Monday, June 29, 2009

The Firefighters win.........all Americans win

Justice PREVAILED....what do you know. From the link:

WASHINGTON – The Supreme Court ruled Monday that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could alter employment practices nationwide, potentially limiting the circumstances in which employers can be held liable for decisions when there is no evidence of intentional discrimination against minorities.

"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

(see the words in italics..subtle message, isn't it? Sotomayor? Fairness need not apply)

Am adding THIS LINK from Mustang. Imagine 5-4? FOUR justices on the SCOTUS think it's more important to let people who didn't do well on testing (results of which could have a bearing on the health of their community) get better positions than those who worked so hard and are better fitted for the job?



Sue said...

Loving it...loving it!!!!

Could Obama be wiping some egg from his face? Pretty embarrassing, don't ya think???

cube said...

It was a boneheaded decision by Sotomayor. You can't punish somebody for doing better on a test that by all standards is fair and impartial.

cube said...

This is why "empathy" has no place
in the fair and impartial interpretation of the law.

christian soldier said...

Posted a similar article this morning - after my walk -How great minds work-...:-)

Sotomayor is a racist..I don't know about you-I'm getting mighty tired of reverse racism....

shoprat said...

Common sense will prevail as long as we can hold on for just a few more years.

Ducky's here said...

The ruling makes it harder to attack Sotomayor. She was in the majority on this issue on her panel, and on the full 2nd Circuit, and the Supremes were 5-4. Disagree if you will, but how is this "outside the mainstream"?

On the merits, the decision is troubling and probably divisive as well. Ever since the "Griggs" case, employment practices with a "disparate impact", i.e., which appear "fair in form" but "biased in operation" are illegal. In Griggs, the company imposed a HS diploma requirement on janitors, ruling out virtually all black applicants who grew up in a segregated society.
There are thousands of similar cases since then, including the Alabama prison guards case, in which the state imposed height requirements (as opposed to strength requirements) on prison guards, ruling out virtually all of the female applicants.

Since Griggs, anyone giving an employment test has typically tried to get the test "validated" to ensure it is race neutral. New Haven didn't do that, and the successful black candidates on the test were "zero". If the city were sued, what would their defense be?

This is an activist decision which simply scraps decades of legal precedent in the hope of a utopian outcome. Look for a suit to test the fairness of the exam.

Z said...

thanks, Ducky, kinda a sweet to even think that Dems think WE are the UTOPIANS!

I had a good laugh just when I needed it.

obviously, many people agree with you, and MANY do not.

ONE TEST for ALL PEOPLE...that's the American way.

Ducky's here said...

Well that's a given, z but I do think this case sheds some light on judicial activism.

When I use the term "activist", I mean that it's "outcome determined" rather than "legally determined". In other words, you work backwards from the ending. I think when the Repubs bandy the term about, they're essentially describing decisions with which they don't agree.

All lawyers know that there are usually two threads of legal authority underlying any proposition. Choosing one over the other isn't an activist action. Here, however, I don't believe that's what they did.

At any rate, Sotomajor ruled consistent with 4 seated members and that hardly marks her as out of the mainstream. If this case had overturned New haven by 8-1 then it would have presented Sotomayor's supporters with a potential difficulty. As it stands, no problem.

Larry Durham said...

Hell freezes over in 5...4...3...

beamish said...


What's more important is what all 9 Supreme Court justices agreed upon - that Sotomayor was in deep error in issuing a summary judgement for the city of New Haven.

In that light, they all but dissed Sotomayor's acquisition of judicial competence as coming from a Cracker Jack box.

"Ordinarily, a remand for fresh consideration [whether the City of New Haven in fact had good cause to act] would be in order."

"...why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party."

"The lower courts focused on respondents’ ‘intent’ rather than on whether respondents in fact had good cause to act." - excerpts from Ginsburg's dissent

Translation: Sotomayor's summary judgement for the city of New Haven would never have been issued by judges doing their job correctly.

Ducky's here said...

More to the point, Sotomayor didn't write the trial court opinion

Anonymous said...

She was too busy empathizing with the losers to even try and activate a brain cell...

Law and Order Teacher said...

More to the point, a judge that sees fundamental unfairness in a decision should not sign onto a one paragraph, out-of-hand dismissal of the gentlemen's claim.

Agree of disagree, Sotomayor and the court gave the case short shrift. More to the point, every written opinion in SCOTUS alluded to the fairness issue in some form. Either she didn't see this as unfair or didn't care. Either one is not good for a "empathetic" judge.

beamish said...


That's right. She summarily judged for the city of New Haven without hearing the case against them. She "understood" the city of New Haven's fear of being sued, hence stopped a lawsuit against them. Sotomayor knows the pain of flunking tests she's not qualified to take. Or maybe she had something better to do than hear a case brought before her.

Regardless, not one of the nine Supreme Court justices reviewing this case has anything flattering to say about Sotomayor's summary judgement. And plenty of rebuke.

Z said...

Ducky, not being in mainstream doesn't mean you're right or wrong, of course. And I know this is fun for you because it's usually the left which deals in activism so blatantly.
Why else would HELL have frozen over (as Larry so wisely suggests) if Bush had dared not heeded the dreaded and EXPLICIT warning of "NO LITMUS TEST" in HIS appointees.."LITMUS TEST"

Suddenly, we have a president advising EMPATHY as a LITMUS TEST and the left's all OVER that. Do you see what I mean?

