White, black and Hispanic candidates all passed the exams, though whites did so at a higher percentage.
Also, under the city’s rules, the first positions to come open would go to the top scorers. For the lieutenant’s position, the top 10 were all white, while for the captain’s position, the top nine included seven whites and two Hispanics.
With a history of discrimination lawsuits behind it, the city’s civil service board feared that the results would be seen as unintentional discrimination, which would violate the Civil Rights Act’s prohibition on a “disparate impact.” But at the same time, tossing the results would be “disparate treatment” against the firefighters who had scored well - also a violation of the Civil Rights Act.
In issuing his opinion, Justice Kennedy said the court didn’t need to decide on constitutional grounds such as the Equal Protection Clause of the 14th Amendment.
But Justice Scalia said the court will eventually have to face that question and decide if discrimination for the purposes of affirmative action is ever allowed.
“The war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how — and on what terms — to make peace between them,” he wrote in his concurring opinion.
Those sorts of broad issues are bound to come up during Judge Sotomayor’s confirmation hearings, but Sen. Charles E. Schumer, New York Democrat and a member of the Senate Judiciary Committee, said her legal reasoning in this case was sound.
“While the Supreme Court disagreed with the Second Circuit, they in no way undercut Judge Sotomayor’s contention that she was following legal precedent and was bound to do so,” he said.
But conservatives said the case raises major questions about Judge Sotomayor’s legal reasoning, emphasizing both the unsigned summary judgment to which she was a party and her later voting not to have the case heard by the whole appeals court, rather than just the three-judge panel.
“Not only did Judge Sotomayor misapply the law, but the perfunctory way in which she and her panel dismissed the firefighters’ meritorious claims of unfair treatment is particularly troubling,” said Senate Minority Leader Mitch McConnell, Kentucky Republican.
Stephen Dinan can be reached at email@example.com.
Tom LoBianco has covered energy and environmental policy, including the climate change bill making its way through Congress. From 2007 to 2008, he covered Maryland politics from the Times’s Annapolis bureau. Tom hold’s a master’s degree in political science from Northeastern University and a bachelor’s degree in journalism from the University of Maryland, College Park. He spent two and a ...
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