Petition — Washington v. Davis

| Supreme Court, U. &

FILED

IN THE MAY 28 N

Supreme Court of the Anittd Staten „ den

OCTOBER TERM, 1974

d. 74-1492

WALTER E. WASHINGTON, Individually and in his capacity

as Commissioner of the District of Columbia, et al.,

- Petitioners,

ALFRED E. DAvis, et al.,

GEORGE HARLEY

JOHN D. SELLERS,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

C. FRANCIS MURPHY,

Corporation Counsel, D. C.

Louis P. ROBBINS,

Principal Assistant Corporation

Counsel, D. C.

RICHARD W. BARTON,

Assistant Corporation

Counsel, D. C.

Davip P. SUTTON,

Assistant Corporation

Counsel, D. C.

Attorneys for Petitioners,

District Building,

Washington, D. C. 20004

Telephone: 629-3916

Page

11 K 2 ee 1

Jurisdiction — 2

r ͥ¶ = —ͤe.ê 2

Statement of the Case 2

Reasons for Granting the Writ 6

Conclusion — 13

CASES CITED

Bridgeport Guardians, Inc. v. Members of Bridge-

port C. S. Com'n (D. Conn., 1973), 354 F. Supp.

778, aff'd. in part, rev’d. in part (2nd Cir.,

1973), 482 F. 2d 1333. 9

Buckner v. Goodyear Tire and Rubber Co. (N.D.

Ala., 1972), 339 F. Supp. 1108, aff’d. (5th Cir.,

1973), 476 F. 2d 1287 7

Castro v. Beecher (D. Mass., 1971), 334 F. Supp.

930, aff'd. in part (Ist Cir., 1972), 459 F. 2d

Fee 10, 12

Chance v. Board of Examiners (2nd Cir., 1972),

458 F. 2d 1167 12

Commonwealth of Pennsylvania v. ONeill (ED.

Pa., 1972), 348 F. Supp. 1084 9

Griggs v. Duke Power Co. (1971), 401 US.

424 2, 5, 6, 7, 11,12

Officers for Justice v. Civil S. Com’n, C. & C. San

Francisco (N. D. Cal., 1973), 371 F. Supp. 1328. 11

Smith v. City of East Cleveland (N.D. Ohio, E.D.,

1973), 363 F. Supp. 1131— 1 11

Spurlock v. United Airlines, Inc. (10th Cir, 1972),

475 F. 2d 216 8

Western Addition Community Organization v.

Alioto (N. D. Cal., 1972), 340 F. Supp. 1351 12

II

INDEX - Continued

UNITED STATES CODE CITED

,

Title 42, Section 2000e-2 (j)

OTHER AUTHORITIES CITED

Civil Rights Act of 1964, Title VII, Section

1311

110 Cong. Rec. 13492

110 Cong. Rec. 13503-13505

110 Cong. Rec. 13724

Note: Developments in the Law—Employment Dis-

crimination and Title VII of the Civil Rights

Act of 1964, (1971), 84 Harv. L. Rev. 1109,

Se 6 **

INDEX TO APPENDIX

Opinion of the United States Court of Appeals for the

District of Columbia Circuit, dated February 27,

1975

Order of the United States Court of Appeals for the

District of Columbia Circuit, dated March 3,

1975, amending majority opinion filed February

11 TC

Memorandum opinion and order of the United States

District Court for the District of Columbia, dated

... .

The David L. Futransky Study, dated November

1 ˙

24242

1a

46a

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

No.

WALTER E. WASHINGTON, Individually and in his capacity

as Commissioner of the District of Columbia, et al.,

Petitioners,

v.

ALFRED E. DAVIS, et al.,

GEORGE HARLEY

JOHN D. SELLERS,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners, the Mayor-Commissioner of the District of

Columbia and the District’s Metropolitan Police Chief,

pray that a writ of certiorari issue to review the judg-

ment of the United States Court of Appeals for the

District of Columbia Circuit entered in the above-titled

cause on February 27, 1975.

OPINIONS BELOW

The opinion of the Court of Appeals has not yet been

reported and is set forth in the Appendix at pages 1

through 45. The opinion of the District Court is reported

2

at 348 F. Supp. 15 (1972), and is set forth in the

Appendix at pages 48 through 52.

JURISDICTION

The judgment of the Court of Appeals was entered

on February 27, 1975. Jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether the Court of Appeals departed from es-

tablished criteria recognized by this Court in Griggs v.

Duke Power Co., 401 U.S. 424 (1971), in overturning

the District Court’s ruling that the Metropolitan Police

Department’s professionally validated entrance test, de-

signed to measure an individual’s verbal ability to suc-

ceed in the Department’s recruit training program, is job

related and non-discriminatory.

2. Whether the Court of Appeals misapplied this

Court’s decision in Griggs in concluding, on the basis of

minority pass-fail data alone, that the test had a racially

disproportionate impact sufficient to shift the burden of

showing its job relatedness, notwithstanding a favorable

correlation between minority recruitment percentages and

minority population percentages.

STATEMENT OF THE CASE

Petitioners are the Mayor-Commissioner of the District

of Columbia and the District’s Metropolitan Police Chief.

Respondents are unsuccessful applicants for appointment

to the Metropolitan Police Department (hereinafter “the

Department”) who failed the Department’s entrance test

(hereinafter “Test 21”). Petitioners seek review of the

decision of the United States Court of Appeals for the

District of Columbia Circuit in which the Court held,

with Judge Robb dissenting, that Test 21 has a dispropor-

tionate racial impact and was not shown to be job

related. In so holding, the Court of Appeals reversed

the decision of the United States District Court for the

District of Columbia. The District Court upheld the

validity of Test 21 and entered summary judgment in

petitioners’ favor. The key facts are as follows.

city. Since Chief Wilson took office in August 1969,

the Department has made significant efforts to recruit

black officers, and 44% of all new recruits have been

black (A. 76, App. 49)“ An affidavit of the Depart-

ment’s Administrative Services Officer executed on July

17, 1972, recites that:

II os es

age group [according to the 1970 Census] was re-

flected to be 142,161 with the racial contrast being

as follows:

Black Males 42,447

Females 53,352

95,799

White Males 22,711

Females 23,651

46,362

The 20-29 age group is that age group from which

P

new officers are recruited. When viewed from the

standpoint that for our recruiting purposes the ‘local’

or metropolitan Washington Area is a radius of 50

miles, a rate of hiring blacks of 44% is demonstra-

tive of the success of the Department’s effort to re-

1The Appendix filed in the Court of Appeals has been certified

4

cruit blacks since that percentage is significantly

higher than their proportional representation in the

‘local’ recruiting area.“ (A. 76-77.)

A detailed survey of recruiting in the period January

1970 to September 1970 shows that more than 50%

of officers recruited were black (A. 72-73; App. 49-50).

Respondents, as applicants for appointment, took and

failed Test 21 in August 1970 (A. 30). Over the past

several years, many blacks, numbering in the hundreds,

passed the test but, for other reasons, did not become

members of the Department (App. 50). Among the

applicants tested in the District of Columbia from 1968

to 1971, 57% of the blacks failed the test as compared

to a failure rate of 13% for whites (App. 4).

Applicants for appointment to the Department are

required, inter alia, to achieve a minimum score of 40 out

of a possible score of 80 in Test 21. Prepared by the

United States Civil Service Commission (hereinafter “the

Commission”), Test 21 is a straightforward test of verbal

ability consisting of vocabulary, reading comprehension,

interpretation of reading passages, and general informa-

tion items. It is used to predict the success of applicants

in the Department’s Training Academy. (A. 42, 110,

129-152.) A study done by the Commission in November

1967 (App. 53-62) firmly established a clear and positive

relationship for both blacks and whites between their

Test 21 scores and their academic averages at the Train-

ing Academy. The study was tendered to the District

Court together with the affidavits of various psychologists

who analyzed and explained the study and commented

favorably on Test 21 as a predictive device designed to

ascertain whether an individual has the verbal ability

to be trained as a policeman (A. 96-128).

One such psychologist, in addition to reviewing Test

21, reviewed the study materials distributed to recruits

at the Training Academy, including materials relating

to the Law of Arrest, Search and Seizure, the Rules

the level of verbal ability measured by Test 21 is, at

most, no higher than that required for successful com-

pletion of recruit school training as determined by the

final grade average attained by the recruit” (A. 107-

108). This psychologist concluded that:

the recruit must have the verbal ability to

read and understand rather complex, legalistic lan-

guage. It is my opinion that there is a direct and

rational relationship between the content and diffi-

culty of Test 21 and successful completion of recruit

school training.” (A. 108.)

In upholding Test 21, the District Court heid that it did

not have an adverse racial impact. The court observed

that, notwithstanding the relatively higher percentage

of black test failures, the percentage of black officers

recruited by the Department closely approximates the

population ratio for the eligible 20-29 age group (App.

49). In addition, the court reviewed the syllabus of

the training course at the Police Academy and noted

that it was designed to meet the Metropolitan Police

Department’s needs to train recruits who have the verbal

ability to assimilate a variety of matters pertinent to

modern law enforcement. The court held that Test 21

was a fair measure of that verbal ability and that de

undisputable facts prove the test to be reasonably and

directly related to the requirements of the police train-

ing recruit program” (App. 50-51).

In reversing, the Court of Appeals construed this

Court’s decision in Griggs v. Duke Power Co., 401 U.S.

424 (1971). Notwithstanding the favorable correlation

between minority population data and minority recruit-

ment data, the Court held, on the basis of pass-fail rates

6

alone, that the challenged examination has a racially

disproportionate impact and that the burden of showing

its job relatedness accordingly shifted to petitioners (App.

8). In ruling that petitioners failed to discharge that

burden, the Court was “willing to assume that * * *

[petitioners] have shown that Test 21 is predictive of

future progress in recruit school” (App. 12-13). How-

ever, the Court concluded that recruit trainability was in-

apposite as a criterion for validating Test 21, stating

that (App. 17):

“* * * As long as no one with a score below 40

enters Recruit School, as long as all recruits pass

Recruit School, as long as the Department’s actions

concede that Recruit School average has little value

in predicting job performance, and as long as there

is no evidence of any correlation between the Recruit

School average and job performance, we entertain

grave doubts whether any of this type of evidence

could be strengthened to the point of satisfying the

heavy burden imposed by Griggs.”

REASONS FOR GRANTING THE WRIT

The ruling of the Court of Appeals involves the right

of a modern day police department to administer to

applicants for appointment an examination designed to

ascertain whether they possess the verbal ability to be

trained as policemen. The importance of such a matter

in an historical era characterized by criminal law con-

cepts of evolving complexity, to which the contemporary

policeman is constantly exposed, is readily apparent. The

corresponding need for government and law enforcement

officials to ascertain that police recruits have the requisite

verbal skills to be properly trained in the application

of these vital concepts is equally clear.

Griggs v. Duke Power Co., 401 U.S. 424 (1971), is

the only case in which this Court has, to date, rendered

7

an opinion concerned with employment testing in the

context of a racial discrimination claim. This Court

strongly suggested in Griggs, however, that a test must be

judicially upheld if “directed or intended to measure

the ability to learn to perform a particular job” (401

U.S. at 428). See also 401 U.S. at 434-435. That sug-

gestion indeed squares with the legislative history of

Section 703(h) of Title VII of the Civil Rights Act of

1964, 42 U.S.C. §2000e-2(h), with which this Court

was there concerned. See 110 Cong. Rec. 13492, 13503-

13505, 13724; see also Note, Developments in the Law-

Employment Discrimination and Title VII of the Civil

Rights Act of 1964, 84 Harv. L. Rev. 1109, 1126 (1971);

ef. App. at 17-18, n. 59. In prohibiting the use of Test

21 as a means of determining recruit trainability, the

Court of Appeals has relied on standards of an extremely

rigid and highly questionable nature. The need for

clarifying and instructive pronouncements by this Court

is underscored by a comparative analysis of other re-

cent federal appellate decisions in which the courts sig-

nificantly fail to countenance such a rigid approach to

the trainability matter involved.

In Buckner v. Goodyear Tire and Rubber Co., 339 F.

Supp. 1108 (N.D. Ala., 1972), the District Court, in an

opinion subsequently adopted by the Fifth Circuit Court

of Appeals, 476 F. 2d 1287 (1973), upheld a test shown

to be related to success in the employer’s apprenticeship

training program. The court’s view of the circumstance

that no one selected for the training program failed (and

comparatively less stringent view of the employer’s bur-

den) stands in sharp contrast to the rigid approach

taken by the Court of Appeals in this case (App. 17).

In that connection, the District Court said (339 F. Supp.

at 1115):

„It is at least of some significance that since the

tests were utilized no one selected for the program

has failed in either the academic or practical phases

of training, though a few have dropped out before

completion.”

