released its opinion in the case. very few minorities would receive promotions under the proposal. white firefighters alleged that abandoning the exam denied them promotions. the supreme court sided with the firefighters, overturning the ruling that was endorsed by supreme court nominee sonia sotomayor. up next, lower-court oral argument. later, remarks from supreme court justice john roberts from the weekend. after that, we will hear from justice ruth pater ginsburg. . .

>> sena public funding thing.

>> how is c-span funded? 30 years ago, america's cable companies created c-span as a public service. a private business initiatives. no government mandate. no government money. >> the u.s. supreme court in a 5-4 ruling monday morning overturned a lower court decision in rericci v. destefano. the case has been watched closely because sonia sotomayor was [unintelligible] before we get into the details of the supreme court ruling, can you step back for a moment and outline what this case was about? >> what it is about is the city of new haven had a test --for promotion.

it turned out no blacks qualified for more than one dozen promotions. the city decided what we would do is cancelled the test and cancel the promotion and when it did so, a group of mostly white, including one hispanic firefighter sued. >> at what level was the sioux rivers? >> the appeals court said they could not sue. that the city acted in good faith that it would be concerned that it would be settled -- sued by black firefighters. it had a disparate impact. it favored white firefighters at least in terms of the bottom line. the supreme court reversed that lower-court ruling and said no, the city does not have a good defense and the white firefighters when the case. >> what did the judge -- she sat

on the second chord. what did she say in the ruling? >> she did not say much. a couple technical points. the second circuit was issued by the court as a whole. there were three judges there. what they said was the brit -- the way the district analyze the case is they want. there was no independent analysis. we adopt the reasoning of the district judge. we have for the white firefighters who lost their chance for promotion but this city was justified in cancelling the promotions. >> in the majority ruling, overturning the second circuit court decision, what did the majority coalesce around as far as making that overturning a ruling? >> the majority said that the city's actions in cancelling the promotions violated title 7 of the civil rights act. they said the city in any

employer needs to have a strong basis in evidence that would be violating title seven to go ahead with the promotion. the majority said the city did not have that. it pointed to a couple factors. it said the city had not shown any flaws and there were no reasons to think that they test was important -- measuring important criteria and the city had not shown there was an alternative that they could have used rather than this test and a majority said because of that, the city did not have an objective -- a strong basis in evidence to believe that it was susceptible to being sued. >> this was a 5-4 ruling.

>> this was a long the ideological lines. justice kenneth -- anthony kennedy wrote the majority opinion. briar, stephens, and ginsburg and suter wrote the dissent. ginsburg said the city had adequate basis to fear would have been successfully sued by the black firefighters. she had somewhat different standards for an employer to me. she said that the majority's strong bases in evidence test went too far. she said the city had ample evidence that its test might be flawed.

her reasoning was a little different from that of judge sotomayor in the lower court. the appeals court focused on the city's intent that it did not intend to -- it was intending to avoid being susceptible to a lawsuit. she said what the city needs to do is focus on the evidence about whether it could be sued successfully. the bottom line was basically the same, she said. the city's actions were justified. >> this case was watched because of justice sotomayor. what does this mean if anything for her nomination? >> you will hear discussions of the issues. if this was of 5-4 decision where sotomayor was on the wing of the court or was this against

reasoning. all nine disagreed with her analysis. the fact that the supreme court has ruled gives republicans against her saying, that might give them more latitude to question her about the case. certainly if the court were considering it, she would have declined comment. she may well declined to comment nevertheless, but conservatives say it gives them more reason to press her on her views on the case. >> thanks for being with us. you can read the full text at our web site. also there, a transcript of the oral argument in the case before the supreme court as well as programs about supreme court nominee sonia sotomayor.

