DOJ’s Rejection of Exam Based on “Passing Rates by Race” is Illegal and Unconstitutional; Judicial Watch Files FOIA Lawsuit for Additional Records
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…we are appalled to learn that the DOJ has branded our tests as “invalid,” despite having been appraised openly in advance of our validation steps, methods, and resulting data, and despite having never raised a single concern over the process during the entire seven-month-period prior to the exam administration. [Page 372]…Only at this point, two months after the exams were given, has the DOJ made any assertion about the unfairness or impropriety of the selection exam, much less that the tests are not valid. This complete reversal and flip-flop of judgment contradicts DOJ’s position prior to test administration, i.e. that the test was valid. Given that the only new information introduced after test administration was test scores and passing rates by race, it is not a difficult leap to conclude that the DOJ’s decision to contradict their prior position is drive solely by test scores and passing rates by race…In fact, it is illegal and in direct violation of Title VII and the Equal Protection Clause of the 14th Amendment. [Page 374]…It is our opinion that throwing out the exam results will inevitably lead to less qualified candidates taking the place of qualified candidates. We therefore recommend that the DOJ concedes with the City’s decision to move forward with the exam results, selecting one of three available cutoffs that align with the minimum competency levels established by the validation study. [Page 375]
According to a report by Dayton’s ABC News affiliate on March 11, 2011, the ultimate compromise struck between the City of Dayton and the DOJ resulted in a lowering of test standards for Police Department candidates:
The Dayton Police Department is lowering its testing standards for recruits. It’s a move required by the U.S. Department of Justice after it says not enough African-Americans passed the exam. Dayton is in desperate need of officers to replace dozens of retirees. The hiring process was postponed for months because the D.O.J. rejected the original scores provided by the Dayton Civil Service Board, which administers the test.Under the previous requirements, candidates had to get a 66% on part one of the exam and a 72% on part two. The D.O.J. approved new scoring policy only requires potential police officers to get a 58% and a 63%. That’s the equivalent of an ‘F’ and a ‘D’.
On June 29, 2009, the Supreme Court ruled that city officials in New Haven, Connecticut violated the rights of white firefighters when they discarded the results of a promotions test because minority firefighters performed poorly on the test. “The city rejected the test results solely because the higher scoring candidates were white,” Justice Anthony M. Kennedy wrote for the majority. (Ricci et al.. v. DeStefano et. al., (No. 07–1428)).“One would be hard pressed to find a more egregious example of the unlawful application of race-based quotas,” said Judicial Watch President Tom Fitton. “These documents show the City of Dayton bent over backwards to accommodate the Justice Department’s ridiculous demands. But the Justice Department did not care a whit about the testing process; they cared only about the results and race quotas. Now the Justice Department has attempted to cut standards and game the system to give critical first responder jobs to less qualified candidates. This puts the public safety at risk. And, as is typical, this Justice Department can’t be bothered to comply with basic FOIA law and tell the American people exactly what it is up to.”