and then in the Civil Rights Act of 1991 which Bush the elder signed after he swore he would never sign a quota bill?) Can it be killed and put away forever? Or is it as instrinsic to modern liberal society as the principle of non-discriminiation itself?
Heather Mac Donald
Fighting Fire with Quotas
A federal judge’s dangerous crusade against the FDNY
24 October 2010
A fierce constitutional battle is being waged between an out-of-control federal judge determined to impose racial quotas on New York City’s fire department and Mayor Michael Bloomberg, equally determined to resist race-based hiring. U.S. District Judge Nicholas Garaufis appointed himself the city’s de facto fire commissioner last week by enjoining the department from hiring any new firefighters without his approval—and he will give his approval only to the racial hiring schemes he has already tried to foist on the department.
Mayor Bloomberg has courageously refused to cave in to the judge’s quota demands—a stance vanishingly rare in today’s politically correct world. His refusal is justified, both legally and as a matter of policy. Judge Garaufis’s rulings have been capricious and biased, creating new law while ignoring facts that undercut his radical new doctrines. And Garaufis’s ultimate goal—to craft a future hiring process based on racial considerations—would put the city’s residents at risk by making skin color as important a qualification for firefighters as actual preparedness.
Since 2007, Garaufis has presided over a lawsuit brought by the U.S. Department of Justice and the Vulcan Society, a fraternal organization of black firefighters. The suit charged the FDNY with discrimination against blacks, in light of blacks’ low representation—4 percent—in the FDNY, compared with their representation in the city population—24 percent. (Hispanics were eventually added to the category of alleged discrimination victims.) The only evidence the plaintiffs could muster for such discrimination was blacks’ lower pass rate than whites on the FDNY’s entrance exam.
Under the misguided legal theory of “disparate impact,” however, an employer can be found guilty of discrimination simply if minority applicants don’t score as well as whites on a job test. Once an employment test is shown to have a lower black pass rate, an army of testing experts hired by the plaintiffs descends on the courtroom waving “coefficient alphas” and “construct- and criterion-related validation methodologies” to nitpick the suspect test to death and to claim that it measures skills (such as reading comprehension) that are not relevant to the job while not measuring skills (such as cooperativeness or persistence) that are. Unless the hapless employer’s own army of testing experts, wielding their own statistical arcana, can convince a judge or jury that the suspect test is necessary to the job and that there is no alternative to it, the employer will be found guilty of discrimination and subjected to penalties, which can include huge monetary payouts or racial hiring.
Disparate-impact jurisprudence rests on a massive lie: that blacks and whites would score identically on tests of cognitive ability, absent a biased test design. Given the racial disparities in average cognitive skills—black 12th-graders read, on average, at the level of white eighth-graders—it is impossible to design a test measuring cognitive ability that will not have a lower black pass rate. Garaufis, however, rejects this reality; he has sneered at the city’s suggestion that the differences in scores between white, black, and Hispanic fire department applicants reflect differences in “capability and preparedness,” calling that explanation “dubious.” Instead, in Garaufis’s world-view, racial differences in test results reflect the presence of racial animus.
Not surprisingly, then, in July 2009, Garaufis agreed with the plaintiffs’ charge that the city was guilty of disparate-impact discrimination, since the black pass rate on firefighter tests has traditionally been less than the white rate. (Eighty-nine percent of white test-takers passed the 1999 exam, compared with 61 percent of blacks; 97 percent of whites passed a watered-down 2002 exam, compared with 85.6 percent of blacks.) In an adumbration of rulings to come, Garaufis found the city guilty of disparate-impact discrimination not after a trial in which the city could present evidence for the business necessity of its firefighter exams, but without a trial, by granting summary judgment for the plaintiffs. Summary judgment means that a judge finds no legitimate factual dispute between the parties that requires elaboration at trial. Though the city had put ample evidence into the record supporting the exams’ validity and contesting the plaintiffs’ charges, Garaufis peremptorily rejected it all. By granting summary judgment, he kept the case away from jurors, who probably would not cotton to the idea of firefighters chosen on the basis of race, not skills, showing up to save their homes from fire.