And in Spurlock v. United Airlines, Inc., 475 F. 2d

216 (10th Cir., 1972), the court, in holding a college

degree requirement related to the ability to be trained

for the job of airline flight officer, noted an evidentiary

showing that “the possession of a college degree indicated

that the applicant had the ability to understand and

retain concepts and information given in the atmosphere

of a classroom or training program” (475 F. 2d at 219).

In discussing the nature of the employer’s burden in

light of the job involved, the court said (id.):

“When a job requires a small amount of skill and

training and the consequences of hiring an unquali-

fied applicant are insignificant, the courts should ex-

amine closely any pre-employment standard or cri-

teria which discriminates against minorities. In such

a case, the employer should have a heavy burden to

demonstrate to the court’s satisfaction that his em-

ployment criteria are job-related. On the other hand,

when the job clearly requires a high degree of skill

and the economic and human risks involved in hiring

an unqualified applicant are great, the employer

bears a correspondingly lighter burden to show that

his employment criteria are job-related. * * *” (Em-

phasis added.)

Given the nature of the policeman’s job in a contemporary

society, the failure of the Court of Appeals to take a

similar approach in this case surely invites this Court’s

examination. At a time in history when all police officers,

and certainly newly recruited patrolmen, are frequently

faced with matters such as advising defendants of their

rights under the Miranda decision, determining whether

there is probable cause for an arrest or search, swearing

out warrants, ete., the verbal ability necessary for the

assimilation of a rudimentary knowledge of problems

such as these is necessary if the public is to be properly

protected and the law effectively enforced. This takes on

added significance in an era of rising lawlessness and

criminal violence. While these considerations do not ex-

cuse a police department from demonstrating that an

entrance test is rationally related to recruit trainability,

it is equally clear that an examination designed to gauge

the existence of that essential trait must not be invali-

dated simply because the department cannot prove its

case to the hilt. Yet the ruling of the Court of Appeals,

if permitted to stand, accomplishes precisely such a re-

sult.

The need for settlement by this Court of the important

matter involved is further illustrated by a consideration

of the decisions of lower federal courts which have con-

sidered the job relatedness of other police entrance tests

from the standpoint of predicting trainability. It must

be noted in this regard that the opinion of the Court of

Appeals contains the only extensive discussion to date

of that matter by any Circuit Court of Appeals. The

ruling of the District Court in Commonwealth of Penn-

sylvania v. O'Neill, 348 F. Supp. 1084 (E. D. Fa., 1972),

upon which the Court of Appeals places considerable reli-

ance, was affirmed on appeal by an equally divided en

bane court insofar as the District Court’s rulings as to

police hiring procedures were concerned. 473 F. 2d 1031

(3rd Cir., 1973). And in Bridgeport Guardians, Inc. v.

Members of Bridgeport C. S. Com’n., 354 F. Supp. 778

(D. Conn., 1973), aff’d. in part, rev’d. in part, 482 F.

2d 1333 (2nd Cir. 1973), the Court of Appeals had no

occasion to canvass the police trainability question in-

volved here because no criterion related validity study as

to trainability was proffered in the District Court. 354

F. Supp. at 789-790. Thus, unlike in the instant case, it

was not established “that high test scores correlate well

with success in the training program * .“ 354 F.

10

Supp. at 791. It is quite significant, however, that the

District Court, in commenting upon the decision of Dis-

trict Judge Gesell in this very case, noted that the “ap-

proach of that decision is consistent with the Analysis

here.” 354 F. Supp. at 793. The court went on to state

(id.) that:

“* * The exam [involved in the instant case]

was considered in the context in which it was used,

and it was found acceptable in light of all the cir-

cumstances of the case. These included some cor-

relation between high test scores and high job per-

formance, the use of a 40% passing grade, the ad-

mission of all applicants with this passing grade to

the police training academy, concerted efforts by the

police department to assist those in the academy to

complete the required training program, extensive

recruiting efforts among minority groups, and the

fact that 44% of recently hired policemen were

Blacks. In those circumstances the exam was found

to have sufficient utility in selecting policemen. * * *”

And in Castro v. Beecher, 334 F. Supp. 930 (D. Mass.,

1971), aff'd. in part, 459 F. 2d 725 (1st Cir., 1972),

Judge Wyzanski observed that no evidentiary attempt

had been made to relate an intelligence test to the capac-

ity of applicants to either be trained for or perform a

policeman’s job (334 F. Supp. at 942), and went on to

note (id. at n. 9) that:

“It is possible that intelligence tests may be pre-

dictive of ability to be trained for, but not of ability

ultimately to perform, a policeman’s job. See Note

84 Harv. L. Rev. 1109, 1126. It is also possible that,

no matter how well devised, intelligence tests and

even aptitude tests are not highly reliable indicators

of performance ability as a policeman. Ibid., pp.

1120-1121. ° * *”

Other police testing cases cited by the Court of Appeals

(App. 15, n. 51) only serve to underscore the unsettled

11

nature of the important question involved. Thus, in Offi-

cers for Justice v. Civil S. Com’n, C. & C. San Francisco,

371 F. Supp. 1828, 1887 (N. D. Cal., 1973), unlike in

the instant case, a comparison by an expert of “the scores

of candidates on the entry test with the scores they later

received on tests after time spent in training at the police

academy” disclosed that “all individuals performed, in

rough terms, equally well on the latter test, regardless

of how well they performed on the former examination.”

And in Smith v. City of East Cleveland, 363 F. Supp.

1131, 1147 (N. D. Ohio, E. D., 1973), the validation

studies, unlike that involved here, “were apparently done

with respect to whites only.”

The Court of Appeals has additionally held in effect

that statistical data depicting minority pass-fail rates

must always constitute proof of a racially disproportion-

ate impact sufficient to shift the burden of establishing

job relatedness regardless of the significance of other

data tending to show the absence of an adverse racial

impact (App. 8). Although this Court held in Griggs

that disproportionate minority pass-fail rates were suffi-

cient to shift the burden of demonstrating job related-

ness of the test in that particular case (401 U.S. at 430-

431), this Court did not convey the slightest suggestion

that a District Court abuses its discretion in declining

to make a determination of racially disproportionate im-

pact and require a demonstration of job relatedness on

the basis of minority pass-fail data alone, when, as here,

minority recruitment percentages significantly correlate

with minority population percentages. Indeed, the statis-

tical pass-fail data in Griggs combined with evidence of

a former longstanding practice of job preference to

whites not depicted by this record (cf. 401 U.S. at 426).

And various lower federal courts, in dealing with the

matter of disproportionate racial impact in cases involv-

ing employment testing, appear to concern themselves not

12

so much with factors such as comparative pass-fail rates

as with percentages of racial minorities actually em-

ployed by the entity involved vis a vis statistics such as

those relating to overall minority population percentages.

See Chance v. Board of Examiners, 458 F. 2d 1167, 1173,

1176 (2nd Cir., 1972); Castro v. Beecher, supra, 334 F.

Supp. at 935; Western Addition Community Organiza-

tion v. Alioto, 340 F. Supp. 1351, 1352 (N. D. Cal., 1972).

Minority pass-fail data may, of course, justify a find-

ing of racially disproportionate impact in an appropriate

case, especially in the absence of other statistical data.

But the holding of the Court of Appeals that such data

invariably serves this purpose no matter how imprvs-

sively minority recruitment percentages compare with

minority population mix (App. 8), if not a clear misap-

application of Griggs, surely presents a significantly

important question as to the proper applicability of that

decision.

Clearly, therefore, the apparent conflict of the decision

of the Court of Appeals with this Court’s decision in

Griggs v. Duke Power Co., supra, the unclear, confusing,

and conflicting state of the post-Griggs decisional trend,

and the compelling policy considerations directed to the

recruitment of verbally skilled policemen combine to pre-

sent a question of sufficient substance and importance to

warrant review by this Court.

13

CONCLUSION

Upon the foregoing, it is respectfully submitted that

the petition for a writ of certiorari should be granted.

C. FRANCIS MURPHY,

Corporation Counsel, D. C.

Louis P. ROBBINS, «

Principal Assistant Corporation

Counsel, D. C.

RICHARD W. BARTON,

Assistant Corporation

Counsel, D. C

Davip P. SUTTON,

Assistant Corporation

Counsel, D. C

Attorneys for Petitioners,

District Building,

Washington, D. C. 20004

Telephone: 629-3916

*

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„

la

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 72-2105

ALFRED E. DAVIS, ET AL.,

GeoRGE HARLEY, JOHN D. SELLERS, APPELLANTS

V.

WALTER E. WASHINGTON, Individually and In His

Capacity as Commissioner of the District of Columbia

Appeal from the United States District Court

for the District of Columbia

(D.C. Civil No. 1086-70)

Decided February 27, 1975

Richard B. Sobol, with whom George Cooper, Richard

T. Seymour and Ralph J. Temple were on the brief, for

appellants.

David P. Sutton, Assistant Corporation Counsel for

the District of Columbia, with whom C. Francis Murphy,

Corporation Counsel, and Richard W. Barton, Assistant

Corporation Counsel, were on the brief, for appellee

Washington.

Harold H. Titus, Jr., United States Attorney at the

time the brief was filed, with whom John A. Terry and

2a

Douglass J. McCollum, Assistant United States Attor-

neys, were on the brief, for the federal appellees. Earl

J. Silbert, United States Attorney, also entered an ap-

pearance for the federal appellees.

Before MCGOWAN, ROBINSON and Ross, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBINSON.

Dissenting Opinion filed by Circuit Judge Ross.

ROBINSON, Circuit Judge: On behalf of all blacks who

have unsuccessfully sought appointment to the District

of Columbia Metropolitan Police Department since 1968,

appellants intervened in this class action to assert the

claim that Test 21, a written entrance examination ad-

ministered to all applicants, discriminates against blacks

in violation of the Due Process Clause of the Fifth

Amendment and federal civil rights laws. The District

The litigation originally was a class action challenging allegedly

discriminatory practices in promotion of police officers within the

Department. That action was decided adversely to the original

plaintiffs, Davis v. Washington, 352 F.Supp. 187 (D.D.C. 1972), and

is not involved in this appeal.

* Until 1972, governmental employers were not subject to Title

Vii of the Civil Rights Act of 1964, Pub. L. No. 88-352, § VII, 78

Stat. 253, 42 U.S.C. §§ 2000e et seg. (1970), and governmental em-

ployees in the states sought relief from allegedly discriminatory

practices under the Equal Protection Clause of the Fourteenth

Amendment. F.., Castro v. Beecher, 459 F.2d 725, 733 (ist Cir.

1972) ; Chance v. Board of Examiners, 458 F.2d 1167, 1169 (2d Cir.

1972) ; Carter v. Gallagher, 452 F.2d 315, 318 (8th Cir. 1971), cert.

denied, 406 U.S. 950 (1972). Since the equal protection requirement

is imposed on the Federal Government, and its actions in governing

the District of Columbia, by the Fifth Amendment Due Process

Clause, Bolling v. Sharpe, 347 U.S. 497 (1954); Bolton v. Harris,

130 U.S. App. D.C. 1, 4 n.3. 395 F.2d 642, 645 n.3 (1968), these

decisions are plainly relevant to the constitutional contentions in

the instant case. In addition to their constitutional base, appellants

seek a statutory foundation for relief in the Civil Rights Act of

1870. Act of May 31, 1870, ch. 114, § 16, 16 Stat. 144, 42 U.S.C.

§ 1981 (1970).

Although appellants’ complaint did not allege a violation of Title

VII of the Civil Rights Act of 1964, which then was inapplicable

3a

Court concluded that Test 21 was nondiscriminatory in

design and operation and was “reasonably and directly

related to the requirements of the police recruit training

program.“ The court entered summary judgment for

the defendants, appellees here, and this appeal followed.“

We hold that appellants have demonstrated on the record

that Test 21 has a racially disproportionate impact,“ and

to the Federal Government, decisions applying Title VII furnish

additional instruction as to the legal standard governing the issues

raised in this case. See Part I(B), infra. The many decisions

disposing of employment discrimination claims on constitutional

grounds have made no distinction between the constitutional stand-

ard and the statutory standard under Title VII. F.., Davis v.

Washington, supra note 1, 352 F.Supp. at 191; Bridgeport Guard-

ians, Inc. v. Civil Serv. Comm'n, 482 F.2d 1333 (2d Cir. 1972),

cert. denied, 412 U.S. 909 (1973); Fowler v. Schwarzwalder, 351

F.Supp. 721 (D.Minn. 1972). Moreover, while the Title VII protec-

tions did not extend to appellants at the time of intervention, Con-

gress has since amended Title VII to reach charges of racial

discrimination in federal employment, Equal Employment Oppor-

tunity Act of 1972, Pub.L. No. 92-261, § 717, 86 Stat. 211, 42 U.S.C.

§ 2000e-16 (Supp. II 1972), and appellants unquestionably are en-

titled to the benefit of the amendment. See De Rodulfa v. United

States, 149 U.S.App.D.C. 154, 164, 461 F.2d 1240, 1250, cert. denied,

409 U.S. 949 (1972), and cases cited; Womack v. Lynn, —— U.S.

App.D.C. ——, 504 F.2d 267 (1974).

