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U.S. Supreme Court

Supreme Court Rules for White Firefighters in Reverse Bias Case

Posted Jun 29, 2009 9:22 AM CDT
By Debra Cassens Weiss

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The U.S. Supreme Court has ruled on behalf of white firefighters challenging a decision to throw out a promotional exam because no blacks got top scores.

The 5-4 ruling holds that a fear of disparate impact claims by minorities does not justify a decision to toss the test by the city of New Haven, Conn., SCOTUSblog reports in a live blog account. Justice Anthony M. Kennedy wrote the majority opinion.

"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, according to an account by the Washington Post.

"We conclude that race-based action like the city’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute." The city of New Haven could not meet that threshold of proof, he said.

The high court ruling overturns a panel decision by the New York City-based 2nd U.S. Circuit Court of Appeals that included Judge Sonia Sotomayor, nominated to replace retiring Justice David H. Souter.

Supreme Court litigator Tom Goldstein, writing at SCOTUSblog, says the majority appears cautious to avoid criticizing the 2nd Circuit ruling.

“I am struck by the extent to which the majority opinion largely treats the court of appeals’ ruling as a nonevent,” Goldstein writes. “To the contrary, Justice Kennedy almost seemingly goes out of his way not to criticize the decision below, notwithstanding that the Supreme Court takes a dramatically different view of the legal question.”

New Haven had argued its decision to abandon the test was justified because it could face disparate impact claims by minorities under the Civil Rights Act of 1964.

A concurrence by Justice Antonin Scalia says the opinion “merely postpones the evil day on which the court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?”

Justice Ruth Bader Ginsburg read her dissent aloud, AP reports. She was joined by Justices Souter, Stephen G. Breyer and John Paul Stevens. "The court’s order and opinion, I anticipate, will not have staying power," Ginsburg wrote in dissent.

Ginsburg questioned the majority’s “enigmatic standard” requiring “a strong basis in evidence” for a disparate impact claim before cities may take race-based action. “One is left to wonder what cases would meet the standard and why the court is so sure this case does not,” she wrote.

"The court stacks the deck further by denying respondents any chance to satisfy the newly announced strong-basis-in-evidence standard. When this court formulates a new legal rule, the ordinary course is to remand and allow the lower courts to apply the rule in the first instance. I see no good reason why the court fails to follow that course in this case."

The case is Ricci v. DeStefano.

Barbara Arnwine, executive director of the Lawyers’ Committee for Civil Rights Under Law, criticized the decision in a press release. “We are shocked by the decision and we will continue our work to preserve the vital protections of Title VII of the Civil Rights Act of 1964,” she said. “Like Justice Ginsburg, we anticipate that the decision ‘will not have staying power.’”

Additional coverage:

Reuters: "US top court rules against city on race promotion"

CBS News: "Court Rules For Firefighters In Ricci Case"'

New Haven Independent: "Supreme Court Overturns City On Ricci"

The BLT: The Blog of Legal Times: "Early Reactions to the Ruling in Ricci"

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