Possible Supreme Court Nominees

The President has an opening on the Supreme Court. There are more than a few qualified African Americans that could take that spot.

First possible nominee is Leah Ward Sears.



W.E.E. See You did an absolutely fabulous profile of Judge Sears.

Leah Ward Sears (born June 13, 1955) is an American jurist and former Chief Justice of the Supreme Court of the U.S. state of Georgia. Sears was the first African-American female Chief Justice in the United States. When she was first appointed as justice in 1992 by then-Governor Zell Miller, she became the first woman and youngest person to sit on the Supreme Court of Georgia.

Early life and education

Leah Ward Sears was born in Heidelberg, Germany to United States Army Colonel Thomas E. Sears and Onnye Jean Sears. The family eventually settled in Savannah, Georgia, where she attended and graduated from high school.

Sears received a Bachelor of Science from Cornell University in 1976, her Juris Doctor from Emory University School of Law in 1980, and a Master of Laws from the University of Virginia School of Law in 1995. At Cornell, Sears was a member of Alpha Kappa Alpha Sorority, Incorporated[1] and the Quill and Dagger society. She holds honorary degrees from Morehouse College, Clark-Atlanta University, LaGrange College, Piedmont College, and Spelman College.

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Another possible nominee is someone the President knows well: Professor Charles Ogletree.

Charles J. Ogletree (born December 31, 1952 in Merced, California) is Jesse Climenko Professor at Harvard Law School, the founder of the school's Charles Hamilton Houston Institute for Race and Justice, and the author of numerous books on legal topics.

Education

Ogletree was born to farm workers in central California. He earned both his B.A. (1974, with distinction) and M.A. (1975) in political science from Stanford University and his J.D. from Harvard Law School in 1978.

Appointments

* Director, Saturday School Program
* Lecturer on Law, 1984
* Visiting Professor of Law from Practice, 1985
* Edward R. Johnston Lecturer on Law, 1989
* Assistant Professor of Law, 1989
* Director, Criminal Justice Institute, 1990
* Professor of Law, 1993
* Faculty Director, Clinical Programs, 1996
* Jesse Climenko Professor of Law, 1998
* Associate Dean for the Clinical Programs, 2002
* Vice Dean for Clinical Programs, 2003
* Director, Charles Hamilton Houston Institute for Race and Justice, 2004

As one of my fellow bloggers put it about Ogletree:

I think the best qualified to be Supreme Court Justice is Ogletree regardless
of race he clerked for Thurgood Marshall, helped develop the South African
Constituition and has been at the helm of the most prestigious law school in
the county while still advocating for the rights of working class people.

Saw this suggestion over at Booman Tribune

Michelle Alexander

Associate Professor of Law

Professor Alexander joined the OSU faculty in 2005. She holds a joint appointment with the Moritz College of Law and the Kirwan Institute for the Study of Race and Ethnicity. Prior to joining the OSU faculty, she was a member of the Stanford Law School faculty, where she served as Director of the Civil Rights Clinic.

Professor Alexander has significant experience in the field of civil rights advocacy and litigation. She has litigated civil rights cases in private practice as well as engaged in innovative litigation and advocacy efforts in the non-profit sector. For several years, Professor Alexander served as the Director of the Racial Justice Project for the ACLU of Northern California, which spearheaded a national campaign against racial profiling by law enforcement. While an associate at Saperstein, Goldstein, Demchak & Baller, she specialized in plaintiff-side class action suits alleging race and gender discrimination.

Professor Alexander is a graduate of Stanford Law School and Vanderbilt University. Following law school, she clerked for Justice Harry A. Blackmun on the United States Supreme Court, and for Chief Judge Abner Mikva on the United States Court of Appeals for the D.C. Circuit.

