source: The Washington Post
Cases Heard as Nation Debates Race
By Robert Barnes
Washington Post Staff Writer
Sunday, April 19, 2009
The Supreme Court has an opportunity to reaffirm or reshape the nation's civil rights laws as it faces a rare confluence of cases over the next two weeks, including a high-profile challenge brought by white firefighters who claim they lost out on promotions because of the "color of their skin."
The cases also touch on the Voting Rights Act, the need to provide English classes for immigrant children and, more tangentially, discriminatory mortgage lending.
The most emotionally charged case is from the New Haven, Conn., firefighters, whose complaints define the real-life quandary that sometimes accompanies government efforts to ensure racial equality.
The firefighters accuse city officials of violating civil rights laws and the Constitution by throwing out a promotions test on which they performed well but no blacks scored high enough to be eligible. The city responds that relying on test results with such wide racial discrepancies could have violated federal law and left them open to being sued by minorities.
The court will hear the arguments, along with the others, in the midst of an evolving national conversation about the role of race and diversity and in the wake of the historic presidential election.
"Each of these cases goes to the ability of our society to achieve opportunity, fairness and ultimately to our ability to be the democracy that we aspire to be," said John Payton, president and director-counsel of the NAACP Legal Defense and Educational Fund. "We've made tremendous progress as a society, and some of that progress is having in place anti-discriminatory" laws to ensure it continues.
His organization calls for the court in each case to affirm a vigorous role for government in recognizing the need for race-conscious vigilance.
But Edward Blum, a visiting fellow at the American Enterprise Institute, envisions a chance for the court to acknowledge the strides that the country has made, even if it decides each case narrowly.
The court could "send a signal to government units that race and ethnicity should play a smaller and smaller part in their decisions," Blum said.
He said he thinks the court took the firefighter case "because it wants to make a statement. And of all the cases involving race and ethnicity, I think this is the easiest for the court to answer."
The justices are deeply divided about government policies involving race, even if Chief Justice John G. Roberts Jr. has shown no such ambivalence. His view was evident quickly, when in a first-term dissent he lamented the "sordid business" of dividing individuals by race.
Others on the court seem just as firm, but on both sides of the issue. That often leaves Justice Anthony M. Kennedy, generally skeptical of race-based policies, as the target for opposing lawyers.
It also means the court's decisions are often nuanced, narrowed by the facts of the case and the intricacies of the law at hand, rather than laden with the broad pronouncements that often accompany public and political discussions of race.
"People see Supreme Court decisions as deciding these great questions for the country," said Washington lawyer Virginia A. Seitz, who has defended race-conscious policies before the court. "But lawyers see it another way, and I think the court sees it another way."
Still, the case of the firefighters, who have dubbed themselves the New Haven 20 and even have a Web site and T-shirts, provides the court a particularly human example of what they say is government intervention that goes so far to protect minorities that it discriminates against whites.
"It's all hot-button," Payton acknowledges.
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.
The firefighters' longtime attorney, Karen Lee Torre, did not allow her clients to talk to reporters -- other than for a segment on conservative commentator Sean Hannity's show on Fox News -- but Ricci said in a sworn statement, "I relied in good faith on the promise that effort and not race would determine who would be promoted."
When the results of the 2003 exams came back, only white firefighters, including one who is Hispanic, scored high enough to be considered for the openings for lieutenants and captains. All 27 black firefighters who took the test were below the cutoff.
After tumultuous public hearings, with minority groups arguing that the tests were flawed and the white firefighters saying officials were caving to political pressure, the city's Civil Service Board voted not to certify the results. The promotions remain in limbo.
The city argues that the test it commissioned, in which 60 percent of the score came from a multiple-choice questionnaire and 40 percent from an interview, must have been biased, despite its best intentions. It is not specific about the problems with the test, though it says the exam did not measure "command presence" and should have given more weight to the interview.
At any rate, the city says it was bound by Title VII of the 1964 Civil Rights Act, which requires employers not to rely on hiring or promotional tests that have a "disparate impact" on minorities unless they can show a "business necessity."
New Haven Mayor John DeStefano Jr. (D) is not talking to reporters about the case, either. The city's corporation counsel, Victor A. Bolden, said the city was placed in a position where it was bound to be sued by one side or the other and opted to "pause" and reconsider how promotions should be made.
"I certainly have sympathy for the plaintiffs, but at the end of the day it was the wrong test," Bolden said.
He added that if it is unfair to white firefighters to have the promotions scuttled, it would be equally unfair to black firefighters who were "locked out" by test results that did not truly produce a list of those most qualified.
A district judge ruled for the city, as did a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit. But the case created a loud disagreement among the judges on the circuit. After the full court voted 7 to 6 not to rehear the case, dissenting judges called on the Supreme Court to get involved. It will hear the case Wednesday.
The Obama Justice Department mostly sides with New Haven officials. It told the court that employers may decline to certify the results of promotional tests if they believe that doing so would violate Title VII's prohibition against disparate impacts.
But it added that such a rationale cannot be used as "a pretext for race discrimination" and said the Supreme Court should return the case to lower courts so a jury can decide whether that was the true reason for the city's actions.
Seitz, speaking at a discussion about the case sponsored by the American Constitution Society, said the court's decision will probably also be important for private employers who want to diversify their workplaces but live "on a knife's edge" about whether hiring and promotion tests will lead to lawsuits.
She thought the administration's proposed remedy in the firefighter suit might be appealing to the court because of the dispute about the city's motivations.
The case reflects "the conversation about race in this country," Seitz said.
"Nobody trusts what the other side is saying."
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