Shame on Sotomayor, Shame on the Supreme Court

Shame on Sotomayor and her colleagues. Judge Sotomayor and her fellow appeals court judges did indeed dodge a bullet in the debate over how we create equal opportunity of employment in the United States. The appeals court on which she sits wrote a short paragraph approving of the district court’s decision. That decision agreed with the district court that the City of New Haven was correct to throw out test results that supported the promotion of white firefighters (and one Hispanic) but no black firefighters. To do so would have a disparate impact on minority firefighters when other types of testing are available.

But shame on the Supreme Court as well. Courts do indeed make policy even if Sotomayor stated in her hearings that she simply interprets the law. In fact, at times courts are ahead of public opinion, behind public opinion, and even at odds with Congress. In fact, Congress amended the Civil Rights Act in 1990 after a series of Supreme Court decisions appeared to change proof of discrimination.

But on behalf of Judge Sotomayor and her colleagues, to rule for the white firefighters would be equally a problem. That is because many of the most important employment and related civil rights cases result in a divided opinion by the Supreme Court. The Supreme Court has continually left employers up in the air about how to actively recruit and promote minorities but at the same time not discriminate against majority members. The mixed signals have led the public to be hostile to affirmative action fearing that that affirmative action creates “reverse discrimination,” a term not used by the courts.

The Supreme Court has now overruled the court on which Judge Sotomayor sits ruling that the white firefighters (and one Hispanic) were discriminated against when they did not receive their promotions. They took valid promotional tests, both oral and written tests. The Civil Rights Act prohibits “norming” the tests scores based on race so New Haven had two choices: to use the results or to not use them risking a court case by the white firefighters. The case will again return to a lower court for implementation in light of the Supreme Court decision.

Unstated in all the discussion is that New Haven has not been able to promote any firefighters in over five years. Captain and lieutenant positions are now being filled on a rotating basis (because of shift work) based upon seniority. These firefighters are, of course, receiving additional pay and additional payments into their retirement for their added work. Still this would not be an acceptable situation in most businesses.

In New Haven case Justice Kennedy gave the opinion of the court but there were two concurring opinions and one dissent. The press identifies this as a 5 to 4 decision. A concurring opinion is one that agrees with the majority opinion but has different reasoning. Again, this makes it difficult for employers to decide what is correct. Justice Kennedy held an employer may discriminate against the majority if “the employer [has] a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.” Kennedy glossed over the fact that the City of New Haven actually did fear liability for disparate impact on minorities Kennedy held that the evidence presented on the process of developing and validating the tests superseded the concern of liability and so the City of New Haven violated the rights of the white figherfighters under the Civil Rights Act but not the equal protection clause of the Constitution.

The court leaves in place the guidelines that made it so difficult for New Haven to decide what to do. Disparate impact occurs when a test which on its surface appears fair is, in fact, discriminatory. The Equal Employment Opportunity Office (EEOC) states that any employment condition, hiring, firing, promoting, testing, terminating in which the balance of individuals is greater than 80% for one group than another group is a prima facie case of discrimination. That is exactly what happened in New Haven.

The trend of the courts has been to prohibit discrimination of the majority in favor of the minority, but always in a fashion that leads employers (and educators) to wonder what they should do. Perhaps, one of the most important cases related to the rights of the majority versus the minority is the Bakke case. Bakke, a white male, won the right to attend medical school after the Court (1978) ruled that setting aside openings for minority students violated the Civil Rights Act and the equal protection clause of the Constitution. In that case, there were six separate opinions with the “majority” opinion not totally by any other justice. The court ruled, that is one justice ruled, that race could be considered a plus factor in determining entrance for diversity purposes, but quotas or set asides were prohibited. Racial classifications are subject to strict judicial scrutiny to determine if there is a compelling reason for them. Otherwise, they violate the Equal Protection Clause of the 14th amendment of the Constitution. Still in 2003, a big 10s undergraduate and law school admissions methods were tested. The Court, again, ruled that race could be used as one aspect in deciding admissions to promote diversity for the law school without violating the equal protection clause or the Civil Rights Act (in an opinion again yielding 6 opinions for the nine justices, but admission points for race used in undergraduate admissions violated the Equal Protection Clause of the Constitution and the Civil Rights Act. This split in the court’s opinion created a majority of one with concurring opinions in part and 3 dissenting opinions.

In the case of a city setting aside a certain percentage of contracts for minority contractors, the Court ruled (1989) against such a policy. There was no history presented of discrimination by the City. In this “6-3 opinion,” no judge supported the “majority opinion in toto,” with 3 other concurring opinions and two dissenting opinions. When a contractor sued the Department of Transportation over its set aside policies to hire minority contractors, the Court ruled (1995) 5-4 that any racial classifications used in hiring contractors for state work are subject to “strict scrutiny” and must be justified. This led the DOT to create a program to promote the provision of contracts to economically disadvantage contractors rather than use the wording women and minorities.

Perhaps, showing just how difficult it to balance the rights of majorities and minorities is a case that went to the Supreme Court but was settled by the parties before the case was heard. In Taxman v. Board of Education of the Township of Piscataway (1995), an appeals court ruled that a white teacher was not discriminated against when she was laid-off and a black teacher to continue. The teachers were hired on the same day, had equally favorable evaluations, and taught the same subject. What would you do?

Despite changes in the composition of the Supreme Court, the justices remain divided, and that is likely to continue to be true when Judge Sotomayor becomes Justice Sotomayor. Interpreting the law, that is making policy, is extremely difficult.