608 F.2d 671 (6th Cir. 1979), 78-1163, Detroit Police Officers' Ass'n v. Young

Docket Nº:78-1163.
Citation:608 F.2d 671
Party Name:DETROIT POLICE OFFICERS' ASSOCIATION et al., Plaintiffs-Appellees, v. Coleman A. YOUNG, Mayor of the City of Detroit, et al., Defendants-Appellants.
Case Date:October 12, 1979
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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608 F.2d 671 (6th Cir. 1979)

DETROIT POLICE OFFICERS' ASSOCIATION et al., Plaintiffs-Appellees,

v.

Coleman A. YOUNG, Mayor of the City of Detroit, et al.,

Defendants-Appellants.

No. 78-1163.

United States Court of Appeals, Sixth Circuit

October 12, 1979

Argued June 12, 1979.

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Barry L. Goldstein, Washington, D.C., James R. Andary, Hall & Andary, Detroit, Mich., Lowell Johnston, Jack Greenberg, Patrick O. Patterson, O. Peter Sherwood, New York City, Roger E. Craig, Anna Diggs-Taylor, Detroit, Mich., Kathleen McCree Lewis, Dykema, Gossett, Spencer, Goodnow & Trigg, Detroit, Mich., for defendants-appellants.

Walter S. Nussbaum, Southfield, Mich., John F. Brady, Detroit, Mich., Donald J. Mooney, Jr., Paxton & Seasongood, Cincinnati, Ohio, for Detroit Police Officers' Ass'n.

Thomas H. Oehmke, New Detroit, Inc., Detroit, Mich., Robert A. Sedler, Wayne State University Law School, Detroit, Mich., for amicus curiae, New Detroit, Inc.

Stephen C. Washington, Dorothy Smith, Detroit, Mich., for amicus curiae, Michigan Coalition to Overturn Bakke Decision (MCOBD).

Marcia Cooke, Center for Urban Law, Detroit, Mich., for amicus curiae Wayne County Neighborhood Legal Services.

Jeanne Mirer, Detroit, Mich., National Lawyers Guild, for National Lawyers Guild (NLG).

Robert J. Reinstein, Abner W. Sibal, Gen. Counsel, Drew S. Days, III, Asst. Atty. Gen., Brian K. Landsberg, John C. Hammock, Equal Employment Opportunity Commission, Dept. of Justice, Washington, D. C., for amicus curiae, United States and Equal Employment Opportunity Commission.

Warren J. Bennia, New York City, for amicus curiae, Guardians of Michigan.

John A. Fillion, Gen. Counsel, Jordan Rossen, Edwin G. Fabree, Detroit, Mich., for amicus curiae, International Union, UAW.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Paul J. Spiegelman, Sp. Asst. Atty. Gen., Lansing, Mich., for amicus curiae, State of Michigan and Civil Rights Commission.

Henry Bernard Clay, III, Robert Hill, Lander C. McLoyd, Detroit, Mich., for amicus curiae, National Conference of Black Lawyers.

Ralph R. Smith, Germaine Ingram, Philadelphia, Pa., for amicus curiae, Citizens for Affirmative Action in Detroit (CAADET).

Ernest Goodman, Paul A. Rosen, Cooperating Atty. for the ACLU of Metropolitan Detroit, Detroit, Mich., Bette J. Huster, Richard T. Parker, Detroit, Mich., for amicus curiae, American Civil Liberties Union of Metropolitan Detroit.

Reuben A. Munday, Lewis, White, Clay & Graves, Detroit, Mich., for amicus curiae, Detroit Urban League.

Doug Korney, Detroit, Mich., for amicus curiae, Police Officers Association of Michigan.

John E. Jacobs, Detroit, Mich., Arnold Forster, Jeffrey Sinensky, Richard A. Weisz, New York City, for amicus curiae, Anti-Defamation League of B'Nai B'rith.

John A. Lyons, Troy, Mich., Bruce T. Leitman, Bloomfield Hills, Mich., for amicus curiae, Fraternal Order of Police State Lodge.

Myron Domsky, Patchogue, N. Y., for amicus curiae, International Conference of Police Association.

John Findley, Ronald A. Zumbrun, Sandra R. Johnson, Sacramento, Cal., for amicus curiae, Pacific Legal Foundation.

Arthur J. Harvey, Albany, N. Y., for amicus curiae, Police Conference of New York, Inc.

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John Ruckelshaus, Rex Killian, Indianapolis, Ind., for amicus curiae, Fraternal Order of Police National Lodge.

John J. Maguire, Hartman & Lerner, New York City, for amicus curiae, Patrolmen Benevolent Association of New York, Inc.

