On Monday, June 29, the U.S. Supreme Court handed down a 5-4 ruling favoring white firefighters who had brought a lawsuit alleging reverse discrimination against the City of New Haven, Connecticut. This decision reverses a lower court ruling by none other than Sonia Sotomayor, Barack Obama’s nominee for David Souter’s soon-to-be vacant seat on the Supreme Court. The case of Ricci v. DeStefano broke when a group of white firefighters filed suit following their being refused promotions because no blacks and just two Hispanics could be promoted under the City of New Haven’s promotions exam, which was scrapped.

New Haven had been trying to fill five senior-level vacancies. The city administered the test to 77 candidates for lieutenant and 41 for captain. Fifty six firefighters passed: 41 whites, nine blacks and six Hispanics. But only 17 whites and two Hispanics could expect promotion. The city voided the test on the grounds that the results were vulnerable to legal challenge on disparate impact grounds. Twenty firefighters, 19 of them white and one of them half-white and half-Hispanic, signed on board the lawsuit alleging intentional reverse discrimination.

Both the U.S. District Court and the panel of three judges on the U.S. 2nd  Circuit Court of Appeals including Barack Obama’s Supreme Court nominee Sonia Sotomayor sided with New Haven in the dispute, issuing an opinion just one paragraph in length. The Supreme Court finally heard the case in April, and on June 29, handed down its 5 – 4 decision overturning the lower court.

The issues of affirmative action, racial ratios, and reverse discrimination first surfaced in the 1970s. While initial civil rights law had not required racial preferences to achieve specific ratios, a 1971 Supreme Court decision, Griggs v. Duke Power, held that employment tests with disparate impact on minorities were de facto discriminatory and hence were not allowable. Both employers and college admissions boards began to seek specific racial ratios as a result, and in practice this meant preferential treatment. Then, in 1975, a white applicant for a position in a medical school, Allan Bakke, sued for reverse discrimination when the University of California at David Medical School denied him a seat in favor of a black man with fewer credentials in its quest for racial parity. The upshot of the Bakke case was that employers and college admissions boards could not set quotas; but the high court did not eschew taking race into account as one factor among many in making decisions.

Cases have continued to make their way through the courts, many of them eventually taken up by the Supreme Court, the decisions of which have often been inconsistent and confusing. Ricci v. DeStefano is just the latest such case. On June 29, the Supreme Court ruled 5 – 4 that the white firefighters had indeed been treated “unfairly” when the test they had passed was scrapped without further examination by the city, which was unable to show anything wrong with the test beyond its yielding a politically unacceptable racial ratio.

What is most significant about this decision right now is that it reverses the lower court decision that Sonia Sotomayor endorsed as a federal appeals court judge. Sotomayor has faced criticism over her role in the lower court’s decision as well as over remarks she has made suggesting that a Hispanic woman might make wiser decisions on the Court than a white male who didn’t have her experiences. (Sotomayor, whose parents were Puerto Rican immigrants, grew up in an extremely poor neighborhood in the Bronx, New York.)

Affirmative action programs continue to be controversial, although most minorities and many white women continue to support them. The election of this country’s first African-American president, however, which could not have been accomplished without the support of large numbers of whites, has fueled criticisms of racial preferences as no longer needed in the 21st century landscape and apt to promote division instead of unity.

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danwhitehead1 said:

	Reverse? I've always wondered, just exactly what is "reverse" discrimination? I dare say that seems to be an oxymoron. Discrimination is discrimination. Period. Using the line of reasoning that came up with "reverse" discrimination, I wonder if a soiled piece of toilet paper could be called "reverse" clean or "reverse" dirty?
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July 08, 2009
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