Changing city law will be easier than complying with federal employment law
Youngstown City Council will be asked tonight to pass legislation that will permit the city to waive the “rule of 10.” It would allow the mayor to make appointments to the fire department from a list of all applicants who got a passing grade on the most recent Civil Service test, not just from the 10 highest scorers.
The new system replaces the city’s practice of a generation in maintaining two eligibility lists, one for minority candidates and one for nonminorities.
It is a reflection of changing times that the bifurcated eligibility lists that were the creation of a federal court as a response to what was then viewed as the unconstitutional exclusion of minorities from public employment are now themselves seen as unconstitutional. The dual lists grew out of a time when affirmative action was seen as a reasonable response to the systemic underrepresentation of minorities in public employment. In recent years, the Supreme Court of the United States has turned affirmative action policies on their head, finding that nonminorities — principally white males — were being discriminated against when minority men and women received preferential treatment in matters of educational opportunities, employment and being awarded public contracts.
Youngstown not alone
The death knell for the minority and nonminority lists was sounded by the Fifth Circuit Court of Appeals in a 2006 case brought by white firefighters against the city of Shreveport, La. Like Youngstown, Shreveport adopted two lists in response to a federal court decree. But the appeals court found that while there was adequate evidence of past discrimination to support the remedy in 1980, there was insufficient evidence to support a quota system today.
The court prohibited the use of separate cut off scores for different classes of applicants, but it did not bar a city from seeking to remedy the effects of past discrimination in hiring. It suggested that any plan could not require the hiring of unqualified minorities or pose an absolute bar to nonminority employment.
So if city council gives the Mayor Jay Williams wider latitude in hiring from the entire pool of applicants who passed the test, rather than from only the highest 10 scores, it will be Williams’ responsibility to work within a rather narrow band that separates legitimate attempts to avoid returning to a day when a city with a high black population had only a handful of black firelighters and the unconstitutional mistreatment of nonminority applicants.
The almost-inevitable suit
Regardless of what council does and regardless of who is hired, Youngstown — like New Haven, Conn., in a prominent reverse discrimination case involving the promotion of firefighters — will probably be sued by someone.
If no minority applicants are hired, a discrimination suit is likely. If demonstrably less qualified minority applicants are hired over nonminorities, a discrimination suit is likely.
It will fall to Williams, acting on the advice of the city law department, to pursue a hiring process that can be defended in court. Hiring the best applicant involves more than looking at test scores, and a case could be made for hiring one applicant over another if they are separated by a few or even a dozen places on the scale. But defending the hiring of an applicant who scored, say, a 75 over one who scored 95 could be difficult.
Regardless of how the numbers game plays out, having a diverse public payroll is a legitimate goal. But some of the responsibility for achieving that diversity falls on the minority community itself. Those who value diversity most highly should be pursuing a proactive agenda in which minority candidates for Civil Service jobs are recruited, beginning at an early age in schools and colleges. Tutoring programs and assistance in studying for the tests given prospective police officers and firefighters should be held at community centers and churches, with the assistance of minority employees and retirees from the departments.
We’ve suggested that before; but this seemed an appropriate time to repeat it. We’ll doubtless say it again, until the day arrives that it is no longer necessary to say.