SCOTUS Fire Fighter Ruling

**barbaro** · 30-06-2009, 01:16 AM

Can someone please clarify Sotomayer's ruling. There was discussion of it. It sounds like a decent ruling, although it was only a 5-4 decision.

Supreme Court rules for white firefighters

But high court delays deciding status of anti-Hillary Clinton movie

updated 1 hour, 58 minutes ago

WASHINGTON - The Supreme Court ruled Monday that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.
The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional.
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"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," Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

Dissenting opinion
In dissent, Justice Ruth Bader Ginsburg said 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."
Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday.
Kennedy's opinion made only passing reference to the work of Sotomayor and the other two judges on the 2nd U.S. Circuit Court of Appeals who upheld a lower court ruling in favor of New Haven.

But the appellate judges have been criticized for producing a cursory opinion that failed to deal with "indisputably complex and far from well-settled" questions, in the words of another appeals court judge, Sotomayor mentor Jose Cabranes.
"This perfunctory disposition rests uneasily with the weighty issues presented by this appeal," Cabranes said, in a dissent from the full 2nd Circuit's decision not to hear the case.

Monday's decision has its origins in New Haven's need to fill vacancies for lieutenants and captains in its fire department. It hired an outside firm to design a test, which was given to 77 candidates for lieutenant and 41 candidates for captain.

Video

Supreme Court rules for firefighters
June 29: The high court ruling is a victory for white firefighters from New Haven who claimed reverse discrimination. NBC's Pete Williams reports.
MSNBC

Fifty six firefighters passed the exams, including 41 whites, 22 blacks and 18 Hispanics. But of those, only 17 whites and two Hispanics could expect promotion.

The city eventually decided not to use the exam to determine promotions. It said it acted because it might have been vulnerable to claims that the exam had a "disparate impact" on minorities in violation of the Civil Rights Act of 1964.
The white firefighters said the decision violated the same law's prohibition on intentional discrimination.

Link & Entire: Supreme Court rules for white firefighters - White House- msnbc.com

**astasinim** · 30-06-2009, 01:24 AM

It has been decided that there are not enough minority firefighters holding rank in the UK. So what have they done? They've brought in a new fast track programme, that identifies high potential. Whats wrong with that I hear you say. Nothing at all, it sounds like a good idea to me, but, when its only really open to minorities, youve got to question theyre motives. Every single female and minority employee of a ceratin brigade, was invited to come along and take the exams, but not one single male was.
It can only really lead you to one conclusion, cant it?

**Jet Gorgon** · 30-06-2009, 04:51 AM

I applaud the SC for its decision. What a crock that first ruling was.

In dissent, Justice Ruth Bader Ginsburg said 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."

WTF does GInsberg mean here? No vested right to promotion? So, what, if her decision was upheld, any white kid who passed an exam where minorities failed would be disavowed of whatever the reward is for passing? BS.

Dam glad the voice of reason prevailed, and I hope those firefighters get their promotions.

**S Landreth** · 30-06-2009, 05:14 AM

Judge Sotomayor and the lower court panel did what judges are supposed to do, they followed precedent.

Maybe this will help answer your question: http://www.miamiherald.com/515/story/1119286.html

**Jet Gorgon** · 30-06-2009, 05:44 AM

^ Thanks, SL. I'd like to see the cases she based her "precedence" on. Still sounds bladdy racist to me.

**S Landreth** · 30-06-2009, 07:00 AM

^You might have to look deeper than the article I posted. If I can find one (in the political blogs I read) I will post it.

**Jet Gorgon** · 30-06-2009, 07:19 AM

^ Found this from Huffer:

The Ricci case was based on 38 years of jurisprudence, beginning with a Supreme Court case decided in 1971. Griggs v. Duke Power Company was a unanimous 8-0 opinion written by the conservative Chief Justice Warren Burger, appointed by Republican President Richard Nixon. It was Justice Burger who wrote: Title VII of the 1964 Civil Rights Act "proscribes not only overt discrimination but also practices that are fair in form but discriminatory in operation" and requires a job-related or business necessity reason to justify such disparate effect (and that there are no better alternatives).
Subsequently, the Equal Employment Opportunities Commission (EEOC) issued the "four-fifths rule" -- i.e., if minorities passed the test at a rate less than 80 percent of the group with the highest rate, then that test is presumptively illegal due to the "disparate effect" of the test, a presumption that could be overcome only if the employer could show there was no better job-related alternative that produced less of a disparity. While this rule does not have the force of law, courts have usually used it as an unofficial standard.
The New Haven case clearly came in far below the EEOC guideline. Less than half as many black firefighters as white firefighters passed the test.
The District Court was applying the law of the established precedents of the 2nd Circuit, as it was required to do. In two cases -- in 1983 and 1984 -- 2nd Circuit panels held that it was permissible under the then-existing Title VII to "race norm" the test results -- for example, lower passing grades for minorities to achieve a more proportionate result. Said the 1984 panel: "a showing of a prima facie case of employment discrimination through a statistical demonstration of disproportional racial impact constitutes a sufficiently serious claim of discrimination to serve as a predicate for employer-initiated, voluntary race-conscious remedies," such as "race norming."
In the New Haven case, as the court pointed out, there was no "race norming" -- the city civil service board simply decided to start over in search of more reasonable alternatives.
Thus, the New Haven District Court Judge, the three-judge panel on which Judge Sotomayor served, and seven circuit court judges who voted to deny a re-argument were all following precedent and strictly construing the underlying statute -- just like good conservative strict constructionists are supposed to do.

