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Supreme Court Rules 5-4 for White Firefighters

WASHINGTON (CN) - A group of white firefighters prevailed in the nation's highest court Monday, with a 5-4 ruling that New Haven, Conn., cannot toss the results of an exam used to decide promotions on the basis that no blacks and only one Hispanic passed the test. "This express, race-based decision-making is prohibited," Justice Anthony Kennedy wrote for the majority opinion, which reverses Supreme Court nominee Sonia Sotomayor's decision as a 2nd Circuit judge.

The ruling tackles the difficult question of disparate treatment versus disparate impact.

The high court decided there needed to be a significant reason to throw out the test results, and that New Haven's reason that not enough minorities would be promoted was too weak.

In the dissenting opinion, Justice Ruth Bader Ginsburg argued that the selection process was flawed, and said the city was right to dismiss the results.

As a judge on the 2nd Circuit, Sotomayor sat on a panel that dismissed the case, upholding a federal judge's conclusion that the city was right in rejecting the exam results.

Critics of the appellate decision say the judges did not thoroughly analyze the case before rejecting it.

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, and filled the positions on a rotating basis.

Title VII prohibits intentional employment discrimination and policies that have a disproportionately adverse effect on minorities even if they are not intended to discriminate.

"Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate treatment and disparate-impact provisions," Justice Kennedy wrote.

Kennedy applied "a strong basis in evidence standard" to say there must be significant reason to justify rejecting the exam results.

The city would only be wrong in using the exam if it were not job related, or if there were an equally valid and less discriminatory alternative to promotions, Kennedy said.

"All the evidence demonstrates that the city rejected the test results because the higher scoring candidates were white. Without some other justification, this express, race-based decision making is prohibited." Kennedy wrote.

Ginsburg disagreed. "The court pretends that the city rejected the test results solely because the higher scoring candidates were white," she wrote. "That pretension, essential to the court's disposition, ignores substantial evidence of multiple flaws in the tests."

She also said that blacks and Hispanics make up almost 60 percent of New Haven's population, and that this should be reflected in the higher positions of the city's fire department. "Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow," she said.

"The court's order and opinion, I anticipate, will not have staying power," Ginsburg added.

Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts all joined in the opinion.

Justices John Paul Stevens, David Souter and Stephen Breyer joined Ginsburg's dissent.

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