Stuart Taylor, National Journal Magazine, December 13, 2008
Frank Ricci, a firefighter in New Haven, Conn., worked hard, played by the rules, and earned a promotion to fire lieutenant. But the city denied him the promotion because he is not black. Ricci sued, along with 16 other whites and one Hispanic firefighter. After a 7-6, near-party-line vote by a federal Appeals Court to dismiss the lawsuit, the plaintiffs petitioned for Supreme Court review.
If the Court grants the petition, the now-obscure case will vault to the top of the nation’s racial policy agenda, presenting a tough issue not only for the justices but also for President-elect Obama. He could come under great pressure to take a position for or against the blessing conferred by eight liberal lower-court judges on what many voters—and, I would guess, five justices—would see as a raw racial quota.
To be sure, it is far from clear that the Court will take the case, one of dozens scheduled to come before its confidential conference on December 12. Although a dissent by six conservative and moderate Appeals Court judges urged Supreme Court review, the case does not involve the kind of clear split among lower courts that only the high court can resolve. So it may disappear without a trace, with no occasion for Obama or his Justice Department to take a position.
A denial of review would also leave the racial-preference machinery around the country grinding steadily on without interruption. And that would be a shame, in my view, because the stark facts of this case illustrate how racial politics sometimes combine with little-known judicial precedents and “civil-rights” laws to violate the civil rights of working-class and middle-class white, Asian, and (at least in this case) Hispanic Americans.
Ricci studied for eight to 13 hours a day to prepare for the combined written and oral exam in 2003 that he hoped would win him a promotion. He spent more than $1,000 buying the books that the city had suggested as homework and paying an acquaintance to read them onto audiotapes. (Ricci is dyslexic and learns better by listening.) And he got one of the highest scores.
But Ricci and other would-be lieutenants and captains with high scores did not get the promotions they expected. The reason was that—because not enough black firefighters had done well enough to be eligible—New Haven decided to discard the test results and make no promotions at all.
In their lawsuit, Ricci and his fellow plaintiffs claimed that the city, Mayor John DeStefano, and other defendants had violated their rights under the Constitution’s equal protection clause and under federal civil-rights laws.
U.S. District Judge Janet Arterton of New Haven dismissed the case. A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit affirmed the dismissal, in a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep the case quietly under the rug, perhaps to avoid Supreme Court review or public criticism, or both.
Arterton was appointed by President Clinton. So were the three 2nd Circuit judges who heard the initial appeal, including Sonia Sotomayor, who is touted by liberal and Hispanic groups as a leading candidate for an Obama appointment to the Supreme Court. The three-judge panel initially deep-sixed the firefighters’ appeal in a cursory, unpublished order that disclosed virtually nothing about the nature of the ideologically explosive case.
Then the Circuit’s more conservative judges got wind of the case. They sought to have it reheard by the full Appeals Court but lost in a 7-6 vote. All but one of the seven is a Clinton appointee. And all six of the dissenters were named by President George W. Bush or his father, with the exception of Jose Cabranes, a moderate Clinton appointee.
Writing for the six dissenters, Cabranes said that the majority “failed to grapple with the questions of exceptional importance raised in this appeal,” and he urged the Supreme Court to do so. He also raised the question of whether the case involved “an unconstitutional racial quota or set-aside.”
“At its core,” Cabranes wrote, “this case presents a straightforward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?”
Cabranes stressed that despite the importance of the issues and the unusually long and detailed briefs, arguments, and factual record, the three-judge panel’s “perfunctory disposition” oddly contained “no reference whatsoever to the constitutional claims at the core of this case.”
Five of the majority judges, including Sotomayor, retorted that New Haven’s decision to discard the test results and deny what would otherwise have been virtually automatic promotions to the highest-scoring white and Hispanic firefighters was “facially race-neutral.” The reason? Because none of the low-scoring, ineligible African-American firefighters was promoted either. These five judges also endorsed Judge Arterton’s conclusion that the city’s decision was justified by fears that promoting the high-scoring whites might violate Title VII of the 1964 Civil Rights Act and bring a discrimination suit by the low-scoring blacks.
Simply because a much higher percentage of the whites than of the blacks who took the exams had passed, the majority said (adopting Judge Arterton’s opinion), the city could be “faced with a prima facie case of disparate impact liability under Title VII.”
In seeking Supreme Court review, Karen Lee Torre, the plaintiffs’ lawyer, dismissed these supposed fears as a pretext for racial politics and patronage. She stressed that there was no serious evidence that the professionally developed exams were in any way unfair, infected with bias, or unrelated to ability to perform the job.
But even so, failing to award a roughly proportionate percentage of promotions to African-Americans could subject New Haven, or any other employer, to Title VII liability—depending on the identity of the judge—unless it could prove that it could not possibly have found another exam on which blacks might have done better.
Indeed, large racial disparities in performance on written tests used by employers and others have long existed throughout the country. That’s what one might expect, given data showing that the average black high school graduate has learned no more than the average white or Asian eighth-grader. But the law treats these disparities as evidence of racial discrimination. Many employers, therefore, seek to avoid liability by giving racial preferences to minorities, and they will continue to do so unless and until the Supreme Court modifies, or clarifies, the law.
Racial politics clearly did figure in the city’s denial of promotions to the white and Hispanic firefighters. Politically powerful African-American leaders made it clear that if not enough blacks were eligible for promotion, then no whites should be promoted either. One was the Rev. Boise Kimber, who disrupted meetings of the city’s civil service board and warned its members of a “political ramification” if they certified the exam results. Kimber was a key vote-getter for Mayor DeStefano, who had made the minister chairman of New Haven’s Board of Fire Commissioners despite his 1996 felony convictions (reported by the New Haven Register) for perjury and stealing money from an elderly woman’s burial fund.
The city’s other reasons for wanting to give more promotions to minority firefighters—diversifying the upper ranks, and providing role models for younger black and Hispanic firefighters—are entirely laudable. But at what cost to those who work hard and play by the rules only to be turned aside for being the wrong color?
“Most working- and middle-class white Americans don’t feel that they have been particularly privileged by their race,” Obama said in his much-acclaimed March 18 speech about race. “So when they . . . hear that an African-American is getting an advantage in landing a good job or a spot in a good college because of an injustice that they themselves never committed . . . resentment builds over time.”
So it does. But based on Obama’s record and the views of the civil-rights specialists on his transition team, there is every reason to worry that he will appoint civil-rights enforcers, judges, and justices bent on perpetuating the race-based discrimination against whites (and Asians) in many walks of life that is exemplified by the New Haven firefighter case.
I suspect that deep down, Obama would appreciate the simple injustice of the New Haven firefighter case. It would be most interesting to find out.