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The Ricci riddle and the law's limits

What you thought about the New Haven firefighters case was probably shaped less by logic or law than by your attitudes about the world.

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Can you break the law to avoid breaking the law? It sounds like a riddle, or a logical paradox, but in fact it is the question underlying yesterday's Supreme Court decision in Ricci v. DeStefano. And like other riddles, Ricci may have something deeper to teach us.

In 2003, the city of New Haven administered a test to select firefighters for officer positions. One hundred and eighteen firefighters, including 68 whites, 27 blacks, and 23 Hispanics took the test. The top 19 would be eligible for an immediate promotion. When the tests were scored, those 19 turned out to be 17 whites and 2 Hispanics. Overall, the pass rate for minorities was about one-half that of white candidates.

The racial difference in scores concerned city officials. It was enough of what's called a "disparate impact" that it looked as if the city might be vulnerable to a federal antidiscrimination lawsuit. Federal law prohibits employers from treating employees differently on the basis of race, and it also prohibits the use of apparently neutral employment tests on which scores vary significantly by race, unless they can be shown to be based on business necessity. City officials heard various arguments as to why the test they'd used might be unintentionally biased, and they heard their lawyers explain how the results could support a lawsuit for unlawful discrimination. Eventually, the city took a radical step. It threw out the results of the test entirely.

Unsurprisingly, the white firefighters who'd scored well sued. Now, they claimed, the city was discriminating against them. Two lower federal courts ruled in favor of the city, but yesterday the Supreme Court reversed those decisions. New Haven had broken the law by throwing out the test scores, the court said.

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