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Monday, July 13, 2009


PJP faculty member Harold Schramm defends Sotomayor’s controversial decision in the Ricci case

No doubt we will be hearing a lot about the New Haven Firefighters’ case this week as Supreme Court nominee Judge Sonia Sotomayor goes before the Senate. The Second Circuit decision, written by Sotomayor, was overturned by the Supreme Court, 5-4. But I believe that Judge Sotomayor and her court had it right. Precedent on this subject was clear and it was with the city of New Haven, not the claims of white firefighters that they had been unfairly passed over for promotion.

Justice Ginsburg hit all the important points in her dissenting opinion to the High Court’s decision. Despite the personal appeal of the petitioners and their claims of extraordinary sacrifice to succeed in the examination process, the objective facts support an emphasis on the Court’s precedent in similar cases (See Griggs v. Duke Power Co., among others). In Griggs, the Court determined that Title VII of the Civil Rights Act prohibits employment tests (when used as a decisive factor in employment decisions) that are not a “reasonable measure of job performance.”

The history of firefighting in the United States and in New Haven specifically supports a very real Title VII concern that discrimination still exists in this area of public employment. In addition there is very real evidence to support the argument that the test (remembering the distinction outlined by Griggs above) was flawed. What is important here is the reality of the makeup of the supervisors of the New Haven Fire Department and the relative absence of representatives of ethnic and racial minorities in those positions. Ginsburg cites the fact that only one of the Department’s 21 captains is African-American and considers this, as against the overall population of the City, “entrenched inequality.” One out 21 for a city that is nearly 40 percent African-American? Yes, I, too, would call that “entrenched inequality”!

The City here followed the contractual, historic reliance on traditional competitive examinations. The results of such tests produced “stark disparities” in ranking, and gave rise to a voluntary concern by the City for Title VII’s disparate impact provisions. What is being sought in this process and in others like it is a “race-neutral means to increase minority … participation”. The circuit court’s decision was not a call for a quota system.

The result of cases like this can only be seen as lose-lose situations where no one comes out as a victor and no real remedies are offered. New Haven’s firefighters are really no better off now than they were when this suit was initiated. What promotional procedures lie ahead we do not know.

The City had good fear of disparate impact liability and should have had its day in court on this issue. Moreover here the Court continues a denial of equal opportunity to groups long held back by tests which shut out candidates who may well have the command presence and practical skills needed for the supervisory positions. Confirm Sotomayor? Yes, we need more voices on the Court who see the law within the context of its social impact.

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