Divided court backs white firefighters in 'reverse discrimination' case (June 29, 2009)

On the final day of the term, a Supreme Court divided along familiar ideological lines held that city officials cannot decline to certify results of a civil service exam that would make disproportionately more white applicants eligible for promotion.

Four years ago, 19 white firefighters and one Hispanic firefighter filed suit against the city of New Haven, Conn., arguing that they would have been promoted if the city hadn’t tossed out the results of two tests for lieutenant and captain because no black candidates had performed well enough to qualify. Fourteen of the top 15 candidates for the promotions were white, based on scores.

City officials held that the exams were unfair to minority firefighters and the city faced potential lawsuits if promotions were carried out. A trial judge on the U.S. District Court for the District of Connecticut upheld the city's action and dismissed the case.

In June, a three-judge panel on the U.S. Circuit Court of Appeals for the Second Circuit affirmed the dismissal. Breaking from other courts of appeals, the Second Circuit held that a promotion examination’s unintended disproportionate racial results permit city officials to reject successful candidates based on race. The court further held the Equal Protection Clause inapplicable to such actions.

By a vote of 7-6, the full court declined to rehear the case. In a 12-page dissent from that denial, Judge Jose Cabranes wrote that “this court has failed to grapple with the questions of exceptional importance raised in this appeal.” He added: “If the Ricci plaintiffs are to obtain such an opinion from a reviewing court, they must now look to the Supreme Court. Their claims are worthy of that review.”

On June 29, the Supreme Court reversed and remanded the case in a 5-4 opinion by Justice Anthony Kennedy.

"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," Kennedy wrote.

In an interesting twist, Supreme Court nominee, Judge Sonia Sotomayor, sat on the Second Circuit panel that dismissed the firefighters' claims.

Justice Antonin Scalia filed a concurring opinion. Justice Samuel A. Alito also filed a concurring opinion, in which Justices Scalia and Clarence Thomas joined.

Justice Ruth Bader Ginsburg filed a dissenting opinion, in which Justices John Paul Stevens, David Souter and Stephen Breyer joined.

In the sharply-worded dissent, Ginsburg noted that the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them."

Question presented: 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.