New York mayor Bill de Blasio recently threw in the towel on the city’s long fight against a lawsuit seeking back pay for African-Americans and Hispanics who failed the written exam to become city firefighters. The Bloomberg administration fought a seven-year legal battle against the U. S. Justice Department, refusing to accept the stipulation that the city had “intentionally” engineered African-American and Hispanic under-representation in the FDNY. Now, thanks to de Blasio’s decision to settle the suit, taxpayers must cough up close to $100 million in “broad injunctive relief and back pay.”
When the Vulcan Society, the FDNY’s black firefighters association, filed its first complaint against the city in 2002, few minorities worked in the fire department. At the time, African-Americans constituted 25.6 percent of the population of New York City, but only 3.4 percent of the FDNY—a statistic often cited as prima facie evidence of discriminatory hiring practices. Less remarked upon is the overrepresentation of African-Americans in other city agencies. In the Department of Corrections, for instance, 61 percent of personnel are African-American and 18 percent are Latino. Corrections officers are paid at virtually the same scale as firefighters, so there is no economic reason for the discrepancy.
It’s natural to wonder about a test that could produce such skewed results, and which a federal judge ruled had “discriminatory effects on certain minority applicants, including black applicants, and failed to test for relevant job skills.” If the test was intentionally designed to flunk minorities, surely it must have contained absurdly particularized questions meant to screen applicants on cultural knowledge, or exclusionary questions such as might have been found at a Jim-Crow-era poll site? We might expect something like: “The nearest hydrant to the fire is about a chip shot away. What length hose is required?” Or, “Jimmy Donahue noticed that Maggie Shaughnessy was wearing her Claddagh ring on her left hand with the heart pointing outward. Should Jimmy ask Maggie to accompany him to the Holy Name Society’s annual banquet?” Or, “If your spinnaker is torn, which of the following tournaments are you unable to compete in?
The tests were culturally neutral, however, and contained no such questions. The math and reading-comprehension questions required some technical knowledge about firefighting. Some questions used diagrams and pictures to gauge applicants’ ability to perform spatial translations or visualize a particular scene from a different angle. Here’s a typical question from the FDNY study guide:
Firefighters are inspecting a furniture factory. During the inspection, they find employees smoking cigarettes in various areas. In which area does smoking pose the greatest danger of causing a fire?
(A) employee lounge
(B) woodworking shop
(C) a private office
(D) a rest room
The Vulcan Society’s complaint was essentially that the test’s emphasis on reading comprehension wasn’t fair because fires are not extinguished by reading. The test, according to the Center for Constitutional Rights, which represented the Vulcan Society, “has no valid relationship to job skills”—a claim that the Department of Justice supported, and which is necessary under Title VII of the Civil Rights Act to demonstrate unlawful discrimination. By the same logic, one infers, medical-board exams should not involve a written exam, because writing is ancillary to the practice of medicine.
If African-American and Hispanic applicants had done well on the FDNY exam, then there would likely be no dispute about its inherent racism. The only problem with the tests was their results, which retrospectively established bias in the eyes of U.S. District Court Judge Nicholas Garaufis and, it seems, Mayor de Blasio. According to the logic of disparate impact, it doesn’t matter whether the test seemed fair; its outcome proves that it was biased. In the realm of adverse effect, testing takes on a quantum aspect akin to the Schrodinger’s cat paradox: you can’t know whether the test is racist or not until you grade it.
Forgoing further appeals, de Blasio decided to settle with the Vulcan Society. The city will now disburse $98 million to African-American and Hispanic plaintiffs who failed the FDNY entrance exams in 1999 and 2002. According to the court’s terms, African-Americans and Hispanics—and only African-Americans and Hispanics—who scored at least 25 percent on the exams (applicants needed to score 70 percent in order to pass) are eligible for back pay and fringe benefits, as well as preference in hiring and promotion. The fire department is currently under a strict quota scheme for hiring; 60 percent of new hires must be black or Latino until demographic parity is achieved.
The mayor’s capitulation is consistent with his administration’s general approach to negotiations with grievant parties and bodes ill for city finances. De Blasio has already indicated that he wants to approve a payout to the Central Park Five, who seek $250 million for their wrongful conviction and incarceration in the Central Park Jogger case. He dropped any opposition to the “stop-and-frisk” suit against the NYPD. And the mayor has telegraphed his intention to put up only token resistance to the city’s public-employee unions in forthcoming contract negotiations. The United Federation of Teachers, for example, has indicated that it wants retroactive back pay—by some accounts totaling $7 billion—to make up for the lean Bloomberg years, when its members received only cost-of-living increases.
A cynic could be forgiven for thinking that de Blasio sees himself less as a zealous defender of the public purse than as a progressive avenger doling out taxpayer money to the city’s grievance peddlers. Where there’s smoke, there’s fire.