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UNITED STATES v. CITY OF CHICAGO

November 7, 1974

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CITY OF CHICAGO ET AL., DEFENDANTS, LOUIS ARADO ET AL., INTERVENORS-DEFENDANTS. RENAULT ROBINSON AND AFRO-AMERICAN PATROLMEN'S LEAGUE, AN ILLINOIS NOT-FOR-PROFIT CORPORATION, PLAINTIFFS, V. JAMES B. CONLISK, JR.,[FN*] ET AL., DEFENDANTS. TADEO ROBERT CAMACHO, ET AL., PLAINTIFFS, V. CITY OF CHICAGO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Marshall, District Judge.

  PRELIMINARY INJUNCTION ORDER

This case having come before the, court for a consolidated hearing on plaintiffs' motions for preliminary injunction, and the Court having heard the testimony of the witnesses of the parties for approximately 17 days and having heard oral arguments, and the court having considered the oral and documentary evidence presented, the briefs, and arguments of counsel; and having made findings of fact and conclusions of law, and being of the opinion that this preliminary injunction should be entered,

It is hereby ordered, adjudged and decreed:

1. The defendants City of Chicago, James M. Rochford, Superintendent, Chicago Police Department, William E. Cahill, Reginald Dubois, Quentin J. Goodwin, Commissioners, Chicago Civil Service Commission, and Charles A. Pounian, Secretary, Chicago Civil Service Commission, and their officials, agents, employees, and all persons and organizations in active concert or participation with them are enjoined until further order of court from engaging in any act or practice which has the purpose or effect of discriminating against any employee of, or any applicant or potential applicant for employment with the Chicago Police Department because of such individual's race, sex, color, or national origin, and specifically from:

    (a) Failing or refusing to recruit, hire,
  assign and promote black and Spanish-surnamed
  persons on an equal basis with whites of
  non-Spanish origin,
    (b) Failing or refusing to recruit, hire,
  assign and promote women on an equal basis with
  men,

2. No further certifications for appointment to the rank of Patrolman for the Chicago Police Department will be made from the current Patrolman's eligibility list based on the 1971 Patrolman's Examination, until further order of court. Defendants shall not administer or utilize police entrance examinations of the type administered in 1971.

3. No further use shall be made of a background investigation or the results thereof as a standard of appointment to the rank of Patrolman for the Chicago Police Department unless objective criteria are established and validated as job related or shown to have no adverse racial impact.

4. No further certifications for promotion to the rank of Sergeant for the Chicago Police Department will be made from the current eligibility list based on the 1973 Sergeant's Examination, until further order of court. Defendants shall not administer or utilize sergeant promotion examinations of the type administered in 1973.

5. No further use shall be made of the Chicago Police Department efficiency ratings as a standard or factor for promotion within the Chicago Police Department unless objective criteria are established and validated as job related or shown to have no adverse racial impact.

6. The classification Patrolman will be discontinued and the classification Patrol Officer (or some similar term) will be substituted therefor, and women shall henceforth be recruited, hired and assigned to positions in the Chicago Police Department in accordance with the same standards and procedures and on an equal basis with men.

7. This preliminary injunction shall issue without bond and remain in effect until further order of this court.

MEMORANDUM OPINION

These consolidated civil rights actions challenge the hiring and promotion practices of the Chicago Police Department (hereafter the "Department"), which, it is said, impermissibly discriminate against women, blacks and Spanish surname Americans (hereafter "Hispanics"). The actions are here under 42 U.S.C. § 1981 and 1983 and their jurisdictional counterparts, 28 U.S.C. § 1331, 1343(3) and 1343(4), and 42 U.S.C. § 2000e et seq., and 28 U.S.C. § 1345.

Other claims are and have been made by the various plaintiffs. In 70 C 2220, Renault Robinson and the Afro-American Patrolmen's League assert First Amendment violations arising out of alleged discriminatory and chilling disciplinary action taken by certain of the defendants against Robinson and members of the League for which they seek money damages as well as injunctive relief. In 73 C 1252 Tadeo Camacho and his fellow plaintiffs alleged (and settled by consent decree entered June 28, 1974) that certain of defendants' height, weight and medical requirements for patrolman recruits impermissibly discriminated against blacks and Hispanics. In 73 C 2080 the Government complains that defendants' police employment and promotion practices contravene not only 42 U.S.C. § 2000e-2, but also the regulations and guidelines of the Department of Justice and the Law Enforcement Assistance Administration which provide for equal employment opportunity in federally assisted programs and activities, 28 C.F.R. § 42.201, et seq., and 42.-301, et seq. But the claims which are peculiar to particular plaintiffs have not detracted from the common questions of law and fact which attend the allegations of discriminatory hiring and promotion practices. Accordingly, the cases have heretofore been consolidated pursuant to Rule 42(a) of the Federal Rules of Civil Procedure.

