NEW HAVEN FIREFIGHTERS

In late 2003, a total of 77 firefighters in New Haven, Connecticut, took a test for promotion to the rank of lieutenant. Of the 43 whites who took the exam, 25 passed (58 percent); of the 1 9 blacks, six passed (24 percent); and of the 1 5 Hispanics, three passed (20 percent). Because there were only eight vacancies, only the top scores were eligible for promotion. None of the six black firefighters with passing scores was eligible.

Upon learning these results, and knowing that the city was nearly 60 percent black and Hispanic, city lawyers advised the city's Civil Service Board to reject the results, warning the city could be exposed to a race discrimination lawsuit by minority firefighters if it let the exam stand. The board elected not to certify the exam. Firefighters whose scores gave them a good chance at being promoted filed suit, alleging their rights had been violated under the 1 964 Civil Rights Act and the Constitution's equal protection clause.The lead plaintiff, Frank Ricci, who is dyslexic, said he prepared exhaustively for the test and paid someone to record study material so he could learn by listening.

The U.S. District Court ruled for the city, concluding that the city's efforts to avoid discrimination against minority firefighters was "race neutral" because "all the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process."

The firefighters appealed the district judge's ruling, and the case landed with a three-judge panel at the Second Circuit Court of Appeals in 2007. At the end of oral arguments, one appeals judge, Sonia Sotomayor, told Ricci's lawyer, "We're not suggesting that unqualified people be hired. But if your test is going to always put a certain group at the bottom of the pass rate, so they're never, ever going to be promoted, and there is a fair test that could be devised and measures knowledge in a more substantive way, then why shouldn't the city have an opportunity to look and see if it can develop that?" Ultimately, Judge Sotomayor and her colleagues upheld the district judge's decision.

In June 2009, the Supreme Court ruled 5-4 in favor of the white firefighters. Judge Antonin Scalia scoffed at the district court judge's claim that rejecting the results was racially neutral. "It's neutral because you throw it out for the losers as well as for the winners? That's neutrality?"

Some private-sector employers said the ruling might prompt them to use tests more in making hiring and promotion decisions. But the decision had others scrutinizing their existing tests to ensure they are free of bias. The impact of the decision is likely to be more muted in the private sector than in government agencies because private employers are less likely to use a test as the single or predominant criterion for a job promotion.

Ironically, civil service exams were supposed to be the fairest way for cities to hire the best firefighters and police, while opening the doors to more minorities. Exams, it was thought, provided a color-blind way to measure performance and promote minorities into leadership roles within organizations that had clearly discriminated in the past. The problem is that, for reasons not understood, minorities have not performed as well as whites on tests.

But are multiple-choice tests to measure firefighters' retention of information the optimal way to predict how someone would react at a four-alarm fire? Arguably, the most important skills of any fire department lieutenant or captain are sound judgment, steady command presence, and the ability to make life or death decisions under pressure.

In any event, New Haven city officials concluded that their written test was flawed and that there was another trusted method to select firefighting lieutenants and captains that posed less of a disadvantage to blacks and Hispanics. That method relies largely on assessment centers where applicants are evaluated in simulated real-life situations to see how they would handle them. Supporters of the idea say assessment centers do far better than written exams in measuring leadership and communications skills and an applicant's ability to handle emergencies. (You will learn more about assessment centers in this chapter.)

Besides the relatively narrow issue of how best to promote firefighters, this case also raises a broader issue posed to Sotomayor during her Supreme Court confirmation hearings in July 2009. Senator Herb Kohl, a Democrat from Wisconsin, asked an interesting question about 2028. By then, according to recent Supreme Court jurisprudence, some kinds of affirmative action may no longer be permissible. In Grutter v. Bolinger (2003), Sandra Day O'Conner upheld race-based discrimination in college admissions, but only for the current generation. Such policies "must be limited in time," she wrote, adding that "the court expects that 25 years now, the use of racial preferences will no longer be necessary to further the interest approved today." Indeed, by 2023, if current demographic trends continue, nonwhites-blacks, Hispanics, and Asians-will constitute a majority of Americans under 1 8. By 2042, they will constitute a national majority. In fact, in several large states today, these minorities already constitute a majority.

Is there a difference between allowing reverse discrimination in the wake of segregation and discriminating in the name of diversity indefinitely? How effective was the New Haven Fire Department's promotional system in 2003? How do the U.S. armed forces handle these issues?