Reverse discrimination? Justices weigh case

updated 7:33 p.m. ET April 22, 2009

WASHINGTON - The Supreme Court appeared divided Wednesday over whether a Connecticut city's decision to scrap a promotion exam for firefighters because too few minorities passed violates the civil rights of top-scoring white applicants.

As is often the case with closely fought social issues at the court, Justice Anthony Kennedy appeared to hold the key to the outcome. He seemed concerned that New Haven, Conn., scuttled the test after it learned that no African Americans and only two Hispanic firefighters were likely to be promoted based on the results.

"It looked at the results and classified successful and unsuccessful applicants by race," said Kennedy, who often frowns on racial classifications, yet is not as opposed to drawing distinctions on the basis of race as his more conservative colleagues.

But where Kennedy saw shades of gray, the rest of the court seemed to view the case clearly in terms of black and white.

The court's conservative bloc seemed inclined to side with the white firefighters. "You had some applicants who were winners and their promotion was set aside," Justice Antonin Scalia said.

The liberals indicated that New Haven did nothing wrong by throwing out the test over concerns that it had a "disparate impact" on minorities in violation of the 1964 Civil Rights Act.

A ruling against the city, Justice David Souter said, could leave employers in a "damned-if-you-do, damned-if-you-don't situation." Souter's comment reflected the concern of business interests who said in a court filing that a decision in favor of the white firefighters would place employers in an untenable position of having to choose whether to face lawsuits from disgruntled white or minority workers.

The discrimination lawsuit brought by 20 white firefighters — one also is Hispanic — challenges New Haven's decision to throw out promotion exams for lieutenants and captains in its fire department.

The plaintiffs, in their dark blue dress uniforms, posed for photographs Wednesday morning in front of the court.

The city argues that if it had gone ahead with the promotions based on the test results, it would have risked a lawsuit claiming that the exams had a "disparate impact" on minorities in violation of the 1964 Civil Rights Act.

The federal appeals court in New York upheld a lower court ruling dismissing the lawsuit.

The case has drawn input from interest groups across the ideological spectrum. The Obama administration has weighed in mainly on the city's side, although it recommends allowing the lawsuit to proceed on a limited basis.

Besides affecting how race can be considered in filling government and perhaps even private jobs, the dispute also addresses broader questions about racial progress: Do minorities and women still need legal protection from discrimination, or do the monumental civil rights laws that created a more equal nation now cause more harm than good?

Also, beneath the specific details of the firefighters' lawsuit lies an uncomfortable truth: On most standardized tests, regardless of the subject, blacks score lower than whites.

Looking at percentages
New Haven's population is 44 percent white, 36 percent black and 24 percent Hispanic (who can be any race). At the time of the 2003 test, 53 percent of the city's firefighters, 63 percent of lieutenants and 86 percent of captains were white. Blacks were 30 percent of the firefighters, 22 percent of lieutenants and 4 percent of captains.

The promotion exams were closely focused on firefighting methods, knowledge and skills. The first part had 200 multiple-choice questions and counted for 60 percent of the final score. Candidates returned another day to take an oral exam in which they described responses to various scenarios, which counted for 40 percent.

New Haven residents Matthew Marcarelli and Gary Tinney are on opposite sides of the lawsuit.

Marcarelli was one of the 20 white firefighters who passed a promotion exam, but then the city threw out the test because no blacks would have been promoted, saying the exam had a "disparate impact" on minorities likely to violate the 1964 Civil Rights Act.

Tinney, a black lieutenant who has been a firefighter for 14 years, was seeking a promotion to captain when he took the exam.

He says both the test and his fire department have hidden biases against minorities: The department is historically white, with the first blacks joining in 1957, and jobs, relationships, knowledge and choice assignments are passed on from friend to friend and generation to generation.

"I just call it 'the network,'" Tinney says.

The white firefighters' attorney, Karen Torre, said they would not be interviewed for this story. In a conversation on Fox News' "Hannity" program, Marcarelli said it was "gut wrenching" to learn that he was No. 1 on the test but would not get promoted.

"It's something that shakes what you believe in. Because you believe if you work hard, you're rewarded for that, and that's not necessarily the case," Marcarelli said.

Torre said whites have no special advantage in promotions because of laws requiring use of a race-blind, score-based system. She added that many blacks have relatives on the force, including high-ranking officers.

One hundred and eighteen people took the tests; 56 passed. Nineteen of the top scorers were eligible for promotion to 15 open lieutenant and captain positions. Based on the test results, the city said that no minorities would have been eligible for lieutenant, and two Hispanics would have been eligible for captain.

The exams were designed by a professional testing firm that followed federal guidelines for mitigating disparate racial outcomes, the plaintiffs say.

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