The case before the U.S. Supreme Court today involved employment tests for firefighters, but race-conscious actions by schools were not very far from the minds of some of the justices.
In some ways, the oral arguments in Ricci v. DeStefano (Case No. 07-1428) present an opportunity for the justices to pick up their conflict over the constitutionality of race-based government action. The last battle was won by the court’s conservatives in 2007 in Parents Involved in Community Schools v. Seattle School District, which struck down voluntary integration plans in two school districts and sharply curtailed the ways schools could use race in assigning students to schools.
Justice Stephen G. Breyer, who wrote the lead dissent in the school diversity cases from Seattle and Jefferson County, Ky., today asks the lawyer for a group of white firefighters in New Haven, Conn.—who are alleging reverse racial discrimination—to compare or contrast his case with cases about school diversity.
“Suppose a school district deliberately, to obtain greater racial diversities in the schools, draws district boundaries in a particular way among neighborhoods, or plans a construction program,” Breyer said. “Then suppose having done that, ... a group comes to the school district and says you can achieve greater diversity if you redraw the boundary. ... Is that, in your view, different from your case?”
The lawyer, Gregory S. Coleman, immediately recognized that the question was based on Justice Anthony M. Kennedy’s concurrence in the Seattle/Jefferson County cases, which had said there are still legal ways for schools to take race into account. Most legal scholars accept Justice Kennedy’s opinion as the controlling one, a view Justice Breyer sought to reinforce today by calling it just that.
Coleman’s reply to Breyer was this: “I think the court is not fully in agreement on these questions, but the court has at least an opinion suggest[ing] that those types of examples really are more of ... the race-conscious type determination, and they don’t violate this principle of individual dignity.”
“You’re not taking individuals one by one who have earned promotions,” Coleman added, and taking those promotions away.
To briefly go into the facts of the New Haven case, the city gave an exam to its firefighters to determine who was eligible for promotion to lieutenant and captain. Under the city’s civil-service rules, no black or Hispanic firefighters scored high enough to be eligible for a lieutenant position, and no black test-takers scored high enough to make the list for captain.
The city’s civil-service board declined to certify the results, based on its view that the results had a disparate impact on black and Hispanic candidates that would be in violation of Title VII of the Civil Rights Act of 1964. This led to a lawsuit from white (and one white Hispanic) firefighters who say they were denied promotions because of race in violation of both Title VII and the 14th Amendment’s equal-protection clause.
The issue of employment testing by government agencies itself has relevance for public education, although no school groups chimed in with any friend-of-the-court briefs in this case. (Just about every other civil rights and business group did.)
A few briefs cited a case known as Gulino v. New York City Board of Education, in which a group of black and Latino teachers in New York City sued New York state and the New York City school system in 1996. The plaintiffs alleged that two tests used by the state had a racially disparate impact on African-American and Latino test-takers, and that those in the city system who failed to pass the test were demoted to substitute-teacher status, for which they were received less pay and reduced benefits.
In a 2006 decision, the U.S. Court of Appeals for the 2nd Circuit, revived the teachers’ suit and ordered a federal district court to reconsider whether the New York City school system was potentially liable for the disparate impact of the state’s teacher test under Title VII. The Supreme Court last year declined to step into the case.
Of course, that case involved employment testing at the application stage. Public education tends not to have the sort of civil service testing at the promotions stage frequently seen in municipal police and fire departments.
Getting back to the New Haven case as a continuation of the court’s fight in the school cases, Chief Justice John G. Roberts Jr., the author of the main opinion in the Parents Involved case and an opponent of race-based government action, had a question for Deputy U.S. Solicitor General Edwin M. Kneedler: “Does the government consider promotion of diversity by itself a compelling state interest in the employment context as opposed to the school context?”
“We think it is probably a compelling state interest, but it is not one that can be advanced by racial classifications,” said Kneedler, who was arguing largely on the side of the city of New Haven.
Citing the school diversity cases and other Supreme Court race cases, the chief justice also pressed the lawyer representing New Haven about the where to draw the line between permissible race-conscious action and illegal discrimination based on race.
One factor in this case, replied the city’s lawyer, Christopher J. Meade, was that “this race consciousness ... is mandated by federal law,” referring to Title VII’s requirements that employers guard against tests with a racially disparate impact.
Roberts wasn’t too satisfied with that answer.
When Coleman returned to the lectern for rebuttal, Justice Breyer wasn’t finished posing some education hypotheticals at him.
“In Texas, ... they take the top 10 percent of all the high school graduates and put them in the university,” Breyer said, referring to the state’s plan in response to earlier legal battles over race-conscious admissions. “Now, suppose they just decided, you know what we want to do? The top 5 percent. We want to see how that works. And, of course, then there are people who in fact would have gotten into the university—and perhaps we can imagine a majority of the majority race—and now they don’t. Can Texas do that?”
“Well, you’ve chosen a very controversial subject,” said Coleman, who lives in Austin, Texas, and is a former solicitor general for the Lone Star State. He was perhaps alluding to the fact that the University of Texas’s admissions policies are under a fresh legal challenge and the state legislature is considering revisions to the Top 10 Percent plan.
As long as the Texas plan does not make admissions decisions based on racial classifications, it is “likely” permissible, Coleman told Breyer.
It seems the next big race case is always just around the corner for the Supreme Court.
A version of this news article first appeared in The School Law Blog.