Sotomayor and the New Haven Firefighters Case: More Myths Than Facts

By now, most people have heard -- negatively -- about the 2006 case Ricci v. DeStefano, in which 18 New Haven firefighters (17 white and one Hispanic) were not promoted after passing the required tests because there were no blacks whose test scores were high enough to qualify them for promotion.

From a surprisingly broad left-to-right spectrum, the Conventional Wisdom punditry seems to have decided that Judge Sotomayor was wrong on the law and on allowing reverse racial discrimination and that this case is her chief problem in getting confirmed by a substantial margin.

But once again, the CW is wrong. It has too easily accepted five myths that are contradicted by facts. Let's take a look.

1. The case is often referred to as "Judge Sotomayor's" opinion.

Very misleading. Judge Sotomayor was one of three judges on the 2nd U.S. Circuit Court of Appeals panel. The three affirmed the District Court's decision "per curiam" -- meaning all spoke together, without any one of them taking the lead.

Then 13 judges on the appeals panel then were asked to re-hear the appellate arguments. Seven of them (including presumably the three on the first panel) voted no, six voted yes, although some of the latter still might have upheld the District Court decision after hearing the argument.

2. Judge Sotomayor is portrayed as unsympathetic to the white firefighters.

Wrong. In the "per curiam" opinion, the three-judge panel wrote: "We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated."

3. This case proves she is a "liberal activist" judge, driven by race- based goals.

Totally false -- indeed, to the contrary.

The Ricci case was based on 38 years of jurisprudence, beginning with a Supreme Court case decided in 1971. Griggs v. Duke Power Company was a unanimous 8-0 opinion written by the conservative Chief Justice Warren Burger, appointed by Republican President Richard Nixon. It was Justice Burger who wrote: Title VII of the 1964 Civil Rights Act "proscribes not only overt discrimination but also practices that are fair in form but discriminatory in operation" and requires a job-related or business necessity reason to justify such disparate effect (and that there are no better alternatives).

Subsequently, the Equal Employment Opportunities Commission (EEOC) issued the "four-fifths rule" -- i.e., if minorities passed the test at a rate less than 80 percent of the group with the highest rate, then that test is presumptively illegal due to the "disparate effect" of the test, a presumption that could be overcome only if the employer could show there was no better job-related alternative that produced less of a disparity. While this rule does not have the force of law, courts have usually used it as an unofficial standard.

The New Haven case clearly came in far below the EEOC guideline. Less than half as many black firefighters as white firefighters passed the test.

The District Court was applying the law of the established precedents of the 2nd Circuit, as it was required to do. In two cases -- in 1983 and 1984 -- 2nd Circuit panels held that it was permissible under the then-existing Title VII to "race norm" the test results -- for example, lower passing grades for minorities to achieve a more proportionate result. Said the 1984 panel: "a showing of a prima facie case of employment discrimination through a statistical demonstration of disproportional racial impact constitutes a sufficiently serious claim of discrimination to serve as a predicate for employer-initiated, voluntary race-conscious remedies," such as "race norming."

In the New Haven case, as the court pointed out, there was no "race norming" -- the city civil service board simply decided to start over in search of more reasonable alternatives.

Thus, the New Haven District Court Judge, the three-judge panel on which Judge Sotomayor served, and seven circuit court judges who voted to deny a re-argument were all following precedent and strictly construing the underlying statute -- just like good conservative strict constructionists are supposed to do.

4. The ruling against the white firefighters is supported by President Obama's Justice Department.

Wrong. The Justice Department has asked the Supreme Court not to affirm the 2nd Circuit panel and the New Haven court, but rather, to send the case back to the New Haven court for further evidentiary hearings.

At such hearings, evidence can be heard on whether New Haven had any reasonable alternatives to the testing system that would be equally job-related but would not have produced this level of disparate effect.

In fact, there probably are several such alternatives that could be demonstrated at such a hearing. It is undisputed that blacks historically perform less well than whites on written tests. Most experts believe this is because of disadvantaged schools and lower-income family culture. Thus, one alternative for New Haven might be considered would be to adjust the weighting system required by the union contract -- 60 percent written test, 40 percent verbal examination. Instead, New Haven could use the weighting system applied by neighboring Bridgeport -- 30 percent written, 65 percent verbal, and 5 percent seniority. Experience has shown that this might produce less of a disparate impact on minorities.

Another method suggested by an expert at the New Haven trial was to give some weight to candidates who can "demonstrate" how they would address a particular problem as opposed to just verbally saying so. That too could have produced different, non-racially-disparate results.

5. The case should be reversed by the U.S. Supreme Court and this will show that Judge Sotomayor was wrong.

Balderdash. The Supreme Court probably will reverse, but that doesn't make Judge Sotomayor wrong. Only the Supreme Court can overrule or modify a prior Supreme Court decision and numerous appeals-court decisions.

This would not be the first time that a majority of this particular Supreme Court chose to ignore years of precedent and the conservative doctrine of "stare decisis", and in effect, reach a desired outcome first, then find legal arguments to support it second.

I may be missing something, but that doesn't sound like strict construction to me.

Wouldn't the better answer to the plight of Mr. Ricci and other whites suffering what they believe to be "reverse discrimination" be to change the law -- rather than legislating from the bench?

Stay tuned.

Lanny J. Davis, a Washington lawyer and former special counsel to President Clinton, served as a member of President George W. Bush's Privacy and Civil Liberties Oversight Board. He is the author of Scandal: How 'Gotcha' Politics Is Destroying America.

This piece appeared in Mr. Davis' weekly column, "Purple Nation," in the Washington Times today, June 15, 2009.

