Keeping the Melting Pot on the Back Burner
Last month New York City agreed to add 126 blacks, 167 Hispanics, and one Asian, along with 306 whites, to its approximately 30,000-member police force. For the first time, minority police appointments reflected New York’s ethnic realities — and the principle that all are equal in as well as under the law.
There is a general impression that we have Mayor Koch to thank for that: for his graceful yieldling, despite his high if contradictory principles, to a federal court-ordered hiring quota for cops; yielding, that is, for the year or more it will take him to appeal it. As the reason for his good losership, Koch cited our urgent need for more cops to prevent imminent bloodshed, Miami-style.
But this was the very same reason he gave federal Judge Robert L. Carter back in December when Koch insisted the city couldn’t change its hiring policy for cops. No matter that Judge Carter had found (not for the first time) that this policy was discriminatory and therefore illegal.
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It was this attitude on the part of the city that led to the quota in the first place — and to Judge Carter’s charge that the city not only discriminated against its racial minorities, but did so deliberately.
Carter based his conclusion on court records stretching back over nearly a decade of litigation, in an uphill and continuing struggle by the city’s black and Hispanic cops to reconcile the letter and the spirit of anti-discrimination law.
The record shows:
- The city’s Police Department and its Personnel Department knew as far back as 1969 that exams discriminated by race;
- They knew by 1971 that such discrimination had nothing to do with the requirements of the job or ability to perform it;
- Individual officials unable to act on that knowledge invited and encouraged the ongoing lawsuit by the minority cops, back in 1972;
- Nonetheless the city chose to fight the case, and even now claims it has never discriminated against minority cops;
- Throughout the course of subsequent litigation, the city continued to test and hire and fire without making any substantial changes in the system.
A decade later, minorities, now nearly half the city’s population, were still only 10 per cent of a police force whose most pressing task is to combat a rise in crime that is polarizing communities along racial lines. Yet Koch in 1980 continues to fight an affirmative-action quota for blacks and Hispanics — a quota he endorsed two years ago for policewomen and, more recently, for city construction contractors from poverty neighborhoods. As if affirmative action was not a right but an act of charity.
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Carter’s view that the city discriminated with intent — not intent to do wrong, but intent not to do right — prevailed (along with his one-in-three quota) for seven months, from January of this year until last July. At that time, federal appellate Judge Jon Newman decided the city hadn’t erred on purpose, though it had erred, and the quota (reduced to one-in-four) would stay in force.
Newman’s revision was hailed by the Koch administration as a “vindication,” and by the media as a breath of sanity and common sense (as though the perception of injustice were de facto a neurosis). Such a view of events and of Koch, who as mayor must take the rap not only for his own actions but for that of the city as a continuous entity, says a great deal about this moment in the recent history of American civil rights.
Forget the editorial rejoicing over the arrival of our long-awaited troops; forget the staged spectacle of mayoral blessing upon the union of black and white in uniform; forget our (false) sense of satisfaction at a problem finally solved.
Look at the record and remember that this is supposedly an enlightened era, and we are supposedly an enlightened city. And then remember what is supposed to happen to people who forget history.
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In 1967, following a wave of racial violence, the federal Kerner Commission began looking at the low numbers of blacks and Hispanics in police departments across the country. Cities began to respond to the problem. In 1968, minority appointments to the New York City Police Department almost doubled: by 1970, when a job freeze halted all hirings, some 1400 minority officers had been hired, or 18.4 per cent of all appointments to the force between 1968 and 1970. And still the 29,500 member police department was, as the department itself observed, 90.8 per cent “lily white.”
This problem did not go unnoticed by the Lindsay administration. In August 1969, the city Department of Personnel released its two-year study of a previous civil service exam for the entry level position of patrolman.Comparing test-takers of similar employment, education, and family background, Personnel found that only “the ethnic factor” — race — affected exam scores. That finding prompted the department to investigate its most recent exams. The results would not be ready for four years, but eventually they and other studies supported the 1969 speculation of the personnel department: that greater numbers of blacks and Hispanics could have made perfectly fine cops but never got past the front door “because of below passing test grades which may have been unrelated to actual job performance.” (My emphasis.)
With this speculation, the anonymous drafters of the personnel study unwittingly hit upon the crux of a matter that still confuses many people — who ask, sometimes pointedly, exactly how something “neutral” like a civil service test does discriminate racially.
The answer is not simply that we don’t know, but — as the personnel investigators foresaw — that it doesn’t matter just how racial bias is “built in” to an exam if the exam itself is irrelevant to the job.
