High court may change civil rights law


The Supreme Court served notice Friday it may make a far-reaching change in civil rights law this year and knock down a pair of long-standing rules that give special protections to minorities in the workplace and in the voting booth.

The justices, after meeting privately, announced they had voted to hear two cases that concern the lingering role of race in American life. The cases could put the court on a collision course with the incoming Obama administration.

One of them arose when a Connecticut city, seeking to maintain diversity in its fire department, scrapped a civil-service test after it became clear the white firefighters had the best scores. This would have meant nearly all the promotions would have gone to whites, not blacks.


The white firefighters sued and said they had been victims of “race politics” in the New Haven city government. They urged the justices to rule that the Constitution and federal civil rights law require employers to use a “race neutral selection process.”

In ruling against the white applicants, lower-court judges said employers had a duty to avoid tests or standards that would leave minorities at a disadvantage.

“We are not unsympathetic to the plaintiffs’ expression of frustration,” the U.S. appeals court said last year when it ruled against the white firefighters. The judges noted that Frank Ricci, the lead plaintiff, is dyslexic and worked long hours to score well on the civil-service exam that was later discarded. But the appeals court ruled that the city was “simply trying to fulfill its obligations under [the Civil Rights Act] when confronted with test results that had a disproportionate racial impact.”

At the Supreme Court, Chief Justice John G. Roberts Jr. has spoken out against “racial balancing” as a legal policy and said civil rights laws call for a strict equal-treatment rule without regard to race.

Two years ago, Roberts spoke for a 5-4 majority that struck down voluntary integration policies in public schools because they relied on racial balancing.

The court said it would hear the case of the New Haven firefighters in April. It could give the Roberts court a chance to rule that civil rights laws require employers to follow an equal-treatment rule in hiring and promotions. Such a ruling could affect private employers and public agencies nationwide, and it could make it harder for minorities to obtain jobs or promotions.


The case, Ricci vs. DeStefano, poses a sensitive issue of race and fairness for the Obama administration. The Justice Department need not intervene in the case, but the U.S. solicitor general usually takes a position when an important federal law is at issue.

This week, President-elect Barack Obama chose Harvard Law Dean Elena Kagan as solicitor general. Her office could defend the traditional, broad view of federal law that permits employers to consider race in seeking diversity in the workplace, or it could adopt a strict equal-treatment rule when civil-service tests are used.

The second case the high court agreed to hear is a major constitutional challenge to one part of the historic Voting Rights Act of 1965. That measure is credited with giving blacks in the South the right to vote and a right to their fair share of political power.

One provision in the law, known as the “pre-clearance authority,” requires most states, cities and other districts in much of the South to obtain advance approval from the Justice Department or a federal judge in Washington before they make changes in their election rules.

The rules subject to approval from Washington range widely.

They include the locations of polling places or the places where voters can register and the boundaries of election districts for city councils, county boards or state legislatures.

This provision, Section 5 of the law, was reauthorized by Congress just three years ago, and it was given a 25-year extension. But many Southern officials say the “pre-clearance” provision is outdated and unfair.

“This is not 1965,” said Texas attorney Gregory S. Coleman, who challenged the Section 5 provision as unconstitutional.

“We support the voting rights provisions 100%. Section 5 is different,” he said. “It says that in a wide swath of America, state and local officials can’t be trusted to abide by the law. And that the federal government must look over their shoulder. If you want to move a polling place across the street, it says you have to get permission from Washington.”

Coleman, a former Texas solicitor general, represents a municipal water district in Austin that has not run afoul of the law, but is covered nonetheless.

His appeal called Section 5 the “most federally invasive law in existence.”

Civil rights lawyers, however, fear that local officials could make sudden shifts in election rules that would deprive minorities of a fair voice.

Minorities “remain politically vulnerable, warranting the continued protection the Voting Rights Act provides,” said Laughlin McDonald, director of the ACLU’s Voting Rights Project.

In 1975, Congress extended the law to cover counties that had a high percentage of residents who do not speak English. In California, four counties -- Kings, Merced, Monterey and Yuba -- were covered, as were Bronx and Kings counties in New York.

Eight states are covered in their entirety: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina and Texas.

Lawyers for the Bush administration had urged the high court to reject the challenge to the Voting Rights Act. Now, its defense will be left to the Obama administration.

Both cases will be heard in April and probably decided by the summer.