Race bias case divides Court

The United States Supreme Court listened to 75 minutes of oral arguments Wednesday morning in the case brought by New Haven firefighters accusing the city of reverse discrimination.

The case, Ricci v. DeStefano, could have a major impact on the use of race in hiring decisions. And judging from their questions and statements, the nine justices appeared to be highly divided on the case, with the four most conservative on the court supporting the firefighters and the four most liberal supporting the city. Justice Anthony Kennedy — who is widely viewed as the swing vote in what will likely be a 5-4 decision — asked pointed questions to both sides.

The case centers on the New Haven Civil Service Board’s decision not to certify a 2003 promotion exam for the position of lieutenant and captain. Because no black firefighter received a score on the exam high enough to likely get a promotion, the city said it feared it would be sued for discrimination if the exam was certified. One Hispanic and 19 white firefighters sued the city, saying they were denied promotion based on their race alone.

Chief Justice John Roberts, a conservative, objected to the city’s decision to throw out the exams after sorting the results by race. Roberts said he did not understand how the city’s actions did not constitute intentional racial discrimination. He asked the city’s attorney, Christopher Meade, how many times the city would be permitted to administer the test until accepting the outcome.

“They get do-overs until it comes out right?” he asked. “Throw out this test; they do another test; oh, it’s just as bad, throw that one out; get another one that’s a little better.”

Meade responded by saying it depends on the city’s intent. He argued that the test was unintentionally flawed, justifying the city’s decision to throw out the results. Because the city acted to comply with Title VII, which is designed to prohibit employers from discriminating, its actions were legal, he argued.

“There’s no entitlement to be promoted on the basis of a flawed or discriminatory test,” Meade told the court.

Attorney Gregory Coleman, who argued for the plaintiffs, told the justices that because the city never proved that the test itself is discriminatory, its actions were illegal.

Justice David Souter disagreed with Coleman’s reasoning, saying his argument “leaves a municipality or a governmental body like New Haven in a ‘damned if you do, damned if you don’t’ situation.” If the city did certify the results and go ahead with the promotions, it would likely be sued by the minority firefighters under a disparate impact claim — a claim that different races of firefighters were affected disproportionately regardless of the city’s intentions, he said.

Justice Kennedy said he had difficulty justifying the city’s actions. He questioned Attorney Edwin Kneedler — who argued on behalf of the United States government to support New Haven’s main claims — about Kneedler’s claim that even though the city classified the successful and unsuccessful applicants by race, the city’s actions were not race-based.

“You want us to say this isn’t race? I have trouble with this argument,” Kennedy stated.

Kennedy said the city must prove the test to be significantly deficient before it can be set aside. No test is perfect, he said.

“I’ve given law school examinations … and bar examinations for years,” he said. “There’s never been one, when I don’t look at it after the fact and say, you know, this could be better … this was not quite right.”

The plaintiffs arrived at the court gallery in their formal firefighter uniforms. Two black New Haven firefighters were also present, but were dressed in civilian clothes. The courtroom was packed for the morning arguments.

On the steps of the court after the conclusion of the arguments, Frank Ricci, the lead plaintiff in the case, spoke to reporters while surrounded by the other firefighters.

“We’re all happy to have our day in court,” he said.

The Supreme Court is expected to issue a ruling on the case in June.

The Associated Press contributed reporting.


  • Hieronymus

    "The only way to end [racial] discrimination is to end [racial discrimination]."

    Can "racial classification" ever be benign?

    New Haven said that throwing out the test was a racially neutral act; by denying everyone, no one suffered any discrimination.

    "It's neutral because you throw it out for the losers as well as for the winners?" Scalia asked. "That's neutrality?"

    What. if the roles. were reversed? THAT would be (illegal) discrimination, right?

    You know, you cannot simply deliver (or force) dignity on people (or a people)--it is not an exogenous factor…

  • 0Y9

    Before trolls attack, I feel like there's a simple, objective way of viewing this:

    If the test really was discriminatory, then side with the city.

    If it wasn't, and there were simply no qualified black candidates, side with the firefighters.

