Youngstown must adapt to change in discrimination law

Youngstown must adapt to change in discrimination law

If Youngstown City Council is intent on encouraging the city administration to continue the use of two civil service lists — one for white males and one for minority candidates — the least it should do is appropriate the hundreds of thousands of dollars it is going to need to defend the city against an inevitable lawsuit. And council should resign itself to eventually losing that suit.

This is not even a close call. We cannot imagine a city being foolish enough today to attempt to promote or hire police officers or firefighters using separate eligibility lists that are based on race or gender.

Mayor Jay Williams suggested the city abandon using two lists and go, instead, to a pass/fail system that would give the executive more latitude in hiring. The use of two lists was established to increase the opportunities for hiring and promoting minority candidates, who generally scored lower on the tests. At one time, the practice was not only allowed by federal courts, it was encouraged. That was another time and those were different courts.

The test case

Shreveport, La., followed a two-list policy very much like Youngstown’s for decades, until the Fifth Circuit Court of Appeals ruled in a 2006 case that the practice discriminated against white men. The court acknowledged that there had been sufficient evidence of past discrimination to initiate the two-test system in 1980, but there is insufficient evidence to support it today.

While it is true that the Fifth Circuit does not have jurisdiction over Ohio, there can be no serious doubt that the court’s decision reflects the way the Supreme Court of the United States reads racial discrimination law today. If the city were to hire or promote from separate lists based on race or gender, there is no doubt that a lawsuit would be filed. One could argue that a U.S. District Court here and the Sixth Circuit, which sits in Cincinnati, might uphold the city. As unlikely as that is, if it happened, it would necessitate the next, very expensive step of taking the case to the Supreme Court.

Anyone who would suggest anything but a loss there hasn’t been paying attention.

Last July, ruling in Ricci v. DeStefano, the court struck down a decision by New Haven, Conn., to suspend making promotions in its fire department because no blacks and only two Hispanics would have been eligible for promotion. The court ruled that unless there was strong evidence that the tests were discriminatory, a city could not violate the rights of non-minority candidates who passed the test and were entitled to promotion. The ruling was strong enough that it sent a message that cities may still be sued by minority candidates who weren’t hired or promoted, but that absent evidence that the test itself was discriminatory, the cities, not the minority applicants, would win.

Law vs. policy

Council members can certainly question whether the court’s decision represents sound public policy for a city such as Youngstown, where nearly half the residents are African American and where the overwhelming majority of the best test-takers are not. But whether it is sound policy or not, the Supreme Court has made it quite clear that the law is being read differently in 2010 than it was in the 1970s and 1980s when federal courts endorsed affirmative action practices.

Spending money to fight a losing court battle knowing that every dollar spent is a dollar the city won’t have to hire police officers and firefighter would be grossly irresponsible. A two-list option is no longer a legal option.