Supreme Court should hear appeal

Supreme Court should hear appeal:
Firefighters' reverse discrimination suit deserves full hearing

A New Haven Register Editorial 06/30/2008

An appeal of the dismissal of New Haven firefighters' reverse discrimination lawsuit should be heard by the U.S. Supreme Court.

Twenty firefighters, 19 white and one Hispanic, sued the city after the results of 2004 promotion examinations for lieutenant and captain were thrown out because no black firefighter qualified for promotion. Although the examinations were designed to be race-neutral, the city argued that to accept the test results would have hurt its goal of minority promotion and would have left it liable to job discrimination lawsuits by minority firefighters.

Although the test was thrown out for racial reasons, U.S. District Judge Janet Bond Arterton ruled in a summary judgment that no discrimination happened since no one was promoted as a result of the examination.

In a two-paragraph summary order, a three-judge panel of the U.S. 2nd Circuit Court of Appeals refused to hear an appeal of the suit's dismissal.

That decision, however, did not sit well with all the 2nd Circuit's judges. One asked that its members be polled on whether the full court should hear the appeal. The full-court hearing was denied, but six judges, including Chief Judge Dennis Jacobs, dissented.

The dissenting opinion, written by Judge Jose A. Cabranes, essentially accuses the majority of the appeals court of intellectual laziness for failing to examine issues it had conceded were "difficult," but on which there is no settled law.

The dissent lists a number of constitutional questions. But, it identifies the main issue as how much authority a city has to disregard promotion examination results solely because of the race of the top scorers. Neither the 2nd Circuit nor Supreme Court has ruled on the question.

Arterton had ruled the city had wanted for political reasons to avoid being sued if the tests results were certified. The firefighters believe that their skills and knowledge, not to mention their safety, have been discounted so that less-qualified applicants can be promoted.

The firefighters' claims got a fair hearing from the dissenting judges of the 2nd Circuit. The Supreme Court should hear their appeal.