This is the conclusion the U. S. Supreme Court reached in a landmark 1971 decision. In Griggs v. Duke Power Co., the court ruled that if minorities can prove a seemingly “neutral” job requirement or test has a racial bias, then that job requirement or test is illegal unless the employer, in turn, can prove it is “job-related.”
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Proof that a test is biased is a straight-forward matter of statistics. Evidence that it is “job-related” (or that the employer genuinely tried to make it so) is more complex. But at minimum the employer is expected to be able to describe in simple English exactly what the job is (the written job analysis). And obviously, a positive relationship between an employee’s test score and his or her on-the-jobperformance would be helpful to the defendant-employer.
No such relationship was discovered when, in the fall of 1971, the personnel bureau within the police department released its own study. Minority patrolmen, it noted, were promoted to detective slots a — promotion based on job performance — at a higher rate than their white colleagues. Yet when it came to promotions of equal rank that required civil service exams, minority patrolmen did poorly. In short, there clearly was no connection between a minority cop’s on-the-job performance and the civil service test for promotion. Here was a strong suggestion that this would hold true for the hiring tests as well, which ought to have alerted top brass to the need for a written job analysis.
But as of March 3, 1972, Peter Smith Ring, special assistant to the commanding officer of the personnel bureau, was forced to warn the police commissioner:
There appears to be general agreement that existing testing, and our own past recruitment efforts, are the major roadblocks to adequate minority representation … I have deep reservations about both efforts as they presently stand … it is impossible to develop a new test until we undertake a job analysis for the rank of patrolmen … To the best of my knowledge this is not being done … we have little time to lose.
In fact, the department had no time at, all. On that same day, black and Hispanic officers represented by the Guardian Association and the Hispanic Society sued the city.
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The Guardians’ case did not catch its defendants, the city’s police and personnel departments, unawares. Behind the scenes, high-level city officials had not only acknowledged (if only to each other) that the department’s practices were discriminatory; they had already tried, and failed, to correct the problem.
The day the Guardians brought suit, the police department’s legal division delivered the fruits of its research on “the possibility that a significant legal trend may be developing” of anti-discrimination challenges to police departments.
The report, circulated in draft form before its official release, contrasted current laws with all the department knew of its recruitment and promotion practices and concluded they “are vulnerable to litigation charging discrimination. This Department and the Department of Personnel will be hard pressed to show job-relatedness … Such a suit … will have a good chance of success.”
The department did more than anticipate the suit — it invited it. In 1971, an informal committee began meeting, composed of Police Commissioner Patrick Murphy, Deputy Police Commissioner Benjamin Ward, representatives of Mayor John Lindsay, and Personnel Director Harry Bonstein. Ward later testified to “an agreement pretty much all around the table, that something was wrong with our testing process … All parties agreed to that except Harry Bronstein. He was clearly opposed to changing the system.”
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Director Bronstein had been kicked upstairs to his desk from a key spot in Lindsay’s budget burea, where he was know in that inflationary era as “The Abominable No-Man”. Says a former Lindsay administrator: “Bronstein was bright, he could have done anything, but he was a Depression baby. He wound up in civil service because that’s all there was.” In his official capacity, Bronstein appeared to his colleagues to be acting out of personal spite.
Whatever the reasons for it, Bronstein’s resistance was not overruled by the mayor.
Ward, Murphy, and representatives of the mayor met again, Ward said under oath, “and it was pretty much the conclusion of the people then in that room that the problem was with the Department of Personnel … A strategy was then designed and devised to deal with the problem …” That strategy, as Ward testified, was to approach the NAACP. He said police and personnel were aware “that I had spoken to the NAACP Legal Defe1;1se Fund and asked them to bring an action both against the Department of Personnel and the Police …”
Today Ward is Koch’s commissioner of corrections. Through a spokesman, he says he may not comment, “but he stands on his testimony.” The staff attorney from the NAACP with whom Ward spoke, Elizabeth DuBois Bartholet, now of Harvard Law School, confirms it. The NAACP worked with the pro bond law firm that handled the suit; the Puerto Rican Legal Defense Fund was later brought in as well.
