Sotomayor’s decision on firefighters may be overruled by Supreme Court

In a decision that could fuel controversy over Supreme Court nominee Sonia Sotomayor, the high court this month is expected to overrule one of her key appellate court rulings.

Sotomayor was part of a three-judge panel that, in a two-paragraph opinion, rejected an appeal by white firefighters from New Haven., Conn., who contended that they were victims of racial discrimination when they were denied promotions. They had scored well on a test, but the city decided against using the scores because it feared it might be sued since the results meant no blacks would be promoted.

The ruling in the firefighters’ case promises to be one of the most important of the Supreme Court term because it could affect public agencies across the nation. It is sure to gain even greater notice now that President Obama has nominated Sotomayor for the Supreme Court. Critics contend that Sotomayor’s opinion shows that she would tilt in favor of racial minorities.

The high court is thought to be divided on the case, which pits two provisions of the Civil Rights Act against each other.

On the one hand, the act says no employee may be discriminated against because of his or her race, sex, religion or national origin. On the other hand, the law also says an employer can be sued for using a hiring or promotional standard that has a “disparate impact on the basis of race,” unless it can be defended as a “business necessity.”


The white firefighters pointed to the first provision and said they were discriminated against when the city decided not to use the test scores for awarding promotions.

The city’s lawyer pointed to the second provision and said New Haven could be sued by black firefighters who said the test had a “disparate impact” on them and their chances for promotion. Could the city defend itself, he asked, by proving that a paper-and-pencil test was the best and only reasonable way to decide who gets promoted to lieutenant or captain?

He doubted this defense would succeed, and he recommended dropping the test and starting over. The New Haven Civil Service Board split 2 to 2 on the issue, which meant the test results were set aside. Since then, the city has been fighting the discrimination suit from the white firefighters.

This conflict in civil rights law is long-standing. In the 1970s, the Supreme Court suspected some employers of using seemingly fair job standards to screen out blacks or women from certain jobs. In one famous example, after racial discrimination was outlawed by the Civil Rights Act, the Duke Power Co. in North Carolina began requiring janitors to have a high school diploma, which excluded many blacks from those jobs.

In response, the court put employers on notice that job standards that had a discriminatory effect on minorities were illegal, unless they were essential to the business. In 1991, Congress added this provision to the Civil Rights Act.

More recently, the court has frowned upon any use of race by public officials. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice John G. Roberts said two years ago in a 5-4 decision that halted school integration policies in Seattle and Louisville, Ky.

The firefighters’ case will determine whether this no-use-of-race rule will be applied to public employment.

Until the Supreme Court rules squarely on the issue, city officials and lower-court judges are left to apply the law as set by the 1970s rulings.

During oral arguments in April, several justices, including David H. Souter, whom Sotomayor is nominated to replace, acknowledged that the court had left cities in a bind. “A municipality like New Haven is in a damned-if-you-do, damned-if-you-don’t situation,” Souter said.

The oral arguments led many court observers to conclude that the ruling would be overturned.

Empathy may play a role in the case as well. Frank Ricci, the lead plaintiff, has been profiled repeatedly as an example of an exemplary firefighter who studied hard for the exam and lost out on a promotion. Ricci says he is dyslexic and spent $1,000 and countless hours to prepare for the tests.

A federal judge rejected his discrimination suit, however, in a 48-page opinion, saying that city officials were justified in dropping a test they believed was flawed. “They simply decided to start over,” said U.S. District Judge Janet Arterton.

When the case went before the U.S. 2nd Circuit Court of Appeals in Manhattan, the three-judge panel, including Sotomayor, affirmed Arterton’s ruling in a brief, unsigned opinion.

“We are not unsympathetic” to Ricci and the white firefighters, it said. But it concluded that the city board, “in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII [of the Civil Rights Act] when confronted with test results that had a disproportionate racial impact.”

Several judges on the appeals court called the opinion inadequate. But a move to reconsider it failed on a 7-6 vote.

The Supreme Court then stepped in and will decide the case of Ricci vs. DeStefano by the end of June.