by David G. Savage
With Chief Justice John G. Roberts Jr. leading the way, the Supreme Court debated today whether to put stricter limits on the use of race as a factor in deciding who gets hired or promoted.
The justices heard an appeal brought by white firefighters from New Haven, Conn., who said they were denied promotions because of "racial politics" in the city government. They had scored well on a promotional exam, but the test results were thrown out when officials realized it would mean no black firefighters would be promoted.
The case raises a difficult question: Can an employer drop a test that may stand in the way of blacks, or does doing so violate the rights of the whites who scored well?
Roberts objected to the city's claim that it had to give greater weight to the test's impact on blacks.
"Isn't that kind of a blank check to discriminate" against the white firefighters, he asked. "You don't care about whether Jones or Smith gets a promotion. All you care about is race."
A lawyer representing New Haven insisted the city scrapped the test because officials doubted it was fair. "There is no entitlement to be promoted based on a flawed test," Christopher Meade, the city's lawyer, told the justices. He said that when a promotional standard has an "adverse impact" on minorities, an employer should try again to come up with a better and fairer test.
But Justice Anthony M. Kennedy joined Roberts in voicing skepticism about the city's action. Officials "looked at the results and classified the successful and unsuccessful applicants by race. I have trouble with that," he said.
A former law school professor, Kennedy recalled that after giving a test, he would realize sometimes that he could have done something to make the test better or fairer. He added, however, that was not a good reason for canceling the results.
Since becoming chief justice in 2005, Roberts has pressed for ending the use of race as a decision-making factor. He led a 5-4 majority that held school districts may not use voluntary integration plans that assign some students based on their race. And he criticized as a "sordid business" the part of the Voting Rights Act that requires some electoral districts to be reconfigured based on the race of the voters.
Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. have agreed with him. If Kennedy joins with them in the case heard today, they could vote to prohibit discrimination against white employees such as the firefighters from New Haven.
Gregory Coleman, a lawyer for the white firefighters, urged the court to say that the racial impact of the test results can be ignored. Otherwise, "it results in racial balancing and soft quotas," he said.
Several of the liberal justices came to the city's defense, however.
Justice David H. Souter said the city found itself in a "damned-if-you-do, damned-if-you-don't situation." If the city had used the test results, black fighters could sue and say they were excluded because of a discriminatory test. When the city scrapped the results, they were sued by the white firefighters. "Why not give the city an opportunity, in a good faith, to start again?" he said.
Justice Ruth Bader Ginsburg appeared to agree. The white firefighters did not have "any vested right" to a promotion, she said, and the city should be given time to construct a fairer test.
The New Haven case, Ricci vs. DeStefano, will be decided by late June.
Comments
Forced racial integration needs to end at the end of the educational system (i.e.College) and let the best qualified person win in the job market. The job market includes government positions (except for the possible exception of College Professors). Again, I don't see what is so hard about this scenario. Racial (and sex, etc.) equality is about equal oportunity, not a free pass. Education should get you the oportunity, and what you do after that is your own doing.
Posted by: Xcellentform | April 22, 2009 4:47 PM
. . . and, in other good news:
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Yesterday, Justice Kennedy announced from the bench that people used to put stuff in his underwear when he was in school. This candid admission occurred during oral argument in the case involving the strip search of a 13 year old girl (Safford United School District v. Redding). The search had been ordered by a vice principal, after another student accused the girl of possessing or providing prescription strength ibuprofen. Kennedy said, "In my experience, too, people did sometimes stick things in my underwear . . .” Upon hearing this, Justice Clarence Thomas burst out in un-delicate laughter (a full guffaw by one report) and the rest of the court joined in. Justice Breyer quipped, “not my underwear.” (See http://www.washingtonpost.com/wp-dyn/content/article/2009/04/21/AR2009042103695.html?hpid=topnews )
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In even better news, the liberal wing of the U.S. Supreme Court (Stevens, Ginsburg and Souter) teamed up with the conservative wing (Scalia and Thomas) to overrule it former decisions in New York v. Belton and Thornton v. United States, with regard to the proper scope of a search “incident-to-arrest.” Belton and Thornton had been previously understood as having established a “bright line” rule allowing a warrantless search of the passenger compartment of an automobile incident to the lawful arrest of an occupant. In the newest case, Arizona v. Gant, the Court applied the rule of an earlier cases (e.g. Chimel v. California) in holding that a search of a vehicle incident to arrest is permissible only if it is reasonable to believe the arrestee might access the vehicle at the time of the search for a weapon, or that the vehicle contains evidence of the offense of arrest. In other words, handcuffing a suspect and seating him in a patrol car will normally make illegal a car search that was permissible under the Belton and Thornton decisions. (See Arizona v. Gant at http://www.supremecourtus.gov/opinions/08pdf/07-542.pdf )
Posted by: John W. | April 22, 2009 6:18 PM
Please tell me a black person can't score in the top echelon of the test.
