Case 37: Boston Fire Dept. Lawsuit

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Below are some of the news reports regarding the historic end of racial quotas and court-ordered reverse discrimination in the Boston Fire Department. BostonLogo110.gif (7356 bytes)
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Federal judge orders city to hire four white firefighters (08-26-03)

[Associated Press via The Portsmouth Herald]

"BOSTON - Four white men who sued the Boston Fire Department for discrimination when they were passed over for firefighting jobs in favor of minority candidates who scored lower on civil service tests must be hired as soon as possible, a federal judge ruled.

          "When hired, the men must be awarded back pay and the seniority they would have earned since October 2000, the date they were denied employment, U.S. District Court Judge Richard Stearns ordered on Monday [Aug. 25, 2003].

          "A fifth plaintiff who was hired last October also will get a pay raise under the ruling.  "I think hopefully we're just going back to normal, the way it was meant to be, so that now they are just hiring the best person, regardless of race or color," said Harold Lichten, the attorney for all five men.

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          "The judge's decision applies only to the men who sued -- Joseph Quinn, who already has been hired; Sean O'Brien; Robert Dillon; Joseph Sullivan, and C. Roger Kendrick Jr. -- and was not intended to establish a precedent for other white applicants who were passed over in October 2000.

          "[Judge] Stearns at first rejected the civil rights suit filed in April 2001, the first to challenge the department's affirmative action hiring policy since 1989, when it was upheld by the U.S. Supreme Court.

          "But the 1st U.S. Circuit Court of Appeals reversed Stearns, ruling in March [2003] that the city has achieved its goal of racial parity among entry-level firefighters, and no longer needed to abide by a nearly 30-year-old court order that departments across the state have used as a model to correct racial imbalance."

Excerpted from the Associated Press story as it appeared in the Portsmouth Herald 8-26-03

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Hiring Policy shift has whites eyeing fire jobs

Subhead:   Test scores now rule instead of diversity

[Boston Globe]

          "Their family names are storied in the Boston Fire Department: Pierce, Stapleton. But unlike their father and uncle, who served as city fire commissioner, these men have been shut out of the profession that runs in their blood.

          "Despite nearly perfect scores on civil service exams and family connections, Martin Pierce III and Kevin and Edward Ferent have been unable to land jobs as Boston firefighters. But now, because of a federal appeals court ruling ... they and dozens of other white applicants passed over for minorities may get their wish.

          "A Globe analysis of the March 27 court decision and the results of civil service exams administered within the past three years shows that about 70 white men and women who were bypassed in favor of lower-scoring minorities now have legal standing to claim jobs.

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"These applicants would have been hired had the city abandoned [the court ordered racial quota] in 2000 when, the court ruled, racial parity had been achieved in the fire department.

          "Meanwhile, hundreds of other white applicants are in line to claim future firefighter jobs in the Boston Fire Department ...

          "In an interview last week, Fire Commissioner Paul Christian said he will do everything possible to keep the department diverse. That means heavy recruiting, particularly among minorities in the armed services, who would jump to the top of the hiring list as veterans.

          "... the hiring consent decree was first implemented in 1974, mandating that one minority candidate be hired for each white ... By 2000, however, minority firefighters constituted 39.9 percent of the firefighting ranks - higher than their 38 percent representation in the city as a whole - making the affirmative action program unnecessary and illegal, the federal appeals court ruled.

          "Test score data provided by the state Human Resources Division under the Freedom of Information Act show that about 70 white men and women who scored 99 or 100 on the 1998 and 2000 civil service exams for firefighter were not hired by the Boston Fire Department at the same time that minority applicants with scores as low as 91 were. ''For those people, the brass ring was right there and they couldn't grab it,'' said Deputy Chief Joseph Finn, who oversees hiring. ''Their opportunity has come.''

          "Several unsuccessful candidates have already consulted lawyers. A group of 10 [non-minority] applicants who scored 99 may sue together, said their lawyer, Edward Cooley. 

          ''I want the job. I've always wanted the job since I was a kid,'' said Edward Ferent, 31, a South Boston lobsterman whose uncle, Leo Stapleton, was fire commissioner in the 1980s. Ferent and his brother, Kevin, may both be eligible for jobs.

          ''I'm so excited. I feel maybe now we'll finally get through,'' said Ferent, who took the test five times and scored 99s and 98s. ''I'd tell my wife, ‘I got a 99' and she'd say, ‘That's great,' and I'd have to tell her, ‘No, it isn't. I don't have a shot.'''

          "Since 2000, no white applicant who scored lower than 100 has been hired as a Boston firefighter, unless he or she was a veteran or the son or daughter of a firefighter killed or disabled at work, the Globe analysis found. ... Even some white candidates with scores of 100 were not offered jobs. [Emphasis added.]

