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Justices Weigh Anti-Bias Move's Impact on Whites

By Robert Barnes
Washington Post Staff Writer
Thursday, April 23, 2009

The Supreme Court searched yesterday for the line where possible discrimination against one race turns into actual discrimination against another.

Conservative justices clearly believed they had found it in New Haven, Conn. That is where city officials threw out the results of the fire department's test for advancement because no blacks and only two Hispanics would have been eligible.

City officials are being sued by the white firefighters who scored well on the exam and saw their promotions scuttled. But the officials say that because federal law treats as suspect tests that have such disparate effects, they would have been sued by minorities if they had approved the promotions.

Yesterday's intense, serious and expanded argument came in the first of two cases the court has taken to examine the role that race should still play in government policies; the constitutionality of a provision at the heart of the Voting Rights Act will be examined next week.

The arguments come as the court has grown more skeptical of such policies, and in the wake of the election of the nation's first black president, who has urged a new conversation about the effects of past discrimination and the future of race relations.

But yesterday's argument quickly revealed a familiar split on the court. Liberal justices sprang to the city's defense, saying it should have the flexibility to discard the results of a test that seemed to produce discriminatory results.

Justice David H. Souter said New Haven found itself in a "damned-if-you-do, damned-if-you-don't situation." Using the exam would seem to cross Title VII of the Civil Rights Act and its warning about tests with disparate effects. Throwing out the test led to the lawsuit from white firefighters, who contend that their constitutional rights to equal protection were violated.

"Why isn't the most reasonable reading of this set of facts a reading which is consistent with giving the city an opportunity, assuming good faith, to start again?" Souter asked.

But Chief Justice John G. Roberts Jr. and Justice Antonin Scalia made it clear they believed that New Haven officials were concerned only that the test had not produced the desired outcomes. They sharply questioned New Haven's attorney, and the lawyer representing the federal government, which largely supported giving the city the right to discard the exam.

Roberts asked Deputy Solicitor General Edwin S. Kneedler whether he could "assure me that the government's position would be the same" if the results had been reversed -- if black applicants had scored well and no whites were eligible for advancement.

When Kneedler said yes, Roberts raised his eyebrows. Scalia went further, telling Kneedler: "I don't think you'd say that."

With the court's most consistent liberals and conservatives in balance, the outcome is likely to depend on Justice Anthony M. Kennedy, who is often skeptical of race-based government policies and who was tougher in his questioning of the government's lawyers.

"Shouldn't there be some standard that there has to be a significant, a strong showing after the test has been taken that it's deficient? Before it can be set aside?" he asked Kneedler.

Gregory S. Coleman, an Austin lawyer who opposes race-based policies and is representing both the firefighters and the Voting Rights Act challengers, said his clients were being punished simply because of their race.

"Racial classifications are inherently pernicious and, if not checked, lead as they did in New Haven to regrettable and socially destructive racial politics," he told the court. He said New Haven officials scuttled the promotions not because they found fault with the test, which they had commissioned from a private company, but because the results caused a political uproar.

Souter said Coleman wanted to turn "any race-conscious decision into a discrimination decision, and that equation we certainly haven't made and we're never going to make."

Kennedy asked whether a city could consider race when choosing between two tests, one of which showed a disparate impact and another that did not. Coleman eventually said yes.

Christopher J. Meade, who represented New Haven, said both public and private employers should have "some limited degree of flexibility" when they learn of a practice that has a "severe adverse impact such that it creates an inference of discrimination."

But Roberts said the test the city wants is only that it acts in good faith because it fears a lawsuit.

"Isn't that kind of a blank check to discriminate, if all they need is a reasonable basis to think that further investigation might be useful?" he asked, saying there would be nothing to stop the city from numerous "do-overs" until it received the results it was seeking.

The Obama administration's position is that New Haven's actions are justified if they were undertaken in good faith, and not as a "pretext" for simply trying to promote minorities at the expense of whites. It advised sending the case back to lower courts for a decision on that question.

The district court originally granted the city summary judgment, and the U.S. Court of Appeals for the 2nd Circuit affirmed. But it seemed unlikely from yesterday's questioning that a majority of the justices would agree with those decisions.

If the court remands, it probably will be with new standards for the lower courts to apply.

The case, Ricci v. DeStefano, is likely to be one of the last the court decides before it adjourns at the end of June.

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