DOJ, Diversity, and Low Expectations

Recently released documents show that the U.S. Department of Justice (DOJ) continues to perpetuate a system of racial spoils and promote what George W. Bush called the "soft bigotry of low expectations."

At its core, the American civil rights movement was a struggle to obtain equality before the law for all citizens. The intent of the landmark Civil Rights Act of 1964 was to end racial discrimination in public accommodations (hotels, restaurants, theaters, etc.) and programs that receive federal funds.

Over the years, however, the movement evolved into a system in which our government sought to increase "minority representation" (typically blacks, Hispanics, and American Indians) in government jobs by discriminating against whites and non-preferred minorities (Asians). Equality before the law became an empty slogan.

For example, fire and police departments are under pressure to lower hiring and promoting standards because blacks disproportionately score lower on civil service exams. In March, the Department of Justice ordered the city of Dayton, Ohio, to lower passing rates on the written police recruitment exam.

The police department had used an internally created written exam to screen police applicants, and the fire department required candidates to have EMT-Basic and Firefighter I and II certifications at the time of application. Blacks scored lower on the exam and lacked these certifications at higher rates. The DOJ filed suit against the city and announced to the world that the standards were too high for minorities. According to the complaint, about 68 percent of whites and 29 percent of blacks passed the most recent exam. Blacks who passed scored lower than whites.

The DOJ ordered Dayton to submit new recruitment and testing plans, and the city hired consulting firm Fire & Police Selection, Inc., to develop a new exam. Judicial Watch, a nonprofit group that investigates and prosecutes government corruption, obtained documents related to the suit and last week released several hundred pages that revealed how the DOJ pressured Dayton to drop standards.

According to released documents, the government apparently had no significant problems with the new plans. Unfortunately, blacks scored disproportionately lower on the new exam. Only when scores were calculated did the DOJ object. In February 2011, DOJ Senior Attorney Barbara Thawley wrote that the use of the written exam violated the Civil Rights Act of 1964 and suggested the city score the exam as pass/fail. She also raised objections to the written firefighter exam and said it seemed "very unlikely that an entry-level firefighter would have to do much writing."

In response, the Civil Service Board's Giselle Johnson , who actually knows what's required for the job and has since resigned, said the city's firefighters "are either EMT or paramedics and do a lot of report writing." The consulting firm's CEO, Dan Biddle, fired back at the DOJ (emphases in original):

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 driven 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.

Nevertheless, Dayton complied. Under the previous requirements, candidates had to get 66 percent correct on one part of the exam and 72 percent on the other. The city dropped the requirements to 58 percent and 63 percent. (How would lowering standards result in more black police officers? Wouldn't more whites qualify? See my human-accomplishment analogy.)

In April, Dayton decided to eliminate the written exam altogether and recruit based on subjective oral interviews. The city threw out all scores because too many whites passed. Should the white candidates decide to sue, they might have a huge legal leg to stand on. Seven years ago, the city of New Haven, Connecticut, tossed promotion exam scores because too few minorities scored high enough to qualify. A group of mostly white firefighters sued, and the case went to the U.S. Supreme Court.

New Haven claimed it threw out exam scores for fear of "disparate impact" liability. Ruling against the city, the court contended in Ricci v. DeStefano (2009) that before employers decide to discriminate against one group to avoid a lawsuit from another, they must have a "strong basis in evidence" to believe they'd be liable. Score disparities alone don't qualify. New Haven would have been liable only if the exam wasn't job related or consistent with business necessity, or if there was an equally valid, less discriminatory test the city refused to use. Frank Ricci and his colleagues eventually received their hard-won promotions.

The purpose of civil rights laws is to remove racial considerations from the selection process, and civil service exams were created to ensure that candidates are hired for government jobs on merit and not on political patronage or personal favor. The government has subverted the process in favor of one where "diversity," not fairness or merit, has become the highest principle.

Also read: Holder DOJ fights Arizona’s efforts to prevent illegal alien voting.