Court Rules For Firefighters In Ricci Case

Whites Rejected For Promotion Win; Decision Reverses An Appeals Court Ruling By Sotomayor

(CBS/AP)  The Supreme Court ruled Monday that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision.

The controversy started when New Haven voided its entire 2003 promotional exam after the results made 18 whites - but no blacks - eligible to become officers. When the city decided to promote no one, the white firefighters called that invalid under the Constitution.

The city said it acted because it might have been vulnerable to claims that the exam had a "disparate impact" on minorities in violation of the Civil Rights Act of 1964, and sought to avoid lawsuit from minorities who were turned down following the test.
When the case reached the appeals court Judge (now Supreme Court nominee) Sonia Sotomayor was on the three-judge panel that unanimously rejected the reverse discrimination complaint.

"Fear of litigation alone cannot justify the City's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," wrote Justice Anthony Kennedy. "Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim." Justices Kennedy was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

In the close, Kennedy, the Court's swing vote, sided with conservatives, report CBS News correspondent Wyatt Andrews and wrote "this express, race-based decision making is prohibited."

Even if the city was trying to protect minorities against an unfair test, Kennedy wrote, "There is no substantial basis in evidence (this) test was deficient."

Title VII prohibits both intentional acts of employment discrimination based on race, color, religion sex and national origin (or disparate treatment), and policies or practices that intentional or not have a disproportionately adverse discriminatory effect on minorities (or disparate impact).

Under Title VII, an employer can engage in an act of intentional discrimination for the purposes of avoiding or remedying a disparate impact only if there is evidence that the employer would be subject to disparate-impact liability. The Justices did not feel New Haven's action rose to that level.

The ruling could alter employment practices nationwide, potentially limiting the circumstances in which employers can be held liable for decisions when there is no evidence of intentional discrimination against minorities.

New Haven's Mayor said the city would respect the decision - but complained it overturned 38 years of civil rights law, which forbid hiring practices that caused a "disparate impact against minorities".

"The city was dammed if they did and damned if they didn’t," New Haven Mayor John DeStefano, Jr said.

Civil rights leaders also predicted an era of confusion over when minorities are protected and when they are not.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them."

Ginsburg said that "it is indeed regrettable that the City's noncertification decision would have required all candidates to go through another selection process. But it would have been more regrettable to rely on flawed exams to shut out candidates who may well have the command presence and other qualities needed to excel as fire officers. Yet that is the choice the Court makes today. It is a choice that breaks the promise of Griggs that groups long denied equal opportunity would not be held back by tests 'fair in form, but discriminatory in operation.'"

She was joined in dissent by Justices Stephen Breyer, David Souter and John Paul Stevens.

CBS News legal analyst Andrew Cohen notes that "It's an embarrassment for Sotomayor, for sure. She's just been reversed on appeal and no judge ever wants that to happen. But it's important to note that four justices on the court agree with her, in whole or in part, so it's not as if her lower court ruling was outside the mainstream or completely implausible.

"Sotomayor's detractors will claim that this ruling is proof that she's outside of the mainstream when it comes to affirmative action cases," Cohen writes. "Her supporters will counter that the case was narrowly decided 5-4 and that all lower federal appeals court judges get reversed from time to time.

Click here to read Andrew Cohen's analysis of Justice Kennedy's opinion.

The case is Ricci, et al. v. DeStefano, et al. (07-1428 and 08-328). The opinion can be viewed here.

Kennedy's opinion made only passing reference to the work of Sotomayor and the other two judges on the 2nd U.S. Circuit Court of Appeals who upheld a lower court ruling in favor of New Haven.

But the appellate judges have been criticized for producing a cursory opinion that failed to deal with "indisputably complex and far from well-settled" questions, in the words of another appeals court judge, Sotomayor mentor Jose Cabranes.

"This perfunctory disposition rests uneasily with the weighty issues presented by this appeal," Cabranes said, in a dissent from the full 2nd Circuit's decision not to hear the case.

A CBS News/New York Times Poll, conducted June 12-16, found 50% in favor of programs that make special efforts to help minorities get ahead, with 41% opposed. For over a decade more Americans have favored affirmative action programs than opposed them.


Court Rules On Bank Probes

The Supreme Court said state attorneys general cannot issue their own subpoenas in investigations against national banks.

However, the high court in a decision on Monday said that an attorney general can get a court to issue subpoenas in an investigation into those financial institutions.

Federal courts have so far blocked an investigation begun by New York, which is backed by the other 49 states, of whether minorities were being charged higher interest rates on home mortgage loans by national banks with branches in New York.

