High court case has Austin implications

Monday’s U.S. Supreme Court decision regarding reverse discrimination may have implications for a recent round of Austin Fire Department promotions.

In Ricci et al vs. Destefano et al., the high court Monday ruled 5-4 in favor of white, New Haven, Conn. firefighters who said they were victims of reverse discrimination after the city threw out their test scores to hire African American firefighters. The majority agreed the firefighters were denied promotions unfairly because of their race.

In June, the Austin City Council approved a resolution to reclassify positions and create four assistant chief positions. The move was controversial when AFD Chief Rhoda Mae Kerr brought the issue up in May.

The city council delayed the decision then but ultimately approved four assistant chiefs, with two jumping rank.

Kerr has since promoted lieutenants Matt Orta and Richard Davis to the assistant chief position. Orta is Hispanic and Davis is African-American.

“I think it’s really important now more than ever to have key people in place,” Kerr told the Austin City Council in May. “…That gives me some balance, some diversity.”

Some of that talk, and the eventual promotions, may have opened the city up to a lawsuit, said David Rogers, an attorney with the Texas Legal Foundation.

“There are a lot of other people, 150 people more senior than those two guys that got promoted,” said Rogers. “There were very good grounds for a lawsuit last week. There are even better grounds for a lawsuit after [Monday's] decision by the Supreme Court.”

Rogers and the Texas Legal Foundation sued the City of Austin Police Department in 2007 for reverse discrimination, and represented two of the four plaintiffs in the Hopwood vs. Texas case which ended racial preferences in admissions and scholarships at Texas universities from 1996 until 2003.

He would not comment whether he representing any Austin firefighters upset about the most recent round of promotions.

Kerr was not immediately available for comment Tuesday after the Supreme Court decision.

But city attorneys are reviewing the case closely.

“I don’t know that this Supreme Court case is as important as everyone thinks it is,” said Assistant City of Austin Attorney Laurie Eiserloh. “Nevertheless we’re having to review it very carefully and consider its ramifications.”

Nelson Linder with the Austin Chapter of the NAACP said he believes the Kerr made the promotions fairly. “In Austin, we’re saying, ‘More African Americans, more minorities, not less,’” said Linder. “That doesn’t affect anybody in a negative way.”

Austin Firefighter’s Association president Stephen Truesdell said he has heard about a group of firefighters talking about bringing a complaint and possibly a lawsuit against the city in light of the recent Supreme Court decision. However, he said the association is not involved in the discussions.

Truesdell also said Kerr followed state civil service law when she promoted Orta and Davis to the assistant chief position, since both had five years of service and came from at least an officer rank.

AFD uses testing to promote for other positions, but the fire chief is allowed to pick and appoint some of her upper-level managers, including assistant chiefs.

Story by Matt Flener
KXAN-TV