It is with profound sadness that we
announce the tragic loss of a true friend. The world has lost a great man, a
skilled and gifted attorney, a dedicated father and family man and a
champion of the professional fire service.
Our thoughts and prayers go out to
his family and friends and co-workers at Yetter Coleman.
Many are offering their opinions on our case to the
media, including those who claim status as legal analysts. We have added this
fact check feature to correct the increasing number of misstatements about the
facts of our case. For those who intend to offer public commentary, we suggest
you take the time to read the petitions and briefs in this case to ensure
accuracy in your statements.
The December
benefit at Jack’s Bar & Grille was a great success. Our goal was to sell
250 tickets but over 400 were sold and the place was jammed for five hours.
Firefighters from departments throughout the State of Connecticut attended.
Firefighters groups from other cities in the U.S. donated generous gifts and
gift certificates that we auctioned off at the benefit. The show of
support overwhelmed us and we are grateful to all who came. THANK
YOU to all our brother firefighters, their families and friends and all
those who gave us financial, and more important, moral support. A special thanks
to the police officers who volunteered at the event and to the
Connecticut Firefighters Pipes and Drums who donned full Scottish garb and
entertained the crowd with bagpipes. You’re tops!
CASE
SUMMARY
THE
NEW HAVEN 20
WHAT OUR CASE IS ABOUT
The case of the New Haven 20 made its long way through the lower federal courts
and is now before the U.S. Supreme Court. The Supreme Court granted our
petitions for writs of certiorari on January 9th 2009. Legal briefs will be
filed in February and the case will be argued before the Court in April.
We are a group of lieutenants and firefighters in the New Haven Fire Department
who underwent a grueling multi-phase civil service examination process to
qualify for promotions to the command ranks of Captain and Lieutenant. In
early 2004, the city needed to fill vacancies in both ranks. Although we
were deemed the most qualified candidates, we were denied the promotions because
we are White or Hispanic and not enough Black candidates succeeded.
The examination process cost each one of us hundreds (and for several of us,
upwards of or over $1000) for the study materials, tutoring and mock exam
preparation. We gave up three months of our lives to intense study and
preparation during the three-month study period preceding the exams. We
studied many hours a day and rarely saw or spent little time with our families
and friends during this period. Some of us took leave from second jobs, or
our wives did so to assume childcare responsibilities while we studied, so the
economic loss was even greater than the out-of-pocket costs of the exams.
Our families sacrificed along with us in our effort to earn career advancement
and better pay and pensions for our families.
We were deemed the most qualified by the professional testing experts hired by
the city to develop and administer these exams. The city spent a fortune
hiring I/O Solutions, Inc., (“IOS”) a reputable firm employing experienced
experts in public safety job testing. In collaboration with city fire
department and civil service officials, IOS devised the tests after an
exhaustive pre-exam development process and job analyses. The test
syllabi, consisting of nationally recognized fire science and tactical textbooks
and other reference materials, were composed with the input and approval of the
NHFD’s top two officials, one of whom is Black. The written exams and oral
assessment scenarios were painstakingly devised and reviewed for accuracy by IOS
and external experts.
The city and IOS also spent thousands recruiting some 30 high-ranking fire
professionals from around the country to serve as assessors on ten panels tasked
with rating the candidates during the oral assessment phase of the exam process.
The assessors, a multi-racial group that was in fact dominated by minorities
(each of the ten panels had only one white assessor), underwent extensive
training upon arrival in New Haven. City officials admitted that the
assessors’ ratings of the candidates were fair and accurate and further, that
there was a demonstrated consistency of rating within and across assessor
panels.
By all accounts, the lengthy exams we underwent were job-related and entirely
fair. But the city race-coded the candidates by attaching to each a crude
race/ethnicity label (White, Black or Hispanic). The test results showed
that black candidates had a higher failure rate and a number who did pass did
not demonstrate a high enough level of knowledge, skills and abilities to
qualify for immediate promotion into then-existing vacancies, although three
black candidates for lieutenant later did become eligible for immediate
promotion when additional, previously unanticipated vacancies arose. Based
on these results, two Hispanics had earned promotion to Captain (out of 8
vacancies) and three Blacks earned promotion to Lieutenant (a range of 15-17
vacancies).
A small group of disgruntled black applicants who failed the exams had strong
ties to city hall and to the politically powerful black chairman of the Board of
Fire Commissioners, the Rev. Boise Kimber. Kimber is a known supporter of
and minority vote-getter for New Haven’s Mayor John DeStefano Jr. Kimber has the
mayor’s ear and gets powerful appointments despite being a convicted embezzler
and perjurer. (Convicted felons cannot be firefighters in New Haven but
they can be put in charge of a Board of Fire Commissioners!).
