Fighting Sotomayor, Republicans Falsely Advance Fire Fighter Ricci as the White Man's Rosa Parks

When the Senate hearings on the nomination of Judge Sondra Sotomayor for the U.S. Supreme Court start Monday, one focus will be the case of Ricci v. New Haven. In Ricci, Judge Sotomayor concurred in a Court of Appeal opinion that affirmed a lower court decision that the New Haven Civil Service Board ("CSB") was entitled to hold a new exam when it determined that the old exam measured skin color more than it measured qualifications to be a lieutenant or captain in the New Haven Fire Department.

The Court of Appeal decision is not unsympathetic to Ricci. It just holds that the CSB had the discretion to hold a new test in light of the clear disparate impact and the evidence that the test was not sufficiently job related to provide justification.

We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. Ricci v. DeStefano, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D. Conn., Sept. 28, 2006). In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. 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. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

What Judge Sotomayor did not know was that the Supreme Court would use Ricci as a white person's manifesto, holding that acts taken to combat discrimination should be suspected as acts "because of race," that themselves must be justified by "strong evidence." In practice, the Supreme Court actually applied the dubious and unachievable "enough evidence to leave Justices Scalia and Alito without any doubt" test.

In fact, the Ricci decision that Judge Sotomayor joined in affirming was unremarkable. The New Haven Fire Department, once virtually all white like many fire departments, has progressed by 2003 to 30% African-American and 16% Hispanic. However, the lieutenant and captain positions remained disproportionately white, with the senior officers 9% African American and 9% Hispanic. Only one of 21 captains was an African American. For reference, the overall population of New Haven was 40% African-American and 20% Hispanic.

Against this background, New Haven commissioned new tests for Fire Department lieutenant and captain. Apparently, the tests were multiple choice. It is unlikely that such memorization tests truly discern whether a person has what it takes to be a fire department officer, which has been described as "steady command presence, sound judgment and the ability to make life-or-death decisions under pressure."

The results were racially disparate with African-Americans and Hispanics passing at a rate of half or less than Caucasians. Because promotions had to be made from the top three on each test, although there were qualified African-Americans and Hispanics from the testing, the 8 new lieutenants would all be white and two Hispanics and no African Americans would be eligible for the 8 captain positions.

This is a classic case of "disparate impact," in which whites did disproportionately better than minorities. Intent is irrelevant given the result, and under established law, such a result can be justified only if the test can be shown to actually measure the characteristics needed to be a fire department officer. Ricci's lawyers and the Supreme Court majority acknowledge this standard.

As a practical matter, previous tests in New Haven had resulted in somewhat more eligible minority candidates and different tests in nearby Bridgeport had resulted in minority firefighters holding one third of the lieutenant and captain positions. The question thus was whether the New Haven test measured job related qualifications or not.

The CSB held several hearings, listening to testimony from the company that developed the test, experts and others. If you read the trial court opinion and all of the Supreme Court opinions, it is hard to avoid the conclusion that there was enough evidence to support a decision to use the test and also, certainly, enough to support designing a new test.

The company that developed the test appears to have gone about it in a thoughtful way, but some questions were inappropriate and the 60% weighting of the written part of the test, based on the collective bargaining agreement with the white dominated union, was inherently questionable. Bridgeport for example, placed greater weight on the oral portion to reflect the real life conditions of firefighting and resulting in more even performance among ethnic groups.

Eventually, the CSB deadlocked 2-2, meaning that the test was not approved and a new one would be developed and held. This decision was upheld by Judge Sotomayor's court as a reasonably supported by the evidence.

Justice Ginsburg, speaking for three other Justices in her heartfelt Supreme Court dissent, goes over the hearings and the reasons given by the CSB members, oneof whom was predisposed to approve the test, but ultimately changed his mind. She convincingly describes a thoughtful decision by a deliberative body that she, and Judge Sotomayor thought should be upheld.

Justice Kennedy and four others disagree. They characterize the decision to hold a new test as a race based action that must be justified by "strong" evidence. In their Sean Hannity world, attempts to ameliorate historic racism actually are discrimination themselves and civil service tests that mainly measure race and not qualifications are just a fact of life. Mr. Ricci, or at least some white people since his performance on the test did not guarantee a promotion, somehow obtained a vested right to become fire department officers even though half of the CSB felt that the test could not be sufficiently related to job skills to justify the unquestioned discriminatory effect.

