from HuffPost:
Stephen Kaus
San Francisco AttorneyPosted: July 12, 2009
Fighting Sotomayor, Republicans Falsely Advance Fire Fighter Ricci as the White Man's Rosa ParksWhen the Senate hearings on the nomination of Judge Sondra Sotomayor for the U.S. Supreme Court start Monday, one focus will be the case of Ricci v. New Haven. In Ricci, Judge Sotomayor concurred in a Court of Appeal opinion that affirmed a lower court decision that the New Haven Civil Service Board ("CSB") was entitled to hold a new exam when it determined that the old exam measured skin color more than it measured qualifications to be a lieutenant or captain in the New Haven Fire Department.
The Court of Appeal decision is not unsympathetic to Ricci. It just holds that the CSB had the discretion to hold a new test in light of the clear disparate impact and the evidence that the test was not sufficiently job related to provide justification.
We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. Ricci v. DeStefano, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D. Conn., Sept. 28, 2006). In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.
What Judge Sotomayor did not know was that the Supreme Court would use Ricci as a white person's manifesto, holding that acts taken to combat discrimination should be suspected as acts "because of race," that themselves must be justified by "strong evidence." In practice, the Supreme Court actually applied the dubious and unachievable "enough evidence to leave Justices Scalia and Alito without any doubt" test.
In fact, the Ricci decision that Judge Sotomayor joined in affirming was unremarkable. The New Haven Fire Department, once virtually all white like many fire departments, has progressed by 2003 to 30% African-American and 16% Hispanic. However, the lieutenant and captain positions remained disproportionately white, with the senior officers 9% African American and 9% Hispanic. Only one of 21 captains was an African American. For reference, the overall population of New Haven was 40% African-American and 20% Hispanic. ...........(more)
The complete piece is at:
http://www.huffingtonpost.com/stephen-kaus/fighting-sotomayor-republ_b_230252.html
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