Midway through her opinion in the New Haven firefighters case, Judge Janet Bond Arterton wrote plaintively about the principal issue in the case: why white firefighters scored higher on the promotions exam in 2003 than their Hispanic or African-American colleagues. “The reasons for the testing disparities,” the federal judge wrote, “remain elusive.”
Thanks to the Supreme Court’s decision in the case, the reasons will remain elusive. Just as in Bush v. Gore nine years ago, the court’s conservative majority short-circuited normal appellate practice by deciding on its own how to apply a brand-new legal standard in a sharply disputed factual context.
Now, only three weeks after the Supreme Court decision in Ricci v. DeStefano, comes new evidence of the importance of the testing question not only for New Haven but for fire departments throughout the country, many of them still disproportionately white. Ruling in a suit brought by the Bush administration, a federal judge in New York City has found that the city’s fire department used racially discriminatory tests for entry-level hires from 1999 through 2007. Judge Nicholas Garaufis, appointed to the bench by President Bill Clinton in 2000, blamed the tests for the stark underrepresentation of Hispanics and African-Americans in the department.
As Garaufis set out in a 93-page opinion, available here, the city admitted entry-level candidates to the fire department academy for that period based solely on written tests. The exam had no elements that tested practical performance on the job, he found, even though the city’s expert acknowledged at trial the importance of “non-cognitive abilities” for entry-level firefighters.
The pass rate on the two exams used was substantially higher for white applicants than for African-Americans: 90 percent and 97 percent for whites compared to 60 percent and 85 percent for blacks. For both exams, Garaufis noted, the pass rate was based solely on the number of openings at the academy, not on some job-related measurement of the knowledge or abilities needed for new recruits. The upshot, the judge concluded, was that the city had no defense for the racially disparate impact on fire department hiring.
The city says it has changed its procedures and is hiring more black firefighters. The city’s law department told the New York Times that African-Americans comprised one-third of the most recent graduating class of probationary firefighters. Still, the law department said that as of May, blacks comprised about 3 percent and Hispanics about 6 percent of the total force of 11,529 firefighters in a city where Hispanics and blacks each comprise about 27 percent of the total population.
Garaufis notes that New York City is a repeat offender in its firefighter hiring practices. A federal judge found the department guilty of racial discrimination in hiring in 1973; the decision prompted the city to contract with a firm to develop new written and physical exams, but the initiative was scrapped for budgetary reasons. In developing the tests used until 2007, Garaufis says, the city took no special steps to validate the procedures as racially neutral.
Garaufis distinguishes the Supreme Court’s ruling in Ricci by contrasting New York’s disregard of the racial-neutrality issue with the conscious effort in that regard by the firm that New Haven hired to develop the exams used in late 2003 to select firefighters for possible promotion to lieutenant and captain. Writing for the majority in Ricci, Justice Anthony M. Kennedy cited the steps the firm took to include African-Americans in developing the New Haven tests as the main reason for concluding there was no “objective, strong basis in evidence” for the New Haven civil service board to refuse to certify the results of the exam despite the racial disparity between white and black firefighters.
As Justice Ruth Bader Ginsburg pointed out in dissent, however, the main reason to question the tests’ validity was the decision to give 60 percent weight to the written portion of the exam and 40 percent to the oral. That decision was not based on modern testing methodology but on a collective bargaining agreement between New Haven and the firefighters union negotiated in 1989, when the fire department was — even more than today — overwhelmingly white.
Admittedly, the New Haven test was better designed than those in New York City that consisted exclusively of written questions. In his opinion, Kennedy said New Haven failed to show why a 30/70 formula would have been valid. At the time, the city thought that the applicable precedent permitted — and perhaps required — it to change hiring or promotion procedures based on a prima facie showing of disparate racial impact. In any event, as Ginsburg said, there was “strong reason” to think that the 60/40 formula was not likely to identify the most officer-worthy candidates.
Ginsburg and the other dissenters wanted to send the case back for more evidence under the court’s new standard; the majority decided otherwise. Despite the disagreement, the law is clear that employers, both private and government, must have hiring and promotion policies that are racially neutral in form and in practice. Perhaps the ruling will help employers focus on that obligation, but civil rights groups reasonably fear that the ruling hinders rather than helps the goal of true equal opportunity in the country’s fire halls and elsewhere.