Obama says Supreme Court 'moving the ball' on affirmative action

Chris Rizo Jul. 2, 2009, 12:23pm

Barack Obama (D)

WASHINGTON (Legal Newsline)-President Barack Obama on Thursday praised this week's U.S. Supreme Court decision favoring white firefighters in New Haven, Conn.

In an interview with The Associated Press, the president said the nation's highest court was "moving the ball" on affirmative action.

"I don't think that hiring on the basis of race ... alone is constitutionally possible," Obama was quoted by the AP as saying. "I've always believe that affirmative action was less of an issue or should be less of an issue than it has been made out to be in news reports."

Obama also reportedly said he believes that affirmative action has not been as "potent a force for racial progress" as its supporters have said.

Affirmative action, he said, can be made an "afterthought" when other social problems including malnutrition, poverty and substandard schools are addressed, and "everybody has a level playing field."

In the New Haven case, the justices ruled that a group of white firefighters were unfairly denied promotions because of their race.

The case comes from a 2004 lawsuit filed by 18 firefighters who allege they were denied a move up the command ranks of the fire department because they were not members of a minority group.

The firefighters said their rights to equal protection as well as their protections under the Civil Rights Act of 1964 were trampled when the city threw out their test scores on a promotional exam because no African-American candidate received a high enough score to also be considered for the same promotion.

"Whatever the City's ultimate aim -- however well intentioned or benevolent it might have seemed -- the city made its employment decision because of race. The city rejected the test results solely because the higher scoring candidates were white," Associate Justice Anthony Kennedy wrote for the court's 5-4 majority.

For its part, the city argued that allowing the test scores with such wide racial discrepancies could have violated federal law and opened the city to being sued by minority test-takers.

"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," Kennedy wrote.

At trial, U.S. District Judge Janet Bond Arterton in New Haven sided with the city, saying none of the plaintiffs were harmed since no one was promoted. She said the decision to disregard the test results affected all applicants equally.

A three-judge panel of the New York-based 2nd U.S. Circuit Court of Appeals affirmed the decision, and later refused a rehearing of the case.

The case is Ricci v. DeStefano, No. 07-1428

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