Read more from Slate's coverage of Sonia Sotomayor’s nomination.
In 2003, the New Haven Fire Department decided to base promotions to the positions of captain and lieutenant primarily on a written exam. But the next year the city threw out the test results when all but one of the eligible candidates for promotion proved to be white. New Haven firefighter Frank Ricci, a high scorer on the test who is white, sued for reverse discrimination. His case is now before the Supreme Court in Ricci v. DeStefano. The case is getting extra play because 2nd Circuit Judge Sonia Sotomayor, President Obama's choice to take Justice David Souter's place on the Supreme Court, joined a brief opinion rejecting Ricci's appeal and then voted to deny rehearing of his case. Many commentators have championed Ricci's cause and disparaged Sotomayor for voting against him.
New Haven's decision may sound like blatant racial favoritism, but in fact the city rejected the firefighter exam because the test violated Title VII, the federal civil rights law that prevents discrimination in employment. Title VII requires employers to consider the racial impact of their hiring and promotion procedures in order to prevent discrimination that's inadvertent as well as intentional. Ricci's claim is that the city's effort to comply with Title VII is itself race discrimination (under the 14th Amendment to the Constitution and under Title VII itself).
This argument would undermine an important part of modern civil rights law. Some of Sotomayor's critics argue that, in the era of Obama, we no longer need such proactive policies to promote racial equality. But racism isn't a thing of the past yet. In fact, we haven't corrected the lingering effects of racism that is in the past. It's precisely because overt racism is no longer the main impediment to racial equality that the law against inadvertent discrimination is arguably now the most important part of civil rights law.
There are two ways an employer can discriminate according to Title VII. He can intentionally discriminate by making race a factor in employment decisions—choosing a black candidate over a white candidate because he is black. Frank Ricci claims the city intentionally discriminated when it threw out the exam results because most of the people who scored high were white. An employer can also discriminate by using a selection process that has a disparate impact—in other words, that screens out a particular group for no good reason. New Haven claims that the test it tossed out had a disparate impact. Eight black, 25 white, and eight Hispanic firefighters took New Haven's test for promotion to captain; three black, 16 white, and three Hispanic candidates passed. Nineteen black, 43 white, and 15 Hispanic firefighters took the test to become lieutenant; six black, 25 white, and three Hispanic candidates passed. This result counts as discriminatory under the rules of the Equal Employment Opportunity Commission. New Haven was right to worry about the possibility of a lawsuit from black firefighters if it accepted the results of the tests.
The city was also in a bind because its agreement with the firefighters union required that the exam count for 60 percent of the decision about whether to promote each candidate and because a city charter rule required that every promotion go to one of the three top-scoring candidates. These rules magnified the disparate racial impact of the exam—no black candidate and only one Hispanic candidate was eligible for promotion, even though several of them passed the test. More reason for the city to worry about a lawsuit by the African-Americans who were to be passed over.