New Haven Register (Sunday) (New Haven, CT)
NEW HAVEN AND THE SUPREME COURT
Firefighters case set national precedent
Editor’s note: This is the 25th story in the Register’s Top 50 series.
NEW HAVEN — In the basement of the Hall of Records, the crowded civil service hearings might have seemed just the latest controversy in the contentious history of racially factious promotions at the city’s Fire Department.
No one could have known, in 2004, that the decisions unfolding would ultimately land before the U.S. Supreme Court and indelibly imprint two New Haven names into the history of civil rights law.
But before there was Ricci v. DeStefano, there were two uncertified, heavily redacted civil service promotional lists for New Haven fire lieutenant and captain.
“It was clear that the civil service board was trying to be fair. The problem is the city was trying to orchestrate and push the civil service board to scuttle the results,” Frank Ricci, then a six-year firefighter with the department, recalled. “I thought they were going to throw out the list from the very first meeting.”
That was the beginning of the long, circuitous and at times bitter legal process and no one,
not the plaintiffs or defendants in the subsequent federal lawsuit, could have projected the ultimate destination.
“We had no indication that this was going to be a landmark case at the United States Supreme Court,” Ricci said.
Rights
In 2003, 118 New Haven firefighters took examinations for promotion to lieutenant and captain, and the results would determine who could be promoted over the following two years. Promotional exams in New Haven occur infrequently, so much was at stake.
Then the results came back. White candidates had outperformed minority candidates. The mayor and other city officials convened a series of civil service board meetings.
Some firefighters and black community leaders argued the tests were flawed and threatened a discrimination lawsuit if the results were adopted. Other firefighters argued the exams were valid and fair and firefighters who scored at the top deserved to be promoted. They threatened a discrimination lawsuit if the results were tossed.
After five often contentious public hearings, the Civil Service Commission deadlocked in a 2-2 vote. The test results were abandoned. It was March 18, 2004.
On July 8, 2004, a group of firefighters — 19 white and one Hispanic — filed a federal lawsuit, Ricci v. DeStefano, alleging the city corrupted the civil service process to pander to political cronies and the politically important black vote.
Ricci was the lead plaintiff. The lead defendant was John DeStefano Jr., then the city’s five-term incumbent mayor.
The exams and ‘disparate impact’
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.”
‘Truest vindication’
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
the 14 plaintiffs who would would have advanced had the lists been approved in 2004.
After that, things moved quickly.
Less than a week later, the civil service board certified the two promotional lists from the tests that were taken six years earlier. When the results were thrown out in 2004, there were 15 vacancies in the two ranks. Lists have a life span of two years and between 2004 and 2006 nine additional positions opened through retirements or attrition.
On Dec. 10, 2009, the city held a promotional ceremony for 24 lieutenants and captains in a packed auditorium at Wilbur Cross High School. Fourteen members of the “New Haven 20” qualified and 10 firefighters who scored well enough to be promoted but didn’t join the lawsuit also were promoted. Three African American firefighters were among the 16 who earned promotions to lieutenant. Two Hispanic firefighters advanced to captain.
Torre described it was an emotional day for her, and not only because her clients received overdue promotions.
“I got emotional because of the black guys,” said Torre. Like her clients, they also had earned promotions that almost were almost derailed by the city’s actions and lies, she said.
“They got lost in the narrative of the case. They were the unspoken victims, as well as my clients.”
The legal proceedings, however, hadn’t ended. The questions of financial damages remained and in 2011, with that trial looming, the city reached a settlement to pay the firefighters $2 million and Torre and her team $3 million in legal fees. The final costs of the case to the city remains unclear. The $5 million didn’t include funds spent on outside legal counsel to defend the city against the lawsuit and other expenses.
Subsequent lawsuits by minority firefighters followed.
A changed legal landscape?
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.”
Time passes
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.”