New York Times Editorial: Firefighters and Race

New York Times Editorial: Firefighters and Race
Copyright by New York Times
Published: June 30, 2009
http://www.nytimes.com/2009/07/01/opinion/01wed1.html?th&emc=th


On Monday, the Supreme Court dealt a blow to diversity in the American workplace.

The court ruled, 5-to-4, that New Haven acted illegally when it threw out a promotion test on which minority firefighters had done poorly. In doing so, it put a new, narrower definition on Title VII of the Civil Rights Act of 1964, which is intended to root out discriminatory policies.

The case is already being used as ammunition against Judge Sonia Sotomayor, President Obama’s nominee to the Supreme Court, who sided with New Haven at the appeals court level. If the Monday ruling says anything about Judge Sotomayor, however, it underscores the reasonableness of her views.

Many black and Hispanic firefighters took New Haven’s promotion exam, but few passed. This sort of racial disparity often makes an exam illegal. Concerned that it would be sued by minority firefighters, New Haven threw out the test. A group of white firefighters sued, alleging that their civil rights had been violated.

A three-judge panel of the New York-based Court of Appeals for the Second Circuit, which included Judge Sotomayor, ruled in favor of New Haven. The full Second Circuit declined to reconsider that decision.

The Supreme Court reversed the panel’s ruling. Justice Anthony Kennedy, writing for the majority, said throwing out the promotion exam was a race-based decision that hurt the white firefighters. It was permissible under Title VII, he wrote, only if the city could demonstrate a “strong basis in evidence” that if it had kept the test it would have been liable in a lawsuit by minority firefighters. New Haven failed to show that, he said.

Justice Ruth Bader Ginsburg, writing for the dissenters, provided the larger context. There is a long history of discrimination in the firefighting ranks. Although New Haven is nearly 60 percent black and Hispanic, few minorities are in command positions. She noted that New Haven’s test was flawed, and that other cities used better tests, with less racially skewed results.

Justice Ginsburg argued convincingly that when New Haven threw out the test it did not discriminate. The motivation of the civil service board that made the decision was to avoid discriminating against minority applicants and being sued by them under Title VII.

Cases like this, even the dissenters concede, pose difficult questions of fairness. New Haven’s decision to reject a test on which one group did poorly hurt other firefighters, who studied hard and were not to blame for the test’s flaws. But in the end, as Justice Ginsburg noted, New Haven was within its rights not to use a flawed, possibly illegal, test to make its promotions.

Judge Sotomayor’s critics wasted no time in calling the ruling a rebuke to her and arguing that it provided reason to oppose her confirmation to the Supreme Court. It does nothing of the sort.

Even the majority noted that its opinion “clarifies how Title VII applies” — hardly an indication that the Second Circuit ignored well-established law. Four of the nine justices — including David Souter, whose seat Judge Sotomayor would take — agreed with the result she reached. The ruling suggests that if Judge Sotomayor joined the court, in cases like this she would be likely to vote with the more liberal bloc — no great surprise.

On another point, the ruling underscored the emptiness of the “judicial activist” label that Republicans like to use in debates over nominees to the federal courts, including Judge Sotomayor. In the firefighters’ case, she actually refused to second-guess the city’s decision — an act of judicial restraint. It was the court’s conservatives, including Chief Justice John Roberts, who voted to overturn the decision of an elected government.