Peter Hvizdak/Image Works
Joseph B. Muhammad, president of a black firefighters’ group, spoke in New Haven last month against the white firefighters’ suit
April 10, 2009
Justices to Hear White Firefighters’ Bias Claims
By ADAM LIPTAK
NEW HAVEN — Frank Ricci has been a firefighter here for 11 years, and he would do just about anything to advance to lieutenant.
The last time the city offered a promotional exam, he said in a sworn statement, he gave up a second job and studied up to 13 hours a day. Mr. Ricci, who is dyslexic, paid an acquaintance more than $1,000 to read textbooks onto audiotapes. He made flashcards, took practice tests, worked with a study group and participated in mock interviews.
Mr. Ricci did well, he said, coming in sixth among the 77 candidates who took the exam. But the city threw out the test, because none of the 19 African-American firefighters who took it qualified for promotion. That decision prompted Mr. Ricci and 17 other white firefighters, including one Hispanic, to sue the city, alleging racial discrimination.
Their case, which will be argued before the Supreme Court on April 22, is the Roberts court’s first major confrontation with claims of racial discrimination in employment and will require the justices to choose between conflicting conceptions of the government’s role in ensuring fair treatment regardless of race.
Chief Justice John G. Roberts Jr. has repeatedly noted his hostility to what he has called the “sordid business” of “divvying us up by race.” In 2007, diverging from an important Rehnquist court decision that allowed public universities to consider race in admissions decisions, the Roberts court forbade public school systems to take race explicitly into account to achieve or maintain integration.
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice Roberts wrote.
But those cases involved education, and it has been decades since the court last took an intensive look at the use of race in public hiring or promotion. Among the questions swirling around Mr. Ricci’s case are whether the law should treat diversity in the work force differently from diversity in the classroom and how it should handle hiring and promotion tests that have a severely disparate impact on candidates of one race.
The city says it was merely trying to comply with a federal law that views job requirements like promotional tests with great suspicion when they disproportionately disfavor minority applicants.
“The fact of the matter is it’s a flawed test,” said Victor A. Bolden, the city’s acting corporation counsel.
Mr. Bolden added that he had sympathy for Mr. Ricci. “There’s no question that there are people who are disappointed,” he said. “But disappointment doesn’t lead to a discrimination claim.”
The promotion exam was offered in the fall of 2003, and no one has been promoted since, Mr. Bolden said.
The suit brought by Mr. Ricci and his colleagues says that the city’s rationale for throwing out the test is illegitimate and that they were denied a chance for promotion on account of the color of their skin. Karen Lee Torre, a lawyer for the firefighters, declined to be interviewed and said she had instructed her clients not to speak to reporters.
John Payton, president of the NAACP Legal Defense and Educational Fund Inc., which filed a brief supporting the city, said the case, Ricci v. DeStefano, No. 07-1428, must be understood against the backdrop of what he described as pervasive racial discrimination in firefighting and the pitfalls of thinking that a test can capture the qualities needed for leadership in life-or-death situations.
“Firefighting is a skilled job where all of the skills are learned on the job,” Mr. Payton said. “It’s a really good job, and it’s been racially exclusive in most of our major cities.”
In a brief supporting the white firefighters, the National Association of Police Organizations saw the injection of racial politics into public safety. Promotion decisions should be based on merit, the group said. Race-neutral decisions foster camaraderie and a sense of fairness, it added, saying that people who work in public safety “are, in the main, effectively colorblind.”
But Donald Day, a representative of the International Association of Black Professional Fire Fighters, questioned the value of the New Haven test, which included written and oral components. “An individual’s ability to answer a multiple-choice exam,” Mr. Day told the city’s Civil Service Board, “does nothing but measure their ability to read and retain.”
There are more important values, he added. “Young black and Latino kids have every right,” he said, “to see black and Latino officers on those fire trucks that are riding through their community. They have every right to look for a role model.”
According to the 2000 census, New Haven is 43 percent white and 37 percent black. African-Americans held 32 percent of the entry-level positions in the Fire Department in 2007, according to data compiled by the city, but only 15 percent of the supervisory positions.
In 2006, Judge Janet Bond Arterton of the Federal District Court here ruled that the city had not discriminated against the white firefighters. Since no one was promoted, Judge Arterton said, no one was harmed.
True, she wrote, “a jury could infer that the defendants were motivated by a concern that too many whites and not enough minorities would be promoted.”
But the city’s motives were lawful, Judge Arterton said. They included fear of public criticism, the possibility of “lawsuits from minority applicants that, for political reasons, the city did not want to defend” and a desire to promote “diversity in the Fire Department” and “managerial role models for aspiring firefighters.”
Judge Arterton ruled that city officials were not required to abide by the test results even though “they cannot pinpoint its deficiency explaining its disparate impact.” It is enough, she said, that the test results ran afoul of federal guidelines that presume discrimination where the lowest-scoring group is promoted at a rate of less than 80 percent of the highest-scoring group.
A three-judge panel of the federal appeals court in New York affirmed Judge Arterton’s ruling in an unusually terse decision. By a vote of 7 to 6, the full appeals court declined to rehear the case and issued a set of heated opinions in the process. The six dissenting judges urged the Supreme Court to step in.
The test itself is not publicly available, but the court record offers glimpses of it. One question, for instance, referred to “uptown” and “downtown,” terms that do not make sense in New Haven.
But it is not clear what would have generated racial disparities in the results, and the six dissenting appeals court judges said the test had been “carefully constructed to ensure race-neutrality.”
Blacks passed at roughly half the rate of whites and ended up low on the ranked list of possible promotion candidates.. Under the city charter’s “rule of three,” as positions became available they had to be offered to one of the top three candidates then on the list.
In practice, this meant that no black firefighters would have been eligible for the available promotions to lieutenant. After a series of contentious hearings, the city’s Civil Service Board deadlocked by a 2-to-2 vote on whether to certify the lieutenant’s test and a similar one for captain. The tie had the effect of rejecting the tests.
With no one promoted since, “we’re sort of frozen in time,” said Mr. Bolden, the city lawyer.