BOSTON (CN) — Black and Hispanic police officers did not perform as well as whites on the leading sergeants-promotion test in Massachusetts, but the First Circuit upheld it anyway.
Despite the disparate impact within Boston and other communities that use the test, a divided three-judge panel said last week that it did not see a better alternative.
The 41-page lead opinion lays out the results dispassionately.
While the departments promoted 9 out of 224 black and Hispanic exam-takers in 2005, other test takers won promotions at a rate of 57 from 401.
The numbers got worse 2008, with just 1 promotion out of 213 black and Hispanic test-takers, compared with 25 of 291 promotions among other candidates.
Pedro Lopez was the lead plaintiff behind the lawsuit. He and the other officers appealed when U.S. District Judge George O'Toole sided with the departments after an 18-day federal bench trial.
To defend their exams, the police departments tapped psychologist James Outtz for expert testimony.
Outtz found problems with the written portion of the exam, but he said another component of the test called the education and experience section compensated for that deficiency to validate the exam.
Writing for the appellate majority last week, Judge William Kayatta said the officers challenging the test needed to identify an alternative that would have improved upon it.
By contrast, "the officers' scattershot listing of alternatives without any developed rejoinder to Outtz's testimony concerning the challenge posed by the selection ratios in 2005 and 2008 fell short of this mark," the May 18 ruling states.
Judge Juan Torruella wrote in dissent that the court should not have let the test stand without having Boston and the other communities offer evidence of positive results from the promotions exams.
Torruella also saw little evidence that the education and experience section of the exams had specific objective criteria.
Although the lawsuit named Lawrence, Methuen, Lowell, Worcester and Springfield in addition to Boston as defendants, all parties agreed that a judgment in favor of Boston could be fairly applied to the other defendant municipalities, according to the opinion.
Despite the limitations of the exams, the communities adopted them as a means of combating long-running problems of corruption and patronage in many urban police departments.
"As far back as the nineteenth century, a subjective hiring scheme that hinged on an applicant's perceived political influence and the hiring officer's subjective familiarity with the candidate (or the candidate's last name) was seen as the primary culprit behind a corrupt, inept, and racially exclusive police force," Kayatta wrote.
The exams in this case, which were created in 2005 and then updated in 2008, featured an 80-question written exam and an "education and experience," rating, both of which were graded on 100-point scales. The written exam counted for 80 percent of the final score, while the education and experience components counted for 20 percent. An overall score of 70 was needed for promotion.
Boston found success with its sergeants exam this month, but a federal judge ordered the city last year to revise a discriminatory exam for promoting officers to lieutenants.
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