look back at a 45 minute portion of the oral argument when it was argued before the second circuit court of appeals. judge sotomayor was joined by others. >> >> i am trying to figure out what defendant or what cause of action you are directing to wet. >> who are you suing for what? >> title vii is against the

city. >> title vii is the city alone. what else do you have against anybody else? >> or were decision makers answer -- filler to certify that tests. >> all those involved. >> you are including -- i think there are three board members that you are charging. two board members and you have the mayor. >> there is executive officer as well as the mayor. [inaudible]

>> my problem with your action is -- you have any proof that anybody but [inaudible] certify this list or does not. >> the board takes the list from the personnel director, looks at it, under standard procedure, it is the board's duty to give this an and they. >> there has to be some mechanism by which you fixed the first date. the board gets these lists and

signs. >> how did the non board member get made liable for the failure to certify the list? >> the reason was the mayor, his staff prompted them to do so. without the behavior it could never have been signed or published. this was an interesting claim with respect to the three other people. putting aside politicians every day get up in all types of fora and make what i consider the most ridiculous arguments. i have heard politicians say suppress the first amendment and not let the look -- rabble- rousers' speak. i have heard elected officials say that. even the press and otherwise.

you are suggesting that the advocacy of a position could [inaudible] >> absolutely. >> under what theory? >> they are not a decision maker. the board makes the decision as to whether to certify your not. if they are not a decision maker, why are not suing the police officers who spoke against the certification, the experts who called in -- where you draw the line as to whom you cannot sue for expressing a view to the certification. >> two things.

the plaintiffs who suffers a constitutional injury can [inaudible] the get each and every public employe who are -- participated in his or her capacity. >> eubank my question. advocating a position. it is not participation if you are not a decision maker. meaning what you are now suggesting is that every public official who speaks against some proposal or another, that that makes them reliable for participation in the decision makers final decision. >> i am understand your question. i think you might be getting caught on the word decision. do not forget, this is a municipal -- that requires the

strictures of a merit based service system and it requires competitive testing, a reckless, a promotion into available vacancies and prohibits the employer from favoring or does favoring anyone on the basis of -- >> the law is written to make all these requirements contingent on the publisher of that list, correct? >> [inaudible] certification is a clerical task. >> are you arguing that they had to do it? >> yes i am. >> and that the reason they did not because others interfered with the their ministerial duty, stopping them from doing it? >> the problem they had with the

question is if the board was a decision maker, if they voted to certify the list. that is the best answer to your question. if the board got taken to proceed to fill those vacancies, the evidence is the executive was prepared to issue an edict to refuse to promote these men. he claimed that authority. >> i appreciate what you are saying. >> did you tell the board this before it acted? are you claiming that the board under -- the presidentt is saying [inaudible] i do not think the mayor said

that publicly to them. >> he had it in his back pocket and he was prepared to show it to the press the minute they did not do what he did not want them to do. this is related to one of the minority firefighters. >> one of the -- are you arguing a mixed lot of case? i do not see it in your brief. i want to know why she -- we should not consider it waived. >> i agree that this was not the right test to use. it is designed to discover -- in

cases where you must [inaudible] circumstantially. i do differ somewhat with cir in the sense that cir is correct. if race is a motive, they might have a mixed motive. i agree with that. i do not see any voting in this case. that does not have to do with race. no matter which way you look at it. this is a mixed motive. that is the trouble i have. you can [inaudible] which is what this city is telling. it is all about race. my position for the district court is this was a race-based

decision by the city. the question becomes was the use of race lawful? >> there is no schedule and you are right. the race on some level was a part of this discussion. the entire discussion before the board was was there an adverse impact on the minority candidates by this testing procedure? you claim there was not because the test was valid. the speakers at the hearing took a different positioning. that it was -- there was an adverse impact by a neutral test. my question to you, can a state ever look at its practicing --

practices to ensure there is no adverse impact and are they commanded that if the test is valid that that is the only way they hired? >> the state is commanded to not use the race of the citizens in the decision ever. unless it has the bases identified by the supreme court. >> the law also says it cannot have a racially neutral policy that adversely affects minorities unless there is a business necessity. >> that is the standard. the law says you can do it. -- cannot do it unless there is a business necessity. >> what is the necessity? >> the tests were job-related. there are a lot of tests that are job-related that have less of an impact. that is what the experts, the

