The United States Supreme Court made a much anticipated ruling in a case involving white New Haven firefighters who filed suit against the city claiming they were discriminated against when denied promotions after scoring higher than Blacks on an exam. The Court ruled 5-4 in the favor of the firefighters in a case that was closely watched as it was decided in the shadow of Judge Sonia Sotomayor’s pending confirmation hearing. Sotomayor was a member of the U.S. Court of Appeals for the 2nd Circuit that had ruled for the city of New Haven in the case. Conservatives are attempting to make Sotomayor’s position on the case an issue as she is considered for the Supreme Court.

Ruling for the majority was Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, Antonin Scalia, and Chief Justice John Roberts. The majority claimed that the city of New Haven violated a provision of the Civil Rights Act that prohibits discriminatory treatment. The city contended that it had invoked a separate section of Title VII that bars the use of discriminatory tests. Leading the dissent on the Court, Justice Ruth Bader Ginsberg wrote of the history of discrimination in the New Haven fire department and throughout the country. Ginsberg noted that the written section of the New Haven exam, that accounts for 60% of the score, would unlikely provide evidence of which applicant would make a good officer. Justice David Souter, who is retiring from the Court and who Sotomayor was chosen to replace, sided with the minority in the decision.

The use of qualifying examinations for civil service positions has been an issue for decades, particularly in the racial composition of police and fire departments. Throughout the nation, in cities like New Haven and New York City, departments have been racially skewed toward whites to a degree that is disproportionate to the city’s overall population. Fire departments have been notoriously racially imbalanced as positions were treated like inheritances, passed down through the generations among whites; in some cities with a heavy ethnic slant due to historical “claims” on jobs. The use of racially skewed tests and the advantage that many white “legacy” employees have in taking such tests has resulted in few Blacks in firehouses and even fewer being promoted within departments. The New Haven case sets new parameters for hiring in cities like New Haven that were attempting to take corrective action to compensate for discriminatory practices.

The case highlights the unresolved issue of race in the workplace. Despite the narrow application of affirmative action policies, any attempt to create equity has been met with fierce opposition from whites who charge that they are being denied an opportunity based upon their race. In the New Haven case the Court’s decision essentially means that the reverse discrimination claims of whites in these instances outweighs the rights of employers to address historical inequities. It leaves unresolved how employers can change tests or job criteria that hurt minority or women applicants despite statistical evidence that they create inequities in the workforce.

The ruling also illustrates how much the Supreme Court has shifted to the right of the ideological spectrum. The sole racial minority on the Court, Justice Clarence Thomas, ruled against the Black and Latino firefighters who charged that the New Haven exam was racially biased. Thomas, a conservative, has persistently opposed policies that work to address discriminatory practices and his presence on the Court has confirmed the fears of civil rights advocates who opposed his nomination. The New Haven ruling sets the stage for President Obama’s potential opportunity to recast the Supreme Court, first with the nomination of Justice Sotomayor. Her presence on the bench would essentially preserve the current “balance” on the Court.