She's the author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness




Bernice Bouie Donald

United States District Court for the Western District of Tennessee Memphis, Tennessee

Born: DeSoto County, Mississippi-September 17, 1951
Education: University of Memphis (B.A. 1974; J.D. 1979)
Judge Donald was appointed to the United States District Court for the Western District of Tennessee by President Clinton on December 22, 1995. With that appointment, Judge Donald became the first African-American female United States District Court Judge in Tennessee.

Bernice Bouie Donald is the sixth of ten children raised on a sharecropper's farm in DeSoto County, Mississippi. Her mother and father, Willie and Perry Bouie, were the primary influences in her life. Judge Donald's minister and certain teachers were also quite influential. Although Donald had intended to pursue a career in social work, she was later motivated to pursue law because she saw law as a primary tool for social change and equal justice. In this regard, Judge Donald has said:

Early in my career, my family was the biggest source of inspiration for me. My family and my church. And then the times in which I grew up. There was a lot of change going on in the world and our environment. Just being a product of that environment, when people-I think everybody-was just sort of stretching, as a family as a community, as a nation.

In the course of pursuing a legal career, Judge Donald achieved many "firsts." She was the first elected African-American female judge in the State of Tennessee. She was also the first African-American female U.S. Bankruptcy Judge appointed in the United States. With her appointment in 1996, Judge Donald also became the first African-American female judge appointed to the United States District Court in Tennessee. Judge Donald's later decision to become a judge grew out of her work as a public defender with Shelby County. She states that:

I felt that many judges did not ensure equal justice for poor people. I felt that according dignity and respect to all litigants regardless of race, class, socio-economic status, or gender were critical to the preservation of our justice system, and that I could play an important role in fostering that environment.

In her spare time, Judge Donald enjoys being active in numerous organizations and is the recipient of over 100 awards for her professional, civic and community activities. In addition, she enjoys teaching, having held positions as an Adjunct Professor at both the University of Memphis Cecil C. Humphreys School of Law and the Shelby State Community College.

Because of her many accomplishments, Judge Donald has been featured in Ebony, Essence, Jet, Black Enterprise, Dollars & Sense, and Memphis Magazine. Her advice to would-be lawyers and judges is "make an honest commitment to yourself that you are willing to work hard and make the necessary sacrifices to attain your goal."

Christopher Edley, Jr.

Title: The Honorable William H. Orrick Jr. Distinguished Chair and Dean

Christopher Edley, Jr. joined Boalt Hall as dean and professor of law in 2004, after 23 years as a professor at Harvard Law School. He earned a law degree and a master's degree in public policy from Harvard University, where he served as an editor and officer of the Harvard Law Review. Edley's academic work is primarily in the areas of civil rights and administrative law. He has also taught federalism, budget policy, Defense Department procurement law, national security law, and environmental law. Edley was co-founder of the Harvard Civil Rights Project, a renowned multidisciplinary research and policy think tank focused on issues of racial justice. His publications include Not All Black and White: Affirmative Action, Race and American Values and Administrative Law: Rethinking Judicial Control of Bureaucracy.

Following graduation, Edley joined President Carter's administration as assistant director of the White House domestic policy staff, where his responsibilities included welfare reform, food stamps, child welfare, disability issues, and social security. He served as national issues director throughout the 1987-88 Dukakis presidential campaign, and then as a senior adviser on economic policy for President Bill Clinton?s transition team in 1992. In the Clinton administration, he worked as associate director for economics and government at the White House Office of Management and Budget from 1993 to 1995. There, he oversaw a staff of 70 civil servants responsible for White House oversight of budget, legislative and management issues in five cabinet departments (Justice, Treasury, Transportation, Housing & Urban Development, Commerce) and a diverse group of over 40 autonomous agencies, including: FEMA, FCC, General Services Administration, SBA, SEC, CFTC, EEOC, the bank regulatory agencies, and the District of Columbia. In 1995 he was also special counsel to the President, directing the White House review of affirmative action. He later served the Clinton White House in 1997 as a consultant to the President?s advisory board on the race initiative.