competitor expert told the board of which is there could be a better devise a test. >> that is not sufficient. >> why not? if you are charged as a decision maker with not adversely affecting an interest -- a group, unless there is a business that necessity -- a business necessity, does that not mean that you have to look at the alternatives and see which one best of what's the impact? >> that is done every single time there is a test. if you understand that the standard protocol that it has used but it suspiciously abandoned in this case but cut off because i did not want to listen to it, [inaudible]

submitted an affidavit that was part of the protocol. one of the things you do as part of the report was to ensure that the test and its use force election purposes is lawful and to explore alternatives as part of that process. adverse impact in civil service testing is not an anomaly. it is all but guaranteed. >> that never happened before in new haven. >> that happens every time. >> what the board was told and you are disputing what they were told was that there was less impact. >> that is what they were told. that is a flat falsehood.

a flat falsehood. statistical errors and was one of the things i wanted to talk about. one of the reasons it is misleading and it should not be here is because in 1999, the city saw to fill 32 positions. the adverse impact and issues were no different. when you have that mass vacancy, you can reach further down the list. in 2003, there were seven vacancies but the actual statistical breakdowns, the adverse impact ratios, the passing rates for respondents have been consistently the same with almost every test. in the captain's exam for 2003, there was an improvement.

in the 1998 captains' exam, the exam produced one qualified latinos for captive. in the 2003 exam, three hispanics qualified for capt.. all three have been victimized. they ended up being victims. when the city officials stood before the board and said you cannot promote these men, they are white which is exactly what they said, they looked at the top scores and looked out what they thought were vacancies and the record that said we cannot promote them, they are white. they were mistaken. for two years, of vacancies arose -- >> what they were thinking at the time they made the decision is what is relevant, not what happened later. >> what they did at the time was the admitted these exams

were jargon -- job-related. they admitted they were valid and -- every single pointed question i was hoping [inaudible] i was hoping that court would ask certain questions and that is what she did. the first thing the judge asked was of the defendants, [inaudible] what was the answer? we have no basis. the next question, what is -- what is the alternative? i would like to give you the exact quote because it is meaningful. we do not note we have a different result. there would have to be studies

done to show that those alternative methods would be substantially similarly valid. that is not what we're dealing here because we're not at that stage. in response to questions, on the linchpin -- the linchpin for disparate impact my ability, there is an equally valid available alternative for adverse impact. the oral argument they said what is your alternative? that is a question for another day. they admitted that the examinations were not looked at. >> they do not have to have the alternative. all they have to do is no the have an unfair test and there were alternatives that would have the same unfair results. >> are you telling me they had

on alternative or they look at this and said we have disparate impact? >> you are listening to a portion of the argument before the second circuit court of appeals. a case stemming from a lawsuit filed by white firefighters in new haven, connecticut against city officials who threw out a promotion exam because no african americans and only to hispanic firefighters past. supreme court nominee sonia sotomayor was one of the judges who decided the case. some of the argument from richard roberts, attorney for the city of new haven. >> if this court to reverse the judgment, you are saying the municipalities -- [inaudible] certify the exams and did not

look into alternatives. >> i do not -- what they're saying is you should read mediate but not permit race to be the driving force on either end of their choice. it should be based on some objective standard. you have to look at the test and determine whether the test was there or not and if you say it is unfair, point to specifics of ways it was not. make sure that there are alternatives, that there is a fair test. >> you're not going to know if the test -- all you can get is

an opinion that another test in fact may have a setback but this is that -- this is what title vii and kyrgyz. it must step back and try -- let's look into the alternatives. what we will do if you uphold summary judgment and you have that opportunity. that is what title vii requires. but the intent is not to discriminate against non minorities. the plaintiff bears the burden in this case of the resumption. to prove that the defendants discriminated. that was the term -- the determining factor. >> how is