Comments

[dancucich]

"If Judge Sotomayor is all about helping Hispanics why didn't she rule in favor of the Hispanic Firefighter?"

Actually, she is not pro-hispanic; she is pro fairness.

iFact: in over 88% of her rulings on race discrimination claims
she has voted against the person claiming racial discriminatiom.
(see www.scotusblog.com

That proves she does not go looking for dicrimination. She rules based
on the law and the evidence.
She's a very good judge

[zhanaya]

I, a black woman, would LOVE to see a copy of the test that was so difficult that NO BLACK could pass. This test should be available so that EVERYONE could see the questions that were too difficult for BLACKS. 40 yrs ago, my younger sister, 15, attended the same predominately white high school at which I taught. BRILLIANT, she received over 90 in EVERYTHING; was one of a few students chosen to take Latin as a subject [something that NYC does not offer anymore) and received a 98 on the Latin Regents. She received OVER 90 in every Math Regents except Calculus where she received 100 which no one had ever done. She later applied to Boston U, trying for a scholarship but was sent a letter saying "they had filled their QUOTA of MINORITY applicants and that they would not be able to offer her ANY KIND OF SCHOLARSHIP and that they wished her luck in her applications elsewhere." Of course, she did well elsewhere - receiving a 4.0 average the first year she attended Temple U. This still bothers me that this very bright child, brighter than Allan Bakke, was relegated to Minority-ship when it came to attending a prestigious university -- even though she graduated from high school #28 in a class of nearly 1500. We did not fight this so I applaud these Firefighters in suing because only they could have passed that test.

[NedroidPrime]

Thank you!

Just about every other thread about this case has shown so much r@c1$m, it is disgusting.

There is no such thing as a question that cannot be answered by a certain race. We all have minds, and we all benefit from studying and working hard. That is why I applaud the SC decision today.

The victims are turning into the offenders, and it has to stop. Otherwise we will lose all the progress that has been made over the past 50 years.

[Soapfan]

It really needs to be noted that not all the Firefighters in the case were white. At least one was Hispanic.

If Judge Sotomayor is all about helping Hispanics why didn't she rule in favor of the Hispanic Firefighter?

[FloresdelaHoz]

Reverse discrimination is wrong but so is the Tammeny Hall - Cosa Nostra mentality of corporate management in the New York area. There is a glass ceiling for Hispanic Americans in corporate America.

If Sotomayor is not given a fair hearing the GOP will get blamed. Now bear in mind that Hispanic Americans see this as another example of the glass ceiling. Puerto Ricans have a very low voter turnout compared to Cuban Americans, but if Puerto Ricans are humiliated once again, they will begin voting like Cubans. That would mean 1.5 million more registered voters in Florida, New Jersey, New York, Connecticut, Massachusetts and Illinois.

[Doofus]

Seems like the federal courts, so far, are saying 'Firemen vs New Haven' is a
matter of settled law, and therefore not 'trial worthy'. Common ('Democratic')
sense is that it's an issue that's worth a trial anyway. Maybe the Supreme
Court will order one. Is this so wrong? Feel free to elucidate.

[KLordsha]

Hey Lanny...thanks for coming out. Also..the repubs are trying to ride a bycycle that only has one pedal and half a handlebar on this one... let them keep trying..

[serena1313]

Sotomayor -- from what I've read -- has been consistent in following precedent. Yet the GOP want us to believe she is an "activist" judge.

According to conservatives the courts should not "legislate from the bench." They equate "liberal" judges with "activist" judges. In contrast when conservative SC Justices overrule or change long standing laws that is not considered "legislating from the bench."

Rulings, from 1994 - 2005, found in sixty-four cases that the most inclined to strike down Constitutional laws were conservatives: Thomas (66%), Kennedy (64%), Scalia (56%), Rehnquist (47%), O'Connor (47%) with Souter (42%), Stevens (39%), Ginsberg (39%), and Breyer (28%) trailing.

Furthermore if you take a look at Chief Justice Roberts' record it shows in every major case he has sided with:

* prosecution over defendant

* state over condemned

* executive branch over legislative

* corporate defendant over individual plaintiff

Not only does that belie the notion that liberal judges are "activists" judges it shows conservative Justices are more inclined to "legislate" from the bench.

While we do not know what kind of SC Justice Sotomayor will be, there is nothing in her record that suggests she is an "activist" or biased. She adheres to precedent which is more than can be said for some of the current Justices.

[TJCole]

Lanny; when people learn she played an integral part in the horrible corrupt Kelo Decision..any right thinking America will go ballistic..

Right or left America knew how corrupt and unfair and unAmerican this decision really was...

An we still don't know if she adheres to Corporate "Personhood..!"

Ok carry on...

[MosiahGarvey]

What about this, why not take the test, work experience, and interview in a comprehensive consideration for a job. This garbage about blacks performing worst on tests is garbage, this inferiority complex MUST stop!

[LeftRight]

Considering the fact that many black people DO perform worse on tests, because of the fact that their entire education was based on them not being able to do as much....... I would say that you need to get over it!

[bannorhill]

"their entire education was based on them not being able to do as much."

So the solution is to continue "them not being able to do as much" and deny people who do more the fruits of their hard work.

[NedroidPrime]

How is that a matter of race?

I went to a predominantly black school, yet did fine. I had no parents helping me or anything.

Or could it be more of a mentality that has developed in many areas that learning is bad? Could it be something as simple as not studying and working hard?

There is no such thing as a question that a member of a certain race cannot answer. That is just a logical fallacy.