From 1999-2005, Edley served as a congressional appointee on the bipartisan U.S. Commission on Civil Rights. In 2001, he was a member of the Carter-Ford National Commission on Federal Election Reform. He is currently a trustee of the Russell Sage Foundation and of The Century Foundation. He is a fellow of the National Academy of Public Administration, the Council on Foreign Relations, the American Academy of Arts & Sciences, and the American Law Institute. He also serves on the executive committee of the advisory board for the Division on Behavioral and Social Sciences and Education of the National Research Council, which is the research arm of the National Academies of Sciences. At UC Berkeley, he is founder and faculty-Co-Director of the Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity, a multidisciplinary think tank.

In March 2006, Dean Edley was named to a national nonpartisan commission created to conduct an independent review of the No Child Left Behind (NCLB) Act. The 12-member Commission on No Child Left Behind issued recommendations in February 2007 for reforming and improving the legislation as Congress considers reauthorizing federal education laws. Co-chaired by former Health and Human Services Secretary Tommy Thompson and former Georgia Governor Roy E. Barnes, the commission is funded by several leading educational foundations, including the Bill & Melinda Gates Foundation.

In April 2007, the American Academy of Arts and Sciences, which conducts scholarly activities and interdisciplinary research to advance the public good, elected Dean Edley as one of its new Fellows.
Education:
B.A., Swarthmore College (1973)
J.D., Harvard University (1978)
M.P.P., Harvard University (1978)

One of my fellow bloggers said this post would not be complete without:

Anita F. Hill

Author, educator, and attorney Anita F. Hill was born in Morris, Oklahoma, on July 30, 1956. She was one of thirteen children born to Albert and Irma Hill, who farmed in the Okmulgee County area. Her parents set high moral standards for her, and she was reared in the Baptist faith.

Academically gifted, Hill graduated as valedictorian from Morris High School in 1973. A National Merit Scholar, she attended Oklahoma State University and earned a bachelor's degree in psychology in 1977. She enrolled in the Yale University Law School, obtaining a J.D. degree in 1980.

Following graduation from Yale, Hill taught civil rights, contracts, and commercial law at Oral Roberts University, the University of Oklahoma, and the University of California at Berkeley. She became a national figure in 1991 when she accused U.S. Supreme Court nominee Clarence Thomas of sexual harassment during her tenure at the U.S. Department of Education and the Equal Opportunity Commission. Hill's accusation resulted in her testimony before the Senate Judiciary Committee. Although Thomas narrowly received Senate confirmation and appointment as an associate justice to the Supreme Court, Hill had placed the issue of sexual harassment in the national spotlight.

By the beginning of the twenty-first century Hill had become a highly sought after lecturer, traveling internationally and speaking on racial and gender issues in the workplace. She had appeared on national programs, including 60 Minutes and Face the Nation. Her publications have included articles regarding civil rights issues in Newsweek and the New York Times. Moreover, she had authored Speaking Truth to Power and served as the co-editor of Race, Gender, and Power in America: The Legacy of the Hill-Thomas Hearings.

Hill's recognition has included being awarded the Ray and Marian Vestor Lectureship at Linfield College, the Carlsen Lecture at the University of Minnesota, the William O. Douglas Lectureship at Gonzaga Law School, and the Dean's Lecture at Yale University Law School.

A Critical Role for Fathers

The celebration of Father's Day allows our nation a moment to pause and reflect on the memories and experiences of childhood and fatherhood alike.

Aside from the typical gift selection of a new tie, putter or power tools, no serious consideration is given to this holiday. This Father's Day, take a break from the barbecue grill, playing catch or listening to another one of dad's widely exaggerated stories (that you've already heard at least a thousand times), and ponder a more broad subject, the rights of a father.

A father's rights have remained a largely hidden issue, tucked away beneath America's fiery and passionate opinions on abortion. In many ways, the parental rights of expectant fathers are blatantly ignored, and fathers are, in a court of law, unable to voice their opinion in regard to childbirth.

