Not having read any transcripts of the arguments and going only by this LA Times report, I can see there is still a lot of issues that are not being dealt with.
It appears that Souter and Ginsberg are asking the wrong questions:
a "damned-if-you-do, damned-if-you-don't situation." If the city had used the test results, black fighters could sue and say they were excluded because of a discriminatory test. When the city scrapped the results, they were sued by the white firefighters. "Why not give the city an opportunity, in a good faith, to start again?" he said.
Justice Ruth Bader Ginsburg appeared to agree. The white firefighters did not have "any vested right" to a promotion, she said, and the city should be given time to construct a fairer test.
While it is agreed that the white firefighters have no vested right to a promotion, neither do any of the black firefighters. No one is entitled to a promotion. Like many civil servant positions promotions are granted in large part due to results on various examinations. You do well on the test and you find yourself higher on the list of potential promotions.
The city of New Haven is claiming that it believes that the test in question is discriminatory because black test takers did poorly. That is not proof of discrimination. Indeed it is proof that something is wrong but it is not proof of discrimination. The city claims that it wants to modify the test in order to make it "less discriminatory." But since it has not been proven that the test is not discriminatory, how can they hope to make it less so? Is New Haven simply using "less discriminatory" as a code word for 'easier?" If so then that is an insult to all the black firefighters in New Haven. As I discussed the first time I posted on the subject, If a dyslexic firefighter could not only pass the test but apparently land near the top of the list then what exactly were the black firefighters doing to prepare for this exam? If the dyslexic white firefighter could get his hands on old (or preparatory) exams, what exactly were the black firefighters doing? Are we implying that the black firefighters in New Haven are less able to learn than white firefighters with learning disabilities? That's a serious charge!
If I were on the bench I would demand that the city of New Haven produce all the black firefighters to the court and grill them on how they prepared for the exam.
Now, all that having been said I agree with the City of New Haven insomuch as the lack of promotable black firefighters is a problem. The problem is not solved by kicking the hard work of other firefighters to the curb. The City of New Haven should have spent the money they are spending on this case on outreach programs to their black firefighters. They should reach out to relevant benevolent associations and offer low or no cost preparatory courses for anyone who wishes to partake. For those who are poor test takers, there respective organizations should offer test taking courses.
It is clear here that the Supreme Court can decide in favor of the white firefighters while still allowing New Haven to take race into consideration for it's promotions. It is for the best that among equals (that is the top performing test takers) to be selected on the basis of other subjective criteria that all people up for new jobs are judged on (and I've been on enough hiring committees to know that there are a LOT of subjective things that go into getting jobs and promotions).
[update]
So it turns out that out of 118 people who took the test only 56 passed. Methinks New Haven may have a larger problem. Anyway if only 47% of the people are passing the test then it is clear that the exam is a weeder and did it's job pretty well. Also of note is that the City of New Haven paid a good chunk of change to a professional "race neutral" test creating service who's services I'm sure not a few clients are having second thoughts about. I believe this highlights my primary position that the problem lies not with the test but in the preparation done by the exam takers. More foolishness:
Sources of bias included that the written section measured memorization rather than actual skills needed for the jobs; giving too much weight to the written section; and lack of testing for leadership in emergency conditions, according to a brief filed by officers of the Society for Industrial and Organizational Psychology.
Of course. Negroes are notorious for not being able to memorize? Anything more complicated than Souljah Boy lyrics is waaaaay to much for our brains to handle. Clearly the brain of the average Negro cannot be expected to surpass that of a dyslexic white man.
Clearly Negroes cannot be expected to memorize what to provide "leadership" in emergency situations. Practice is for dyslexic white men right? We all know that Negroes can only be expected to act from the gut right?
This just gets more and more insulting as it goes.
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