Supreme Court's missed opportunity
posted Tuesday, July 7th, 2009 @ 5:38 pm

The U.S. Supreme Court ruled last week that the city of New Haven, Conn., erred when it threw out the results of a firefighters exam because the only people who passed it were white and Hispanic.

The Supreme Court got it right, though it missed an opportunity to settle a problem that has plagued America for decades—reverse discrimination.

At issue in Ricci vs. Destefano was whether New Haven violated Title 7 of the Civil Rights Act of 1964 when the city refused to promote the white people and the two Hispanics who passed the firefighters exam, which was tailored to ensure blacks would be well positioned to pass it. No blacks passed the exam, which was crafted out of fear that if enough blacks did not pass it and were not promoted, they would file a lawsuit against the city.

Instead, a white firefighter, Frank Ricci, sued New Haven after the city opted not to promote him and the other firefighters who scored well enough on the exam to be promoted to lieutenant or captain. Ricci was joined by 73 other firefighters in the lawsuit against New Haven.

In a summary judgment, a U.S. District Court judge ruled against Ricci and his colleagues.

A three-judge panel of the 2nd Circuit Court of Appeals upheld the District Court's decision. Judge Sonia Sotomayor, who President Obama recently nominated to the Supreme Court, was a member of the panel. In other words, the Supreme Court in Ricci vs. Destefano overturned a judge who will join them on the high court in a matter of months, assuming the U.S. Senate confirms Sotomayor's appointment.

In its decision to overturn the 2nd Circuit Court of Appeals, the Supreme Court held that discrimination against white people in the hiring process is a violation of Title 7 of the 1964 Civil Rights Act. The only means, according to the Supreme Court, in which reverse discrimination can be justified is through a "strong basis of evidence" that the hiring process produced a "disparate impact" on the number of minorities qualified through the hiring process. The Supreme Court found as a matter of evidence that the hiring process in New Haven did not produce a "disparate impact" on the black applicants.

To surmise, the Supreme Court said an employer is barred by Title 7 of the Civil Rights Act from discriminating against whites in a hiring process. At the same time, though, blacks can sue for discrimination if there exists a "strong basis of evidence" that a hiring process produced "disparate impact" on a black job applicant. The "disparate impact" consideration was first recognized by the Supreme Court in 1971 when the Court held that absent discriminatory intent in hiring, a discriminatory impact was enough to violate Title 7 of the Civil Rights Act.

Yet, the Supreme Court could have settled the issue once and for all had it found that New Haven violated the Equal Protection Clause of the U.S. Constitution when the city practiced reverse discrimination against the white and Hispanic firefighter applicants. Instead, the Court sidestepped it and merely considered the Civil Rights Act in reaching its decision.

Justice Antonin Scalia recognized a missed opportunity when he saw it, and he opined correctly when he stated, "the war between disparate impact and equal protection will be waged sooner or later and it behooves us to begin thinking about how—and on what terms—to make peace between them."