* Davis v. Washington, 348 F.Supp. 15, 17 (D.D.C. 1972).

*The defendants were Walter E. Washington, Mayor-Commis-

sioner of the District of Columbia; Jerry V. Wilson, Chief of Police

at the time of intervention (District appellees) ; and the commis-

sioners of the United States Civil Service Commission (federal

appellees) .

»The District Court made the determination and direction au-

thorized by Fed.R.Civ.P. 54(b). At the time summary judgment

was granted, the claims of discrimination in promotion were still

pending. See note 1, supra.

* See Part II, infra. We have taken Judge Friendly's advice and

used this term to avoid the pejorative connotations of synonymous

phrases. Vulcan Soc'y v. Civil Serv. Comm'n, 490 F.2d 387, 391

n.4 (2d Cir. 1973). See Boston Chapter, NAACP, Inc. v. Beecher,

504 F.2d 1017, 1019 (ist Cir. 1974); United States v. Chicago, 385

F. Supp. 543, 550 (N. D. III. 1974).

4a

that appellees have not met their heavy burden of show-

ing that the test is related to job performance.’ Accord-

ingly, we reverse the summary judgment and remand for

further proceedings.

I. THE APPLICABLE LEGAL STANDARD

A. The Facts

Applicants are appointed to positions in the Metropoli-

tan Police Department if they satisfy character and

physical standards, have a high school diploma or the

equivalent, and receive a raw score of 40 or above on

Test 21.“ The test was developed by the Civil Service

Commission for general use throughout the federal serv-

ice as a measure of verbal ability, rather than specifically

to measure the full range of skills required to perform

the tasks of a police officer.“ The Department was not

involved in the formulation of Test 21.

Appellants tendered to the District Court statistical

evidence purportedly demonstrating that Test 21 has a

disproportionate impact on black applicants. Among the

applicants tested in the District of Columbia from 1968

through 1971, 57% of the blacks failed the test, as com-

pared to a failure rate of 13% for whites.” Although

black applicants thus failed Test 21 at a rate more than

See Part III, infra.

Davis v. Washington, supra note 3, 348 F.Supp. at 16.

Id.

™ Appellants’ Appendix at 57 (affidavit of C. Terrence Ireland.

§ 2). Among the applicants tested outside the District in 1970

and 1971, the failure rete was 47% for blacks and 12% for whites.

Id. These data were obtained from the District appellees in dis-

covery proceedings, and include minorities other than blacks in the

statistics given for whites. Thus, while “whites and others” would

more accurately state the evidence presented to the court, for con-

venience we will refer to this category as “whites.”

5a

four times greater than the rate for whites, appellees

dispute the capability of these statistics to prove a racially

disproportionate impact. They further contend that, re-

gardless of the sufficiency of this evidence, Test 21 can

be used in selecting police officers because it is sufficiently

job related. In support of the latter proposition, they

offer a validity study conducted under the auspices of

the Civil Service Commission demonstrating, they claim,

that scores on Test 21 accurately predict performance in

Recruit School, the Department’s police training program.

B. The Griggs Standard

In Griggs v. Duke Power Co.,“ the Supreme Court

considered the legality of standardized intelligence tests

under Title VII of the Civil Rights Act of 1964." “If

an employment practice which operates to exclude Negroes

cannot be shown to be related to job performance,” the

Court said, “the practice is prohibited.“ Once it is

shown that a particular selection procedure has an ex-

clusionary effect on minority applicants, there is a heavy

burden on the employer to show that discriminatory pro-

cedure “bear[s] a demonstrable relationship to successful

performance of the jobs for which it was used.“ In

the instant case, if appellants’ evidence is sufficient to

u David L. Futransky, Relation of D.C. Police Entrance Test

Scores to Recruit School Performance and Job Performance of

White and Negro Policemen, mimeograph, November, 1967 (here-

inafter cited as Futransky Study).

12401 U.S. 424 (1971).

13 See note 2, supra, and accompanying text.

401 U.S. at 431.

18 Jd. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

& n.14 (1973); Bridgeport Guardians, Inc. v. Civil Serv. Comm'n,

supra note 2, 482 F.2d at 1337; Officers for Justice v. Civil Serv.

Comm'n, 371 F.Supp. 1328, 1336 (N.D.Cal. 1973); Smith v. East

Cleveland, 363 F.Supp. 1131, 1147 (N.D. Ohio 1973).

6a

show an exclusionary impact on black applicants, and

we hold that it is,“ then the Department must shoulder

the heavy burden of justifying Test 21 by demonstrating

that results on the test are satisfactorily related to

successful performance of the job of a police officer.

The District Court ruled that appellants’ “minimal”

showings (a) that the number of black officers in the

Department is not proportionate to the population mix

of the District, (b) that a higher percentage of blacks

fail Test 21 than whites and (c) that Test 21 has not

been validated to show its reliability for measuring job

performance, did not suffice to shift the burden of proof

to appellees." We find that, in so concluding, the court

incorrectly applied the controlling legal principles and

indulged an erroneous standard. The court’s approach

led it into error in resolving the two crucial issues of the

case—the racially disproportionate impact * and the job

relatedness of Test 21.

II. THE RACIALLY DISPROPORTIONATE IMPACT OF TEST 21

The evidence in the record establishes that the percent-

age of black failures on Test 21 is far greater than

white failures. Despite the clear implication of this

stark fact, the District Court found that Test 21 was

“neither so designed nor operates to discriminate against

otherwise qualified blacks,” and in this regard the court

erred. The cases hold, and we agree, that evidence estab-

lishing that significantly more blacks than whites fail a

See Part II, infra.

Davis v. Washington, supra note 3, 348 F.Supp. at 16.

See Part II, infra.

See Part III, infra.

See text supra at note 10.

Davis v. Washington, supra note 3, 348 F.Supp. at 17.

7a

entrance examination given to all applicants is

— wey as a matter of law, to show the racially dis-

proportionate impact of the examination.“ The disparity

disclosed in this case—more than four to one—is larger

than differences held sufficiently disproportionate in other

cases. Indeed, absent evidence revealing —1 *

for the lopsided failure rates appearing here,

is. difficult to 1 — how disproportionate effect could

ever be better demonstrated.

The District appellees contend that the court could

properly find that appellants had not made the necessary

showing simply by considering the relationship between

the percentage of blacks in the Metropolitan Police De-

partment and the percentage of black population in the

community.“ They assert that other courts have been

22 ro v. Beecher, supra note 2, 459 F.2d at 729 (passing

rate 20% for blacks and 65% for whites); Bridgeport Guardians,

Inc. v. Civil Serv. Comm 'n, supra note 2, 482 F.2d at 1335 (passing

rate for whites 3½ times the black rate); Chance v. Board of Ex-

aminers, supra note 2, 458 F.2d at 1171 (passing rate for whites

1½ times greater than passing rate for blacks) ; United States v.

Chicago, supra note 6, 385 F.Supp. at 550 (failure rate for blacks

twice the rate for whites) ; Pennsylvania v. O'Neill, 348 F.Supp.

1084, 1089-90 (E.D.Pa. 1972), aff'd in part and vacated in part,

473 F.2d 1029 (3d Cir. 1973) (1.82 times as many whites pass as

blacks).

23 Compare the cases cited supra note 22.

2 vis v. Washington, supra note 3, 348 F.Supp. at 16.

een th tan disagreement concerning what figures might be

relevant in this regard. Appellees contend that the Department

recruits primarily within a 50-mile radius of the District of Co-

lumbia; they assert that the percentage of blacks in the Depart-

ment compares favorably with the percentage of blacks in the 20-29

age group in the area of recruitment. Appellants argue, however,

that the pertinent population figures are those for the —

alone; and since the proportion of blacks in the District is muc

higher than in surrounding areas, they seek support in the com-

parison they make. We decline to resolve the dispute, because we

deem neither comparison material to this appeal. See Boston Chap-

ter, NAACP, Inc. v. Beecher, supra note 6, 504 F.2d at 1020 n. 4.

8a

more concerned with that type of information than with

pass-fail rates. Our research discloses, however, that

population data have been considered judicially for only

two purposes. There are a number of cases that have

held population data alone sufficient to show racially

disproportionate impact, but in the apparent absence of

data on pass-fail rates. Other courts have noted popula-

tion data merely to corroborate a showing of racially

disproportionate impact based on pass-fail rates.“ There

is no authority—and we decline to provide any—for the

proposition that proof of a racially disproportionate im-

pact must encompass both pass-fail rates and disparate

population figures. We think the precedents establish

that either demonstration is legally sufficient to shift the

bu.den of establishing job relatedness to the employer.“

Appellees also urge us to consider the i

efforts of the Metropolitan Police Department pape

black officers. We think such efforts are irrelevant to the

issue—the discriminatory effect of Test 21 itself. The

employer's lack of discriminatory intent was deemed

irrelevant by the Supreme Court in Griggs; “Congress

directed the thrust of the [Civil Rights] Act to the

consequences of employment practices,” the Court ad-

** Boston Chapter, NAACP, Ine. v. Beecher 504

5 5, V. , supra note 6,

he at 1020; Morrow v. Crisler, 479 F.2d 960, 961-62 (5th Cir.)

aff'd on rehearing en banc, 491 F.2d 1053 (1974) ; Carter v. Galla-

gher, supra note 2, 452 F.2d at 323; P

1238, 1243 (N.D.Cal. 1970). Fenn v. Stumpf, 308 F.Supp.

*6 Bridgeport Guardians, Inc. v. Civil Serv ,

2, 482 F.2d at 1335; Chance v. Board of 4 stn 1

458 F.2d at 1173; Officers for Justice v. Civil Serv. Comm'n, supra

note 15, 371 F.Supp. at 1332-33 (N.D.Cal. 1973): Smith v. East

Cleveland, supra note 15, 363 F.Supp. at 1146; Castro v. Beecher,

334 F.Supp. 930, 935 (D.Mass. 1971), aff'd i

part, 459 F.2d 725 (Ist Cir. 1972). d in part and remanded in

See cases cited supra notes 25-26.

9a

monished, “not simply the motivation.“ Other courts

have held that an empleyee challenging an employment

practice as discriminatory need not prove a purpose on

the employer’s part to diseriminate; the only intent

requirement is that the employer consciously perform the

allegedly discriminatory act.” Thus it has been expressly

held, and we agree, that efforts to recruit minority

members have no bearing on a showing that ar employ-

ment practice has a racially disproportionate impact.”

Although the Department, quite commendably, has suc-

ceeded in increasing the proportion of black officers

through vigorous efforts, it is self-evident that use of

selection procedures that do not have a disparate effect

on blacks would have resulted in an even greater per-

centage of black police officers than exists today.”

28 Griggs v. Duke Power Co., supra note 12, 401 U.S. at 452

(emphasis in original).

20 Boston Chapter, NAACP, Inc. v. Beecher, supra note 6, 504

F.2d at 1021; Bridgeport Guardians, Inc. V. Civil Serv. Comm'n,

supra note 2, 482 F.2d at 1336; Vulcan Soc’y v. Civil Serv. Comm’n,

360 F.Supp. 1265, 1272 (S.D.N.Y.), aff'd in part and remanded in

part, 490 F.2d 387 (2d Cir. 1973) ; Penn v. Stumpf, supra note 25,

308 F.Supp. at 1244.

20 Hicks v. Crown Zellerbach Corp., 319 F.Supp. 314, 320 (E. D.

La. 1970).

31 United States v. Jacksonville Terminal Co., 451 F. 2d 418, 443

(Sth Cir. 1971), cert. denied, 406 U.S. 906 ( 1972) ; Smith v. East

Cleveland, supra note 15, 363 F.Supp. at 1146; Western Addition

Community Organization v. Alioto, 330 F.Supp. 536, 540 (N.D.

Cal. 1971). See also Johnson v. Goodyear Tire & Rubber Co., 491

F.2d 1364, 1372-73 (5th Cir. 1974).

82 The District Court noted that factors other than Test 21 may

also have limited black recruitment. The court stated that many

blacks pass Test 21 but fail to report for duty, “thus showing how

a small a part the Test per se results in failure to recruit more

blacks.” 348 F.Supp. at 16-17. The record does show that only

48% of blacks who passed Test 21 between January 1, 1970 and

September 4, 1970 reported for duty. Appellants’ Appendix at 72-73

(affidavit of James M. Murray). The same evidence also reveals,

however, that only 49% of the whites who passed Test 21 in the

10a

The evidence this case lays bare is further corroborated

by the “substantial body of evidence that black persons

and other disadvantaged groups perform on the aver-

age far below the norm for whites on generalized intelli-

gence or aptitude tests.“ Judicial decisions on the

“ever-extending series of challenges to civil service ex-

aminations” * unequivocally establish that blacks are

test-rejected more frequently than Whites.“ This phe

nomenon is the result of the long history of educational

deprivation, primarily due to segregated schools, for

blacks.** Until arrival of the day when the effects of that

deprivation have been completely dissipated, comparable

performance on such tests can hardly be expected.

