Justices Weigh Anti-Bias Move's Impact on Whites

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.

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