Officers for Justice v. Civil S. Com'n, C. & C. San Francisco

• Decision Date: 26 November 1973
• Docket Number: Civ. No. C-73-0657 RFP.
• Citation: 371 F. Supp. 1328
• Court: U.S. District Court — Northern District of California
• Parties: The OFFICERS FOR JUSTICE et al., Plaintiffs, v. The CIVIL SERVICE COMMISSION OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants.

371 F. Supp. 1328

The OFFICERS FOR JUSTICE et al., Plaintiffs, v. The CIVIL SERVICE COMMISSION OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants.

Civ. No. C-73-0657 RFP.

United States District Court, N. D. California.

November 26, 1973.

COPYRIGHT MATERIAL OMITTED

Thomas M. O'Connor, City Atty., Michael C. Killelea and Philip S. Ward, Deputy City Attys., San Francisco, Cal., for defendants.

Robert L. Gnaizda, Sidney M. Wolinsky, Jo Ann Chandler, Charles R. Lawrence III, Public Advocates, Inc., Lowell Johnston, William Bennett Turner, William E. Hickman, NAACP Legal Defense and Educational Fund, San Francisco, Cal., for plaintiffs; William H. Hastie, Jr., San Francisco, Cal., of counsel.

O'Byrne & Beirne, San Francisco, Cal., for intervenor, San Francisco Police Officers Ass'n, a corporation.

MEMORANDUM OF DECISION

PECKHAM, District Judge.

Plaintiffs bring this civil rights suit against the San Francisco Civil Service Commission and the Police Commission of San Francisco challenging, inter alia, the hiring and promotion procedures of the San Francisco Police Department. Plaintiffs invoke 42 U.S.C. §§ 1981, 1983; the Fourteenth Amendment to the United States Constitution; and provisions of the California state constitution. Plaintiffs invoke this court's jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(3), 1343(4), 2201. Intervening as a defendant is the San Francisco Police Officers' Association.

Plaintiffs now move for a preliminary injunction suspending the current use of written tests for both hiring and promotion. As an alternative to the current testing procedures, plaintiffs seek the imposition of ratio hiring of whites and minorities until defendants develop and validate adequate written tests. Defendants oppose this motion and move to dismiss the action.

Plaintiffs seek to bring this suit as a class action pursuant to Rule 23(a) and (b) of the Federal Rules of Civil Procedure.¹ The equitable relief which plaintiffs seek through the present motion will benefit all individuals similarly situated. Therefore, designation of the class of plaintiffs need not be determined at this time. Bailey v. Patterson, 323 F.2d 201, 207 (5th Cir. 1963); Bridgeport Guardians, Inc. v. Members of Bridgeport Civil Service Commission, 354 F.Supp. 778, 783 (D.Conn.1973), modified on other grounds, 482 F.2d 1333 (2nd Cir. 1973).

INTRODUCTION

This case presents extraordinarily sensitive issues for this court's determination. Plaintiffs, on one hand, properly seek vindication of their civil rights under both federal and state constitutions. They emphasize the great value of securing an end to any unlawful discrimination by the Police Department in both hiring and promotion. Minorities obviously benefit when their employment opportunities within a civil agency increase. In addition, all citizens profit when the city achieves a racially integrated police force of qualified individuals who are knowledgeable of the diverse problems of different ethnic groups and who are not prey to destructive hostility from minorities who feel excluded from full participation in city government life. Clearly, the general harmony of the community is enhanced by the city's obtaining a police force representative of its population. Defendants, on the other hand, justifiably fear court intervention in police hiring and promotion practices. They stress the complexity of designing employment policies and of selecting specific individuals for varying job categories. Federal court supervision of city employment policies, without question, cannot substitute for enlightened leadership by city and police officials. Court intervention, at best, stimulates concerned parties to develop and implement policies which not only comply with the law but also advance general community interests. In any case, court supervision can only be justified where there has been intentional or unintentional encroachment on individual rights secured by federal and state law.

These truisms indicate the delicate nature of the issue before this court. They of course, do not indicate whether, under federal law, preliminary relief in the present case is justified, or, if so, what form it should take.

