Fourteen firefighters of the ‘New Haven 20,’ whose reverse discrimination lawsuit was decided by the Supreme Court in June, were promoted Thursday after five years of legal wrangling.
New Haven, Conn.
One of the most contentious and divisive racial discrimination cases of recent years came to a ceremonial end Thursday, as roars of applause and the peals of bagpipes greeted 25 members of the New Haven Fire Department receiving promotions.
The intimate ceremony followed years of litigation that played a significant role in the nomination process of Supreme Court Justice Sonia Sotomayor and culminated in a landmark Supreme Court decision. The Supreme Court rejected an attempt by the city of New Haven to scrap the results of a test that would have led to a disproportionate number of white candidates receiving promotions.
The lawsuit, filed by the 19 whites and one Latino dubbed the “New Haven 20,” asking for the reinstatement of the test results, quickly became a touchstone for the national debate about reverse discrimination against whites.
For the firefighters receiving their promotions in the auditorium of Wilbur Cross High School Thursday - including 14 of the New Haven 20 - there was a palpable sense of relief that their time in the nation’s racial spotlight was coming to an end.
“It’s a great day, we had to sacrifice a lot,” says newly-minted Lt. Ryan DiVito, surrounded by family, friends, and colleagues, many wearing blue sweatshirts emblazoned with “New Haven 20.”
Closure or just the beginning?
Racial tensions still linger. An African-American firefighter has filed suit against the city, claiming that the test is unfair to blacks. Because of the unusual way in which the original case reached the Supreme Court, many of the particular aspects of the original test – whether or not the test itself was actually unconstitutional – have yet to be litigated, says David Rosen, the lawyer for the African-American firefighter, Michael Briscoe, now challenging the test. What the Supreme Court decided in Ricci was that New Haven’s decision to, on its own, rescind the test it had given, was unfair to the white applicants who had scored well. The suit in New Haven District Court faces long odds.
“We don’t think diversity and merit are at war,” Mr. Rosen says.
But Lt. Abraham Colon, who helped organize the ceremony, says he hopes this public gesture – which included three African-Americans – can begin some sense of healing within the department.
“Some people are going to say they feel this should not be happening,” says Colon. But “today is a day to rejoice.... It brings a closure.”
Terry Rountree, one of the three African-Americans promoted, says he’s just trying to get on with his job in a department where race relations are “not as bad as a lot of people think they are.”
“The way race was pulled into it – it was really sad that it came down to that,” he says. “I’m just as happy as everyone else.” But, he adds, the fight for equality is still ongoing. “One day, someone might have the answer to white/black issues. Today, no one does.”
A new legal landscape
Amid the fanfare, however, lies a legal landscape profoundly altered by the Supreme Court. At issue is the subtle doctrine of disparate impact, which aims to address hidden issues of racial discrimination by looking not at the language of laws but on what results those laws actually produce.
In its decision, the Supreme Court placed a significant obstacle in the path of those hoping to use disparate impact to rectify some systemic causes of discrimination, says Richard Primus, a professor of law at the University of Michigan Law School. His articles were cited by both the majority and dissenting opinions in the case, called Ricci v. DeStafano.
After Ricci, if an employer realizes that its actions have a disparate racial impact on its employees or potential employees, it can’t address the issue on its own, but first has to show that, were someone to sue them, they would probably lose.
“Generally we don’t make employers admit wrongdoing if they are willing to fix the problem. Ricci undoes that... It means the employer has to prove something bad about its own test,” Professor Primus says.
“The big problem some have with Ricci is that the traditional policy of [antidiscrimination laws] is to encourage voluntary compliance and settlement rather than litigation,” he says. “Litigation is expensive, and it’s ugly.”