The Affirmative Action Questions Sotomayor Didn't Answer

Judge Sonia Sotomayor is smart and sharp, and her formidable track record on the bench should put to rest any lingering doubts that she isn’t. (Speaking of which: Why was the left, or at least the center, criticizing one of its own?) But there is a mystery in Sotomayor’s recent history: a brief, unsigned opinion in the difficult race case now before the Supreme Court, Ricci v. DeStefano. Sotomayor punted when Ricci came before her, to such a degree that she raised more questions than she answered.

Ricci is a hard case with bad facts—a case that could do serious damage to Title VII, one of Congress’s landmark civil rights laws. In 2003, the city of New Haven, Conn. decided to base future promotions in its firefighting force—there were seven for captain and eight for lieutenant—primarily on a written test. The city paid an outside consultant to design the test so that it would be job-related. Firefighters studied for months. Of the 41 applicants who took the captain exam, eight were black; of the 77 who took the lieutenant exam, 19 were black. None of the African-American candidates scored high enough to be promoted. For both positions, only two of 29 Hispanics qualified for promotion.

In other situations like this, minority candidates have successfully sued based on the long-recognized legal theory that a test that has a disparate impact—it affects one racial group more than others—must truly be job-related in order to be legal. You can see why New Haven’s black firefighters might have done just that. Why promote firefighters based on a written test rather than their performance in the field? Why favor multiple-choice questions over evaluations of leadership and execution? It’s like granting a driver’s license based solely on the written test, only with much higher stakes.

Faced with these complaints, which translated into both political and potential legal fallout in a city that is nearly 40 percent African American, New Haven withdrew its test.* But that fueled an intense and also understandable frustration on the part of the white firefighters who’d spent time and money on test-prep materials. They’d succeeded by scoring high, only to be told that now their investment counted for nothing. Frank Ricci is a 34-year-old “truckie”—he throws ladders, breaks windows, and cuts holes for New Haven’s Truck 4. His uncle and both his brothers are firefighters. He studied fire science at college. He has dozens of videos about firefighting tagged on a website he set up to recruit for the department. He is also dyslexic, which means that his high score on the promotion test was especially hard-won. Ricci and 19 other firefighters sued New Haven alleging reverse discrimination, in light of Title VII and also the 14th Amendment’s promise of equal protection under the law. They said that New Haven shouldn’t have thrown out the test.

The district court judge who heard Ricci’s case ruled against him and his fellow plaintiffs. They appealed to the Second Circuit, the court on which Judge Sotomayor sits. In an unusual, short, and unsigned opinion, a panel of three judges, including Sotomayor, adopted the district court judge’s ruling without adding their own analysis. As Judge Jose Cabranes put it, in protesting this ruling later in the appeals process, “Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case ... This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.”

If Sotomayor and her colleagues were trying to shield the case from Supreme Court review, her punt had the opposite effect. It drew Cabranes’ ire, and he hung a big red flag on the case, which the Supreme Court grabbed. The court heard argument in Ricci in April. New Haven didn’t fare well.

The high court’s decision in the case will come in June, before Sotomayor’s confirmation hearings. The problem for her will not be why she sided with New Haven over Frank Ricci. The court’s four liberal-moderate justices currently on the court are likely to agree with her, in the name of preserving Title VII as a tool for fair hiring. There’s even an outside chance that Justice Anthony Kennedy will follow along. The problem for Sotomayor, instead, is why she didn’t grapple with the difficult constitutional issues, the ones Cabranes pointed to. Did she really have nothing to add to the district court opinion? In a case of this magnitude and intricacy, why would that be?

Correction June 2, 2009: The original sentence said that New Haven is nearly 60 percent African American.

This article also appears in Slate [2].

Photograph of Sonia Sotomayor and Barack Obama by Alex Wong/Getty Images.