Fortunately, numerous decisions by other federal courts in cases involving public employment discrimination provide this court with extensive, carefully reasoned discussion of the legal issues at stake in this case. Several courts of appeals have considered the legal doctrines involved in attacks on the hiring and promotion policies of city agencies, including police and fire departments. See, e. g., Bridgeport Guardians, Inc., et al., v. Members of the Bridgeport Civil Service Commission, 482 F.2d 1333 (2nd Cir. 1973); Commonwealth of Pennsylvania v. O'Neill, 473 F.2d 1029 (3rd Cir. 1973) (en banc); Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972); Chance v. Board of Examiners, 458 F.2d 1167 (2nd Cir. 1972); Carter v. Gallagher, 452 F.2d 327 (8th Cir. 1972) (en banc) cert. denied 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972). Also, many recent district court decisions elaborate on the types of equitable remedies which properly may be invoked once a finding of unlawful discrimination in public employment has been made. See, e. g., Davis et al. v. County of Los Angeles, et al., No. 73-63 WPG (C.D.Cal. June 7, 1973); Arnold et al. v. Ballard, et al., No. C-73-478 (N.D.Ohio May 14, 25, 1973); Harper v. Mayor and City Council of Baltimore, 359 F.Supp. 1187 (D. Md.1973).

DISCUSSION

1. The Showing of Discrimination

Plaintiffs' complaint seeks relief from sexual as well as racial discrimination, from the use of non-written tests as well as written tests in the selection procedures, and from the use of a seniority system. The motion presently before this court concerns only alleged racial discrimination resulting from the use of written tests and the seniority system.

Plaintiffs' challenges to the admission test and to the promotional examinations will be considered seriatim.

Plaintiffs attack the use of a general aptitude test as the test for admission into the police department. Applicants for the position of patrolman must pass this test before the enrollment process can proceed. Plaintiffs, alleging that the test does not relate to performance as a patrolman, contend that the examination has had an adverse effect on the opportunity of minority applicants to enter the police department.

Plaintiffs present impressive evidence to support this contention. Statistics compiled for defendants show significant disparities in the passing rates between whites and all others taking the exam. Data for the years 1969 to 1972 reveals that whites taking the admission test for patrolman passed the test with a frequency more than five times greater than minorities.² This disparity greatly exceeds the disparities existing in comparable cases in which courts have found that plaintiffs have established a prima facie showing of discrimination. See, e. g., Bridgeport Guardians, Inc., et al. v. Members of the Bridgeport Civil Service Commission, 482 F.2d 1333 (2nd Cir. 1973) (whites passed at 3½ times the rate for all others); Castro v. Beecher, 459 F.2d 725, 729 (1st Cir. 1972) (whites passed at more than two times the rates for any other group); Chance v. Board of Examiners, 458 F.2d 1167, 1171 (2nd Cir. 1972) (whites passed at 1½ times the rate for all others); Pennsylvania v. O'Neill, 348 F.Supp. 1084, 1089-1090 (E.D.Pa.1972), affirmed in relevant part 473 F.2d 1029 (3rd Cir. 1973) (en banc) (whites passed at more than 1¾ times the rate for all others). Also, a statistical comparison between the approximate proportion of minorities in the population of San Francisco and in the police department shows a grave disparity which suggests discriminatory hiring practices. The 1970 Census figures reveal that the city's population at that time was 14 per cent black, 15 per cent Latino, and 14 per cent Asian. The representation of these minority groups within the police department at present is 4.41 per cent for blacks, 4.05 per cent for Latinos, and 0.88 per cent for Asians.³ A few courts have held that a substantial disparity between the proportion of minorities in the general population and the proportion in a specific job classification—in itself—equals sufficient evidence to establish a prima facie showing of discrimination. E. g., Carter v. Gallagher, 452 F.2d 315, 323 (8th Cir. 1971), cert. denied 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972); Western Addition Community Organization v. Alioto, 330 F.Supp. 536, 539 (N.D.Cal.1971). Other courts have noted that such a disparity provides supporting evidence for a finding of discrimination. E. g., Bridgeport Guardians, Inc., et al. v. Members of the Bridgeport Civil Service Commission, 482 F.2d 1333, 1335 (2nd Cir. 1973); Castro v. Beecher, 334 F.Supp. 930, 935-936 (D.Mass.1971); modified 459 F.2d 725 (1st Cir. 1972). Cf. McConnell Douglas Corp. v. Green, 411 U.S. 792, 805 n. 19, 93 S.Ct. 1817, 36 L.Ed. 2d 668.

Plaintiffs, in short, present more than enough evidence to establish a prima facie case of de facto discrimination with respect to San Francisco's procedures for the hiring of patrolmen.

Plaintiffs also attack the use of achievement tests for promotion of policemen within the department ranks. These tests for advancement consist of multiple-choice questions formulated by police and civil service personnel from a bibliography of literature on modern police practices. Scores on the tests, along with seniority and a good record, determine promotion to the sergeant, assistant inspector, lieutenant, and captain positions. Plaintiffs argue that the tests have had an adverse effect on the opportunities of minority policemen for advancement within the department.

Statistics concerning promotion in recent years support plaintiffs' contention with respect to promotion to the rank of sergeant. For example, on the most recent...