Supreme Court overturns Sotomayor's Ricci ruling on a 5-4 vote; Ginsburg issues stinging dissent
By David Neiwert Monday Jun 29, 2009 12:00pm
Considering the current makeup of the court -- and the long-established propensity of Arthur Kennedy to lean right on civil-rights cases -- this probably isn't a surprise, just deeply unfortunate:
WASHINGTON - The Supreme Court ruled Monday that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.
New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.
The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional.
"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.
In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them."
Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday.
You can read the ruling here [PDF]. Ginsburg's dissent is especially worth reading, since she thoroughly eviscerates the skewed logic the conservatives applied here. The key graf:
By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served as it was in the days of undisguised discrimination by a fire department in which members of racial and ethnic minorities
are rarely seen in command positions. ... The Court's order and opinion, I anticipate, will not have staying power.
There's also a lot of speculation about how this will affect Sonia Sotomayor's nomination to the Court, since the ruling overturned here was hers. However, what's clear also is that if anyone is being an "activist judge" here, it is the Court's right-wing faction.
As People for the American Way observed in its statement:
Sotomayor and her panel colleagues were bound by longstanding precedent and federal law. They applied the law without regard to their personal views and unanimously affirmed the district court ruling. To do anything but would have been judicial activism.
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...right has plenty of ammo to shoot down her nomination. At least they will think they do.
me, their ammo is gonna be all duds.
five men supreme court judges and all making decisions always in favor
of the super conservative side their bias decisions always represent. they should all be
very embarrassed for their 19th century attitudes. but then they are hypocrites in
long black robes. so shameful.
This is logic as in the Sanford matter. We can do as we please, and what are you going to do about it? All the more reason she should be on the Court.
you are so correct
I can hardly wait for legal scholar Mark Levin's view on this judicial activism.
I can just hear him..'The Court was protecting RIGHTS! The RIGHTS of those firemen to not be discriminated against! They were protecting LIBERTY! And to deny liberty, particularly to our brave and noble firemen...who put their lives on the line to protect US...to protect our chidren...our property....is unpatriotic...I get so angry....and yet I am so proud of our court...I feel I must siiiing...Gawwwwwwd. Blesss A..murrrr..ica....Laaaaaaand. that I looooooooove....."
Seriously? I think being a scholar means having great knowledge of a particular subject, not just being opinionated about a particular subject. Is he a scholar? I am not very familiar with his ranting, I mean opinions, as I find him distasteful.
"Levin earned his B.A. and J.D. at Temple University."
From Wikepedia
he is a scholar, other than his high opinion of himself. I realize he may be a scholar--an expert on this issue, but I cannot find anything to prove that. Am I missing something? Seriously.
I didn't have any luck finding questions on the test that were deemed biased. Can someone post a few so I can understand this better?
Minorities on an everyday basis speak and interpret what they read differently than whites, affecting their ability to perform tests at the same efficency as whites. Either all blacks are stupid, or the tests aren't fair.
I'm not asking for an opinion, I'm asking for examples. I'm hispanic, if that means anything.
If you would research basic Statistics relating to cultural bias in various standard testing, you wouldn't ask such questions.
In other words, you don't know WTF you are talking about, you just have to go with the flow. Thanks for wasting my time.
Trying to find a spot here before the name-calling really starts in earnest...
You're not going to find an analysis of the questions on the test in the main opinion. New Haven lost, according to the majority, because the city concluded the minority firefighters had a disparate impact claim WITHOUT first looking for biased questions (training, procedures, etc.) and then committed the sin of using disparate treatment against the white firefighters.
This is a reasonably narrow conservative win. The past 20 years, over and over again, Kennedy and O'Connor in particular have been reluctant to overrule past civil rights cases outright, but have demanded increasingly bizarre legal fictions as the price of continued protection. In this case, if New Haven had only looked at the test and been able to point to one or two questions claiming, however frivilously, that they contained bias, today's decision says they would have had a rational fear of a Title VII suit, and throwing out the test would have been fine. Similar rules were established earlier this year in the voting rights case and earlier in cases like Gruttner (on university admissions).
A liberal win would be to say, quotas are fine, as long as they advance a legitimate state interest. Conservatives would like to say, race can never be a factor in any decision. This decision did neither.
And I don't know who Arthur Kennedy is, but his mother must be very proud that he's getting credit for writing opinions.
