The preacher who would be "kingmaker"

As the preacherman Rev. Boise Kimber said, referring to the white firefighters, "They just have too many vowels in their names." Blatant and shameless, this obnoxious man felt perfectly confident in attempting to thwart the promotions of white firemen in New Haven, Connecticut, simply because of their race. Supposedly this was the type of bias that those 1960s civil rights crusaders strove to end. In the name of justice for blacks, all such discrimination was to be ended. Of course, it's been clear for years that genuinely equal treatment was never what these crusaders had in mind.

Following are excerpts from Supreme Court Justice Samuel Alito's concurring opinion in the Ricci v. DeStefano case. In a 5-4 Decision, the Court ruled in favor of the firemen. Alito has done us all a service by offering a candid, brutal account of the goings-on behind the scenes, by an interfering black preacher and the Mayor of New Haven.
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I write separately only because the dissent [by Justice Ruth Bader Ginsburg], while claiming that “the Court’s recitation of the facts leaves out important parts of the story,” provides an incomplete description of the events that led to New Haven’s decision to reject the results of its exam. ...

When an employer in a disparate-treatment case under Title VII of the Civil Rights Act of 1964 claims that an employment decision, such as the refusal to promote, was based on a legitimate reason, two questions—one objective and one subjective—must be decided. The first, objective question is whether the reason given by the employer is one that is legitimate under Title VII. If the reason provided by the employer is not legitimate on its face, the employer is liable.

The second, subjective question concerns the employer’s intent. If an employer offers a facially legitimate reason for its decision but it turns out that this explanation was just a pretext for discrimination, the employer is again liable. ...

As initially described by the dissent, the process by which the City reached the decision not to accept the test results was open, honest, serious, and deliberative. But even the District Court admitted that “a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.”

This admission finds ample support in the record. Reverend Boise Kimber, to whom the District Court referred, is a politically powerful New Haven pastor and a self-professed "kingmaker." On one occasion, “in front of TV cameras, he threatened a race riot during the murder trial of the black man arrested for killing white Yalie Christian Prince. He continues to call whites racist if they question his actions.” ...

Reverend Kimber’s personal ties with seven-term New Haven Mayor John DeStefano stretch back more than a decade. In 1996, for example, Mayor DeStefano testified for Rev. Kimber as a character witness when Rev. Kimber—then the manager of a funeral home—was prosecuted and convicted for stealing prepaid funeral expenses from an elderly woman and then lying about the matter under oath. “Reverend Kimber has played a leadership role in all of Mayor DeStefano’s political campaigns, [and] is considered a valuable political supporter and vote-getter.”

According to the Mayor’s former campaign manager (who is currently his executive assistant), Rev. Kimber is an invaluable political asset because “[h]e’s very good at organizing people and putting together field operations, as a result of his ties to labor, his prominence in the religious community and his long-standing commitment to roots.”

In 2002, the Mayor picked Rev. Kimber to serve as the Chairman of the New Haven Board of Fire Commissioners (BFC), “despite the fact that he had no experience in the profession, fire administration, [or] municipal management.” In that capacity, Rev. Kimber told firefighters that certain new recruits would not be hired because "they just have too many vowels in their name[s]." [Hartford Courant, June 13, 2002] After protests about this comment, Rev. Kimber stepped down as chairman of the BFC, but he remained on the BFC and retained “a direct line to the mayor.”

Almost immediately after the test results were revealed in “early January” 2004, Rev. Kimber called the City’s Chief Administrative Officer, Karen Dubois-Walton ... Dubois-Walton and Rev. Kimber met privately in her office because he wanted “to express his opinion” about the test results and “to have some influence” over the City’s response. ...

[The city's two Fire Chiefs], Chief William Grant (who is white) and Assistant Fire Chief Ronald Dumas (who is African-American) ... believed that the test results should be certified. Petitioners allege, and the record suggests, that the Mayor and his staff colluded “sans the Chief[s]” because “the defendants did not want Grant’s or Dumas’ views to be publicly known; accordingly both men were prevented by the Mayor and his staff from making any statements regarding the matter.” ...

The next day, on January 13, 2004, Chad Legel, who had designed the tests, flew from Chicago to New Haven ... “Legel outlined the merits of the examination and why city officials should be confident in the validity of the results.” But according to Legel, Dubois-Walton was “argumentative” and apparently had already made up her mind that the tests were “discriminatory.” Again according to Legel, “[a] theme” of the meeting was “the political and racial overtones of what was going on in the City.” Legel came away from the January 13, 2004 meeting with the impression that defendants were already leaning toward discarding the examination results.

On January 22, 2004, the Civil Service Board (CSB or Board) convened its first public meeting. Almost immediately, Rev. Kimber began to exert political pressure on the CSB. He began a loud, minutes-long outburst that required the CSB Chairman to shout him down and hold him out of order three times.