Since under Illinois law defendants can appoint patrolmen and promote sergeants only from the 1971 and 1973 rosters respectively, Ill.Rev.Stat. 1973, ch. 24, ¶ 10-1-1 et seq., to grant plaintiffs' motions will be to restrain defendants from making any patrol appointments or sergeant promotions pending decision of the case on the merits. In recognition of these consequences as well as for the purpose, as they say, of preliminarily remedying past discrimination, plaintiffs urge that the preliminary injunction permit defendants to appoint and promote from the challenged rosters pursuant to a suggested formula which will result in the disproportionate appointment and promotion of blacks and Hispanics. Most outspoken in their opposition to and criticism of the formula or "quota" are the intervening defendants who are a group of patrolmen in the Department who took the 1973 sergeants' exam and who hold positions on the 1973 sergeants' roster. They assert that any decree which orders or approves promotion of a patrolman because of his race will effectively deprive them of their property without due process of law and deny them equal protection of the laws in violation of the Fifth and Fourteenth Amendments.

A motion for a preliminary injunction is always addressed to the court's discretion. Plaintiffs must establish the likelihood of ultimate success on the merits. They must show that they or those whom they represent, will suffer irreparable harm if preliminary relief is not granted. They must also show that the consequences which will flow to the defendants if preliminary relief is granted, do not outweigh the harm to the plaintiffs if it is denied.

Plaintiffs have clearly met the first two of the standards. For the reasons hereafter stated, they have established a strong likelihood of ultimate success. And it cannot any longer be questioned that practices which deny members of minority groups an equal opportunity to compete for employment inflict a terrible and irreparable injury upon them.

However, the potential consequences of the requested preliminary restraint to defendants and those whom they represent are great. The Department, in deference to this action brought by the Government on August 13, 1973, has refrained from appointing patrolmen or promoting sergeants for over a year during which more than 700 patrolman and 50-100 sergeant vacancies have accrued. The vacancies will be frozen by a preliminary decree and they will undoubtedly increase through normal attrition during that same period. Eventually, the shortage of patrol officers will become critical in a city the size and complexity of Chicago.

Thus, were the issues which form the crux of the pending motions a long time from final resolution, the scales might tip against granting preliminary relief. The parties have, however, indicated that they have pretty well exhausted their proof on the question of the "validity" of the 1971 patrolman's exam and the 1973 sergeants' exam. Rule 65(a)(2), F.R.Civ.P. If that be so, the findings and conclusions rendered here on those questions of "validity" will become the final findings and conclusions on those issues. In that posture of the case, the injunctive relief plaintiffs now seek would be required as the only effective remedy pending development by defendants of valid testing procedures.

Furthermore, the evidence is that defendants are already well along in the development of a new patrol officers' examination which, hopefully, will meet the requirements of law. Thus the further hiatus in patrol hiring occasioned by the grant of preliminary relief should not be lengthy.

Finally, while this memorandum and the accompanying preliminary injunction do not embrace plaintiffs' quota or formula solution to the vacancy problem, it has been deferred, not rejected. An application by the parties upon a showing of necessity for interim relief will be entertained. Compare, Vulcan Society, etc. v. Commission, 360 F. Supp. 1265, 1278 (S.D.N.Y. 1973).

Therefore, for the following reasons, which will stand as written findings and conclusions under Rule 52(a), F.R.Civ. P., a preliminary injunction will issue restraining defendants from making patrolman appointments to the Chicago Police Department from the 1971 patrolman eligible list, from continued use of the present method of background investigation regarding patrolman appointments and from making any further promotions to the rank of sergeant from the 1973 sergeants' eligible list.

PLAINTIFFS' CASE IN CHIEF

Plaintiffs' case in chief developed along lines which have become commonplace in litigation of this type. See, Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Vulcan Society, etc. v. Commission, supra, aff'd 490 F.2d 387 (2d Cir. 1973); NAACP v. Beecher, 504 F.2d 1017 (1st Cir. No. 74-1067, Sept. 18, 1974); Shield Club et al. v. City of Cleveland, 370 F. Supp. 251 (N.D.Ohio, 1972). The following was proved.

