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Case 37: Boston Fire Dept. Racial Quotas:
Affirmative Discrimination Ended!

Equal Opportunity NOT Equal Results
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BostonLogo200.gif (18157 bytes) Color-Blind Victory!

For the first time in almost 30 years a white guy can now be hired ahead of applicants with lower test scores regardless of their skin color at the Boston Fire Department!

A group of white firefighter applicants have successfully sued to end the Boston Fire Department's 30 year old racial quota program.

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1. Introduction and Overview
Web Posted Nov. 24, 2003

Boston Demographics
Boston has over 200% more blacks than the U.S. average!
(Source: Census 2000)
          In April 2001 five white men sued the Boston Fire Department for racial discrimination when they were passed over for firefighting jobs in favor of minority candidates with lower entrance exam scores.

          The five white firefighter applicants who sued are Joseph Quinn, Sean O'Brien, Robert Dillon, Joseph Sullivan and C. Roger Kendrick, Jr.

          These five brave men had to overcome a 1974 federal court order known as the Beecher decision which required the Boston FD to discriminate against white and other non-minority firefigher applicants in order to achieve the constitutionally dubious goal of racial parity (otherwise known as proportional representation of minorities) within the fire department.


2. Brief Legal Chronology

          The Boston Fire Department had been saddled with a racial quota for hiring blacks and Hispanics for most of the past 30 years.

          The infamous Beecher decision in 1974 resulted in the Boston FD practicing what is known as 1 for 1 paired hiring of minorities and whites (known as the 1 for 1 rule) until racial parity was reached, i.e., until the proportion of minority Boston firefighters roughly equaled the proportion of minorities in the general Boston population. 

          To put it in Clintonesque terms, Beecher dictated that the Boston FD had to "look like Boston".

April 2001:  The plaintiffs, Quinn, et al, sued Boston FD for racial discrimination.

          Quinn argued that the racial parity in the Boston FD which was ordered by the 1974 Beecher decree had been achieved by the date on which they applied to the Boston FD (October 2000).

They cited Census 2000 data showing that the proportion of minority firefighters in Boston FD was actually higher than the proportion of minorities in the City of Boston.

          U.S. District Court Judge Richard Stearns rejected their discrimination claim, reasoning that, in fact, racial parity had not been achieved if one counted the number of minorities in all ranks of the department, including officers and administrative personnel.

March 27, 2003:   The U.S. Court of Appeals for the First Circuit reversed the lower court on appeal by the plaintiffs (Quinn, et al). 

Boston Racial Quotas Discriminate!           Among other things, appeals Judge Bruce M. Selya, in writing for the majority of the three judge appeals panel, said that the 1974 Beecher ruling clearly and unambiguously intended that the racial parity test be applied only to the hiring of new firefighters and not to the administrative staff and officers of the department.  The appeals court ruled that racial parity had, therefore, already been achieved in October 2000 when the plaintiffs applied to the fire department. 

          The appeals court ruled that the 1 for 1 hiring rule (one minority must be hired for every white hire) imposed by Beecher should have ceased prior to plaintiffs' application for employment.  Therefore, they had been illegally discriminated against within the narrow terms and conditions of the Beecher decree.

August 25, 2003:  Lower court U.S. District Court Judge Richard Stearns, acting upon the 3/27/03 decision of the appeals court, ruled that Quinn, et al, must be hired as soon as possible ahead of any other candidates regardless of race, and the men must be awarded back pay and the seniority they would have earned if they had been hired in October 2000.


3. Letter from One of the Plaintiffs

A Happy, EMPLOYED, White Boston Firefighter!
Received 11/17/03

Dear Adversity.Net:

          Your web site features an article about our lawsuit against racial quotas in the Boston Fire Department.

          We won our argument in the U.S. Court of Appeals for the First Circuit last spring and we were sworn in to the Boston Fire Department on Monday 11-10-03. We are slated for the training academy in the spring!

          Since our victory a number of other aggrieved individuals have filed and hopefully will be in my fire academy class. [Empahsis added.]

          The 1 for 1 paired minority hiring rule -- without regard to class rank -- is dead in the Boston Fire Department as a result of our lawsuit.

          I want to thank Adversity.Net for allowing me to utilize the many reference tools on your web site.  I understand the same fight is being undertaken in other parts of the country and I would be happy to speak with future plaintiffs.  Having gone through it I realize a sounding board can be helpful.

          Thank you and God bless!

-- A Newly Hired, White Boston Firefighter


4. Racial Quota Redux

          The plaintiffs won this round of racial quota wrangling only because they were able to prove that the federally-imposed racial quota under the 1974 Beecher decision had been reached by October 2000 and that therefore they should have been hired at that time without regard to their race.

          The plaintiffs did not prevail on any argument that racial quota programs in general are unconstitutional or unfair.

Racial quotas in the Boston Fire Department
          Therefore, the ruling in Quinn et al does not set a legal precedent for other employers -- or fire departments -- who may be operating under different racial quota decrees with different terms and conditions than Beecher.

          That raises the following, troubling questions:

  • If and when the Boston Fire Department's racial composition again falls below racial parity, i.e., when the number of newly hired firefighters no longer contains the same proportion of preferred minorities as are in the general Boston population, will the 1974 Beecher decree be resurrected?
  • How is it that during the 29+ years during which the Beecher decree was in effect that the City of Boston, and the Fire Department, have not been able to devise an entrance examination for firefighter applicants upon which preferred racial minorities perform equally well when compared to their white and/or non-minority counterparts?
  • Where is it written in the U.S. Constitution that selected races and ethnicities are guaranteed "proportional representation" in employment?

