Sotomayor’s New Haven Decision


This’ll be the last Sonia Sotomayor post for a bit, but I wanted to discuss the one thing I actually had some prior knowledge of: the New Haven firefighters case.

Officially Ricci v. DeStefano, the case was first brought against the city of New Haven, Conn. for reverse discrimination against white firefighters.

Here’s a brief synopsis:

New Haven had its firefighters take a test to determine who to promote. Based on the results, none of the black candidates qualified for a promotion. The city then threw out the results, afraid of violating Title VII of the Civil Rights Act. The white and Hispanic firefighters then sued the city, saying that throwing out the test results constituted racial discrimination, because, had they been black, they would have been promoted.

A lot of people have pointed to this as (1) an important indicator of Sotomayor’s feelings on affirmative action policies, and (2) a test for how she stacks up against the current Court. If the Court upholds her decision, the reasoning goes, it means she’s either made the right decision and is therefore qualified, or she fits nicely within the ideological framework of the current Court.

The logic of the latter item has so many holes I’m not even going to bother getting into it. But I would like to address what the case shows us about her feelings on affirmative action policies. Because — while it very well may — I’m not so sure that it necessarily does tell us a whole lot.

Let me say, first, that I think New Haven was wrong in doing what it did. They developed a theoretically racially neutral test to make promotions for them, and then when it didn’t give them the racial balance they wanted, they threw it out. They may as well have just promoted X number from each race to begin with. Ultimately, I think they would have been more justified in doing it that way. That said, I am generally supportive of a lot of affirmative action policies. I think they have been a necessary evil, although a case could be made for their gradual phase out.

But, and here’s where it gets complicated, Sotomayor and the other judges who upheld this decision could very well agree with me that this situation stinks of unfairness. Their job though, isn’t to say what is or isn’t fair, it’s to uphold the law as written.

And the law, as written, says this (emphasis mine):

An unlawful employment practice based on disparate impact is established under this subchapter only if … a complaining party demonstrates that a respondent (the employer) uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.

In layman’s terms, as it applies to this case, if New Haven’s promotion test had a “disparate impact” on its black employees, and wasn’t entirely necessary, then it can be illegal under Title VII. How could a test have a disparate impact on black firefighters? Maybe these particular black firefighters weren’t the best of students, I don’t know. But you could easily make the case that (and this is the last italicized part) the test wasn’t a barometer necessitated by the job itself, i.e. you can be a good firefighter with management potential but a crappy test-taker.

Now, I don’t know enough about the background of law in this area to know if all of this is consistent with prior rulings, but at least at face value, it seems reasonable that an appeals court would uphold this, based on the way the law is written.

So, while it’s not unlikely that Sotomayor has a liberal record with regard to civil rights, this case is pretty flimsy evidence. And I don’t think it is particularly fair to compare her decision to that of the Supreme Court’s. The Supreme Court has substantially more leeway in making such decisions; lower courts are expected to follow precedent above all else.

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1 Response to “Sotomayor’s New Haven Decision”


  1. 1 p of v May 27, 2009 at 4:46 pm

    Thanks for beating me to the punch! Great post; well-reasoned, accurate, and judicially correct.


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About the Author

Brian Eason is a University of Missouri graduate with bachelor degrees in Journalism and Political Science. He has covered Congressional elections and local government for the Columbia Missourian and worked as a general assignment reporter for the State Journal-Register in Springfield, IL. Brian has also had articles published in Roll Call.

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