The summary-judgment ruling on the disparate-impact claim was questionable enough. But in January 2010, the judge upped the ante. He affirmed the far more radical charge made by the Vulcan Society: that the city intended to discriminate against blacks. (So unusual was the Vulcan Society’s theory of intentional discrimination that the Justice Department under both Presidents Bush and Obama declined to participate in it.)
Garaufis pointed to no evidence of deliberate discrimination on the city’s part in that January 2010 ruling; he merely bootstrapped the disparate-impact finding into an intentional-discrimination one. Such a technique is almost unheard of in disparate-impact cases. The whole point of disparate impact theory is to keep the discrimination juggernaut going in a world where intentional discrimination by governments and large employers has virtually disappeared. Disparate-impact theory allows an aggrieved group to allege discrimination without having to show discriminatory intent on an employer’s part. By transforming a disparate-impact claim into an intentional-discrimination claim, Garaufis turned discrimination jurisprudence on its head: he reintroduced explicit intent into a legal doctrine that coyly sidesteps the question of explicit racism.
Garaufis’s finding of intentional discrimination was not just groundless, it was recklessly inflammatory. It mirrored the outrageous charge of the Vulcan Society’s past president, Paul Washington, that Mayor Bloomberg embraces “segregation now, segregation tomorrow, segregation forever.” Garaufis’s language may have been slightly more circumspect, but his meaning was identical to Washington’s. Perhaps not coincidentally, Garaufis’s intentional-discrimination ruling also gave him expanded powers to intervene in the fire department’s affairs by crafting a new exam and dictating hiring policies.
To get a sense of how ludicrous the litigation against the city has been, consider the following typical item from the 1999 firefighters’ exam. The question first lists the order of seven items of protective gear that a firefighter must don before leaving the firehouse for a job. Then it asks: After you have put on your gloves, what item should you put on next? The test-taker need merely refer to the list provided in the question itself to see that after the fifth item, gloves, comes the sixth item, helmet—as opposed to coat (item four) or hood (item three).
In his July 2009 disparate-impact ruling, Garaufis found that the 1999 firefighter exam required too high a reading level and was not sufficiently “job-related,” among other alleged flaws. He reached the same conclusion regarding the 2002 exam, which was watered down from the 1999 exam to try to boost the black passing rate. The idea that such elementary reading skills are superfluous to becoming a firefighter is absurd. Both during their training period and on the job, firemen must absorb written instructions about firefighting, EMS techniques, and an ever-increasing array of hazardous materials. Further, the capacity to read is not a self-standing, isolated skill; it demonstrates cognitive abilities essential to learning and sound judgment.
Finding that the 2002 exam had an illegal disparate impact on blacks and Hispanics required Garaufis to ignore the federal Equal Employment Opportunity Commission’s own rule of thumb for disparate-impact cases, which holds that if the minority pass rate on an employment test is equal to or greater than 80 percent of the white pass rate, it will not usually be considered to have an illegal disparate impact. The black and Hispanic pass rate on the 2002 exam was better than 80 percent of the white rate, as was the Hispanic pass rate on the 1999 exam.
But that disregard for the government’s own disparate-impact convention was nothing compared with Garaufis’s willful indifference to the facts in his January 2010 intentional-discrimination ruling. The Vulcan Society provided not a single piece of evidence suggesting that anyone in the FDNY or the rest of the city administration desired to keep blacks off the force. All the facts pointed in the opposite direction. New York has spent $20 million since 1989 trying to recruit minorities to the FDNY. It has devoted increasing manpower over the years to minority outreach. It created an FDNY-themed high school to try to get more blacks and Hispanics interested in careers as firefighters. And it constantly revised its exams to reduce the black-white scoring gap.
Garaufis ignored the city’s recruitment efforts and rested his finding of intentional discrimination on a single argument: that because the city’s firefighter exams have had a lower black than white pass rate over the last three decades (though the disparity has consistently shrunk), the city must have wanted to produce such a disparity. A federal court had found in 1973 that the city’s firefighter exam had an illegal disparate impact on blacks because its reading level was not “job-related.” That ruling put the city on notice, according to Garaufis, that its exams were illegal, but the city did nothing about it. Therefore, the judge argued, the city must have preserved exams with disparate impact not despite of that disproportionate effect on minorities but because of it.