    Everything depends on this distinction, regardless of liberal-conservative identification, race, sympathies, etc.

  • Anonymous

    "You know, you cannot simply deliver (or force) dignity on people (or a people)--it is not an exogenous factor…"

    Wow bro, you got any more racist generalizations for us? Please, tell us something else THEY need to do as A PEOPLE. You know, as undignified as they are.

    Honestly, the fact that the test split the candidate group almost evenly by race raises fewer questions to me about the test than about inequities in on-the-job education. I don't know what they are or if the inequities exist, but I suspect a passive neglect of on-the-job training for candidates of color is really the issue.

    The Fire Department should be asking those questions more than they need to throw out this test, though since they painted themselves into this corner it was their last option to avoid looking pretty bad.

  • 1776

    Reverse discrimination has been a way of life for caucasians since the mid 60's. So, what? Dumb everything down for those who can't make the grade, naturally? It stinks, and there isn't a darn thing anyone can do about it. Not a thing.

  • Hieronymus


    I am referring to Liberals' incessant denigration (via, e.g., "affirmative action," PC-ism, etc.), all attempts to "level the playing field."

    *My* point is that such programs (and actions a la New Haven in this instance) inherently undermine human dignity, i.e., artificial attempts at bolstering, well, anything (in this case, minority representation) implies that a group--or any individual--is incapable of overcoming obstacles/challenges alone.

    Speaking of which (and vis-a-vis your comment re: OJT), did you read that one of the applicants, a dyslexic, had a friend tape (i.e., read aloud) the texts in order the the applicant could study? That he gave up a second job to devote more time to his studies? That is, that he understood his own challenges and devoted time and effort to ensuring his success?

    But New Haven decided instead that because some applicants belonging to a specific group had not done so that no one should be rewarded.

    So much for anything even marginally resembling "meritocracy."

    As for you thinking that my comments are "racist," I would suggest that they apply to any group (i.e., that no "group" should receive special treatment), so please correctly refer to me as either "uniformly biased" or, heck, unbiased (or, as New Haven deems it, "race neutral").

    Unless you are too blinded to understand that..?

    (BTW: assuming that you worked hard to get into Yale, what would have been your thoughts, I wonder, if your spot went to someone clearly less prepared merely because of that applicant's "status"?)

  • Hieronymus

    Tangential addendum: I am most definitely biased in at least one (non-PC) way: I prefer and celebrate Western Civilization generally--and American exceptionalism in particular-- as the pinnacle of human achievement, despite any obvious warts.

    BTW: Western Civ is non-discriminatory: anyone can subscribe.

    "Anyone who is serious about extending the same benefits to others must become serious about developing the same abilities in others—-that is, raising them up to the same standards, not bringing the standards down to them."
    --Thomas Sowell

  • I am Confused

    I would like to ask a simple question: What sort of question on a firefighting exam can be considered discriminatory? A question that requires critical thinking skills? A question involving math? A question that tests memorization?…? A single example would be very helpful.

  • T.R

    Unlike passing "THE BAR" Firefighting does not have "grey" areas. If my house is burning I do not want a firefighter with "Gentleman C's." Politicians couldn't make a tough decision if it hit them in the head.

  • Anonymous

    Read the book, "Bell Curve"

  • Anonymous

    I ask, what if the firefighters were not White and were in the situation the White firefighters are in ? How do you think the media and most people would interpret this case ? Quite interesting…

  • clarification please


    "I prefer and celebrate Western Civilization generally--and American exceptionalism in particular-- as the pinnacle of human achievement, despite any obvious warts."

    So, am I right to believe that you are comparing the atrocities (slavery, extermination of Native Americans, Jim Crow, etc.) perpetuated by this country (and those who led to its founding) are comparable to mere warts? I am perplexed that one would treat these facts of history so flippantly when they are equally a part of the history of our country as the 'exceptional' parts. Don't get me wrong this is not a 'hate America' post, but I think it is important that one speak with some sense of humility when one touts the greatness of this country. Just some thoughts, but if you choose to respond please stay away from the standard anti-liberal attacks they are shallow and meaningless cliches.