But wait, there's more. Justice Alito, joined by Scalia and Thomas, blames the whole kafuffle on a black reverend who argued colorfully for the test to be thrown out and that for too long, the senior officers in the New Haven Fire Department had been white, and, perhaps, white Italian-Americans. These three assume and assert that the CSB knuckled under to this pressure. Apparently one does not need "strong evidence" to make these kinds of charges.

Although this sort of scared reasoning may appeal to white workers looking for a scapegoat for their lot in life, we expect more of Supreme Court Justices. Sean Hannity more or less held a victory parade for Frank Ricci and the "New Haven 20." Pat Buchanan and George Will weighed in on behalf of white people.

Of course, Judge Sotomayor was right on this on as were the four dissenters on the Supreme Court. There was plenty of evidence to support the CSB decision to seek a test that would better measure job qualifications.

But what about nice Mr. Ricci, the dyslexic Italian American lionized by Charles Krauthammer and others as the victim? Like Joe the Plumber, Ricci is not quite what he seems. As Dahlia Lithwick reported Friday, Ricci has made something of a career of being aggrieved. When he was not hired in 1995 by the New Haven Fire Department as a 20 year old (as 1 of 795 candidates seeking 40 jobs), he sued, claiming that the reason he was not among the elite was that he had mentioned his dyslexia during an interview.

The suit settled in December 2007 and Ricci received a job in the New Haven Fire Department and $11,000 in attorneys fees, This was a good thing for Ricci because he seems to have been fired by Middletown's South Fire District in August 1997. The reasons were not disclosed, but Ricci charged it was because the union had appointed him to investigate safety conditions at a fire.

In 1998, Ricci challenged his Middletown dismissal and started a campaign asserting that the fire chief' was not qualified for his position. The Connecticut Department of Labor Investigation ruled that Ricci's firing was justified. Ricci vowed to challenge his termination in court, but it is unclear if he ever did so.

This was the start of Ricci against the world. The news articles contain statements by Ricci extolling his own credentials. I am just relying on what is in the newspaper, but Ricci's New Haven complaint filed on January 19, 1995 says he was twenty years old on that date and a Hartford Courant article on August 8, 1997 says he had 8 years firefighting experience in Maryland before joining the Middletown department "according to sources within the fire department." Figuring like Columbo, this would mean that he joined the fire department during middle school. I end up pretty confused.

Ricci is such a hero that the Republicans are going to call him to testify. This is a delicate subject, as can be seen by the comments that Lithwick's article has drawn, but Ricci has fought his fourteen year battle against discrimination in public, and it is only fair to examine whether he really is a victim, both as a matter of Constitutional law and personally. Or is he exactly the type of litigious individual that Republicans rail against. No problem there, but they may have trouble getting their story straight.

In fairness, the Hartford Courant reported in November 1998 that he saved a woman's life as a New Haven fire fighter and I do not question that he is a brave and skilled fire fighter. I question whether he has a lawsuit that should make him the white man's hero.

But I digress, annoyed by Fox News and its ilk. The real question is whether Judge Sotomayor should be affirmed. As the above indicates, on Ricci, she is in line with four of the nine current members of the U.S. Supreme Court. It is not she who is starting a race war. Those who insist that actions may not take race into account, even to remedy situations where minorities are clearly disadvantaged, are the true activists, thwarting the Civil Rights Act and the Constitutional provisions on which it is based.

Right to a multiple choice test vindicated. AP Photo

Follow Stephen Kaus on Twitter: www.twitter.com/stephenkaus

Comments

[BruntLIVE]

Fire Departments are the last gasp for some racist whites. Taking over from automobile line manufacturing. We see what happen to that .

[jamiemadrx]

Wasn't there a Hispanic guy at the confirmation hearing backing the white guy? Must have been a Fox News trick. Oh wait, I saw that on cspan. Sotomayor is as racist as limbaugh. Or anyone you care to name.

Just remember not all whites are racist. I'm not. I never owned slaves, I share fountains and toilets, and I work with other races. I do my best. We're all people damn it. Why is that so hard to understand. I'm just so tired of being looked down on cause I'm white by the other races because they are tired of being looked down on.

There is no win to this. Why? Who knows. I wish that I could just use some sort of magic to make things equal. But I don't think any side wants equality. Which sucks. Someone said on another article that in 30 or 40 years we will look back and remember how ridiculus this is. Waiting patiently.

[Vieweraudience]

Changing the rules of the game after the results are in will always smack of unfairness, whether it's done on the playground, at the Olympic games (remember the 72 basketball finals), or on the job.