This narrative is wrong on every key point. The city has tried to mitigate its firefighter exams’ racial effect by rewriting the exams and by massive outreach to minority communities. And because the 2002 exam passed muster under the EEOC’s 80- percent disparate-impact rule, the city should not be deemed to have been on notice that that exam was allegedly illegal.
The only two pieces of evidence that Garaufis presented to buttress his narrative of intentional discrimination were circumstantial. First, the judge noted, some other cities have a higher proportion of blacks in their fire departments; therefore, New York’s 11 percent minority representation must be the result of animus. But many of those comparison cities have been operating under court-imposed hiring quotas or have diluted their hiring standards beyond even what New York has done in order to avoid disparate- impact liability.
Second, said Garaufis, other uniformed services in New York have a higher representation of blacks than the fire department; the city’s Corrections Department, for example, is 66 percent black. Therefore, the FDNY must be deliberately discriminating against blacks in its entrance exam. Not surprisingly, the judge doesn’t flesh out the details of this second argument, because doing so would quickly reveal how preposterous the theory is. The idea that different levels of minority representation in the city’s uniformed services represent deliberate policy on the city’s part would require a conspiracy of vast proportions. New York’s fire department doesn’t even design its entrance exam; the city’s Department of Citywide Administration Services does, with input from the FDNY. Garaufis’s intentional-discrimination claim would require the FDNY to persuade DCAS to design a test that would keep blacks off the fire department, while DCAS designed tests for other agencies that were not infected by such discriminatory intent. Needless to say, the Vulcan Society provided no evidence of such a conspiratorial agreement. But the FDNY’s secret machinations with DCAS would need to be more complicated still. Hispanics do better on the firefighter exam than blacks do. If the fire test’s disparate impact on minorities is the result of intentional design, somehow DCAS and the FDNY managed to come up with questions that were more anti-black than anti-Hispanic.
The low black representation in the fire department is the result more of low black interest in the job than of the lower black pass rate on the exam. Blacks made up only 7.8 percent of all test-takers in 2002. Though their representation among those who passed the test was almost identical—7 percent—that initial low participation rate will make it very difficult to achieve proportional representation on the force quickly. Such low turnout for the exam is why the city has spent millions over the years on recruitment. Long-standing cultural patterns drive who applies for which city jobs. Talk to black corrections officers at Rikers Island, the city’s huge jail facility, and you will find that they are following uncles, mothers, and grandfathers into the Corrections Department, just as white firefighters often come from families with a long tradition of firefighting. Such family networks are powerful determinants of employment patterns, as immigrant workers have long demonstrated. To be sure, the fact that a tradition of black firefighting did not take root generations ago was undoubtedly due in large part to the racism of white firefighters. But such reprehensible attitudes have waned markedly over the last several decades. And the presence or absence of hostility toward blacks by actual firefighters is no part of the Vulcan Society’s case, even if the Society could provide evidence of such on-the-ground hostility today; the only alleged discriminators that the Vulcan Society and the judge point to are nameless, faceless city officials who have supposedly crafted an exam deliberately intended to keep blacks off the force.
Common sense and the most elementary knowledge of contemporary urban politics should render laughable Garaufis’s allegation that the city’s highest officials conspired to keep blacks off the force. The idea that Mayor Bloomberg, of all people, represents a modern-day George Wallace or Lester Maddox—as Paul Washington stated explicitly and as Garaufis ruled implicitly—is simply preposterous. Nevertheless, Garaufis writes—incredibly—that the Vulcan Society “submitted copious evidence from which a reasonable fact-finder could infer that the Mayor and [Fire] Commissioner harbored an intent to discriminate against black applicants.”