III. Jog RELATEDNESS OF TEST 21

As a result of appellants’ showing that Test 21 has a

disproportionate racial impact, there is a heavy burden

on appellees to prove that the examination bears a dem-

same period reported for duty. To attach any significance to the

black failure is to ignore the fact that the same phenomenon occurs

among whites. Furthermore, during the same time period, blacks

comprised 72% of the applicants taking Test 21 in the District of

Columbia, but only 56% of those who passed and 55% of all new

officers reporting for duty. If the examination had no disparate

effect, one would expect approximately 72%, rather than 55 or

56%, of the successful applicants to be black.

* Arrington v. Massachusetts Bay Transp. Auth., 306 F.Supp.

1355, 1358 (D.Mass. 1969).

Kirkland v. State Dep’t of Correctional Services, 374 F.Supp.

1361, 1364 (S.D.N.Y. 1974).

In every one of the more than twenty reported decisions in-

volving this issue cited in this opinion, the final judicial result has

encompassed a conclusion of racially disproportionate impact.

Griggs v. Duke Power Co., supra note 12, 401 U.S. at 430.

See also Gaston County v. United States, 395 U.S. 285 (1969):

Hobson v. Hansen, 269 F.Supp. 401, 419-21 (D. D.C. 1967), aff'd

sub nom., Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175

(en bane 1969).

lla

onstrable relationship to successful performance as a

member of the Metropolitan Police Department.“ Appel-

lees contend that they have met this burden by establish-

ing a direct relationship between applicants’ scores on

Test 21 and recruits’ average scores on examinations

given in the Department’s Recruit School.“

* See text supra at note 15. The federal appellees intimated to

the District Court that the issue of job relatedness must be reached

in this case even in the absence of any showing of racially dispro-

portionate impact. In their memorandum of points and authorities

in support of their motion for summary judgment, they acknowl-

edged that 5 U.S.C. §3304(a) (1970) requires that examinations

given pursuant to Civil Service Commission authority be job re-

lated. See D.C. Code § 4-103; Note, Legal Implications of the Use of

Standardized Ability Tests in Employment and Education, 68 Colum.

L. Rev. 691, 729 (1968). Appellants have not claimed that they

have been deprived of any rights guaranteed by § 3304 (a). Because

appointments to the Metropolitan Police Department are generally

subject to civil service rules, there is a serious question as to

whether the validity of Test 21 should be determined by the Equal

Employment Opportunity Commission regulations or by the Civil

Service Commission regulations, which may be inconsistent with

the EEOC guidelines. Compare 29 C.F.R. §§ 1607.1 et seg. (1973)

(EEOC), with 5 C.F.R. §§ 300.101 et seg. (1974) (CSC). The

EEOC guidelines have been followed in the decisions dealing with

validation of employment tests, and have been recognized as con-

trolling at least one circuit. United States v. Georgia Power Co.,

474 F.2d 906, 913 (5th Cir. 1973). See also Griggs v. Duke Power

Co., supra note 12, 401 U.S. at 433-34; Castro v. Beecher, supra

note 2, 459 F.2d at 725; Vulcan Soc’y v. Civil Serv. Comm'n, supra

note 6, 490 F.2d at 394 n.8; Carter v. Gallagher, supra note 2, 452

F.2d at 320; Officers for Justice v. Civil Serv. Comm'n, supra note

15, 371 F.Supp. at 1337; Davis v. Washington, supra note 1, 352

F.Supp. at 191. The EEOC guidelines have also been substantially

adopted by the Office of Federal Contract Compliance. 41 CF. R.

88 60-3.1 et seq. (1974). In any event, the issue is largely academic

in view of our holding in Douglas v. Hampton, No. 73-1376 (D.C.

Cir.), decided today.

38 For whites, 92% of the recruits with raw Test 21 scores over

60 averaged over 85 in Recruit School, 80% of white recruits who

scored from 52 to 60 had that average, and 63% of white recruits

who scored from 40 to 51 attained an 85 average. For blacks, 78%

of the scorers over 60 achieved an 85 average, 70% of black recruits

who scored from 52 tc 60 had such an average, 54% of black re-

12a

We are compelled to view the evidence presented by

appellees in that regard with some skepticism. The

assertion of predictive value of Test 21 for achievement

in Recruit School is based upon a correlation between

Test 21 scores and scores on written examinations given

during a 17-week training course. We think this evi-

dence tends to prove nothing more than that a written

aptitude test will accurately predict performance on a

second round of written examinations, and nothing to

counter this hypothesis has been presented to us.“ But

despite serious doubt as to the probative value of the

evidence,“ we are willing to assume for purposes of this

appeal that appellees have shown that Test 21 is predictive

cruits who scored from 40 to 51 averaged over 85 in Recruit School.

These figures yield a correlation of .46 for whites and .39 for

blacks. Futransky Study, supra note 11, at 2. For the purposes of

this appeal, we accept these figures as statistically significant. See

Boston Chapter, NAACP, Inc. v. Beecher, supra note 6, 504 F.2d

at 1024 n.13.

Compare Harper v. Mayor & City Council, 359 F.Supp. 1187,

1202-03 (D.Md.), modified and aff'd, 486 F.2d 1134 (4th Cir. 1973),

with Pennsylvania v. O'Neill, supra note 22, 348 F.Supp. at 1091.

[In many cases the apparent value of tests in predicting training

success is spurious in that training success measured by scores cn

other paper and pencil tests. In order for tests to be meaningfully

evaluated, training success must be measured by some sort of per-

formance evaluation which demonstrates whether high scorers on

the original test are actually able to learn more quickly or more

effectively to perform the job or jobs in question, rather then

simply to score well on a subsequent test.” Cooper & Sobol, Seniority

and Testing Under Fair Employment Laws: A General Approach

to Objective Criteria of Hiring and Promotion, 82 Harv. L. Rev.

1598, 1649 (1969).

The Recruit School examinations are not in the record, and

there is no other basis in the record for confirming or disputing

the hypothesis stated in text. Although the textual discussion

questions whether appellees have met their heavy burden in this

regard, we think it unwise to dispose of the case on that basis. It is

uncertain whether any evidence could be generated to test the

hypothesis, and to remand for consideration of the issue would not

serve the interests of judicial economy in light of the overall result

we reach in this case.

13a

of further progress in Recruit School. The ultimate issue

in this controversy then becomes whether that kind of

proof is an acceptable substitute for a demonstration of a

direct relationship between performance on Test 21 and

performance on the job.

Appellees assert that their validity study“ establishes

that Test 21 is predictive of “trainability,” and that

therefore the examination survives the Griggs standard.

Appellants, on the other hand, have convincingly argued

that the record evidence does not demonstrate a sufficient

relationship between Test 21 scores and trainability. All

entrants into Recruit School pass the final examinations

with a grade of 70 or above; if a particular candidate

has difficulty, he is given assistance until he succeeds in

passing the examinations.“ The validity study re-

vealed that persons with high Test 21 scores are more

likely to achieve a final average exceeding 85 in Recruit

School,* but there is no evidence to support the proposi-

tion that a candidate with an average below 85 is more

difficult to train or will not be as good a police officer

as a candidate with an average over 85.“ Moreover,

since applicants who scored below 40 on Test 21 have

never been admitted to Recruit School, the validity study

expressed no conclusion regarding the likely performance

in Recruit School of Test 21 failures.“ For these reasons,

1 Futransky Study, supra note 11.

Id. at 1.

*3 Jd. at 2. See note 38, supra.

Indeed, the Futransky Study indicates that the contrary may

be true. The study found no significant correlation between final

Recruit School averages and job performance as measured by posi-

tive and negative incidents—commendation, appointment to a posi-

tion of responsibility, below-average rating by supervisor, resig-

nation with prejudice and disciplinary action. Id. at 5.

4 Jd. at 8. The difficulties in drawing any inference about job

performance of failures solely from the performance of passers of

l4a

and because of the departmental policy that nobody fail

Recruit School,“ appellees have not shown that the ad-

mission of applicants who score below 40 on Test 21

into Recruit School would necessitate expanded train-

ing time“ or produce Recruit School failures“ We

might add that the Recruit School averages apparently

have not been used by the Department for any purpose

other than the attempt to validate Test 21 in this case.”

The Griggs standard does not, in our opinion, permit

validation by a criterion that the employer itself does not

believe sufficiently job related.

Appellees maintain that there is support for their

position in applicable legal precedents.“ Claims similar

an examination have been judicially noted. Boston Chapter, NAACP

Inc. v. Beecher, supra note 6, 504 F.2d at 1025; United States v.

Georgia Power Co., supra note 37, 474 F.2d at 916. If appellees’

study had demonstrated a positive correlation between low scores

on Test 21 and failures in Recruit School, the data might have

supported an inference that those who score below 40 on Test 21 are

more likely to fail in Recruit School. No conclusion could be drawn

28 regard, however, because there were no failures in Recruit

Davis v. Washington, supra note 3, 348 F.Su at 16;

Futransky Study, supra note 11, at 8. * f

47 Cf. Harper V. Mayor & City C l, ons

Supp. at 123 n.38. uncil, supra note 39, 359 F.

— Pennsylvania v. O'Neill, supra note 22, 348 F.Supp. at

See id. at 1090 n.6.

* They first rely on a statement in Spurlock v. United Airline

Ine. 330 F.Supp. 228 (D. Col. 1971), aff'd 475 F.2d 216 (10th Cir.

1972), in which the court held the requirement of a college degree

job related to aircraft piloting. The court found “a direct and

substantial correlation between successful completion of the train-

ing program and a college degree.” 330 F.Supp. at 235. Unlike the

controlling force placed on Test 21 by the Metropolitan Police De-

partment, however, the degree requirement was waived if an appli-

cant had sufficient flight time, id. at 235; cf. Griggs v. Duke Power

15a

to that have been made before, and the reported decisions

on the point have uniformly rejected a correlation be-

tween entrance examination performance and training

performance as a means of validating the entrance ex-

amination." In a typical case, involving a written en-

trance examination given by the Philadelphia Police De-

partment,” it was contended that the examination ac-

curately predicted performance in the Department’s Po-

lice Academy, as reflected in scores on Academy final

written examinations.“ The court refused to find the

entrance test in that case job related for several reasons.

Co., supra note 12, 401 U.S. at 436; and the minimum flight time

requirement was found to predict actual job performance. /d. at 235.

Other cases relied upon by appellees are also distinguishable.

In Castro v. Beecher, supra note 26, there was no effort to relate

test scores to training performance, 334 F.Supp. at 942; the court

merely noted that the police department there involved had not

even tried to make such a showing, id. at 942, and we see nothing

intimating that the court would have held that a convincing show-

ing of such a relationship validated the examination. Finally, in

Buckner v. Goodyear Tire & Rubber Co., 339 F.Supp. 1108 (N. D.

Ala. 1972), aff'd, 476 F.2d 1287 (5th Cir. 1973), the court sustained

a test that predicted performance in a training program, but held

that the training program was the job: “there is a demonstrable

relationship between the tests used and the job (i.e., participation

in the four year apprenticeship program) for which the tests are

used.” Jd. at 1114. Apprentices in Buckner had their education

subsidized by the employer, were on the payroll while being trained,

and went through an 8000-hour four-year program at a cost the

employer of $36,000 per apprentice. The facts of the case at bar

would not justify a similar finding; the cost of training an indi-

vidual police recruit is hardly close to $34,000 and the training

program is relatively short.

81 Officers for Justice v. Civil Serv. Comm'n, supra note 15, 371

F.Supp. at 1337 (police officers); Smith v. East Cleveland, supra

note 15, 363 F.Supp. at 1148-49 (police officers) ; Harper v. Mayor

& City Council, supra note 39, 359 F.Supp. at 1202-03 (firemen) ;

Pennsylvania v. O'Neill, supra note 22, 348 F.Supp. at 1090-91

(police officers ) .

5? Pennsylvania v. ONeill, supra note 22.

Id. at 1090.

16a

There was no correlation between Academy performance

and effective job performance; there was no showing

that the Academy examinations were significantly differ-

ent from the entrance exams, so the correlation might

merely have indicated that the entrance examination

predicated good scores on a second written test; and

there was no showing that applicants who failed the

entrance examination would not do well in the Academy.“

As further support for its conclusion, the court noted

that no one had failed in the Academy in the past five

years.“ The similarity between that case and the case

at bar is indeed striking, and the same result has been

reached by at least three other courts."

Appellees further argue that convincing proof that an

employment selection procedure, even one with a racially

disproportionate impact, accurately predicts trainability

might in some cases satisfy the Griggs standard.“ Ap-

Id. See note 44, supra.

Id. at 1091. See note 40, supra.

Id. See text supra at note 45.

Id. See text supra at note 46.

