June 25 (Bloomberg) -- A racially charged U.S. Supreme Court battle over New Haven, Connecticut, firefighter promotions plays out every day in the city’s Dixwell Fire Station.

New Haven threw out a set of 2003 promotional exams because not enough minority candidates qualified. A group of predominantly white firefighters led by Frank Ricci alleged reverse discrimination and sued. The controversy has taken on added significance because Supreme Court nominee Sonia Sotomayor was part of an appeals court panel that ruled for New Haven.

While the Census Bureau estimates the city’s black population at 36 percent, less than 28 percent of New Haven’s firefighters are black, city figures show.

Bruce Galaski, 38, a white firefighter who works along with Ricci in the Dixwell station, said that the promotion dispute has caused resentment in the department.

“Morale is terrible,” said Galaski, a 10-year New Haven veteran who chose not to join the suit against his employer even though he said he has been told he did well enough to qualify for promotion. “It’s tough when you work hard and you don’t get promoted because of the color of your skin.”

While blacks make up about 12 percent of the U.S. population, they make up just over 8 percent of the almost 300,000 professional firefighters nationwide, according to the Bureau of Labor Statistics and the Census Bureau. In some cities, the gap is even wider.

Philadelphia Firefighters

For example, almost half of the population in Philadelphia is black, according to the Census Bureau. Yet less than a third of the city’s firefighters are African American, said Kenneth Greene, president of Club Valiants, a group that represents black firefighters.

“That clearly says a lot of African Americans are not getting the same opportunities,” Greene said.

New Haven officials said they were caught in a bind: Using the exams would mean a lawsuit by black firefighters claiming the tests didn’t properly measure qualifications for promotion and violated a federal anti-discrimination law. Instead, the white firefighters sued after the tests were thrown out.

Retiring Supreme Court Justice David Souter, during oral arguments in the dispute, called the dilemma for cities a “damned if you do, damned if you don’t situation.”

Decision Due

The Supreme Court concludes its current term on June 29 with the New Haven ruling due to be handed down then. The decision will get extra attention because Sotomayor, President Barack Obama’s nominee to replace Souter, sat on the 2nd U.S. Circuit Court of Appeals panel in New York that ruled against the white firefighters last year.

Her position in the Ricci case essentially supports racial preferences embodied in affirmative action plans, said Michael Dorf, a professor at Cornell Law School in Ithaca, New York.

“It will be front and center for Republicans who want to oppose her,” said Dorf, who has written books on constitutional law and follows the high court closely. “That is the one real arrow they have in their quiver, and I would be surprised if they didn’t shoot it over and over again.”

Senate Republicans such as John Cornyn of Texas and Susan Collins of Maine have expressed concern about the 2nd Circuit court ruling, though opposing Sotomayor, 55, the first Hispanic nominee to the high court, may prove treacherous. The Senate Judiciary Committee holds hearings on her confirmation beginning July 13.

While a closely divided Supreme Court has limited governmental power to grant preferential treatment to minorities in some cases, the justices in 2003 said universities may consider race as a way to ensure a diverse campus.

Temporary Appointments

In New Haven, the city has been filling the vacant department officer jobs with temporary appointments based on seniority. Firefighters who support Ricci and his colleagues said promotions should be colorblind.

“A lot of guys are hoping there is justice for these guys,” said Mike Bresnan, president of the local Concerned American Firefighters Association in Philadelphia. “Some guys study for years, and for all that time and effort to be thrown out because the city doesn’t like the color of the list is despicable.”

In Philadelphia, five firefighters sued in 2007, claiming the city and Fire Commissioner Lloyd Ayers conspired to manipulate the outcome of a promotional exam to favor blacks. The city settled the suit in January for undisclosed terms.

In Houston, seven minority firefighters sued the city last year over exams used to select captains and senior captains. Dennis Thompson, an attorney for the firefighters, said the tests “in essence inflate the performance of whites over minorities.”

‘Be a Dinosaur’

Diversity and cultural experiences are important for first responders, Thompson said. “You can embrace it and adapt or you can fight it and be a dinosaur,” he said.