... for all of you self-styled scholars who care about accuracy.
God, what a dumbed-down country.
And the rightward drift continues unabated ...
A big middle finger to Johnny Boy Roberts, the homespun young fascist who's going to lead the court for years to come, smiling like a goober the entire time ...
BID
In other words, you're too stupid and lazy to investigate on your own to ascertain the truth concerning whether these test are truly unfair to people who happen to be culturally different, or minorities are simply too dumb to pass an exam.
He did try to ascertain "the truth concerning whether these test are truly unfair to people who happen to be culturally different"... I believe his first question was asking for examples. It seems like he was starting to do exactly what you're bagging on him for.
Have you seen the test yet? Have you investigated the test to see if your beliefs are correct? From my understanding most people haven't seen it because it's not in the public. Maybe if it is, we could all speak to it a little better. But `nyguy` merely was inquisitive and you attacked him for being so.
Your claim that you should just look at all the other examples of tests being biased is not appropriate, as obviously not all tests are created equal. I guess maybe you think ALL tests are biased because people (based on race) act, talk, walk differently. I would think that would be a rather prejudiced view point, as I'm sure most people here wouldn't want to be lumped in a group based on their race and told that they walk and talk this certain way.
Wow, thanks for understanding that I was looking for a valid arguement based of evidence to make a judgement.
Not to get off the subject, I should have toned myself down too, rather than confrontation. I guess I was caught up in the moment but that's still no excuse.
Maybe the blacks did not adequately study, afterall the hispanic passed the test and one could argue, hispanics are taking the role of the low class minority from blacks.
Besides, I'd rather have my taxes pay for firefighters who can pass an exam than those who did not pass and as a result we're given special privileges based on their race.
We need to stop trying to level the playing field, survival of the fittest is the only reason we humans are what we are today...
Sheeple? Hypocrites? Tea baggers? Glen Beck? Fox Nation?
Sure any of those is better than other mammals
Sorry, trolls are lower than all mammals and a good number of reptiles.
Anyone who disagrees is a troll...ok now I understand, thanks
Anyone that continually regurgitates the right wing talking points is a troll.
...8th grade dropout replies that would make Archie Bunker proud, you deserve a smackdown.
Don't preach your lilly white dumb shit to me jerk. I got a composite 31 on my ACT in high school and have two degrees. I never make excuses, but if not one black firemen passed that test some is wrong with the examination.
Btw, one hispanic passed the test.
Exactly work hard and you can achieve, don't throw out a promotion because one group of individuals did not achieve and how is it fair to those who passed? Put yourself in their shoes, what if you studied hard for your ACT score, and found out it was irrelevant because other people did not do well on it?
My mother taught high school, and my dad was a cop who didn't fuck around concerning education. This topic doesn't have anything to do with me. Not every minority was as lucky as I was. You're disingenuous.
My dad was a public school teacher and administrator who worked with Title IX, a program to assist underpriviledged kids. One of the things he worked against was the bias in testing, which is evident in many, many "standard" tests throughout our culture.
So you're spot on, L&L.
One example from an elementary school test:
Matching -
Cup and ______
a. saucer b. house c. table d. bed
Most anglos would check a.saucer. Where I grew up in the 1960s most blacks were very poor, and didn't HAVE any saucers. So when little kids saw this question, they figured the answer was c. table, because that's where you put your cup.
And when it was marked wrong, their scores were lower than the white kids' scores. This is just a simple example, but it shows the bias inherent in school testing in the 1960s. Same thing goes on today, especially with private testing groups.
Saucers... I learned that from cartoons and tvs, not because we sat around drinking from saucers.
I still think we're missing it... You said most black people where you were from in the 1960s were poor, and therefore they didn't use saucers. So in that regard, you're using poor as the reason - and race is used merely as a group that is usually poor (in your example). So really, the only criteria you are basing it on is wealth. We all know that poor people come in all races, so the question isn't biased against a race, rather a class (the poor).
I agree tests have long been a poor judge of intelligence/ignorance. However, I wish we could stop saying it's biased against a race, and start saying it's biased against certain classes/areas/languages. It would be much more apt I would think.
tried to better yourself by taking a civil service exam, and couldn't pass it, because you never learned reading comprehension, math skills, and so forth. How is that fair? Explain to me how that is fair. And you shoot yourself in the foot, when you say "one group" of people. You are a racist, aren't you?