See cases cited note 51, supra.

Section 703(h) of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-2(h) (1970), is the authority asserted by appellees for

this proposition. They refer to a statement by Senator Tower,

the author of § 703(h), that the provision would allow employers

to “give general ability and intelligence tests to determine the

trainability of prospective employees.” 110 Cong.Rec. 13,492 (1964).

A decision as to whether § 703(h) permits validation by correlation

to trainability, rather than job performance, is not a simple or

insignificant endeavor. One professional commentator notes that

“from validation studies of tests with training criteria, one must

generalize with great caution about the validity of those tests for

[job] proficiency. . . . [T)he abilities and traits which are im-

portant for success in training are not very similar to those which

determine success in the performance of the actual job.” E. Ghiselli,

The Validity of Occupational Aptitude Tests 119 (1966). We decline

— ee eee

a score below 40 enters Recruit

little value in predicting job performance, and as long

as there is no evidence of any correlation between the

Recruit School average and job performance, we enter-

tain grave doubts whether any of this type of evidence

could be strengthened to the point of satisfying the heavy

burden imposed by Griggs.

IV. CONCLUSION

The dissent is concerned, as are we, with preservation

of the Department’s ongoing efforts to improve its pro-

fessional standards.” The District Court declined to read

the controlling legal principles so that “brakes [would]

be placed upon efforts to upgrade recruiting and job

standards in law enforcement work.“ The court ap-

parently believed that the relief sought by appellants

would necessarily lower recruitment standards and pro-

duce “a setback for blacks and whites alike.“ “ We

believe these fears are not well founded. Elimination of

Test 21 could result in lower standards only if it were

to express any opinion on the merits of this issue on these facts,

for appellees have not proved a case that presents the question.

We do note, however, that the legislative history of the 1972

amendments to Title VII of the Civil Rights Act of 1964, see note

2, supra, reveals congressional concern over use of general ability

tests in hiring and promotion by the Civil Service Commission.

H.R. Rep. No. 238, 92d Cong., Ist Sess. 24 (1971).

% See Davis v. Washington, supra note 3, 348 F.Supp. at 17.

But see Pennsylvania v. ONeill, supra note 22, 348 F.Supp. at 1103.

„ Davis v. Washington, supra note 3, 348 F Supp. at 17.

Id. at 18.

18a

job related, and appellees have not come forward with

satisfactory evidence that Test 21 is job related. The

common sense theory of validity espoused by the dissent

is clearly an inadequate response to appellants’ proof of

racialiy disproportionate impact.“ The rationale is equiv-

alent to a finding of construct validity without satisfying

the prerequisites delineated in Douglas v. Hampton.“

Appellants’ complaint sought both declaratory and in-

junctive relief. They are, as a matter of law, entitled

to a declaration that Test 21 is invalid, and the conclu-

sions we reach have in other cases served as the basis for

enjoining the administration of entrance examinations

and ordering affirmative relief.“ The focus here, how-

ever, has been on the substantive issues, and the record

lacks the factual development essential to a sound deter-

mination as to whether an injunction against use of Test

21 is warranted. We leave that question open to con-

sideration by the District Court, mindful that declara-

tory relief in accordance with this opinion might, in

See Douglas v. Hampton, supra note 37, at 15. The dissent

correctly notes that Griggs involved a distinguishable job situation,

but many subsequent decisions have followed the same analysis

when dealing with police officers and fire personnel. See cases

ited notes 25, 26 & 29, supra, and note 65, infra.

There has been no attempt to establish that proof of the

empirical validity of Test 21 is not feasible. See Douglas v. Hamp-

ton, supra note 37, at 18-19. Perhaps more importantly, there is

no evidence that directly relates the constructs of Test 21 to job

performance. See id. at 17-18. In the absence of such evidence,

general concepts of common sense are inadequate aids to meaningful

analysis of the crucial issues in this case.

F. g., United States v. Chicago, supra note 6, 385 F.Supp. at

561; Officers for Justice v. Civil Serv. Comm'n, supra note 15,

371 F.Supp. at 1342; Smith v. East Cleveland, supra note 15, 363

F.Supp. at 1152; Harper v. Mayor & City Council, supra note 39,

359 F.Supp. at 1218; Pennsylvania v. O'Neill, supra note 22, 348

F.Supp. at 1104.

19a

consequence of agreement by the parties or otherwise,

obviate any need for the coercion of an injunction.”

The judgment of the District Court is reversed. Ap-

pellants’ motion for partial summary judgment must be

granted,“ and appellees’ respective motions for summary

judgment denied.“ The case is remanded to the District

Court for entry of appropriate orders, and determination

and effectuation of a suitable remedy, in harmony with

this opinion.

Ross, Circuit Judge, dissenting: I would affirm the

judgment of the District Court on the opinion of Judge

Gesell, reported as Davis v. Washington, 348 F.Supp.

15 (D.D.C. 1972). I add a few words.

The majority finds that Test No. 21, designed to

measure verbal ability, is invalid beeause it is not “job

related”; but the majority does not discuss the content

of Test No. 21. To remedy this omission I attach a

copy of the 1970 test, which is in the open record be-

fore us (J.A. 145), as an appendix to this dissent. The

record also discloses (J.A. 46) that a passing rating of

70 is achieved if forty of the eighty questions are an-

swered correctly.

As I see it, the premise of the majority opinion is

either that Test No. 21 is not a fair test of the verbal

Cf. Steffel v. Thompson, 415 U.S. 452, 461 (1974) ; Samuels v.

Mackell, 401 U.S. 66, 73 (1971).

The motion was for a partial summary judgment because it

did not involve the promotion issues. See note 1, supra.

We note that the District Court granted the federal appellees’

motion and also dismissed the action as to them, while it did not

dismiss as to District appellees. It is unclear why this difference

exists, and we intimate no view as to the propriety of the dismissal

on grounds not discussed in this opinion.

20a

ability required of a policeman, or that verbal ability is

not related to a recruit’s performance in the Police

Academy and thereafter as a policeman. I disagree on

both counts.

As the District Court recognized, modern law en-

forcement is a highly skilled professional service. In

school and thereafter in practice a policeman must learn

and understand intricate procedures. He must under-

stand a myriad of regulations, statutes and judicial

rulings, and he will be called upon to apply them in

his daily work. He must be able to present relevant

facts in literate, clear and precise reports. When he

testifies in court he must be articulate. He cannot

achieve these goals unless he has a basic understanding

of the English language and the meaning of words and

the ability to perceive tho import of written sentences.

In short, issuing a badge and a gun to a semi-literate

cannot transform him into a competent police officer.

As the district judge put it “[t]he ability to swing a

nightstick no longer measures a policeman’s competency

for his exacting role in this city.” 348 F. Supp. at 17.

In my judgment Test No. 21 on its face is a fair and

reasonable test of the ability of a police recruit to

measure up to the qualifications I have outlined. In other

words, I think it is “job related” on its face. Certainly

I cannot believe that one who fails to answer half of the

questions correctly has the verbal ability and under-

standing to qualify for admission to the Police Academy

and thereafter for membership in the Police Department.

Although the majority rejects this reasoning, which it

rightly calls a “common sense theory”, I adhere to the

conviction that common sense in a judicial decision is

not out of place.

The majority notes that the disproportionate rate of

failure among blacks “is the result of the long history

21a

of educational deprivation, primarily due to segregated

schools for blacks.” That this should be true is deplor-

able, but it does not follow that one who cannot pass

the test is qualified to become a police officer.

Griggs v. Duke Power Co., 401 U.S. 424 (1971), much

relied upon by the majority, involved tests for admission

into the Coal Handling, Operations, Maintenance and

Laboratory and Test Departments of a public utility.

The Court found that the tests were not “directed or

intended to measure the ability to learn a particular

job or category of jobs”, (401 U.S. at 428) and that

they were therefore invalid. I think the distinction be-

tween those tests and jobs and the test and job in our

case is obvious. The job of a policeman is quite different

from the jobs involved in the Griggs case. Test No. 21

is intended to measure the ability to fulfill the duties

of a policeman and I think it fairly does so. Perhaps

it would not fairly measure ability to succeed in coal

handling for a public utility, but that is not its purpose.

We are often told by knowledgeable commentators and

critics that the standards for admission to membership

in the Police Department must be raised and maintained

at a high level. I agree with this proposition. In my

judgment the majority opinion is a step backward that

will lead to debasing the quality of our police force.

I respectfully dissent.

22a

APPENDIX

Test No. 21

Series No. 173

February 1970

I Te nN ee

Last Name First Name Middle Initial

Date of Birt bn Identification No, *

Month Day Year

UNITED STATES CIVIL SERVICE COMMISSION

Fill in the identifying blanks at the top of the an-

swer sheet and test booklet. Place no other identifying

marks on your answer sheet and test booklet.

The questions in this test need not be taken up in

order. Answer first those that you can answer without

any delay. Then use the remainder of the time on the

questions you have passed over.

For each question, select the BEST ANSWER, and

darken the space on the answer sheet that bears the same

letter as the answer.

1. ORDINARY means most nearly

A) uncommon

B) worthless

C) usual

D) tiresome

E) lasting

2. SMILE is related to HAPPINESS as FROWN is

related to

A) surprise

B) ridicule

23a

c) face

D) displeasure

E) inquiry

. Laws restricting hunting to certain regions and to

a specific time of the year were passed chiefly to

A) prevent people from endangering their lives by

hunting

B) keep our forests more beautiful

c) raise funds from the sale of hunting licenses

D) prevent complete destruction of certain kinds of

animals

E) preserve certain game for eating purposes

. The saying “All things are easy that are done will-

ingly” means most nearly

A) Work undertaken without reluctance proceeds

smoothly.

B) To the lighthearted all things are easy.

c) Many hands make light work.

D) Easy things are done willingly.

E) Everyone likes a cheerful worker.

. PECULIARLY means most nearly

A) calmly

B) stubbornly

c) wonderingly

D) sensibly

E) strangely

(Reading) Dates are the fruit of a species of palm

ö tree which ranges from the Canary Islands through

northern Africa and the southeast of Asia to India.

These trees have been cultivated and their fruit

much prized throughout most of these regions from

remotest antiquity. In Arabia date palms are an

important source of national wealth, and their fruit

forms the staple article of food in the country.”

10.

24a

The quotation best supports the statement that date

palms

A) are the chief source of wealth in many countries

B) have long been valued as a source of food

c) were first grown in the Canary Islands and

Africa

D) were not prized for their fruit in early times

E) cannot be grown in other than tropical climates

SKETCHING is related to PEN as PHOTOGRAPHY

is related to

A) brush

B) camera

C) picture

D) pose

E) studio

The best reason, of the following, for requiring that

ballots be marked in secret is that

A) this provides for a permanent record of results

B) the results are thus unknown until voting is over

C) the vote is intended to indicate the real opinion

of the voter

D) this permits several matters to be voted on at

the same time

E) this is the established custom of our country

GO ON TO THE NEXT PAGE

[End of page]

BOUNTY means most nearly

A) generosity

B) limit

C) service

D) fine

E) duty

Strands of fiber used in a rope are twisted or

braided together chiefly in order to make the rope

11.

12.

13.

14.

15.

25a

A) more flexible

B) less expensive

c) unbreakable

D) more rigid

E) stronger

CANOE is related to PADDLE as STEAMSHIP is

related to

A) wharves

B) propeller

C) water

D) routes

E) yard

The saying “no gains without pains” means most

nearly

A) Progress is made only at the expense of effort.

B) The lazy man rarely reaches his goal.

c) One cannot always be certain that results will

justify his efforts.

D) Achievement without toil deserves little apprecia-

tion.

E) To plan one’s work is to hasten its completion.

The purpose of trademarks is to

A) show that a tax has been paid

B) distinguish the brand of goods manufactured

C) show that a patent has been granted

D) indicate that goods are unadulterated

E) distinguish home from foreign products

CRISP means most nearly

A) broken

B) frosty

C) brittle

D) burnt

E) dry

(Reading) “The practical skill of primitive man be-

came, in time, quite admirable in the treatment of

certain kinds of disease and even more so in surgery.

16.

17.

18.

26a

Examples of his accomplishments may be seen today,

among primitive tribes, and, together with prehis-

toric remains, testify to the status of medicine be-

fore history was written.”

The quotation best supports the statement that primi-

tive man

A) lacked knowledge of surgery

B) exhibited more skill in medicine than in surgery

C) was not easily affected by disease

D) developed a definite skill in dealing with physical

ailments

E) buried complete records of his ability

WEED is related to PLANT as FLY is related to

A) screen .

B) disease

C) insect

D) food

E) spider

The saying “A drowning man will catch at a straw”

means most nearly

A) Help sometimes comes after we have abandoned

all hope of it.

B) Great effort is necessary to overcome great dif-

ficulties.

c) He who relies on too slim a chance is lost.

D) A man will try anything as a last resort.

E) No disaster is entirely without remedy.

