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Penn State’s Civil Rights Appellate Clinic Files Second Brief with Supreme Court


University Park, Pa. — The Civil Rights Appellate Clinic at Penn Law recently filed an amici curiae brief with the United States Supreme Court in the case Ricci v. DeStefano. The case is scheduled to heard by the Supreme Court on April 22.

Clinic students, directed by Professor Michael Foreman, wrote the brief in support of the respondents, who include the City of New Haven, Connecticut, and its mayor John DeStefano, among others. The brief is available online. Ricci involves allegations of employment discrimination under federal law and the U.S. Constitution. It was filed by seventeen white firefighters and one Hispanic firefighter based on the City’s decision not to promote off of a promotional examination. 

When the results of two promotional examinations were evaluated, the City recognized that a very small percentage of minority candidates passed, and an even fewer number would be promoted to new positions. Under the  law, an employer may not use a selection device that screens out applicants based upon race or other protected classifications, like sex or age, unless they can show that the screening device is necessary for their business and that there are no other ways to accomplish their goals without the discriminatory impact. The City wanted additional time to study what alternatives were available. The firefighters who brought the lawsuit argued that they were entitled to be promoted off the original list.

Second-year law student Andy Schnitzel explained the Clinic’s strategy. “Our goal as amici was to write a brief that highlights the difficult decision the City was forced to make in this case,” Schnitzel said. “If the City certified the examination results and promoted the white firefighters, it would be facing a lawsuit from the minority firefighters for the administration of a discriminatory test. Our brief focused on the need for employer flexibility in this situation, and rejects the firefighters' attempt to paint the City’s actions as ‘reverse discrimination.’” 

When asked about his experience, second-year student Bret Schaffer commented that “Ricci forced us to evaluate what we believe to be the purpose of civil rights laws. The complexity of this case made it one of the most intense and fulfilling parts of law school for me.”

Professor Foreman served as counsel of record for this brief, which was filed on behalf of the National Urban League, National NAACP, the Lawyers' Committee for Civil Rights Under Law, and Equal Justice Society. "This case brings together several complex and potentially conflicting obligations under our nation's civil rights laws,” Foreman explained. “The students in the clinic were called upon to master these complexities quickly and write a brief that succinctly set forth the clients views. They never blinked in the face of this awesome task." 

Third-year student Edalia George explained what it’s like being in the Civil Rights Appellate Clinic. “From the very beginning, Professor Foreman made certain that students were involved in every component of the process,” she said. “We were given the opportunity to participate in strategy conference calls, develop substantive legal positions, and collaborate with top civil rights litigators.”

This is the second brief filed with the Supreme Court by the Clinic this year; students filed an amicus curiae brief in Gross v. FBL Financial Services in February. On March 31, Clinic students attended oral arguments for the case at the Supreme Court.

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