In the dispute, the Obama administration said federal law prohibits states from looking at the lending practices of those banks, even under state anti-discrimination laws.

President Barack Obama's proposed overhaul of financial regulation could make the outcome of the case less important. The proposal would create a consumer protection office and states would be empowered to enforce their own laws, with some degree of coordination with the new federal agency.

Click on the link to view the opinion in Cuomo v. The Clearing House Ass'n, L.L.C. (08-453).

The 5-4 opinion was written by Justice Scalia; Justice Thomas, joined by Chief Justice Roberts and Justices Kennedy and Alito, filed an opinion concurring in part and dissenting in part.


Justices To Reargue Hillary Attack

In another case, the court is postponing a decision on whether a movie that was critical of Hillary Rodham Clinton during her presidential campaign should be regulated as a campaign ad. It has decided to reargue the case of Citizens United v. Federal Election Commission (08-205) in its next term.

The Federal Election Commission and a lower court in Washington have said the not-for-profit group, Citizens United, must abide by campaign finance restrictions when it wanted to advertise and distribute a scathing 90-minute documentary about the former New York senator and current secretary of state without complying with federal campaign finance law.


Court Passes On 9/11 lawsuit Against Saudi Royal Family

The Supreme Court has refused to allow victims of the Sept. 11 attacks to pursue lawsuits against Saudi Arabia and four of its princes over charitable donations that were allegedly funneled to al Qaeda.

The court, in an order Monday, is leaving in place the ruling of a federal appeals court that the country and the princes are protected by sovereign immunity, which generally means that foreign countries can't be sued in American courts.


Court To Tackle NFL Case, Skips DVDs, Silent On Funeral Protests

The Supreme Court agreed Monday to decide in its upcoming term whether the National Football League and its 32 teams can enter an exclusive licensing deal with a maker of team jerseys and other gear without violating federal antitrust law.

The court said it will hear an appeal from American Needle Inc., of Buffalo Grove, Ill., that challenges an agreement the NFL struck with Reebok International Ltd. American Needle had been one of many firms that manufactured NFL headwear until the league granted an exclusive contract to Reebok in 2001.

The NFL won the case in the federal appeals court in Chicago. But it also asked the Supreme Court to hear the case in a quest for a more sweeping decision that could put an end to what the league considers costly, frivolous antitrust lawsuits.

The case concerns whether the league is essentially a "single entity" that can act collectively or 32 distinct businesses that must be careful about running afoul of antitrust laws by working too closely together.

Other than Major League Baseball, which has an antitrust exemption dating to 1922, the other sports leagues have an intense interest in the case. The National Basketball Association and the National Hockey League both asked the court to rule in favor of the NFL.

The case will be argued late this year or early in 2010.

The case is American Needle v. National Football League (08-661).

The court rejected bids to hear appeals on several cases, including one by Hollywood studios and television networks seeking to block the use of a new digital video recorder system that could make it cheaper and easier for viewers to record shows and watch them when they want, without commercials.

The justices, in an order Monday, say they will not disturb a federal appeals court ruling that Cablevision Systems Corp.'s remote-storage DVR does not violate copyright laws. The action means that Cablevision and perhaps other cable system operators soon will be able to offer DVR service without need for a box in consumers' homes.

The justices also left in place a court order barring Missouri from enforcing a law limiting protests near funerals. The court refused without comment Monday to hear Missouri's appeal. The state enacted a law aimed at religious picketers who have turned up at soldiers' funerals.

Members of the Westboro Baptist Church in Topeka, Kan., claim God allows soldiers to be killed as punishment for the nation's sins, including homosexuality, divorce and remarriage, idolatry and greed. Church member Shirley Phelps-Roper persuaded the 8th U.S. Circuit Court of Appeals in St. Louis to issue an order barring enforcement of the law while a federal judge considers whether it is constitutional.

The case is Nixon v. Phelps-Roper (08-1244).

The Supreme Court also won't stop the state of New Hampshire from making doctors' prescription-writing habits confidential over the objection of companies who analyze and sell that information.

The high court on Monday refused to hear an appeal from IMS Health Inc., of Norwalk, Conn.; and Verispan LLC, of Yardley, Pa. Those two companies collect, analyze and sell prescription information. They say the law violates their First Amendment right to free speech in pursuit of their business.

More Supreme Court coverage:

Court Rules For Firefighters In Ricci Case
Sotomayor Overturned In Firefighters Case
Tie Goes to Kennedy In Ricci Case
Supreme Court To Take NFL Apparel Case
Supreme Court Won't Touch Bible Club Case
Court Passes On 9/11 Claims Against Saudis
Court Delays Ruling On Anti-Clinton Movie
Supreme Court Hands DVR Win To Cable Cos.

