cannot promote them. that is what city officials were telling the board. it is all about race. this was a race-based decision by the city. the question becomes, what makes race lawful? >> there is no question that race on some level was a part of this discussion. the entire discussion before the board was, was there and adverse impact on the minority candidates by this procedure? you claim that there was not because the test was valid. the speakers at the hearing took

a different position that there was an adverse impact by a neutral test. my question to you is, can a state ever to look at its practices to ensure that there is no adverse impact? are they commanded that if the test is valid, that that is the only way? >> the state is commanded to not use the race in a decision ever unless it has been identified by the supreme court. >> that is going too far. the law also says that you cannot have a racially neutral policy that adversely affects minorities.

the law says that you cannot do that, unless there is a business necessity. >> what is the business necessity? >> it is job-related. >> there could be a lot of tests that are job-related that have less of an impact. that is what the competitor expert told the board. there could be a better devised a test. >> that is not sufficient to deny it. >> why not? if you are charged as a decision maker with non adversely affecting a group, unless there is a business necessity, does not the very definition of business necessity to me that you have to look at all of the alternatives and see which best avoids the impact?

>> that is where you hire a professional testing consultant. this would be cut off prematurely because they did not want to listen to it. we would get the results. we have the foundation reports. one of the things you do in the report is to ensure the test and its use. you make sure that it is lawful. that is part of that process. the impact of civil service testing is not an anomaly. >> that never happened before in new haven. >> it had not happened.

>> what the reporter was told, and you're disputing what they are told, is that they were less adverse impact empire test than this one. that is what they were told. >> that was a flat falsehood. the statistical errors were one of the things i had to talk about. one of the reasons we should not be here is that in 1989, the city tried to fill 42 tennant positions. the ratio was no different. when you have that massive vacancy, you can reach further and further down the last. in 2003, there were only

looking to fill seven vacancies. there was an actual statistical breakdown. the passing rate for hispanics, african americans, whites, is almost the same for every test. in the exam in 2008, it was proven that with latinos. the exam produced one qualify the to the captain. in the 2003 exam, three qualified for capt.. all three had been in victor -- had been victimized. they were not intended victims. when the city officials should have said, you cannot promote these men, they are white. that is what they said. they saw the vacancies. they looked and said that we cannot promote them. they are white.

>> what they're worth thinking at the time they made the decision is what is relevant, not what happened later. >> i would be happy with what they said at the time. they knew that these exams were job-related. the argument involved every single point of questions that i argued about. the first thing that the judge asked of the public defendants, was it your position that these were not properly balanced? they had no position to challenge. the next question was, what alternative do you have in mind?

what is the alternative? he said that protection jurisprudence. we do not know if we have a different result. those alterative methods had to be substantially similarly balanced. the judge are geared for dissident pact liability in the top seven. for district impact liability, they have to show that they are equally valid alternatives with the impact. what is your alternative? what did they say it?

the council and the record admitted this. >> they do not have to have the alternative. all that they have to do is know that they have an unfair test. there are alternatives that would not have the same unfair results. are you telling me that they had to have an alternative or they just had to look at this and say that we have disparate impact. >> you have disparate impact in almost every civil service exam in every urban area. this is not an anomaly. >> you are listening to this in the second sort -- second circuit court of appeals in ricci v stack destefano. this was a lawsuit made by white firefighters in new haven because city officials throughout a promotion test because only white firefighters

past. judge sotomayor was up one bank of the judges. up next, arguments from the attorney for the city of new haven. >> certify these exams. do not look into alternatives. >> i would not know that that is as far as your adversaries are proposing. what they are saying is that you should read mediate, but you should not permit race to be the driving force on your choice. it should be based on some objective standard. you have to look at the test and determine if it was fair or not. if you say it is on fair, point to specifics -- unfair, point to

suspect -- specifics that it was not. if not, point to specifics that there is a fair test. >> all that you can really get is an opinion that a test may have the impact. a presumptively discriminatory test -- let's look at the alternative. if you couple the judgment and you have that opportunity -- of all the judgment and you have the opportunity -- this case boils down to the attempt to not have it disparate impact on minorities. it is not the attempt to discriminate against non-

minorities. they have to prove that the city intentionally discriminated against them because they are caucasian. that is the determining factor in the decision. >> how is this different than the williams vs. the case of jacksonville? the case said that a fire chief's decision not to establish a four captain positions for promotion was not illegal because the reason he made that decision was not to promote the four white men. how is that different than this situation? >> we did not take any steps. >> how is that different than not establishing the four captains positions? he did not certify a list that would have led to the appointment of the plaintiffs.

one or more of the plaintiffs, not each one individually. >> we all know where it is going to land in this case. >> know. if you knew what their test score was and what order they came in. the top three had to be offered for promotion. one of the three had to be packed. we do not know if there was an alternative method. >> you have not told me where the board has any evidence to base a decision that a reasonable alternative existed or would exist to improve these numbers. again, your honor, they did have several sources. it is not so much the issue of whether there definitively was a reasonable alternative property.

