On June 29, 2009, the Justices of the United States Supreme Court overruled their soon-to-be colleague, then-Judge Sonia Sotomayor, in a 5-4 opinion. Justice Kennedy wrote the majority opinion and agreed with the New Haven firefighters, who were denied a promotion only because they had outperformed minority candidates on their examinations. Sotomayor had previously upheld the decision of a district court in Connecticut that had ruled in favor of the City of New Haven, without signing her name to the opinion or offering an explanation for her reasoning.

The Supreme Court was correct in holding that the City improperly disregarded the results of promotional exams that officials said left too few minorities qualified. Further, Sotomayor failed to perform her judicial duty when she upheld a lower court decision without providing a justification for her determination. The Second Circuit is paying good money for your thoughts - please share them. Sotomayor's lack of explanation was essentially a stamp of approval for appealing her decision to the high court and the absence of effort wasted our country's judicial resources. The Supreme Court later found that the district court had not applied a legal principle properly, which affected the outcome of the litigation. The question was not, as the district court held, whether the City's conduct was discriminatory, but whether the City had a lawful justification for its race-based action. It would have been fortunate if Sotomayor had discovered this error.

The City established no such justification. Interestingly, before the firefighters were aware of whether they had passed or failed, some of the candidates spoke at a hearing held to discuss whether to certify the examination results. These firefighters testified that the examination questions came from their study material and that if a candidate read the materials and studied appropriately, he would pass the test. They explained that some of the test questions were based on the Department's own rules and procedures as well as "nationally recognized" materials that represented the "accepted standards" for firefighting. One of the firefighters suing the City suffered from multiple learning disabilities, including dyslexia, and even he managed to pass the examinations. Clearly, those who invested the requisite time, effort, and energy would have been eligible for promotions based on their test results.

The City argued that under a federal civil rights law, Title VII, employers are required to ban actions, such as tests indicating eligibility for promotions, that would have a "disparate impact" on a protected class. Justice Kennedy explained that "race-based action like the City's in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable." The City failed to meet this "disparate impact" threshold and thus, its decision to throw out the test results lacked any valid defense and was unlawful. Kennedy further argued that "the process was open [and] fair" and that the City officials "were careful to ensure broad racial participation in the design of the test itself and its administration." The City chose to disregard the results to avoid litigation and lacked sufficient justification for its discriminatory action.

Justice Ginsburg opined that her colleagues should have assessed "the starkly disparate results" of the exams against the backdrop of historical and ongoing inequality in the New Haven fire department. But, again, this is not the law, and reviews of the examination process found no testing bias. The Supreme Court was being asked to decide whether there was a continued need for special treatment for minorities, or whether enough progress had been made to render existing laws obsolete (at least in the New Haven Fire Department). The Supreme Court answered that in this specific instance, the decision-making process was not racially biased.

Reverend Martin Luther King, Jr. hoped that one day, we could be judged not by the color of our skin but by the content of our character. In Ricci v. DeStefano, the Supreme Court provided this opportunity for a few New Haven firefighters.