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Sonia Sotomayor

Firefighter Discrimination Case at Center of Opposition to Sotomayor

May 29, 2009 07:30 AM
by Denis Cummings
Criticism of Supreme Court nominee Sonia Sotomayor’s record has been focused on her decision to reject an appeal by a white firefighter in the controversial reverse discrimination case Ricci v. DeStefano.

Sotomayor Faces Criticism Over Ricci Case

Sonia Sotomayor, recently nominated to the Supreme Court by President Obama, is likely to be confirmed by the Senate’s Democrat majority. She will face tough questions from Republican senators over her judicial record, however, particularly her decision not to hear an appeal in a racial discrimination case, writes CQ Politics.

In Ricci v. DeStefano, 17 white firefighters and one Hispanic firefighter filed a lawsuit against the city of New Haven, Conn., after the city denied them possible promotions based on a written test taken by over 100 firefighters. After just two Hispanic and no black firefighters scored highly enough to warrant a promotion, the city deemed the test to have an adverse impact on blacks and Hispanics, and disregarded the results.

Sotomayor, as part of a three-judge panel on the 2nd U.S. Circuit Court of Appeals, was presented with the Ricci case in December 2007, after a federal district court ruled for the city in 2006. In February 2008, in an unpublished, single-paragraph per curiam decision, the panel upheld the ruling in favor of New Haven “for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below.”

A judge appealed for an en banc review, and the panel published an opinion of the case very similar to its original decision. The court in June voted 7-6 against hearing the case.

In a dissenting opinion, Judge Jose Cabranes issued sharp criticisms of the three-judge panel for failing to issue an analysis of the case. “Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case,” he wrote, adding that the Supreme Court should hear the case.

“If Sotomayor and her colleagues were trying to shield the case from Supreme Court review, her punt had the opposite effect,” writes Slate’s Emily Bazelon. The Supreme Court accepted the case and heard it in April. A decision, more likely than not in favor of Ricci, is expected in June, before Sotomayor’s confirmation hearings, writes Bazelon.

Background: Ricci v. DeStefano

In 2003, the New Haven Fire Department issued a written exam to 118 firefighters as part of a process to promote 15 firefighters to captain or lieutenant positions. Of the 19 firefighters who qualified for a possible promotion, 17 were white and two were Hispanic. None of the 27 black applicants scored well enough to be promoted.

The test, many argued, had a disparate impact against blacks and Hispanics, which is illegal under Title VII of the Civil Rights Act of 1964, explains Cornell University Law School. Disparate impact refers to a practice used by an employer that, intentionally or unintentionally, favors one group over a protected class.

“Where an employment practice has an adverse impact, it will violate Title VII unless (i) the practice is job-related and consistent with business necessity and (ii) there are no equally valid, less-discriminatory alternatives,” according to the Respondents’ brief for the Supreme Court case.

New Haven’s Civil Service Board, responsible for certifying the results, examined the case and, deadlocked over the disparate impact issue, chose not to certify the results. Frank Ricci, a white firefighter with dyslexia who spent long hours studying for the test, sued the city, accusing it of violating Title VII and the Equal Protection Clause.

Opinion & Analysis: Debating Sotomayor’s decision in Ricci v. DeStefano

Many conservatives have criticized Sotomayor’s decision on Ricci, accusing her of discriminating against the white firefighters and of not giving the case a proper examination.

Townhall’s David Limbaugh writes that Sotomayor and the panel judges “not only highhandedly denied justice to the aggrieved firefighters in this case but also tried to bury their injustice in their summary affirmation of the district court’s ruling … This is judicial activism at its most egregious and least transparent, when judges disregard the law to achieve the result they prefer and attempt to conceal their actions.”

Writing for the Christian Science Monitor, Chapman University law professor John C. Eastman says that he is troubled by Sotomayor’s unpublished decision in Ricci, as well as another unpublished decision in a controversial eminent domain case. He argues that the plaintiffs in the case deserved better than a quick rejection of the case.

“They do raise cautionary flags,” he writes, adding, “a pledge to give an objective read to the law in every case, to every party—rich or poor; union or management; black, brown, or white—should be a prerequisite to the Senate’s vote of confirmation.”

Stanford law professor Richard Thompson Ford, writing for Slate, argues that Sotomayor was correct in upholding the decision, saying, “the law against inadvertent discrimination is arguably now the most important part of civil rights law.”

Ricci is “attacking the city for considering the racial impact of the exam,” writes Ford. “And that’s exactly what disparate impact requires an employer to consider.”

The Washington Independent defends the circuit court’s per curiam ruling on Ricci, pointing out that, though per curiam rulings are uncommon for controversial cases, notable cases such as Brandenburg v. Ohio and Bush v. Gore were per curiam opinions.

“What more is there to say?” it writes of the terse ruling. “Reasonable people might disagree with the outcome … but to chastise Sotomayor because the opinion was issued per curiam seems way off the mark.”

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