Various organizations are clamoring to contribute their opinions to the racially charged debate surrounding Ricci v. DeStefano, a case to be heard by the US Supreme Court next month.
Last week, the city of New Haven filed its response brief for the case, in which one Hispanic and 19 white firefighters sued the city claiming they were denied promotions because of their race. The city’s brief echoes its earlier assertions that it had acted appropriately under current laws. Though most agree that the firefighters were wronged, a few, including the U.S. Department of Justice, believe the city’s position has some merit.
In 2003, the New Haven Fire Department used an exam to test for promotions to open lieutenant and captain positions. No blacks scored well enough on the test to merit a promotion, and the city subsequently threw out the results. The firefighters suing claim that they were denied a promotion as a result of the test being discarded.
The city has said the exams may have been fundamentally unfair to minority test-takers. The city has said it therefore had to throw out the results because the test appears to violate Title VII, which prohibits discrimination against a particular group.
Many have disputed the city’s reasoning. Of the 13 Amicus curiae briefs — opinions written by organizations who are not directly involved in the case — filed as of Friday, eleven support the firefighters.
But Corporation Counsel for New Haven Victor Bolden said Monday he expects many briefs to be filed supporting the city by the end of the day Wednesday. Moreover, the Department of Justice brief, filed in February, supports most of the cities claims.
In its 68-page brief, the city contends that the promotion test, which was designed by an outside consulting firm, was seriously flawed. According to the brief, IOS did not conduct the studies necessary to establish the test’s validity and fairness.
William Pendley, president of the Mountain States Legal Foundation, an organization which filed a brief, disputes this.
“The city is making that up because the record clearly reflects the test was examined and created so that it was not discriminatory,” Pendley said in an interview. “The only discrimination that took place was when the city threw out the test.”
Bolden, however, pointed to testimony given to the Civil Service Board that shows there were flaws in the test, noting that those in support of the firefighters either have not read the entire record in this case or are ignoring critical information.
IOS has maintained that the test was fair and not biased.
Steven Freeman, director of legal affairs for the Anti-Defamation League, which filed a brief supporting neither party, agreed that the city has not proven that the test was discriminatory. Freeman said in a phone interview Monday that strict scrutiny, the most rigorous form of judicial review, should be applied in this case since it involves racial classifications. He said the city should be required to prove the test was discriminatory.
In its brief, however, the city argued that strict scrutiny should not apply in this case since its actions were race-neutral. All the exams were thrown out, regardless of the test taker’s race, and this uniform treatment should nullify any potential need for such a review, the brief argues. Bolden added in an interview that it is not the city’s burden to prove the test was actually discriminatory since there was a reasonable basis to think that it was.
But at least two briefs argued this was a weak defense, and Alan Foutz, counsel for the Pacific Legal Foundation, called it “disingenuous.”
Still, the U.S. Department of Justice largely supports the city’s position.
The DOJ brief, which according to Newsweek was written in consultation with the White House, argues that the city’s decision not to certify the test does not require strict scrutiny and does not necessarily violate Title VII.
Effectively, Bolden said, Title VII would be gutted if the Court supported the firefighters’ argument.
But the Justice Department brief did not unequivocally support the Elm City either. It said the city has not proved that its claimed purpose for not certifying the test — to comply with Title VII — was not simply a pretext for intentional racial discrimination. Therefore, the brief asked the Supreme Court to remand the case to a lower court to make sure there was no intentional discrimination.
Bolden said he is confident that if a lower court looked at the case, it would find no evidence of malicious discrimination based on race. He noted, however, that there is no need to send the case back for further reviews.
“There is no evidence to support the petitioners’ claims,” Bolden said. “The prevailing law is also on our side.”
The case will be heard by the Supreme Court on April 22.