City fire tests have no easy, cheap fix

William Kaempffer and Angela Carter , Register Staff 02/02/2004

NEW HAVEN — City officials have argued behind closed doors. Firefighters have attended union meetings. Lawyers have been contacted. But just over a week after the city suggested that two Fire Department promotional tests might be thrown out because too few minorities scored well, the controversy has created a racial divide. City officials have scheduled a second public hearing on the issue for Thursday in the Hall of Records. "The rift and the division in the department was very clear at the first hearing," said Karen DuBois-Walton, the city’s chief administrative officer. "The one thing that all groups can probably agree on is we don’t ever want to be in this situation again," she said. In November and December, the city gave civil service tests for fire lieutenant and captain positions. When exam results came back, all but one or two of the 15 people in line for promotion were white. Last week, some Board of Aldermen officers were briefed on the situation. "I would not want to certify this test. We will not be able to promote any African-Americans to captain or lieutenant. I don’t want the city to appear discriminatory," said Alderwoman Shirley Ellis-West, D-12. Aldermanic President Jorge Perez, D-5, did not take a position on certifying the test, but said the debacle has caused "a disservice" to taxpayers, firefighters and anyone else who potentially could be impacted. "I’m more interested in how we got into this mess in the first place," he said. "Instead of a joyous occasion where people are being promoted, we have a department that’s in turmoil and split along racial lines." The two exams, administered by a testing consultant, cost nearly $100,000. The city most likely will be sued no matter what course it chooses. One civil lawyer in New Haven believes throwing out the tests would be "a colossal mistake." "They’re taking steps that are going to cost (New Haven) a great deal of money," said Norman Pattis, who recently won a multimillion dollar reverse discrimination lawsuit filed by white Hartford firefighters. "I don’t know if the mayor has his eyes on Hartford and the governor’s office and forgot that he had to uphold the law here in New Haven." Legal scholars, however, said any discrimination lawsuit by white firefighters against the city is no slam-dunk. Ian Ayres, a professor at Yale Law School, said white firefighters could argue that the city is "in a sense showing a preference of minorities" if it throws out the test. But he said that wouldn’t necessarily mean a victory in the courtroom. "If they’re setting these aside and putting forth another color-blind test, that would be harder to sue on," he said. "It’s unlikely that you get a winnable suit for whites on the basis of that." Quinnipiac University law professor Robert Farrell said the city’s case could be bolstered by a recent federal ruling in the Midwest. In December, a federal appeals court ruled that Chicago was justified in increasing some black police officers’ scores on a sergeant’s test in the 1980s. "The standard is that when you are making race-conscious decisions, then you have to show that your decision was narrowly tailored to achieve a compelling interest," Farrell said. "I’m presuming they have a compelling interest in having a diverse fire department." Ayres said the city has several options, short of throwing out the tests. Since firefighters balked about certain questions, the city could conduct a validation study on both tests. If some questions were deemed invalid, they could be thrown out without scuttling entire exams. It is not certain adjusted scores would change the racial makeup in the top ranks.

©New Haven Register 2004