminate” if they feared disparate-impact suits.
The Ricci case has attracted attention as one of the first racial discrimination cases to reach the court under President Obama. The court is expected to rule by summer.
Representatives of the National Association for the Advancement of Colored People,including attorney John Payton,said after the court session that employers should be permitted to take actions to circumvent discrimination and that New Haven was right to throw out a test that apparently benefited white candidates.
“It is important for municipalities to have the ability … to have police departments and fire departments that look like the people they serve,” said Marc Morial of the National Urban League. “It is important for this court to stand where this nation is today.”
The two groups were among many that filed friend-of-the-court briefs in the case.
Karen Torre,Ricci's attorney,asserted Wednesday after the hearing that the test was valid.
“It really needs to come to an end so everyone can be Americans. These guys don't want to be white firefighters,” Torre said,explaining that the New Haven firefighters who were denied promotions don't want to be judged based on race.