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.
--
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."
--
joliphant@latimes.com
david.savage@latimes.com
azajac@latimes.com