A fundamental assumption leading to the Supreme Court's decision in Roe v. Wade was that because women are biologically tied to the birth process, they should therefore bear all responsibility in deciding the life or death of their children. The reason for this perspective is straightforward: Roe v. Wade rejected the idea that another person controlled a woman's body.

On the one hand, this shattered patriarchal stereotypes that regarded women as little more than vessels. Plainly, that is a good thing. But in the continued fight for equality, various feminist groups have refused to acknowledge the basic human rights of the co-equal contributors to pregnancy: the unborn child and the father. Plainly, that is a bad thing.

Just ask John Stachokus.

Not long ago, Mr. Stachokus planned to have a child with his 23-year-old girlfriend. Together, they picked out the child's name and godparents. He proudly imagined what it would be like to start a family; this made him happy. Then one day, his girlfriend abruptly decided to terminate her pregnancy. She was reacting to pressure from her parents, Mr. Stachokus says. He responded by obtaining an injunction, temporarily prohibiting her from having an abortion, which a court rejected. And just that quickly, Mr. Stachokus' hopes and dreams for his child dissolved.

It did not matter to the court that Mr. Stachokus was willing to take full responsibility for nurturing and providing for the child. His basic human rights did not factor into the court's decision. All that mattered was that his girlfriend suddenly changed her mind and decided to murder their unborn baby. As far as the court was concerned, Mr. Stachokus had no say in the life of his own child. The court regarded him as little more than a soulless contributor of DNA.

Of course, the response of abortion rights advocates is predictable. They greeted news of the demise of Mr. Stachokus' child with cheers and the standard rhetoric about a woman's right to choose. "An adult woman has a fundamental constitutional right to privacy," said Linda Rosenthal, an attorney representing the girlfriend.

Indeed, it is her body, but her body does not exist in a vacuum. She shared that body with Mr. Stachokus - as he did with her - and together they made a decision that led to the creation of a baby (a feat neither of them could have accomplished individually).

Doesn't this symbiotic act give the father some say in the matter of whether his girlfriend may have an abortion? After all, if the baby had been carried to term, Mr. Stachokus, irrespective of his own preferences, would have been legally obligated to pay child support. Society would have demanded that he take responsibility. And yet when it comes to the decision of whether to abort that same child, he is denied any say whatsoever. That is an appalling contradiction.

We live in an age of eroding family values, in which fathers routinely abandon their children and disregard their familial responsibilities. Mr. Stachokus' desire to raise and care responsibly for his child should be commended and encouraged. Instead, the law brutally and arbitrarily denies that he has any right to his child whatsoever.

Countless men are faced with the same nightmare of having no voice in the execution of their children.

"Men's rights are trampled on all the time when it comes to reproductive rights," said Dianna Thompson, executive director of the American Coalition for Fathers and Children. It is time to fight back, to force our government to re-evaluate the logic of treating men as little more than fertilizers.

This case raises serious questions about a father's say in the life of his own child, as well as the extent of the government's duty to help project human rights and encourage the family unit. Sadly, these profound questions fall by the wayside in a society that worships at the golden calf of individual choice, and relegates the voice of fathers and unborn babies to the margin.

The outcome of the Stachokus case and other, similar cases points to a need to widen the consideration of abortion beyond just the rights of the mother to the rights of fathers and - of central importance - the unborn child. Only by placing abortion within its proper context will we get a better understanding of its full implications.

Fatherhood is a lifetime commitment, deserving of much more than a single day's celebration. We should not allow the failed father figures of these modern times, or the negative examples of parenting portrayed on television to define or represent every father in the country. This Father's Day, don't limit your thoughts to only fatherhood. Instead, reflect upon the larger concept at hand, the celebration of two individuals uniting together, prayerfully in marriage, to perform one of the most challenging tasks ever known, parenthood.

