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July 7, 1972

Commonwealth Of Pennsylvania et al., Plaintiffs,
Joseph F. O'Neill et al., Defendants

Fullam, District Judge

The opinion of the court was delivered by: FULLAM

FULLAM, District Judge:

I. Background

 The Commonwealth of Pennsylvania and several black citizens of Philadelphia, representing a class of black police officers and unsuccessful applicants for positions in the Philadelphia Police Department, brought this action against the City and certain of its officials, alleging that the Police Department's hiring and promotion practices discriminate unconstitutionally against blacks. The action was commenced in December 1970. After extensive discovery, requiring several applications to the Court, the plaintiffs moved in April 1972 for preliminary relief.

 Five and one-half days of hearing were held, at the conclusion of which, on May 26, 1972, I entered an interim order temporarily restraining the defendants from hiring any policemen except as required to fill vacancies which existed on March 1, 1972. In hiring to fill such vacancies, the defendants were required to hire at least one black applicant for every two white applicants. 345 F. Supp. 305. Defendants have appealed from this order, and in the interim have decided not to conduct any hiring. On June 8, the Court of Appeals denied defendants' application for a stay of the order; the appeal is still pending. The May 26 order did not affect promotions, partially in reliance upon the representation of counsel for defendants that only 14 promotions were contemplated. During the week of June 12, defendants promoted 56 policemen. Plaintiffs moved for an injunction against further promotions pending a decision on the motion for preliminary injunction, and for an order requiring defendants to rescind all 56 promotions except those which complied with the one black to two white standard previously set forth for hiring. On June 15, I denied plaintiffs' motion, except to the extent of enjoining further promotions beyond the additional 16 which were then represented by counsel for defendants to be contemplated and deemed necessary. The principal reason for this result was that, by happenstance, all promotions and proposed promotions after the initial group of 30 (i. e., the additional 26 already promoted and the 16 proposed) included nearly one-third blacks.

 Applicants for positions in the Police Department must undergo a four-step elimination procedure, consisting of a written examination, a physical and psychiatric examination, and a background investigation and evaluation. Plaintiffs challenge the first and last steps, contending that (a) the written examination eliminates a disproportionate number of blacks and has not been shown to be a valid predictor of performance as a policeman, and (b) the background investigation has a similar discriminatory effect, as a result of the selection of negative factors which are deemed disqualifying, and of the discriminatory application of these factors. With respect to promotions, a three-factor rating (written examination, seniority, supervisor's performance rating) is employed in selecting among applicants for promotion up to lieutenant; for higher ranks, those three factors are combined with an oral examination. Plaintiffs allege that the written examination operates discriminatorily, and does not predict subsequent job performances.

 II. Hiring -- Overall Statistics The percentage of persons hired as police officers who are black has declined from 1966 to 1970 as follows: Percentage Year Black 1966 27.5% 1967 25.3 1968 15.3 1969 11.2 1970 7.7


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