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January 23, 1979

Joseph F. O'NEILL, et al.

The opinion of the court was delivered by: FULLAM


This action, challenging the hiring and promotional practices of the Philadelphia Police Department on racial grounds, was instituted on December 21, 1970. As a result of various statutory changes, amendments to the pleadings, class-action rulings, and allowances of intervention, the case now includes as plaintiffs the Commonwealth of Pennsylvania, a class consisting of all applicants and would-be applicants for employment on the Police Force, a class consisting of all black police officers in the Philadelphia Police Department, and the Guardian Civic League of Philadelphia (an organization of black police officers). The defendants include the City of Philadelphia, the Mayor, the Police Commissioner, and the Fraternal Order of Police.

 On appeal from this ruling, there was little or no dispute about the discriminatory impact and lack of validation of the existing tests; the litigated issue was the scope of interim relief to be afforded. With respect to hirings, this Court's Order was eventually affirmed by an evenly divided Court En banc. With regard to promotions, the Order was vacated. Commonwealth of Pa. v. O'Neill, 473 F.2d 1029 (3d Cir. 1973). It should perhaps be mentioned that, throughout these appellate proceedings and parallel proceedings in this Court, it was made clear that the defendants, whose testing procedures had been under challenge for nearly two years, were confident that, by January of 1973, they would be able either to vindicate the existing examinations, or to supply new examinations. The decision of the Court of Appeals was rendered on February 8, 1973.

 The case was scheduled for final hearing in this Court in April of 1973. At issue were (1) the validity of the entrance examination itself; (2) the validity of the "background investigation" screening process; and (3) the validity of each promotional examination. In addition, of course, there would have been subsidiary issues as to the scope of interim relief, in the event of a decision adverse to the continued use of any or all of these tests and procedures.

 Instead of proceeding to the final hearing, the parties, on April 10, 1973, agreed to the entry of a Consent Decree. The principal features of this Decree have to do with the entrance examination (the defendants represented that they had retained Educational Testing Service, of Princeton, New Jersey, to devise a completely new set of entrance examinations, which were to be available by January of 1974); the background investigation process (the defendants agreed to revise this procedure, after obtaining recommendations from qualified consultants on the subject); the rights and remedies of persons adversely affected by the existing procedures (back pay and seniority adjustments); and interim hiring procedures (hirings only to fill existing vacancies, rather than for expansion of the Police Force; reconsideration of rejections based on background evaluations, by a new, impartial panel).

 With respect to the promotional examinations, the Decree provided only as follows:

"7. The defendants have represented to the Court that they are in the process of revising all promotional examinations. The Court retains jurisdiction to dispose of any questions which may arise concerning promotions. Nothing in this Decree is directed to the subject of promotions."

 No useful purpose would be served at this time in recounting the difficulties, disputes, and delays attendant upon implementation of the Consent Decree of April 10, 1973. It is sufficient for present purposes to state that (1) new entrance examinations were eventually prepared and have been administered, and litigation concerning their validity is under way, in a separate aspect of these proceedings; (2) the background evaluation process has been revised, and litigation concerning the validity of the new procedure is also under way, in a separate aspect of this case; and (3) the validity of the promotional examinations (whether "new" as contended by defendants, or essentially unchanged, as contended by plaintiffs) is now before the Court, and is the subject of this Opinion.


 1. The racial breakdown for all ranks within the Philadelphia Police Department is as follows:


 3. Until 1973, performance ratings were also taken into account in determining eligibility for promotion. Performance ratings are no longer considered.

 4. The written promotional examinations for the positions of corporal, detective, and sergeant have a statistically significant disparate impact upon black applicants. For all examinations from 1966 to 1975, whites "passed" the written examinations for corporal at a rate of 1.71 to 1 relative to blacks; for detective at a rate of 1.78 to 1; and for sergeant at a rate of 1.65 to 1. The likelihood that such results could have occurred by chance is less than 1 in 1 million.

 5. The disparate impact upon black applicants is greater with respect to the tests currently in use than was true of the earlier tests during the period referred to. For example, in the most recent tests for corporal, whites "passed" at a rate of 2.79 compared to blacks, and at a rate of 2.02 for the position of detective (the white sergeant pass rate for the current test is approximately the same as for the earlier tests, 1.61 versus 1.63).

 6. It is probable that the foregoing figures substantially underestimate the true disparate racial impact of the tests, since all persons taking the test had previously "passed" an entrance examination which itself had a disparate racial impact. White applicants "passed" the entrance examination at a rate of 1.82 to 1 over black applicants. Commonwealth v. O'Neill, 348 F. Supp. 1084, at p. 1089.

 7. There is no evidence that the promotional examinations for the positions higher than sergeant have a statistically significant disparate racial impact. That is, there is no evidence that the white applicants taking those tests "passed" at a higher rate than black applicants. Of course, the cumulative effect of the disparate impact of the entrance and sergeant examinations is to render a disproportionately small percentage of blacks eligible to take the examinations for promotion to the higher ranks.