WRITTEN by Armstrong Williams at The Washington Times on June 17th, 2009

SCOTUS Nominee Sotomayor: You Decide

Shortly after President Obama nominated her to a lifetime appointment to the Supreme Court, I read Judge Sonia Sotomayor’s now famous words:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.”

My initial reaction was strong and direct -- perhaps too strong and too direct. The sentiment struck me as racist and I said so. Since then, some who want to have an open and honest consideration of Judge Sotomayor’s fitness to serve on the nation’s highest court have been critical of my word choice.

With these critics who want to have an honest conversation, I agree. The word “racist” should not have been applied to Judge Sotomayor as a person, even if her words themselves are unacceptable (a fact which both President Obama and his Press Secretary, Robert Gibbs, have since admitted).

So it is to her words -- the ones quoted above and others -- to which we should turn, for they show that the issue here is not racial identity politics. Sotomayor’s words reveal a betrayal of a fundamental principle of the American system -- that everyone is equal before the law.

The Central Question: Is American Justice No Longer Blindfolded?

The fundamental issue at stake in the Sotomayor discussion or nomination is not her background or her gender but an issue that has implications far beyond this judge and this nomination: Is judicial impartiality no longer a quality we can and should demand from our Supreme Court Justices?

President Obama apparently thinks so. Other presidents, Republican and Democrat, have considered race and gender in making judicial appointments in the past. But none have explicitly advocated the notion that judges should substitute their personal experiences for impartiality in deciding cases. And certainly none have asserted that their ethnicity, race or gender would make them a better judge over a judge from a different background.

Here is how President Obama explained his criteria for appointing judges earlier this year:

“We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old -- and that’s the criterion by which I’ll be selecting my judges.”

No Group Has Benefited More From Impartial Justice Than the Less Fortunate

With these words, President Obama is cleverly inviting his critics to come out swinging against empathy for the less fortunate among us. But Americans are smarter than this.

We understand that the job of a justice is to enforce the law, not the rule of empathy. And we understand that when a judge substitutes his or her personal experiences for the law, the law becomes what he or she wants it to be, not what the people, through their elected representatives, have decided it should be.

Most tragically, it is this principle of judicial impartiality -- of justice, not just for the rich and the powerful, but for all -- that has most benefited the vulnerable and the downtrodden in America.

No group has needed or continues to need justice -- that can’t be predetermined by wealth or privilege -- as much as the less privileged. President Obama doesn’t seem to grasp that, by weakening judges’ adherence to the rule of law, he is also weakening the very foundation of equal justice for the less fortunate Americans he wants to help.

The “Court of Appeals is Where Policy Is Made”

How does Judge Sotomayor come down on the issue of a judge’s fidelity to the law?

Here is what she told a Duke University Law School audience in 2005 (emphasis mine):

“All of the legal defense funds out there, they're looking for people with Court of Appeals experience. Because it is -- Court of Appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know. [laughter] Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know. [laughter] Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating.”

Is Judge Sotomayor Being Quoted Out of Context? You Read, You Decide

If Judge Sotomayor, by her own words, believes the judge’s bench is “where policy is made,” what kind of law can we expect her to make as a Supreme Court Justice?

The Berkeley Law School speech in which Judge Sotomayor made the comments that I quoted at the outset of this newsletter -- that a “wise Latina” would make a better judge than a white male -- has been widely cited.

The White House is now claiming that critics are taking Judge Sotomayor’s comments in that speech out of context. So in the spirit of “you read, you decide” I am linking here to Judge Sotomayor’s speech in full.

As you read it, see if you agree with those respected legal scholars who have concluded that the speech as a whole isn’t as damaging as the Judge’s “wise Latina” comment -- it’s worse.

“Our Gender and National Origins May and Will Make a Difference in Our Judging”

Here are some excerpts from the speech (emphasis mine):

"I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that."


