WASHINGTON – Firefighters from New Haven, Conn., on Wednesday exposed an enduring Supreme Court split, as the justices confronted the year’s most anticipated racial discrimination case.

Conservative justices showed sympathy for white firefighters who were passed over for promotion. The court’s liberal wing suggested that New Haven officials may have acted reasonably. After an hourlong oral argument, most signs hinted at a close decision later this year.

“The court is not fully in agreement on these questions,” noted Gregory S. Coleman, the Texas-based attorney for the white firefighters.

The case, Ricci v. DeStefano, differs from the classic affirmative action disputes that have divided the court previously in areas such as college admissions. It also could end anticlimactically, if the court follows the Obama administration’s urging to send the case back for more fact-finding.

Particularly among the most conservative justices Wednesday, however, New Haven’s refusal to promote white firefighters who had scored well on written tests seemed acutely discriminatory.

“You had some applicants who were winners, and their promotions were set aside,” Justice Antonin Scalia said.

The case arises from New Haven’s efforts in 2003 to promote officers. Among the applicants was career firefighter Frank Ricci, who’s now 34.

The fire department’s 100-question written test counted for 60 percent and an oral exam counted for 40 percent in the promotion decision. The test’s authors wrote it at a 10th-grade level in an effort to provide equal opportunity for all applicants.

Forty-one applicants took the written captain’s test and 90 took the written lieutenant’s test. The passing rate of African-American candidates was only half that of the white candidates. Testing opponents call this a “disparate impact,” which can be construed as discrimination.

None of the top 10 scoring candidates for the captain’s or the lieutenant’s positions were African-American. City officials subsequently declined to certify the test results, saying they feared that the test’s disparate impact on candidates of difference races would incite an anti-discrimination lawsuit under Title VII of the Civil Rights Act of 1964.

“There is no entitlement to be promoted based on a flawed or discriminatory test,” argued Christopher J. Meade, the New York-based attorney for New Haven.

Clearly skeptical, Chief Justice John G. Roberts summed up the city’s position as maintaining that “the department can engage in intentional discrimination in order to avoid disparate impact.” Repeatedly, Roberts suggested that New Haven wouldn’t have thrown out the test results if they would have meant that only African-American firefighters would be promoted.

New Haven “chose the company to do the tests,” Justice Samuel Alito added, “and as soon as it saw the results, it decided not to go ahead with the promotions.”

Justice David Souter sounded more sympathetic to the city, concluding that municipalities and other employers are left in a “damned-if-you-do-and-damned-if-you-don’t position” because they can be sued no matter what they do.

Meade agreed that employers should be granted some degree of “flexibility” in how they attain diverse work forces while avoiding reverse discrimination lawsuits.

Thirty-seven percent of New Haven residents are African-American and 21 percent are Hispanic. Fifteen percent of the fire department’ s officers are minorities.

(c) 2009, McClatchy-Tribune Information Services.

Visit the McClatchy Washington Bureau on the World Wide Web at www.mcclatchydc.com.

AP-NY-04-22-09 1547EDT

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