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High Court Poised To Closely Weigh Civil Rights Laws

He added that if it is unfair to white firefighters to have the promotions scuttled, it would be equally unfair to black firefighters who were "locked out" by test results that did not truly produce a list of those most qualified.

A district judge ruled for the city, as did a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit. But the case created a loud disagreement among the judges on the circuit. After the full court voted 7 to 6 not to rehear the case, dissenting judges called on the Supreme Court to get involved. It will hear the case Wednesday.

The Obama Justice Department mostly sides with New Haven officials. It told the court that employers may decline to certify the results of promotional tests if they believe that doing so would violate Title VII's prohibition against disparate impacts.

But it added that such a rationale cannot be used as "a pretext for race discrimination" and said the Supreme Court should return the case to lower courts so a jury can decide whether that was the true reason for the city's actions.

Seitz, speaking at a discussion about the case sponsored by the American Constitution Society, said the court's decision will probably also be important for private employers who want to diversify their workplaces but live "on a knife's edge" about whether hiring and promotion tests will lead to lawsuits.

She thought the administration's proposed remedy in the firefighter suit might be appealing to the court because of the dispute about the city's motivations.

The case reflects "the conversation about race in this country," Seitz said.

"Nobody trusts what the other side is saying."

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