Promote the New Haven 20!

April 16, 2009

It’s crude, but there’s no better way to describe the situation: They got screwed.

In 2003, New Haven’s fire department conducted examinations for prospective lieutenants and captains. The city encouraged firefighters to study hard, since the tests included both written and oral evaluations, and would be administered by Industrial/Organizational Solutions (IOS), a national public-safety firm.

Over 70 applicants took the tests. Of the top 15 scorers, 14 were white. One was Latino.

You know where this story is going. The ugly racial politics of the Elm City quickly took command of the promotion process. Boise Kimber, a “minister,” felon, and all-around sleazoid, used his standard thuggish tactics to make it clear that there would be a “political ramification” if no promotions were awarded to black firefighters. (Incomprehensibly, Kimber, a key crony of Mayor John DeStefano, heads the city’s Board of Fire Commissioners. Late last year, in an editorial that called him a “repeated embarrassment” and “not fit to hold a city post,” the liberal New Haven Register demanded his resignation.)

In collaboration with Kimber, the DeStefano administration warned the city’s Civil Service Board (CSB) that certifying the results of the examinations would invite a lawsuit. After all, if no black firefighters earned top scores, the tests must be racist. (Never mind the trifling matter that IOS did everything it could to eliminate even the appearance of any racial bias in its assessments. For example, it followed U.S. Equal Employment Opportunity Commission-recommended practices and hired an evaluation team comprised mostly of minorities.)

The CSB deadlocked on certification, 2-to-2, and as a result, nobody got a promotion.

The city was sued anyway. With firefighter Frank Ricci taking the lead, 20 high-scoring applicants (19 whites and one Latino) asserted that their equal-protection rights under the Fourteenth Amendment and statutory protections provided by Title VII of the Civil Rights Act had been violated. Spurious claims of racial discrimination, the plaintiffs averred, couldn’t be used to justify actual racial discrimination.

U.S. District Court Judge Janet Bond Arterton -- a loony-left Clinton appointee who in 2007 told the “New Haven Independent” website “there is simply no reason in this day and age why [the share of female U.S. District Court judges isn’t] pushing 50 percent” -- bought the city’s buncombe, and dismissed the suit.

National Journal’s Stuart Taylor described what happened when the firefighters appealed: “A three-judge panel of the U.S. Court of Appeals for the [Second] Circuit affirmed the dismissal, in a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep the case quietly under the rug, perhaps to avoid Supreme Court review or public criticism, or both.” (Taylor noted that one of the jurists was “Sonia Sotomayor, who is touted by liberal and Hispanic groups as a leading candidate for an Obama appointment to the Supreme Court.”)

A revolt by the Second Circuit’s centrist and right-leaning judges forced the case to be heard by the full court, but fell one vote short of overturning the dismissal.

The “New Haven 20” appealed to the U.S. Supreme Court. It was a long shot, but in January, justices agreed to hear the case. On Wednesday, the firefighters will get their day in the High Court.

“At its core,” wrote Second Circuit Judge José A. Cabranes in his dissent in Ricci v. DeStefano, “this case presents a straightforward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?”

If the justices apply their recent reasoning on racial preferences, the firefighters will prevail. Two years ago, in concurring with his colleagues in their striking down of “diversity” schemes for schools in Seattle and Louisville, Justice Clarence Thomas wrote that “race-based government decision-making is categorically prohibited unless narrowly tailored to serve a compelling interest.” It’s difficult to see how, by quelling the tantrums of a corrupt “community organizer” and avoiding the possibility of a baseless lawsuit, New Haven met the compelling-interest standard.

Next week, Frank Ricci and his fellow plaintiffs will get a chance to secure the promotions the City of New Haven denied them five years ago. A victory for the firefighters would be a blow against the disgusting racial demagoguery of John DeStefano, Boise Kimber, and their ilk. But it would also be an important step toward the establishment of a truly colorblind nation.

D. Dowd Muska is a writer, commentator and lecturer. His website is www.dowdmuska.com.

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