Reverse discrimination? Justices weigh case

But after the results came back, the city says it found evidence that the tests were potentially flawed. Sources of bias included that the written section measured memorization rather than actual skills needed for the jobs; giving too much weight to the written section; and lack of testing for leadership in emergency conditions, according to a brief filed by officers of the Society for Industrial and Organizational Psychology.

"I'm sure there are numerous reasons why (blacks didn't do as well), and not because we're not as intelligent," Tinney says. "There's a lot of underlying issues to that ... these folks are saying, 'We studied the hardest, we passed the test, we should be promoted.' But they're not talking about all the other things."

Torre argues that discarding a test because no minorities would have been promoted violates the equal protection clause of the U.S. Constitution and Title VII of the Civil Rights Act, which forbids discrimination because of race.

Call it a legal riddle only the Supreme Court could solve: The white firefighters say Title VII prohibits discrimination against them for being white; New Haven says Title VII prohibits it from using a test that has a disparate impact against blacks.

"All were afforded the same notice, the same study period, the same exam syllabi, etc.," said Torre, who would only answer questions by e-mail. "The rest was up to the individual."

There are long-standing divisions over the concept of hardworking, qualified whites being "victimized" by laws or practices designed to help minorities overcome America's history of racism. What's different today is that the landscape has shifted in many ways, big and small.

The biggest is the election of President Barack Obama, and the support he received from millions of white voters.

"It is not white racism that plays the deciding role in the success of minorities any more," says Edward Blum, a visiting scholar at the American Enterprise Institute who believes that race should not be considered in employment decisions.

"That was the case in the '60s and '70s and maybe even part of the '80s," he says. "But it is no longer the case in the 21st century that because you are black you are being held back from achieving what your parents and your ambitions will allow you to achieve. I think that has been crystallized with the election of President Obama."

Justices to hear voting case soon
Obama's election has been a boon to the movement that developed years ago seeking to reshape civil rights laws designed to remedy discrimination.

Besides the firefighters' lawsuit, the Supreme Court will soon hear a case seeking to overturn a Voting Rights Act requirement that all or parts of 16 states with a history of discrimination must get approval from the Justice Department before changing election procedures. And in 2007, the court struck down voluntary integration plans in two public school districts.

Even though it may result in less opportunities for qualified minorities, "the use of race does greater harm to our social fabric by being there than by being eliminated," Blum says.

Another major shift has been in the balance of the Supreme Court. Conservatives gained a 5-4 majority during the Bush administration, although Justice Anthony Kennedy is seen as a potential swing vote.

In Chief Justice John Roberts' majority opinion in the 2007 school ruling, one line rang loudest: "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

That statement was seen as a harbinger of future rulings that would end the use of race in employment, voting and awarding government contracts. It also rebutted a famous statement by Justice Harry Blackmun in the landmark Bakke affirmative action case: "In order to treat some persons equally, we must treat them differently."

Mary Frances Berry, a history professor at the University of Pennsylvania and head of the U.S. Commission on Civil Rights during the Clinton administration, said the firefighters' case has broad implications.

"This is about whether we are going to see a sea change in how the judiciary looks at the need for these (protections), and how the popular culture and electoral politics influence their perceptions," Berry said.

Justice Dept. backs New Haven
The Obama administration has said such laws are needed and it is committed to enforcing them. The Justice Department's brief in the firefighters case supports New Haven's position that the city acted properly in throwing out the tests.

But in what many call a political maneuver designed to avoid taking sides, the Justice Department stopped short of saying the firefighters' case should be dismissed, instead recommending that it be remanded to a lower court to determine if city's decision was a pretext for intentional discrimination.

Supreme Court observers predict the firefighters' lawsuit will be decided by a 5-4 margin, with Justice Kennedy casting the deciding vote.

His past decisions give hope to both sides.

In the recent Voting Rights Act decision that made it harder for some minority candidates to win election when voting districts are redrawn, Kennedy wrote in the majority opinion that "racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions."

"It would be an irony, however," Kennedy continued, if civil rights laws were used to "entrench racial differences."

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