This small but vocal group of failing candidates complained that the exams were
racially “discriminatory,” even though the exams and selection process had
nothing whatsoever to do with race but instead neutrally assessed candidates’
knowledge and qualifications for these command positions. The city turned a
race-blind process into a race-conscious process by race-coding the candidates
and then making a decision on promotions based on the race of the successful
candidates.
Under state law and the city charter, the selection for each individual vacancy
must be made from among the top three highest-ranked candidates without regard
to race or politics. This important and time-honored law was designed to ensure
selection of the most qualified and end the graft, favoritism and corruption of
the political patronage system. Under pressure from Kimber, other local
black politicians as well as leaders of the “Firebirds” and other special
interest groups dedicated to advancing blacks in the civil service, Mayor
DeStefano and his staff went to great lengths to concoct an excuse to scuttle
our promotions. Their aim was to set aside and hold the vacancies open for
certain unsuccessful black applicants until the City could devise another
process aimed at granting minorities the promotions.
The Mayor and his staff lobbied New Haven’s Civil Service Board to throw out the
eligibility list. We later learned that if the Board members (all
political appointees of the Mayor) refused to do so, Mayor DeStefano was
prepared to override the Board’s vote and issue an executive order prohibiting
the Fire Department from filling the vacancies. In the end, the Board did
DeStefano’s bidding and refused to promote us. Later, DeStefano appeared
at a NAACP convention and took credit for this result, to the applause of those
in attendance.
Mayor DeStefano has a reputation for pandering to racial and ethnic voting
blocs. He has been accused repeatedly (and sued multiple times) for violating
the law in order to politicize the civil service and award jobs based on race
and political cronyism. One state court judge accused his administration
of “blatant lawlessness” in subverting the civil service laws. The
DeStefano administration lost every case against it in the state courts in which
city officials were alleged to have manipulated the outcome of civil service
exams for improper reasons of race preferences. They unsuccessfully
appealed adverse rulings by state judges to the Connecticut Supreme Court, which
unanimously rejected their excuses and ordered the city to comply strictly with
the civil service laws and regulations.
When DeStefano pulled his political stunts again with our promotions, we sued in
federal court, alleging race discrimination in violation of our Title VII and
federal constitutional rights. City officials admitted in court that our
race led them to deny us the promotions. No one could, and no one did, deny
that these tests were fair and job-related. Notwithstanding these uncontested
facts, a federal judge dismissed our case.
THE LOWER FEDERAL COURT PROCEEDINGS
After protracted proceedings in the New Haven District Court lasting some two
years, the case was ripe for decision after both sides moved for summary
judgment. At this end stage of proceedings, final oral argument on the
case was scheduled before U.S. District Judge Mark R. Kravitz, the assigned
presiding judge who managed our case and issued all orders on it throughout.
On the eve of the oral argument, we were notified that it was cancelled and that
another judge would be taking over the case. We were afforded no explanation
for this. There were additional delays due to the judge change.
Judge Janet Bond Arterton took control of the case, and in late September of
2006, threw it out. Granting summary judgment to the city and its
officials, Judge Arterton essentially held that: 1) Any civil service
test that does not produce equal racial results is flawed; 2) It did not matter
that the tests were job-related and fair; 3) It did not matter that those
minority candidates who failed or fared poorly on the test and complained the
loudest were the very ones, according to uncontested testimony, who invested the
least in studying, did not give up their second jobs during the study period,
and turned down opportunities to participate in study groups and tutoring
sessions at the firehouses offered
by volunteer officers, with some not even bothering to get the books on the
syllabi; 4) It was irrelevant that these individuals were in fact unqualified
for the jobs and deemed incompetent not only by the testing experts but by a
multi-racial group of high-ranking oral assessors dominated by minority fire
officials; 5) it is irrelevant that command vacancies would be left unfilled at
risk to the safety of firefighters and the public; and 6) most remarkably, the
mayor could deny us our promotions in the interest of racial “diversity” and for
“political reasons” - that is, to avoid angering his African-American
constituency and powerful minority political activists.
Judge Arterton spoke approvingly of the mayor’s desire to avoid the “political
consequences” of proceeding with promotions based on admittedly legitimate test
results. The bottom line is that “diversity” and race politics - not
qualifications, competence, and firefighter and public safety – were the main
concerns of the district court in interpreting Title VII and the U.S.