And, Ducky, I"m not sure it IS a given that ONE TEST FOR ALL AMERICANS works anymore in America. A minority flunks and it's the TEST?

Average American said...

The SCOTUS finally got one right. Sotomeyer was WRONG! She is way way to liberal and rules based on her one-sided view where people are entitled to live off the government for their entire lives. Like so many other libs, she doesn't "get it" that there are only so many taxpayers left to pay the bills. Affirmative action is WRONG!!! It always has been and always will be.

Here's a partial copy and paste from a comment I left at another blog.

You want to see racism come to an end? Duct tape the pieholes on people like Al Sharpton, Jesse Jackson, and Rev. Wright. We are at least 6 generations past slavery. If people actually TRIED to better themselves and get off the government dole instead of thinking that they are somehow "entitled" to a free ride FOREVER, they could, and WOULD be successful by now. Some black families have overcome any and all obstacles and are to be commended for it, instead of being called "house niggers." The others need to stop listening to the loud mouths like the aforementioned, and try harder. The biggest reason for the disparity in the 21st century is all due to liberal ideas about so-called "fairness." Get over it!

Anonymous said...

Ducky, explain. What's a race neutral test?

Everyone takes the same test. They can invest the time required to study for the test, or not. They know it's a tough test apparently, from what I've heard. So, perhaps some wanted it more than others who knows?

We haven't been told about white firefighters who did not fare well on the test, have we?

Are you suggesting that black people aren't up to the task and need a handicap going in? Why?

Or are you like every liberal I know, who sees blacks as inferior, and demands a paternal approach regarding them. An uneven playing field if you will, to favor those you perceive as inferior.

If a job requires a HS diploma, quit whining about it, and earn one.

The day that no group is seen as victims is the day this nonsense will end, and not before.

That day may already have come and gone, if not for poverty pimps, race baiters, and class warfare proponents, all of which create mistrust and hatred.

Most of whom are on your side of the fence.


Anonymous said...

New Haven, CT - Adversity.Net, Tim Fay - "New Haven paid $100,000 to a high stakes diversity testing firm, IO Solutions, Inc. of Illinois, to design the exams to be completely free of any racial bias. This is a necessary step these days in order to avoid charges of disparate impact upon protected minority groups -- and New Haven does have a large population of protected minority groups.

IO Solutions, Inc. is one of a few dozen firms which specializes in this kind of politically correct test design, and they are very good at it. According to court filings, IO Solutions did everything right in designing the New Haven fire department's promotional exams to be completely race-neutral, i.e., to not have a disparate impact upon selected, preferred skin colors.

Yet, when the New Haven FD administered the race-neutral tests in November and December of 2003, white firefighters scored so much higher than their black and brown counterparts that very few preferred minorities would have been promoted to the seven open Captain vacancies, nor to the eight open Lieutenant vacancies, if the exam scores were used. New Haven's city charter requires that they follow a "rule of three" which requires that each open promotional position be filled from among the top three scorers on the exams.

If the "rule of three" were strictly applied to the 2003 promotional exams, it would have resulted in all of the open Captain and Lieutenant positions being filled by the best-qualified, highest scoring candidates.

Unfortunately the best-qualified, highest scoring candidates turned out to be mostly white.


Z said...

FJ..did you see Judith Miller and Bob Beckel tonight on FOX? It's ALL about MINORITY wins and BIG SLAMS AND DISCOURAGEMENT to the White man....
positively scary.
Thanks for posting's hard to read, but true.

How do you write a test so people who haven't studied or don't have the intelligence or real interest in the subject PASS...? Then get charged with that community's LIVES?
How have we come to this? It's nuts.

Anonymous said...

Just keep lowering the bar...

It's all about the Democratic patronage system delivering high paying jobs... not about job performance. After all, once EVERYONE has a government job, competence is assured!

Z said...

Fj..they can lower the bar, dumb down the tests, but the brighter guys are still going to win more handily....?

Anonymous said...

A few years ago a friend applied for a city job. She learned to her horror, that minority applicants were give a certin number of points up front, before their tests were taken.

She's white. No points for her. She did get a job, but so did a number of those who received those added points.

To me the sad part of this is, who's to say those minorities who passed the test wouldn't have anyway?

Yet they had the stigma of a point advantage, and would always be seen as a notch lower than their white counterparts.

This is what creates resentment. Paternalism robs people of their pride, their dignity and incentive to excel, and we wonder why there is resentment among some minorities.

Mostly, this kind of thinking creates a victocrat mentality amongst those we are purported to "help".

The old adage, "biting the hand that feeds you", is appropo here. I know I'm beating the same drum, and I'll keep on beating it.

I've seen this kind of thing my entire adult life and it sickens me.


Anonymous said...

Nice spin ducky, but the fact remains, your racist hero got the equivalent of a kick in the ass.

Your lord and savior hussein o got it plainly wrong on this, now all that remains is for you to stop spinning your wheels furiously and just admit it. Or don't you even have the balls to admit it.