A closer look at the case that has Sonia Sotomayor under fire

WASHINGTON — In 2003, New Haven, Conn., offered a test to determine firefighter promotions. When no black firefighters scored high enough to make lieutenant or captain, the city scrapped the results. And the white firefighters who scored highest didn't get promoted either.

Those are the facts behind the federal court case known as Ricci vs. DeStefano, and you're going to be hearing a lot more about it in the coming months.

Sonia Sotomayor, President Barack Obama's choice to join the U.S. Supreme Court, was one member of a three-judge appeals panel that found that the city acted legally by ignoring the results of the test.

Conservative groups and activists have seized on the ruling as evidence that Sotomayor, a Latina of Puerto Rican descent, is "a reverse racist," as talk show host Rush Limbaugh put it. "She is not about interpreting the law, she's about making policy from an extreme radical left-wing position."

It's no wonder that many people believe the ruling was unfair. But a close reading of the case shows that it wasn't about being fair.

• • •

It seemed like a straightforward way to determine promotions to captain and lieutenant. Passing the New Haven firefighters exam would require a score of 70 or better. Under existing policy, the top scorers would be first in line for vacancies.

According to federal court records, 41 applicants took the captain's test. Most of the whites passed, but most of the African-Americans and Hispanics did not. Whites also earned seven of the nine highest scores, and there were only seven jobs open. It appeared no blacks would be eligible for promotion, and at most two Hispanics.

An additional 77 firefighters took the lieutenant's exam and, again, most blacks and Hispanics failed, while most whites passed. The top 10 scorers also were white. With just eight lieutenant jobs open, none of the minorities would have qualified.

Concerned the test might have discriminated against black and Hispanics applicants, the city's Civil Service Board held hearings in early 2004 to decide whether to certify the results.

Frank Ricci, one of the white firefighters who tested for lieutenant, told the board he knew why he passed: He had spent at least eight hours a day and $1,000 preparing for the test. A dyslexic who said he learns better by listening, Ricci paid a friend to record the study materials on audiotape.

But black firefighters, aided by a popular black minister with close ties to Mayor John DeStefano, argued something was wrong. African-American and Hispanic firefighters had done reasonably well on past tests, and in other Connecticut cities.

The city's Civil Service Board voted against certifying the test, tanking promotions for everyone. One Hispanic and 17 white firefighters, including Ricci, sued, claiming intentional racial discrimination under the 1964 Civil Rights Act.

The city, however, argued it would have faced lawsuits under the Civil Rights Act had it used a standard for promotion that appeared to discriminate against minority firefighters.

In a 48-page opinion, U.S. District Judge Janet Bond Arterton, ruled against the firefighters in September 2006.

They could not show the city "acted out of an intentionally discriminatory purpose," Arterton wrote. "Nothing in the record in this case suggests that the city defendants ... acted 'because of' discriminatory animus toward plaintiffs or other non-minority applicants for promotion."

Ricci and his colleagues appealed.

• • •

The case was assigned to Sonia Sotomayor and two other judges of the 2nd Circuit Court of Appeals in New York. In February, the panel found in favor of New Haven and upheld Arterton's ruling.

At first, the panel issued no opinion explaining its decision, opting to keep the ruling unpublished — meaning it would not become part of the circuit's case law. In June, the panel issued a published opinion that simply adopted Arterton's opinion as its own, calling it "thorough, thoughtful, and well-reasoned."

"In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives," they wrote. "We are not unsympathetic to the (white firefighters') expression of frustration."

However, because the city "was simply trying to fulfill its obligations under (the Civil Rights Act) when confronted with the test results that had a disproportionate racial impact, its actions were protected."

The judges' initial decision to rule on the case without explanation and to keep it unpublished has drawn criticism from conservative legal scholars who say the Ricci case marked a troubling example of reverse discrimination and deserved more scrutiny.

"Instead of burying the plaintiffs' claims, they should have explained why they thought the claims were unjustified," said Ed Whelan, president of the Ethics and Public Policy Center and a former clerk to Justice Antonin Scalia.

The panel's decision simply to adopt the lower court's ruling also bothered a fellow 2nd Circuit judge, Jose A. Cabranes, a Clinton appointee. He asked the full appeals court to re-hear the case, but members narrowly voted against it, 7 to 6.

"Adopting in full the reasoning of a district court without further elaboration is normally reserved for cases that present straight-forward questions that do not require explanation or elaboration by the Court of Appeals," Cabranes wrote in his dissent.

"The questions raised in this appeal are indisputably complex and far from well-settled."

He urged the U.S. Supreme Court to take the case. "Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case," Cabranes wrote in a passage often cited by conservatives as proof that Sotomayor is unfit to serve on the Supreme Court.

But Sotomayor and the others who voted against a full re-hearing had their reasons: Namely, the trial judge properly followed the guidance established under two earlier 2nd Circuit decisions that allows government employers to consider race when trying to avoid discrimination claims.

And while many conservatives contend the case proves Sotomayor is a liberal "judicial activist" intent on setting social policy, several legal experts said the Ricci ruling suggests the opposite.

"I think it's important to recognize that her instincts in the case were one of restraint," William Marshall, a law professor at the University of North Carolina, said in a conference call organized by the White House.

Independent experts, too, warned against making too much of the three-judge panel's decision to rely on the lower court ruling. That's what appeals courts often do.

The 2nd District Court of Appeals ruled on 2,859 cases last year. Of those, 381 decisions — 15 percent — came with a signed opinion, the clerk's office said.

"They don't have sufficient resources to give all of the opinions the full-dress treatment," said Carl Tobias, a law professor at the University of Richmond and a federal courts expert.

"I could understand why people are saying they're just trying to sweep it under the rug ... But when they hear 7,000 appeals during the course of a year, they've got to make some choices."

• • •

President Obama wants the U.S. Senate to confirm Sotomayor before the Supreme Court begins its next term in October. As she starts making the rounds on Capitol Hill this week, senators are sure to ask about the Ricci ruling, as well as her statement that "a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion than a white male who hasn't lived that life."

But she faces an extra bit of scrutiny, too: As Judge Cabranes had hoped, the U.S. Supreme Court took the Ricci case and heard arguments in April. A ruling is expected next month, and many scholars expect the 2nd Circuit's ruling to be overturned.

"People are going to be looking to the Supreme Court's decision in this case as some sort of objective measure of Judge Sotomayor's work, fairly or not," said Kevin Russell, a Supreme Court analyst and author of SCOTUSblog.com. "And how the court writes the opinion is going to affect the public perception."

Wes Allison can be reached at allison@sptimes.com or (202) 463-0577.

A closer look at the case that has Sonia Sotomayor under fire 05/30/09 [Last modified: Sunday, May 31, 2009 9:16am]

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