Which way will Roberts court go in racial discrimination case?

McClatchy NewspapersApril 17, 2009 

WASHINGTON — Frank Ricci fights fires, saves lives and lends his name to the most closely watched racial discrimination case now facing the Supreme Court.

The New Haven, Conn., fireman, who's white, was passed over for promotion despite outscoring other applicants, including African-American and Hispanic candidates. On Wednesday, the court led by conservative Chief Justice John G. Roberts, must determine whether Ricci's race impermissibly cost him an officer's badge.

"This is the Roberts' court first major decision on the issue of racial discrimination," noted Lia Epperson, a law professor at Santa Clara University.

Like reports of smoke in the hallway, Ricci v. DeStefano certainly has summoned a major response. Twenty-six friend-of-the-court briefs have rolled into position. Six states, including Alaska, want New Haven's promotion decisions upheld. Conservative interest groups back Ricci and the 19 other firefighters who sued with him.

Nor is the argument solely about fire departments. Sidley & Austin attorney Virginia Seitz, a former Supreme Court clerk, noted that "the case has a bigger impact" because of its potential to affect all employers.

Consequently, the Supreme Court's press office is bracing for a larger-than-usual turnout Wednesday morning — even though, with a volatile issue and a closely divided court near the end of its annual term, the ultimate decision may be less than a blockbuster.

"The court will be inclined to write a narrow opinion," predicted attorney Derek Ho, another former Supreme Court clerk.

The case arises from New Haven's efforts in 2003 to promote a new batch of lieutenants and captains.

The resulting promotional exam was the chance of a lifetime for the 34-year-old Ricci, who started as a Fire Explorer at 14 and who once was decorated for taking a trapped woman down a 35-foot ladder. Dyslexic, he devoted many hours to studying.

"I could not even find time away from the books to carve a pumpkin for Halloween with my son," Ricci declared in an affidavit.

The fire department's 100-question written test counted for 60 percent and an oral exam counted for 40 percent in the promotion decision. New Haven's critics say the city should've followed the lead of other departments nationwide, which add in additional criteria like a tactical firefighting simulation.

"Our testing process has more components than just two," noted Modesto, Calif. Fire Chief Jim Miguel. "I think our process is spread (out) so if you struggle in one part, it doesn't destroy you."

In New Haven, the passing rates of African-American candidates was only half that of the white candidates. Testing opponents call this a "disparate impact," which can be construed as discrimination.

None of the top 10 scoring candidates for either the captain's or the lieutenant's positions was African-American. Ricci's backers think this shouldn't matter.

"Forcing merit and ability to take a backseat to racial considerations would disserve public safety and efficiency by depriving the public of its most qualified servants," Ricci's attorney Karen Lee Torre argued. "Fires and disasters, unlike governments, do not discriminate based on race."

However, New Haven is also a city where 37 percent of residents are African-American, 21 percent are Hispanic — and only 15 percent of the fire department's officers are minorities. In highly charged public meetings, Boise Kimber, a key African-American supporter of New Haven Mayor John DeStefano, stressed that there were no African-Americans sitting on the Civil Service Board, which oversees promotions.

"You have the responsibility of making this department look like New Haven, and it ain't looking like New Haven," Kimber told the board at a Feb. 2, 2004, hearing, the transcript shows.

The board subsequently didn't certify the promotion test, and no firefighter was promoted.

"The city did not adjust test scores to benefit minority candidates, adopt affirmative-action policies, or engage in racially proportional promotions," argued former Clinton administration Solicitor General Seth Waxman, now representing New Haven. "Rather . . . it simply declined to use the results."

Waxman further argued that the racial disparity in test results was a "red flag" that the tests may have been flawed, exposing New Haven to a potential lawsuit under Title VII of the 1964 Civil Rights Act.

While siding with the city as a matter of policy, the Obama administration is urging the Supreme Court to send the case back to a lower court for determination of whether New Haven's refusal to certify the test results was a legitimate response to Civil Rights Act concerns, or an illegitimate capitulation to race-based political pressure.

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McClatchy Newspapers 2009

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