Lanny Davis: Sotomayor and the New Haven Firefighters Case: More Myths Than Facts

I understand the judicial "logic" here, but this is no longer applicable, is it? Dishing out jobs based on ethnicity no longer applies, does it?

**S Landreth** · 30-06-2009, 07:46 AM

and still more information to help.

Justice Kennedy’s majority opinion takes issue with the lower courts’ treatment of this case precisely once, on pages 19-20, where the Court disagrees with the District Court’s ruling (affirmed in a per curiam order joined by Judge Sotomayor) that “the Defendants’ motivation to avoid making promotions based on a test with a racially disparate impact . . . does not, as a matter of law, constitute discriminatory intent.” This is an important point of disagreement, but the District Court’s holding was effectively dictated by a prior, binding Second Circuit ruling in Hayden v. County of Nassau, which held, “[T]he intent to remedy the disparate impact of the prior exams is not equivalent to an intent to discriminate against non-minority applicants.”

(snip)

The Supreme Court is free to do just that, but lower court judges like Judge Sotomayor can hardly be criticized for following the law as it comes to them rather than anticipating the Court’s next move.

Link: Text & History » The Ricci Ruling and Judge Sotomayor

**Jet Gorgon** · 30-06-2009, 08:05 AM

^ That's clearer and unbiased. Thanks. But, the initial ruling seems to be non-sensical. I'm glad the SC overturned the ruling for that reason.

**raycarey** · 30-06-2009, 09:42 AM

Originally Posted by S Landreth

Judge Sotomayor and the lower court panel did what judges are supposed to do, they followed precedent.

yes.

this has been pointed out before on this forum.

but those who were determined to derail sotomayor's nomination (and their book licking flunkies which populate a significant percentage of the conservative element in TD issues) were not interested in the facts.

**venturalaw** · 03-07-2009, 10:04 PM

It has nothing at all to do with "derailing Sotomayor's nomination." It is based upon her dismissive approach and failing miserably in tending to her assigned task - analysis of a fairly complex legal issue in support of rendering a wrong decision. It appears that either she is incapable of properly analyzing a case, or prejudice, or both.

A Clinton appointee to the Second Circuit, Judge José Cabranes, "expressed his deep concerns about the dismissive approach utilized by Sotomayor and her colleagues in this case. Far from following precedent, Cabranes, in stating why he thought the full Second Circuit should have reviewed the Sotomayor panel’s decision, stated that “[t]he questions raised in this appeal . . . are indisputably complex and far from well-settled.” (emphasis added). He noted that the case raised issues of “first impression”—that is, questions never decided before by the Second Circuit. So much for just following precedent.
He added that Sotomayor’s panel’s “perfunctory disposition rests uneasily with the weighty issues presented by this appeal” and emphasized that in cases “[w]here significant questions of unsettled law are raised on appeal, however, a failure to address those questions-or even recognize their existence-should not be the approved modus operandi of the U.S. Court of Appeals.” He concluded with what is perhaps the core of the indictment against Sotomayor’s handling of this case: “this Court has failed to grapple with the questions of exceptional importance raised in this appeal.” White House’s Misleading Spin on New Haven Firefighters Case - Ed Whelan - Bench Memos on National Review Online

The concern that more minorities (one Hispanic passed) did not pass was the focus of the City with a concern based upon not only the makeup of the test, but also a fear of minority groups threatening legal actions. They ignored the fact as to the reasons why those who passed did so well.
The following is taken from the text of the decision:
Petitioner Frank Ricci, who is dyslexic, found it necessary to “hir[e] someone, at considerable expense, to read onto audiotape the content of the books and study materials.”App. to Pet. for Cert. in No. 07–1428, at 169a. He “studied an average of eight to thirteen hours a day . . . , even listening to audio tapes while driving his car.” Petitioner Benjamin Vargas, who is Hispanic, had to “give up a part-time job,” and his wife had to “take leave from her own job in order to take care of their three young children while Vargas studied.” Id., at 176a. “Vargas devoted countless hours to study . . . , missed two of his children’s birthdays and over two weeks of vacation time,”and “incurred significant financial expense” during the three-month study period. Id., at 176a–177a.
Sotomayor failed to perform in a manner consistent with an Appellate Court justice, much less a U.S. Supreme Court justice.

**Jet Gorgon** · 03-07-2009, 11:54 PM

^ Good info. Yes, I was shocked that New Haven withdrew the promotions and test results in fear of litigation over racial discrimination. The exam was from a thrid-party firm. This is a clear case of libbie extremism.

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