Reverend Kimber protested the public meeting, arguing that he and the other fire commissioners should first be allowed to meet with the CSB in private.

Four days after the CSB’s first meeting, Mayor DeStefano’s executive aide sent an e-mail to Dubois-Walton, [Tina] Burgett [director of Human Resources], and [Thomas] Ude [the city's Corporate Counsel]. The message clearly indicated that the Mayor had made up his mind to oppose certification of the test results (but nevertheless wanted to conceal that fact from the public). ...

On February 5, 2004, the CSB convened its second public meeting. Reverend Kimber again testified and threatened the CSB with political recriminations if they voted to certify the test results. ...

One of Rev. Kimber’s “friends and allies,” Lieutenant Gary Tinney, also exacerbated racial tensions before the CSB. After some firefighters applauded in support of certifying the test results, “Lt. Tinney exclaimed, ‘Listen to the Klansmen behind us.’” Tinney also has strong ties to the Mayor’s office. ...

As part of its effort to deflect attention from the specifics of the test, the City relied heavily on the testimony of Dr. Christopher Hornick, who is one of Chad Legel’s competitors in the test-development business. Hornick never “stud[ied] the test [that Legel developed] at length or in detail,” but Hornick did review and rely upon literature sent to him by Burgett to criticize Legel’s test. ... Hornick also relied on newspaper accounts—again, sent to him by Burgett—pertaining to the controversy surrounding the certification decision.

Although Hornick again admitted that he had no knowledge about the actual test that Legel had developed and that the City had administered, the City repeatedly relied upon Hornick as a testing “guru” and, in the CSB Chairman’s words, “the City ke[pt] quoting him as a person that we should rely upon more than anybody else the City repeatedly relied upon Hornick as a testing “guru” and, in the CSB Chairman’s words, “the City ke[pt] quoting him as a person that we should rely upon more than anybody else ...

Dubois-Walton later admitted that the City rewarded Hornick for his testimony by hiring him to develop and administer an alternative test. See also id., at 562a-563a: (Hornick’s plea for future business from the City on the basis of his criticisms of Legel’s tests).

At some point prior to the CSB’s public meeting on March 18, 2004, the Mayor decided to use his executive authority to disregard the test results—even if the CSB ultimately voted to certify them. Accordingly, on the evening of March 17th, Dubois-Walton sent an e-mail to the Mayor, the Mayor’s executive assistant, Burgett, and attorney Ude, attaching two alternative press releases.

The first would be issued if the CSB voted not to certify the test results; the second would be issued (and would explain the Mayor’s invocation of his executive authority) if the CSB voted to certify the test results. Half an hour after Dubois-Walton circulated the alternative drafts, Burgett replied: “[W]ell, that seems to say it all. Let’s hope draft #2 hits the shredder tomorrow nite.”

Soon after the CSB voted against certification, Mayor DeStefano appeared at a dinner event and “took credit for the scu[tt]ling of the examination results.” ...

In the event that the CSB was not persuaded, the Mayor, wielding ultimate decision making authority, was prepared to overrule the CSB immediately. Taking this view of the evidence, a reasonable jury could easily find that the City’s real reason for scrapping the test results was not a concern about violating the disparate-impact provision of Title VII but a simple desire to please a politically important racial constituency. ...

I assume the dissent would agree—there are some things that a public official cannot do, and one of those is engaging in intentional racial discrimination when making employment decisions. The second point concerns the dissent’s main argument—that efforts by the Mayor and his staff to scuttle the test results are irrelevant because the ultimate decision was made by the CSB. ...

The dissent makes much of the fact that members of the CSB swore under oath that their votes were based on the good-faith belief that certification of the results would have violated federal law. But the good faith of the CSB members would not preclude a finding that the presentations engineered by the Mayor and his staff influenced or caused the CSB decision.

The least employee-friendly standard asks only whether “the actual decision maker” acted with discriminatory intent, and it is telling that, even under this standard, summary judgment for respondents would not be proper. This is so because a reasonable jury could certainly find that in New Haven, the Mayor—not the CSB—wielded the final decision making power.

After all, the Mayor claimed that authority and was poised to use it in the event that the CSB decided to accept the test results. If the Mayor had the authority to overrule a CSB decision accepting the test results, the Mayor also presumably had the authority to overrule the CSB’s decision rejecting the test results. In light of the Mayor’s conduct, it would be quite wrong to throw out petitioners’ case on the ground that the CSB was the ultimate decision maker. ...

Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam.
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Read Justice Alito's complete concurring opinion with all citations here.

See also:

On Race, the Slog Goes On

High court calls it like it is

Politico Arena: reactions to Ricci decision