          "City officials, who had supported continuing the affirmative action policy, said they do not intend to appeal the decision to the US Supreme Court, which is considered unlikely to reverse the federal appeals court panel, given that minority representation in the fire department now mirrors that of the general population in Boston.

          "For now, only the five men who successfully challenged the now-abandoned affirmative action hiring policy in court are in line to get a job. They and their lawyers believe they will be hired with back pay and seniority.

          ''I want to get squared away and be placed in the [fire] academy,'' said Sean O'Brien, 35, a Dorchester emergency medical technician and one of the five plaintiffs. ''I've been taking these tests since 1987 and to look too far ahead may jinx it.''

Excerpted from the Monday 6-16-03 Boston Globe story written by Andrea Estes and Douglas Belkin.

Last known links to original story:


Court halts racial decree for Fire Dept. (3-28-03)

[Boston Globe]

          "Finding that the Boston Fire Department had achieved racial balance among its firefighters, a federal appeals court yesterday said the department can no longer follow [a racial-quota-based] affirmative action policy that requires the hiring of one minority firefighter for every white one.

          "In reversing a lower-court judge, the US Court of Appeals for the First Circuit said that the 29-year-old consent decree governing hiring in the Boston Fire Department ''had outlived its usefulness.''

          ''At long last ... parity has been reached between the percentage of minority firefighters in the BFD and the percentage of minorities in the city as a whole,'' wrote Judge Bruce M. Selya for the majority of the three-judge panel.

          "The ruling came in a case brought by five white men who were not hired as firefighters in 2000.

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"The men were the first to challenge the department's [racial-quota-based] affirmative action hiring policy since 1989, when it was upheld by the US Supreme Court.

          "Each of the plaintiffs, including a Boston emergency medical technician and a Lexington firefighter, was passed over several times, despite scoring 98 or better on the civil service exam.

          "The Appeals Court agreed with the plaintiffs, who argued that census figures showed the city has met hiring goals contained in the 1974 federal consent decree.

          "In 2000, according to the data collected in the case, 40 percent of Boston firefighters were black or Hispanic, at a time when the two groups represented slightly more than 38 percent of the city's population.

          ''There no longer can be a quota system for entry-level hiring at the Boston Fire Department,'' said attorney Harold Lichten, who represented the plaintiffs in the case. ''The court has said you must pick based on merit.

          ''My clients are salt-of-the-earth, wonderful guys who weren't out to change the world or make a political statement,'' he said. ''They just have been trying for many years - in some cases 10 years - to become firefighters. It was their lifelong dream.''

          "Nick DiMarino, president of Boston Firefighters Local 718, said the [court’s] decision means that now all hiring will be done ''according to the score. ... It doesn't matter what race, color, creed or religion, it should just be the highest score. That's what the union has always felt. That's the fair way. There should be competition one on one. If you beat me, you deserve [the job].''

          "In the 41-page ruling, the court says the city acted in good faith when it applied the one minority-one white formula. But it is no longer necessary.

          "Even so, the five plaintiffs may not displace the minority firefighters hired in their place, the court ruled. But the court also said that the plaintiffs had been unfairly denied a job, and left it to US District Judge Richard Stearns, who had issued the earlier ruling upholding the affirmative action policy, to ''sort through this tangle.''

          "Four of the five men said they hope to be hired with seniority, benefits, and back pay. The fifth one, Joseph Quinn, recently became a Boston firefighter after scoring a perfect 100. ''I've only been on for a month,'' said Quinn, of Dorchester. ''I'm very happy. I've waited a long, long time. I'm thrilled for the other four guys. They deserve it.''

Excerpted from the 3-28-03 story in the Boston Globe written by Andrea Estes with contributions by Douglass Belkin.

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Judges rule BFD need not consider race in hiring (3-28-03)

[Boston Herald]

          "A three-member federal appeals panel yesterday ruled that the hiring of Boston firefighters should no longer be guided by a 1974 court order mandating race-based preferences to remedy past discrimination.

          "Remediation has taken more than a quarter century. At long last, however, that objective has been achieved with respect to the BFD,'' First Circuit Judges Bruce M. Selya and Norman H. Stahl wrote.

          "The 1974 decree ordered the racial composition of fire departments in scores of communities to reflect the population in those municipalities.

          "The panel's remarks about the 1974 decree were included in a ruling ordering that five white men who were denied firefighter jobs get their day in court. A district court judge had [previously] thrown out part of their 1998 lawsuit against the city on summary judgment.

          "Joseph Quinn, Sean O'Brien, Robert Dillon, Joseph Sullivan and Roger Kendrick Jr. all scored 99 out of 100 on the firefighter exam but were passed over for minority candidates [with lower test scores].

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          "Their lawsuit argues the city had achieved the orders of the 1974 decree by the November 2000 hiring cycle and [quota-based] affirmative action should no longer apply.

Excerpted from the 3-28-03 story in the Boston Herald written by J.M. Lawrence.

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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.