The Daily News and the Post have rushed to the defense of Fire Department exams that have given us the whitest rank and file of any big-city department in the country, with 303 black firefighters out of 8,998, a percentage that’s actually lower than the last time a federal judge ruled the same hiring practices discriminatory, way back in 1973.
The tabloids were responding to the latest threat to apartheid at the FDNY, namely last week’s extraordinary decision by U.S. District Court Judge Nicholas Garaufis found that that the city “intentionally” discriminates against blacks, and charged it with “34 years of intransigence and deliberate indifference, bookended by identical judicial declarations.”
The Post ranted about Garaufis’ “arrogance,” calling his “self-righteous and agenda-driven decision” a “scandal,” mistaking the ruling for the sinkhole it seeks to clean up.
When I met the judge a couple decades ago, he was general counsel to that racial revolutionary, Claire Shulman, who was then the borough president of Queens and on her matronly way to becoming a leading Democratic endorser of Rudy Giuliani and Mike Bloomberg, the two mayors pointedly upbraided in this decision. The Post did not note that the similarly “agenda-driven” Bush Justice Department brushed aside Bloomberg’s objections, personally delivered to Attorney General Alberto Gonzales, and brought the initial complaint in this 2007 case.
In lockstep with Bloomberg, the Post and the News took issue with Garaufis’ finding of intent. The Post said that “the gargantuan efforts to prove actual discrimination have failed, so the judge simply declares it to exist.” As usual, the News tried a gentler version of the same argument, conceding that proof of discrimination may have met “the legal standard,” but “not the moral standard” of establishing “a deliberate mind-set to exclude.”
Both are adopting the same defense that Bloomberg’s lawyers offered, insisting that the plaintiffs had to get into the mayor’s mind, or find some crass bullpen quote, rather than rely on the cold facts of a brutal discriminatory pattern willfully ignored again and again by Bloomberg himself. “What a man is up to,” Garaufis quoted former Supreme Court Justice Robert Jackson, “may be clear from considering his bare acts.”
While the tabloids weighed in quickly and predictably, the Times is still clearing its throat. It produced an editorial the day after Garaufis’s decision bemoaning the exclusion of television from the trial of the same-sex marriage case in California. It has yet to say a word, however, about a ruling that Al Baker’s excellent Times story correctly characterized as “the first in recent memory” when a judge found “the city had intentionally discriminated against a large group of people in the workplace.” When Garaufis issued a ruling in July, detailing his initial finding that the tests discriminated, the Times also took a pass. No hurry. Since the Bloomberg administration has announced it will appeal, potentially extending the stonewall through a third term, there will be plenty of time for the editorial board to make up its mind.
It was Bloomberg himself who raised this case when he appeared last year before the U.S. Senate committee considering the appointment of Sonia Sotomayor, citing her ruling in a similar Hartford case as an example of his disagreement with her even while he endorsed her. Bloomberg’s eagerness to volunteer this contrast, offered in bizarre response to a friendly question from Senator Lindsay Graham about whether it was “a pleasure” to be mayor of New York, suggests that he intends to make himself a champion of the “colorblind” cause all the way to the Supreme Court, using it as a feather in his “centrist” cap.
The record is choked with evidence that the mayor has repeatedly resisted taking the steps required to increase the paltry three percent of firefighters who are black, but the best example of his obstinance was his response to the effort to alert him to this discrimination by the Equal Employment Practices Commission (EEPC), a semi-independent body established under the city charter in 1989. Garaufis recounts EEPC’s attempts early in the mayor’s second year in 2003, when it wrote him and filed a report with him about the department’s deplorable record, comparing it with fire departments in big cities around the country. EEPC has never done, before or since, what it did that April, asking the mayor to examine racial disparities because an agency wouldn’t.
“I am satisfied that the fire department has adequately addressed the points raised in the EEPC report,” Bloomberg replied. EEPC wasn’t asking Bloomberg to take corrective action; it was merely asking him to order an adverse impact study of the tests, to determine if they were having the effect on the face of the fire department that everyone who’s ever visited a firehouse could see. He wouldn’t.
Garaufis found that a thousand more black and Hispanic applicants would have been considered for appointment “but for the disparities resulting from these exams.” He said that the EEPC “repeatedly informed” Fire Commissioner Nick Scoppetta and his predecessor, Tom Von Essen about “wide disparities,” doing so “over several years.” But “neither commissioner,” according to the judge, took action despite a city law that required them to “assess the discriminatory impact of the FDNY’s hiring practices and to explore viable alternatives.” When the EEPC “sent a report documenting the FDNY’s hiring practices and compliance failures to Mayor Bloomberg, he responded that he was satisfied with the fire department’s effort,” Garaufis wrote.
Bloomberg was asked at his deposition if he knew what EEPC was and he said: “vaguely.” Incredibly, Bloomberg never even appointed a chair of the commission until June 2005, almost the entirety of his first term. He is supposed to do this jointly with the city council, and when he finally did, he appointed Ernest Hart, who had been chief of staff to Dennis Walcott, the mayor’s only high-ranking black deputy. That’s why the 2003 letter to him about the FDNY had to be signed by the vice chair.
The mayor also has the power to name two other members of the five-member commission, but he left Giuliani appointees in those spots until 2009, when he finally named a lawyer who works for Hart at Columbia University Medical center to one of his vacancies. He has never bothered to replace the other Giuliani appointee. If that record isn’t a wide enough yawn, despite the commission’s charter mandate to “monitor” the equal employment policies of every city agency, how about the fact that it had 12 full time staff positions when Bloomberg took office and has eight now, with Bloomberg slashing positions at the very time that it was pushing him on the FDNY?
The agency can’t begin to meet its charter requirement of auditing every city agency every four years, May admits, and was so drained by the mayor in the boom years of 2005 through 2007 that the council gave it an extra hundred thousand a year from its own discretionary budget. The council stopped funding the agency only when the EEPC started an audit of its employment practices. Council Speaker Christine Quinn has also followed in Bloomberg’s footsteps in commission appointments, not filling a council vacancy on the commission for nearly all of 2008 and 2009.
Abe May, the EEPC executive director, has never had so much as a conversation with the mayor about employment policies. He testified in the FDNY case that “we definitely expected the mayor to support” the impact study recommendations and were “surprised” when he decided “to side with the agency.” He said they’d had three or four meetings with Deputy Mayor Carol Robles-Roman over the eight Bloomberg years and that the deputy mayor had told them a couple of months before they sent the FDNY report to Bloomberg that “she hopes that the EEOC does not send a report that the mayor may not support.” This apparent warning resulted in a line in the minutes of the commission about her, noting that the deputy mayor told May and the author of the FDNY audit that “if we issue a report, it had better be good.” Asked about these quotes, Stu Loeser, the mayor’s press secretary, said that Robles-Roman “expects well-reasoned reports from the EEPC,” suggesting that was all she meant.
When informed that Scoppetta was refusing to say he would conduct the adverse impact studies EEPC thought were necessary, Robles-Roman reportedly said she “ask Scoppetta to be more cooperative.” The commission, according to May’s testimony, never heard from Robles-Roman again about this promised effort and Scoppetta, to his final day in office in December, never altered his defense of the tests.
“Tests can do anything you want them to do,” Bloomberg brazenly announced at his deposition. Apparently, they are.