UNITED STATES COMMISSION ON CIVIL RIGHTS
624 NINTH STREET, NW, WASHINGTON, DC 20425 www.usccr.gov
April 20, 2010
Mayor Jay Williams
First Floor, City Hall
26 South Phelps Street
Youngstown, OH 44503
City Council Members
6th Floor, City Hall
26 South Phelps Street
Youngstown, OH 44503
Re: Racially Bifurcated Test Results in the Police and Fire Departments
Dear Mayor Williams and City Council Members:
The undersigned commissioners of the U.S. Commission on Civil Rights are
writing to express our concern regarding recent news that the Youngstown City Council
has voted to continue using racially discriminatory methods in the hiring of police
officers and firefighters.1
Specifically, we are writing about Youngstown’s policy of separating white male
applicants into one rank-ordered list based on their civil service exam scores, and
minorities and women into another rank-ordered list based on their scores. Using vague
“diversity criteria,” Youngstown officials then select a number of white males from
among the highest scorers on the first list, and a number of minorities and women from
the highest scorers on the second list. This has resulted in hiring minorities and women
with lower test scores than white males.
Ohio Revised Code (R.C.) 124.26 and 124.27 require that a “rule of ten” is to be
followed in hiring and promoting from civil service test results. That is, Ohio
municipalities are required to make civil service appointments from among the top ten
scoring candidates on the applicable exam.
However, prior to administering the exams, the Youngstown council enacted an
emergency ordinance which authorized the council to waive the rule of ten and instead
select candidates from the minority list who did not score in the top ten. The council cites
R.C. 124.90 as its authority to waive the rule of ten—or any other part of chapter 124—by a two-thirds vote if the waiver is deemed necessary in order to “comply with any
At a public meeting of the U.S. Commission on Civil Rights on April 16, 2010 the Commission voted 6-2
to send this letter.
federal law or any rules adopted pursuant to federal law concerning discrimination in
employment.” The complete text of R.C. 124.90 is as follows:
Waiver of federal law concerning discrimination in employment.
(A) Any municipal corporation may, by a two-thirds vote of its legislative
authority, waive, suspend, or alter any of the provisions of this chapter as
they apply to that municipal corporation if such waiver, suspension, or
alteration is necessary for the municipal corporation to comply with any
federal law or any rules adopted pursuant to federal law concerning
discrimination in employment.
(B) Any municipal corporation that has adopted the provisions of this
chapter as part of its charter may, by a two-thirds vote of its legislative
authority, waive, suspend, or alter any of the provisions of this chapter so
adopted if such waiver, suspension, or alteration is necessary for the
municipal corporation to comply with any federal law or any rules adopted
pursuant to federal law concerning discrimination in employment.
(C) A municipal corporation may not under this section make any waiver,
suspension, or alteration of provisions of this chapter that relate to matters
of promotions within the municipal civil service.
There is no federal law pertaining to employment discrimination that would
require the Youngstown council to waive the rule of ten in favor of a racially bifurcated,
dual list hiring scheme. As far as we have been able to ascertain, the only possible “law”
that might have required such compliance was a 1986 consent decree which expired four
years later.
Since 2005, Youngstown has been involved in expensive and protracted litigation
concerning the city’s past use of its racially bifurcated, dual list system. A pending case
was filed in the Court of Common Pleas in 2005. The plaintiff, a white male, sued for
discrimination because minority and female candidates with lower scores were hired
while he was not.
In that lawsuit, the Court of Common Pleas refused to grant former Mayor
McKelvey immunity in the event the City is found guilty of discrimination. When the
City appealed the decision, the Court of Appeals for the Seventh District upheld that
portion of the lower court’s ruling.2 It is therefore likely that Youngstown officials who
continue to use the dual list system will be held personally liable in the event of future
discrimination lawsuits.
According to press accounts, Youngstown’s legal staff has recognized that recent
court decisions do not support racially bifurcated scoring and ranking systems. Yet the
2 State ex rel. Conroy v. Williams, 923 N.E.2d 191, 200, ¶ 47 (Ohio Ct. App. 2009) (“In summary, the
judgment of the trial court is affirmed with respect to McKelvey, because, in the event that Appellee can
prove that McKelvey committed race and sex discrimination, he may not avail himself of sovereign
immunity pursuant to R.C. 2744.03(A)(6)(c).”).
3
Youngstown Council has chosen to ignore the advice of its own legal staff on this
matter.3
As a further example, in 2006 the United States Court of Appeals for the Fifth
Circuit ruled that Shreveport, Louisiana’s use of a dual list system very similar to
Youngstown’s had resulted in illegal discrimination against white males.4
While Ohio does not fall within the jurisdiction of the Fifth Circuit, that decision
reflects the current interpretation of discrimination law by a number of district and
federal courts as well as by the U.S. Supreme Court.
Philadelphia, for example, has for many years used a controversial, racially
bifurcated, dual list system for its firefighters which is similar to Youngstown’s. This has
led to a great deal of disharmony within the Philadelphia fire department, suspicion
among firefighters regarding the qualifications of their colleagues and, inevitably,
lawsuits.
Last year the City of Philadelphia paid out $275,000 in a settlement with five
white firefighters who had sued the city for discrimination in 2007.5 In addition to paying
the settlement funds to the aggrieved firefighters, as well as its own legal costs,
Philadelphia also agreed at that time to address the many issues raised in the suit.
