WASHINGTON (CN) - The legality of canceling a firefighter exam after no blacks and only one Hispanic passed was argued before a crowded Supreme Court on Wednesday, aslawyers navigated the narrow straits dividing impermissible racial discrimination and appropriate race consciousness. "If it had come out the other way, " Justice Antonin Scalia challenged, "if there had been a disproportional number of minorities who passed, you would say that it's neutral to set the test aside? I don't think you'd say that."
The exam was administered in 2003 to firefighters in the New Haven department to fill the jobs of captain and lieutenant.
Traditionally, the city charter requires that the civil service appointees be selected from the three candidates who score the highest.
But when all black candidates and all but one Hispanic candidate failed the exam, the city corporation counsel decided not to use the exam as a way of determining successors to the two jobs.
Instead, the counsel didn't promote anyone. Currently, the jobs are filled on a rotating basis.
Justice David Souter called it a "damned if you do, damned if you don't situation." Once the results were out, the city would have likely gotten sued regardless of whether it kept or discarded the test results.
As suggested, the 17 whites and one Hispanic who did pass the exam sued the city after the exam results were withdrawn.
In their arguments, both the city and the suing firefighters accused the other of violating Title VII, passed by Congress in 1964 to promoted race equality in employment.
Christopher Meade, from Wilmer Hale, represented New Haven. He argued in favor of not using the test for promotions, and said the test violated Title VII because it had a statistically significant adverse affect on minorities.
Not only did the exam violate the title, but it tested contestants on more skills than were required for the job, he said. Because of this, it didn't scale applicants by merit. He argued that doing away with the test would be a better way of promoting based on merit.
Meade also argued that any employer can eliminate requirements for a job, like the city did with the exam. He said employers should be allowed some degree of discretion.
While there was no denying that the racial discrepancy played a role in the choice to dismiss the exam scores, Meade attacked the view that the decision was racist. He said all the applicants were treated equally because none were promoted.
The city took a "neutral action which applied to all test takers the same," explained Meade.
Justice Scalia did not agree. "It's neutral because you throw it out for the losers as well as for the winners? That's neutrality"?
Gregory Coleman, from Yetter Warden & Coleman, represented the high-scoring firefighters. He argued for the use of the exam in promotion decisions.
He put a great amount of emphasis on sequence of events, claiming the city was not simply removing a prerequisite for a position, but denying the firefighters their promotions after the fact, and for racial reasons.
Coleman said employers can't change numerical results after the fact. "Employers can't simply act to fix numerical disparities," he said. "Discarding the test because of the racial distribution of the results constitutes a manipulation of the results."
Such a manipulation, he said citing Title VII, is illegal. It prohibits employers from adjusting the scores or altering the results of employment-related tests on the basis of race.
Coleman agued that the state of Connecticut has pursued competitive exams as a way to hire civil service workers based on merit, said Coleman. The exams were put in place precisely in order to get rid of cronyism and discrimination, he said.
Said Justice Scalia, "I'm getting confused."
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.