SCARCELY means most nearly

A) minutely

B) fittingly

C) partially

D) precisely

E) barely

19.

21.

22.

27a

(Reading) “A great many small mammals, and not

a few of considerable size, have developed the arboreal

habit. Most climbing forms have taken to the trees

for food, and perhaps even more important, to

escape terrestrial enemies which would readily over-

come them had they not evolved climbing habits. The

only entirely tree-living mammals, however, are con-

fined to the tropics.”

The quotation best supports the statement that tree-

living mammals

A) are afraid to descend to the ground

B) have to be small to find sufficient food in trees

c) damage trees by consuming the leaves

D) developed climbing habits as a matter of neces-

sity

E) are confined to small, tropical animals

GARDEN is related to FLOWER as LAKE is re-

lated to

A) pool

B) river

C) beach

D) cottage

E) fish

PERTURBED means most nearly

A) agitated

B) distrustful

C) impelled

D) repulsed

E) unmoved

The saying “To believe a thing impossible is a way

to make it so” means most nearly

A) It is unwise to begin what is beyond one’s ability.

B) z= only way to prove a thing can be done is to

it.

24.

25.

28a

c) We can do whatever we think we can do.

D) What is easy to obtain is not worth having.

E) Lack of confidence leads to failure.

SPEAK is related to SHOUT as DAMAGE is re

lated to

A) sue

B) repay

c) destroy

D) condemn

E) repair

(Reading) “Men who have good mechanical ability,

and especially those who have had some experience

in mechanical work, will, when they show their

worth, be detailed as helpers in machine shops and

engine rooms, where opportunity will be given them

for acquiring training with machinists’ tools.”

The quotation best supports the statement that the

qualifications for helpers in machine shops and en-

gine rooms must include

A) the demonstration of mechanical ability or train-

ing

B) special experience in mechanical work

C) training with machinists’ tools

D) previous apprenticeship on the job

E) similar duties in previous positions

Of the following reasons, the one that best explains

the continued sale of records in spite of the popu-

larity of the radio is that the

A) records make available the particular selections

desired when they are desired

B) appreciation of records is more wide-spread than

appreciation of radio

C) collection of records provides an interesting hobby

D) newest records are almost unbreakable

E) sound effect of records is superior to that of the

radio

30.

29a

The saying “The fire in the flint shows not till it is

struck” means most nearly

A) One should be prompt to recognize one’s oppor-

tunities.

B) The first attempt is not always successful.

c) Unless abilities are demonstrated, they remain

unrecognized.

D) There is a proper time for everything to he done.

E) Only by repeated efforts can skill be achieved.

ISOLATION is related to COMPANIONSHIP as

DESPAIR is related to

A) despondency

B) success

c) strength

D) recovery

E) hope

The saying “Straight trees are the first to be felled”

means most nearly

A) Honest effort is always rewarded.

B) The best are the first chosen.

c) Ill luck passes no one by.

D) The highest in rank have farthest to fall.

E) The stubborn are soon broken.

SUN is related to HEAT as FOG is related to

A) moisture

B) twilight

c) storm

D) winter

E) evening

(Reading) “The Pure Food and Drugs Act would

be totally incapable of enforcement were it not for

the fact that chemists have perfected methods of in-

vesitgation whereby the claims of composition of

various foods and drugs can be verified or exposed.

The Government has an ever-watchful force of

31.

32.

‘chemist detectives’ trying to protect the Nation’s

health in respect to remedies sold to the public.”

The quotation best supports the statement that Gov-

ernment chemists

A) 1 violators of the Pure Food and Drugs

B) improve the quality of foods and drugs

C) discourage the sale of patent medicines

D) tests the chemical composition of foods and drugs

E) have considerably improved the health of the

Nation

To DEVIATE means most nearly to

A) intend

B) vary

C) steer

D) enlarge

E) return

GO ON TO THE NEXT PAGE

[End of page]

BECAUSE is related to REASON as THEREFORE

is related to

A) result

B) heretofore

C) instinct

D) logic

E) antecedent

The saying “Do not make the bite larger than the

mouth” means most nearly

A) Do not attempt to do work which you do not

enjoy.

B) Magnifying one’s difficulties makes one less able

to overcome them.

c) Those who want too much are never satisfied.

D) An individual should not attempt a task which

is beyond his capacity.

35.

37.

31a

E) It is unwise to indulge one's appetite.

(Reading) “Although the types of buildings in ghetto

areas vary from the one-story shack to the large

tenement building, they are alike in that they are all

drab, unsanitary, in disrepair, and often structurally

unsound.”

The quotation best supports the statement that all

buildings in ghetto areas are

A) overcrowded

B) undesirable as living quarters

c well-constructed

D) about to be torn down

E) seldom inspected

Which of the following is the chief reason that posters

placed in busses are a successful medium of advertis-

ing?

A) Their bright colors and pictures attract atten-

tion.

B) They can be understood by children.

c) They are an inexpensive method of advertising.

D) All passengers are in a receptive mood when

riding in such vehicles.

E) They reach a working, and therefore consuming,

public.

To RETRENCH means most nearly to

A) impede

B) replace

C) counteract

D) attack

E) curtail

BRAKE is related to MOTION as DAMPER is re-

lated to

A) draft

B) furnace

40.

c) accelerator

D) chimney

E) humidity

The saying “The good seaman is known in bad

weather” means most nearly

A) Everyone has an opportunity to show his ability.

B) Skill is chiefly a matter of practice.

c) People seldom complain when things run

smoothly.

D) One’s skill becomes apparent in times of stress.

E) No one can do his best under certain conditions.

(Reading) “Brass is an alloy consisting mainly, if

not exclusively, of copper and zinc, but in its older

use the term was applied rather to alloys of copper

and tin, now known as bronze. It is quite likely that

from very early times brass was made accidentally,

owing to the mixture of zinc ores with those of

copper, but was not recognized as distinct from

bronze. One of the earliest examples of Roman brass

is a coin made in 20 B. C., containing 17.3 percent

zine.”

The quotation best supports the statement that

A) brass developed somewhat earlier than did bronze

B) bronze and brass have one essential ingredient in

common

Cc) the earliest known coins were made from brass

D) alloys of copper and zinc are now known as

bronze

E) bronze and brass were first made by the Romans

The saying “A little knowledge is a dangerous thing”

means most nearly

A) It is better to be ignorant than to know too

much.

B) No one knows so much but that he could know

more.

41.

42.

33a

c) Those who know the least usually do the most

talking.

D) To know a little about many things is to know

nothing well.

E) Incomplete information may have unfortunate

results.

ARTIFICIAL means most nearly

A) disguised

B) awkward

c) genuine

D) unnatural

E) useless

FRAME is related to PICTURE as MARGIN is re-

lated to

A) edge

B) decoration

c) page

D) border

E) width

(Reading) “There are two basic types of silent

reading. In one type, called cursory reading, the

reader does not try to grasp the meaning of every

word but only the essential concept. The other form

of silent reading is careful and exact. In the latter

type, detailed attention is required in order to as-

similate the complete thought. Cursory reading is a

valuable tool, but much of the reading required

in business must be careful and exact. Too often,

people who have become habituated to cursory read-

ing cannot adapt themselves to careful reading.”

The quotation best supports the statement that the

businessman

A) cannot afford to read so rapidly as to miss the

fine points of the matter read

44.

45.

34a

B) is required to relearn his whole method of silent

reading

c) must do so much reading that he does not take

time to read carefully

D) soon becomes highly skilled in reading with speed

as well as with accuracy

E) fails to realize the need for becoming adept in

the two basic types of silent reading

The saying “Nothing ventured, nothing gained”

means most nearly

A) Persistent effort brings success.

B) Cooperation is vital to achievement.

c) A certain amount of risk is required to win

anything.

D) Success attained without effort is not enduring.

E) Success encourages continued effort.

(Reading) “A sudden brief heavy rain will pene-

trate the soil less than the same amount of water

falling for a longer period, since it takes time for

water to expell the soil air and work its way down-

ward among the soil particles. The downward move-

ment is hastened by soil cracks, roots, root paths,

and the holes of burrowing animals.”

The quotation best supports the statement that pene-

tration of the soil by rain

A) is rapid as soon as the soil air is expelled

B) is affected by the intensity of the rainfall

Cc) depends on the amount rather than the duration

of rainfall

D) is affected more by the amount of vegetation

than by other soil conditions

E) is affected only slightly by the presence of soil

cracks

46.

47.

48.

49.

35a

SKEPTIC means most nearly

A) guide

B) enthusiast

Cc) mystic

D) doubter

E) exile

ACCIDENT is related to NEGLIGENCE as

SAFETY is related to

A) indifference

B) appliance

c) security

D) danger

E) carefulness

(Reading) “A brush properly selected for the job

at hand will not only make the application of paint

easier but will also add to the appearance of the

finished surface by increasing its smoothness.

Brushes with medium or long bristles and there-

fore reduce the number of times the brush is dipped

into the paint, thus saving time. Longer bristles are

more flexible and insure a smoother application.”

The quotation best supports the statement that in

painting a house

A) choice of the correct type of brush is the most

important step

B) frequent dipping of the brush into the paint will

cause much waste

C) use of a thin paint tends to make the job shorter

and easier

D) best results are likely to be achieved by using a

brush with long bristles

E) a smooth finish is hard to get with a soft brush

The saying “Muddy springs will have muddy

streams” means most nearly

50.

51.

36a

A) A bad ending does not always follow a bad be-

ginning.

B) No effort should be made to improve what is

worthless.

c) Causes are usually less important than results.

D) Good cannot come out of evil.

E) What cannot be corrected must be accepted.

(Reading) “When minerals split easily with smooth

faces in certain directions, they are said to have the

property of cleavage. Some minerals having the

property of cleavage, like quartz, when struck a

blow, will break into fragments of various shapes;

others, like calcite, break into fragments each of the

same general shape.”

The quotation best supports the statement ihat when

minerals are broken into fragments

A) the size of the fragments shows whether the

mineral possesses cleavage

B) the smoothness of the surfaces of the fragments

reveals the skill of the worker

c) the manner in which the mineral breaks shows

if the mineral possesses cleavage

D) many of the fragments are more beautiful than

the original piece of material

E) those minerals possessing cleavage to a high de-

gree break into fragments similar in shape

IMPERTINENCE means most nearly

A) impatience

B) briskness

C) conceit

D) curiosity

E) incivility

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[End of page]

52.

53.

37a

The saying “Habits are at first cobwebs, at last

cables“ means most nearly

A) Good work habits make any task easier.

B) Habits grow stronger with time.

c) It is sometimes difficult to acquire good habits.

D) Bad habits are the hardest to break.

E) Good habits should be acquired early in life.

(Reading) “Illustrations should really illustrate; too

often they are simply photographic inserts to help

sell the book. They should develop from and en-

liven the text and be so much a part of the book that

they harmonize with it in spirit and in appearance.

Moreover, they should be placed as nearly as possible

next to or opposite the paragraph or page illustrated

and not scattered at random through the book with

a consequent loss of interpretative value.”

The quotation best supports the statement that the

illustrations of a book

A) should be grouped rather than scattered through

the book

B) increase sales appeal only when they truly illus-

trate

Cc) should be photographs taken from real life

D) may be of more value to the reader than is the

text

E) should serve to add interest to the text

A tenant who holds a long-term lease on a building

will be most likely to gain by the transaction if

during the period covered by the lease

A) business rentals vary considerably

B) real estate becomes cheaper

C) prices in general are increased

D) living costs are lowered

E) the tax rate is decreased

55.

56.

57.

58.

38a

(Reading) “Although metals may occur in nature

as pure native metal, they are more commonly

found in combination with other materials in an ore.

An ore is a metal-bearing substance from which a

metal, alloy, or metallie compound can be extracted

at a profit.”

The quotation best supports the statement that

A) an ore contains other materials in addition to

metal

B) few metals occur in a pure form in nature

C) the extraction of metal from an ore is an ex-

pensive process

D) some metals are not mined because the cost of

extraction is prohibitive

E) metals found in ores do not occur in nature as

pure native metals

DISPARAGEMENT means most nearly

A) depreciation

B) distinction

C) idealization

D) jealousy

E) reputation

The saying “Other times, other customs” means most

nearly

A) Change is more frequent today than in the past.

B) Modes of living change with the times.

c) Tolerance is a virtue in every society.

D) Certain values have remained constant for cen-

turies.

E) The ideals of civilization are becoming continually

higher.

(Reading) “Individuals develop personality char-

acteristics on the basis of their innate physiological

equipment, the experiences which beset them from

birth on, and their relationships with other human

59.

60.

61.

39a

beings and with the social institutions that surround

them.”