[EZD]

I have finally decided that no matter what you do there is always a reason to look over your shoulder in this country...I guess there is no one alive that still that remembers that miniorities have not had an easy time in this country. Certain laws and requirements were put in place to try and at least move in a direc tion toward equality. But their are people who like to feel wronged even though their race has had the upper hand in this country since it was founded...but we are suppose to except at face value that a white man (who is dyslexic) proves that miniorities can not even out score a white man with a handicap without cheating. I have seen how public safety jobs can be manipulated...oh forget it.

[Malkin71]

Can you explain how a handful of white people "running the world" is of ANY benefit to the other 99.9% of white people in America?

[LMPE]

In the Fox Noise world view, history has been a series of oppression against whites by blacks, Latinos, Indians and Asians.

[Gidster]

Facts have never played a large role in Republican hyperbole!

Their propaganda arm is very busy justifying the Bush administration's lawbreaking, and the slandering of a respected judge!

[AirForceBlue]

"slandering of a respected judge." Obviously a biased opinion, not in accord with the complaints of co workers and attornies who had to endure an audience before her. Senator Graham read various comments about the judge, including, " a bully, arrogant, uncooperative with colleagues, thinks only about herself, ad nauseum.

Kinda reminded me of the propaganda arm of the Democrat senators grilling Aliota, then Roberts. Cuts both way, don't it?

[AirForceBlue]

"irritated by Fox News, and its ILK"......­..........­......... how so very revealing.

Anyway, firefighting is not a science, it is a difficult to master craft learned through books, training and experience. As I understand it, those eligible to take the advancement test must voluntarily apply, are judged on qualifictions' eligibility to take the test, and then contend with others. So we are to believe that if a firefighter reflects eligibility with the aformentioned, he/she can then be enabled to fail through test shenanigans. Especially since the candidates are generally advised of the topics to be covered beforehand. Yeah, sure.

[Guitanguran]

"Of course, Judge Sotomayor was right on this on as were the four dissenters on the Supreme Court."

Ginsburg at least required the city to produce some evidence that the test was invalid. The Sotomayor panel required no such evidence at all.

Strike 1

"...Ricci has made something of a career of being aggrieved."

How many aggrievements is Mr. Ricci allowed? More or less than anyone else?

Strike 2

"...CSB knuckled under to this pressure. Apparently one does not need "strong evidence" to make these kinds of charges."

What? Like this has never happened? Didja' think maybe historical precedent on how these kinds of interventions by religious figures prompted them to in fact throw out the test? Was it thrown out before or after intervention by the reverend? Cause and effect.

Besides, when is it the purview of the religious leaders to inject themselves into a government issue?
What happened to sep of ch and ste?

[Rrhain]

You forget that the Circuit court is not allowed to overturn precedent. That's what the Supreme Court is for. Sotomayor's decision was the right one: According to Supreme Court precedent, denial of Title VII violations was the only result. If Ricci et al. wanted injunctive relief, they needed the Supreme Court to overturn precedent.

[Guitanguran]

The point made in the article was that the minority opinion and Soto were on the same page, to give some cover that she was right along with Ginsburg et al, and that it was just the conservative majority on SCOTUS that over-ruled.

They were not.

[dwillisno1]

So if the Ricci decision makes Sotomayor unfit for the Court, should we not impeach the four Justices who dissented? How about all the lower court judges who also agreed with her, or more precisely with whom she agreed?

[jsgaetano]

We need a "rule of law" type like Sotomayor to reign in the conservative activist judges currently sitting on the SCOTUS.

Especially in light of the completely insane, and contrary to the law, rulings which have been coming out of that place recently.

[joemondo]

I support Sotomayor and feel she should be approved.

But I also think the SCOTUS made the right decision.

Turning Ricci into a villain isn't called for any more than turning Sotomayor into one is.

[jsgaetano]

How did the SCOTUS make the right decision? They just gave approval, once again, to companies engaging in racial discrimination.

Now, after their ruling, it's perfectly legitimate for companies to skew their tests to favor whites. Just like with the ruling before that, where they said it's ok for counties to exempt themselves from the Voting Rights Act, even though the law itself gives no allowance whatsoever for such an exemption.

That's what conservatives call "activist judges"- they won't follow the law, and base their rulings on what they wish it would say, rather than what it does say.

Funny how conservatives seem to love judicial activism with conservative judges.

