Supreme Court visits question of reverse discrimination

Washington Post

WASHINGTON — The Supreme Court on Wednesday searched for the line where possible discrimination against one race turns into actual discrimination against another.

Conservative justices clearly believed they have found it in New Haven, Conn. That is where the city threw out the results of the fire department’s promotional test because no blacks and only two Hispanics would have been eligible for advancement.

City officials are being sued by the white firefighters who scored well on the test and had their promotions scuttled. But the officials claim that because federal law treats as suspect tests that have such disparate impacts, they would have been sued by minorities if they had approved the promotions.

Wednesday’s intense, serious and expanded argument is the first of two the court has taken to examine the role race should still play in government policies; the constitutionality of a provision at the heart of the Voting Rights Act will be examined next week.

They come as the court has become more skeptical of such policies, and in the wake of the election of the nation’s first black president, who has urged a new conversation about the effects of past discrimination and the future of race relations.

But Wednesday’s argument quickly revealed a familiar split on the court. Liberals on the court sprang to the city’s defense, saying it should have the flexibility to discard the results of a test that seemed to produce discriminatory results.

Justice David Souter said using the test would seem to cross Title VII of the Civil Rights Act and its warning about tests with disparate impacts. Throwing out the test has led to the lawsuit from white firefighters, who claim their constitutional rights to equal protection have been violated.

“Why isn’t the most reasonable reading of this set of facts a reading which is consistent with giving the city an opportunity, assuming good faith, to start again?” Souter asked.

But Chief Justice John Roberts and Justice Antonin Scalia made clear they believed New Haven officials were only concerned that the test had not produced the outcomes they had hoped for. They sharply questioned New Haven’s lawyer, and the lawyer representing the federal government, which largely supported giving the city the right to discard the test.

Roberts asked Deputy Solicitor General Edwin Kneedler if the results had been reversed — that black applicants had scored well and no whites were eligible for advancement — “can you assure me that the government’s position would be the same?”

When Kneedler said yes, Roberts literally raised his eyebrows. Scalia went further, telling Kneedler: “I don’t think you’d say that.”

Gregory Coleman, an Austin, Texas, lawyer who opposes race-based policies and is representing both the firefighters and the voting-rights act challengers, said his clients were being punished simply because of their race.

“Racial classifications are inherently pernicious and, if not checked, lead as they did in New Haven to regrettable and socially destructive racial politics,” he told the court.

He said New Haven officials scuttled the promotions not because they found fault with the test, which they had commissioned from a private company, but because the results caused a political uproar.

Kennedy asked whether a city could take race into consideration when choosing between two tests, one of which showed a disparate impact and another that did not. Coleman eventually said yes.

Christopher Meade, who represented New Haven, said both public and private employers should have “some limited degree of flexibility” when they learn of a practice that has a “severe adverse impact such that it creates an inference of discrimination.”

The Obama administration’s position is that New Haven’s actions are justified if they were undertaken in good faith, and not as a “pretext” for simply trying to promote minorities at the expense of whites. It advised to send the case back to lower courts for a decision on that question.

The district court originally granted the city summary judgment and the U.S. Court of Appeals for the Second Circuit affirmed.

The Associated Press. All Rights Reserved.