A lawsuit in the making: How a 1991 ruling set the stage for an ACLU suit last week | Blogh

Wednesday, August 29, 2012

A lawsuit in the making: How a 1991 ruling set the stage for an ACLU suit last week

Posted By on Wed, Aug 29, 2012 at 1:37 PM

There's a lot of talk going on about the ACLU's lawsuit alleging discriminatory hiring practices at the Pittsburgh Bureau of Police. I have a column about it in today's issue, and the Post-Gazette editorial board opined on it as well.

Here's the thing that has been left out of the discussion so far: None of this is a surprise. Today's dismal hiring rates were set in motion more than 20 years ago, and just about everyone who was paying attention -- including the guy who made it happen -- saw what was coming.

In fact, as spelled out here yesterday, the lack of diversity will almost certainly get worse, because recent recruiting classes are less diverse than the roster of veterans they are being added to. So how did those veterans get on the force in the first place? And why is that no longer happening? That's what we look at below.

Probably the closest the city got to successfully diversifying the police force was in the period of 1975 through 1991, when the force was under a consent decree crafted by federal judge Gerald Weber. The "Weber decree" was crafted in response to claims that the city's hiring processes were discriminatory: Weber had found that while 1 in 6 members of the city's workforce were black, less than 1 in 15 members of its police force were. And the problem was getting worse: Of the officers hired in the previous half-decade, Weber found, fewer than 1 in 20 were black.

Weber's solution was blunt: The city had to maintain multiple lists of eligible job-seekers -- one list for white males, one for black males, one for white females, and one for black females. And the city would have to hire candidates in batches of four, with one candidate coming from the top of each list.

As you might expect, white males chafed under the system. Eventually, five of them sued to overturn Weber's decree, arguing that it constituted reverse discrimination. In March 1991, federal Judge Maurice Cohill sided with them in a 40-page opinion.

Cohill's decision to overturn the decree surprised even the lawyers trying to topple it. But those who'd benefited from the quota wouldn't be surprised by what has happened since: "Maybe it won't happen all at once," one officer told the Post-Gazette after Cohill issued his ruling, "but I think the city would backslide to the situation it had before."

Which appears to be pretty much what's happening.

As today's Post-Gazette editorial notes, since the injunction was lifted, representation of blacks on the police force has dropped from 26 percent to 16 percent today. And as noted here yesterday, recruiting classes are as lacking in diversity today as they were in Weber's time. Then as now, blacks have made up less than 5 percent of recent recruiting classes.

Cohill himself acknowledged the danger, even as his ruling opened the door to it. As his opinion notes, experts had testified "that if the current quota hiring system were discontinued, the number of white males hired as police officers would increase, while the number of blacks and women hired would decrease significantly." At the conclusion of his ruling, Cohill flatly acknowledged that there was "a persuasive case that reliance on examination scores as the primary factor in hiring will favor whites and males over minorities and females."

So why toss out the quota, leaving procedures in place even if they could result in lopsided outcomes? Because, Cohill ruled, as long as their wasn't an intention to discriminate, he had no power to compel a particular outcome:

[T]here is no doubt that the City's hiring procedures would have a disparate impact on blacks absent the Weber injunction. But there is no direct evidence that the City intentionally uses the hiring process as a device for racial discrimination ... We therefore find no basis ... to support continuation of the injunction.

Testing and other procedures, he decided, had been reasonably tailored to figure out who would make the best officer. And since "[w]hite males as a group consistently achieve the highest scores" -- and made up most of the test takers -- he expected they "would dominate the top of the [applicant] list."

(The uncomfortable question, of course, is why white males tested better, and were more likely to take the tests: Cohill notes that "The only reason offered by any of the witnesses ... was [one expert witness'] suggestion that white males are more 'culturally attuned' to work as police officers.")

And while Cohill wasn't obliged to find better ways of boosting minority recruitment, he did note one possible avenue -- one that should sound familiar by now. The city could, he wrote, try harder to recruit women and minorities:

[P]ublic-interest groups have taken an interest in the City's hiring procedures and have exercised their influence to try to persuade the City to make greater efforts to hire and promote qualified women and minorities. We hope these efforts will continue.

That, in essence, is the approach the city has taken for the past 20 years. Mayor Luke Ravenstahl and his predecessor, Tom Murphy, both sought to expand recruitment by partnering with churches and community groups. But however sincere those efforts, they clearly haven't been enough. And that's why we find ourselves here today.