‘Truest vindication’

The firefighters, later dubbed the “New Haven 20,” hired hardcharging attorney Karen Torre, who came out blasting when the results were tossed, accusing the DeStefano administration of “blatant lawlessness and political cowardice.”

Even before the 2003 tests, there was an entrenched distrust and historical backdrop in the city of litigation, often successful and centered on race, involving hiring and promotional practices in the fire service.

Seventy-seven firefighters competed in the lieutenant test: 43 whites, 19 blacks and 15 Hispanics. Thirty-four passed: 25 whites, six blacks and three Hispanics. Under civil service rules, the top 10 scorers were eligible for consideration to fill eight vacancies. All 10 such candidates were white.

Forty-one lieutenants took the exam for captain: 25 whites, eight blacks and eight Hispanics. Twenty-two passed: 16 whites, three blacks and three Hispanics. Nine candidates — seven white and two Hispanic — could be considered for seven vacancies at the rank.

City officials met with the testing company in January 2004 and later before the Civil Service Commission and expressed concern about disparate impact liability on the exam: That white candidates had scored statistically and disproportionately better than minorities and that proceeding with the promotions could violate Title VII of the Civil Rights Act of 1964 and leave the city vulnerable to a civil rights lawsuit by minority firefighters.

Disparate impact law, a common term in labor and employment law but less so in lay vernacular, became the familiar cornerstone of the legal proceedings. It posed a central question: What do you do when an otherwise valid selection process results in unintended racially disproportionate results?

City officials, including thenCorporation Counsel Thomas Ude Jr. and then-Personnel Director Tina Burgett, argued the law was clear, that the test results had very significant disparate impact and there were potentially other equally valid alternatives that would result in less of an adverse impact on minorities. Some firefighters and leaders in the black community, including the influential Rev. Boise Kimber, argued the tests were unfair and the results discriminatory.

What officials never mentioned, Ricci said, was that promotional lists were valid for two years and that minority firefighters, in fact, would be eligible for promotion.

Heading toward a national stage

Before they became the focus of the most anticipated Supreme Court case of 2009, the two contested civil service exams and turbulent public hearings made, for the most part, local headlines.

Ricci this year called the hearings “nothing but a charade” and “an exercise in political theater” with the city and mayor masquerading as unbiased but intent on sinking the test results.

DeStefano, who served as mayor from 1994 to 2014, has heard all the allegations and said his and the city’s actions were dictated by law — not politics or racial pandering.

The city simply applied the law as it was then written and interpreted, he said.

“We had disparate impact liability. That’s all it was. That’s all it ever was,” DeStefano said in an interview at Start Bank on Whalley Avenue, where he now works as executive vice president. “Back to that moment, there was a clear sense that we had a disparate impact problem,” noting the pass rate for minorities in the exams was 50 percent that of whites.

When the firefighters sued in 2004, the war of words that ensued continued to make local headlines. After filing the lawsuit, Torre said the firefighters believed the city was manipulating the merit system “so they can reward political cronies, friends and relatives with jobs.”

Ude responded, at the time, “Merit includes everyone’s merit, not just the white guys.”

Sharp rhetoric helped stoke firehouse tensions that, while not pervasive, generally fell along racial lines.

The city, Torre said, stoked “racial antagonism” throughout the process. Her clients, she said, “were called klansmen for daring to attend” the civil service hearings.

Before the lawsuit was filed, Ben Vargas, the Hispanic member of the New Haven 20, was attacked from behind in a bar bathroom — an attack he and supporters suspected was retaliation for his support for certifying the tests.

Once the lawsuit was filed, a series of legal setbacks followed for the plaintiffs.

In 2006, U.S. District Judge Janet Bond Arterton threw out the case, without a trial, finding a “total absence” of discriminatory animus by the city. In 2008 the U.S. Court of Appeals for the 2nd Circuit upheld her decision in a one-paragraph, unpublished order, the type of order Ricci describes as relegated to inconsequential cases like “a prisoner arguing not enough peas are on his plate.”

He said he and his fellow plaintiffs were “devastated” by Arterton’s order and that he believes the way in which the case was disposed — in a summary judgment and unpublished order — was judicial activism at play and an effort to “bury” the case.

DeStefano said he believed Arterton and the three-judge panel at the 2nd Circuit saw the case for what it was: A municipality facing disparate impact liability and following the law as it was written.

An unusual, dissenting opinion from 2nd Circuit Judge Jose A. Cabranes helped bring the case to the attention of the U.S. Supreme Court.

“What is not arguable ... is the fact that this court has failed to grapple with the questions of exceptional importance raised in this appeal,” Cabranes wrote in the dissenting opinion that was signed by five other judges “in the hope that the Supreme Court will resolve the issues of great significance raised by the case.”

“It was around the 2nd Circuit verdict that we began to realize this was something much bigger than 20 firefighters from New Haven,” Ricci said.

Torre petitioned the U.S. Supreme Court to hear the case. It was a longshot.

The high court

The case burst onto the national stage on Jan. 9, 2009, when the Supreme Court signaled it would hear the case. There wasn’t a grand announcement but rather a posting online. The plaintiff firefighters popped a bottle of Champagne in Torre’s Church Street law offices. Later, Torre and the “New Haven 20” stood on the steps of New Haven’s U.S. District Court, the same building where Arterton threw out their lawsuit in 2006, and Torre discussed a “disguised system of racial quotas.”

