By José F. Anderson
(July 1, 2009) - This week the Supreme Court handed down a much anticipated decision in a case involving several firefighters working in the City of New Haven, Conn. The plaintiffs in the case, several White and one Hispanic firefighter, complained when the city invalidated the test results for promotion because no African Americans qualified under the exam. The city feared it would be sued by Black applicants on the basis of the results. The court ruled that the fear of litigation by Black officers was not a good enough reason to permit invalidating the test results.
This decision is clearly a major blow to affirmative action in the United States. The 5-4 decision announced by Supreme Court Justice Anthony Kennedy held that the city of New Haven violated Title VII of the Civil Rights Act of 1964 when it discarded the results of the test, which were intended to be used to promote firefighters to vacant lieutenant and captain positions. The court held that the disparate impact of the test, which disqualified all Black applicants, was not enough to serve as the kind of “strong basis” needed to justify New Haven’s desire to retest all applicants, or create another test for promotion. The majority opinion was joined by Justice Clarence Thomas, the court’s only minority justice.
Ironically, the lower court decision was rendered by a panel, which included recently nominated and yet to be confirmed Supreme Court justice candidate Sonia Sotomayor, who has been embroiled in her own controversy over statements she made regarding how her Hispanic heritage might affect her ability to rule on cases differently from White male judges. In recent weeks she has tempered those statements in preparation for what promises to be incendiary confirmation hearings. With the decision in this case, the focus of those hearings will clearly center on the future of affirmative action in nation.
On April 22, I took a group of my University of Baltimore law students to hear the oral arguments in the case. It was an interesting experience for the students because we had been studying the voting patterns of the justices in recent race cases and they were tuned into the questions that were asked from the bench. The students got a chance to meet the firefighters who were plaintiffs in the case. One plaintiff even brought his elementary school-aged son to witness the historic argument in the packed courtroom.
Many legal luminaries like the legendary NAACP lawyer Jack Greenberg and former Solicitor General Drew Days were in attendance. It was clear that the intensity level among the justices was high. Justice Ruth Bader Ginsburg was clearly not comfortable with the idea that the test results were given so much weight in the hiring process. She constantly asked questions about whether a physical fitness test that might exclude all women would be a proper test. Ultimately Justice Ginsberg wrote the dissenting opinion in the case lamenting that it would be “regrettable to rely on flawed exams to shut out candidates who may well command the presence and qualities needed to excel as fire officers.”
It is clear that the use of testing has been a controversial issue in education affirmative action cases and it is once again in the spotlight in employment and promotion cases. Standardized testing has often been called racially biased, but for the moment it appears that the court will allow even questionable testing to stand in absence of other direct evidence of discrimination. This will likely create a crippling burden of proof for plaintiffs who are relying on challenges to testing alone. Minority applicants need to find a way to do better on tests that have been serving the gatekeeper function to educational and professional opportunities in recent decades. It may be unwise to wait and hope for the Supreme Court to have a more liberal shift. Local jurisdictions seeking to promote diversity in their work force may want to look more closely at their use of testing to qualify applicants for jobs if they want to avoid the fate of the city officials in New Haven.
José F. Anderson is a professor of law at the University of Baltimore School of Law.