Richard P. Saslow, Detroit, Mich., for amicus curiae, Committee on Academic Non-Discrimination and Integrity.

Before CELEBREZZE, LIVELY and MERRITT, Circuit Judges.

LIVELY, Circuit Judge.

This appeal is from a judgment of the district court which permanently enjoined the defendants from continuing the operation of an affirmative action program by the Detroit Police Department. The plaintiffs are an association of police officers and a number of white Detroit policemen who were passed over for promotion to the rank of sergeant when black officers with lower numerical standings on the eligibility list received promotions. The district court found that the affirmative action program offended the equal protection clause of the Fourteenth Amendment and violated 42 U.S.C. § 1981, Section 601 et seq. (Title VI) of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. (1976), and Section 703(a) and (j) (Title VII) of the 1964 Act, 42 U.S.C. § 2000e-2(a) and (j) (1976). 1 The memorandum opinion of the district court appears at 446 F.Supp. 979 (E.D.Mich.1978). All defendants have appealed.

I.

It is undisputed that in 1968 the total black component of the Detroit police force was between four and five percent. The percentage of black sergeants and higher ranking officers was even less. 2 In the wake of tragic civil disturbances in Detroit in July 1967 the community's attention turned to improving race relations in Detroit.

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Widespread alienation of black residents from the Detroit Police Department was one problem identified by city leaders. Two groups, a Mayor's task force and a police advisory group, were formed to recommend changes in personnel policies which could contribute to the solution of this problem. The advisory group, the "Vickery Committee," was composed of personnel administrators and psychologists from private industry. Believing that "any incident involving the police might serve to incite a civil disturbance of the kind experienced in July, 1967," the Vickery Committee recommended to the Department the abandonment of certain qualifications for police employment it found "non-relevant to the actual requirements" of police work.

The Department's liaison with the Committee was Richard Caretti, who was assigned to the personnel section in September 1968. Caretti, who held the position of Deputy Director of Personnel and the rank of Commander at the time of trial, testified extensively. Though never trained as a psychologist, Caretti had both undergraduate and master's degrees in business administration with emphasis on police administration. Prior to his assignment to personnel work Commander Caretti had more than 15 years experience as a member of the Detroit police force, primarily as a precinct officer and detective.

Caretti testified that immediately after his assignment to the personnel section he became involved in a series of adjustments in the recruiting and hiring practices of the police department. These adjustments, which continued from 1968 through 1973, were intended to improve the ability of black candidates to negotiate the selection process successfully and make the selection procedure more accurately reflect the skills needed for the job of police officer.

For example, one of the early adjustments was the replacement of a 3 1/2 hour written entry level examination with a 12-minute test considered equally effective. This was an interim step recommended by the Vickery Committee. However, both the longer and shorter exams were essentially I.Q. tests which Caretti concluded did not properly measure the skills required of a police officer. He also felt that these tests incorporated cultural biases to the disadvantage of black applicants. The Department later abandoned the I.Q. tests altogether and in 1973 adopted a new test and a "differential regression curve" to grade it. The purpose of the scoring curve was to compensate for bias inherent in such tests by providing different formulae for determining the pass/fail point for white and black applicants.

Efforts to attract additional black candidates were also instituted. Physical requirements for employment, such as blood pressure standards, were changed because they were believed to exclude black candidates and yet had little value in determining physical suitability. Procedures for conducting background investigations of applicants were altered because they created opportunities for racial discrimination in the entry level screening process.

During the same period efforts were made to devise a "promotional model" for promotion from patrolman to sergeant that would be free of bias. The term "promotional model" refers to a total package of factors considered when a candidate stands for promotion. The most heavily weighted ingredient of the promotional model is a written examination. In 1968 the written promotion exam, like the entry level test, was essentially an intelligence test which principally gauged verbal ability.

Between 1968 and 1973 the Department adopted several different tests for promotions before one was specifically devised for it. Commander Caretti testified that the written examination used for promotion to sergeant in 1973, 1974 and 1976 was the "Furcon" exam which, like the 1973 entry exam, was developed at the University of Chicago. The witness stated that despite all efforts to eliminate bias the written promotional exams retained an adverse impact on black candidates. The examination for promotion to sergeant which was given in December 1973 produced a 72% Failure rate among black candidates and a 57%

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Failure rate among white candidates. For the November 1974 examination the black failure rate was 61%; that of the white candidates was 47%. The May 1976 failure rate was 58% For black and 47% For white candidates.

In addition to grades on written examinations the "promotional model" required consideration of other...

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