In the following year, the Ricci v. DeStefano case became a familiar headline in mainstream media, frequent topic for civil rights and constitutional pundits and a lightning rod in conservative and liberal news sites and blogs.

The ensuing media coverage of the case created divergent political narratives: A fundamental attack on civil rights law; an illustration of white privilege; the persistence of black entitlement; the myth of white victimhood; an illustration of an ongoing racial-spoils system.

The case, then and now, was racially polarizing.

“The worst thing to be called in America is a racist and that’s how we were painted,” said Ricci.

As the rival narratives unfolded, heavy-hitters joined the legal fight, with two national law firms specializing in Supreme Court litigation — Wilmerhale, of Boston, and Yetter, Warden & Coleman, of Austin, Texas — joining the legal teams for New Haven and the New Haven 20, respectively, to argue the case before the high court.

Some 27 local and national organizations and entities — including the Obama administration — filed amicus briefs, which are in-depth legal arguments from non-litigants with a strong interest in the subject matter.

The two sides presented oral arguments before the Supreme Court on April 22, 2009. By then, it had become the most anticipated case on the Supreme Court docket.

“It’s hard to explain and it was hard to enjoy the process because so much was at stake,” Ricci recalled. “It was very hard to read the tea leaves to know how the court was going to rule.”

On June 29, 2009, the Supreme Court ruled in a 5-4 vote. The city had discriminated against the white and Hispanic firefighters when it threw out the results of the examinations.

“The city rejected the test results solely because the higher scoring candidates were white,” Justice Anthony M. Kennedy wrote in the decision. Fear of litigation alone, the majority found, “cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”

In a dissenting statement, Justice Ruth Bader Ginsburg stated that Congress, in crafting civil rights law, had “endeavored to promote equal opportunity in fact, and not simply in form.”

“The damage today’s decision does to that objective is untold,” she stated in the dissent.

Members of the New Haven 20 called it an overdue vindication. DeStefano described it as the latest Supreme Court decision that had caused “a continual erosion of civil rights laws.”

A strong basis in evidence

The Supreme Court decision created a new legal standard in federal discrimination law. Moving forward, before an employer could take intentionally discriminatory steps to avoid or remedy an unintended disparate impact, the employer needed a “strong basis in evidence” to believe it would be subject to disparate-impact liability if it failed to take the race-conscious, discriminatory action.

If it’s unclear precisely what that means, employment and civil rights attorneys were unclear as well.

What the Supreme Court failed to do, legal observers said at the time, was provide a workable definition of what constituted a strong basis in evidence.

Barbara Jean D’Aquila, a partner at Minneapolis-based law firm Norton Rose Fulbright, in a 2010 article in the American Bar Association Journal of Labor and Employment Law, observed the decision “provided little guidance regarding exactly how employers are to manage the delicate balance between two sometimes competing prohibitions in Title VII — illegal disparate-treatment and disparateimpact discrimination.”

Indeed, in a concurring opinion in Ricci, the late Justice Antonin Scalia observed “the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how — and on what terms — to make peace between them.”

Moving forward

The impact of Ricci v. DeStefano was felt for months and years to come, in ways large and small, in town halls, law firms, courtrooms and on Capitol Hill. In the immediate aftermath, lawyers across the country with disparate impact cases had to examine their own evidence to determine what impact, if any, the Supreme Court decision might have.

In July 2009, a month after the Supreme Court decision, Sonia Sotomayor, a nominee by President Barack Obama to join the high court, sat in front of the Senate Judiciary Committee answering sometimes pointed questions about Ricci v. DeStefano during her confirmation hearing. Serving on the 2nd U.S. Circuit Court of Appeals, Sotomayor was a member of the three-judge panel that in June 2008 issued the unpublished order upholding Arterton’s dismissal of the lawsuit.

Ricci and Vargas were invited and testified at the confirmation hearing. Sotomayor’s nomination was confirmed by the Senate in August 2009 by a 68–31 vote.

In 2014, the case also came up during the confirmation hearing for Victor Bolden, the New Haven corporation counsel who was nominated by Obama for a federal judgeship. Bolden was hired as New Haven’s top attorney in January 2009, years after the Ricci lawsuit was filed and six months prior to the Supreme Court decision. After the decision, he played a key role in implementing the court’s mandates and faced questions from senators about his role — and opinion — in the Ricci case.

Ricci submitted written testimony supporting Bolden’s nomination and recently described him as an “honest broker” rather than a “political operative.”

Bolden was confirmed and serves as a U.S. District Court judge in Bridgeport.

After 30 years of practicing law, Torre, the attorney for the “New Haven 20,” retired after Ricci v. DeStefano. Winning a case before the Supreme Court would be appropriate punctuation to a career.

“It was the right time,” said Torre. “After Ricci, what else are you going to do that is ever going to make you feel so good.”

On the day that the Supreme Court ruled, one of the plaintiffs said the “truest vindication” would be when members of the New Haven 20 would get lieutenant and captain badges pinned on their chests.

That would take a little more than five months, and not all of them would advance in rank.

On Nov. 24, 2009, following instructions of the Supreme Court and 2nd Circuit, Arterton ordered the city to certify the civil service lists and promote