The big picture implied by Garaufis’s intentional-discrimination ruling is crazy enough. But it is in nuts-and-bolts procedural matters that his bias against the city is most vividly on display. At every possible point, the judge prevented the city from defending itself by his construction of an ad hoc, artificially rigid, yet perpetually shifting procedural framework regarding each party’s evidentiary burden. Though he fleetingly paid lip service to the rule that the plaintiffs in an intentional-discrimination case have the ultimate burden of proving that an employer actually intended to discriminate, he allowed the Vulcan Society to meet that burden merely by recycling the same statistical evidence of disparate impact that it put forward in its original disparate-impact litigation. Once the plaintiffs make a prima facie case of intentional discrimination based on disparate impact alone, according to the judge, they will be granted summary judgment unless the defendants can undercut their statistical case. But of course the city already lost the disparate-impact claim in July 2009. And Garaufis refused to consider the city’s massive recruitment efforts as evidence of its lack of discriminatory intent. So there is no evidence that the city could provide that the judge would have accepted to defeat a peremptory summary judgment ruling against it. Garaufis outrageously claimed that the city did nothing to rebut the plaintiff’s prima facie case of intentional discrimination, whereas in fact he simply did not admit the city’s evidence.
Garaufis’s stance on whether Bloomberg and former fire commissioner Nicholas Scoppetta could be held personally liable for intentional discrimination was a breathtaking example of his politically driven jurisprudence. On that question, the judge ruled in favor of both men, granting them summary judgment on the Vulcan Society’s claim that they intended to discriminate, thus protecting them from a damaging blow to their reputations. The evidence did not “unmistakably” prove that they intended to discriminate, said Garaufis. The summary judgment for the mayor and commissioner contradicts the judge’s own conclusion that there was “copious evidence from which a reasonable fact-finder could infer that the Mayor and Commissioner harbored an intent to discriminate against black applicants,” which would have created an issue of fact precluding summary judgment. But more important is that on the judge’s novel “unmistakability” standard, he should have granted summary judgment to the city as well, since the alleged evidence that the city intended to discriminate was no different from the evidence that Bloomberg and Scoppetta also intended to discriminate: exactly zero. Instead, he granted summary judgment to the Vulcan Society in its identical intentional-discrimination claim against the city. The most likely explanation for the blatant contradiction is Garaufis’s presumed reluctance to antagonize Bloomberg in the hope that the mayor would cave to the judge’s forthcoming quota demands.
Two other pieces of illogic deserve mention as representative of Garaufis’s results-driven reasoning. The city’s recruitment drives simply compound its racial turpitude, he opined, since they merely subject blacks to the injury of deliberately biased tests. And the fact that the city set the pass-fail score on its 1999 exam based on its hiring needs became, in Garaufis’s twisted thinking, further proof of its bias towards whites. The logic is almost impossible to follow here, but it is worth observing nevertheless. A. The city set the cutoff passing score on the 1999 firefighter exam based on the number of new firefighters the department needed. B. Had the white pass rate on the exam been similar to the black rate, there would not have been enough applicants above the cutoff score to fill the ranks, and the city would have lowered the cutoff score to meet its hiring needs, the judge presumed. C. But the city did not lower the cutoff score to bring more blacks into the force. D. Therefore, declared Garaufis, the city is willing to “tolerate adverse outcomes against one race that it would not tolerate against another…. Such a willingness to treat black applicants differently … is, if not the textbook definition of discriminatory intent, its nearly indistinguishable synonym.”
Where to begin? In the judge’s hypothetical, the city, faced with not enough applicants scoring above the cutoff for passing, would be lowering the passing score not in order to bring in more white firefighters but in order to bring in more firefighters, period. The race of the firefighters would have nothing to do with the decision to lower the score. There are white firefighters who are excluded by the existing cutoff score, just as there are black firefighters who are included under it. The fact that this “proof” of the city’s malign intent is based on a hypothetical scenario of the judge’s own imagining is the least of its problems. More serious is the fact that he misconstrues even his own hypothetical to import racial motives where none would exist.
Garaufis’s rulings have become even more preposterous since his intentional-discrimination ruling last January. In August of this year, he ruled that the 2007 firefighters’ exam—which was not included in the DOJ and Vulcan Society suits—had also discriminated against blacks and Hispanics through disparate impact. He reached this conclusion even though the 2007 minority pass rate easily met the EEOC’s 80 percent rule of thumb. The judge temporarily enjoined the city from hiring off the list of top scorers in a color-blind fashion, an injunction that he made permanent last Tuesday. Instead, he offered five options for hiring that required the city to give preference to black and Hispanic candidates over white ones.
