New Haven firefighter Frank Ricci did what he was supposed to do. He bought the recommended books and studied for a promotion exam. Despite his dyslexia, Ricci scored high enough to qualify for a promotion, but the department threw out all test results. No blacks and only two Hispanics scored high enough to be promoted.

Over a dozen white firefighters and one Hispanic filed suit against the city in 2004, claiming it violated their constitutional rights and Title VII of the Civil Rights Act by discriminating against them based on race. Had the fire department certified the test results, however, the lower scorers likely would have sued the city under Title VII's "disparate impact" provision. The fire department was damned if it did and damned if it didn't.

The district court granted summary judgment in favor of the city and dismissed the case. A three-judge panel of a federal appeals court affirmed the dismissal. Bush-appointed judges sought to have the case re-heard, but the court declined by a vote of 7 to 6. Judge Jose Cabranes, a Clinton appointee who dissented, defined the issue this way:

"May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?"

In denying the rehearing, the court contended that a government employer "faced with a prima facie case of disparate-impact liability under Title VII" does not violate the title or the Equal Protection clause by taking facially neutral, but race conscious, measures to avoid liability. With a collective straight face, the court claimed that throwing out the test because too many whites passed it was "facially race-neutral."

Earlier this month, the Supreme Court agreed to hear the case. The disparate impact theory of liability will be front and center. Thirty-eight years ago, the Supreme Court held in Griggs v. Duke Power Co. that for purposes of hiring, an employer's use of a high school diploma requirement and two standardized written tests violated the Civil Rights Act. Black applicants disproportionately lacked diplomas or failed the tests. Griggs laid out the disparate impact analysis for employment. Absence of discriminatory intent is not the end of the discussion. Even if an employment practice is "facially neutral," (a scored test, for instance) it is suspect if it has a disparate impact on members of a protected class. To avoid liability, businesses would have to demonstrate that such tests are a justified "business necessity" or related to job performance.

The court in Ricci also will take up the issue of skin deep-only diversity. In 2003, the Supreme Court held in Grutter v. Bollinger that racial diversity is a "compelling state interest" that justifies race preferences in college admissions. (Justice Sandra Day O'Connor said the practice won't be necessary in 25 years.) The presence of a so-called critical mass of minority students provides educational benefits for other students.

Granting preferences to and discriminating against individuals on the basis of race are two practices that should have been tossed out of the government decades ago. Is ensuring racial diversity in a fire department a compelling state interest that justifies tossing out test scores because black firefighters failed to make the grade? They need more training and better study habits, not lower standard hand-holding.