The quotation best supports the statement that the

formation of personality

A) is affected as much by physique as by environ-

ment

B) becomes evident at an earlier age in some per-

sons than in others

c is based on certain factors outside the control

of the individual

D) determines the types of persons with whom an

individual will associate

E) is based on hereditary factors rather than social

experiences

PLACIDITY means most nearly

A) ignorance

B) serenity

C) solitude

D) timidity

E) freedom

NEWS is related to INFORM as ARGUMENT is

related to

A) understand

B) convince

c) defy

D) entertain

E) deceive

To CAREEN means most nearly to

A) hurry

B) thrust

Cc) quiver

D) jostle

E) lurch

40a

62. RUBBISH is related to DISCARD as TREASURE

is related to

65.

A) share

B) discover

c) cherish

D) lose

E) worry

The saying “They wrangle about an egg and let the

hens fly away” means most nearly

A) They dispute at every opportunity.

B) Attention to details is important.

c) Arguing is seldom worth while.

D) They have a poor sense of values.

E) A grasping person has few friends.

(Reading) “Adhering to old traditions, old methods,

and old policies at a time when new circumstances

demand a new course of action may be praiseworthy

from a sentimental point of view, but success is won

most frequently by facing the facts and acting in

accordance with the logie of the facts.”

The quotation best supports the statement that suc-

cess is attained through

A) recognizing necessity and adjusting to it

B) using methods that have proved successful

C) exercising will power

D) remaining on a job until it is completed

E) considering each new problem separately

The saying “The first blow is as much as two”

means most nearly

A) He who takes the initiative gains a distinct

advantage.

B) One hard blow is more effective than numerous

lighter ones.

c) In any struggle the stronger participant makes

the first move.

67.

68.

69.

4la

D) The wise man takes advantage of every oppor-

tunity.

E) He who strikes first will win the battle.

To EVINCE means most nearly to

A) claim without good reason

B) state with certain reservations

C) show in a clear manner

D) follow against one’s will

E) deny in an indirect fashion

INSERT is related to REMOVE as INTRUDE is

related to

A) interrupt

B) withdraw

C) conceal

D) disclaim

E) enter

(Reading) Fireboats should be of light draft for

harbor work, and the larger sizes should be equipped

with twin screws for quick turning. Boats of re-

cent construction have steel hulls and steel deck

houses; plank-covered decks are preferable to metal,

as steel decks are slippery.”

The quotation best supports the statement that fire-

boats must be

A) entirely fireproof

B) built of wood

C) of recent construction

D) all of the same size

E) capable of quick movement

In installing fire hydrants, a city should make sure

that the outlets are of the same standard thread as

those in adjacent cities chiefly because

A) in emergencies it is sometimes necessary to bor-

row fire apparatus from neighboring cities"

70.

71.

72.

73.

42a

B) one set of apparatus will do for several cities

c) the same repairman can be utilized by several

cities

D) small cities are dependent on the larger cities

for fire-extinguishing service

E) unused equipment can be returned to dealers

TENACIOUS means most nearly

A) boisterous

B) obstinate

o) industrious

D) inseparable

E) honorable

AMPLIFIER is to HEARING as TELESCOPE is to

A) astronomy

B) lens

c) sight

D) mirror

E) sound

GO ON TO THE NEXT PAGE

[End of page]

The saying “Blind zeal only does harm” means most

nearly

A) People are not likely to devote their best efforts

to work they do not understand.

B) Appearances should not affect one’s attitude.

c) It is difficult to pretend enthusiasm in a hope-

less case.

D) At times we must let others do the leading.

E) Enthusiasm ought to be rightly directed.

PROMONTORY means most nearly

A) marsh

B) monument

c) headland

D) boundary

E) plateau

74.

75.

76.

77.

43a

(Reading) “Soldering is the binding together of two

or more metals by means of a fusible alloy of tin

and lead called solder. The solder used in the op-

eration must melt at a lower temperature than the

metals being joined together. However, the nearer

the melting points of the solder and the soldered

metals, the stronger the completed joint.”

The quotation best supports the statement that the

melting points of metals being soldered should be

A) identical with the melting point of the solder

B) identical with each other

c) high enough to permit a strong joint

D) lower than the melting point of tin or of lead

E) higher than the melting point of the solder

VIVID means most nearly

A) rare

B) intense

C) imaginary

D) absurd

E) attractive

NOTE is related to MESSAGE as PICTURE is re-

lated to

A) scene

B) camera

C) artist

D) frame

E) gallery

An EXIGENCY means most nearly

A) an undue hurry in acting

B) a series of misfortunes

C) an act causing disorder

D) a case demanding urgent action

E) a task requiring specific skills

44a 45a

78. The saying “That is well spoken which is well taken” o) Strong passions cannot last.

means most nearly E) To continue to bear malice is petty.

A) Sensitive people are quick to imagine insults.

B) To accept reproof meekly shows nobleness of PROPERTY OF THE

spirit. UNITED STATES CIVIL SERVICE COMMISSION

c) The way in which a remark is received demon-

strates its appropriateness. Limited Official Use

a a oo a oe This booklet is 1 1 for official use subject to re-

B) He who laughs at his own expense has few strictions regarding the use of Government documenta.

It should not be reproduced in whole or in part without

— the express approval of the Civil Service Commission,

79. (Reading) “When the snow of one winter does not nor should it be used by anyone for any private purpose

entirely melt during the summer but is added to that whatsoever. Violations may be punishable by fine, or

of the following winter, there is a gradual accumu- imprisonment, or both.

lation of snow which may result in a glacier. The

lower layers are compressed into ice by the weight

of the overlying snow and the mass in time begins

to spread. The glaciers move downward, following

the valleys and ravines, until they reach a point at

which the rate of melting equals or exceeds the rate

of ice advance.”

The quotation best supports the statement that

glaciers °

A) cease advancing only upon the arrival of sum-

mer

B) move very slowly even on steep slopes

c) move downward and forward until checked by j

warmth

D) form in all areas that are cold and snowy

E) cover great distances in their advance each year

80. The saying “Anger dies quickly with a great man”

means most nearly

A) A good man is slow to anger.

B) Nothing ruffles a good disposition.

c) One can forgive but not forget.

46a

ORDER

[Filed March 3, 1975]

It is ORDERED, sua sponte, that the majority opinion

filed herein on February 27, 1975, be and hereby is

amended as follows:

1. By deleting the first full paragraph on page 6 and

inserting in lieu thereof the following:

The District Court ruled that appellants’ showings

(a) that the number of black police officers in the

Department is not proportionate to the population

mix of the District, (b) that a higher percentage of

blacks fail Test 21 than whites, and (c) that Test

21 has not been validated to show its reliability for

measuring job performance, shifted the burden of

proof to appellees... We reach the same conclusion

on the basis of the racially disproportionate impact

that Test 21 is shown to have.“ The District Court

further ruled, however, that Test 21 is exonerated

by a direct and reasonable relationship to the re-

quirements of the Department’s police training pro-

gram.” We deem that insufficient, and finding Test

21 not otherwise demonstrated to be job related, we

hold that appellees have not met their burden.

2. By changing the number of footnote 19 on page

6 to 20.

3. By inserting a new footnote 19 on page 6 as fol-

lows:

Davis v. Washington, supra note 3, 248 F.Supp.

at 17.

47a

4. By deleting the second sentence of the first para-

graph on page 7 and the accompanying footnote.

5. By changing the number of footnote 20 on page 7,

and the reference to it in text, to 21.

48a

MEMORANDUM OPINION AND ORDER

[Filed July 31, 1972]

This is a class action brought by several black police

officers and rejected black applicants for employment

as police officers who generally allege that the Metro-

politan Police Department discriminates against blacks

in its recruiting and promotions in violation of the Fifth

Amendment to the Constitution of the United States and

Title VII of the Civil Rights Act of 1964 (42 U.S.C.

§ 2000(e)). Injunctions, damages and other affirmative

relief are sought. There has been considerable informal

discovery under arrangements approved by the Court

at several pretrials. The recruiting aspects of the case

are now before the Court on separate motions for sum-

mary judgment filed by plaintiffs and by both the

federal and District of Columbia government defendants.

The parties have supported their motions with statistical

information not in dispute and affidavits. Detailed briefs

in support of the respective positions were furnished.

In the District of Columbia, a police officer is accepted

as a recruit and enters an intensive 17-week police

academy training period if he meets acceptable charac-

ter and physical standards, is a high school graduate or

equivalent and receives a grade of at least 40 percent

on Test 21. This Test is an examination that is used

generally throughout the federal service. It was de-

veloped by the Civil Service Commission, not the Police

Department, and is designed to test verbal ability, vocab-

ulary, reading and comprehension.

The claims of discrimination in recruiting here ad-

vanced are directed solely to the Test. Plaintiffs do not

allege an intentional discrimination or purposeful dis-

criminatory acts. Rather they contend that the Test

bears no relationship whatsoever to job performance,

49a

has a highly discriminatory impact in screening out black

candidates and should be replaced.

Plaintiffs show that:

(a) The number of black police officers, while sub-

stantial, is not proportionate to the population mix

of the city.

(b) A higher percentage of blacks fail the Test

than whites.

(e) The Test has not been validated to establish

its reliability for measuring subsequent job perform-

ance.

This showing, while minimal, will be accepted as suf-

ficient to shift the burden of the inquiry to defendants

and accordingly it must be determined whether the un-

disputed facts before the Court on these motions estab-

lish grounds for any remedies sought.

Police Chief Wilson took office August, 1969, and the

recruiting of police officers has dramatically changed dur-

ing his tenure. Since he took office, 44 percent of new

recruits accepted for the police force have been black.

Once an officer is recruited he is not washed out during

the subsequent intensive training period at the academy

but rather is given special assistance, where needed, to

assure success. Thus this percentage reflects the number

of black officers actually enrolled on the force. There

is no legal requirement that a recruit be a resident of

the District of Columbia. The urgent need to enroll ad-

ditional officers has required recruiting beyond the con-

fines of the District. Apart from one national effort, the

recruiting effort has focused primarily on an area within

a 50-mile radius of the center of the city. While there

are no precise figures in the record, 44 percent black

obviously closely approximates the population ratio for

the eligible 20-29 age group in this wider area. A de-

tailed survey of recruiting in the period January, 1970,

50a

to September, 1970, shows that more than 50 percent of

officers recruited were black.

There is no proof that the Test is the only factor

limiting black recruitment. Many blacks, numbering in

the hundreds, passed the Test but for other reasons failed

to report for duty, thus showing how small a part the

test per se results in failure to recruit more blacks.

There is undisputed positive proof that the Department

has followed a vigorous, systematic and persistent af-

firmative effort to enroll black policemen. The relatively

higher percentage of black test failures must be appraised

by taking into account this all-out effort to generate

applications from blacks which may well have encouraged

applicants with educational deficiencies to apply.

Thus the issue boils down to the merits of plaintiffs’

contention that the Test is not related to job performance

and to defendants’ assertion that regardless of this re-

lationship the Test is directly related to a determina-

tion whether the plicant possesses sufficient skills re-

quisite to the demands of the curriculum a recruit must

master at the police academy.

Plaintiffs and their expert affiants have misconceived

the responsibilities and expertise required of modern

police officers in a large metropolitan city such as the

Nation’s Capital. Study of the syllabus of the training

course readily demonstrates the intricacy of police pro-

cedures, the emphasis on report writing, the need to dif-

ferentiate elements of numerous offenses and legal rul-

ings, and the subtleties of training required in behavioral

sciences and related disciplines. Daily the significance

of these skills demanding reasoning and verbal and liter-

acy skills is borne out in the crucible of the criminal

trial court. Law enforcement is a highly skilled profes-

sional service. The ability to swing a nightstick no longer

measures a policeman’s competency for his exacting role

5la

in this city. Plaintiffs, by reply brief without support-

ing facts, argue at the eleventh hour that the Test

is culturally slanted to favor whites. There is no proof to

this effect. The test is sealed because it is given on a

regular basis to many federal job applicants. There is

nothing in its text that supports the argument advanced.

The Court is satisfied that the undisputable facts prove the

test to be reasonably and directly related to the require-

ments of the police recruit training program and that it

is neither so designed nor operates to discriminate against

otherwise qualified blacks. Buckner v. Goodyear Tire and

Rubber Co., 339 F. Supp. 1108, 1115 & n. 7 (N.D. Ala.

1972); Spurlock v. United Airlines, Inc., 330 F. Supp.

228, 235 (D. Colo. 1971); see Castro v. Beecher, 334 F.

Supp. 930, 942 (D. Mass. 1971), aff'd and rev’d in part,

4 CCH EPD {7783 (ist Cir. April 26, 1972).

It is of some significance that high test scores and high

job performance appear to correlate, but it is clear that

blacks and whites with low test scores may often turn in

a high job performance. This result may in part reflect

the added verbal and educational training received during

the training period. In any event, so many factors affect

a policeman’s performance on the job it is doubtful that

a written test could ever be devised that would prophesy

performance accurately in advance. None has been sug-

gested here. Instead plaintiffs propose that hiring be

conducted without any test or merely a lowering of the

acceptable “pass” rating from 40 to 35. The lack of job

performance validation does not defeat the Test, given

its direct relationship to recruiting and the valid part it

plays in this process.

