In a classic case of damned-if-you-do, damned-if-you-don’t, the US Supreme Court is deciding a discrimination case (Ricci vs. DeStefano) that has huge ramifications for affirmative action. In 2003 the city of New Haven, Connecticut, gave a test to firefighters seeking promotion to lieutenant and captain. When none of the African-American candidates scored high enough for promotion, city officials threw out the results. That prompted a group of 18 firefighters (17 white and one Hispanic) to file a lawsuit claiming reverse discrimination, since they had received the requisite mark to move up in rank. Justice David Souter said city officials were in a no-win situation, for had they allowed the promotional exam to stand, black firefighters no doubt would have pursued litigation.
One of the white firefighters is Frank Ricci, who is dyslexic and paid someone else to record the study materials on tape so that he could listen to them. Ricci earned the 6th highest score out of 77 applicants.
Supporters of the New Haven decision note that the civil service review board that made the decision to reject the test results listened to five days of testimony, after which the members concluded that the test itself was poorly constructed. (The only African-American member of the board recused himself.)
Court observers say the outcome of the case hinges on Justice Anthony Kennedy, who often is the swing vote on the court. During oral arguments Justice Kennedy expressed concerns with the city’s decision to throw out all test results, and in the past he has spoken out against the use of race in government hiring and other decisions. But he also has been reluctant to side with the conservative wing of the court that includes Justice Antonin Scalia and Chief Justice John Roberts.
-Noel Brinkerhoff
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