If you haven't had an education and can't read or do math, you would need to learn that before getting a job... Most all jobs require the employee to know how to read or do basic math for everything from reading/signing Invoices to getting memos about job related issues.
There are lots of adult education centers out there. It might not be fair that the person was never put through school when they were younger, but you can't really expect a job to hire someone until they can perform basic duties.
I can see what you're trying to say.
I've read all of your comments. And having been on the short end of affirmative action for being white. I think I see where your coming from.
Your problem is, is that you're a dumbass. If you can't word things better to get your point across, don't get involved in hot topics regarding race. You come across as a dumbass. Reread your own comments.
Has the light bulb gone on yet? Or are you a dim bulb?
I see people making comments about some children not having enough food when they were kids, and how it affected their learning abilities.
Well, I come from a poor family. I remember when I was 13 and didn't see food for weeks in our house. Not just 1 or 2 weeks. My friends fed me. Then I got a job as a dishwasher, so I could get a meal. Plus I was getting paid a dollar an hr. Right there and then I started working. And Ive been working ever since. Until today. I got laid off. I'm 52 this month.
1st time in 20 years that I got laid off. But this is going off topic. I guess my point is not all white people have had it easy.
But, I am for affirmative action. As for these tests. It's time to get new ones. I'd like to see these tests that are in question here.
I don't think that you're a racist. Just a dumbass.
Hey, you can't be stupid all of your life. Can You?
Like I said, I think I see the point you're trying to make.
Parts of it, I think are legitimate. Parts of it, utter bullshit.
Next time, try to word your position better. Be more articulate.
Cause these folks will rip you to pieces for coming across as a dumbass. I suppose you could say that you brought this on yourself.
I agree with Sotomayor and her position. I think this decision set civil rights back at least 10-20 years. But this will come before the court again. And once she gets on the SCOTUS, she'll be the deciding factor to correct this.
As for this test. Get a new one . And who ever scores the highest should get the job. Regardless of color or creed or religious beliefs. But it has to be a fair test. Like I said, I haven't seen the test. I'd like to see these tests. one more thing, stop being such a dumbass. This doesn't excuse other people calling you a racist in my eyes though. If anything, some of them came across as one.
I will say this tylertmb123 or whatever your name is. That took balls to take that position. Not much brains, but some balls.
I was pro Sotomayor's opinion based on what I read here and a couple other places. The more I read now, though, the more it seems she didn't really have an opinion, merely reiterated what another court said.
The history of the case:
"In 2006 a federal district court dismissed the case before it went to trial. A three judge panel of the Second Circuit Court of Appeals that included Judge Sotomayor then upheld the lower court's judgment in a one-paragraph statement, and later a terse opinion parroting the district court."
Her "mentor" Jose Cabranes put it:
"Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case. … This perfunctory disposition rests uneasily with the weighty issues presented by this appeal."
Ginsberg agreed:
"Justice Ginsburg wrote that while she disagreed with the decision to reverse the lower court ruling, there were questions about how it was decided. Based on the lower court's mistaken focus on intent, she wrote, "ordinarily a remand for fresh consideration would be in order."
I'm not positive, but it seems like we're all jumping on the bandwagon because we're used to awful opinions from the conservative justices and we want to support Sotomayor. However, it seems she didn't really do much with the case, so we shouldn't be worried about that. It also seems like the decision was based solely on equal protection, and I would hope that wouldn't be as controversial.
In all, it seems the court is trying to say that equal protection is equal protection. It was never shown that the test was biased, it was created by a 3rd party company who would have no interest in the results except for them to depict the most qualified applicants, and the results were thrown out simply because they didn't look good and the city got worried it would be sued by the black test takers.
I know there's a history of biased tests, but using only history as an indicator is by definition prejudiced. You need to look at the test and show where it's biased. If there were particular questions that a large percentage of one race missed, that would be a start I would think. Apparently this was never proven though, so I don't know... but I would think you would have to show where the bias was instead of just assuming it must have been. 8 black people taking the test and 3 passing it isn't really large enough of a sample to say it is inherently biased. Our assumptions that it is are based in prejudice, and that's only sometimes accurate.
Actually, the opinion says nothing about equal protection. They say they don't have to address the constitutional questions because the issue is decided based on the text of Title VII.
