NAACP LDF

by Jeremy Leaming

Hardly surprising, but another Alabama official is urging the U.S. Supreme Court to invalidate an integral provision of the Voting Rights Act. Efforts to suppress the votes of minorities no longer exist, Alabama Attorney General Luther Strange argues in a brief lodged with the U.S. Supreme Court, which will hear oral argument on Feb. 27 in a case challenging provisions of the landmark civil rights law, including its primary enforcement provision, Section 5.

The attorney general concedes in his brief that the state still “grapples with race relations issues, but they are the same kind of issues every state currently is endeavoring to solve,” reports Mary Orndorff Troyan for the Montgomery Advertiser.

Strange’s brief is filed in support of a lawsuit brought by Shelby County, Ala., “a conservative, mostly white county south of Birmingham,” as Troyan describes it. In Shelby County v. Holder, the officials argue that Section 5 of the Voting Rights Act is unconstitutional because it covers some but not all states. Section 5 requires all or parts of 16 states to obtain “preclearance” of proposed changes to voting procedures from the Department of Justice or a federal court in Washington, D.C. Section 5 of the law was intended to ensure that states and localities and with long histories of suppressing the vote of minorities do not create discriminatory voting procedures.

The NAACP LDF, which has intervened in the case to represent voters, argues that Section 5 remains central to the Voting Rights Act because it works to block discrimination before it occurs. LDF and other civil rights organizations have noted that the Supreme Court has ruled on numerous occasions that Section 5 is constitutional and that in 2006 Congress overwhelmingly reauthorized the Voting Rights Act. Congress, in reauthorizing the law, created a record “consisting of 15,000 pages of evidence” supporting the ongoing need for a strong enforcement provision.

Today's ruling in Ricci v. DeStefano should prod New Haven and every other employer-public as well as private-to place a premium on carefully developing practices for hiring and promoting employees. Most municipal employers use a better approach to evaluate job candidates than New Haven did here. According to a 1996 study cited by Justice Ginsburg in her dissent, nearly two-thirds of surveyed municipalities used assessment centers, which provide a simulation of the real-world work experiences. This movement away from written, multiple-choice tests makes sense especially for firefighting jobs. As Justice Ginsburg notes, "‘there is a difference between memorizing . . . fire fighting terminology and being a good fire fighter. If the Boston Red Sox recruited players on the basis of their knowledge of baseball history and vocabulary, the team might acquire [players] who could not bat, pitch, or catch.'" Slip Op. at 28, n. 12 (quoting Boston Chapter, NAACP v. Beecher, 504 F.2d 1017, 1023 (1st Cir. 1974)).

It is likely that the Justices in the majority would not have objected if New Haven had decided from the outset to follow most other fire departments and use an assessment center to select firefighters for promotion to lieutenant and captain. As Justice Kennedy's majority opinion explains, our nation's core equal employment opportunity law, Title VII of the Civil Rights Act of 1964, "does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals regardless of race." Slip Op. at 25.

What separated the majority and dissenting justices was their conflicting views about what legal standard should apply after an employment practice has been put in place and a municipality takes action to remedy its flaws. The majority's newly created "strong basis in evidence" standard will make it harder-but not impossible-for employers to abandon discriminatory employment practices after they have decided to use them. For this reason, this new standard is contrary to Congress's intent in enacting Title VII and completely neglects the long history of racial exclusion and discrimination especially in fire departments nationwide.