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Justices Rule in Firefighters Bias Case, Bid Farewell to Souter
The National Law Journal
June 30, 2009
In a dramatic ending before it recessed for the summer, the U.S. Supreme Court on Monday ruled, 5-4, that the city of New Haven, Conn., violated the civil rights of white and Hispanic firefighters when it tossed out the results of a promotion exam after no African-Americans had passed it.
The city argued it discarded the results because it feared that it would be sued by the African-American applicants for violating Title VII by relying on a test that had "disparate impact" on minorities. That justification did not meet the Court's standard announced on Monday, which requires a "strong basis in evidence" before an employer can make employment decisions based on fear of Title VII liability. The Court said instead that the city's action was based on race and amounted to a "disparate treatment" violation of the same civil rights law.
The ruling in Ricci v. DeStefano (pdf), written by swing Justice Anthony Kennedy, was immediately denounced by civil rights advocates as a blow to employers, public and private, who are trying to equalize job opportunities for minorities. "We still have far to go to fulfill Title VII's promise of equal employment opportunity. This is a giant leap backward," said Sarah Crawford of the Lawyers' Committee for Civil Rights Under Law. "The Supreme Court's interpretation imposes new burdens on employers and makes it more difficult to maintain a discrimination-free workplace," said John Payton, president of the NAACP Legal Defense and Educational Fund.
The ruling also had a quick, if uncertain, impact on the Supreme Court nomination of Judge Sonia Sotomayor of the 2nd U.S. Circuit Court of Appeals who was part of a panel that upheld New Haven's action. (Monday was the final day on the bench for retiring justice David Souter, whom Sotomayor will replace if confirmed. )
"Judge Sotomayor's reading of the law undermined the Constitution," said Roger Clegg, president and general counsel of the Center for Equal Opportunity, which opposes affirmative action programs. "Today the Supreme Court sent a clear message that there is nothing in the Constitution's text that suggests an exception when discrimination is of a politically correct variety."
Jay Sekulow of the conservative American Center for Law and Justice said Monday's ruling puts Sotomayor's views on judicial activism "front and center" at her confirmation hearing, which is set to begin on July 13.
But Thomas Goldstein of Akin Gump Strauss Hauer & Feld said the ruling "doesn't call the confirmation into question, and I don't think it will persuade anyone to change their views."
Also on Monday, the Supreme Court ruled, 5-4, in Cuomo v. Clearing House Association (pdf) that the National Banking Act does not pre-empt enforcement of state fair-lending and other consumer laws against national banks. Conservative Justice Antonin Scalia wrote the opinion, joined by moderate-to-liberal colleagues John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.
In an unusual disposition of its other pending case, the Court scheduled a new hearing for Sept. 9 in Citizens United v. Federal Election Commission, on whether the so-called "Hillary movie," a movie critique of then-presidential candidate Hillary Clinton, violated campaign finance laws. The Court's action puts the case on the docket in an odd limbo period during the Court's usual summer recess. The justices may hope that by scheduling new arguments for Sept. 9, they can issue a decision by the time the current term ends just before Oct. 5.
