The Supreme Court ruled Monday
that white firefighters in New Haven, Conn.,
were unfairly denied promotions because of their race, reversing a decision that high court nominee
endorsed as an appeals court judge.
New Haven was wrong to scrap a promotion exam
because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision.
The city said that it had acted to avoid a lawsuit from minorities.
The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional.
"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," Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.
In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them."
Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday.
Kennedy's opinion made only passing reference to the work of Sotomayor and the other two judges on the 2nd U.S. Circuit Court of Appeals who upheld a lower court ruling in favor of New Haven.
But the appellate judges have been criticized for producing a cursory opinion that failed to deal with "indisputably complex and far from well-settled" questions, in the words of another appeals court judge, Sotomayor mentor Jose Cabranes.
"This perfunctory disposition rests uneasily with the weighty issues presented by this appeal," Cabranes said, in a dissent from the full 2nd Circuit's decision not to hear the case.
Monday's decision has its origins in New Haven's need to fill vacancies for lieutenants and captains in its fire department. It hired an outside firm to design a test, which was given to 77 candidates for lieutenant and 41 candidates for captain.
Fifty six firefighters passed the exams, including 41 whites, 22 blacks and 18 Hispanics. But of those, only 17 whites and two Hispanics could expect promotion.
The city eventually decided not to use the exam to determine promotions. It said it acted because it might have been vulnerable to claims that the exam had a "disparate impact" on minorities in violation of the Civil Rights Act of 1964.
The white firefighters said the decision violated the same law's prohibition on intentional discrimination.
Kennedy said an employer needs a "strong basis in evidence" to believe it will be held liable in a disparate impact lawsuit. New Haven had no such evidence, he said.
The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it. In addition, city officials could not say what was wrong with the test, other than the racially skewed results.
"The city could be liable for disparate-impact discrimination only if the examinations were not job related" or the city failed to use a less discriminatory alternative, Kennedy said. "We conclude that there is no strong basis in evidence to establish that the test was deficient in either of these respects."
But Ginsburg said the court should have assessed "the starkly disparate results" of the exams against the backdrop of historical and ongoing inequality in the New Haven fire department. As of 2003, she said, only one of the city's 21 fire captains was African-American.
Until this decision, Ginsburg said, the civil rights law's prohibitions on intentional discrimination and disparate impact were complementary, both aimed at ending workplace discrimination.
"Today's decision sets these paired directives at odds," she said.
Supreme Court Overturns Sotomayor’s Ruling in Firefighters’ Reverse Discrimination Case
Monday, June 29, 2009
By Mark Sherman, Associated Press
The following comments are posted by our readers and are not necessarily the opinions of either CNSNews.com or the story’s author.
Folks, While I cannot contain my elation that FINALLY this case was reviewed on its merit and that the firefighters will FINALLY receive the benefit that they deserve. I would highly recommend that they fight for back pay and allowances that they would have received if they were promoted when they should have been. HOWEVER, HERE IS THE REAL STORY behind this EXCELLENT story: This was overturned by a 5-4 majority when in fact it should have been 9-0 on its merit. What that says is that we are ONLY 1 or 2 more votes away from complete TYRANNY: Liberal White House; Liberal Congress; Liberal Court. PRAY that another Justice does NOT leave the court before the 2010 election when We The People will be able to THROW THE LOT of LIBERALS THE HELL OUT!
IQ 168 (5 hours ago)
I was a human resources practitioner in the U.S.S.A. from 1974 through 1996 when I moved to Europe. I lived through the California 1980s Bakke decision (which institutionalized reverse discrimination against white males). This is 30 years too late - but perhaps will do something to return justice and equality to the workplace. Perhaps, after 30 years, people wil be judged by the content of their character and not the color of their skin and/or their ***. Reset the discrimination and keep justice coming.
yumadlh (6 hours ago)
This bill was not read by anyone before it was voted on because it had not been printed. The same is going to be with the Healthcare bill. This house of crooks are killing the economy by thinking of the next election and the citizens be damned. Tax. Tax. Tax. Spend. Spend. Spend. The CZARs are in control. The unelected rulers. No accountability or oversight.
Four Justices Unable To See Beyond Race
By GEORGE F. WILL | Posted Monday, June 29, 2009 4:20 PM PT
Although New Haven's firefighters deservedly won in the Supreme Court, it is deeply depressing that they won narrowly — 5-4.
The egregious behavior by that city's government, in a context of racial rabble-rousing, did not seem legally suspect to even one of the court's four liberals, whose harmony seemed to reflect result-oriented rather than law-driven reasoning.
The undisputed facts are that in 2003 the city gave promotion exams to 118 firemen, 27 of them black. The tests were prepared by a firm specializing in employment exams and were validated, as federal law requires, by independent experts.
When none of the African-Americans did well enough to qualify for the available promotions, a black minister allied with the seven-term mayor warned of a dire "political ramification" if the city promoted from the list of persons (including one Hispanic) that the exams identified as qualified.