"Whether born from experience or inherent psychological or cultural differences...our gender and national origins may and will make a difference in our judging."


"Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases....I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."
Again, you read, you decide. Read Judge Sotomayor’s speech in full here. Then let me know what you think at Newt.org.

“Equal Justice Under Law” Is Chiseled in Stone on the Supreme Court

The central principle of American justice -- and perhaps the single, great idea of America -- is equal justice before the law.

This idea is expressed in the words “all men (and today we would say all men and women) are created equal.” It means that Americans stand before the law, not as members of groups, but as individuals.

"Equal justice under law" is in fact chiseled in stone on the front of the Supreme Court building -- and for good reason.

When a judge disregards the rule of law and applies a different standard to certain groups -- or, as the President would say, shows “empathy” -- he or she violates this central American principle.

One Group’s “Empathy” is Another Group’s Injustice. Ask Frank Ricci.

When a judge views Americans as members of groups and not individuals, one group’s “empathy” becomes another group’s injustice.

Nowhere is the injustice that results from judging Americans as members of groups and not as individuals more evident than in Judge Sotomayor’s ruling in the case involving Frank Ricci, a New Haven, Conn., firefighter.

Ricci quit his second job and studied 13 hours a day in 2003 for a civil service exam he hoped would earn him a promotion to lieutenant in the New Haven Fire Department. And when Ricci took the exam, all his hard work seemed to pay off. He got one of the highest scores. But because no African-Americans scored high enough on the exam to be promoted, the city of New Haven threw out the results of the test and promoted no one.

Frank Ricci, 16 other white firefighters, and one Hispanic firefighter sued the city, claiming they were denied promotions on the basis of their race. A district judge dismissed the case, and a three- judge panel of the Second Circuit Court of Appeals affirmed the dismissal. One of those judges was Judge Sotomayor.

An Opportunity to Have a Debate About Equal Justice for Americans Like Frank Ricci

The Supreme Court is currently hearing the Ricci case, and a ruling is expected next month, likely in the midst of hearings on Judge Sotomayor’s nomination.

Legal experts expect the Supreme Court to reverse Judge Sotomayor’s ruling. But however the high court rules, this is a moment for America to have a full, honest and open debate, not just about the impartiality of our judges, but about equal justice before the law for Americans like Frank Ricci.

Which Judge Sotomayor Will Show Up on the Supreme Court?

In fairness to the judge, many of her rulings as a court of appeals judge do not match the radicalism of her speeches and statements. She has shown more caution and moderation in her rulings than in her words.

So the question we need to ask ourselves in considering Judge Sotomayor’s confirmation is this: Which judge will show up on the Supreme Court, the radical from her speeches or the convention liberal from her rulings?

It’s no small question. Judge Sotomayor is 54 years old. Supreme Court Justice John Paul Stevens is 89. Judge Sotomayor has the potential to spend more than 30 years on the Supreme Court. There, unlike on the court of appeals, she will have no reason to show caution. On the high court, Judge Sotomayor will not have to worry about a higher court overturning her rulings. As a Supreme Court Justice, she will do the overturning.

The stakes are very high with this nomination. Has President Obama nominated a conventionally liberal judge to a lifetime tenure on our highest court? Or a radical liberal activist who will cast aside the rule of law in favor of the narrow, divisive politics of race and gender identity?

WRITTEN by Newt Gingrich as "Supreme Court Nominee Sotomayor: You Read, You Decide" at Human Events on June 3rd, 2009

'Disparate Impact' in Police Promotional Testing

Those of us who have chosen policing as a way of life have a keen understanding of how difficult it is to get promoted to higher rank. There is a lot on the line: prestige, money, and often our future retirement income. It isn’t unusual for an officer to spend 25 years and not be promoted—either by choice, circumstance, or the competitiveness of the process.

