At the Weekly Standard blog, John McCormack has an interesting post on the oral argument in Ricci v. DeStefano (the audio of which is available here). Here are excerpts from the argument by the counsel for plaintiff firefighters:
I think a fundamental failure is the application of these concepts to this job as if these men were garbage collectors. This is a command position of a First Responder agency. The books you see piled on my desk are fire science books. These men face life threatening circumstances every time they go out. … Please look at the examinations. … You need to know: this is not an aptitude test. This is a high-level command position in a post-9/11 era no less. They are tested for their knowledge of fire, behavior, combustion principles, building collapse, truss roofs, building construction, confined space rescue, dirty bomb response, anthrax, metallurgy, and I opened my district court brief with a plea to the court to not treat these men in this profession as if it were unskilled labor. We don’t do this to lawyers or doctors or nurses or captains or even real estate brokers. But somehow they treat firefighters as if it doesn’t require any knowledge to do the job.…
Firefighters die every week in this country. … [There was a case ] a few miles away where a young father and firefighter Eddie Ramos died after a truss roof collapsed in a warehouse fire because the person who commanded the scene decided to send men into an unoccupied house, with no people to save on Thanksgiving Day, with a truss roof known to collapse early in the fire because of the nature of the pins that hold the trusses together would have collapsed. And for 20 minutes he couldn’t find any air and he he suffocated to death. And the fire chief had to go tell a 6 year-old that her father wasn’t coming home.
Here’s a comment/question by Judge Sotomayor:
JUDGE SOTOMAYOR: Counsel … we’re not suggesting that unqualified people be hired. The city’s not suggesting that. All right? But there is a difference between where you score on the test and how many openings you have. And to the extent that there’s an adverse impact on one group over the other, so that the first seven who are going to be hired only because of the vagrancies [sic] of the vacancies at that moment, not because you’re unqualified–the pass rate is the pass rate–all right? But if your test is always going to put a certain group at the bottom of the pass rate so they’re never ever going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn’t the city have an opportunity to try and look and see if it can develop that?
As McCormack writes: “Sotomayor may have not wanted unqualified firefighters to be elevated to the position of captain and lieutenant–she simply wanted less qualified firefighters to be placed in charge of the lives of other men in the interests of racial diversity. I wonder what Eddie Ramos would say about that if he were alive today.”