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Sotomayor embracing affirmative action, then and now

The high court nominee's ruling on New Haven firefighters recalls a 1980s bias case involving a Puerto Rican advocacy group of which she was a board member.

June 15, 2009|James Oliphant, David G. Savage and Andrew Zajac

WASHINGTON AND NEW YORK — When Sonia Sotomayor goes before the Senate next month for her Supreme Court confirmation hearing, the questioning is likely to focus on her work as a civil rights advocate in the 1980s as much as on her nearly two decades on the federal bench.

That is because she was a board member of a Puerto Rican advocacy group that sued to overturn New York City's civil service exams and to win more police and firefighter jobs for Latinos.

Sotomayor embraced affirmative action and later described herself as leading an "attack" on testing and promotional exams that favored whites and limited the opportunities for minorities.

Twenty-five years later, as a high court nominee, she is being criticized for a ruling that threw out a suit by white firefighters in New Haven, Conn., who had earned top scores on a department exam but were passed over for promotion.

As a result, her hearings promise to revive a decades-old debate about the role of race and ethnicity in hiring decisions, and the use of quotas to achieve diversity.

It is a thread that has run through much of Sotomayor's life -- beginning with her admission to Princeton University and Yale Law School, where she excelled.

"I am a product of affirmative action," Sotomayor said in a 1994 interview. "I am the perfect affirmative action baby."

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Targeting exams

As a lawyer in the 1980s, before being appointed to a federal judgeship, Sotomayor sat on the board of the Puerto Rican Legal Defense and Education Fund, a New York-based group modeled after a similar unit established by the NAACP.

The fund sought to "use the law to create opportunities for Latinos," said Cesar Perales, co-founder and president of the group, now called LatinoJustice PRLDEF. "We think the law can ensure a level playing field."

While Sotomayor sat on the board, the fund moved beyond traditional civil rights cases and began to address what she called "economic problems" -- wage disparities and housing discrimination. A major target became civil service exams that the fund argued had a negative effect on Latinos and other minorities. It filed separate suits against New York City's police, fire and sanitation departments.

In 1984, while Sotomayor was on the board, the fund alleged on behalf of a group of Latino police officers that a sergeant's exam violated federal law because minorities did poorly on the test and its questions were not related to being an effective police supervisor. Fewer than 80% of the test takers were white, but the results indicated they would get 95% of the promotions.

The New Haven case presents an almost identical issue.

While on the federal appeals court in Manhattan, Sotomayor joined a three-judge ruling that last year rejected a discrimination claim filed by a group of firefighters -- 19 white and one Latino. They scored well on a promotional test, but New Haven decided to drop the test scores because no blacks would be promoted. The city's lawyers said because the test had a "disparate impact" on minorities, New Haven could be sued by black firefighters if the results were used.

The Supreme Court in April heard an appeal, and the justices are expected to rule on the case in the next two weeks.

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New Haven case

Conservative groups have been urging Republican senators to grill Sotomayor over the firefighter case. Some members of the Senate Judiciary Committee have said they were troubled as well.

"The concern is that above the Supreme Court it says, 'Equal justice under law,' " Sen. John Cornyn (R-Texas.) said this month, referring to the inscription on the front of the court's building. "The focus shouldn't be on the umpire and what their sex or gender is, or ethnicity. It ought to be on the game."

But New Haven may have been in the kind of bind that New York found itself in the 1980s.

Frederick A.O. Schwarz Jr., New York City's top lawyer at the time, said recently that "it was almost impossible to prove that pen-and-paper tests" reflected who was most qualified for promotion. At the same time, the police commissioner was in desperate need of new sergeants. So the department settled the case by agreeing to promote an extra 100 black officers and 60 Latinos.

New York "had to reach down and [promote] some patrol officers who were black and Latinos who hadn't passed" the test, said Kenneth Kimerling, the defense fund's lawyer on the case.

Though Sotomayor was not actively involved in litigating the case, she has taken credit for helping to develop the group's policy of filing such suits.

As in the New Haven case, some white officers who were passed over for promotion sued, contending they were victims of reverse discrimination. The U.S. 2nd Circuit Court of Appeals in 1987 -- a decade before Sotomayor joined -- upheld the settlement, as did the U.S. Supreme Court by a 4-4 tie.

Sotomayor has said she too had benefited from having her test results ignored.

In an interview in the 1990s, she said her "test scores were not comparable to that of my colleagues at Princeton or Yale -- [but] not so far off the mark that I wasn't able to succeed at those institutions."

"But," she added, "if we had gone through the traditional numbers route of those institutions, it would have been highly questionable whether I would have been accepted."

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joliphant@latimes.com

david.savage@latimes.com

azajac@latimes.com

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