Ginsburg dissent in firefighter case lives on as a lesson in Conn., beyond

The recent death of U.S. Supreme Court Justice Ruth Bader Ginsburg caused me the next day to reach into my files and pull out a copy of one of her writings that I have kept close by for some years. It is Justice Ginsburg’s 39-page dissent issued on June 29, 2009, on the court’s decision in Ricci v. DeStefano.

Ricci v. DeStefano is a federal case that resulted from two promotional exams that the city of New Haven administered in 2003 for the rank of lieutenant and captain in the New Haven Fire Department. The City’s Civil Service Commission voted not to certify the results of the exams on the basis of the judgment that the results violated federal Title VII disparate-impact law. As a matter of note, this was a decision that I fully agreed with.

A group of New Haven firefighters subsequently filed suit against the city in federal court. Over the course of the litigation the city’s position was upheld in the District and Second Circuit courts, but reversed in a 5-4 vote at the Supreme Court in June 2009. Hence the Ginsburg dissent to the majority ruling.

Many might recall this case as a reverse discrimination lawsuit, as a matter of injustice to majority or minority race firefighters, or as a straightforward matter of fairness. It is not my intent to revisit the case, what happened or the outcome. That territory has been well trod including in a production by Yale Repertory Theater titled “Good Faith, Four Chats About Race and the New Haven Fire Department” that was staged in New Haven in 2019.

Rather I am drawn to some of what Justice Ginsburg wrote in her 2009 dissent and its relevance to the civil protests and actions that occurred in New Haven and across this country this past summer and that continue to this day. These protests are deeply rooted in the injustice and discrimination that resulted in the deaths of George Floyd, Breonna Taylor, Michael Brown, Eric Garner, Ahmaud Arbery and so many others of our fellow American Black citizens.

Citing Title VII, Ginsburg in her dissent points to the law’s twin objectives, “ending workplace discrimination and promoting genuine equal opportunity.” These goals of ending discrimination and promoting genuine equal opportunity stand central to challenge that protesters demand today of America.

Ginsburg goes on to regret the court’s decision in Ricci as a choice that breaks the promise that “groups long denied equal opportunity would not be held back by tests fair in form, but discriminatory in operation.” And yet it is such institutional discrimination in operation that today plaques communities of color with abuse at the hands of police, higher infection rates of COVID-19 and failure in our own community to reopen the public schools to our children.

And I say that as one with as much ownership as any in our city for some of these circumstances that our fellow residents find themselves in. That said, it is my learned lesson that we here in New Haven need not accept things as they are and that often our community has demonstrated the grit and determination to get together to solve tough problems. Initiatives around HIV, homelessness, gender equity, techtransfer, university-city relations and immigration come to mind as examples.

I also have found that there are often moments when communities take a step back and are open to rethink circumstances that had been taken as givens and to look less at folks out on the street as protesters and more as prophets of a better future. We are in such a moment. Inspired by leaders such as Justice Ginsburg and the young people on the streets who demand us to do better, let’s do the work to re-imagine our future.

Let’s have a discussion in New Haven as to the role of both the city and Yale Police. What are the outcomes our community desires? And for the sake of both our police and the residents they serve, let’s conceptualize better approaches to get those jobs done.

New Haven has two outstanding community health centers in Cornell Scott Hill and Fair Haven. Let re-imagine how we can strengthen their work to see that our community is even better prepared and served in their health needs in the future.

And let’s come together as parents, staff, students and at the Board of Education to safely reopen our public schools. The pandemic is a real threat to our community, but working parents and our children need to be reconnected to the public schools and each other in person.

We are in a moment of changes. Let’s listen to the young voices on our streets to embrace change. And let us be reassured by the wisdom of women such as Justice Ginsburg that the enduring truth of insisting on equal opportunity in both law and in people’s lives are what defines our nation.