The Department is constantly raising and improving

its professional standards. The training program changes

as funds are available and needs to emphasize different

aspects of a policeman’s complex responsibilities are per-

ceived. The day may soon be at hand when a college de-

52a

gree will be a prerequisite and advancement will depend

in large part upon graduate degree experience. The FBI

and the military have moved in this direction, and the

President’s Crime Commission has urged that police re-

cruiting and training take this course.

Neither the Fifth Amendment nor the Civil Rights

Act require that brakes be placed upon efforts to up-

grade recruiting and job standards in law enforcement

work. The plaintiffs’ claim is not supported by any sub-

stantial evidence. The defendants should not be required

on this showing to lower standards or to abandon efforts

to achieve excellence.

The Metropolitan Police Department is a model nation-

wide for its success in bridging racial barriers. It would

be a setback for blacks and whites alike to lower standards

of recruitment. The proof is wholly lacking that a police

officer qualifies on the color of his skin rather than

ability.

Federal defendants’ motion for summary judgment is

granted and the amended complaint is dismissed as to

them; the District of Columbia defendants’ motion for

partial summary judgment is granted; and plaintiffs’

motion for partial summary judgment is denied.

A status conference concerning the promotional as-

pects of the case is set for September 5, 1972, at 12

Noon.

So ordered.

/s/ Gerhard A. Gesell

United States District Judge

July 31, 1972.

53a

RELATION OF D. C. POLICE ENTRANCE TEST

SCORES TO RECRUIT SCHOOL PERFORMANCE

AND JOB PERFORMANCE OF WHITE

AND NEGRO POLICEMEN

Prepared by David L. Futransky, in Cooperation with

Staff of D. C. Police Department Recruit School

Personnel Measurement Research and Development Center

Standards Division

Bureau of Policies and Standards

United States Civil Service Commission

November 1967

I. Purpose of Study

At present, to be eligible for recruitment by the Metro-

politan Police Department, applicants must be at least

21 years old but less than 30, as of the day of appoint-

ment; must be at least 5’ 8” tall and weigh 140 pounds;

have eyesight no worse than 20/40 correctable to 20/20;

and must have a high school education, pass an equiva-

lency test or have worked for a year or more in the police

department of a large city. They must also pass a writ-

ten test, be valuated by a psychiatrist and undergo a char-

acter investigation. This report is concerned with eval-

uating the effectiveness of a written test as a part of the

selection process. The test referred to (Test 21) is an

80-question verbal test used for selection to positions where

no higher ability is required than is represented by High

School graduation. Forty correct answers are required

for passing.

54a

II. Sample and Data Available for Study

For 361 policemen appointed to the D.C. force in the cal-

endar year 1963 and carried through to June 1967, the

Police Department from official records furnished the fol-

lowing items of information:

Race

Score on T. 21

Recruit School Exams Failed

Recruit School Final Average

Commendations

Trial Board or Formal Actions

Job Performance Rating (usual rating of sub-

ordinate by his supervisor)

8. Positions of Responsibility

9. Separations and Reasons

SIPS fe

The two major criteria in the data for evaluating the

test are 4) Recruit School Final Average, and 7) Job

Performance Rating. In addition, clues to performance

are provided by the information dealing with “resigna-

tions with prejudice,” disciplinary actions, commendations

and appointments to positions of responsibility.

III. Relation of Scores on Entrance Test (T. 21) to Re-

cruit School Final Average

Sometime within his first year, the policeman is assigned

to Recruit School for twelve weeks. Eight subject matter

areas are covered in the training. Each of the subjects

are tested and 70% right is required in each subject.

The Recruit School Final Average is simply the average

of these eight percentages on the tests. There are for

all practical purposes no failures in Recruit School. Of-

ficers who are doing poorly on a particular area are given

help and allowed to repeat the test.

1

55a

Prediction of Training School success is a primary fune-

tion of the entrance test. For analysis of test scores,

a Recruit School Average of 85% was designated as

“good” performance. Table I relates, by race, scores on

Test 21 to the percentage of the group whose Recruit

School Average was 85% or higher.

TABLE 1

Scores on Test 21 Related to Recruit School Average by Race

A B C D E F G H I J K

White Negro

Recruit School Ave. Recruit School Ave.

Per- Per-

Number cent Number cent

No No

In 85% 85% R.S. In 85% 85% RS.

Test 21 School & Up & Up Ave. Total School & Up & Up Ave. Total

61+ 83 76 92% 10 93 9 7 78% 1 10

52-60 86 69 80 9 95 23 16 70 4 27

40-51 73 46 63 13 86 39 21 54 4 13

No T. 21

Score 1 — — 5 6 1 1 — 1

Total 243 191 79% 37 280 72 45 63% 9 81

The data in Cols. D“ and “I” show a positive reletion-

ship between scores on T. 21 and performance in Recruit

School for both the white and Negro groups. The higher

the score on T. 21 the more likely the trainee will have

a Recruit School Average of 85% or higher. (The cor-

relation is .46 for whites and .39 for Negroes. These

values are increased to .65 and .58 respectively when

corrected for restriction in range.)

This finding supports the conclusion that T. 21 is effec-

tive in selecting trainees who can learn the material that

is taught at the Recruit School. There is apparently a

difference in the degree of success in Recruit School be-

56a

tween the white and Negro trainees—the white group

doing somewhat better than the Negro group. However,

there is no basis in these data to explain this difference.

IV. Relation of Recruit School Average to Job Perform-

ance Rating

The performance rating represents the last rating that

appears in the policeman’s official folder. It represents

a summary rating over some nine individual rating items.

The ratings range from +4—outstanding to -4—unsatis-

factory with O representing “effective or competent”

performance.

The distribution of the assigned ratings is shown in

Table 2. Table 3 summarizes the totals shown in Cols.

“E” and “I” of Table 2.

TABLE 2

Distribution of Performance Ratings by Current Employed Status

A B C D E F G H I

White Negro

Resigned Resigned

Performance Still Still

Rating Empl. Vol. Prej. Total Empl. Vol. Prej. Total

+4 1 1

+3 12 12 3 3

+2 29 3 32 8 1 9

+1 51 19 2 72 14 1 15

0 67 48 6 121 28 7 1 36

—1 1 1 2 4 3 2 5

—2 1 1 3 3

—3 1 1

—4

Total 161 71 11 248 56 8 8 72

No Rating 2 27 7 36

Grand Total 163 98 18 279* 57 x 16 81

—

oo

D

Does not include 1 man killed in action.

57a

TABLE 3

Distribution of Ratings (Summary of Cols. E & I Table 2)

White Negro

Ratings N % N %

Above Average

(+1 to +4) 117 43 27 37.5

(Effective and Competent)

(0) 121 50 36 50

Below Average

(1 to —4) 5 2 9 12.5

Subtotal 243 100% 72 100%

No Rating 37 — 9 —

Total 280 81

The white group tends to be rated higher than the Negro

group. Whether this represents real differences in per-

formance or whether different rating standards have

been applied to the two groups cannot be determined

from these data.

The difference in the voluntary separation rates (leaving

without prejudice) of the two groups is striking. After

approximately four years, 35% of the white group left

without prejudice as compared to 10% for the Negro

group. The overall separation rate is 42% for the white

group and 30% for the Negro.

Table 4 presents the relationship between Recruit School

Average and the Performance Rating. Does high per-

formance in Recruit School predict high performance on

the job?

58a

TABLE 4

Recruit School Average Compared to Job Performance Rating

White Negro

Performance Rating _ Performance Rating

Number Percent Number Percent

— en Ores „ ATES ae

85% or higher 191 98 51 45 16 36

84% or lower 52 19 37 27 11 41

Subtotal 243 117 48% 72 27 38%

No Sch. Rating 37 — 9

Total 280 81

For white officers, those who had a Recruit School Aver-

age of 85% or higher were more likely to be rated

“above average” on the job (51%) than their colleagues

whose school average was below 85% (37%).

For the Negro officers this is not the case. In fact the

trend is slightly in the opposite direction, but the number

of cases is too small to conclude that there is a significant

relationship between school and job performance.

V. Relation of Entrance Test Scores to Job Performance

Rating

While the primary emphasis of the entrance test must be

to select persons who can absorb the training at Recruit

School, does it appear to have value in identifying those

who will also do well on the job? Table 5 compares scores

on Test 21 and performance rating.

Test 21 apparently behaves like the Recruit School Aver-

age in predicting on-the-job rating. For the white officer,

the higher his score on Test 21, the more likely he is to

receive an “above average” performance rating. For

the Negro officer, test score appears to be unrelated to

performance rating.

59a

TABLE 5

Test 21 Scores Compared to Job Performance Rating

White Negro

Percent Percent

Rated Rated

Test 21 Score N “Above Ave.” N “Above Ave.”

61+ 83 57% 9

52-60 86 52% 23 37%

40-51 73 33% 39 39%

No T. 21 Score 1 — 1 —

Subtotal 243 48% 72 38%

No Rating 37 9

Total 280 81

The relations of combinations of test score and school

average to performance were also examined. This

showed again that for whites, there is a positive relation,

but that for Negroes, the performance rating was not

related to test and school scores combined, any more

strongly than to these measures one at a time.

VI. Relation of Entrance Test Scores to Other Perform-

ance

How are the test scores related to poor incidents of per-

formance, i.e., any one of the following: a “below aver-

age” performance rating, “resigning with prejudice,”

or trial board or other formal disciplinary action? Four-

teen percent of the white officers and 45% of the Negro

officers had at least one of these three in his record. This

record is related to Test 21 scores in Table 6.

For the whites, high scores on Test 21 have relatively

fewer negative incidents in their record. For the Negroes

the difference is in the opposite direction; the most obvi-

ous finding, however, is the great disparity in the propor-

60a

tions of whites and Negroes who have had negative inci-

dents.

TABLE 6

Test 21 Scores Related to Negative Performance Incidents

White Negro

Number Percent Number Percent

With Neg. With Neg. With Neg. With Neg.

Test 21 N Incident Incident N Incident Incident

52&up 169 17 10% 30 17 57%

40-51 73 16 22% 41 15 37%

No T. 21 1 1

Subtotal 243 33 14% 72 32 45%

No Rating 37 — — 9 om as

Total 280 81

Evidences of positive job performance are having re-

ceived a commendation or been appointed to a position

of responsibility. Comparable proportions of the white

group (27%) and of the Negro group (30%) received

either one or both. Table 7 compares scores on Test 21

with this measure of “positive performance.”

TABLE 7

Test 21 Scores Related to Positive Performance Incidents

White Negro

Percent with Percent with

Test 21 N “Positive Incid.” N “Positive Incid.”

52 & up 169 31% 30 30

40-51 73 18 41 29

Subtotal 242 27% 71 30%

No Score

or Rating 38 10

Total 280 81

6la

Here again the test scores appear to distinguish among

the white group in terms of positive behavior on the job

but do not distinguish among the Negroes.

VII. Summary of Findings

1. Scores on Test 21 (40 and above) show a rea-

sonably high relationship to performance in Re-

cruit School for both the white and Negro ap-

pointees.

2. For the white officers, Test 21 (40 and above)

to an appreciable extent predicts job perform-

ance as measured by supervisory ratings, nega-

tive behavior incidents or evidences of positive

performance.

3. For the Negro officers, Test 21 (40 and above)

does not predict differences in on-the-job per-

formance.

4. For white officers, performance in Recruit

School has a positive relationship to job per-

formance. This relationship does not hold for

the Negro officers.

5. Practically no white officers receive less than

an adequate job performance rating. This per-

centage is higher for the Negro group.

6. For all appointees, failure to complete Recruit

School is, for all practical purposes, non-existent.

VIII. Possible Actions Suggested by the Study Results

1. Test Content

1. So long as all new appointees must go through

recruit school which is largely academic in

nature, some type of verbal test seems neces-

sary. The present test has relatively high

62a

validity for this purpose. There is no reason

to believe that replacing the present content

with other verbal test questions would improve

the validity. However, since Test 21 is a widely

used verbal test, it is being reviewed to insure

that the item types continue to be appropriate

for the various uses of this test.

. Test Scoring Standards

Since all selectees at the current standard on

Test 21 of 40 correct complete Recruit School,

the Department would run only a small risk

by accepting applicants in a modest range of

scores below 40. By setting a standard of 35

right, an additional 15% of applicants would be

eligible. This standard would still represent the

reading level of at least the eleventh grade. In

terms of Recruit School, this additional group

would be expected to do less well but still good

enough to complete the training. At scores

below 35, there would be a probably excessive

proportion of recruits who would find it diffi-

cult to master the training.

If the test standard is lowered to add more

recruits, the Department should anticipate in-

creased difficulty in carrying out their policy

of getting every recruit through the Recruit

School. It might well reexamine this policy and

also its use of the probationary period as an

effective means for dropping officers who should

not be carried into the permanent force.