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Sonya Sotomayor: Reverse Discrimination Ruling Against Firefighters

Tue May 26 2009 3:00 pm
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UPDATE (June 29, 2009): See The Cardinal:
Supreme Court Reverse: Overturns Sotomayor Ruling Ignoring Firefighter Discrimination Claim …

In February 2008, Judge Sonya Sotomayor (Barack Obama’s May 26, 2009 pick for The Supreme Court) joined the unsigned opinion of a three-judge panel of the 2nd U.S. Circuit Court of Appeals to uphold a lower court’s decision to reject a racial discrimination lawsuit (Ricci v. DeStefano) that had been filed by one Hispanic firefighter and 19 white firefighters against the City of New Haven, Connecticut. The twenty firefighters were hopeful contenders for 15 open captain and lieutenant positions. In the lawsuit, the firefighters claimed they were denied promotion based on their race when the City of New Haven, Connecticut discarded a 2003 promotion exam because not a single black firefighter received a score on the exam that met the requirement to qualify to earn a promotion. Seventy-seven* firefighters took the test; 27 were black firefighters. The City of New Haven cited the Civil Rights Act of 1964 as a legal response to decide not to use the test and not to promote any firefighters. The New Haven Fire Department has a staff of about 411, with 360 personnel serving in Fire Suppression and Emergency Medical Services. New Haven is the third largest municipality in Connecticut, after Bridgeport and Hartford, with a population of about 124,000 people.

The Ricci v. DeStefano Lawsuit
The lead plaintiff in the case is Frank Ricci, who has been a firefighter at the New Haven Fire Department for 11 years. Firefighter Frank Ricci gave up a second job to use time to study for the test. Because he has dyslexia, he paid an acquaintance $1,000 to read his textbooks on to audiotapes. Firefighter Ricci also made flashcards, took practice tests, worked with a study group, and participated in mock interviews. His commitment to studying resulted in him ranking the 6th highest score, among firefighters who took the test. The city of New Haven discarded the test results to avoid an anticipated Civil Rights Act of 1964 Title VII disparate impact lawsuit brought by minority firefighters. The decision came after a rabble-rousing African-American minister, Rev. Boise Kimber, with close ties to the mayor, disrupted meetings, pressured the city civil service board, and warned of dire political consequences if the city promoted persons from the list generated by the exams

Mayor John DeStefano Jr is the major of the City of New Haven, Connecticut at the time of the firefighter promotion test, the court case, and since 1993. DeStefano unsuccessfully ran as a Democratic candidate for Governor of Connecticut in 2006, losing to M. Jodi Rell, the Republican candidate who won by one of the largest majorities in general election history.

Judge Sotomayor was chastised by fellow Clinton-appointee Judge Jose Cabranes for taking extraordinary measure to ignore and throw out claims of unfair treatment raised by firefighters. Judge Sotomayor’s panel heard a case raising important questions under Civil Rights Act of 1964 Title VII and equal protection law, but attempted to dispose of the firefighter’s arguments in a summary order. The summary order was refuted by Judge Jose Cabranes, who is the second Puerto Rican to be appointed as a judge of a United States Court of Appeals. Judge Jose Cabranes was also considered for the seat on the Supreme Court of the United States that went to Ruth Bader Ginsburg.

Defenders of the City of New Haven’s decision to discard the test claim that the test developed by Industrial/Organizational Solutions, Inc. was poorly constructed. Terminology of the test questions and answers was not specific to the language or terminology that is used locally in New Haven. For example, the use of the words “uptown” or “downtown” are not used in New Haven, but they were used in the test.

Other details of the test involved suggestions that the test should have used a weighted score similar to other communities that have had less problems with racial disparity issues. Other issues arose regarding content validity and the failure of the test designers to subject and present their methods to objective, outside fire department experts and a scientifically valid “cutoff” score — as specified in the Industrial/Organizational Solutions, Inc. contract with the City of New Haven.

Also, on admission of test writers, the test involved contradictory information, increasing the chance that items selected would potentially have “correct answers” or “incorrect answers” that were open to interpretation and dispute.

Will anyone ask why the City of New Haven decided to use the promotion exam in the first place, if there were so many problems? Wouldn’t it be better to certify the test before administering the test?

The case was in The Supreme Court Wednesday, April 22, 2009 and is awaiting a ruling. The Los Angeles Times has quoted Yale law professor Drew Days, a former chief of the Justice Department’s civil rights division, that he was surprised the justices agreed to hear the case of Ricci vs. DeStefano. Now that they have, he added, a ruling for Ricci “could have very far-reaching consequences because it may well apply to all employers.”

See also …
Supreme Court of the United States Wiki: Ricci, et al. v. DeStefano, et al.
Case issue: Whether municipalities may decline to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to charges of racial discrimination.

Supreme Court Oral Arguments April 22, 2009 (PDF) …

An Internet search for Industrial/Organizational Solutions, Inc. without confirmation whether this is the same company involved with New Haven, CT case, found the following web address:

* Some sources report that 118 firefighters completed the exam.

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