Honest to god, all this decision says is that the city screwed up by not trying to figure out what went wrong. You apparently can't throw out the results of a promotion test just because you're afraid of a civil rights suit without first wondering if the suit would have any merit. No new constitutional rules, no change to Title VII.
Not even the author of this post seems to have read the opinion. This isn't an example of an activist conservative judiciary (although it would have been if Thomas had gotten his way). This is just another mundane example of the middle of the court wanting to cut the baby in half on race questions.
Thank you for your thoughtful response's.
It's nice to see these kind of comments instead of the attacks that happen.
I'm still trying to figure this ruling out.
Again, thank you for your insight. It helps me make a more informed opinion.
But they say Title VII was violated by the city when they dismissed the results... basically saying there was not equal protection... right?
"We need to stop trying to level the playing field"
Or put another way,we need to stop redressing injustice.
It's entirely possible that those minorities passing the test came from less impoverished backgrounds,and competed with fewer siblings for basic dietary sustenance,all of which contribute to cognitive ability,yet the mantra goes that if you work hard,you will be rewarded.Unfortunately socioeconomic reality dictates that some must work far harder than others to attain the same goals.Ginsberg also points out that these promotions rely too heavily on the written tests as opposed to experience and ability.I think Social Darwinism has no place in Civil Society.
x
And socio-economics doesn't necessarily have to do with race. So most of the time, it seems, we're looking at it backwards. For some reason we start with the assumption a minority will be poor and a white person will be middle class or above. In my opinion, we should start with the wealth you grew up in, then to the area you grew up in and continue from there.
...if it's like the other American cities I've visited & lived in, the schools in white neighborhoods are really nice & well equipped, while the schools in black & hispanic neighborhoods are crappy & underfunded. This probably contributes to the disparity in test score results. Perhaps if we correct the disparity in school quality, the disparity in test score results will correct itself. In the meantime, the white firefighters were wrongly held back. After all, it's not their fault they did well on the tests.
I taught in middle schools in S. Korea for two years. Their schools make even our worst schools look good by comparison. They have no gym, no janitors, no heat in the classrooms (the kids sit at their desks fully bundled in coats and mittens in the winter), and few of the basics we take for granted. Yet they run circles around most of our kids academically.
I know it's blasphemy to say so here, but it's time to stop with the knee-jerk excuses for people who don't perform well and look at how we can change the culture that produces them. We can only do that by admitting to the shortcomings of parents, not the shortcomings of schools. It's a values issue. I get that it's not exactly a level playing field out there, but if you don't place a high value on education, and teach that to your kids, you can't expect a good outcome no matter how much money is thrown at your schools. And we can't keep changing the rules to accommodate you.
I'll keep looking.
company that designed and owns the test that was administrated. That means, unless they are released by the owners, or a court orders their release, we will never see them. I could be wrong about this, but I don't think I am.
-has peculiar and unexpected results, both the test and the candidates should be re-evaluated to find out why. Maybe the minority examinees were just less educated, or maybe the questions were slanted; who knows?
If I were looking over test results like this, I'd stop the process and do some investigating before acting on the results.
New Haven had that responsibility. In this country, because of past injustices, government must level the playing field for all civil service exams by taking into account things like unequal education, etc. The questions cannot be slanted, either. One expects one's government to do the right thing. News Flash: Many are disappointed.
The law states that the criteria for a position be job related. When almost no minorities (some blacks and some hispanics passed the test but because of other rules only one hispanic was actually eligible for promotion) passed the test the city of New Haven realized that the test didn't necessarily meet federal civil rights guidelines and could cause them to be sued for not complying so they threw out the test. This isn't discrimination. New Haven threw out all the tests, which is not discriminatory. Allowing the promotion test to go forward would have potentially violated Title VII opening the city up to lawsuits. Check out the excellent article on Slate about this case. It's been grossly misrepresented almost everywhere else.
http://www.slate.com/id/2219062/
..but I think that slate article is off base. Just because not many minorities passed it does not inherently mean that the test itself was biased, not even under title VII. The city messed up in not even bothering to investigate the situation before tossing out the results.
We all know that racism in this country ended in November. Why shouldn't the court rule this way. At least that's what the conservatives want you to think. The same conservatives emailing racist jokes and making racist comments about Michelle Obama. The increase in hate groups is just a number. They all love to have them some black people at a bond fire.
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