Time passes

Legal experts in the wake of the Supreme Court case speculated the decision would change the landscape of civil rights law and erase hard-fought labor advances won over decades.

“That definitely was a concern before the argument,” said Ajmel Quereshi, senior counsel at the NAACP Legal Defense and Education Fund.

In an amicus brief to the Supreme Court, the organization argued employment discrimination has proved more difficult to eliminate in firefighting than in perhaps any other employment sector, and New Haven was no different. It was that “pervasive exclusion” of blacks from fire departments across the country that prompted Congress to expand Title VII to state and local government employment in 1972, the organization stated.

The organization described the arguments in Ricci as “fundamentally an attack” on Title VII’s disparate impact standard.

“Thankfully now looking at it eight years later, it hasn’t been a blow that we thought it would be,” Quereshi said.

The anticipated farreaching impact was limited, he said, because the Supreme Court “went out of its way to point out it was a unique” set of facts in which the city took action against a one-time set of test results.

That “significantly limited its decision,” he said

Also limiting the decision’s impact was that the court ruled on the question of disparate treatment under Title VII but not on the equal protection clause in the 14th Amendment of the U.S. Constitution, he added.

In the immediate aftermath of the ruling, “I think the concern was that people were going to try to twist the decision to make it into something that it wasn’t,” Quereshi said, and “use Ricci to launch an attack on affirmative action programs.”

He also pointed to a subsequent Supreme Court ruling affirming protections against disparate impact under the U.S. Fair Housing Act of 1968.

In 2015, in another 5-4 decision, the Supreme Court ruled in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. It held that legal claims against policies that create disparate impact and segregate minorities to poor neighborhoods — even if there is no overt evidence of intentional bias — can be brought under the Fair Housing Act. It was a significant victory.

Since the 2009 Supreme Court decision, the Legal Defense Fund has encountered few situations similar to the New Haven case, in part, Quereshi said, because municipalities are moving away from the types of processes that rely heavily on written exams in favor of putting larger weight in oral boards and assessment panels, which proponents assert better gauge the best candidates.

Torre, the lawyer for the “New Haven 20,” cited a different reason: There haven’t been similar cases to Ricci specifically because the Supreme Court made it clear such actions would be unlawful. And potentially very costly.

“As far as I know, there hasn’t been another instance in the United States where a city tried to do what New Haven did,” Torre said. “That was the biggest thing that Ricci did. If we lost, they would be walking away from test results in every city across the country. You would have seen an imposition of de facto racial quotas if not for Ricci.”

More than 14 years has passed since the 118 firefighters competed for promotions to lieutenant and captain. Fourteen members of the “New Haven 20” have retired from the city department, some to start second careers in the profession.

Six remain. Mark Vendetto, who was promoted to lieutenant in 2009, is now assistant fire chief in charge of operations. Vargas, who was promoted to captain, is a deputy chief. Ricci and Ryan Divito, who were promoted to lieutenant, serve as battalion chiefs. Greg Boivin, who was promoted to lieutenant, is a captain on Squad 1. Jim Kottage is a captain on Engine 11.

Ricci and DeStefano both described the protracted journey to the Supreme Court an eye-opening education. Both still maintain the positions they staked in 2004 and 2009.

While he said he understands how some people might think it unfair, DeStefano steadfastly maintains the city took appropriate action when faced with clear disparate impact in the two tests and Arterton and the 2nd Circuit applied the law correctly in the city’s favor.

“We had a clear standard of law that was sustained in the district court, 2nd Circuit and (by) four of nine justices on the Supreme Court,” he said.

“The Supreme Court changed the standard of what disparate impact meant,” he said.

He asserted “the Supreme Court was searching for a case” to challenge components of the Civil Rights Act of 1964 “and Jose Cabranes gave them a case.”

Cabranes, the 2nd Circuit judge, wrote the dissenting opinion urging the Supreme Court to take the case.

Coming in, DeStefano said, he had no experience with how the Supreme Court selected cases or with “this sort of universe” of national law firms that are funded to join cases to advance a particular agenda. He said he left the case smarter about the realities of public advocacy.

Ricci said he too left more educated, starting with Arterton’s ruling.

“This was the first time I realized that a judge could be nothing more than a politician in a robe,” he said.

And the entire legal process?

“It was an education in civics. It was an education in the law. It was an education in politics. It was an education in how the world works,” Ricci said.

People familiar with the case will always identify him with it, he said.

“The general response is polarized, even still, because it is tied to race,” he said. “There are people who judge me by my race and think I’m a racist because if the case. That’s something I’m going to contend with for the rest of my life.”

He predicted the case will have lasting impact.

“I think that politicians are still looking for ways to game the system, but the Ricci case has had a definitive impact across the country in trying to ensure testing measures skills, knowledge and abilities and gets the very best possible individuals for command positions at the fire department.”

The way to achieve that, he said, isn’t “through quotas or gaming the system or dividing people into racial groups” but rather investing in the education of all firefighters.

From DeStefano’s viewpoint, fractions of percent points often separate candidates in these tests and one-hundredths of points — “marginal distinctions” — can dictate who gets promoted and who doesn’t.

Hiring and promoting top candidates and having a diverse workforce that reflects the community its serves is not mutually exclusive.

“That is not at odd with having the best people,” he said. “At the end, we all have a self interest in reconciling these goals.”

DeStefano teaches a part-time at Yale University and the Ricci case comes up.

He always tells students the same thing.

“I will tell people, ‘I have a point of view on this. If you’re going to do a paper on this, you have to call Frank Ricci because he has a different point of view.

“That said, 2004 was a pretty straightforward decision.”