Black firefighters claim victory against biased test

Just a month after the U.S. Supreme Court struck a racist blow against civil rights in a New Haven, Conn., firefighters’ case, Black and Latina/o firefighters and candidates won an important victory in New York City. Federal Judge Nicholas G. Garaufis ruled July 22 that two versions of a written hiring exam used by the Fire Department of New York unfairly excluded more than 1,000 candidates of color.

The decision came in a class-action lawsuit brought by the Vulcan Society, a Black firefighters’ organization, and three candidates who were excluded based on the tests. The court found that the city’s “reliance on these examinations constitutes employment discrimination in violation of Title VII of the Civil Rights Act of 1984.”

Vulcan Society news conference at City Hall, July 23. From left: Vulcan past President Paul Washington; Alison Roh Park, Center for Constitutional Rights; current Vulcan President John Coombs; Darius Charney, CCR attorney. Photos: Center for Constitutional Rights

Attorney Darius Charney of the Center for Constitutional Rights, which represents the Vulcans, called the ruling “a tremendous victory that we’ve been fighting toward for over seven years.”

New York has the most unrepresentative fire department of any major U.S. city. Just 3.4 percent of the 11,000 firefighters here are Black, and only 6.7 percent are Latina/o, in a city where people of color make up more than half of the population. In contrast, people of color make up 40 percent of firefighters in Boston, 51 percent in Philadelphia and 57 percent in Los Angeles.

In April, attorneys from CCR, Levy Ratner and Scott & Scott asked Judge Garaufis to grant summary judgment, eliminating the need for a trial. With his July 22 decision, Garaufis agreed that there was overwhelming evidence of racial bias.

“When an employment test is not adequately related to the job for which it tests—and when the test adversely affects minority groups—we may not fall back on the notion that better test-takers make better employees,” Garaufis wrote.

Since filing suit in 2002, the Vulcans have continued to mobilize, rallying community and activist support for subsequent court hearings and news conferences. The case garnered broad community support because, as Vulcan past president Paul Washington said, “Racial discrimination is still alive and well in our city’s institutions.”

In its June decision Ricci v. DeStafano, the U.S. Supreme Court sided with 22 white firefighters and one Latino firefighter in New Haven who claimed that dropping a written exam for job promotions constituted “reverse discrimination.”

After this attack on civil rights, New York’s billionaire Mayor Michael Bloomberg again publicly championed the FDNY exam, confident that the department could continue its discrimination unimpeded.

But he was wrong. Judge Garaufis’ decision is a major embarrassment for the mayor, who has continued the reactionary policies of his predecessor, Rudy Giuliani, under a smokescreen of being more even-handed and “businesslike.”

Bloomberg and Fire Commissioner Nick Scoppetta jumped to the defense of the latest revision of the test, enacted last year. The Vulcan Society has called for abolishing the written test altogether.

As Vulcan Society President John Coombs said in a July 16 Daily News op-ed, “While Scoppetta says that on the most recent exam, 33 percent of the top 4,000 test-passers were minorities, Black and Latino candidates tend to be bunched at the bottom of that list. Since the FDNY is currently doing no hiring at all, it is very likely that these candidates will never be hired, or that they will wait on the list for three or four years, unlike their white counterparts.”

Writing in the July 27 New York Daily News, columnist Errol Louis notes, “Many credible institutions tried, with zero success, to convince Bloomberg and Scoppetta that the fire exam needed a reworking. The City’s own Equal Employment Practices Commission, an independent watchdog, presented City Hall with a long account of nearly a decade’s worth of complaints about the fire test and a plea to re-examine it. They were ignored.”

Errol observes, “According to court documents, a researcher with the Department of Citywide Administrative Services (who isn’t a fireman) interviewed six firefighters about what might make a good employee, then had 10 more add ideas. These were then converted into exam questions—but there was no objective, research-based inquiry into whether the final questions screened for or predicted actual job performance.

“One member of the DCAS panel testified under oath that he ‘probably didn’t know’ what inductive reasoning, one of the test areas, even meant. Others were unsure of the meaning of ‘problem sensitivity,’ ‘visualization,’ ‘time sharing’ and other skills the test is supposed to measure.”

Bloomberg and his Wall Street cronies are also worried about the impact the Vulcan decision may have on their regime of standardized testing in the city’s public schools. Bloomberg is currently negotiating with the New York State legislature to retain his mayoral dictatorship over the schools.

This policy, which discourages real education for the mostly people of color and poor youths in city schools and rewards faculty who “teach to the test,” is a cornerstone of Bloomberg’s current re-election campaign. Bloomberg wants to avoid a wide discussion of the well-documented bias of these tests against students of color, as well as the need for community control and getting police out of the schools.

It is unclear what effect the Supreme Court’s Ricci decision may have on the New York ruling. Negotiations between the Vulcans and city officials are likely to continue. Judge Garaufis will issue his recommendations in the fall. But the struggle to eliminate the biased testing process will continue.

“The mayor always defends this test by saying we need to select the best firefighters,” said CCR attorney Shayana Kadidal. “But you absolutely can’t use a paper-and-pencil test to measure who will have courage in a fire or who will work well in a team, or any of the other characteristics that make good firefighters.”