Sotomayor and the New Haven firefighters


There is little doubt Sonia Sotomayor will be confirmed as the next justice of the Supreme Court. The Democrats have the numbers to overcome conservative objections. Despite some of the criticism from right-wing circles being over the top, the Senate has every right not to rubber stamp the president’s nominee.

Latinos are justifiably proud of Sotomayor’s nomination. Her rise from humble beginnings to a proposed appointment to the Supreme Court is the quintessential American success story. Yes, it bothers me that Supreme Court appointments seem to require every racial and ethnic group in America be represented, but in an imperfect world, it’s better than the old standard that every justice be a white male.

Sotomayor has shown a bit of a loose lip in some of her public utterances, but she will tell the Senate what it wants to hear so that her quotes about making law and better decisions than white male judges will not prove disqualifying. Republicans who say that we wouldn’t stand for the same comments being made by an Anglo white male judge are correct, but even the GOP in its most stupid moments are not about to kiss of the Latino vote for another 50 years.

I would like to hear more from Sotomayor about her New Haven Firefighters decision that rejected a white firefighter’s appeal and her vote to deny rehearing of the case. This involved a 2003 decision by the New Haven fire department to primarily base promotions to the positions of captain and lieutenant on a written exam. In ’04 when all but one of the eligible candidates for promotion turned out to be white, New Haven threw out the test results. The high scorer, a white male, sued for reverse discrimination. The case is currently before the Supreme Court.

New Haven claimed it had no choice but to throw the test out because it violated Title VII of the federal civil rights law that bans discrimination in employment. Title VII requires that the town consider the racial impact of the test it used to promote firefighters. According to Slate, the captain’s results were eight black, 25 white and eight Hispanics took the test; three black, 16 white and three Hispanics passed. Nineteen black, 43 white, and 15 Hispanics took the lieutenant’s test and six black, 25 white, and three Hispanic candidates passed. Under the rules of the Equal Employment Opportunity Commission, this result was construed as discriminatory. Because of union and city charter rules, the racial impact of the test was further magnified so that no black candidate and one Hispanic were eligible for promotion.

I count myself among those who are uncomfortable with several aspects of this case. It appears New Haven was forced to throw out the results or it would have lost a racial discrimination suit. It would also appear that Sotomayor’s decision was in accordance with the law. In fact, she did not favor the Hispanic firefighter who would have been promoted.

At the same time, it is easy to understand why the white firefighters denied promotion would be upset by the decision. They followed the rules, studied, and got the grades to qualify for a promotion. They were not part of any discrimination (though the courts would no doubt argue that they were the beneficiaries of the discriminatory test).

You could also argue the test results do not necessarily prove discrimination. It might also be due to a difference in educational opportunity, or even study habits. This would argue that if discrimination existed, it occurred long before the firefighters ever took the exam. In that case, the remedy would seem to be different, perhaps tutoring, and an effort to provide better education for minorities. Certainly too much reliance on the test, and too little of on-the-job achievements seems to have led to a skewing of the end result.

I have seen similar problems with disparate results of hiring practices in the federal government resolved by giving the next promotion opportunity to the qualified minority candidate, while not punishing the successful white candidate. To this non-lawyer, it appears that neither Title VII or the Equal Employment Opportunity Commission regulations would allow for such a result.

In the end, Judge Sonia Sotomayor seems to have come down on the right side of the decision based strictly on the law. And isn’t that what the strict constructionists claim they want?