In 2003, the New Haven Fire Department decided to base promotions to the positions of captain and lieutenant primarily on a written exam. But the next year the city threw out the test results when all but one of the eligible candidates for promotion proved to be white. New Haven firefighter Frank Ricci, a high scorer on the test who is white, sued for reverse discrimination. His case is now before the Supreme Court in Ricci v. DeStefano. The case is getting extra play because 2nd Circuit Judge Sonia Sotomayor, President Obama’s choice to take Justice David Souter’s place on the Supreme Court, joined a brief opinion rejecting Ricci’s appeal and then voted to deny rehearing of his case. Many commentators have championed Ricci’s cause and disparaged Sotomayor for voting against him.
New Haven’s decision may sound like blatant racial favoritism, but in fact the city rejected the firefighter exam because the test violated Title VII, the federal civil rights law that prevents discrimination in employment. Title VII requires employers to consider the racial impact of their hiring and promotion procedures in order to prevent discrimination that’s inadvertent as well as intentional. Ricci’s claim is that the city’s effort to comply with Title VII is itself race discrimination (under the 14th Amendment to the Constitution and under Title VII itself).