[JURIST] The US Supreme Court [official website; JURIST news archive] on Wednesday heard oral arguments [day call, PDF; briefs] in Ricci v. DeStefano [oral arguments transcript, PDF; JURIST report], where the Court will consider whether a government employer may refuse to certify results of a civil service exam that would make disproportionately more white applicants than minority applicants eligible for promotion, because of fears of charges of racial discrimination. Petitioners were applicants who qualified for promotions based on their test scores but were denied promotions because the municipality said it would violate the Equal Rights Act of 1964 [text]. The US Court of Appeals for the Second Circuit found [opinion, PDF] that the government employer's actions were protected. Lawyers for the employees argued that the lower court erred by not requiring the municipality to show that its actions prevented any actual discrimination:

Neither equal protection nor Title VII justified New Haven's race-based scuttling of the promotions Petitioners earned through the civil service process mandated by Connecticut law. The lower court required no strong evidentiary basis that the City was acting to remedy or avoid any actual discrimination, but strong safeguards are needed to smoke out illegitimate uses of race and to extinguish the racial favoritism that civil service laws… are intended to prevent.

Governmental employment actions grounded in race must be strictly scrutinized because they engender divisiveness and cause race-grounded harm that the Constitution seeks to avert.

Lawyers for the municipality argued that the testing disparity was the kind of barrier that the law was designed to eliminate, and that employers should be given some flexibility in complying with the law.