Fighting Fire with Fire

A debate in the New Haven Fire Department over discrimination in the name of equal opportunity

Does an employer ever have the right to discriminate on the basis of race? Does the government? Those were among the issues the Supreme Court faced last week last during oral arguments in the case of Ricci v. Destefano. What it decides could have a lasting impact on the web of rules governing the American workplace.

The case centers on 15 captain and lieutenant vacancies in the New Haven, Connecticut, fire department. In 2003 the city administered a test to fill those spots, but when the results came in, 14 of the top-scoring applicants were white and one was Hispanic. No African Americans made the cut. In response to local pressure, the city then refused to certify the results and decided instead to leave the positions open until a suitable new test was developed. This prompted a lawsuit from a group of white firefighters who had been denied promotion, including lead plaintiff Frank Ricci, a 34-year-old dyslexic who says he spent months preparing for the now-voided test by listening to audiotape study guides as he drove to work.

"The city did the right thing," New Haven Corporation Counsel Victor Bolden told The Los Angeles Times. "Someone was going to be disappointed, and we could be sued either way." He's certainly right about that last part. Under Title VII of the 1964 Civil Rights Act, business practices that have an "adverse impact" on members of one particular race are illegal except when those practices are demonstrably "job related" and "consistent with business necessity."

For their part, the white firefighters argue that the city broke the law by taking their race into account when deciding whether or not to honor the results. Keep in mind that there are no credible allegations of racist intent against the actual exam. To comply with federal law, New Haven vetted the test with independent experts before administering it. We're only talking about the racially uneven outcomes.

But shouldn't intentions also matter? In a friend of the court brief filed on behalf of Ricci and his fellow plaintiffs, the Cato Institute, Reason Foundation (the nonprofit that publishes this website), and the Individual Rights Foundation argue that direct evidence of racist intent should be the deciding factor. As the brief notes, that approach would allow employers to make use of valid, race-neutral tests that, "although they generate race-based statistical disparity, are good for both business and the public interest generally."

The liberal legal scholar Jeffrey Rosen recently put forward a similar opinion, writing in The New Republic that "in the workplace, the current regime puts pressure on employers to abandon the neutral tests for promotion that are the main opportunity for advancement available to many working-class employees." In Rosen's view, a quota-driven employment test "makes less sense today than it did in the 1970s and 80s, when the country was still dealing with the legacy of workplace legalized segregation." (Rosen would prefer to see the government paying closer attention to possible racism in entry-level hiring decisions.)

Others on the left take a less kindly view of the plaintiffs' case. Elizabeth Wydra, chief counsel of the Constitutional Accountability Center, is worried that "the conservative Justices who adhere to an overly simplistic view of a 'colorblind' Constitution" might very well find that the city acted illegally. In her view, the idea of a colorblind Constitution is little more than a "slogan" or "hopeful catchphrase"—a strange thing to hear from someone whose own organization is devoted to the dubious goal of "fulfilling the progressive promise" of the Constitution.

Wydra also neglected to mention that this "overly simplistic view" has a long and distinguished history, including Justice John Marshall Harlan's eloquent dissent in Plessy v. Ferguson (1896), where he rejected the majority's embrace of "separate but equal," arguing instead, "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens."

So what's the Supreme Court likely to say here? During last week's oral arguments, the Court divided neatly between left and right, with the four liberals seemingly sympathetic to the city and the four conservatives siding with Ricci. Which once again leaves Justice Anthony Kennedy as the likely swing vote. As an indication of Kennedy's thinking, consider the following exchange with Deputy Solicitor General Edwin Kneedler, who had just claimed that New Haven did not sort the test results by race. "Counsel, it looked at the results, and it classified the successful and unsuccessful applicants by race…and you want us to say this isn't race? I have trouble with this argument." Given that Kennedy's previous jurisprudence has been fairly libertarian on the subject of race-based classifications, this was a telling moment, suggesting that Kennedy is open to the plaintiffs' charges of reverse discrimination.

Which he should be. It's one thing for the government to forbid hiring practices (including those crafted to appear race-neutral) that intentionally discriminate. That's at least fully consistent with Title VII. But it's another thing to throw out perfectly valid civil service test results simply because the city doesn't like the outcome. There's nothing fair about that.

Damon W. Root is an associate editor at Reason magazine.