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'Wise Latina' Fuels the Fire of New Haven Racial Preference Case

Though much has been made of the “wise Latina,” Judge Sonia Sotomayor’s record on race might prove to be less “activist” and more color-blind than previously thought. 

Sotomayor’s rulings seemingly diverge from her personal views on race and race-based preferences – with one glaring and highly publicized exception: Ricci v. DeStefano.

A few years ago, Sotomayor ruled against Frank Ricci, a white firefighter who alleged the city of New Haven, Conn., unfairly denied him a promotion based solely on race. In 2003, the city rejected promotion test results among a pool of 118 candidates, including Ricci, after none of the 27 black applicants scored high enough to qualify for one of the 15 open captain and lieutenant positions. Afterward, Ricci and 16 other white men and one Hispanic man sued the city for racial discrimination.

Ruling unanimously with the other two judges on the Second Circuit of Court of Appeals three years later, Sotomayor said the city had lawfully rejected the test results by invoking Title VII of the Civil Rights Act. Under that federal law, governments may presume discrimination when tests disproportionately affect minorities.

In other words, if Sotomayor discriminated against white men, she was merely following federal law – the opposite of judicial activism.

But her critics haven’t taken comfort from that view of her record. Referring to her decision in Ricci, as well as her history of support for affirmative action programs, Rep. Tom Price, R-Ga., chairman of the Republican Study Committee, said, “Americans should be concerned that a nominee to our highest court has a record of being blinded by empathy for one group while endorsing discrimination against others.” 

The Supreme Court recently reversed Sotomayor’s decision in the firefighters case, holding that New Haven had not produced sufficient evidence to show that discarding the test results was the only way that it could have avoided the discriminatory result affecting black and Hispanic firefighters.

In other discrimination cases, Sotomayor has ruled at least partially in favor of defendants.  In Williams v. R.H. Donnelley, for example, she ruled against an African-American woman who brought charges of racial and gender discrimination against her employer. Sotomayor found that the employer did not treat white male employees more favorably than female minorities, and that the employer’s failure to promote the woman was based on her lack of qualifications – not her race or gender.

In race-related appeals cases, Sotomayor and fellow judges rejected discrimination claims the majority of the time. And when Sotomayor ruled in favor of plaintiffs alleging racial discrimination, the cases sometimes involved procedural grounds, insulating her now from charges of judicial activism.

While on the appeals court, Sotomayor dissented twice from panel decisions rejecting racial discrimination claims. In Gant v. Wallingford Board of Education, the judge ruled in favor of allowing a black kindergarten student to proceed with a case alleging discrimination in a school transfer.  In another case, Sotomayor ruled in favor of what could be called a white man’s right to hate speech.  In Pappas v. Giuliani, she disagreed with fellow judges that the New York Police Department could fire a white employee for distributing racist materials.

Sotomayor’s civil rights opinions in areas other than racial discrimination include N.G. v. Connecticut, which upheld Connecticut’s policy of subjecting girls in juvenile detention to strip searches at the time of their initial placement in detention.

While acknowledging that the state had a legitimate interest in uncovering contraband or detecting child abuse, Sotomayor in her dissent from the majority’s decision wrote that these interests did not justify such degrading and intrusive treatment of the girls, especially because most of them “have been victims of abuse or neglect, and may be more vulnerable mentally and emotionally than other youths their age."

How Sotomayor will vote on race as a Supreme Court justice remains a mystery, but her record at least supports a claim that she has a streak of fairness and a respect for the rule of law.

 


For More Information:

Click on the “Related Law” tab above to access an extensive collection of cases relating to the work of Judge Sonia Sotomayor, including Federal District Court cases, 1992-1998; Circuit Court cases, 1992 to present; and select Supreme Court cases.    

 

Copyright © 2009 Leagle, Inc. Created July 08, 2009, last updated October 06, 2009.

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