Court Revives Reverse-Discrimination Suit Against Syracuse Involving Fire Department

John O’Brien, