Last May, New York City finally got some good news in its longstanding battle with U.S. District Court judge Nicholas Garaufis over control of the fire department. The Second Circuit Court of Appeals ruled that Judge Garaufis had overreached in imposing several provisions of a December 2011 injunction invalidating the FDNY entrance exam and establishing detailed rules for the hiring of new firefighters. Garaufis had previously held that the exam was too focused on cognitive abilities. The appeals court also vacated the judges earlier ruling, on which the injunction had been partly based, that the FDNY had intentionally discriminated against minority applicants. (A separate finding of disparate-impact liability—in which discrimination is inferred merely from racial differences in test scores—was inexplicably not challenged by the city.)
Most strikingly, the Second Circuit took what it acknowledged to be the extreme step of reassigning the intentional discrimination claim to a new district judge, ruling that Garaufis had appeared to prejudge the issue by branding the citys evidence as incredible, without hearing any witnesses. The trial was randomly reassigned to Judge Raymond Dearie, a moderate. It seemed possible that the city could eventually get out from under some of the more onerous rules Garaufis had imposed and avert much of the massive potential liability—estimated at up to $128 million in a previous ruling.
This was apparently not good news to the incoming de Blasio administration, staffed by and responsive to activist lawyers who bring similar litigation. Thus, the new mayor announced a settlement, giving the plaintiffs everything that they could have won at trial, if not much more. While full details of the settlement have not been released, an agreement in principle outlines the major provisions. The city will grant $98 million in back pay and benefits to minority applicants who failed the entrance exam or who were hired later than white applicants because they passed with lower scores. The payout comes in addition to the nearly $4 million in attorney fees already awarded to the plaintiffs lawyers by Garaufis. The city also agreed to create and staff, at additional cost, a new affirmative action bureaucracy in the fire department headed by a chief diversity and inclusion officer, and to use its best efforts to ensure that African-Americans—traditionally under-represented among fire department test-takers—will now be overrepresented by 3 percent compared with their share of the labor market.
The $98 million settlement figure is even more generous than it appears. Garaufiss $128 million calculation represented gross lost wages before application of mitigation of damages—that is, deduction of any income actually earned by unsuccessful or deferred minority applicants at other jobs. The judge himself emphasized that the city would have the opportunity to reduce this amount significantly by proving the interim earnings of claimants and that consequently, the amount of damages that the City is liable for may be reduced substantially. The plaintiffs mitigating income would almost certainly have been shown at trial to be much greater than a mere one-quarter of what they would have earned as firefighters. Therefore, the $128 million gross figure would have been reduced by substantially more than the $30 million difference between that figure and the $98 million settlement. In other words, Mayor de Blasio and Corporation Counsel Zachary Carter forked over far more taxpayer money than they might realistically have had to pay at trial.
This unnecessary and wasteful expenditure touches on a troubling aspect of modern progressivism. The settlement money would have paid for one-third of the yearly cost of de Blasios universal pre-K program, funding over 10,000 classroom seats. But as legal scholar Mary Ann Glendon suggests, in todays lawyer-led and court-driven liberalism, those asserting rights take precedent over other social-welfare causes that may have greater merit. In Bill de Blasios more radical version of progressivism, such choices are unnecessary—everything is funded, with taxes raised as needed. To borrow a formulation favored by de Blasio-style progressives, this approach is not sustainable.