The city decided that no one would be promoted, calling this a race-neutral outcome because no group was disadvantaged more than any other.
The city's idea of equal treatment — denying promotions equally to those deemed and those not deemed qualified — was particularly galling to Frank Ricci, who had prepared for the exams by quitting his second job, buying the more than $1,000 worth of books the city recommended, paying to have them read onto audiotapes — he is dyslexic — and taking practice tests and interviews. His efforts earned him the sixth-highest score.
He and others denied promotions for which their exam scores made them eligible sued, charging violations of the Constitution's guarantee of equal protection of the laws and of the 1964 Civil Rights Act.
The city argued that if it had made promotions based on the test results, it would have been vulnerable under the 1964 act to being sued for adopting a practice that had a "disparate impact" on minorities.
On Monday, the court's conservatives (Anthony Kennedy writing for the majority, joined by John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito) held:
The rights of Ricci et al. under the 1964 act were violated. The city's fear of a disparate impact litigation was not unfounded, but that did not justify the race-based response to the exam results because New Haven did not have "a strong basis in evidence" to believe it would be held liable.
There is such evidence only if the exams "were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative" that would have served the city's needs but that it refused to adopt.
"All the evidence demonstrates that the city rejected the test results because the higher scoring candidates were white." The city's criticisms of the exam "are blatantly contradicted by the record." And "the city turned a blind eye to evidence supporting the exams' validity" (emphases added).
Ruth Bader Ginsburg, joined in dissent by John Paul Stevens, David Souter and Stephen Breyer, rejected the majority's conclusions root and branch. She cited a federal report from the early 1970s about discrimination in hiring firefighters, disputed even the "business necessity" of the exams' 60/40 written-oral ratio and defended the integrity of New Haven's decision-making — rejecting Alito's concurrence, which dwelt on the rancid racial politics of the Rev. Boise Kimber.
Alito concluded that "no reasonable jury" could find that the city possessed a "substantial basis in evidence to find the tests inadequate."
Scalia, concurring separately, said Monday's ruling "merely postpones the evil day" on which the court must decide "whether, or to what extent," existing disparate-impact law conflicts with the 14th Amendment guarantee of equal protection of the law.
Conceding that "the question is not an easy one," Scalia said:
The federal government is prohibited from discriminating on the basis of race, so surely "it is also prohibited from enacting laws mandating that third parties" — e.g., a city government — "discriminate on the basis of race."
"Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end? Surely he would. Intentional discrimination is still occurring, just one step up the chain."
The nation shall slog on, litigating through a fog of euphemisms and blurry categories (e.g., "race-conscious" actions that somehow are not racial discrimination because they "remedy" discrimination that no one has intended). This is the predictable price of failing to simply insist that government cannot take cognizance of race.
© 2008 Washington Post Writers Group
SO MUCH FOR WISE LATINAS
by Ann Coulter
July 01, 2009
With the Supreme Court's decision in Ricci v. DeStefano this week,
we can now report that Sonia Sotomayor
is even crazier than Ruth Bader Ginsburg.
To recap the famous Ricci case, in 2003, the city of New Haven threw out the results of a firefighters' test – which had been expressly designed to be race-neutral – because only whites and Hispanics scored high enough to receive immediate promotions, whereas blacks who took the test did well enough only to be eligible for promotions down the line.
Inasmuch as the high-scoring white and Hispanic firemen were denied promotions solely because of their race, they sued the city for race discrimination.
Obama's Justice-designate Sotomayor threw out their lawsuit in a sneaky, unsigned opinion – the judicial equivalent of "talk to the hand." She upheld the city's race discrimination against white and Hispanic firemen on the grounds that the test had a "disparate impact" on blacks, meaning that it failed to promote some magical percentage of blacks.
This strict quota regime was dressed up by the city – and by Sotomayor's opinion – as a reasonable reaction to the threat of lawsuits by blacks who were not promoted.
That's a complicated way of saying: Racial quotas are peachy.
According to Sotomayor, any test that gets the numbers wrong – whatever "wrong" means in any given context of professions, populations, applicants, workers, etc. – is grounds for a lawsuit, which in turn, is grounds for an employer to engage in race discrimination against disfavored racial groups, such as white men.
KKK's first targets were Republicans – read how Democrats started group in "Setting the Record Straight: American History in Black & White"
Consequently, the only legal avenue available to employers under Sotomayor's ruling is always to impose strict racial quotas in making hiring and promotion decisions.
Say, if the threat of a lawsuit permits the government to ignore the Constitution, can pro-lifers get New Haven to shut down all abortion clinics by threatening to sue them? There's no question but that abortion clinics have a "disparate impact" on black babies.
This week, the Supreme Court ruled 5-4 for the white and Hispanic firefighters, overturning Sotomayor's endorsement of racial quotas.
But all nine justices rejected Sotomayor's holding that different test results alone give the government a green light to engage in race discrimination. Even Justice Ginsburg's opinion for the dissent clearly stated that "an employer could not cast aside a selection method based on a statistical disparity alone."