It was predictable that Philadelphia would face more lawsuits before the dual list
system could be replaced with a more legally defensible and less divisive system. One of
the original plaintiffs in the 2009 settlement filed a new lawsuit in January 2010 alleging
that fire department officials retaliated against him for participating in the original
discrimination lawsuit.6 This means more litigation, more legal expenses, lower morale
for Philadelphia’s firefighters—and it raises the possibility of putting public safety at
risk.
Youngstown’s own legal staff can, and probably already has, identified dozens of
additional, similar examples of expensive, time-consuming litigation against
municipalities for maintaining separate scoring or evaluation criteria for white male
employees on the one hand and minority and female employees on the other.
In July 2009, the U.S. Supreme Court in Ricci v. DeStefano7 struck down a
decision by New Haven, Connecticut, to disregard the results of its firefighter promotion
tests merely because the city felt that too few minorities would have been eligible for
3 Editorial, Council is ignoring the law and putting the city at risk, VINDY.COM, Feb. 5, 2010, available at
http://www.vindy.com/news/2010/feb/05/council-is-ignoring-the-law-and-putting-/.
4 Dean v. City of Shreveport, 438 F.3d 448, 462-63 (5th Cir. 2006) (“Appellants claim that by separating
applicants’ Civil Service Exam Scores by race, the City in effect uses different cutoff scores on the basis of
race. We agree that the City’s hiring process violates the plain language of section 2000e-2(1) [of Title VII,
Civil Rights Act of 1964, as amended].”).
5 Jeff Shields, Philadelphia Settled Firefighters’ Discrimination Suit, PHILADELPHIA INQUIRER, July 1,
2009, available at
http://www.philly.com/inquirer/local/pa/20090701_Phila__settled_firefighters__discrimination_suit.html.
6 Robert Moran, Philadelphia firefighter files 2d racial-bias suit, PHILADELPHIA INQUIRER, Jan. 13, 2010,
available at http://www.philly.com/philly/news/local/81300697.html.
7 129 S.Ct. 2658 (2009).
4
promotion and purportedly feared a disparate impact lawsuit. According to the Supreme
Court, unless there was strong evidence that the tests discriminated against minorities, a
city could not pass over non-minorities who scored high enough on the exam to be
entitled to promotion. The issue turns on whether the city has a strong basis in evidence
to believe minorities would win a disparate impact lawsuit.8 If not, the city will face
disparate treatment liability from white job candidates and will probably lose.
In writing for the majority in Ricci,9 Justice Kennedy cited the relevant section of
the Civil Rights Act of 1991 which expressly prohibits “selection or referral of applicants
or candidates for employment or promotion, to adjust the scores of, use different cutoff
scores for, or otherwise alter the results of, employment tests on the basis of race, color,
religion, sex, or national origin.”10 This prohibited practice is widely known as “race
norming” and it is precisely the practice in which Youngstown is engaged.
There are better ways than using racially bifurcated hiring lists that Youngstown
can use to expand the pool of qualified minority and female applicants which do not
invite legal challenge and which are far less divisive. Youngstown has, in fact, taken
some initiative in this very direction.
For example, we laud efforts made to increase the pool of applicants and test
takers through expanded recruitment and outreach, including special efforts to ensure that
minority applicants are not disadvantaged, whether that disadvantage resulted from
historical methods of recruitment or otherwise.11 It has been reported that the police
embarked on these initiatives because they recognized that: (1) Historically, a higher
proportion of police applicants and test takers have been white, which accounts, at least
in part, for the larger proportion of whites with high scores; and (2) Youngstown police
have acknowledged that in the past they have had trouble recruiting blacks because of
their perception of the police.12
Other options Youngstown could consider include offering scholarships and other
training opportunities on a race-neutral basis so that all applicants can better prepare for
the exam. Youngstown could help potential applicants of all racial and ethnic
backgrounds and both sexes win scholarships for criminal justice studies in college, and
the city could mentor promising students. All of these efforts would be legitimate means
of increasing the pool of qualified applicants.
8 Id. at 2676 (“If an employer cannot rescore a test based on the candidates' race, [42 U.S.C.] § 2000e-2(l),
then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a
more desirable racial distribution of promotion-eligible candidates—absent a strong basis in evidence that
the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact
provision.”) (citation omitted).
9 See 129 S.Ct. at 2676.
10 42 U.S.C. § 2000e-2(l).
11 See Patricia Meade, Youngstown Police Sergeant: Strengthen minority recruitment, VINDY.COM, Mar.
13, 2006, available at http://www.vindy.com/news/2006/mar/13/youngstown-police-sergeant-strengthenminority/.
12 We do not have sufficient information to pass on the validity of these reports, but we simply note that
such factors might well justify increased efforts to expand the pool and diversity of applicants that compete
for the positions at issue.
5
Youngstown’s dual list hiring policy is inherently discriminatory and cannot be
justified as necessary to conform with federal law. Indeed, it appears to violate federal
law, and it is unfair and divisive. As the Ohio courts have recently suggested, city
officials could be held personally liable if the city loses a discrimination case resulting
from the dual list hiring policy. As the U.S. Supreme Court and many lower courts have
ruled, it is not permissible to discriminate against one race in order to benefit another
race. Accordingly, we urge you to rescind your dual list policy and instead adopt raceneutral
means of ensuring a wide range of applicants who can compete on an equal
footing for hiring and promotion.
Sincerely,
Gerald E. Reynolds
Chairman
Abigail Thernstrom
Vice Chair
Peter Kirsanow
Commissioner
Ashley Taylor, Jr.
Commissioner
Gail Heriot
Commissioner
Todd Gaziano
Commissioner
Cc: State Attorney General
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