According to Robert A. Dahl's classic work of political science, Who Governs?: Democracy and Power in an American City, African-Americans (Dahl called them "Negroes") made up 6 percent of New Haven's population in 1950. When he asked a sample of registered voters whether they would prefer a job with the city government or a private firm, assuming the same pay, 64 percent of black voters said they would take the city job compared with 37 percent of white voters. Private employers turned black applicants away, Dahl wrote, but the city did not.
But, 20 years later, as New Haven's black population swelled, the city's Irish, Italian, and Polish residents held tight to power and dug in over hiring in the fire department. In 1973, 18 of 502 firefighters (3.6 percent) were black, and none was Hispanic, though by that time, the city's population was 30 percent minority. None of the 34 captains in the force was black. That year, the Firebirds sued the city for a "pattern of willful discrimination" in fire department hiring, invoking the protections against race discrimination of the new federal civil rights law, Title VII. The case was part of a wave of suits in other cities across the country.
In New Haven, the Firebirds' 1973 suit ended in a consent decree, a settlement approved by a judge. Under the direction of a court-appointed special master, the fire department was required to step up minority recruiting and develop job-related entrance and promotional exams. Martin O'Connor, a 30-year veteran who joined the force in 1968 and served as chief from 1995 to 1998, remembers the changes that the consent decree wrought. "When I was chief, when we were contemplating giving an exam, the mayor would say, 'Make sure you make contacts in African-American and Latino communities,' " O'Connor remembered. "So we would often go out a week in advance and tell them about it and say, 'These are the elements of an agility exam,' and we'd open our schools so people could run through the exercises."
While the 1973 suit was largely responsible for integrating the department's entry-level forces, its upper ranks were still dominated by whites. African-Americans are now more or less proportionally represented as entry-level firefighters (32 percent, according to the NAACP Legal Defense Fund) but underrepresented as supervisors (15 percent). The Firebirds have sued twice over discrimination related to promotions. In 1989, a Connecticut appeals court found that the department's practice of promoting white applicants to supervisory posts that weren't yet vacant violated civil service laws.
In 2004, in a case that is still on appeal, the Firebirds won a second, similar ruling in state court. The group had called out the city for using money set aside for higher-paid captain positions to fund an increased number of lower-paid lieutenant posts. Those new lieutenant jobs were then mostly filled with white candidates—which, in turn, put more white candidates in line for captain positions and made it harder for African-Americans to get those jobs. As chief in 1998, O'Connor was named as a defendant. He protests that he was just trying to fill an understaffed department, that there was "no racial motivation." But a Connecticut judge banned the practice and again appointed a special master to oversee promotions, prompting the demotion of a few white firefighters who had been promoted before the decision. "They took people's badges away and demoted them," said Wayne Ricks, a black firefighter with 27 years of experience. "You want to talk about a stiff workplace? I don't want to remember what that was like."
The 2003 promotional exams were supposed to help address the discrimination and avoid the ill will of the past. The city hired an outside consulting company to craft the exams in the hope of making them objective. The tests wouldn't include references or write-ups from supervisors, because those might tilt in favor of the white applicants who were more likely to have a family member or friend on the force. But shortcuts were also taken. While New Haven usually asks local fire experts to review its promotional exams to confirm that content is relevant, the city skipped that step this go-around because of allegations of cheating on previous exams. In the end, the tests were reviewed by only one expert, a battalion chief from Atlanta.
The city had also agreed to two demands from the union—the same union that has come down repeatedly on the side of Frank Ricci. Written questions would count for 60 percent of the total. And they were ranked by exact score, rather than rounded into categories spanning, say, five-point differences, like letter grades. And under the city's charter, only the top three scorers for any given position could be promoted into it. These rules look race-neutral. But they contributed to the city's inability to promote African-Americans and most Hispanics. "That is a critical issue. People gloss over it. But it makes the exam hard to defend," New Haven Corporation Counsel Victor Bolden says.
When the test results came out, city officials found themselves boxed in. Nine black and six Hispanic candidates had passed the tests. But because all but two of the Hispanics and all the African Americans hadn't scored quite as well as their white peers, they were ineligible for promotion.
How you feel about this may depend on whether you think that the promotional exams were a valid way to choose the department's future officers. Martin O'Connor doesn't welcome the test results from the point of view of diversifying the department. But he sees them as fair, under the circumstances. He says the department should make its entry-level hiring truly open to all applicants, and let promotions fall where they may based on an objective measure. "The idea of advantage accruing to people because they know how to take tests or do things—I think that's less valid now. I think the exam process is much more professional now than it's ever been," he said.
Legally speaking, however, the question in Ricci v. DeStefano has been whether the content, scoring, and weighting of the test, taken together, produced a better, more job-related method for evaluating who to promote than another method that would have allowed African-Americans and more Hispanics to become captains and lieutenants. As Richard Thompson Ford has explained in Slate, that is the enduring standard of the federal civil rights law Title VII. Passed in 1964, the landmark law prohibits employment discrimination on the basis of race, sex, religion, or national origin. In the 1971 case Griggs v. Duke Power Company, the Supreme Court said that in addition to barring intentional discrimination, Title VII meant that employers could not base promotions (or hires) on a screening process that has a discriminatory effect, or "disparate impact," on one racial group. This was controversial. To make sure the rule in Griggs held, Congress explicitly stated that disparate impact was prohibited when it renewed Title VII in 1991.
In federal district court, New Haven argued that it threw out the results of the promotional exams precisely to comply with disparate impact law. Since no black and few Hispanic firefighters were eligible for promotion based on the tests, they could have sued to invalidate the test results—and, indeed, Gary Tinney and the Firebirds had signaled they were ready to do just that. Then the city would have had to defend the test as a better job-related measure for deciding promotions than the alternatives. Instead, New Haven officials say, they took a second look at the test, decided there were better ways to choose fire lieutenants and captains, and chose to scrap the results and start over. Isn't that how cities are supposed to respond when they think they're on the wrong side of the law?
New Haven won before the district court, and also at the U.S. Court of Appeals for the Second Circuit, where Judge Sonia Sotomayor famously voted for the city and against the Ricci plaintiffs. These rulings follow established legal precedent (more from Richard Ford on how hard it is to win discrimination suits here). No court has ruled before that an employer's good-faith effort to abide by civil rights law and fend off a suit itself constitutes reverse discrimination. As Justice David Souter said at oral argument before the Supreme Court in April, the city's position looks like "damned if you do, damned if you don't."
But the Ricci plaintiffs say that New Haven's real motivation for throwing out the test results was political: Mayor John DeStefano, the named defendant, was pandering to a black voting bloc. Justice Antonin Scalia said at oral argument that he didn't believe New Haven would have canceled the test results if they'd yielded no white promotions. When the Supreme Court decides the case this week or early next, it will either stand by the city and a traditional reading of Title VII or come up with a new one that will vindicate the Ricci plaintiffs.
Click here to read Part 5: What would New Haven do if it could start all over again?