[EndRacismNow]

Please I would like some concrete evidence how an exam that tests firefighters knowledge can be written in a way to dupe minorities. The answer is you have no evidence. If the test was somehow written for white people than why wasn't that test presented as evidence in the case? People try to blame poor test scores of minorities on the test rather than blaming themselves. The dissenters on the court should be ashamed of themselves because instead of equality under the law they stood up for giving preferential treatment to one race over another. Liberals want to chop the white man down to bring up the minority rather than treating people equally. It is some twisted logic.

[Rrhain]

Hold on a second: What, exactly, do you think this ruling did? The result was that the threat of a Title VII lawsuit is not sufficient. Instead, the SCOTUS said that the city should have left themselves open to a lawsuit and fought it there.

This is part of the problem regarding this case (and bad cases make bad law): The plaintiffs immediately ran to court rather then following the system and then having a suit based upon actions taken by the city. That is, Ricci et al. went to court as soon as the test results were thrown out but before any action was taken with regard to what to do in the absence of the test. The city's response was that they were worried about a lawsuit if they didn't throw out the test and the SCOTUS basically told them, "Then you should have let the suit happen and fought your case there."

I don't rightly know if the majority opinion is good or bad. Again, bad cases make bad law and this was a bad case.

[DannyDanson]

This isn't about Ricci, and it never was, the "diseparate impact" clause is clear on this one, its all about outcomes not intentions, and of course the New Haven Fire Department didn't intend for the test to have a "diseparate imapct" on African Americans, but the law doesn't require that "strong evidence" of that intention be presented to jusitfy the courts decision, only proof of the diseparate "Outcome" (i.e no African Americans passing the accessment)

I sure hope that those minority candidates bring a "Civil Rights Act, title XII, diseparate impact" lawsuit agaisnt the city of New Haven, and just KNOW they WILL WIN unless Alito and gang chooses to show their 2-faced activism to the public, it's going to be so great to see this federalist supreme court, eat their words, and have to admit that this was a frivilous lawsuit that was won on a technicality and in doing so will have cost the City of New Haven revenue during the worst economic cycle in my lifetime.

Keep digging your holes, faces will get planted once this once begins.

[Photofarm]

The problem is the assumption that unless a test has a predetermined outcome of x% being minority passing, the test is flawed.

The problem with this logic is that someone doesn't have to be the best entire group, they just have to be the best of the minority group to get promoted.

It really doesn't matter how you design a test, it is hard to put true leadership skills on a written test. Two people can have the same knowledge, but one can motivate people to improve themselves, while one has a harder time motivating people. That is just the way it goes, no evil or racist thinking about that statement.

[Curdleberg]

Well said

[steamboat]

Having said what you said, fact is, Ricci is the guy who PASSED the test, plus he had the EXPERIENCE and QUALIFICATIONS for the job.....So he should NOT have been denied due to his skin-color, which he was.

[liz]

He was not denied anything. He may or may not have been promoted if the test had not been thrown out. He may or may not have passed the test that replaced the unused test. We do not know what would have happened if the suit were not filed. I wish everyone would make an effort to understand the facts of a case and not just put out a knee-jerk reaction. Clearly this is a serious issue that deserves serious thought, not partisan bickering,

On a side note I lived in New Haven for several years, and found it to be one of the most racist places I have ever been, once one wandered out of the University community.

[DannyDanson]

Sure and let's just overturn the Civil Rights Act and pretend that this country doesn't have a history of systemic racism, oppression, and disenfranchising minorities, lets sweep it under the table and teach our children nothing but American Exceptionalism, sure they will understand why African Americans are disproportionately incarcerated, uneducated, under, and unemployed, more prone to illness, and destined for poverty.

Sure lets just let those that come after us find the jusification for minority disillusionment, in egenics like they did during Jim-Crow, maybe they can find a final solution to the Black problem then, or at lest justify the mode of thought.

Before you continue speaking on what you have not looked into maybe you would be wise to look into the research data on intelligence, and standard testing inconsistancies based on race, you may be surprized to find out that this research is decades old and legitimate in many cases, many of these test are ethno-centric, meaning created predominately by one ethnicity and have been shown to unconciously and unfairly give a advantage to memebers of that ethnic group, but long as it's good for you it's fine right!

[DannyDanson]

Ignorance is invisible to the ignorant!

It just makes everyone else's points sound ridiculous, if you can't disprove or even restate my point logically and highlight where my logic is faulty and or weak, then chances are you are completely ignorant of the logic behind my point, and have never understood the basis for my argument at all, and thus have no point to arguing against it.

