The View From 1776

Judge Sotomayor’s Indefensible Decision

In addition to the fact that the original decision in the New Haven firefighters’ case was not in compliance with Title VII of the 1964 Civil Rights Act, the City of New Haven, Connecticut, is guilty of blatant perjury.  White firefighters were denied their clear rights to promotion in response to local political extortion.

Read Firefighters Case: What Really Happened, published on the National Journal website.

by Stuart Taylor
Saturday, June 13, 2009

I admire many things about Judge Sonia Sotomayor, especially her deep compassion for underprivileged people. I may well support her confirmation to the Supreme Court if her testimony next month dispels my concern that her decisions may be biased by the grievance-focused mind-set and the “wise Latina woman” superiority complex displayed in some of her speeches.

But close study of her most famous case only enhances my concern. That’s the 2008 decision in which a panel composed of Sotomayor and two Appeals Court colleagues upheld New Haven’s race-based denial of promotions to white (and two Hispanic) fire-fighters because too few African-Americans had done well on the qualifying exams.

The panel’s decision to adopt as its own U.S. District Judge Janet Arterton’s opinion in the case looks much less defensible up close than it does in most media accounts. One reason is that the detailed factual record strongly suggests that—contrary to Sotomayor’s position—the Connecticut city’s decision to kill the promotions was driven less by its purported legal concerns than by raw racial politics.

Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed Arterton opinion.

Judge Jose Cabranes, Sotomayor’s onetime mentor, accurately described the implication of this logic in his dissent from a 7-6 vote in which the full U.S. Court of Appeals for the 2nd Circuit refused to reconsider the panel’s ruling.

“Municipal employers could reject the results of an employment examination whenever those results failed to yield a desired racial outcome—i.e., failed to satisfy a racial quota,” Cabranes wrote.

The Sotomayor-endorsed position allowed such a “race-based employment decision,” Cabranes added, even though the New Haven exams were “carefully constructed to ensure race-neutrality” and even though the city had neither found nor tried to find a more job-related test.

The Cabranes dissent and the voluminous factual record that was before the Sotomayor panel flatly contradict the widely stated view that her position was justified by evidence that the exams were not job-related and that they discriminated against blacks in violation of the “disparate-impact” provisions of federal civil-rights law.

In fact, neither Sotomayor nor any other judge has ever found that the exams—one for would-be fire lieutenants, one for would-be captains—were invalid or unfair. Nor has any judge found that allowing the promotions would have violated disparate-impact law.
Rather, the Sotomayor-endorsed position was that under 2nd Circuit precedents, New Haven’s discrimination against high-scoring whites must be upheld based solely on the fact that disproportionate numbers of blacks had failed to qualify for promotion and might file a disparate-impact lawsuit—regardless of whether they could win it.

The decision to kill the promotions was driven less by purported legal concerns than by raw racial politics.

Indeed, the evidence shows that the promotions would have been lawful and that any disparate-impact suit by blacks was doomed to fail.

Disparate-impact law—as codified by Congress in 1991—specifies that an employer whose qualifying exam or other selection criterion produces a racially disparate impact can be held liable for unintentional discrimination only if (1) the test is not “job-related ... and consistent with business necessity,” or (2) the employer is presented with and refuses to adopt another, similarly job-related test with less disparate impact.

But the unmistakable logic of Sotomayor’s position would encourage employers to discriminate against high-scoring groups based on race—no matter how valid and lawful the qualifying test—in any case in which disproportionate numbers of protected minorities have low scores, as is the norm.

Such logic would convert disparate-impact law into an engine of overt discrimination against high-scoring groups across the country and allow racial politics and racial quotas to masquerade as voluntary compliance with the law.

Speaking of racial politics, even the Sotomayor-endorsed Arterton opinion found that there was evidence from which a jury could infer that, as the plaintiffs contended, “city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the mayor would incur the wrath of ... influential leaders of New Haven’s African-American community.”

The victims of the city’s discrimination included lead plaintiff Frank Ricci. Like other plaintiffs, he studied for months, for as many as 13 hours a day, in 2003 to prepare for the combined written and oral exam that he hoped would win him a promotion. He also spent more than $1,000 buying the books that the city had suggested as homework and paying to have them read onto audiotapes. (Ricci is dyslexic.) And he got one of the highest scores.

I sketch below some of the evidence belying the Sotomayor panel’s assertion in its own strangely sketchy opinion that the city “was simply trying to fulfill its obligations” under disparate-impact law when it blocked the promotions. This and other evidence show that the exams were fair—although not perfect (no exam ever was or ever will be)—and that the city’s decision was driven by racial politics, not by any desire to comply with the law.