White Firefighters Win Top Court Appeal

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such "disparate impacts" on test results could be used to show discrimination.

Atlantic City fire Chief Dennis Brooks said he would not know how the decision may affect his department's labor practices until he reads it in detail. The city is one of 12 in the state to adhere to a consent decree that aims to hire minorities on an equal basis with white job applicants.

"Regardless of how the decision affects us, we'll always have a recruitment program," Brooks said.

The case resembled two lawsuits from white Atlantic City firefighters in 2005 and 2006. Christopher Heald and Samuel Flamma Sr. both claimed they were denied advancement when too few minority colleagues qualified in testing for promotion.

"I think (the Supreme Court) made the right decision," Heald said Monday. "You can't use discrimination, no matter what way you're doing it."

Mayor Lorenzo Langford testified in Flamma's case that the Vulcans, Atlantic City's chapter of the International Association of Black Professional Firefighters, told him he had the authority to promote a minority for each non-minority promotion. The Vulcans said they objected to promoting Heald after the state had postponed the expiration of his civil-service test results - and thus his promotion eligibility, something they said had never happened for a minority.

Langford declined to comment on the ruling. IABPFF President Joseph B. Muhammad, an Atlantic City native, commented in a written statement.

"We are surprised and very disappointed with this decision," Muhammad wrote. "We believe that it opens the door wide open for cheap and substandard testing and virtually guarantees that persons discriminated against - whether White, Black, or Hispanic - will have to resort to courts to have their issues redressed. This will sadly make any resolution of discrimination and testing far more adversarial, combative, and expensive than it needs to be."

In effect, the court was deciding when avoiding potential discrimination against one group amounted to actual discrimination against another.

The Supreme Court's conservative majority said in a 5 to 4 vote that is what happened in New Haven.

"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," wrote Justice Anthony Kennedy.

Justice Ruth Bader Ginsburg wrote for the liberals on the court and said the decision knocks the pegs from Title VII of the Civil Rights Act.

She read her dissent from the bench for emphasis. "Congress endeavored to promote equal opportunity in fact, and not simply in form," she said. "The damage today's decision does to that objective is untold."

Heald said he still sees inequality in the city's and department's labor practices, suggesting a few of his white colleagues are overdue for promotions they had have gotten "if things were done right."

"I think the city's been very fair with our promotions," Brooks said. Of the top 10 firefighters on the list of prospective promotions, seven are white, two are black and one is Hispanic, Deputy fire Chief Victor Francesco said.

Brooks added that with the city's hiring freeze, "I don't know how that will affect things."

Heald and Flamma settled their cases for payments of more than $100,000, and both have since been promoted to captain. Heald said he left the job May 1 to use a year's worth of sick leave before retiring; Flamma could not be reached for comment.

On the last day on the bench for retiring Justice David Souter, the Supreme Court failed to reach a decision on one of its most important cases of the term: whether a conservative group's production of a 90-minute film on Hillary Rodham Clinton amounted to a documentary, or merely a long commercial of the type restricted by the McCain-Feingold campaign finance reform act.

Instead, the court took the unusual action of scheduling new arguments on the case for Sept. 9, before the court's new term begins in October. The court wants new briefings on issues that could lead to the justices declaring unconstitutional that part of the act, formally called the Bipartisan Campaign Finance Reform Act of 2002.

The court's decision probably will lead Democrats to push efforts to have a vote on Sotomayor's confirmation so she can be in place before the September hearing, although it is unclear whether her replacement of Souter would affect the outcome of the case.

Senate hearings on her nomination are set to begin in two weeks.

The New Haven case, Ricci v. DeStefano, has become the ruling that Sotomayor's critics most point to for evidence that she lets her background influence her decisions, even though her role has been somewhat inflated.

The promotion test results produced a heated debate in New Haven, and government lawyers warned the city's civil service board that if it certified the test results, minority firefighters may have a good case for claiming discrimination under Title VII. Federal guidelines presume discrimination when a test has such a disparate impact on minorities.

The board split 2 to 2, which meant the exam was not certified. Those who opposed using the results said they worried the test must be flawed in some way that disadvantaged minorities. (The test questions have not been made public.)

The white firefighters filed suit, saying their rights had been violated under both the law and the Constitution's protections of due process.

District Judge Janet Bond Arterton dismissed their suit before it went to trial. She said in her 47-page decision that the city was justified under the law in junking the test, even if it could not explain its flaws.

The case then went to the U.S. Court of Appeals for the 2nd Circuit, where Sotomayor and judges Robert Sack and Rosemary Pooler heard the appeal. Oral arguments lasted an hour, with Sotomayor leading the questioning, as is her reputation. But instead of issuing a detailed and signed opinion, the panel said in a brief summary that, although it was "not unsympathetic" to the plight of the white firefighters, it unanimously affirmed the lower court's decision for "reasons stated in the thorough, thoughtful, and well-reasoned opinion."

Kennedy's opinion referred to the judgment of Sotomayor and the other judges only by noting the short opinion.

Kennedy said the standard for whether an employer may discard a test is whether there is a strong reason for the employer to believe the test is flawed in a way that discriminates against minorities, not just by looking at the results.

In New Haven's case, "there is no evidence - let alone the required strong basis in evidence - that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the city," Kennedy wrote.

The case has drawn considerable attention not just because of Sotomayor's role but because of the sympathetic nature of the claim brought by the firefighters, who said they were discriminated against simply because of the color of their skin.

The lead plaintiff, Frank Ricci, is a veteran firefighter who said in sworn statements that he spent thousands of dollars in preparation and studied for months for the exam. Ricci said he is dyslexic, so he had tapes made of the test materials and listened to them on his commute to work.

 

Staff writer Eric Scott Campbell contributed to this report.