GWEN IFILL: Ray Suarez has our Supreme Court story.
RAY SUAREZ: Today’s case involves a group of white firefighters from Connecticut. They sued the city of New Haven for what they claim is reverse discrimination.
Marcia Coyle of the National Law Journal was at the court today and joins us once again.
And, Marcia, this all started in 2003 with the city of New Haven fire department. They gave a promotion exam to find new captains and lieutenants. And what happened to land them in the Supreme Court six years later?
MARCIA COYLE, National Law Journal: Well, when the results came back, the city discovered that no African-American firefighters and only one Hispanic firefighter qualified for the promotions.
The city had — its charter had what it called the rule of three. It would fill the promotion vacancies with the three — from the three highest scores in each category.
The results, according to the city’s attorney at the time, reflected a seriously adverse impact on minority firefighters. And he warned the city that, to go forward, the city might face a lawsuit from the minority firefighters and potential liability under the nation’s major job bias law, Title VII.
The city turned the decision on certifying the results over to its civil service board. The board held five days of hearings on the tests. It heard from firefighters, the union, the testing company, other outside experts.
It ended up voting 2-2 not to certify the results. The two who voted against certification said they did so because they felt the test had some serious flaws.
The firefighters, the seventeen white and one Hispanic firefighter, filed suit against the city claiming two things. They said the city based its decision on race, and this violated the Equal Protection Clause of the Constitution and another provision under Title VII, the intentional discrimination provision under Title VII known as disparate treatment on the basis of your race.
RAY SUAREZ: And they lost in the lower courts, didn’t they?
MARCIA COYLE: Yes, they did, and it’s the firefighters who brought the case that was heard today in the Supreme Court.
RAY SUAREZ: So what did their attorney have to say before the judges?
MARCIA COYLE: The firefighters’ attorney essentially argued this was a decision rooted in race. Race-based decisions by the government require the most searching scrutiny under the Constitution.
And the city’s defense here, that it had a good-faith belief that, if it had gone forward with the promotions, it would have violated Title VII. Another provision, known as disparate impact, wasn’t sufficient. The city needed to have a strong basis in evidence that it would have been liable under Title VII.
Defining race-based discrimination
RAY SUAREZ: Now, these kinds of issues have very seriously divided this Supreme Court. How did the justices hear that argument?
MARCIA COYLE: Justice Souter said to the firefighters' attorney that he thought this put a government body in a very difficult situation. He said, They're damned if they do, and they're damned if they don't. If they go forward with the results, they face a lawsuit and possible liability from the minority firefighters. If they stop and try to find a less-discriminatory alternative, they face a suit by the firefighters here who scored highest.
He said, Congress could not have meant two sections of Title VII -- disparate treatment and disparate impact -- to run this way. He said, Isn't it more reasonable, assuming the city's good faith, that you let the city just start over?
But the firefighters' attorney again said, No, this was a decision based in race. There has to be more here than what the city has offered us.
RAY SUAREZ: What did the city have to say in court before the justices?
MARCIA COYLE: The city's attorney faced a question that the firefighters' attorney also faced, and it's a very important question. Justice Kennedy asked, Is race-conscious decision-making always discrimination?
And this goes back to a case involving schools and affirmative action in schools. Justice Kennedy has said that if you assign a student to a school on the basis of race, that is race discrimination, but a school district can take race into consideration if it's interested in racial diversity by thinking about where it's going to locate a new school.
So, as Chief Justice Roberts put it to the city's attorney, Why isn't this intentional discrimination? How do I decide which side of the line it falls on, discrimination or just race-conscious decision-making?
And the city's attorney said, race discrimination is the express use of race. He argued that there was no decision based on race here. The decision by the city was based on a question of whether this test was, in fact, a fair evaluation of the firefighters. And after five days of hearings, he said, the civil service board found that the test was flawed.
And he argued that employers, not just cities, not just public employers, but private employers, when they discover that an employment practice, such as a test, has a disparate impact, a negative impact on a protected class, they need some flexibility in order to act and act without fear of being sued.
Final arguments of court's term
RAY SUAREZ: Now, the white firefighters say that under Title VII race was used in a way that discriminated against them for being white, didn't they?
MARCIA COYLE: That's correct. They are saying that what was violated here under Title VII was the ban on disparate treatment.
Title VII prohibits two types of discrimination: intentional discrimination, which is disparate treatment because of your race, color, religion, national origin, gender; it also prohibits disparate impact discrimination, which is an employer has a tool or a policy, a tool like a promotion test, which is neutral on its face, but has an adverse impact on a protected group.
The white firefighters are saying, you violated the disparate treatment ban. And the city is saying, If we went forward, we would have violated the disparate impact ban. A conundrum.
RAY SUAREZ: And one more big argument involving race next week?
MARCIA COYLE: Yes, next Wednesday is the last day of oral arguments in the term, and the court's going to hear a major voting rights challenge.
RAY SUAREZ: Marcia Coyle, thanks a lot.
MARCIA COYLE: My pleasure, Ray.