Will Race Discrimination Ruling Burn Sonia Sotomayor?

May 28, 2009— -- It wasn't a traditional discrimination case, and now conservatives are citing Sonia Sotomayor's ruling in the case in their pushback against the Supreme Court nominee.

"Every day I go to work, I gotta pin this lieutenant's badge on me, it reminds me I got screwed out of a captain's badge because of the color of my skin," said Matt Marcarelli, a 15-year veteran of the New Haven, Conn., fire department.

Marcarelli got the top score on a promotions exam. He was first in line for captain. But not everyone did so well.

In fact, not one of the 28 black candidates, in a field of 118, scored high enough to be promoted. For New Haven, that was a problem.

"It looked like the exam might have been discriminatory against some of the minority test takers. And that was certainly a red flag for the city under the law," said Victor Bolden, an attorney for the city of New Haven.

New Haven officials and some of the city's black firefighters argue that written tests are not the best tests to use and that less discriminatory alternatives -- such as oral exams -- are available.

"Written tests aren't the best way to judge a person on how they will perform at their job," said black firefighter Gary Tinney.

New Haven city officials knew they were headed for a catch 22 when the test results came back.

The city decided to throw out the test results, fearing a lawsuit by the black firefighters. They got one anyway -- from the white and Hispanic firefighters, who said New Haven's decision discriminated against them.

The firefighters lost in court. They appealed, and that's how this case got to Sotomayor, who is currently a federal appeals judge.

What has all of Washington talking is what happened next: Sotomayor and two fellow appellate judges dismissed the white firefighters' claims -- and 2,000 pages of court papers and filings -- in a one-paragraph ruling.

"We are not unsympathetic to the plaintiffs' expression of frustration," but the firefighters who filed the case don't have a "viable" claim under the law, the opinion said.