06/01/2010 02:51 pm ET Updated May 25, 2011

Supreme Court Keeps Firefighters' Civil Rights Claim Alive

Once again, a city fire department is in the hot seat for employment discrimination, prompting the Supreme Court to set crucial new precedents for civil rights law. This time, thousands of black firefighters in Chicago got the green light from the Supreme Court to broaden the scope of their civil rights claim despite having passed a deadline to do so.

In contrasting the ruling with the Lily Ledbetter gender-discrimination case -- in which the court upheld time limits on claims -- the New York Times editorial board predicts:

If interpreted properly by the lower courts, the ruling could give a chance at relief to minority groups, women, the elderly the disabled and others claiming to be victims of a discriminatory employment practice long after the practice went into effect.

The case, Lewis v. City of Chicago, centered on a controversial firefighter test that systematically excluded candidates of color over a number of years. The main issue was not the discriminatory "disparate impact," which a lower court already ruled on, but the time limits attached to the case. The high court ruled that test takers could take legal action against the racially biased test even after a technical deadline for bringing claims had passed.

The immediate impact of the decision will be local, affecting several thousand firefighter candidates, who may be entitled to remedies including the hiring of about 120 Black candidates and millions in damages. But Lewis adds another crease to the bizarre patchwork of legal and political opinions surrounding the Civil Rights Act in the 21st century.

Last year, in Ricci v. DeStefano, a sharply divided bench sided with a group of mostly white firefighters who challenged the city's decision to invalidate test results that excluded blacks. Right-wing critics of the city decried the consequences of “political correctness,” while defenders of affirmative action stressed the need to hold government agencies accountable for compensating for racial inequities in the civil service.

The “disparate impact” argument in Chicago turned on arbitrary cut-offs in a written test given to 26,000 aspiring firefighters in 1995. Fran Spielman at the Sun-Times explains that in siphoning the test results:

...the city established a cut-off score of 89 and hired randomly from the top 1,800 “well-qualified” candidates.... In 2005, a federal judge ruled that the city’s decision had the effect of perpetuating the predominantly white status quo, since 78 percent of those “well-qualified” candidates were white.

Although there is a standard 300-day window for filing civil rights cases in response to an act of discrimination, Spielman continues, “African-American firefighters maintained — and the Supreme Court agreed — that a new act of discrimination occurred every time the scores were used to hire firefighters between May, 1996 and October, 2001."

Writing for the court, Justice Antonin Scalia, no friend of affirmative action, stated that while test itself was the initial discriminatory act, “it does not follow that no new violations occurred -- and no new claims could arise -- when the city implemented that decision down the road.”

While the Court's decision to uphold time limits in Ledbetter eventually prompted Congress to pass corrective legislation, the Lewis ruling appears to broaden channels for redress in the courts. Either way, it may be worth revisiting the reflections of New York University sociologist Dalton Conley on trying to litigate our way to equal opportunity. After the Ricci decision, he wrote that in the face of entrenched racial divides pervading America's public institutions—

Expecting a single test to compensate for all that is unrealistic -- silly even. This is a symptom of a larger pathology in the American psyche where our deep and abiding belief in meritocracy clashes with our culture of individualism: We expect testing (and schools) to do the work of social policy when it can't really carry that heavy a load.

But policymakers, for their part, have been less than eager to take on that load. So for now, in Chicago and beyond, the people weighed down by generations of discrimination have no choice but to look to the courts to lessen their burden.

Cross-posted from