5. The "1 for 1 Paired Hiring Rule"

How the "Beecher" Racial Quotas Operated

          The "1 for 1 paired hiring" rule is illustrated by the following hypothetical example.  (Refer to Table 1 at the left.)

          In this example, the Boston FD needs to hire 10 new firefighters. 

          In the hypothetical group of new applicants who took the entrance exam, the 20 top scores were achieved by white candidates.

          Conversely, the highest scoring minority candidate in this example received a score of 85 and a class rank of 21.

          Under the 1974 Beecher decree, Boston FD was prohibited from hiring all of it's 10 new firefighters from the highest scoring group because the highest scoring group in this example is white.  Beecher dictated that the maximum number of whites (or non-minorities) that Boston could hire was 50%, or in this case, 5 white firefighters out of 10 required hires.  Under Beecher 5 of the new-hire firefighters had to be minorities even if their test scores were well below those of the white/non-minority candidates.

          The next 15 highest scoring candidates in this group of applicants are all white (class ranks numbered 6 through 20)!  Therefore, none of them could be hired under the 50% minority "1 for 1" rule.

          The highest scoring minority applicant in this example has a score of 85 and a class rank of 21 so he/she would be the top ranked minority candidate.

Table 1: Raw Test Scores and Class Rank
(Hypothetical)

Exam
Score:
Class
Rank:
Race:
100 1 White
99 2 White
97 3 White
95 4 White
93 5 White

Class ranks 6 thru 20:  skip these 15 candidates because they are white.

85 21 Black
84 22 White
82 23 White
78 24 Black
75 25 Hispanic
72 26 Black
71 27 Black

          The next two candidates after the highest scoring minority candidate happen to be white and they have scores of 84 and 82 and class ranks of 22 and 23, respectively.  But they could not be hired under Beecher because the fire department's quota for whites had already been met by hiring the top 5 scoring white candidates.

          Therefore, under Beecher, the Boston FD had to skip down the list to the 2nd highest scoring minority in this group who happens to have a test score of 78 and a class rank of 24.

Table 2: Paired List
Highest 5 white scores and highest 5 minority scores
(Hypothetical)
Exam
Score:
Class
Rank:
Race: Exam
Score:
Class
Rank:
Race:
100 1 White 85 21 Black
99 2 White 78 24 Black
97 3 White 75 25 Hispanic
95 4 White 72 26 Black
93 5 White 71 27 Black
          Table 2 (right) depicts the paired list of top-scoring whites and top-scoring minorities which Beecher dictated that the Boston FD must create based on the test scores and class ranks from Table 1, above.

          Remember: Boston FD needs to hire 10 firefighters in this example. Under the Beecher ruling 5 of the new hires would have to be preferred minorities, and 5 of the new hires would be white or non-minorities. 

          Under Beecher the first two hires (out of 10 needed) would have been a white and a minority.  In our example, the top-scoring white applicant has a test score of 100 and a class rank of 1 while the top-scoring minority applicant is black with a test score of 85, and a class rank of 21. 

          This process had to be repeated -- hiring 1 minority for every white -- until all 10 firefighter positions had been filled.

          That is how the "1 for 1" white+minority hiring quota was enforced during the past 29 years under the 1974 Beecher decree.


6. Legal Oddities and Quota Weirdness

Quinn, et al (2003):  Relevant Minority Population -- The District Court ruled in the original Quinn lawsuit, upheld on appeal, that the City of Boston "minority population" computation mandated by Beecher must include preferred minorities of all ages including, for example, infants, 10 year olds, and 90 year olds. 

          In their lawsuit, Quinn, et al, had argued -- unsuccessfully -- that the relevant computation should include only minorities 19 years old and older because age 19 is the minimum age for employment as a firefighter!

          Conversely, the defendants (NAACP and the City of Boston) argued -- unsuccessfully -- that the count of minorities in the fire department should include all employees of the fire department -- office workers, administrative personnel and officers, as well as firefighters -- and not be limited to entry level and other active firefighters.  The District Court originally ruled in favor of the defendants on this point, but the Appeals Court overturned that portion of the ruling, holding that the original language of Beecher clearly meant that the decree applied strictly and narrowly to the hiring of firefighters and not to the senior ranks and administrative personnel of the department.

Beecher Decree (1974):  In the original Beecher racial quota decree no evidence was ever presented that the Boston FD had ever intended to discriminate against blacks or Hispanics nor that the department had any specific policy to discriminate against minorities.   In fact, such evidence is not required under the constitutionally dubious "disparate impact" and "proportional representation" doctrines -- actual proof of "intent to commit the crime" is not required in order to impose a racial quota.  All that is required are simplistic statistics which show that a smaller proportion of minorities pass the exam or meet other employment criteria than whites, and that a smaller proportion of minorities is actually employed by the department than their number in the relevant general population.


7. Lawyer for the Plaintiffs

          Mr. Harold L. Lichten successfully litigated this case and he won!  As a result of Mr. Lichten's efforts, the Court ordered Boston to hire the white firefighter applicants even though they are not preferred minorities.

Attorney Contact Info:
Updated 11-27-03

Harold L. Lichten
Pyle, Rome, Lichten & Ehrenberg, P.C.
18 Tremont Street, Suite 500
Boston, MA  02108

Phone: (617) 367-7200
Fax: (617) 367-4820


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*  We use the term reverse discrimination reluctantly and only because it is so widely understood.  In our opinion there really is only one kind of discrimination.