Also read: discrimination, racism, reverse discrimination, bigot, Supreme Court, Ricci case, Sonia Sotomayor

White firefighters from New Haven, Conn., may have scored a big victory when the Supreme Court ruled they were victims of racial discrimination after being denied promotions.

However, Associate Professor Jamal Greene, a constitutional law expert at Columbia Law School, said the civil-rights community "dodged another bullet."

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Greene noted that the 5-4 decision Monday in Ricci v. DeStefano held that New Haven violated Title VII of the Civil Rights Act, which bars employment discrimination on the basis of race, sex or religion. It also bars job requirements and exams that have a "disparate impact" on applicants from traditionally underrepresented groups.

"Today's decision only postpones the day when the Court will decide whether the disparate-impact standard codified in Title VII violates the Constitution," said Greene, who added that the Court has increasingly viewed Title VII as "forbidding race-conscious government decision making of any kind."

The white firefighters scored highest on a promotion exam in 2003. However, New Haven officials threw out the test results after learning that no Blacks qualified for promotion. Some 20 white firefighters sued, claiming they were victims of racial discrimination. The majority opinion, written by Justice Anthony Kennedy, agreed, and found New Haven "produced no strong evidence of a disparate-impact violation."

Professor Theodore M. Shaw, former director-counsel and president of the NAACP Legal Defense Fund, said while New Haven had "defensible reasons" for its decision, the whole matter could have been handled better.

"The more prudent thing would have been to give them promotions, then look at the tests and stop using them if they weren't predictive of job performance," he said.

By not striking down Title VII but ruling there was discrimination, the Court did not change any law, which Greene said proponents of affirmative action and civil-rights advocates should be grateful for.

"The standard the Court applies for avoiding liability is certainly higher than civil-rights advocates would have liked," Greene said, "but a constitutional ruling would have been far more devastating."

Shaw said the long-term impact of the Ricci ruling is unclear. He hoped it would propel New Haven and other cities to evaluate whether to use written exams as a basis for promotions.

"I think some cities would move away from these tests and reevaluate them, which wouldn't be a bad thing," Shaw said.

Reprinted with permission of Columbia Law School.

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