WILLIAM KAEMPFFER
New Haven Register (Connecticut)

NEW HAVEN - Dealt a setback by the U.S. Supreme Court, the leader of an organization for black firefighters Tuesday vowed, "It doesn't end here."

Fire Lt. Gary Tinney, president of the New Haven Firebird Society, a fraternal organization for black firefighters, said despite Monday's ruling, African-Americans would challenge the city if it certifies results from two contested 2003 promotional exams, as the court ruling appears to have compelled it to do.

"It's not over," he said. "The disparate impact law is still intact."

While the Supreme Court delivered a blow to civil rights laws that took decades to achieve, said James Rawlings, president of the New Haven chapter of the NAACP, it didn't eviscerate the employment protections of Title VII of the Civil Rights Act of 1964. Minorities can continue to bring lawsuits against employers over "disparate impact" in the interest of advancing diversity.

The silver lining in Monday's decision, he said, is that it didn't go further.

"The idea that the Supreme Court did not get into affirmative action," he said. "(Justice Antonin) Scalia wants to go in that direction. It's pretty obvious. He was not able to go where he wanted to go."

Both the city and the attorney for the one Hispanic and 19 white firefighters who filed the discrimination lawsuit that wound its way to the nation's highest court took a step back Tuesday, a day after the court changed -- to some degree -- the civil rights landscape by concluding that the city violated the white firefighters' rights when it scrapped the results of two promotional exams because no blacks would have been eligible for promotion to the existing vacancies.

Corporation Counsel Victor Bolden Tuesday resisted questions about how the case of Ricci v. DeStefano would play out from here.

Ultimately, the lawsuit most likely will end up back in district court where it began, where a judge will apply the new interpretation of the law and the high court's marching orders: To grant summary judgment to the "New Haven 20."

"We will figure out the process once we get to district court," Bolden said Tuesday afternoon. "I understand there is a rush to figure out what's the end game, but we're still just 30 hours past when this issue was ordered."

Mayor John DeStefano Jr., who supported tossing the tests, has acknowledged the city most likely would ultimately have to certify the exams results.

Tinney on Tuesday repeated what he has said since 2004, when the city first raised concerns about the lopsided racial results on the promotional tests for fire lieutenant and captain.

"These tests were flawed," he said, contending that the format -- a written and oral combination -- is inherently unfair. He was promoted in 1999 under that format.

He also accused the New Haven 20 of advocating for written-only exams, which he said would even increase the disparate impact against minorities.

The allegation drew a strong response from Karen Torre, the attorney for the white firefighters, who disputed that was ever their position.

"We've never advocated that," she said, "and I think Mr. Tinney would better serve himself if he spent less time at press conferences and making trouble and more time educating himself in fire science and fire tactics books. He might do better on the next opportunity to take the test."

Statements like that struck a nerve with many in the Firebirds, who sought to set the record straight Tuesday. Firefighter Douglas Wardlaw bristled at suggestions that African-Americans didn't study hard or apply themselves and that's why they didn't score at the top.

Firefighter James Watkins, a member of the Firebird executive board, said he passed the lieutenant test and would have been promoted, if not in the first round but before the promotional list expired.

"I took the test right along with the so-called New Haven 20, studied just has hard as these guys," Watkins said, saying he spent $1,300 on study material and studied as his wife planned their wedding.

After the results were scrapped and he learned where he ranked, he said he turned down an offer to join the lawsuit.

Watkins said he won't turn down a lieutenant's badge if the city now certifies the lists under court order but, at the same time, "if the decision was left to me, I would have not certified the exams. I would have preferred to start from scratch."

The city threw out the results for the two tests, saying it feared a civil rights lawsuit by minority firefighters since, at most, two Hispanics and no blacks would have been eligible for promotion for the 15 existing vacancies. Three African-Americans would likely have been promoted to lieutenant during the list's two-year life.

The Supreme Court ruled that fear of a Title VII lawsuit alone is not enough to throw out a suit based on disparate impact, but instead a strong basis of evidence that it was discriminatory is needed.

If the lists are certified now and the department fills all existing vacancies, four African-Americans and 16 whites would advance to lieutenant and two Hispanics and eight whites would become captains.


Copyright 2009 New Haven
July 1, 2009