Monday, June 16, 2003
Test scores now rule instead of diversity
Their family names are storied in the Boston Fire Department: Pierce, Stapleton. But unlike their father and uncle, who served as city fire commissioner, these men have been shut out of the profession that runs in their blood.
Despite nearly perfect scores on civil service exams and family connections, Martin Pierce III and Kevin and Edward Ferent have been unable to land jobs as Boston firefighters. But now, because of a federal appeals court ruling dismantling the city's 29-year-old affirmative action policy, they and dozens of other white applicants passed over for minorities may get their wish.
A Globe analysis of the March 27 court decision and the results of civil service exams administered within the past three years shows that about 70 white men and women who were bypassed in favor of lower-scoring minorities now have legal standing to claim jobs. These applicants would have been hired had the city abandoned affirmative action in 2000 when, the court ruled, racial parity had been achieved in the fire department.
Meanwhile, hundreds of other white applicants are in line to claim future firefighter jobs in the Boston Fire Department, a dynamic that, over time, will disrupt a racial balance 30 years in the making.
''In 20 years, if no other mechanism is put in place, the department is going to go back to what it was in the '80s - it'll be 90 percent white,'' said Karen Miller, president of the Society of Vulcans, an association of minority firefighters.
In an interview last week, Fire Commissioner Paul Christian said he will do everything possible to keep the department diverse. That means heavy recruiting, particularly among minorities in the armed services, who would jump to the top of the hiring list as veterans.
''We want to reflect the city,'' Christian said. ''We don't want to slide back. We want to send the message that this is a welcoming place. The good old boy network is not in place.''
When the hiring consent decree was first implemented in 1974, mandating that one minority candidate be hired for each white, blacks and Latinos represented just 1 percent of rank-and-file firefighters in the Boston Fire Department, though they made up 23 percent of the city's population. By 2000, however, minority firefighters constituted 39.9 percent of the firefighting ranks - higher than their 38 percent representation in the city as a whole - making the affirmative action program unnecessary and illegal, the federal appeals court ruled.
Despite the hiring gains for minorities over the past three decades, the upper ranks of the Boston Fire Department remain largely white. Minorities hold only 38 of 358 higher-level jobs as captains, lieutenants, and deputies.
Had the fire department not used its one-for-one affirmative action policy, only 11 percent of the firefighters chosen in 1999 and 2000 would have been minorities, statistics show. And of the firefighters hired in 2001 and 2002, only 14 percent would have been minorities, the analysis shows. No firefighters have been hired yet this year.
If that hiring pattern continues, within 30 years - roughly the same period of time it took to establish racial parity in the department - the rank-and-file firefighting force will be more than 85 percent white, the Globe analysis found.
''We'll revert back to the way it was before the consent decree and that bothers me,'' said attorney Toni Wolfman, who represents the NAACP, whose 1974 lawsuit triggered the affirmative action policy. ''The Boston Fire Department has such a troubled track record. It's taken years for whites and minorities who came on under the consent decree to work together in relative peace.''
As recently as the mid-1990s, a letter tucked into the locker of a black firefighter working in Hyde Park used a racial epithet while declaring that blacks did not belong in firefighting.
Test score data provided by the state Human Resources Division under the Freedom of Information Act show that about 70 white men and women who scored 99 or 100 on the 1998 and 2000 civil service exams for firefighter were not hired by the Boston Fire Department at the same time that minority applicants with scores as low as 91 were. Each test remains in effect for three years. Candidates hired in 2000, for example, took the test in 1998.
''For those people, the brass ring was right there and they couldn't grab it,'' said Deputy Chief Joseph Finn, who oversees hiring. ''Their opportunity has come.''
According to lawyers familiar with discrimination cases, these men and women will probably have to sue - within three years of the date they were turned down - in order to be considered. They also may be able to appeal to the state Human Resources Division; the process is still unclear.
Christian said he expects to fill the next openings with applicants from this group. The court order specified that no minorities could be fired to make way for whites previously passed over.
Several unsuccessful candidates have already consulted lawyers. A group of 10 applicants who scored 99 may sue together, said their lawyer, Edward Cooley.
