Nicole Cuilis
Com 665
1/26/07



The city of Newark, N.J. does not have the right to transfer or assign the employees of its 108 fire companies based on race, according to a September 18 ruling by the Third Circuit Court of Appeals in the case Lomack v. City of Newark.
The case has created a buzz that it will set precedent for future cases involving race based assignments and transfers.
The court’s decision that the racial balancing of Newark’s firehouses was unlawful has narrowed the concept of “state compelling interests” as the legal basis for affirmative action plans. The court held that because the city did not purposefully cause or contribute to the racial imbalance that they were trying to remedy, they were not required to “fix” it.
The case began when 34 of Newark’s firefighters who, along with their union, sued the city when they were involuntarily transferred, or denied a transfer, based on their race. They sued for violations of the Equal Protection Clause of the Civil Rights of Act of 1964, and the New Jersey Civil Rights Act.
The suit originated with a mandate that all single-race fire companies in Newark would be eliminated. The mandate was announced by re-elected city mayor Sharpe James in his inaugural speech on July 1, 2002.
The mayor’s mandate stemmed from the city’s desire to break-up the single race fire units that had unintentionally developed when the city had allowed firefighters to choose the companies in which they would serve.
The city of Newark had been sued by the U.S. government in 1977 for racial discrimination. According to the court’s opinion, in 1980 the city entered into a consent agreement which required it “to undertake affirmative action to increase the proportion of black and Hispanic personnel on their respective fire departments.” The court opinion, written by Circuit Judge Barry Van Antwerpen, commented that by January 2004 “dozens of firefighters were involuntarily transferred to different companies solely on basis of their race.” Mayor James announced at this time that “We have created a rainbow at each firehouse.” The firefighters filed a suit right after this remark and lost.
During the trial, the city of Newark cited previous cases that involved the University of Michigan’s law school. In the Michigan cases, the Supreme Court ruled that when there are “compelling interests” at stake for the institution in question, there are legitimate grounds for de-segregation.
The city of Newark claimed that they had three intertwined “compelling interests”: de facto segregation in the Fire Department, “educational, sociological and job performance benefits of diverse fire companies,” and compliance with 1980 Consent Decree.
The District Court, having heard the city’s defense, dismissed the case and entered a judgment for the defendants. The decision was appealed, and has now been heard by the Third Circuit’s Court of Appeals. The Appeals Court was not persuaded by the arguments of the city and sent the case back to the District Court for further consideration.
This case has become an example of what can and can not be done in regards to affirmative action. David Tykulsker, of the firm Tykulsker and Associates located in Montclair, N.J., represented the firefighters and their union. “It was a welcomed victory, the point of this case was to show that this type of segregation is not acceptable,” Tykulsker said.
Paul J. Beard from the Pacific Legal Foundation also commented on the impact of the case. The Pacific Legal Foundation is a Sacramento, Cal. based law firm that also was granted the right to file suit along with the firefighters. The law firm has taken an active role in monitoring the influence of the government. In an interview, Beard remarked on the likelihood of the Lomack v. City of Newark case to influence the Supreme Court on future rulings regarding de-segregation. “A ruling to prohibit racial balancing would definitely impact other areas of social life,” he said. Beard mentioned the consequences that this case might have on schools, and their right to race-based student assignments.
Carolyn A. McIntosh, the counsel for the City of Newark, was not available to comment on the case.
According to Tykulsker, the District Court has now ordered that the case be sent to mediation.