The 2007 exam had been nearly depleted of cognitive challenge. It would be generous to classify its reading component at seventh-grade level, even though the firefighter academy presumes a tenth-grade reading skill. As attorney Karen Lee Torre reported in the Connecticut Law Tribune, one question asked the test-taker to rate possible responses to a spill of chili at the firehouse that a coworker had not cleaned up. The question had two correct answers.
Leading up to the exam, the city made its greatest outreach effort yet. It held thousands of recruiting events in minority neighborhoods. It followed up with everyone who showed up at a recruiting event, calling to remind them about the test date. The city offered free tutoring courses on how to pass the exam and free gym memberships to prepare for the physical exam.
Minority turnout for the 2007 exam was the highest in history—36 percent of all test-takers were black and Hispanic—and the minority pass rate was nearly proportional to turnout: 34.7 percent of those who passed the exam were black and Hispanic. Of blacks who took the exam, 90.4 percent passed it, compared with 95 percent of Hispanics and 98 percent of whites. Among the top scorers—the top 4,000 applicants among 21,000 applicants who passed—were 419 blacks and 722 Hispanics, eligible for priority hiring based on their accomplishments alone.
To any disinterested observer, the city’s ever-escalating efforts to persuade minorities to consider a job in the FDNY and its determination to craft exams that minimize the inevitable effects of the cognitive skills gap demolish the wild claim that the city is trying to preserve the dominant white majority on the force. There is clearly nothing the city can do to persuade Garaufis of its racial good faith—short of blatant racial hiring. According to Garaufis, however, the mere fact that the city has maintained any written cognitive component on the FDNY exam suggests a bull-headed resistance to hiring blacks and Hispanics. The judge appears to agree with the Vulcan Society that since firefighters communicate orally on the job, the firefighter exam should be delivered orally. But just because firefighters communicate orally does not mean that they do not learn material through writing. Also, administering an oral test to 30,000 test-takers would be completely impracticable. Since the test would have to be delivered to small numbers of applicants at a time over many days, there would be no way to preserve its integrity against cheating.
The standoff between the judge and the mayor has now reached a boiling point. Though the FDNY needs 300 new fire rookies to keep up with work demands, the city has declared that it will not hire any recruits if it is allowed to do so only on the basis of race. Instead, the city says that it will manage its work needs through greater use of overtime, at a potential cost of $119 million, until the next exam cycle is completed. Garaufis and the Vulcan Society have already inserted themselves into the development of that test; unless they manage to strip it of all cognitive demands, they will find that it, too, does not produce equal pass rates.
The city should take an immediate appeal to the Second Circuit. Ideally, one of New York’s elite law firms would help it litigate this important case on a pro bono basis, though the left-wing slant of most pro bono work makes that assistance unlikely. There is simply no evidence in the record that city officials have ever devised fire department hiring policies with the deliberate intent of keeping blacks off the force. The overwhelming reason why blacks and Hispanics are underrepresented on the force has been their historical lack of interest in a fireman’s job; the effect of the hiring exam is trivial compared to minorities’ low application rate.
Neither Garaufis’s conclusions of law nor his race-based remedies are justified. There are hundreds of minority candidates eligible for hiring right now thanks solely to their qualifications, not their skin color. Creating a new fireman’s class based on race risks poisoning the esprit de corps and mutual respect essential for optimal firefighting.
Garaufis appears to have begun this case with a preexisting notion of the city’s racial bad faith and over the course of the litigation to have developed a grandiose sense that he alone can save the city’s minorities from the barbaric prejudices of New York officials. The short-term solution to racial imbalance on the FDNY is precisely what the city has been doing so strenuously—persuading more minorities to take the entrance exam. The long-term solution to all such racial imbalances is for blacks and Hispanics to apply themselves more diligently in school. There is not a single cognitive test out there today that is designed to produce disparate racial pass rates. Until black and Hispanic language and thinking skills improve, such disparate pass rates are unavoidable.
Heather Mac Donald is a contributing editor of City Journal and the John M. Olin Fellow at the Manhattan Institute.