High court asked to untangle reverse discrimination case

WASHINGTON (CNN) -- The Supreme Court's conservative majority expressed varying degrees of concern Wednesday over a civil rights case brought by 20 firefighters, most of them white, who claim reverse discrimination in promotions.

The suit was filed in response to New Haven, Connecticut, officials' decision to throw out results of promotional exams that they said left too few minorities qualified.

At issue is whether the city intentionally discriminated, in violation of both federal law and the Constitution's equal protection clause.

The high court is being asked to decide whether there is a continued need for special treatment for minorities, or whether enough progress has been made to make existing laws obsolete, especially in a political atmosphere where an African-American occupies the White House.

As is true in many hot-button social issues, Wednesday's arguments fell along familiar ideological lines, with most justices expressing clear views on when race considerations are proper to ensure a diverse workplace.

"It looked at the results and classified successful and unsuccessful applicants by race," said Justice Anthony Kennedy, head in hand. "And you (the city) want us to say this isn't race? I have trouble with this argument."

But a ruling against the city could leave New Haven officials stuck in a "damned-if-you-do, damned-if-you-don't" situation, subject to lawsuits from both minority and majority employees, said Justice David Souter. It is a situation business groups and municipalities have long expressed concern about.

Key plaintiff Frank Ricci and others took promotional exams in 2003 for lieutenant and captain positions that had become available in New Haven, Connecticut's second-largest city. The personnel department contracted with a private firm to design an oral and written exam. When the results came back, city lawyers expressed concern about the results because none of the black firefighters and only one Latino who took the exam would have been promoted.

The New Haven corporation counsel refused to certify the test and no promotions were given. The record does not indicate how many firefighters took the two tests for promotion to captain and lieutenant.

The city said that under a federal civil rights law known as Title VII, employers must ban actions such as promotion tests that would have a "disparate impact" on a protected class, such as a specified race or gender.


But a group of firefighters sued, calling themselves the "New Haven 20." The plaintiffs, wearing their dress blue uniforms, posed on the high court steps after the 75-minute argument. Nineteen identify themselves as white while one says he is Hispanic-white.

Inside, conservatives on the high court questioned whether the city could throw out the results of the promotion exams after they were already given.

"You had some applicants who were winners and their promotion was set aside," said Justice Antonin Scalia.

Chief Justice John Roberts offered a hypothetical: "Jones, you don't get the promotion because you're white ... and they go down the list and throw out everybody who took the test. That would be all right," he asked. "They get do-overs until it comes out right. Or throw out this test, they do another test. Oh, it's just as bad, throw that one out."

Christopher Meade, arguing for New Haven, said, "The city has a duty to ensure that its process is fair for all applicants, both black and white."

Justices on the left seemed to support that view.

High court asked to untangle reverse discrimination case