By Marc Seltzer; originally published on July 8, 2009 at politicsunlocked.com
The Supreme Court recently overturned an opinion issued from a three-judge appellate panel including Supreme Court nominee Judge Sonia Sotomayor. The core of the case turned on how a government agency, in this case the city of New Haven, Connecticut, should deal with potential discrimination against minority employees.
The city took a number of steps to address concerns about discrimination in promotions for fire department officer positions, such as making great efforts to create a race-neutral test and ensuring that minority officers from other departments participated in the candidate evaluation process. The lawsuit arose when the city decided to throw out the results of the firefighter promotion exams because no African-American applicants achieved top scores, meriting promotion.
The Supreme Court decision sheds some light on how government entities are expected to handle discrimination concerns. However, it does not fit as nicely into the affirmative action debate as commentators claim. It also fails to provide any significant evidence against Judge Sotomayor’s promotion to the U.S. Supreme Court.
It was white and Hispanic firefighters who sued the government in Ricci v. DeStefano when their success on the exams was disregarded. They lost their case in the lower courts and petitioned the Supreme Court for a final review. The Supreme Court found that once the promotion exams were completed, the city needed evidence that the exam was discriminatory, beyond just the results themselves, to justify disregarding those results. This, the city did not have. It had a history of discrimination, where only one of 21 fire captains was African-American, and it had a fear of lawsuits from unsuccessful black candidates, a legitimate concern recognized in the law guiding cities’ decision making on employment matters, but it did not have evidence that this test was unfairly discriminatory.
The Supreme Court decision was 5-4, with Justice Anthony Kennedy writing an opinion joined by Justices Scalia, Thomas, Alito and Chief Justice Roberts. The decision does not seem to overturn much law on affirmative action or to allow discrimination against minorities to go unchecked. It does say that once a hiring process is completed and candidates are ranked for promotion, it should not be upended without evidence that it was faulty.
The dissent would have allowed the city to disregard the test results in light of past discrimination and suspicion and potential legal challenges over the results themselves. There was evidence that another type of exam process might have yielded different results and the dissenting opinion considered that sufficient to put the test results into question and justify the city’s action.
Judge Sotomayor, along with two other appellate judges, had agreed with the trial judge that the city was within its rights to redress what it perceived was a problem in the test results. Justice Sotomayor will be asked about the decision in the nomination hearings next week. However, her position was hardly the type that should concern the judiciary committee reviewing her nomination. Sotomayor followed existing law on an issue where there is obviously substantial disagreement.