The New Haven firefighters

In all the scrutiny of Judge Sonia Sotomayor’s record and writings, the Ricci case certainly got a lot of attention because it was about affirmative action, reverse discrimination, and the place of ’empathy’ in judicial ruling. And because it was set to be reviewed by the sitting Supreme Court.

Now that the high court has overturned Sotomayor, press and politicians and the chattering classes are swift to analyze the ruling and its ramifications. What we haven’t heard much about all along is the story behind the New Haven firefighters, the plaintiffs, and particularly Frank Ricci. If Sotomayor applies empathy to her judicial decisions, where was it in this story? He worked so hard to overcome a disability and earn advancement.

Well, everybody worked really hard on this exam, and with a learning disability I had to work a little extra harder, but I prepared myself throughout the — throughout my entire career, you know, studying hard, as we all have, you know, reading trade magazines, like “Fire Engineering,” taking classes on our own time.

I mean it’s a common story that you’ll find throughout the New Haven 20. I had to work a little harder with — because I have some trouble reading so I had my father and a neighbor read the books in a tape for me so I could study that way, studied on the way to work, and you know, everybody, all 20 of us have a story…

His wife doesn’t work outside the home, and on a firefighter’s salary that has to provide for his family, he hired a tutor for $1,000 to help him prepare for the exam.

It’s a lot of money and it’s a huge sacrifice for all our families going through this process.

They all worked to become officers. And what happened became a legal quandry for the city of New Haven, or so they saw it.

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.

In examining the merits of this case and the lower court’s ruling….Sotomayor’s….the Supreme Court was looking at what some analysts see as the need for a new standard.

What should happen when an employer discriminates in one way to avoid discriminating in another is a question that existing law simply did not answer.

If law runs out, perhaps logic can help? New Haven had a choice. It could accept the results of a test that had a disparate impact on minority applicants, or it could reject them. The two decisions are mirror images in terms of their consequences, one harming minorities and one harming whites. If one is unlawful, it would make sense that the other should be, too. But if both options violated the law, it would be an unendurable paradox. And so, one might think, the answer must be that both are lawful and New Haven could choose either…

There is a case to be made that the two choices are equivalent, but few people would accept it. Instead, most find one much worse than the other. And which one they find worse tends to depend on what they think about the original racial disparity in scores. Those who think that the disparity was mostly due to differences in merit tend to think throwing out the scores was terribly unfair, while those who think the original test was biased think discarding the results was the right thing to do…

It would be nice if we could bridge the divide, but it is probably impossible. There is evidence pointing in both directions. New Haven hired an independent company to design a fair test, the majority notes. But test preparation materials were expensive and may have been more available to white candidates, the dissent counters.

But then, look at Frank Ricci. This case is about reverse discrimination.

Well, I think we view discrimination as discrimination, and plain and simple. We were discriminated based upon our race just like African-Americans were in the past in other issues. So it’s just plain old discrimination.

Hannity brings up a point here that other legal experts have made since Monday’s ruling, that while it was a close 5-4 decision by the Supreme Court, the minority’s opinion shows it to be 9-0 in rejecting Sotomayor’s earlier ruling on Ricci.

And now Ricci and fellow firefighters who scored highest on the exam look forward to their promotion ceremony and hopefully, with back pay.