Of course there are smart black people. Apparently, they did not take the test.
ONLY WANT THOSE QUALIFIED TO ADMINISTER TO THE PUBLIC.
JUST THINK IF THIS APPLIED TO DOCTORS.
Only qualified people, please! This shouldn't be based on race, gender, ethnicity.
Posted by: too much | April 22, 2009 6:43 PM
Thanks, John W. So my drugs will be safer.
Posted by: mort | April 22, 2009 8:15 PM
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Posted by: mort | April 22, 2009 8:15 PM
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They will only be a little safer, mort. You see, police can also search a car if: (1) they have probable cause to believe it contains contraband or evidence of a crime; (2) someone consents to a search; (3) a search is needed to alleviate some emergency; or (4) to conduct an inventory of the vehicle’s contents before it is impounded (if that becomes necessary). All these other circumstances provide justification for warrantless car searches entirely apart from the “search-incident-to-arrest justification” that the Court narrowed yesterday. So, on the whole, it would be safer for you to keep your drugs at home. Better still, don’t use drugs.
Posted by: John W. | April 22, 2009 9:30 PM
Three Italians and Uncle Clarence is a good start for a 5/4 win for the whites and against the blacks in this case.
Posted by: Milton Friedman | April 22, 2009 11:23 PM
Better still, don’t use drugs. John W:
You're no fun!
Posted by: lochnessmonster | April 23, 2009 7:04 AM
If the Supreme Court finds for the whites will this cause a call for new Congressional truth hearings about the actions of previous DOJ decisions and possible indictments against those who gave legal opinions upholding racial induced promotions, John?
Posted by: bubba Porter | April 23, 2009 7:30 AM
Right, bp.
Having to share a workplace with someone of a different race is torture, right?
That's why y'all lost the election.
In case you didn't notice, America elected its first black POTUS.
Posted by: ornery | April 23, 2009 12:18 PM
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Posted by: bubba Porter | April 23, 2009 7:30 AM
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No. Indictments require some proof of criminal acts performed with the requisite criminal intent. I think most people involved in the case believe the New Haven officials, at the very worst, made a good faith mistake regarding the validity of a test. We have to remember that a lot of city governments were herded into adopting various race-based remedial actions in the belief they were necessary to compensate for past histories of discrimination and to satisfy the demands of equal protection. It wasn’t until 1995 that the U.S. Supreme Court definitively held that racially based classifications, even if made for remedial purposes, are subject to strict scrutiny. (See Adarand Construction v. Pena, 515 U.S. 200, 227 (1995).) Even then, the Court stated that a narrowly tailored race-based remedial program would be constitutional if necessary to further a compelling state interest. (Id. at 237.) Thus, it is far from clear that the New Haven officials did anything remotely criminal.
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In addition, I don’t think New Haven, Connecticut took any of its cues from the DOJ. Hence, there would be no reason for Congress to stick its nose into this either.
Posted by: John W. | April 23, 2009 1:50 PM
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Posted by: lochnessmonster | April 23, 2009 7:04 AM
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Maybe I am no fun. I dunno. Having defended drug cases since 1984, I can tell you that a lot of people I know who used drugs regret ever having started. They are fun for young people, but they take a toll on the mind and body as one gets older. They are too darn expensive too. Some drugs can even kill the first time they are used. Besides, getting arrested and jailed or imprisoned for extended periods of time is no fun either. I don’t think it’s a lot of fun to live with all of these risks. I think sobriety and reality can be fun too.
Posted by: John W. | April 23, 2009 2:09 PM
Why even comment.
Posted by: Harold Reimann | April 23, 2009 7:12 PM
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Posted by: Harold Reimann | April 23, 2009 7:12 PM
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Considering the page to which you have linked your name, I am very, very glad that you have refrained from commenting. Anyone who believes even a small fraction of what is represented on that page should be ashamed of call himself a human being. So should anyone capable of spewing that much hatred in the name of God, and then wrapping it in holy writ. I could make further comparisons between the vile author of that trash and monsters and demons, but doing so would merely defame the monsters and demons.
Posted by: John W. | April 23, 2009 10:29 PM