Ginsburg Dissents Offer Bright Spots in Two Disappointing Supreme Court Rulings

Today's Supreme Court ruling in Ricci v. DeStefano was
disappointing, but it's what we have come to expect from the
conservative majority on the Roberts Court. Had retired Justice Sandra
Day O'Connor still been on the court, instead of her successor Justice
Samuel Alito, this 5-4 decision might well have gone the other way.

The City of New Haven, Conn., was right to question the results of
the promotion test given to firefighters, based on its disparate impact
on African-American and Hispanic candidates. We know that such tests can
exhibit race and gender bias, and city officials correctly threw out
the test and began anew in order to create a level playing field for
all those seeking promotions.

The federal district court that first reviewed the case determined
that the city was making an effort to comply with Title VII Civil
Rights Act of 1964 by invalidating the test, and was not
discriminating against the candidates who did qualify for promotions. A
three-judge panel of the Second Circuit -- which included current
nominee for the Supreme Court, Judge Sonia Sotomayor -- agreed with the
lower court's "thorough, thoughtful, and well-reasoned opinion" that
the City of New Haven was "simply trying to fulfill its obligations
under Title VII when confronted with test results that had a
disproportionate racial impact." Even if Sonia Sotomayor had been on
the court for these deliberations, her lower court opinion was in line
with Justice David Souter's position, so her vote would not have
changed the outcome.

A dissent authored by Justice Ruth Bader Ginsburg contends that the
ruling opinion "ignores substantial evidence of multiple flaws in the
tests New Haven used. The Court similarly fails to acknowledge the
better tests used in other cities, which have yielded less racially
skewed outcomes." Ginsburg also noted that: "Firefighting is a
profession in which the legacy of racial discrimination casts an
especially long shadow. . . . It is against this backdrop of entrenched
inequality that the promotion process at issue in this litigation
should be assessed."

Just last week, the Supreme Court made what initially appeared to be
a commendable ruling in the case of a 13-year-old girl who had been
strip-searched by school officials looking for ibuprofen. In an 8-1
ruling, the court said that Savana Redding's constitutional rights were
indeed violated by the search. That decision was in line with a
comparable ruling made by Sotomayor.

Having found that Redding's rights were violated, the Supreme Court,
by a smaller majority, also ruled that the very school officials
responsible for the strip-search could not be held liable for their
actions. The justices left it to the lower courts to determine whether
the school district itself could be held liable. On the question of
liability, Justices Ginsburg and John Paul Stevens dissented, with
Ginsburg arguing that the school vice principal's "treatment of Redding
was abusive and it was not reasonable for him to believe that the law
permitted it."

Based on the court's performance on these two cases, NOW is more
eager than ever for Judge Sotomayor to join Justice Ginsburg on the
high court in time for the next session.