This week, President Obama’s U.S. Supreme Court nominee Sonia Sotomayor has been called a “racist” by both conservative talk radio host Rush Limbaugh and former Speaker of the U.S. House Newt Gingrich.

But in a story on Slate, Stanford law professor Richard Thompson Ford argues Sotomayor rejected a discrimination suit brought by white and Hispanic fire fighters in New Hampshire because it “threatened to burn down civil rights law.”

The case is one of Judge Sotomayor’s decisions that has added fuel to conservatives’ fire concerned with a group of firefighters in New Haven, Connecticut, who say that the city discriminated against them when it said it would use the results of a written exam to help choose candidates for promotion, but then threw out the test when none of the black candidates, and very few of the Hispanic candidates, scored high enough on the test.

The firefighters sued and lost, and Sotomayor was part of the panel that heard their appeal. The same case is now before the U.S. Supreme Court. 

Professor Ford’s explanation is pretty wonky, but for all of us non-lawyers, it is a fascinating explanation of the way civil rights law works. As he writes: 

New Haven’s decision may sound like blatant racial favoritism, but in fact the city rejected the firefighter exam because the test violated Title VII, the federal civil rights law that prevents discrimination in employment. Title VII requires employers to consider the racial impact of their hiring and promotion procedures in order to prevent discrimination that’s inadvertent as well as intentional.

…There are two ways an employer can discriminate according to Title VII. He can intentionally discriminate by making race a factor in employment decisions — choosing a black candidate over a white candidate because he is black. Frank Ricci claims the city intentionally discriminated when it threw out the exam results because most of the people who scored high were white. An employer can also discriminate by using a selection process that has a disparate impact — in other words, that screens out a particular group for no good reason. New Haven claims that the test it tossed out had a disparate impact. Eight black, 25 white, and eight Hispanic firefighters took New Haven’s test for promotion to captain; three black, 16 white, and three Hispanic candidates passed. Nineteen black, 43 white, and 15 Hispanic firefighters took the test to become lieutenant; six black, 25 white, and three Hispanic candidates passed. This result counts as discriminatory under the rules of the Equal Employment Opportunity Commission. New Haven was right to worry about the possibility of a lawsuit from black firefighters if it accepted the results of the tests.