[Willynailr]

In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them."


They had no invested right except they could pass the test and the others were to stupid too.

[EngineerDad]

Since the CBS News editorial staff supports affirmative action shouldn't the ethnic makeup of CBS News management, like the New Haven Fire Department management, be changed to lessen its disparate impact on disadvantaged minority groups?

And what about the ethnic makeup of CBS News bloggers? A casual inspection of the biographies of white CBS News bloggers show an unfair differential access to parents and colleges the disadvantaged did not have, in addition, there are too many of them. In fact, this special access obviously reflects an intentional or unconscious bias against minorities. Bloggers Brian Montopoli, Andrew Cohen, Sharyl Attkisson, and Mark Knoller, among others, must go to lessen the disparate impact they are having in the public sphere.

Perhaps once Justice Ginsberg leaves the court she could dissolve the CBS News bloggers and management staff to reflect her ethnic ideal.

[nova135]

When controlled for all socio-economic variables, blacks, as a group, score lower than any other race on tests of intellect/aptitude. This fact has been true from the beginning of such testing. It is true on ALL such tests everywhere in the world. Even when tests are written to be "racially neutral" blacks cannot compete on merit. How much longer do we have to pretend that this obvious fact is not true? Isn't it time to simply admit that blacks are simply less intelligent or lazier than whites. Yes, there are brilliant blacks, but relative to whites, there are far fewer as a percent of their representation in the population. This is the "elephant in the livingroom". Everyone with any insight knows this to be true. Why do have to keep pretending that everyone else is at fault? The expense to society in terms of money and justice dictates that we need to accept the this truth and let the chips fall where they may.

[cbsantispin]

If you truly believe that there is no longer racism and discrimination against non-Whites then this Supreme Court decision was correct and fair, but if you believe that racism and discrimination still exist and remedies need to be in place to address it then this Supreme Court decision was political BS! A more balanced Supreme Court would not have ruled this way and Clarence Thomas needs to find Michael Jackson's skin Doctor and have that procedure done and get it over with.

[heliocracy]

Listen, this has less to do with racism than with probability. It's amazing to me that almost no one on these boards thinks in more than one dimension. I'll explain it to you.

If you're not a racist, you assume that there's no correlation between the color of your skin with your intelligence, drive, aptitude, and preparation. Therefore, when you have a test on which members of one skin color do well while those of another skin color do poorly, it's reasonable to assume that the fault lies in the test. People of different races do have cultural differences, and the test could have favored one cultural orientation over another. The law clearly states that such a test is not allowed under Title VII. This is the basis of the lower-court decision in which Sotomayor participated.

The Supreme Court decided that there wasn't evidence that the test was at fault, and that the city invalidated it out of fear of litigation that it was unfair. For the majority, that wasn't enough of a reason to assume the test was invalid...but it does not mean the test was invalid. In fact, if litigation over the test were allowed, courts would have had a chance to examine any evidence that the test was faulty. Instead, the city assumed it, and the Supreme Court felt that that untested conclusion had the effect of discriminating against those who did well on the test.

Now, who are the racists in this situation? Those that assumed that all races would do equally well on a fair test, or those who felt that the test was innocent until proven guilty?

This isn't rocket science, people...well, until you place the issue in the hands of message board commentators.

[Walking_Talking_GOO]

dfgfgdf

[mer16]

The same test was given to all of them, the ones who passed it shouldn't be discriminated against because of the ones who were to dumb to pass it. Justice was served.

[rhs648]

It would seem that these firefighters all received the same training taught by instructors who speak English. Further, they probably all studied the same classroom materials. Further, one would think that they would all understand orders from their chiefs the same way. If white firefighters could pass the tests, it only seems natural that minority firefighters workind side by side with white firefighters could also pass the same tests. Doesn't "jump" or "code" or "firehouse" or "hook and ladder" mean the same thing to all firefighters?

[cbsantispin]

Friends often share answers to Test, there is widespread cheating, especially when the questions on the Test rarely change! Hopefully because of the all drama surrounding this, the Test and selection process will change making it harder to cheat and the selection process fairer for all. I would like to see the Test also include physical activity like climbing ladders, carrying injured, decisions under stress and so on, and not just rely on a written test, create a more comprehensive more compatible with the work. There are a lot of people with good memories who are good at taking Test but still can't do the actual work. Most of the time Test are about how good your memory is.

[gravyboat3000]

I didn't know Chrisina Ricci wanted to be a Firefighter.

