Supreme Court Tackles Reverse Discrimination

The political bent of the U.S. Supreme Court is once again on display in Washington. This time, the issue is reverse discrimination, a term generally used to challenge the effects that affirmative action may have on white men.

In a case argued April 22, 2009, white and Hispanic firefighters from New Haven, Connecticut are challenging a city decision to ignore promotional exam results. The 2003 test was created to determine who’d be promoted to captain or lieutenant. When no African Americans scored high enough, New Haven officials worried they’d be sued by minorities and so decided to disregard the test. Instead of avoiding trouble, however, New Haven brought it on themselves. Non-minority firefighters who passed the test now claim they worked hard on what they thought was a fair process only to be denied promotion because of their race.

The Supreme Court will decide whether New Haven’s conduct was discriminatory or not. As usual, the supposedly apolitical Court is split along partisan lines. Discrimination laws are not popular among conservatives, and President Bush’s appointments to the Court, Chief Justice John Roberts and Associate Justice Samuel Alito, are hostile to them. Justices Antonin Scalia and Clarence Thomas also oppose laws aimed at correcting the effects of discrimination. These justices seem to believe that simply telling entrenched leaders not to discriminate is enough. Counteracting this view is one held by four more liberal Court members who believe that past discrimination is built into American society and must be attacked. Once again, Justice Anthony Kennedy stands in between these views and will likely cast the decisive vote in what promises to be yet another 5-4 decision by the Court.

The political battle within the Court is probably more significant than the decision it will render in this case. It infects thinking to the point where one can predict Court votes based on the litmus tests that led to the appointments of several current justices. Politically motivated attacks on the justice system by President Ronald Reagan are at the heart of the present Court divide, and politicians since then have followed suit. The impact was plain in 2000, when the Court got involved in the presidential election and issued an injunction — on a 5-4, politically divided vote — that had little basis in existing law. Result, it seems, and not law, are too often the key motivators for some Supreme Court members.

To be sure, of course, the bottom line in New Haven is not why the Court votes one way or the other but that it does so. The decision promises to have a profound impact on discrimination law from New Haven to Boston to Worcester and across Massachusetts and the entire United States. The prudent course for the future, regardless how the New Haven case is decided, may be to dispense with test taking and make work decisions on other, more comprehensive factual bases. Maybe this will keep other cities from facing the damned-if-you-do, damned-if-you-don’t predicament that led the City of New Haven down the expensive and divisive road to the U.S. Supreme Court’s halls.

Boston employment lawyer Attorney Jack Merrill specializes in Massachusetts employment law and provides legal services to employees, employers and businesses throughout the Boston metro west and Worcester County region including Ashland, Dedham, Framingham, Franklin, Hopkinton, Maynard, Marlborough, Milford, Natick, Needham, Newton, Shrewsbury, Sudbury, Waltham, and Worcester, Massachusetts.