Ricci resurfaces, on track to Supreme Court

Less than a year after the City of New Haven finalized its settlement in a bias suit filed by 20 New Haven firefighters that reached the Supreme Court, another case involving claims of racial discrimination by the city might wind up at the nation’s highest court.

The city filed a petition last Wednesday requesting that the Supreme Court hear the case of Michael Briscoe vs. New Haven, which had its April 2010 dismissal overturned by a federal appeals court last year. This suit comes from the same controversy that sparked Ricci vs. DeStefano, in which the Supreme Court in 2009 ruled in favor of the firefighters, 19 of them white, who claimed the city discriminated against them after their results on a 2003 New Haven Fire Department promotional exam were thrown out due to concerns that not enough minority applicants had qualified for promotion. Briscoe, a black firefighter who did not qualify for promotion, claims in his suit that the exam discriminated against minorities and violated his civil rights.

In their petition, city lawyers say the 2011 federal appeals court decision in the Briscoe case “flagrantly contravenes” the Supreme Court’s ruling in Ricci, which was handed down after seven years of litigation. The petition claims that the appeals court’s decision to overturn the case’s previous dismissal exposes the city to legal liability for implementing the “very remedies” imposed by the Ricci decision.

“The city believes that it is not in anyone’s interest to continue litigating over the 2003 promotional examinations in 2012,” Victor Bolden, the city’s top lawyer, said. “The Supreme Court’s ruling in Ricci resolved any issues resulting from those exams and everyone should be moving forward.”

The city’s petition last week would bring the contested 2003 promotional exam before the Supreme Court for the second time in three years.

In 2009, the Supreme Court decided in a 5–4 ruling that the the city had violated Title VII of the 1964 Civil Rights Act by throwing out the promotional exam results, which would have left only two of 50 minority candidates eligible for promotion. The promotional exam results were subsequently certified, 14 of the plaintiffs were promoted and all 20 shared in a $2 million settlement agreement distributed last July.

But Briscoe, who finished first on the exam’s oral portion but failed to make the cut for promotion because of a low score on the written section, argued in his 2009 lawsuit that the exam’s underweighting of the oral section was racially discriminatory.

Although Briscoe’s case was originally dismissed in 2010 on the grounds that the holding in Ricci foreclosed the suit, the federal court of appeals overturned that dismissal last year, stating that Ricci “neither precluded nor properly dismissed” Briscoe since “[the appeals court] cannot reconcile all of the indications from the Supreme Court in Ricci.”

With the case back in federal court on Church Street last Tuesday, attorney Karen Torre, who successfully represented the 20 firefighters in Ricci, filed a motion to intervene in the case because the interests of 19 of the firefighters she represented are at stake in Briscoe vs. New Haven. One has since retired.

As part of her motion, she told the New Haven Independent that she will attempt to challenge the constitutionality of the disparate impact doctrine established by the 1964 Civil Rights Act, which prohibits facially neutral employment policies that negatively impact minority groups.

Judge Charles Haight did not rule on Torre’s motion to intervene and ordered a stay on all legal proceedings last Tuesday, in anticipation of the city’s Wednesday request to have the Supreme Court consider the case.

The stay will remain in place until the Supreme Court decides whether or not to take the case, which it will do in the next 90 days.

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