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bobbyw24
07-02-2009, 05:32 AM
http://online.wsj.com/article/SB124650158992083957.html

Sotomayor Helped Push Minority Cases


By JESS BRAVIN

WASHINGTON -- Supreme Court nominee Sonia Sotomayor helped lead an advocacy group that pushed legal theories about employment and race much like the one scotched by the Supreme Court Monday, according to documents released Wednesday as part of her confirmation process.
[Sotomayor] Bloomberg News

Judge Sotomayor's Supreme Court confirmation hearings start July 13.

The Puerto Rican Legal Defense and Education Fund filed several lawsuits on behalf of minority employees alleging that promotional examinations were racially biased, obtaining judgments or settlements that guaranteed their promotion, sometimes ahead of white employees with higher scores.

In one case against the New York City Police Department, "we obtained quota promotions for Latinos and African Americans to the rank of sergeant," the group said in a May 1992 report.

Questions surrounding a similar case have already become a central focus of Judge Sotomayor's candidacy for the high court. Last year, she joined colleagues on the Second U.S. Circuit Court of Appeals in upholding a decision by New Haven, Conn., authorities to junk results from a firefighter promotional exam because black applicants scored too low to advance. The city argued it acted to avoid a lawsuit like those sometimes filed by Judge Sotomayor's old organization on behalf of minority employees.

On Monday, the Supreme Court reversed that decision by a 5-4 vote, holding that fear of a lawsuit wasn't enough to throw out the test results. The city would have to show a "strong basis in evidence" that the test was unfair to minorities, not simply that minorities performed poorly, the court said.

Judge Sotomayor's backers say her circuit-court vote backing New Haven was based on precedent. The Puerto Rican Legal Defense and Education Fund documents suggest the judge may long have held similar views. They virtually ensure that a debate over the relationship between the law and racial discrimination will be at the forefront of Judge Sotomayor's confirmation hearings, which start July 13.

Reached for comment, the communications director of the group, which is now known as LatinoJustice PRLDEF, said only its president was authorized to speak. The president, Cesar Perales, couldn't be reached.

"Documents that Judge Sotomayor did not write, review, or approve -- many of them more than two decades old -- are irrelevant to her nomination," the White House said in a statement. "The Senate should judge her on her own record -- especially her judicial record -- not on briefs that other lawyers wrote 20 years ago."

Judge Sotomayor joined the group's board in 1980 and at times served as its vice president and as chairman of its litigation and education committees, according to materials she filed with the Senate Judiciary Committee. She stepped down in October 1992, after President George H.W. Bush appointed her to the federal bench. It is unclear from the documents what role Judge Sotomayor played in specific cases.

During her 12 years on its board of directors, the group fought to establish case law that would have allowed New Haven to throw out test results and at least one case seemed to foreshadow that specific dispute.

In a class-action complaint, the group alleged that New York City's police sergeant's exam was "discriminatory and not job related," according to the group's 1987 report. To settle the litigation, the city agreed to provide "positions of sergeant consistent with the percentage of Hispanic test-takers. As a result almost 100 Hispanics were promoted, over twice the number that would have been promoted without the settlement," the group reported, adding that they received "backpay and retroactive seniority."

To reach that number, the settlement involved promoting minority officers ahead of whites who had higher scores. A group of white officers filed suit to block the deal. A federal district judge rejected their claim. "The basic dissatisfaction with the settlement comes from those who object to race-conscious remedies, but in the circumstances of this case, the law provides for just such remediation," Judge Robert Lee Carter wrote in 1986.

The Supreme Court later agreed to hear the white officers' appeal, but in 1988 threw out their case because they hadn't filed their claim at the proper stage in the litigation.

The Puerto Rican group brought a similar complaint against the New York City Sanitation Department, alleging that its "Supervisor Examination has a severe disparate impact upon Hispanic test-takers," the 1987 report says, because their pass rate was 37% compared with a white pass rate of 83%. It noted that at the time only 27 of about 1,163 supervisors were Hispanic.

It is unclear how the allegations were resolved. The report indicated that the case was then pending before the Equal Employment Opportunity Commission. A spokesman for the commission said that charges filed there are confidential and only lawsuits the agency itself files are public.

Write to Jess Bravin at jess.bravin@wsj.com