[IrishWench01]

Hey Gravy :-)

[IrishWench01]

""The final point is, if Whites are permitted better access to better educational institutions and thus achieve a better grade and more acceptance in the job market and African Americans are denied that same access resulting in a perceived lower educational standard, is it fair for Whites to argue being better qualified when non-Whites are denied the same opportunity? ""

Where and How are Whites permitted better access to educational institutions?

[cbsantispin]

A case in point, major colleges won the battle to stop recruiting and reserving spots for minorities based on Quotas and Affirmative Action, colleges argued that they could achieve racial balance on their own without Affirmative Action. A few years after Quotas and Affirmative Action was discontinued in colleges, minority enrollment in all major colleges was close to zero, proving Affirmative Action was necessary.

[IrishWench01]

Are you saying that institutions are keeping them out? That would seem odd considering they have so much access to scholarships and grants just by virtue of their ethnicity. I certainly don't see a shortage of minorities at the colleges.
Why is it necessary to recruit them? They have the same information in High School concerning colleges, college prep, testing, entrance exams and anything else related as all of the other students.

[cbsantispin]

If you look at and focus on the goals and the results, does it really matter who is keeping non-Whites out? If the goal of non-White participation is 10% and the result is 2%, there is a problem and 10% is nothing is the bigger scheme of things. But the knife cuts both ways, if 12% of minorities qualify, the college may reduce it to 10% claiming to have met their Quota, so Affirmative Action and Quotas and only one thing, "BAD", but until they are no longer needed, they are a necessary evil based on the current statistics. The Supreme Court was wrong in the Ricci decision and seems to have made their ruling based on Politics and Sotomayor's nomination, Sotomayor ruled based on the Law, the Supreme Court in overturning Sotomayor's decision actually changed the Law on the fly. Sotomayor's decision was correct at the time since it considered other legal factors than just a "Score".

[IrishWench01]

""The Supreme Court was wrong in the Ricci decision and seems to have made their ruling based on Politics and Sotomayor's nomination, Sotomayor ruled based on the Law, the Supreme Court in overturning Sotomayor's decision actually changed the Law on the fly. Sotomayor's decision was correct at the time since it considered other legal factors than just a "Score".""

I won't say that I understand it all, but based on what I have read (outside of this forum) I think the Supreme Court made a just decision. If the test was a crucial componant to the promotion or hiring and it was not deemed to be skewed (and I would love to know how that works anyway)then the results should not have been scrapped and eligible applicants been made ineligible because they were White and not enough Non-Whites qualified.
I have no objection to people of any circumstance and ethnicity being given a level playing field and even a hand up, but not at the exclusion and suppression of others who are equally deserving and qualified. Particularly if the reason is that they are of a certain ethnicity. That does not right a wrong or repair an inequity. That just perpetuates more division and resentment.

[cbsantispin]

I agree.

[cbsantispin]

It's not always about the best score! The best score is only a part of the story, no where is this more evident than in college sports. In following college sports reviewing the Standings, I often notice college sports teams with perfect records like 18 wins and no losses and are ranked in 3rd place and teams with 2 losses, 16 wins and 2 losses, ranked in 1st place over the team with a perfect record at 18-0, I often question, why is that, based on the record or score, shouldn't the team with a perfect record at 18-0 be in first place automatically over the team at 16-2? The answer is NO! College sports take other criteria into consideration, not just the score, for example, how did the team with the perfect 18-0 achieve that score? Did they play weaker competition? Did they have an unfair schedule advantage? Did they cheat and recruit players outside permitted rules? The point is, other factors than just a score are considered. The same is true with the complexities involving Affirmative Action. Affirmative Actions goals are in the right place but those goals are a nightmare to implement without ruffling feathers and stepping on someones toes. Affirmative Action tries to achieve the same results college sports tries to achieve, looking at other factors than just the final score. The U.S. Congress recently officially apologized to African Americans for Slavery. The final point is, if Whites are permitted better access to better educational institutions and thus achieve a better grade and more acceptance in the job market and African Americans are denied that same access resulting in a perceived lower educational standard, is it fair for Whites to argue being better qualified when non-Whites are denied the same opportunity? The arguments against Affirmative Action and Quotas are valid, personally I dislike them, but I also dislike the denial of racism that makes these tools a necessity. America is not there yet, in certain circumstances Affirmative Action still has a place. Once again, it boils down to the lesser evil.

