Featured Press Release:

DISCARDING FIREMAN TEST FOR RACIAL BALANCE IS ILLEGAL

June 29, 2009 - For Immediate Release
Contact: William Perry Pendley

DENVER, CO. A decision by New Haven, Connecticut, to discard the results of civil service tests because they failed to provide what city politicians believed is a defensible racial balance, is illegal, the Supreme Court of the United States ruled today. The ruling is consistent with a friend of the court brief by Mountain States Legal Foundation (MSLF), which won a landmark 1995 Supreme Court case involving the Constitution’s guarantee of equal protection. Justice Kennedy, writing for the 5-4 majority, ruled that, in discarding the results of promotion tests for fire department lieutenant and captain, New Haven lacked a strong basis in evidence that it faced disparate-impact liability if it certified the tests. Therefore, held the Court, when New Haven used race-conscious, discriminatory action against firefighters who had passed the examinations, it violated Title VII of the Civil Rights Act of 1964. Both the Connecticut federal district court and the U.S. Court of Appeals for the Second Circuit had ruled against the firefighters.

“This is a great ruling for the firefighters who had the courage to bring this lawsuit and for the country,” said William Perry Pendley, Esq., MSLF president. “The Court repudiated, not only New Haven’s actions, but also the arguments of the Obama Administration and a ruling by Judge Sotomayor.”

In 2003, New Haven sought to fill fire department captain and lieutenant vacancies using job-related examinations and merit-selection rules. Although great care was taken to ensure that the examinations were job related, that they produced qualified applicants who were promoted on merit, and that they did not discriminate in any way against the minority candidates and although no credible evidence was presented at court to suggest either that the testing was not completely adequate or that there was intentional discrimination in the examinations or in the fire department, the results of the test were unacceptable to the City because the process produced no African American candidate for captain or lieutenant.

Mr. Ricci, who scored highest on the examinations, and others, sued challenging the City’s decision. The District Court found that the “undesirable outcome” of the test “could subject . . . the City’s leadership to political consequences” and held that the City’s “good-faith” efforts were a defense against race-conscious action and that no race-conscious action took place because all the candidates were treated the same—no one was promoted.

On appeal, a Second Circuit panel upheld the District Court’s decision. En banc rehearing was denied by a vote on 7-6. On January 9, 2009, the U.S. Supreme Court granted certiorari, and on February 19, 2009, the petitioners filed their opening brief. MSLF filed its brief February 26, 2009.

Ricci v. DeStefano, No. 08-328 (U.S. Supreme Court)