>> is it their job to supply the reasonable alternative? >> it is the plaintiffs job to show that there are no other reasonable alternatives. there was testimony that there was such a reasonable alternative. arts council gives that you did not prove that there were reasonable alternatives. did you think that was an impermissible shifting of the burden? >> i do. we proved a reasonable belief in that. that is what the court described. even if you're offered a nondiscriminatory reason, it is wrong. you still have not established pretext.

this is not an issue of law. there is a district court case in louisiana at that stage that the law would be valid. >> it just because you did not like the racial composition that finished at the top of the less, is that not just as prohibited as discriminating against any racial class? >> no, your honor. the fact that the discriminatory purpose implies that they took this course of action because of, not near the -- merely in spite of the effects, in this case it would be the conscience and the white and the hispanics. that is not what we have here. any kind of measure against

discrimination by its very nature involves some element of this. that is not the question here. the plaintiffs are showing that that is all pretext. it is really because you had some intent to discriminate against us because of our race. >> this begs a lot of questions. there have been many cases where employers have instituted racial preferences that the court has struck down and even denied a good faith defense because they thought that they had to remedy racial imbalance in some way. we said that you cannot do it in the way you chose it to -- i chose to do it because it inappropriately takes race into consideration. you have not answer my question why this is different than williams.

the court is saying that you cannot make -- use race to make an appointment decision if your reason is just a racially motivated. basically williams is saying that you have to have some reasonable basis to conclude that what you are doing is wrong. if you do not show that the test is invalid and you refuse to show that it is invalid, correct? >> opposing counsel post-pointed to testimony from one of your >> no one knows if there is a violation study. >> is that to the best of her knowledge that it was there? >> she did not have a lot to talk about. she was just an examiner for the city.

>> there was no evidence that the test was fair or job- related? >> we are talk about the plaintiffs challenging our action and not applying it. -- certifying it. >> why is this not the issue? you have a charter that commands you to certify. the charter says that the board has to certify the past. -- test. does that not have to make the finding that the test is invalid before you use it? and using race to make that determination, is that not illegal? >> not at the conscious remedy involves a concern for discriminating based on title 7.

it takes into account the risk of the cabinet. it cannot not to be a race conscious remedy. the compliance is more than any employer to do with the exam. there was a district court case in tennessee where the employer did exactly what the plaintiff is suggesting that we do, which was to use a test that was present mitt -- presumably discriminatory. they even went through a steady. it is 2006. in that case, they said that the employer should have done exactly what we did, which is to replace the procedure with a

better, a new procedure. the issue is that we should have known better alternatives. they are offered similar alternatives and suggested them. we have a case that supports our position. that did not really considered the equal protection clause. there was equal liability. there is no mention of racial classifications. all of this was contrary to the rulings in other cases. if you read it the way that you do, you could reconsider that with our holdings that the employer has an interest in this.

there is no knowledge in that circuit. it took applause back. it was a valid opinion. the decision makers were the two makers that were not board certified. in good faith they voted to not apply for concerned that to do so would be violating best. if you certify and examine its impact, the alternative methods would be non discriminatory. regardless of what the union might say, there is certainly a trust.

that is the plan and maybe a test. there is a good-faith belief in the nondiscriminatory reason, even if it is wrong. fleet -- the plaintiff would have a burden to show that did nondiscriminatory reason was pretext. there were these conclusions that they would be an authenticated. the idea was to not violate the law. the courts could second-guess this judgment.

>> in conclusion? >> in conclusion, your honor, the desire to regulate discriminatory impact on minority applicants is not the same as an end to it to -- attempt to discriminate against non-minorities. the city did the right thing here, your honors. they did not have a presumptive discriminatory exam. at minimum, they have this part that is not disputed. >> thank you, counsel. you have reserved four minutes. i will try to keep you to the

four minutes. >> [no audio] -- [unintelligible] >> congress could not do that. >> one of the reasons this court reached its conclusion -- this stopped the city from even developing a test. there was no opportunity. >> the judge ordered them.

>> no one was hurt. >> if they did not refuse to fill a vacancy, we were not hurt. they are $1,000 a piece. they were holed up in a room when we took the bar exam. the fundamental failure is the application of these concepts to these men that were a garbage collectors. these men face life-threatening circumstances every time they go out. you need to know that this is not an aptitude test.

they are tested for their knowledge of building collapse, building construction, and dirty bomb response, anthrax, metallurgy. i would plead to the court to not treat these men and this profession as if it were on skilled labor. we do not do this to lawyers or doctors or nurses or accountants or real-estate brokers. somehow, they treat firefighters as if it does not require knowledge to do the job. a firefighter died in a warehouse because they decided to send them into an unoccupied house with nobody to save on thanksgiving day.

after 20 minutes, he nearly suffocated to death. i am not big on histrionics. that happens all of the time. if you cannot pass a competency exam, -- >> council, we're not suggesting that unqualified people be hired. the city is not suggesting that. there is a difference between where you score on the test and how many openings you have. to the extent that there is an adverse impact on one group over another so that the first seven who are going to be hired only because of the vacancies at that moment, not because your

unqualified, the pass rate is the pass rate. but if your test is always going to put a certain group at the bottom of the pass rate so that they are never going to be promoted and there is a fair test that could be devised that measures knowledge in a more substantive way, then why should the city not have an opportunity to look and see if they could develop that? >> because they already developed it. >> this is not the answer. it assumes the answer. that the test is valid because we say it is valid. >> the testing results are valid. he told me it is valid. they have evidence that the test is job-related and balanced. >> you did not present an alternative, did you? >> i had an alternative. there are plenty alterative.

that could have gone back and said -- [unintelligible] 3 african americans are promoted to the tenant. when they find out about that ever come up with the did try to do? [unintelligible] the mis calculated vacancies. three african-americans were deprived of promotions because of white tierney. that is what we were trying to convince the court of. >> you are saying at the end of this argument that when the city says the test had disparate

impact that it was pre textual it? that is your argument? >> this is about what we said it was about. >> you said it it was protection will? -- pretextual? when the city says that this test created disparate impact, it was a pretext for different reasons? >> because the cronies wanted that system. >> that is your argument. you think you have carried the final prong of mcdonnell douglas by proving it is pre textual and then it proven that it is discriminatory? that is your argument? >> here is how i would say it. we h