Thursday, February 21, 2008

‘New Haven 20’ prepared to take reverse discrimination case to Supreme Court

By William Kaempffer
Register Staff
— Twenty firefighters whose reverse discrimination lawsuit against the city was thrown out in federal court and again on appeal have vowed to pursue the case to the U.S. Supreme Court if necessary.
According to a statement released Wednesday by their attorney, the New Haven 20, as they have dubbed themselves, voted as a group “and was unanimous in their resolve.”
“They’ve been victimized over and over again and to their credit, they won’t lay down,” said attorney Karen Torre.
Last week in a summary order, a three-judge panel of the 2nd U.S. Circuit Court of Appeals upheld the dismissal of the case by a district court judge in New Haven. Torre said she hadn’t ruled out asking the entire Second Circuit to reconsider the decision, but the consensus of her clients was to see if the high court would agree to hear it.
A petition the U.S. Supreme Court is a heady process that, if successful, would thrust the issues of race, civil service and disparate impact in the national spotlight. At the same time, scarce few are granted. In an average year, 10,000 petitions are filed to the court seeking attention and only 80 to 90 are accepted. Four of nine justices must agree to accept the case.Rob Smuts, the city’s chief administrative officer, said his understanding from city attorneys is the case is “pretty cut and dry” after both a district court and then appellate court ruled in the city’s favor.
“I don’t think the chances are very high that the Supreme Court will take it up, but that’s what the process is there for,” he said.
But ongoing litigation, if it drags on, could impact the timetable for new promotional exams in the Fire Department. It was two civil service exams in 2003 for fire lieutenant and captain that prompted the protracted legal conflagration. The city recommended the exams be scuttled, citing potential disparate impact against minorities because too few scored high enough to be promoted. The city Civil Service Commission, which certifies promotional exams, ended up deadlocked and the exams died on the vine.
Soon after, 20 firefighters, 19 white and one Latino, filed a reverse discrimination suit, claiming race politics was behind the move.
Smuts said new captain and lieutenant exams — none have been administered since 2003 — are tentatively in the budget for the next fiscal year, leaving time for the lawsuit issue to be sorted out. But before moving forward, he noted, “we would want to have a sense as to whether the Supreme Court will take this up.”
It’s hard to predict whether that will happen. In her clients’ favor, Torre said, is that individual federal courts around the country have handed down contradictory decisions and because of the prevalence of disparate impact lawsuits around the country.
Torre said that the case presents the high court with an opportunity to settle the issue. “At the very least, win or lose, my clients want the Supreme Court justices to read about what happened to them.”
The Associated Press contributed to this story. “If there’s one thing that I discovered in my research, it is that for decades now cities and taxpayers have been plagued with the disparate impact lawsuits,” she said. “Every major city. It never ends.”

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