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

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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.

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Right to a multiple choice test vindicated. AP Photo