Chief Leader - July 27, 2010
by ARI PAULWith a Federal Judge already having ruled that two previous written exams for Firefighter intentionally discriminated against minority candidates, the remedial phase of the case could affect the current eligible list, as hiring for the next Fire Academy is to be completed next month.
Exam 6019, administered in January 2007, was not a part of the U.S. Department of Justice lawsuit that resulted in Judge Nicholas Garaufis's ruling against the city, but the Vulcan Society of black firefighters-an intervening plaintiff in the case-is asking the Judge to invalidate the exam because of alleged disparate impact. Lawyers for both sides appeared before the Judge in the Brooklyn Federal courthouse July 20, supplying expert testimony to bolster their cases.
Produced 35% Minority Class
The action against that test strikes a seemingly peculiar note. Mayor Bloomberg in November 2007 had heralded the test's results because 38 percent of those who passed were minorities, and 33 percent of the top 4,000 scorers-the most likely to be appointed to the job-were black or Latino. The first Fire Academy class to be inducted as a result of the eligible list was 35-percent minority, the most-diverse in the Fire Department's history, with only 11 percent of the firefighting force black or Latino.
Vulcan attorney Richard Levy claimed that the numbers the Bloom- berg administration highlighted were deceptive. Many of the minorities hired, he explained, were Emergency Medical Technicians who were on a special promotion track.
"All they had to do was pass and they got in," he said. "When you look at the actual number of people who were hired based on the rank-order list, you find that there's still an adverse impact, and more importantly, when you look at the three or four thousand people on the top of the list you find adverse impact."
The Vulcans have said that even though there is diversity among the top 4,000 candidates on the roster, the blacks and Latinos are clumped at the bottom.
City: Good-Faith Effort
The city does not disagree that there was a statistically significant adverse impact on minorities in terms of rank order, despite the Bloomberg administration's observing that more minorities than ever before had passed. But the city maintains that it made a good-faith effort to create a fairer test.
Mr. Levy went on to say that there were enough similarities between the two exams the Judge already ruled against and Exam 6019; the Judge had said last year than in addition to having a disparate impact on minority candidates, the two previous exams did not have "business necessity."
"The test doesn't meet the standards and it particularly doesn't meet the standard they use rank-order results for hiring purposes," Mr. Levy said. "Some things were similar to the previous tests, and also we don't believe the city can show they were testing for the things they were supposedly testing for."
The city's counter-argument is that it developed the last exam with expert input on how to make it fairer. Much of the city's defense rests on Dr. Catherine Cline, a psychometrician who was hired to help draft the exam. She noted in a March report that the city's lawyers pointed to in court last week, "Throughout the test development process, an effort was made by all involved to eliminate firefighter jargon and to reduce the vocabulary level used in items. Simple declarative sentences were favored over more complex syntax."
She continued, "Abilities that could be measured only in an oral or physical format were not to be included in the written test."
Questions Her Methodology
But the Vulcans take particular issue with Dr. Cline's methodology, which involved Firefighters and fire officers reviewing the test questions and saying whether they were appropriate. The Vulcans argued that she ignored written input from these participants that certain questions that appeared on the exam were not appropriate for a would-be firefighter, as some presupposed knowledge one could only have learned on the job.
"We're saying, 'A) you ignored evidence that hurt your position, and B) you yourself admit that it's never been used to validate an exam like this,''' said Anjana Samant, a Center for Constitutional Rights attorney representing the Vulcans.
The dilemma the city faces is that it must hire 300 Probationary Fire- fighters by the end of August to begin the next Fire Academy class set to start the first week of September. The DOJ and Vulcans have asked the Judge to order that 17.5 percent of the hires be African-American and 18.5 percent be Latino, in order to match the percentages of ethnic groups who sat for the exam.
Corporation Counsel Michael A. Cardozo rejected this plan, saying that it was a quota and would also severely disrupt the city's effort to hire Firefighters. Judge Garaufis has said that he would avoid quota hiring in his final remedy unless he believed the city was not cooperating in the diversification process.
City: Don't Hold Up Hiring
Mr. Cardozo said in court papers, "Because any order requiring that the next class be hired from any pool other than those candidates who have been fully qualified and those candidates who are now at the final stages of processing would impair public safety, the court should allow the current hiring process to proceed and postpone the implementation of any remedy until the next class or later."
In addition to suggesting that any remedy should be postponed until the current eligible list is "no longer required," Mr. Cardozo said that if the court invalidates the test that created the current list, it should create "bands of candidates."
"That is to say that a pool of the topranking candidates of all ethnic identities should be created in proportion to the rates at which those ethnicities took the examination," he said. "This pool should include additional numbers of candidates based on the overall drop-out rate, prior to entry to the academy, for all candidates. Once this pool is created, random selections would be made from this pool. This would assure that only the top candidates are selected for Firefighter. It would also ensure that the selection of minorities would be based on the rate at which the minority group took the exam and not on any set quota."
Mr. Levy responded that if the Judge rules that the test is invalid, a fair remedy could be established.
"We think they can adjust their hiring plans and ensure that they're not using an invalid and discriminatory test if that's what the Judge finds," he said.