Why don't you just look up the:

"Title XII, Diseparate Impact Clause"

before you hop in practice all willy nilly, spouting the conventional wisdom you got from FoxNews.

Geez, this is pointless.

[yliza]

The flaw in your thinking is that it is reasonable for White people to do better on the exams than People of Color. Neighboring Bridgeport managed to promote more minorities to senior positions, why was New Haven lagging behind?

Bridgeport relied more on an oral portion of the exam, according to this article. New Haven wanted to do something similar, rather than putting so much emphasis on the essay portion. Such a change would help both minorities and White people from poorer neighborhoods who are good firefighters but cannot write well.

[Skepticat]

People who do better on multiple choice tests regardless of race usually have more test writing experience and often the edge of more formal education which helps in interpreting tricky questions. This doesn't necessarily make you a better officer on Aerial 12 or Engine 34. The ability to explain orally might indeed improve scores for anyone lacking the same formal education and should be an important part of the evaluation.
If you can't explain what you want the troops to do and be understood - eventually someone will get hurt. Unfortunately as you move up the fire service career ladder you do need more information reading and processing skills - MSDS, instructions for dissembling machinery to rescue a trapped worker, code enforcement if you're doing prevention as a company officer. It gets much worse at the chief officer level.

[joemondo]

The oral also gives the employer more opportunity to lean in favor of someone based on race.

[IAFFFireman]

THERE WAS NO ESSAY PORTION!!!!!!! The test was multiple choice and a weighting of 60% is by far the national standard! Again, before you criticize the test, understand the basic concepts behind the test and even what the test was!

Once again I will ask, isn't it possible that the top 20 regardless of skin color, studied harder?

[stefiz]

stay classy GOP!!
i am sure this will help you get the Latino vote you so desperately need in 2012/2016

[NYCexile]

Mr. Ricci, like him or not, isn't being nominated to the Supreme Court, Judge Sotomayor is. This decision, along with the rest of her work on the bench is relevant. And considering the level of vitriol directed towards Mr. Ricci, many on the Left agree.

At worst, this will delay her confirmation for some posturing. She'll make it, just as Justice Thomas did.

Try to stay classy, and try to remember that discriminating against anyone, regardless of skin color, is still racism.

[DannyDanson]

Just make sure what your talking about is actual Racism,

Racism is rooted in an act of discrimination, that act has to be based on a socially accepted prejudice, which by definition is unfounded.

The civil rights acts, does formalize an act of discrimination in policy, but that discrimination is based on a accepted history of sytemic racism in this country and does not mandate the "special consideration" of every minority applicant rather it sets reasonable diversity requirements pegged to the minority population in a given region, not a prejudice against white people per se, as those on the Right or Mr. Ricci would have us believe.

To dis-validate the grounds for affirmative action, or Civil Rights Legislation one would have to present "strong evidence" that the remnants of systemic racism not longer existed, and such is not the case, that doesn't mean that a group of secret Racist are facilitating racism behind the scenes, rather only that the "diseparate impact" of sytemic racism still exists in our society.

Anyone who legitimately proves that has my support on overturning affirmative action, so get to it, and cut the thoughless rhetoric.

[DietrichMoody]

Justice Ginsberg was correct when she labeled the whole offense by Sotomayor's detractors, as Ridiculous. Those with, as you distiguish, a "white person's manifesto" have always made a big deal out of the ridiculous. Making a big deal out of the ridiculous, is how they continue to try to make everyone else feel exotic, converse, and not status quo. Look at the ridiculous reaction to Sotomayor's remarks about Latina women. It was passed to appear as those were exotic remarks.

Affirmative actions have been repeated for centuries. As someone told me once, Affirmative Action policies for women and minorities are there to keep people "from doing bad." However, designed testing, standardizations, cronyism, and subjective appraisals have been in existence for centuries "just to keep" certain people.

[steamboat]

During the primary season last year, President (then candidate) Obama said, "I'm for affirmative-action. But I want affirmative-action based solely on economics. As example, a poor white should be considered before a middle-class black man or woman." ...I agree with Obama on that thinking

[scrutiny1]

I'm sure you do.

[DannyDanson]

Exactly, so if the firehouse officers and captains are recieving higher paying positions at a rate higher than minorities given their population density in that region based on the "diseparate impact" of a standardized test that fails to meet the requirements of Title XII of the civil rights act:

then the President's requirement to uphold affirmative action legislation is intact, wouldn't you agree?

Non-issue Guy!