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But instead of using the suit to force the desired change in its policy, the administration chose to fight it. The enormous contrast between the city’s private actions and its public posture may be explained in part by Lindsay’s presidential ambitions, and by the rules of the game of politics: a public admission of racial guilt by city leaders, at a time when race relations were especially volatile and when moreover the police department was already under fire following the Knapp Commissions’s exposure of another kind of police corruption, would have predictably unpleasant consequences for the Lindsay administration. If any consideration other than this obvious political one entered into the city’s turnabout, today — eight years later — the matter is still under wraps. Jay Kriegel, who in 1972 was Lindsay’s liaison to the police department, claims total memory loss on this issue and is unwilling to have his memory jogged.
The Guardians challenged the use of seven exams given between 1968 and 1970 (the date of the last exam before the hiring freeze took effect), including the ones the city knew were discriminatory. Yet the first step of the city’s defense was to ask for still another study. Since the hiring lid was on, the Guardians agreed to postpone trial while this study, by the Rand Institute, was undertaken.
But before the results were in (they would, again, confirm the Guardians’ position) the lid was lifted, and the city — using familiar threats of civil unrest — proceeded swiftly to hire according to eligibility lists based on scores from the challenged exams.
The Guardians tried to halt the hirings, but the court waited so long before responding that the issue became moot; then, for that reason, it denied their injunction request.
The lawsuit, however, had forced the city to hire all those applicants who’d passed the challenged exams, including the low-scoring minorities who would otherwise have been bypassed by the holding of a new exam. Thus both the Guardians and the lame duck Lindsay administration were content for the moment to leave matters in legal limbo.
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But then the Beame administration began and with it, the fiscal crisis: Despite expressions of concerns from city Human Rights Commissioner Eleanor Holmes Norton and from Mayor Abe Beame himself about the effect of civil service “separation policies” upon the last-hired minority workers, in 1975 22 per cent of all Hispanic cops and 18 per cent of all back ones were let go, compared to only 9.8 per cent of the white force.
Uncertainty in the press about whether more cops would be fired or rehired made it urgent for the Guardians to halt further job actions and seek adjusted seniority for those minorities hired later than they would have been but for poor scores on the biased exams. The Guardians renewed their case in 1976.
At the trial that year, the city insisted the exams were valid, job-related ones, although it was still unable to produce a written job analysis. It also tried to poke holes in the by now overwhelming mass of statistical evidence (much of it collected by the city itself) of discrimination — in short, to deny the facts.
Finally, in its ugliest move, the city argued that it had never discriminated because Title VII, the part of the Civil Rights Act that bans job discrimination, didn’t apply to cities until March 1972 (just three weeks after the Guardians’ suit was first filed). Since all the recent hirings and layoffs were based on exams given before 1972, the city claimed they weren’t discriminatory.
This reasoning, set side by side with the evidence above that the city knew long before 1972 that it was discriminating due to race, was rejected by Judge Carter — first in March 1977 and again in February 1979 (Carter was required by the appellate court to reconsider in light of a then-recent Supreme Court decision that appeared to lend weight to the city’s argument).
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At this point, enter Mayor Koch.
Faced with Carter’s reaffirmation that the 1968-70 exams were biased and that the city was wrong to use them, Koch could have decided to drop the line he’d inherited from Beame and move to settle with the Guardians in good faith. He was not dealing, after all, with the kind of “radical,” “revolutionary” black politicians he claims to abhor, but with a group of hard-working, dues-paying family men who wished for nothing more than the means to be among those middle-class, law-abiding citizens Koch considers his constituency.
Koch chose instead to apeal. He lost that appeal before Appellate Judge Thomas Meskill, in a decision that was totally ignored by the press, last July 25. The city is appealing and this time so are the Guardians, because Judge Meskill has reduced by about 700 the number of minority officers who could receive retroactive seniority in, compensation for the city’s actions.
Koch had had another opportunity to turn over a new leaf in the fall of 1978 when, true to his campaign pledge to hire more cops, his administration made plans for a new patrolman’s eligibility exam, from which 4000 officers were to be hired over the course of his administration. Yet Koch failed to ensure that the lessons of the past were respected. Though changes were made in the test-preparation process, they seem to have been executed in a spirit of indifference to its impact on the lives of real people — and with a carelessness that could only be from stupidity or arrogance.
The facts support at minimum the Guardians’ claim that the new exam was biased. Of those who passed the exam, held in June 1979, 15.4 per cent were minorities, though they formed at least 30.9 per cent of all test-takers; in contrast 66.6 per cent were white, though whites were only 53.8 per cent of the total. (A number of applicants declined to identify themselves by race.) The statistical disparity, the courts agree, is too great to be by chance.