 8. In early 1973, trial on the merits of all of the issues in this litigation was scheduled to take place. Under challenge were the entrance examination (as to which a preliminary injunction had been entered by this Court, and affirmed by a divided vote of the Court of Appeals); promotional examinations to all ranks; and the background-screening process. On the eve of trial, an interim settlement was agreed upon, and embodied in a Consent Decree presented to, and approved by, this Court. Pursuant to the Consent Decree, the defendants obligated themselves to carry out a contract with Educational Testing Service, of Princeton, New Jersey, to develop new entrance examinations and validate them as job-related; and to revise the background screening process. The Consent Decree contained detailed provisions which were to remain in effect pending completion of these tasks. The Consent Decree, by agreement of counsel, did not contain any injunctive provisions covering use of the promotional examinations. The Decree did contain the following recital:

"7. The defendants have represented to the Court that they are in the process of revising all promotional examinations. The Court retains jurisdiction to dispose of any questions which may arise concerning promotions. Nothing in this Decree is directed to the subject of promotions."

 9. On July 31, 1974, in the course of a hearing in which plaintiffs sought an adjudication of contempt, claiming that the defendants had failed to comply with the Consent Decree in various respects, the City Solicitor of Philadelphia stated to the Court that Educational Testing Service had been retained for the purpose of revising the police promotion examinations. The City Solicitor further stated that a "detailed report" setting forth the status of Educational Testing Service's activities with respect to the promotional examinations would be submitted to the Court by August 5, 1974.

 10. In fact, the City never retained Educational Testing Service or any other outside firm in connection with the promotional examinations. At a hearing on October 17, 1974, it was revealed that the only action taken pursuant to the representations about promotional examinations contained in the Consent Decree was that City personnel were continuing to "try to improve the tests;" and that a City employee was in the process of working on a validity study covering those tests. However, even at that date, the promotional examinations administered a few months earlier had not yet been analyzed for racially disparate impact.

 11. The "revised" promotional examinations which are the subject of this Opinion do not differ in any material respect from the promotional examinations given during earlier years.

 12. In 1970, a confidential report of the Commission on Human Relations had criticized the written tests employed by the Personnel Department (including the police tests), and had recommended that the City:

"(Establish) a new section within the Personnel Department to perform ongoing validation studies. This section . . . should be headed by a psychologist qualified in the area of examinations. This section will conduct validation studies of every selection standard involved in every City position.
"Research in the field of human rights indicates that black persons particularly and other groups are unable to compete in these areas although they may have the ability to do the job in question as well or better than candidates who score higher or who would not be eliminated by the above factors . . . ." (At pp. 10-11.)

 13. From the outset of this litigation in 1970, and on the basis of the evidence presented at earlier hearings on the issues of preliminary relief, it has been quite clear that the examinations used by the Philadelphia Police Department do have disparate racial impact.

 14. The defendants have made no effort to determine whether the cause of disparate racial impact can be eliminated without affecting the usefulness of the examination.

 15. It would be relatively easy and inexpensive to perform a differential item analysis of these examinations, to determine the relative scores of whites and blacks on each item of the test. Depending upon the results, such an analysis might demonstrate that the difference in final test scores by race is attributable to a few unimportant items, or to ambiguity in particular questions; or it might demonstrate a pervasive phenomenon, and thus tend to justify continued use of the tests. No such analysis has ever been attempted by the defendants.

 16. The principal thrust of defendants' efforts throughout this litigation has been to avoid any significant changes in the hiring and promotional practices of the Philadelphia Police Department. The defendant Police Commissioner is of the view that the best interests of the Police Department and of the public generally would be neither benefitted nor harmed by increased minority representation in the various ranks within the Department. The overall goal of his administration of the Department is to guard against "outside interference," and to preserve the previously accepted ways of doing things.

 17. For the most part, the initial assignment of newly appointed sergeants is to command a squad in the Uniform Patrol Bureau. The primary purpose of the written examination for sergeant is to measure and predict the relevant capabilities of applicants to function as squad leaders in the Uniform Patrol Bureau.

 18. Mr. Robert Haney, an employee of the Personnel Department of the City of Philadelphia, conducted a validity study of the various sergeants' examinations administered from 1960 through 1971, using the standardized test score of each of 178 available sergeants in the Uniform Patrol Bureau as the predictor variable. This study, entitled The Ability of the Written Examination for Police Sergeants to Predict Performance on the Job as a Sergeant is in the record as Exhibit D-31.

 19. A total of 12,900 candidates took the five sergeant examinations between 1960 and 1971. Of these, 2,423 (approximately 19%) passed and were listed as eligible for promotion. However, during that period, only 735 of the applicants actually were promoted to sergeant. Thus, only about 5.7% Of the candidates actually were promoted (the "selection ratio"); and it was possible to evaluate the actual performance in the job of sergeant of only 178 of those promoted.

 20. Mr. Haney's validity study, D-31 (hereinafter, the "Haney study") was designed to establish criterion-related validity of the sergeant examinations. A criterion-related validity study identifies the tasks or "performances" which are important to the job in question, and attempts to establish whether or not the test accurately predicts how well the various candidates will perform on the job. A criterion-related validity study is preferable to a content-validity study (designed to determine whether the test results accurately reflect the extent to which the applicants possess the knowledge required in the job) or construct-validity (which, generally speaking, has to do with personality traits, attitudes, psychological make-up, etc.).

 21. In studying an examination for criterion-related validity, it is important to select the criteria carefully and accurately, to assess the extent to which the criteria are independent or inter-related, and to obtain an accurate measure of how well the sample group of job holders actually perform on the job, with reference to these criteria.

 22. The Haney study proceeded essentially as follows: The job performance of the 178 available sergeants was evaluated by the officers (captains) responsible for supervising them. Each sergeant was rated with respect to four specific criteria, plus an overall rating. The results of these evaluations were then compared with the final test score each sergeant had achieved in the sergeant examination, for the purpose of determining whether those who ...

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