1. Women

As of August, 1973, there were approximately 115 women employed in sworn (or officer) positions by the Department out of 13,500 sworn personnel. Thus women, while comprising 50% or more of the persons eligible by residence for employment with the Department, constituted only .85% of the Department's officer complement. At the time of trial, the number had risen to approximately 160 or 1%.

It is undisputed that prior to the commencement of the Government's action, women in the Department were employed, assigned and promoted on a segregated basis. They were not permitted to compete with men on entrance examinations. Their eligibility was limited to a relatively few positions as "police women" and "police matrons." They were given limited responsibility, primarily for processing, searching and care and custody of women prisoners, and a limited amount of youth work. They were not used for patrol work.

At the time of the Government's action, there was one sergeant of police women, and one lieutenant of police women. Women were allowed to compete with men for promotions purposes for the first time on August 18, 1973, after the Government's action had been brought.

Defendants are presently in the process of developing what they have denominated as a "unisex" entrance examination under which women will be examined and compete with men for patrol appointments.

2. 1971 Patrolmen Hiring

Patrolmen must reside in the City of Chicago, the population of which is approximately 60% white, 33% black and 7% Hispanic. At the present, the Department's sworn (or officer) personnel are approximately 83% white, 16% black and 1% Hispanic. In the mid-1960's when the black population of the City was approximately 25%, the black sworn personnel of the Department fluctuated between 22 and 26%. In the late 60's it began to decline, although the black population of the City was increasing in gross as well as percentage. Today the Department falls far short of mirroring the community which it represents and from which its membership must be recruited.

(a) The 1971 Patrolman's Exam

On December 4, 1971, the 1971 patrolman's exam was administered by the Civil Service Commission (hereafter "the Commission") for the purpose of selecting patrolmen for the Department. The Commission prepared the exam, its answers and scored it. The exam consisted of 120 multiple choice, machine graded questions to be answered in two hours. There was one "correct" answer to each question. Essentially it was an aptitude test which covered vocabulary, verbal analogies, grammar, number series, arithmetic problems and reasoning, and word usage. While there were (and are) no educational requirements for appointment as a patrolman (i. e., high school diploma), the exam was such that the better an applicant's education, the better he should perform on the exam.

Those who answered correctly 75 out of the 120 questions (or 62.5%) "passed" and proceeded to the next screening step — a physical and medical examination.*fn1 Those who passed the physical and medical examination were posted on the eligible list in the order of their scores on the written exam.

8,136 applicants wrote the 1971 exam. Of these, 66% were white, 29% were black, and 4% were Hispanic, in comparison to a City mix of 60-33-7.

Black applicants failed (i. e., scored less than 62.5%) the 1971 exam at a rate of 67%. Hispanic applicants failed at a rate of 68%. White applicants failed at a rate of 33%. The black and Hispanic applicants who passed tended to score lower than the white applicants who passed. Thus, of the 1478 patrolmen who have been appointed in the order of their exam scores from the 1971 roster, only 147 (or 10%) are black and 23 (1.5%) are Hispanic.

(b) The Background Investigation

As the Department needs patrolmen, the Commission furnishes names of applicants from the top of the eligible list. The Department then conducts an investigation to determine whether the applicant's "background" disqualifies him from employment.

The background investigation is conducted without regulations, standards or guidelines other than to determine whether the applicant is of "bad character, dissolute habits or [guilty of] immoral conduct," or whether he has made any false statements to the Commission, violated any Commission rule or been dismissed for cause from public employment. The investigation includes arrests, convictions, traffic citations, whether any family member has ever been arrested for a serious crime, education, employment, military service, driving history and financial condition. Based upon the investigation, the Recruit Processing Section of the Department makes a determination whether the applicant should be disqualified for employment. No objective system of evaluation is used in making this determination. If the Section recommends disqualification, its recommendation is approved by the Department in 90% of the cases. A disqualified applicant is notified in writing of his disqualification, but not the reasons therefor. The notice directs him to appear before the Commission and show cause why he should not be disqualified. If he appears, he is then advised of the reasons for his disqualification. State court judicial review of a contested adverse decision by the Commission is available.

Across the board, since 1968, 25.7% of the black as compared to 15.2% of the white applicants who have undergone background investigations have been disqualified. For certain reasons, the rate of black to white disqualifications has been as high as 2 ...


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