[wtcmedic911]

perhaps now we can have firefighters, police, navy grads that are based on earned qualifications and not because they are a certain color. so those of you that are too lazy or stupid to work for the job its time to man-up and deserve it based on your skills. next if we can get the same standard for woman firefighters/medics that would be nice. i hate having a partner that cannot lift but got the job because of her sex, sexuality etc. when in fire or police you need people that can get the job done in a hurry.
reminds me of 1993 when i went threw boot camp at ft. jackson. we carried FULL PACKS TO THE RANGE. "molly" carried herself to the range as the truck carried all the females gear. at least from what i understand the marines all carry and work as one.

[IrishWench01]

Maybe the Army should catch up to the Air Force. I carried all my stuff as did all the other females.

[Bayou123]

Finally justice has been shown to the whites. This is a first that I've ever known of. Apparently the whites and two Hispanics had the ability to pass the test. If the blacks were qualified then they would have passed the test. Discrimination is a douple edged sword. This government forgets that.

[tiredofthebs]

Finally ..... a decision based on LAW, not PUBLIC OPINION. I'm BLACK and I APPLAUD this ruling. In this day and age, what factors really keep us from achieving the same academically as whites?! I love my black people to death, but we have been usin' that racist card too long.

[democracy1]

"Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent's point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1."

http://www.scotusblog.com/wp/judge-sotomayor-and-race-results-from-the-full-data-set/

[california64]

Sotomayor, if confirmed to the Supreme Court will be the worst justice selected since Clarence Thomas. Today, we saw what "reverse discrimination" and "quotas" looks like with the Ricci case. Nominating and confirming candidates like Thomas and Sotomayor is the same "qouta" issue.

[credibility2]

The Supreme Court's decision was the right one. That Sotomayor is a racist is a given; this wasn't the first time that she's ruled against non-blacks. This is her left-wing agenda. That Obama nominated her makes him complicit.

[dennisall77]

They didn't overturn Sotomayor, they overturned the LAW. The court she was on did not have the RIGHT to change the law. She is STILL going to be a great Justice. I just wish moron Thomas w.. .in other words... a moronould retire. He never EVER asks questions during procedings... he already has his mind made up.. NOT a sign of an inquisitive mind! (Same as Bush!)... in other words, a moron... but worst of all is Scalia.. he is just basically evil..

[pepperwood2]

CBS News legal analyst Andrew Cohen notes that "It's an embarrassment for Sotomayor, for sure. She's just been reversed on appeal and no judge ever wants that to happen.

Yes but we have to keep in mind that BO was the one who rushed to judgment and wanted everyone else too without reading or gathering the facts.

Mrs Sonogram also said she was misquoted when she belittled the Hispanic males. Also that she no longer belongs to her all woman elite club. Like BO shes wants to make sure that she has taken the proper steps so that her Elite Arrogant Attitude towards Our Common Everyday Heroes won't be discovered AGAIN or Again or again or......... So Sad! That these Elite think they should get away with trashing Mr. & Mrs. America. Business as Usual!

[gravyboat3000]

You can ***** and moan all you want, this will not affect her confermation.

As an appeals court Judge, she can ONLY use the written law, she can't change it. That's for the SC.

And how did she belittle Hispanic males?

[Walking_Talking_GOO]

I?m so glad that the Supreme Court of the United States of America came to this conclusion because; it was the right thing to do.

So now, I?m going to offer you dummy liberals to comment on my fictitious (politically correct FREE) Supreme Court of the United States of America (which I am a member of) that will offer a No-BS view of my opinion on this same matter, that I am about to judge. Here is my ruling:

Ricci, et al. v. DeStefano, et al. (07-1428 and 08-328).



Justice ?Walking_Talking_GOO (Conservative justice appointed) rendering in favor:

Without citing previous cases where race is an issue, it is of my most coherent thought processes in regards to cases that have specifically dealt with race in this country, in contrast of what this nations ?Race Hustlers? want you to believe in, that the most qualified personnel were originally selected for advancement based on their individual achievements due to their self motivating, hard working, God given abilities.

To disqualify an individual based on the pre-text of ?fairness?, and to indoctrinate into law an appeasement tactic to minorities known as ?Affirmative Action?, which is based on nothing more than offering society a race quota established by inept politicians crumbling under the pressure of ?Fearing that blacks ? and other minorities- will riot in the streets,? is in and of itself, a tragedy of the human spirit.

Furthermore, the same inept politicians that allow this charade of fairness to continue, undermines not only the security of this great country, but directly puts into jeopardy the very fabric that has held this great country, above all other country?s, together for the last 233 years.

Henceforth, and now that the American people have elected its first black President, it is my opinion while presiding on this court, that all ?Affirmative Action? policies be banned for the betterment of this country.