Shield Club v. City of Cleveland

• Citation: 370 F. Supp. 251
• Decision Date: 21 December 1972
• Docket Number: Civ. A. No. C 72-1088.
• Parties: The SHIELD CLUB et al., Plaintiffs, v. CITY OF CLEVELAND et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

370 F. Supp. 251

The SHIELD CLUB et al., Plaintiffs, v. CITY OF CLEVELAND et al., Defendants.

Civ. A. No. C 72-1088.

United States District Court, N. D. Ohio, E. D.

December 21, 1972.

Edward R. Stege, Jr., Isabelle Katz Pinzler, Legal Aid Society Public Defender, James L. Hardiman, Hardiman, Becker, Feld & Riffe, Russell T. Adrine, Cleveland, Ohio; Jeffry A. Mintz, New York City, for plaintiffs.

Malcolm C. Douglas, Nicholas M. DeVito, Wayne C. Dabb, Jr., Law Department, City of Cleveland, for defendants. Philip C. Barragate, Cleveland, Ohio, for Richard J. Faragher.

MEMORANDUM AND ORDER

WILLIAM K. THOMAS, District Judge.

With its 1970 eligibility list for patrolman expiring, the Cleveland Civil Service Commission conducted entrance examinations for patrolman, male and female, on July 15, 1972. From the list that has been compiled there is an urgent need to provide eligible candidates to fill new positions of patrolman in the Cleveland Police Department. One hundred and eighty-eight patrolmen will be hired from funds, 75% of which will be supplied by federal grants under the Impact Cities Program of the Law Enforcement Assistance Administration (LEAA). It is not clear in the record whether the six months' duration of these grants will be extended. LEAA's original 3-year congressional funding program has 18 months remaining.

The Cleveland Impact Cities Program has the laudable goal of reducing "street crime and burglary in Cleveland, Ohio." To accomplish this the tactic is to attack these types of crime by creating a task force and special squads composed of experienced officers from basic patrol. The 188 new police officers will be essential replacements in basic patrol. Among other objectives the program is designed to provide:

A high visibility patrol concentrating on impact crimes; affording additional protection, instant response and a comforting high visibility factor to those residents of the high crime areas.

Respect for law, however, is achieved not just by a night stick or with counterforce. It is just as important that the constitutional rights to equal protection of the laws be recognized and guaranteed in the selection and hiring of new policemen and in all the personnel practices of the Cleveland Police Department.

A complaint was filed on October 12, 1972, by The Shield Club, an organization composed principally of black police officers, and by individual plaintiffs who are black police officers, individuals who took the 1972 examination, and other interested persons. The defendants are the City of Cleveland, its Chief of Police, the Director of the Impact Cities Program, and members of the Cleveland Civil Service Commission. The complaint "challenges a broad range of practices used by the officials in the recruitment, testing, screening and hiring of new patrolmen, and in the assignment, treatment and promotion of current police officers." It also claims that the examination administered by the Civil Service Commission on July 15, 1972, has had a racially discriminatory effect on blacks and Hispanics. Separated by the court from other issues in the case, this issue has been tried in hearings that began December 8, 1972.

Oral arguments were heard December 19th. Late that afternoon this court determined that it had jurisdiction to hear and determine this case; it certified the class qualified to bring this action. The court concluded that the evidence created a prima facie case that the battery of tests constituting the examination of July 15, 1972, had a racially discriminatory impact upon the blacks and Hispanics who took the examination. Of all persons who took the examination, 23% were black and Hispanic. Of the total number of persons who failed the examination, 64% were black and Hispanic. Of the total number of blacks and Hispanics who took the test, 26.3% failed; but of the whites who took the test, only 4.5% failed.

Under prevailing case law this prima facie showing of racial impact shifted the burden to the defendants to show a manifest relationship between the tests given and the position of patrolman. The source from which that burden was derived is Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. * * * *

. . . Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question. Id. at 432, 91 S.Ct. at 853.

It is not shown that the racially discriminatory impact of the tests is intentional. On the contrary, the Civil Service Commission President testified:

My entire goal was to get the kind of test that would not keep out minority people.

However, lack of discriminatory intent does not offset the discriminatory impact.

Good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as "built-in head-winds" for minority groups and are unrelated to measuring job capability. Griggs, supra 432, 91 S.Ct. 854.

Courts have been quick to apply Griggs to public employment cases involving policemen, firemen, and teachers. Thus, Castro v. Beecher, 459 F.2d 725, 732 (1 Cir. 1972) declares:

The public employer must, we think, in order to justify the use of a means of selection shown to have a racially disproportionate impact, demonstrate that the means is in fact substantially related to job performance. It may not, to state the matter another way, rely on any reasonable version of the facts, but must come forward with convincing facts establishing a fit between the qualification and the job. In so concluding, we rely in part on the Supreme Court's opinion in Griggs v. Duke Power Co., supra.

The court concluded and now reaffirms that because it has not yet been demonstrated that the tests included in the examination are job related the defendants have failed to overcome the prima facie showing that the tests have a racially discriminatory impact. Griggs v. Duke Power Co., supra; Castro v. Beecher, supra; Commonwealth v. O'Neill, 345 F.Supp. 305 (D.C.Pa.1972); Chance v. Board of Examiners, 458 F.2d 1167 (2 Cir. 1972).

Having reached those conclusions the court decided that the plaintiffs were entitled to injunctive or mandatory relief in some form. The final form of relief was reserved until after a further hearing, including the taking of additional testimony from Dr. Byron Svetlik, Director of Psychological Research Services, Case Western Reserve University. That hearing has now been held and the court now completes its ruling begun last Tuesday. In a constitutional sense the plaintiffs have established that the class they represent will be irreparably harmed if some relief is not granted. Yet the court has endeavored to balance the equities, taking into account the interests of all, including the public interest in fixing the relief that the record warrants.

The court has considered and studied all alternative forms of relief that offer a workable and responsive remedy. Only tough choices, each freighted with some weakness and the risk of individual or group inequities face the court. These agonizing deliberations have proceeded under the same pressures of time that have confronted the parties and counsel throughout the preparation, trial, and argument of this cause.

However, once it was decided that the defendants were not entitled to a dismissal and judgment, the most clear-cut form of available relief would be to grant a total injunction against any use of the eligibility list until a court-ordered job validation study of the test battery is undertaken and completed. But it is evident that if not used immediately the federal grants may be withdrawn. In the meantime Cleveland, and all of its citizens, would have grievously suffered from crimes of violence that may reasonably be expected to be prevented by putting the Impact Cities Program into effect. Thus, the court, after balancing the equities, has concluded that it is necessary to grant affirmative relief.

The court has considered an order that would enjoin permanent appointments from the eligibility list. The court has also considered the addition of points to the score of each black and Hispanic testee to compensate for the lower mean scores registered in the verbal, numeric, and pictorial reasoning tests. For different reasons unessential to this decision, each of these alternative forms of remedy has been found presently not feasible and unsatisfactory.

Plaintiffs have proposed that this court should order the appointment, from the eligibility list, of specified percentages of black and Hispanic persons in relation to their total representation in either the population of the City of Cleveland (38%) or in relation to the number of blacks or Hispanics who took the test (23%)....