''I want the job. I've always wanted the job since I was a kid,'' said Edward Ferent, 31, a South Boston lobsterman whose uncle, Leo Stapleton, was fire commissioner in the 1980s. Ferent and his brother, Kevin, may both be eligible for jobs.
''I'm so excited. I feel maybe now we'll finally get through,'' said Ferent, who took the test five times and scored 99s and 98s. ''I'd tell my wife, `I got a 99' and she'd say, `That's great,' and I'd have to tell her, `No, it isn't. I don't have a shot.'''
Since 2000, no white applicant who scored lower than 100 has been hired as a Boston firefighter, unless he or she was a veteran or the son or daughter of a firefighter killed or disabled at work, the Globe analysis found. Veterans and children of fallen or disabled firefighters are given special preference and need score only 70 to jump to the head of the hiring list.
Even some white candidates with scores of 100 were not offered jobs. All slots available for white applicants went first to those with preferences, then to those who scored 100, in alphabetical order. The department ran out of jobs before it reached some candidates with perfect scores.
City officials, who had supported continuing the affirmative action policy, said they do not intend to appeal the decision to the US Supreme Court, which is considered unlikely to reverse the federal appeals court panel, given that minority representation in the fire department now mirrors that of the general population in Boston. The fire department ruling is one in a series of court decisions in recent years narrowing or reversing affirmative action programs nationwide.
For now, only the five men who successfully challenged the now-abandoned affirmative action hiring policy in court are in line to get a job. They and their lawyers believe they will be hired with back pay and seniority.
''I want to get squared away and be placed in the [fire] academy,'' said Sean O'Brien, 35, a Dorchester emergency medical technician and one of the five plaintiffs. ''I've been taking these tests since 1987 and to look too far ahead may jinx it.''
Given the low percentage of minorities both taking the test and scoring high enough to be hired, advocates for minority firefighters say, fire department officials should focus on two fronts - recruitment and revising the test - to keep the firefighting force from reverting to its largely white past.
The Bridgeport, Conn., Fire Department faced a similar issue in the early 1980s when a court-ordered affirmative action plan was put in place following a legal challenge. Then, only one black served as a firefighter, although 50 percent of city residents were minorities.
Fire officials worked with Connecticut's civil service administration to come up with a new set of hiring criteria, according to Ronald Mackey, president of the Firebirds Society of Bridgeport, a union representing minority firefighters.
Today, hiring relies not on a single multiple-choice test, but on a series of three exams. Candidates who score a threshold passing grade move on to a physical agility test. If they pass that test, they take an oral exam graded by firefighters from outside of Bridgeport. The result is a firefighting force that reflects the city's demographics, Mackey said.
''If Boston was truly interested in diversity, they would get away from state testing and do their own,'' Mackey said.
In addition, Bridgeport's recruiting is done by minority firefighters. ''White firefighters don't need to be recruited,'' said Mackey. ''They have a very good old-boys network of sons and cousins and brothers and they're going to know about a test. Up in Boston we're talking about plenty of nepotism among the Irish firefighters and the Irish police. And that's not derogatory, that's a positive, they want to take care of their own. The problem is getting the word out to people of color and women. This is the first generation for us.''
Christian said he will keep using the statewide civil service firefighter test - the exam used by all cities and towns covered by civil service - because he believes he has no other choice. The Human Resources Division's general counsel, John Marra, said the city could possibly craft an alternative test, with the state agency's approval.
When the original consent decree was implemented in 1974, the judge said the exam discriminated against minorities and ordered the city and the state to devise a test on which all candidates could perform well. That hasn't happened, the lawyers said.
''The court ordered them to do two things: redesign the test to make it nondiscriminatory, and have this [one for one] quota system,'' said Harold Lichten, an attorney who represented the five plaintiffs who challenged the affirmative action policy. ''As it turns out, the quota system has been in effect for more than 25 years, but no one has done a thing to come up with a valid exam. If they continue with the current exam, they run the serious risk of blacks again being excluded from hiring in disproportionate numbers and another lawsuit.''
http://www.boston.com/dailyglobe2/167/metro/Hiring_policy_shift_has_whites_eyeing_fire_jobs+.shtml