  • Hieronymus


    The slave trade was invented--and is still perpetuated--by Muslim nations.

    "Exermination" (a.k.a.) genocide, is still perpetuated (can you guess where?).

    Bigotry-driven legislation still exists (where?).

    I choose not to engage in your attempt, via cultural relativism, to negate the obvious and undeniable achievements of Western Civ. It's a bore, a canard, and a bastion best left to Leftists.

    If you were really interested in anything other than denigration of the West (and its attendant self-annihilation), you might use your privilege of a Yale education (unless you are writing from, say, the Grand University of Somalia?)to stop the slave trade in Yemen and the Sudan; go fight for the rights--and lives--of Christians and Jews in Iraq; go fight for women's rights in Saudi Arabia; or peruse, pursue, and celebrate such Western achievements as liberation, democracy, medical science, and technological innovation.

    Otherwise, don't waste my time.

  • Hieronymus

    For those sincerely seeking something other than the ubiquitous Leftist pap force-fed on Yale's campus (even if to understand the Conservative viewpoint), I recommend Medved's The 10 Big Lies About America: Combating Destructive Distortions About Our Nation.

    Myth: The United States is uniquely guilty for the crime of slavery and based its wealth on stolen African labor.

    Fact: The colonies that became the United States accounted for, at most, 3 percent of the abominable international slave trade; the persistence of slavery in America slowed economic progress; and the U.S. deserves unique credit for ending slavery.

    Myth: The alarming rise of big business hurts the United States and oppresses its people.

    Fact: Corporations played an indispensable role in building America, and corporate growth has brought progress that benefits all with cheaper goods and better jobs.

    Myth: The Founders intended a secular, not Christian, nation.

    Fact: Even after ratifying the Constitution, fully half the state governments endorsed specific Chris­tian denominations. And just a day after approving the First Amendment, forbidding the establishment of religion, Congress called for a national “day of public thanksgiving and prayer” to acknowledge “the many signal favors of Almighty God.”

    Myth: A war on the middle class means less comfort and opportunity for the average American.

    Fact: Familiar campaign rhetoric about the victimized middle class ignores the overwhelming statistical evidence that the standard of living keeps rising for every segment of the population, as well as the real-life experience of tens of millions of middle-class Americans.

    Americans--and I mean *all* Americans, regardless of self-style hyphenated sub-groups--should feel blessed, not burdened, by our heritage.

  • Yale06

    Is there a reason why the reporter felt the need to say

    "Chief Justice John Roberts, a conservative . . . ."

    but not

    "Justice David Souter, a liberal . . . ."

    ? Or a left-leaning moderate, or whatever it is we all think Souter is now? Or is that the Chief and the other "conservatives" on the bench are the only ones that merit mention of a deviation from a hypothetical reasonable judge's ideological position?

  • Anonymous

    "The slave trade was invented--and is still perpetuated--by Muslim nations."

    Muslims INVENTED the slave trade? You mean to tell me that there was no trading of slaves before Islam appeared in the 7th century CE? A lot of Pharaohs and Emperors and Consuls would have been surprised to be told that. Was the British Empire's slave trade was somehow inspired by Arab slave traders? And by the way, slavery, especially sex slavery, is a global problem (most prevalent in the West).

    ""Exermination" (a.k.a.) genocide, is still perpetuated (can you guess where?)."

    Yes, the Balkans and Rwanda. If you're referring to the "genocide" in Darfur, you should get your facts and figures straight.

    "Bigotry-driven legislation still exists (where?)."

    Everywhere. Including the US (The Defense of Marriage Act, anyone?)

    It's typical western arrogance to assume that it invented science, technological innovation, and "human rights."

    by the way, if you feel like you're being force-fed leftwing ideas at Yale, then I suggest you transfer somewhere where you feel like you can get a real education.

  • Hieronymus

    One correction: *Arabs*(not nec. Muslim) invented the *slave trade* (not nec. slavery).

    In the Balkans--ethnic cleansing occurred on both sides, stopped only by whom? (And "the UN" is most definitely the wrong answer).