The Washington Post reports that the U.S. Supreme Court today issued a ruling on Ricci v. DeStefano, or what is more popularly known as the "White Firefighters Case" in the mainstream media. Sonia Sotomayor served on the Second Circuit court of appeals and helped craft the opinion from which the fire fighters appealed.
The decision was 5-4 with the majority including Kennedy, Roberts, Alito. Scalia, and Thomas.
For those not familiar, the City of New Haven, CT uses a test to determinw whether fire fighters should be promoted based on their performance on the test. None of the black testers socred high enough to pass and were thus barred from potential promotion. Griggs v. Duke Power Co., 401 U.S. 424 (1971) established the theory of disparate impact which bars use of such tests if a race of people were negatively affected by them whether or not the employer intentionally discriminated or not. New Haven's argument was that they would be exposed to potential disparate impact suits if they used the tests and, thus, promoted no blacks.
However, the Court is Ricci today held:
"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,"
That's where I disagree. Isn't fear of litigation what makes people and employers obey the current law? I thought that the court was going to rule in favor of the city. But I'm also not surprised that it ruled in favor of the white firefighters.
In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them."
I agree with Ginsburg's logic. No one is entitled to a promotion. All firefighers were treated the same because none were promoted. Where's the discrimination?
The court in Griggs said that even if no minorities qualify for promotion based on a test, use of said test is fine as long as the questions are relevant to the job. So a test on Russian history could not be used to promote for a job that involved supervising people hauling coal to a furnace.
If I recall correctly, at the trial stage, both parties moved for summary judgment so no facts were entered into evidence. I think this ruling simply remands the case back to the trial level where facts will be revealed such as what questions were on the test.
The media, when discussing this case and Sotomayor's role in it, don't ever mention prior case law regarding disparate impact analysis. They frame it as Sotomayor is a person of color and she sided with other people of color (not really since The City of New Haven was the defendant). The subtle message is: "watch-our white people, she's gonna give your job to a black or hispanic when she gets on the court!"
As a black man I'm concerned that no black people scored high enough on the exam. But If the test questions were job related and no black person passed then I would be fine with no black person being promoted. The City of New Haven may have been legally right promoting only those who passed but were so scared of being sued they overreacted by promoting no one. The City was screwed either way since they were destined to be sued.