- The Washington Times - Monday, June 15, 2009


By now, most people have heard - negatively - about the 2006 case Ricci v. DeStefano, in which 18 New Haven firefighters (17 white and one Hispanic) were not promoted after passing the required tests because there were no blacks whose test scores were high enough to qualify them for promotion.

From a surprisingly broad left-to-right spectrum, the Conventional Wisdom punditry seems to have decided that Judge Sotomayor was wrong on the law and on allowing reverse racial discrimination, and that this case is her chief problem in getting confirmed by a substantial margin.

But once again, the CW is wrong. It has too easily accepted five myths that are contradicted by facts. Let’s take a look.

1. The case is often referred to as “Judge Sotomayor’s” opinion.

Very misleading. Judge Sotomayor was one of three judges on the 2nd U.S. Circuit Court of Appeals panel. The three affirmed the District Court’s decision “per curiam” - meaning all spoke together, without any one of them taking the lead.

Then 13 judges on the appeals panel were asked to rehear the appellate arguments. Seven of them (including, presumably, the three on the first panel) voted no on the request, six voted yes, although some of the latter still might have upheld the District Court decision after hearing the argument.

2. Judge Sotomayor is portrayed as unsympathetic to the white firefighters.

Wrong. In the “per curiam” opinion, the three-judge panel wrote: “We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated.”

3. This case proves she is a “liberal activist” judge, driven by race-based goals.

Totally false - indeed, to the contrary. The Ricci case was based on 38 years of jurisprudence, beginning with a Supreme Court case decided in 1971. Griggs v. Duke Power Co. was a unanimous 8-to-0 opinion written by the conservative Chief Justice Warren Burger, appointed by Republican President Richard M. Nixon. It was Chief Justice Burger who wrote that Title VII of the 1964 Civil Rights Act “proscribes not only overt discrimination, but also practices that are fair in form but discriminatory in operation” and requires a job-related or business necessity reason to justify such a disparate effect (and that there are no better alternatives).

Subsequently, the Equal Employment Opportunities Commission (EEOC) issued the “four-fifths rule” - i.e., if minorities passed the test at a rate less than 80 percent of the group with the highest rate, then that test is presumptively illegal due to the “disparate effect” of the test, a presumption that could be overcome only if the employer could show there was no better job-related alternative that produced less of a disparity. While this rule does not have the force of law, courts have usually used it as an unofficial standard.

The New Haven case clearly came in far below the EEOC guideline. Less than half as many black firefighters as white firefighters passed the test.

The District Court was applying the law of the established precedents of the 2nd Circuit, as it was required to do. In two cases - in 1983 and 1984 - 2nd Circuit panels held that it was permissible under Title VII to “race norm” the test results - for example, lower passing grades for minorities to achieve a more proportionate result. Said the 1984 panel: “a showing of a prima facie case of employment discrimination through a statistical demonstration of disproportional racial impact constitutes a sufficiently serious claim of discrimination to serve as a predicate for employer-initiated, voluntary race-conscious remedies,” such as “race norming.” In the New Haven case, as the court pointed out, there was no “race norming” - the city civil service board simply decided to start over in search of more reasonable alternatives.

Thus, the New Haven District Court judge, the three-judge panel on which Judge Sotomayor served, and the seven circuit court judges who voted to deny a re-argument were all following precedent and strictly construing the underlying statute - just like good conservative strict constructionists are supposed to do.

4. The ruling against the white firefighters is supported by President Obama’s Justice Department.

Wrong. The Justice Department has asked the Supreme Court not to affirm the 2nd Circuit panel and the New Haven court, but rather, to send the case back to the New Haven court for further evidentiary hearings. At such hearings, evidence can be heard on whether New Haven had any reasonable alternatives to the testing system that would be equally job-related, but would not have produced this level of disparate effect.

In fact, there probably are several such alternatives that could be demonstrated at such a hearing. It is undisputed that blacks historically perform less well than whites on written tests. Most experts believe this is because of disadvantaged schools and lower-income family culture. Thus, one alternative New Haven might have considered would be to adjust the weighting system required by the union contract - 60 percent written test, 40 percent verbal examination. Instead, New Haven could use the weighting system applied by neighboring Bridgeport - 30 percent written, 65 percent verbal, and 5 percent seniority. Experience has shown that this might produce less of a disparate impact on minorities.

Another method suggested by an expert at the New Haven trial was to give some weight to candidates who can “demonstrate” how they would address a particular problem, as opposed to just verbally saying so. That, too, could have produced different results that were not racially disparate.

This is why Attorney General Eric H. Holder Jr. wisely decided to ask the Supreme Court to let a trial court hold hearings on whether such alternative testing systems are reasonable and can do the job without producing the same disparities.

5. The case should be reversed by the U.S. Supreme Court, and this will show that Judge Sotomayor was wrong.

Balderdash. The Supreme Court probably will reverse, but that doesn’t make Judge Sotomayor wrong. Only the Supreme Court can overrule or modify a prior Supreme Court decision and numerous appeals court decisions.

This would not be the first time that a majority of this particular Supreme Court chose to ignore years of precedent and the conservative doctrine of “stare decisis,” and in effect reach a desired outcome first, then find find legal arguments to support it second. I may be missing something, but that doesn’t sound like strict construction to me.

Wouldn’t the better answer to the plight of Mr. Ricci and other whites suffering what they believe to be “reverse discrimination” be to change the law - rather than legislating from the bench?

Stay tuned.

• Lanny J. Davis, a Washington lawyer and former special counsel to President Clinton, served as a member of President George W. Bush’s Privacy and Civil Liberties Oversight Board. He is the author of “Scandal: How ‘Gotcha’ Politics Is Destroying America.”

• Lanny Davis can be reached at .

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