Fire department says affirmative action is still needed; 3 whites say it's not, and it's kept them from jobs.
David Vivenzio, of Syracuse, is a volunteer firefighter with Mattydale Fire Department. Vivenzio sued the city of Syracuse, contending it was unfair for the city to hire mi´norities over him even though he had the higher test score. âThis is not about race, â Vivenzio said. âWeâre looking for fair and equal.â In Syracuse, there’s outrage over black-white disparities: Just 1 percent of the city’s firefighters are black — far less than the 10 percent in the city’s labor pool.
Syracuse is among the first cities to find a remedy. City leaders go to court and file a document that makes it OK for them to hire contrary to the law, by picking black firefighters and police officers who score lower than whites on civil service exams.
The document is essentially a license to racially discriminate, with justification. A federal judge in Syracuse says it is a means of guaranteeing “that America’s promise of freedom and equality is more than just a dream.”
Thirty years later, that document, called a consent decree, is at the center of a civil rights lawsuit against the city. It’s been blocking David Vivenzio, Scott Wilkinson and John Finocchio from their lifelong dream of becoming a professional firefighter. They say the time has come to get rid of it.
The fire department now has 59 black firefighters, or 16.6 percent of the 355 total.
A federal judge in 2008 threw out the lawsuit, but an appeals court last month overturned that decision and revived it in a lower court in Syracuse.
Nationwide, federal courts have struck down similar affirmative action cases in recent years because they’re outdated.
Scott Wilkinson, of Liverpool, is a volunteer firefighter with the Moyers Corners Fire Department. The city of Syracuse says it did not hire him because his civil service score was too low, but blacks with even lower scores were hired. Last year, the U.S. Supreme Court ruled in favor of white firefighters in New Haven, Conn., who claimed reverse discrimination when the city tossed out a 2003 promotion test because nearly all minorities failed.
In 2003, a federal judge ordered the city of Boston to hire four white firefighters who challenged the city’s 30-year-old consent decree. The judge found the city had met the decree’s goal of hiring enough minorities so the total number in the department roughly reflected their percentage in the city’s population.
Such decrees are being thrown out across the country, as are other affirmative action policies, said University of Michigan law professor Richard Primus. The movement stems from a Supreme Court that’s become increasingly intolerant of any form of race-conscious decision-making by government, Primus said.
In 2007, the court struck down a quota requirement for the number of black and white students in Seattle’s public high schools. In that case, Chief Justice John Roberts wrote a line that could be the battle cry for the anti-affirmative action side: “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”
There’s a flip side to that argument, said Primus, a leading expert on employment discrimination law whose work the Supreme Court has cited.
The rule
The 1980 decree set two goals for the Syracuse Fire Department:
• Blacks should make up 10 percent of each rank in the department.
• The percentage of blacks in the department should match the percentage of blacks in the Syracuse labor pool.
The department today
The department’s staff is 16.6 percent black. Nine percent of ranking officers are black.
The Syracuse labor pool
Both sides are working to figure out what the Syracuse labor pool looked like when the 2005 lawsuit was filed. Five years earlier, it was 21 percent black.
“When people have knife wounds, they sometimes need surgery to heal,” Primus said. “It’s more cutting with a knife. But it’s a different kind of cutting — one is the problem and one is the solution.”
The federal courts have been less tolerant of affirmative action policies affecting school integration, busing, housing and business set-asides, said Timothy Fennell, the lawyer for the three Syracuse men who are suing.
“The Supreme Court has laid out a standard of strict scrutiny for reviewing affirmative action plans,” Fennell said. “Essentially what they say is affirmative action policies are constitutional and a proper remedy to address past harms, but they can’t go on forever.”
The city’s lawyer, Juanita Perez Williams, acknowledges the trend. But those involve cases where the goals of the decrees have been met, she said.
“Our position is we’re not there yet, not in Syracuse,” Perez Williams said. “You have to make that argument now because the courts are looking down on these types of agreements.”
The city has asked the appeals court to reconsider the case, with the entire panel hearing arguments instead of only three judges.
The two sides are tussling over the language of the 1980 decree. It lays out two goals for the city: blacks should make up 10 percent of each rank in the department, and the percentage of blacks in the department should match the percentage of blacks in the Syracuse labor pool.