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The Guardians filed their complaint last October. But in November, the month of the trial, the city went ahead and hired using the contested exam. Of the 415 appointees, all but 45 were white. And even as Judge Carter mulled over his decision, the city announced a second group to be hired in January 1980: of a total of 380, only 38 would be minority officers.
The city’s expressed determination to use the challenged exam even after Carter personally informed its lawyers in December that in his forthcoming opinion he would declare it illegal, forced Carter to issue his written opinion just hours after the last hearing on the case. Very likely the city’s uncooperative attitude, right down to the wire, helped settle any lingering doubts Judge Carter may have had about its good intentions.
Intentions were not legally at issue. The city hadn’t been charged with deliberate discrimination, because that — like rape before the corroboration law was repealed — is almost impossible to prove. But the question of good faith creeps in the back door when one must assess the credibility of a witness on matters of great complexity; and Carter, unlike the Appellate court, has been dealing with the city on this issue for years.
His ruling, on January 11, found “that Examination No. 8155 was designed either with a deliberate intention to discriminate against blacks and Hispanics or with reckless disregard of whether the test would have that effect.” And he ordered the hiring quota.
Of course, as we know, the city appealed. Judge Newman of the federal appeals court was inclined to give the city the benefit of the doubt in matters of faith, but when it came to matters of fact he could only conclude the exam was illegal. He modified, but nonetheless upheld, the hiring quota.
Without that so-called “drastic” remedy, the number of black and Hispanic cops in New York City — after a decade of official affirmative action and litigation — would still be only 10 per cent.
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At each stage of these events, the mayor — Lindsay, Beame, and finally Koch — had two options: to make peace; or to accept the legalisms that propped up the city’s resistance, along with the practical obstacles that he would otherwise have to struggle to overcome.
Like Lindsay, like Beame, Koch chose the latter course. Since he has bought it, Koch now must defend — along with the present — the past.
Why didn’t the city buck the civil service system? “Put yourself in the position of the police commissioner,” says one of Koch’s attorneys who is handling the case. “In the back of his mind are 29,500 white police officers, breathing down his neck.”
Why didn’t — why doesn’t — the city offer a settlement? “Where were we going to get the money for that? Do you have any idea how much that retroactive seniority would cost? There’s backpay, there’s pension contributions … We can’t even total it up; we’ve tried.”
Yes, money is tight. Yes, the PBA, to which, in bitter irony, the minority officers must pay dues, has filed briefs against the Guardians in this case. (The PBA has also successfully fought efforts to bring qualified minority youths into the department under an internship program.)
But these aren’t reasons for the city’s stand, they’re excuses. The city lays the blame for the status quo on the status quo, a tautology that becomes more suspect when we look at what other cities have accomplished. Detroit, for one, has a voluntary affirmative action quota for its police, one it was willing to go to bat for when white cops attacked it in court.
So have Tampa, Seattle, and Sacramento County. Closer to home, Syracuse, when its voluntary plan came under attack, worked out a settlement with the state Civil Service Commission; there is no reason why New York City could not do likewise. The long list of local governments that have reached settlements in the past year rather than fight suits brought by the U. S. Justice Department (a “friend of the court” on behalf of the Guardians in this case) includes Cincinnati, Fort Lauderdale, and the Ohio State Police.
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And New York, of course, is willing to promise hiring quotas to its policewomen. The consent agreement between the department and the Policewomen’s Endowment Association in April 1978 pledges the department “will in good faith use its best efforts to have women comprise 10 per cent of the entry level police officer positions within five years of the date of this agreement. To achieve this goal the Police Department will use its best efforts to have women comprise a minimum of 30 per cent of the officers hired to the Police Department during the aforesaid five-year period.”
Finally, only one explanation for the city’s intransigence remains. When I pressed Koch’s attorneys to explain why the city didn’t just bow to the inevitability of justice, they said — as Koch has said, in different words, before them — “But we haven’t done anything wrong.”
“You know, I used to be glad whenever I saw a black cop,” a friend of mine said not long ago, “and I used to think it was because I was so unbiased, because it confirmed my political beliefs.
“Then I realized that wasn’t it at all. I was happy to see a black man in uniform because that meant he was one less I had to worry about.”
I heard these words with a jolt of self-recognition. My friend and I are white, we think of ourselves as decent and progressive. But there is more than one variety of racism.
So it is, speculates one of his administrators, with Ed Koch. The mayor seems to see himself as he likes to see himself: he knows he means well. Trust him. And meanwhile, like the rest of us, he is traveling the path of least resistance, and we know where that leads — not despite, but because of “good intentions.” ❖