07/30/2009 05:12 am ET Updated May 25, 2011

Supreme Court Right in Principle on New Haven Firefighters' Case -- But How Will This Impact Future Affirmative Action Policies?

My first reaction to today's Supreme Court ruling that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, is that the Court probably got this one correct. My concern, however, is that a case like this will have a broad and potentially devastating affect on "good" affirmative action policies that have been slowly eroding since the 1990s.

However, by reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge, the court has set the stage for conservatives to attack Sotomayor in her upcoming confirmation hearings. I fear that her hearing will come down to "race in America" and how she views application of the law on that issue alone. Not good.

In a 5-4 decision, the court said Monday that New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results. It further said that the city had acted to avoid a lawsuit from minorities and that this was not an appropriate justification for its actions.

The ruling could alter employment practices nationwide, potentially limiting the circumstances in which employers can be held liable for decisions when there is no evidence of intentional discrimination against minorities. This concerns me deeply, as, for example, in my profession (law) -- black women and minorities make up only 3-4% of attorneys nationwide and in large law firms -- black women fare worst of all. It is the same in medicine, academia, and corporate America.

Clearly, the nation still needs policies in place that advance women and people of color, but the question is how to do so in a way that balances the need of all persons in the workplace. It is a difficult task, to say the least. But one that we must address, and in a candid and realistic manner.

Quoting the majority opinion, "Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them." Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday.

Kennedy's opinion made only passing reference to the work of Sotomayor and the other two judges on the 2nd U.S. Circuit Court of Appeals who upheld a lower court ruling in favor of the City, but the appellate judges have been criticized for producing a cursory opinion that failed to deal with "indisputably complex and far from well-settled" questions, in the words of another appeals court judge, Sotomayor mentor Jose Cabranes.

I will write more later, when I have read the opinion, but I think this nation is going to be forced to discuss race, racism, affirmative action, and how we move forward. If we do not do so in a respectful and honest manner, I am concerned that we may be getting ready to set the racial progress we have made in this country in the last 40 years back at least a generation or two if we are not careful.