Fennell argues that the intent of the decree was 10 percent of the entire department, not 10 percent of each rank. It’s not logical to hang onto the decree, which only allows for hiring at the lower ranks, until the percentage is met at higher ranks, he said.
But the language in the decree is clear, Perez Williams said. And it says that to attain that goal, the city is allowed to fill jobs with 25 percent African Americans even if the black applicants score below white applicants.
The other goal of matching the labor pool percentage sent the case back to federal court. The 2nd U.S. Circuit Court of Appeals ruled Judge David Hurd erred when he based his decision on the general population of the city, not the labor pool. The two sides are trying to come up with that number for 2005 — the year when the candidates in the lawsuit applied. Five years earlier, Census figures showed the labor pool was 21 percent black and the general population was 25 percent black.
Fennell contends officials in the Fire Department itself thought the decree’s goals had been met years ago. He cites a letter from then-Fire Chief John Cowin in 2002: “We have met and exceeded the goals of the consent decree in every way,” the letter said.
John Finocchio, of Syracuse, accuses the city of reverse discrimination and age discrimination when it didnât hire him despite a perfect test score. The city, in court papers, said he wasnât hired because he didnât reveal a 15-year-old driving-while-ability-impaired conviction. Finocchio said he didnât mention that because the application only asked about criminal convictions, and his was a violation. The decree is an important tool in recruiting black firefighters — especially with the department losing some of its African American members to retirement, Fire Chief Mark McLees said.
“It’s a constant effort to maintain a diverse fire department,” McLees said. “It doesn’t happen by itself. Just this year, two African American firefighters are retiring. That’s a number that affects the whole percentage.”
The lawsuit was filed five years ago by Vivenzio, Wilkinson, Finocchio and nine other white applicants who were denied jobs as firefighters because of the consent decree.
Six of them were hired a year later and three others dropped out of the case. The city’s lawyers said in court papers that the department didn’t hire Vivenzio and Wilkinson because their civil service scores of 95 were too low — although higher than the African Americans who were hired. The department didn’t hire Finocchio despite his score of 105 because he did not reveal that he had a driving-while-ability-impaired conviction 15 years earlier, court papers said.
Finocchio said he didn’t mention that because the application only asked about criminal convictions, and his was a violation.
The lawsuit claims the city violated the men’s civil rights by relying on the consent decree even after its goals had been met.
“There was a time for this in the ’70s, when it was needed,” said Wilkinson, 39, who’s a volunteer firefighter with Moyers Corners and owns a portable restroom company.
“Now it’s not needed,” Wilkinson said. “We have women mayors and county executives. They didn’t get in because they’re minorities. They got in because of what they’ve done.”
The legal battle comes down to an interpretation of the decree’s intended goals. Here’s the language from the 1980 decree:
“The city desires to ... achieve the long-term goal to utilize blacks in all ranks within the fire and police departments in numbers approximating their representation within the labor force,” the decree said. “Subject to the foregoing sentence, the parties agree that the long-term goal for blacks in each rank is approximately 10 percent.”
The goals of the decree have not been met in Syracuse’s Police Department, where 7 percent of the 489 officers are black.
Vivenzio, 46, said he hopes the lawsuit will fulfill his lifelong dream of being a professional firefighter. If the court rules in his favor, he would take the job as soon as possible, he said.
“I’ve been taking that test since I was 18,” he said. He works for the Salina Highway Department, and has been a volunteer firefighter for 30 years — now with Mattydale.
Fennell wants the city to reassess the need for the decree. The state police were under a similar consent decree in the 1980s and they put on a statewide push to hire black troopers, he said. When they hit the decree’s goal soon afterward, the agency went back to court and got the decree terminated, Fennell said.
“The city should either petition to terminate it or modify it” so the goal is to get more black firefighters promoted to supervisors, he said.
That would be a welcome goal, said Lonnie Johnson, a firefighter and member of Firefighters of Color United in Syracuse. Of the 91 ranking officers, only eight are black, or 9 percent. None of the six deputy chiefs or chief are black.
But the decree’s original intent is still needed, Johnson said. That’s especially true because many of the African Americans hired 20 years ago are starting to retire, he said.
The city will continue using the decree until it’s ordered not to, Perez Williams said.
“We want to make the right decision here,” she said. “But it’s our position that we’ll continue implementing it because we feel that we need to make both our police and firefighters diverse.”
Contact John O’Brien at jobrien@syracuse.com or 470-2187.