Constitution. The district court thus allowed command vacancies in a
critical first responder agency on the East Coast corridor to remain unfilled
while the city “explores” for alternatives and “conducts studies” to try to
figure out how to promote the very people who failed a legitimate competency
exam.
We thought such a radical decision would surely be overturned on appeal.
But a three-judge panel of the Second Circuit Court of Appeals affirmed the
dismissal of our case, holding that mere “disparate impact” of job criteria on
minorities is enough to justify a public employer’s denying the jobs to the
successful qualified candidates because they are of the wrong race (or ethnicity
as was the case with the successful Hispanics who were denied as well).
Two of those judges (Hons. Rosemary Pooler and Sonia Sotomayor) heard argument
on the case in New York City on December 10, 2007. We all attended and
based on the questions and remarks from the judges, we knew then and there that
we would lose again.
Despite thousands of pages of uncontested evidence, oversized legal briefs, a
one-hour oral argument (unusual in the appeals court), a supporting amicus legal
brief addressing safety issues from a firefighter organization, and another
amicus brief from a prestigious public interest law organization (The Washington
D.C.-based Center for Individual Rights) the judges affirmed Judge Arterton’s
ruling by a brief one-paragraph “summary order” that gives the reader no clue
as to what this case was about, much less that it was the most significant race
case to come before that court in decades. The Second Circuit’s dispositions of
immigration and asylum appeals, pro se appeals and frivolous prisoner complaints
often get more words than the ruling it issued in our case. Disgusted, and
against the odds, we petitioned the U.S. Supreme Court to review our case,
notwithstanding the manner in which the Second Circuit panel disposed of our
appeal, which made the odds against us even greater.
OTHER
SECOND CIRCUIT COURT OF APPEALS JUDGES STEP FORWARD
In June, 2008, while our petition to the U.S. Supreme Court was pending, we
received word that other judges on the Second Circuit Court of Appeals, acting
on their own, tried to force a full court re-hearing of this case after finding
the three-judge panel’s summary action objectionable. A vote took place
among all the active judges
of the court on whether to rehear this case “en banc”. By a narrow vote of
7-6, en banc rehearing was denied. The original three judges who disposed
of our appeal were among the 7 judges to vote “no” on rehearing this case en
banc. The six judges who voted to rehear the case, including the chief
judge of that court, issued dissenting opinions that both criticized the panel’s
handling of this case and expressed the hope that the U.S. Supreme Court grants
our petition and takes our case.
Judge Jose A. Cabranes’s opinion on behalf of all six dissenting judges is
HERE. Chief Judge Dennis Jacobs’s
separate dissenting opinion is HERE. After the 7-6 vote, the original
three-judge panel converted its summary order to a “per curiam opinion” – one
that is now officially published and which has precedential force throughout the
Second Circuit. But there was no change in the text of this “opinion” from
the summary order. Rather, the original panel just cut and pasted its
summary order under the title of “per curiam opinion." The panel not only
just adopted Judge Arterton’s ruling in whole but acted to make that district
court opinion the law of the circuit, imperiling every civil service exam in
every city and town in New York State, Connecticut and Vermont.
The Sixth Circuit Court of Appeals recently chose to follow the Second Circuit’s
Ricci decision and issued an identical holding in a case coming out of
Memphis, Tennessee. Thus, the Ricci holding is already doing
damage beyond our circuit’s borders. It was important that we do
everything we can to challenge this decision, not just for ourselves but for
brother firefighters around the nation. Our safety, public safety, as well
as basic notions of fairness and equal civil rights require it. The job of
firefighter is the most dangerous job one can have and even one firefighter
death caused by political correctness is one too many.
offered
by volunteer officers, with some not even bothering to get the books on the
syllabi; 4) It was irrelevant that these individuals were in fact unqualified
for the jobs and deemed incompetent not only by the testing experts but by a
multi-racial group of high-ranking oral assessors dominated by minority fire
officials; 5) it is irrelevant that command vacancies would be left unfilled at
risk to the safety of firefighters and the public; and 6) most remarkably, the
mayor could deny us our promotions in the interest of racial “diversity” and for
“political reasons” - that is, to avoid angering his African-American
constituency and powerful minority political activists. 
judges
of the court on whether to rehear this case “en banc”. By a narrow vote of
7-6, en banc rehearing was denied. The original three judges who disposed
of our appeal were among the 7 judges to vote “no” on rehearing this case en
banc. The six judges who voted to rehear the case, including the chief
judge of that court, issued dissenting opinions that both criticized the panel’s
handling of this case and expressed the hope that the U.S. Supreme Court grants
our petition and takes our case.