Firefighters say diversity can be especially important in emergencies. Victims may feel more comfortable when they see first responders who look similar to them or understand their neighborhoods, they say.

White members of Engine Company 60 on the South Side of Chicago see it differently. The mention of New Haven drew a cluster of firefighters who said they have seen examples of reverse discrimination and voiced concern that procedures used to increase diversity in the higher ranks may harm the public.

Outstanding Officers

“Most of the officers are outstanding, but the ones who trickle through the cracks aren’t as well qualified as they should be,” said Captain Lee Basile, 47, a 27-year veteran of the Chicago Fire Department. Asked whether the current system, which also allows supervisors to make “merit” promotions regardless of race or test scores, puts citizens’ safety at risk, Basile said, “absolutely.”

In New Haven, city officials recommended that the Civil Service Commission cancel the test result after finding that only two Latinos and no black applicants qualified for promotion to any of 15 captain and lieutenant spots in the department.

The commission wrestled with the matter during five often contentious public meetings, eventually deadlocking 2-2 and failing to certify the exam. Tensions bristle off the pages of the commission meeting transcripts from early 2004.

Black and Hispanic community leaders, including the Reverend Boise Kimber, argued that the results raised enough questions to scrap the test, an opinion backed by city officials and to some extent by outside consultants.

“I would hope that you would not put yourselves in this type of position, a political ramification that may come back upon you,” said Kimber, an activist and ally of New Haven Mayor John DeStefano.

No Black Members

He said the panel had no black members and just one Hispanic after Barbara Tinney, sister of Gary Tinney, a black firefighter who didn’t do well enough to qualify for a promotion, was recused.

Tinney also works at the Dixwell firehouse. In an interview last week, the 44-year-old lieutenant said he is concerned about the lack of diversity in the officer ranks and doesn’t see a chance for improvement any time soon.

“This particular lawsuit has set us back 45 years,” Tinney said.

Ricci, 35, and other firefighters argued that they had studied hard and wanted the test to count no matter how they did. Ricci described how his dyslexia required him to spend hundreds of dollars to pay someone to read the materials into a tape as he studied as many as 13 hours a day to prepare.

No Second-Best

“I don’t even know if I made it,” Ricci said, according to the meeting transcripts. “But the people who passed should be promoted. When your life’s on the line, second-best may not be good enough.” Ricci isn’t granting interviews now.

New Haven hired Industrial/Organizational Solutions Inc. of Westchester, Illinois, to develop its written and oral tests and didn’t have city or fire department officials review them, in an effort to keep out bias. As a result, the exams -- now under seal -- contained questions that had little to do with New Haven procedures, Tinney and other firefighters told the commission.

They said one question asked whether firefighters in New York City should approach a blaze from uptown or downtown.

Another asked what procedure should be followed after getting into an accident en route to an emergency call, Tinney said.

“According to the test, the right answer was, call a supervisor apparatus, call the chief of the department,” Tinney said, according to meeting transcripts. “You don’t do that. Our policy is call the battalion chief, call the police department, call another company.”

Outside Experts

Outside experts brought in by the commission to review the tests said there usually is a difference in performance between races because in general whites are more highly educated and may have more mentoring opportunities. Still, city officials said the disparity in this set of exams was greater than in their past tests, when more minorities were among the top scorers.

One issue may have been the volume of new study materials and a greater need for skills such as memorization. New Haven officials, who later reviewed the test under a confidentiality agreement, said questions sometimes focused more on how well a candidate could recall a particular passage verbatim than knowledge of relevant information or job skills.

“We believe that equally valid, less discriminatory alternatives to this test exist,” Tina Burgett, the city’s director of human resources, told the commission.

Chris Hornick, an outside expert asked to review the test, summed up the committee’s dilemma. “You’re darned if you do and you’re darned if you don’t,” he said.

The words were echoed more than five years later as the Supreme Court heard arguments in the case.

The case is Ricci v. DeStefano, 07-1428.

To contact the reporters on this story: Kristin Jensen in Washington at kjensen@bloomberg.net; Jane Mills in New Haven at janemills1111@yahoo.com

Last Updated: June 25, 2009 10:39 EDT