Fderal Judge Nicholas Garaufis has permanently enjoined the FDNY from hiring any new firefighters without his approval — and he’ll only OK the racial hiring schemes he’s al ready tried to foist off on the city. Mayor Bloomberg has refused to cave in to the judge’s quota demands — and he’s entirely right in that refusal.
Garaufis’ capricious rulings have created new law while ignoring obvious facts that undercut his radical new doctrines. And his ultimate goal — to craft a future hiring process based on racial considerations — would put New Yorkers at risk by making skin color as important a qualification for firefighter as actual ability to do the job.
SINCE 2007, Garaufis has presided over a lawsuit brought by the US Justice Department and the Vulcan Society, a fraternal group of black firefighters. The suit charged the FDNY with discrimination against blacks, in light of blacks’ low representation — 4 percent — in the FDNY, versus their 24 percent of the city population. (Hispanics were added to the suit later).
The only evidence for discrimination that the plaintiffs could muster was blacks’ lower pass rate than whites on the FDNY’s entrance exam. On the 1999 exam, for example, 89 percent of white test-takers passed, vs. 61 percent of blacks. On the watered-down 2002 test, 97 percent of whites passed, vs. 85.6 percent of blacks.
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 will descend on the courtroom to nitpick the suspect exam to death, claiming it measures skills — such as reading comprehension — that are not relevant to the job while ignoring skills — such as cooperativeness or persistence — that are.
Unless the employer’s own army of experts can convince a judge or jury that the test is necessary to the job and that there’s no alternative to it, the employer will be found guilty of discrimination. Penalties can include huge monetary payouts and forced racial hiring.
THE “disparate impact” doctrine rests on a massive lie: that blacks and whites would score identically on tests of cognitive ability, absent a biased test design. To the contrary, it’s a tragic but well-established fact that (for example) American black 12th graders read on average at the level of white 8th graders. Until that racial “achievement gap” is closed, any test that measures cognitive ability will have a lower black pass rate
But Garaufis simply rejects that reality. He has sneered at the city’s suggestion that the differences in scores between white, black and Hispanic FDNY applicants reflect differences in “capability and preparedness,” calling that explanation “dubious.”
* In July 2009, Garaufis found the city guilty of disparate-impact discrimination, based on the lower black pass rate on firefighter exams — tests the judge declared to be not job-related.
* In January, he upped the ante: He affirmed the Vulcan Society’s far more radical charge (one that even the Obama Justice Department declined to make): that the city intended to discriminate against blacks.
Yet he pointed to no evidence of deliberate discrimination on the city’s part — instead, he essentially repackaged his “disparate impact” ruling into an inten tional-discrimination one.
THIS finding that city officials sought to keep blacks off the FDNY was not just groundless, it was recklessly inflammatory. It mirrored the outrageous charge of Paul Washington, a former Vulcan president, that Bloomberg embraces the philosophy of “Segregation now, segregation tomorrow, segregation forever.”
Perhaps not coincidentally, Garaufis’ finding of intentional discrimination gave him vastly expanded powers to intervene in FDNY affairs by crafting a new exam and dictating hiring policies.
* Garaufis rested his intentional-discrimination ruling on a single argument: Since a federal court had ruled in 1973 that the city’s firefighter exam had an illegal disparate impact on blacks, the city had long been on notice that its exams were illegal. Yet it continued to give exams that blacks passed at lower rates than whites. Therefore, the judge argued, the city must have wanted exams that would have a disparate impact — not de spite that disproportionate effect on minorities, but because of it.
This assertion of the city’s alleged animus toward blacks ignores overwhelming evidence to the contrary. The FDNY has spent $20 million since 1989 on minority recruitment — an odd outlay for a department that allegedly wants to keep blacks off the force. The city created an FDNY-themed high school to interest more minorities in the job. It has constantly watered down the FDNY entrance tests to reduce the black-white scoring gap.
Garaufis didn’t let the city introduce such facts in its defense, on the ground that they were irrelevant to rebutting the Vulcans’ statistical case of discrimination. Such artificially rigid procedural rulings also kept the case from going to a jury — where race-based hiring for firefighters would not find so friendly an audience.
Though Garaufis didn’t let the city invoke its recruitment efforts to rebut the charge of intentional discrimination, he himself took note of the fact that other New York City uniformed services have a higher representation of blacks than the FDNY. Therefore, he said, the FDNY exam must be deliberately discriminating against blacks.
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. The Department of Citywide Administration Services crafts exams for all the services; Garaufis’ theory implies that it designs tests to keep blacks out of the Fire Department but not other agencies.
IN fact, the low black representation at the FDNY is the result of low black turnout for the job more than of the lower black pass rate on the exam. Blacks made up only 7.8 percent of all FDNY test takers in 2002 — and a similar 7 percent of those who passed the test. That low participation rate will make it very difficult to quickly achieve the proportional representation that Garaufis and the Vulcans demand.
* In August, Garaufis tossed out the 2007 firefighter exam as well, even though neither the Vulcans nor the Justice Department had challenged it.
The 2007 exam had been nearly depleted of cognitive challenge. 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 held thousands of recruiting events in minority neighborhoods. It followed up with everyone who showed up to a recruiting event, calling them to remind them about the test date. It offered free tutoring courses on how to pass the exam and free gym memberships to prepare for the physical exam.
Minority turnout was the highest in history — 36 percent of all test-takers were black and Hispanic — and the minority pass rate nearly proportional: 34.7 percent of all who passed the exam were black and Hispanic. Among the top 4,000 applicants (of 21,000 total who passed) were 419 blacks and 722 Hispanics — who were thus eligible for priority hiring.
Garaufis would have none of it.
AFTER only a brief hearing, he ruled that this exam, too, discriminated against blacks and Hispanics. He temporarily stopped the city from hiring off the list of top scorers in a color-blind fashion — an injunction he made permanent last week. The only options he gave the city all amounted to racial quotas for FDNY hiring.
The city should take an immediate appeal to the Second Circuit. Neither Garaufis’ conclusions of law nor his race-based remedies are justified. Hundreds of minorities are eligible for hiring right now thanks solely to their qualifications, not their skin color. Creating a new firefighters’ class based on race risks poisoning the esprit de corps and mutual respect essential for optimal fire-fighting.
Mayor Bloomberg is to be congratulated for preserving the integrity of the FDNY and for standing up for the rights of those thousands of would-be firefighters of all colors and ethnicities who earned a place on the fire force through their own efforts.
Heather Mac Donald is a contributing ed itor at the Manhattan Institute’s City Journal, from whose Web site this is adapted.