Firefighters in the U.S. Supreme Court

Originally published at on July 1, 2009

The U.S. Supreme Court decision regarding Connecticut firefighters is interesting for two principle reasons: it overturns a decision in which current Supreme Court Nominee Judge Sonia Sotomayor participated, and it provides Supreme Court authority in the sensitive and controversial legal area of race-conscious decision-making by government authorities.  The heart of the issue is whether there was sufficient justification for the city of New Haven, in charge of promoting officers in its fire department, to reject results of a test that saw no black candidates reach promotion, despite many applicants.

The High Court was called upon to make a difficult decision, and the 5-4 breakdown of the court shows it was a close call.  The majority opinion and dissent, penned by Justices Anthony Kennedy and Ruth Bader Ginsberg, respectively, provide details of the city government’s and the high court’s analysis of the fairness of treatment of minority firefighters and the legal standards that govern one aspect of how race should be dealt with in the workplace.

Falling into the trap of football politics and simplistic analysis, early reports call the decision “a blow to diversity in the American workplace” and a win for the conservative approach to discrimination law (more responses). However, this case is not Plessy v. Ferguson (perpetuated race-based discriminiation) or Brown v. Board of Education, (rejected “separate but equal” treatment of minorities).  The distinctions in this case, if given honest, unbiased consideration, are so subtle and intertwined with legal policies that they require in-dept analysis and some speculation to figure out what they could mean and achieve in the workplace.

Justice Anthony Kennedy’s opinion rejected arguments that past discrimination at the fire department (where there has been only one African American of 21 fire captains), perceived unfairness in the exam (some concerns were voiced at a public forum when the results were announced while experts interviewed had mixed responses), and state agency concern over being sued for discrimination would justify the city’s throwing out the results — which promoted only white and Hispanic firefighters.

The facts before the Court showed that the city authorities made significant and costly efforts to create a fair, consciously race-neutral test.  Evidence from scholars and testing experts showed that the tests and results were in line with those for good tests given elsewhere and did not make a clear case of evidence of a bad test.

The city rejected the test results out of concern that they turned out to discriminate against African Americans and that they would result in lawsuits from African American firefighters.  It is possible, but not certain, that other tests would achieve more race-neutral results.

Crucially, the majority decision found that there was not enough evidence under the legal standard, which the city was expected to use, to throw out the test results and deny promotion to white and Hispanic firefighters with higher scores.

Local government officials in Connecticut worked hard to try not to descriminate unfairly.  This is commendable.  The Court said that they erred when they took the further step in throwing out the results of a test designed carefully to be fair, without more evidence that it was, in fact, unfair.

The dissent disagreed.  Four members of the Court felt that past discrimination, test results (black candates passed, but didn’t score high enough for promotion), and local government concern over being sued by black candidates was enough to throw out the test and start again with a new process in hopes of better eliminating unfair descrimination.

This situation may still indicate that unfair racial descrimination exists in testing procedures used by government agencies.  However, it also shows that significant efforts were made by officials acting in good faith to avoid prejudice and unfair assessment.  The majority’s decision says that under these circumstances, it is not fair to winning candidates to throw out the results of their exams.

The city government and both sides in this Supreme Court decision tried to remove unfairness from the process of promotion of fire officials.  That is what we pay them for.  If respect were accorded to effort and not results, we would recognize in the workings of our government and the behavior of its leadership nobility of purpose and integrity of character.  Next time, the results may be different, but let us hope that the effort by public authorities can rise to the level of that evidenced here.

Governmental authorities may also consider the New Haven testing program a failure and may go on to make even greater efforts to root out testing problems if and where they exist.  The Court makes no determination of what other efforts governmental agencies should make in order to achieve fairness for its citizens.

Nor does it stop African-Americans from filing suit where they believe that they were discriminated against by tests and processes.  They may have a case where outcomes differ by racial groupings.  The issue would be different than in the current case (Constitutional or Civil Rights Act claims of unfair or unequal treatment) and the outcome could be different.

I think I can say all this and still have deep compassion and concern for African-Americans that have not yet found a level playing field for competition in the American workplace.  The discussion and investigation of problems must continue aggressively.

We need to do the best we can because our nation has embraced merit and rejected prejudice as a defining principle.  Let’s continue on that path.  But anyone that labels the various decision-makers he

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