If one chooses to enter the race it means countless hours away from family to study the material required. So, imagine if you were a white or Hispanic officer and you came out first on a promotional examination and the test was thrown out by your city because not enough African-American officers would be promoted. What if the situation was reversed and the test was thrown out because not enough white officers would be promoted? Either way, it’s a tough pill to swallow, but this is exactly what happened to a group of white and Hispanic firefighters in the City of New Haven, Connecticut because of something called “disparate impact.”

The case is presently before the United States Supreme Court and could have far-reaching implications for police hiring and promotion. It is not the intent of this article to take a side on the issue of reverse discrimination—my intent is to explain the facts of the case before the court so the reader will be informed about disparate impact, and Title VII of the Civil Rights Act of 1964.

Ricci v. Destefano
In April of 2009 the United States Supreme Court heard arguments in a reverse discrimination case (Ricci v Destefano) filed by white and Hispanic firefighters from the City of New Haven, Connecticut. Between November and December of 2003, promotional examinations were administered for the position of Fire Captain. The testing process consisted of a written examination and oral examination, each of which was weighted at fifty percent of a candidate’s total score. Final tests results were that 14 of the 15 highest scores were white applicants and the other a Hispanic. No black candidates were within the top 15. Note that out of the 41 applicants for fire captain, a number of black candidates passed the exam but did not score high enough to be promoted under the City of New Haven’s promotional examination process.

According to articles in the Hartford Courant and New Haven Register the city charter “expressly required that each vacancy be filed from among the top three scores; and promotions must be based on merit as determined by the competitive examinations.” The charter expressly prohibits “favoring any candidate based on his or her race.” City officials—indicating that the test results violated the disparate impact provisions in Title VII of the Civil Rights Act—threw out the results of the examinations because no black candidates scored high enough to be considered for promotion.

In 2004, the higher-scoring white and Hispanic firefighters filed a lawsuit claiming reverse discrimination. The case made its way through the Commission on Human Rights to the United States District Court, District of Connecticut, which found for the city. Then in 2007 the firefighters appealed to the United States Second Circuit Court of Appeals which denied the appeal. The attorney for the firefighters then appealed to the United States Supreme Court which agreed to hear the case.

In April and May of this year the Supreme Court heard arguments in the case and their decision is pending. A central issue in the case is whether the test results reflected a significant disparate impact against African-American applicants or whether white applicant was the subject of discrimination due to their race.

Title VII of the Civil Rights Act of 1964
In 1971, The United States Supreme Court in Griggs v Duke Power Company (U.S. 424, 431-2) found that Tile VII prohibits not only overt discrimination, but also practices that may be fair in form, but discriminatory in operation. Examples of practices that may be subject to disparate impact include written examinations, interviews, height/weight, and education requirements. According to 42 U.S.C. 2000e-2(k)(1)(A)(1) “the plaintiff must prove, generally through statistical comparisons, that the challenged practice or selection device has a substantial adverse impact on a protected group“. There are different methodologies of measuring adverse impact and whether or not the testing method resulted in “significant adverse impact” to a protected class. The EEOC’s Uniform Guidelines on Employee Selection Criteria finds an adverse impact if members of a protected class are selected at a rate less than eighty percent (80 percent) or four-fifths of that of another group. Another method is to use standard deviations—if the difference between the number of members of the protected class selected and the numbers that would be anticipated in a random selection system is more than two or three standard deviations.

So, it’s going to be very interesting what the United States Supreme Court ultimately decides in the New Haven firefighters’ case. Regardless of how the court decides in the case it certainly will be a benchmark for all future police examinations—both entry level and promotional. This is troubling because in every examination process I administer I meet with candidates and tell them, “Everyone has an equal chance walking in the door.” What I mean by this is that the testing process will be fair, objective, and valid. I have no control over what a town, city, or court does with the results of the testing process. As that famous American philosopher Yogi Berra said, “The future isn’t what is used to be.”

WRITTEN by Larry F. Jetmore at PoliceOne.com on May 21st, 2009