Indeed, the dissenters argued that the case should be returned to the lower courts to look for some hidden racial bias in the test. For Sotomayor, the results alone proved racial bias.
The one advantage Sotomayor's talk-to-the-hand opinion has over Justice Ginsburg's prolix dissent is that brevity prevented Sotomayor from having to explain why quotas aren't quotas.
That was left to Ginsburg.
Liberals desperately want race quotas – as long as quotas never come to their offices.
But they can't say that, so instead they talk in circles for 10 hours straight, until everyone else is exhausted, and then, when no one is paying attention, they announce: So we're all agreed – we will have racial quotas.
Based on her lifetime of experience working as a firefighter, Ginsburg said: "Relying heavily on written tests to select fire officers is a questionable practice, to say the least." Liberals prefer a more objective test, such as race.
Isn't excelling on written tests how Ruth Bader Ginsburg got where she is? It's curious how people whose entire careers are based on doing well on tests find them so irrelevant to other people's jobs.
In the middle of a fire, it can either be a great idea or the worst possible idea to open a door. An excellent method for finding out if your next fire chief knows the correct answer is a written test.
Unleashing the canard of all race-obsessed liberals, Ginsburg observed that courts have found that a fire officer's job "involves complex behaviors, good interpersonal skills, the ability to make decisions under tremendous pressure, and a host of other abilities – none of which is easily measured by a written, multiple choice test."
So does a lawyer's job. And yet attorneys with absolutely no "interpersonal skills" get cushy jobs and extravagant salaries on the basis of their commendable performance on all manner of written tests, from multiple choice LSATs and bar exams to written law school exams.
I note that Ginsburg has not shown any particular interest in rectifying the "disparate impact" of legal exams: She never hired a single black law clerk out of the dozens she employed in more than a decade as an appeals court judge. (Her hiring practices on the Supreme Court are a state secret, but I can state with supreme certainty that her clerks do not reflect the racial mix of Washington, D.C.)
But liberals think other people's jobs are a joke, so the testing must also be a joke. That is – other than their preferred test: "Is the applicant black, female or otherwise handicapped?"
There is no test that can prove all things about an employee and so there is no test that can't be derided by the race-mongers. Which is exactly the point. Get rid of all tests – except for lawyers who graduated at the top of their law school classes at Columbia, like Ruth Bader Ginsburg. Then liberals are free to impose racial quotas on other people's jobs without limit.
As crazy as this is, even Ginsburg and the other dissenters made a big point of pretending there was some flaw in this particular test. None adopted Sotomayor's position that unequal test results alone prove discrimination.
This suggests that a wise Jewess, due to the richness of her life experiences, might come to a better judgment than a Latina judge would.
BARRY SOETORO aka BARACK HUSSEIN OBAMA
He is not eligible to be
President of the United States
because he is not a Natural Born Citizen
as required by Article Two, Section One, Clause Five of the United States Constitution.
This is a fact REGARDLESS of
where he was born (Mombassa, Hawaii, Chicago, Mecca or Mars).
He is not eligible
because he was not born of
BOTH OF WHOM WERE UNITED STATES CITIZENS
at the time of his birth as required by the Constitution.
His father was a subject/ciitizen
of Kenya/Great Britain at the time of his birth and afterwards.
The FACT that he was not born of TWO US CITIZEN PARENTS is all that matters. The question of his birth certificate is a distraction (a distraction fostered by Obama’s supporters?) that ought not to occupy our time and resources.
However, it is possible that he is not a United States
citizen at all even if he was born in Kenya, as three witnesses have testified. The reason is because his mother could not pass her US citizenship on to her son because she did not live continuously in the United States for five full years after her fourteenth birthday as required by the US immigration law in effect during that period of time.
Check it out:
Also, an excellent introductory primer on Obama Presiidential Eligibility is to be found at:
His usurpation can only be corrected (1) by Congress through his Impeachment and Removal [something which will never happen in a Congress controlled by Pelosi/Reid], or (2) it can be
corrected by his resignation, which could happen if the public presssure on him to resign becomes great enough, or (3) by his removal by the United States Supreme Court affirming a Quo Warranto decision of the United States Federal District Court for the District of Columbia [which process Attorney General Eric Holder would never allow to even begin] or (4) by an amendment to the Constitution,
which will never happen because that again would require the agreement of a Congress controlled by Pelosi/Reid.
HERE IS THE QUESTION WHICH EVERY AMERICAN CITIZEN SHOULD BE ASKING HIS OR HER CONGRESSMAN AND SENATORS
“During the 2008 election, then Senator Obama published a statement at his website which said that his birth status was ‘governed’ by the British Nationality Act of 1948. Can you please tell me, and the American people, how a person governed - at birth - by British law, can be a natural born citizen of the United States and thus constitutionally eligible to be President of the United States?”
- Leo Rugiens