- The Washington Times - Thursday, April 23, 2009

The Supreme Court heard arguments Wednesday over whether New Haven, Conn., city officials were acting reasonably or in a racist manner when they tossed out a promotion test that produced better results for white firefighters than black firefighters.

In the case of Ricci v. DeStefano, 19 white firefighters and one Hispanic say they should have been promoted based on their successful scores, but the city argued that certifying the tests would have left them vulnerable to lawsuits for violating Title VII of the Civil Rights Act if the white firemen were promoted.

“Racial classifications are inherently pernicious and, if not checked, lead as they did in New Haven to regrettable and socially destructive racial politics,” said Gregory S. Coleman, who represents the group of 20 firefighters.

“Neither equal protection nor Title VII justified New Haven’s race-based scuttling of the promotions petitioners earned through the civil service process mandated by Connecticut law,” Mr. Coleman said.

“The lower court required no strong evidentiary basis that the city was acting to remedy or avoid any actual discrimination, but strong safeguards are needed to smoke out illegitimate uses of race and to extinguish the racial favoritism that civil service laws are intended to prevent,” Mr. Coleman said.

Conservative justices appeared to side with the firefighters, while their liberal counterparts showed sympathy toward the city’s predicament.

Justice Anthony M. Kennedy, a swing vote on racial issues, questioned Deputy Solicitor General Edwin S. Kneedler on the validity of the New Haven City Council’s decision.

“Counsel, it looked at the results, and it classified the successful and unsuccessful applicants by race. And you want us to say this isn’t race? I have trouble with this argument,” Justice Kennedy said.

Frank Ricci was one of more than 130 firefighters who took written and oral tests in 2003 to fill a few promotion slots. An oral exam accounted for 40 percent of the score, while the written test, designed to meet a 10th-grade reading level, accounted for 60 percent of the test.

The top scoring candidates did not include any black firefighters, so the city declined to certify the tests. Mr. Coleman argued that the city chose the company to administer the tests and should have stood by its findings.

“Essentially, the problem I have with your argument is that it leaves a municipality or a government body like New Haven in a ‘damned if you do, damned if you don’t’ situation,” Justice David H. Souter told Mr. Coleman.

“Because on the very assumptions that you are making, if they go forward with their hiring plan, they certify the results and go forward with it, they are inevitably facing a disparate impact lawsuit,” Justice Souter said.

“If they stop and say, ‘Wait a minute, we’re starting down the road toward a disparate impact lawsuit and, indeed, there may be something wrong here,’ they are inevitably facing a disparate treatment suit,” Justice Souter said.

Christopher Meade, arguing for the city, said there is “no entitlement to be promoted based on a flawed test.”

Meanwhile, the justices ruled that illegal immigrants can temporarily avoid deportation while appealing such action through the judicial system.

Jean Marc Nken of Cameroon overstayed his visa in 2001 and applied for asylum, but his requests were denied.

In a 7-2 decision written by Chief Justice John G. Roberts Jr., the court ruled that Mr. Nken’s request to delay deportation was wrongly held to a “demanding standard” of proof. The justices sent the case back to the 4th U.S. Circuit Court of Appeals. Justices Samuel A. Alito Jr. and Clarence Thomas dissented.

Mr. Nken sought asylum in 2003, saying he had been arrested and beaten in Cameroon for pro-democracy activities, but his petition was denied. He has since married a U.S. citizen and has an American-born child.

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