New Haven all over again? Justice Department’s Civil Rights Division sues New Jersey over police exam

Matt Purple Fellow, Defense Priorities
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The Justice Department Civil Rights Division announced Thursday that it is suing the state of New Jersey over a police examination that it claims discriminates against African-American and Hispanic candidates.

The exam, a written test that New Jersey police officers must pass in order to advance to the rank of sergeant, quizzes candidates on state and local laws.

“This complaint should send a clear message to all public employers that employment practices with unlawful discriminatory impact on account of race or national origin will not be tolerated,” said Thomas Perez, assistant attorney general for the Civil Rights Division. “The Justice Department will take all necessary action to ensure that such discriminatory practices are eliminated and that the victims of such practices are made whole.”

It all sounds eerily familiar. Last summer, 20 New Haven firefighters were thrown under the spotlight thanks to a similar lawsuit. After the firemen passed a written exam in order to advance to the rank of captain, the city threw out the results because too few African Americans scored well. Their lawsuit sparked a political firestorm that threatened to derail the nomination of Sonia Sotomayor, Barack Obama’s Supreme Court nominee, who had ruled against the firefighters as a circuit court judge. Ricci v. DeStefano went all the way to the Supreme Court, which narrowly ruled in favor of the firefighters in a 5-4 decision.

White officers pass the New Jersey test at a rate of 89 percent, as opposed to 77 percent of Hispanic candidates and 73 percent of African-American candidates.

The Justice Department lawsuit is demanding that the New Jersey Civil Service Commission, which administers the test, promote and offer back pay to minority candidates. They also want the state to find a more equitable means of testing potential police sergeants, although they didn’t call for CSC to get rid of the exam outright.

“Our suit does not have an issue with a written exam period, but we do believe it has a disparate impact on African-American and Hispanic candidates,” Alejandro Miyar, a spokesman at the Justice Department Civil Rights Division, told The Daily Caller.

Disparate impact is a little-known legal term that describes an employment practice that isn’t intentionally discriminatory, but which results in a discriminatory outcome. It is forbidden under Title VII of the Civil Rights Act of 1964. Disparate impact was first described by the Supreme Court in the 1971 case Griggs v. Duke Power Co. which found that “good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.”

In its suit against New Jersey, the Justice Department is charging that, while the state might not have had a racist intent when they gave the test, the results themselves are discriminatory and have a disparate impact on minorities.

Justice is also saying that the state hasn’t demonstrated that the written exam is a necessary requirement for the job of police sergeant. If this could be shown, disparate impact wouldn’t apply.

In the Ricci v. DeStefano case, New Haven threw out the firefighters’ test results because the city feared a disparate impact lawsuit.

But the Supreme Court disagreed, concluding that New Haven’s actions had violated the true purpose of Title VII – ensuring that no one faced racial discrimination at the workplace.

Miyar said that the lawsuit against New Jersey was very different from the New Haven case because the city of New Haven was found to have intentionally discriminated against white police officers by discarding their test results, something that hasn’t occurred in New Jersey. Authorities in New Jersey also didn’t act out of fear of a lawsuit, as in Connecticut.

“The Ricci case has no bearing on the viability of our complaint,” he said.

But while the New Jersey police haven’t rescinded any promotions, they have modified their written exam in the past in an attempt to promote more minorities.

And this is just a small part of a 35-year history of troubles with minority police recruitment for the state.

In 1975, the New Jersey police entered into a consent decree with the Department of Justice, pledging to step up its hiring of Hispanic and African-American candidates. This was terminated in 1992 once minorities made up 14 percent of state police.

Four years later, the National Association for the Advancement of Colored People (NAACP) sued the state police, claiming their hiring practices discriminated against minorities. The police made peace with the NAACP and began aggressively recruiting at venues frequented by African-Americans and Hispanics.

But as of last year, eight out of 10 state troopers were minorities and the NAACP was still grumbling. “They have not been very successful,” James Harris, president of the New Jersey Conference of the NAACP, told the Newark Star-Ledger last year. “Not as successful as we had hoped, and not as successful as we agreed.”

The lawsuit comes as the Justice Department Civil Rights Division seeks to become more active. Perez has said he was stunned at the lack of hate crimes prosecutions under George W. Bush and has expanded the size of the Civil Rights Division by 102 people.

The New Jersey Attorney General’s Office and the New Jersey Civil Service Commission declined to comment for this story.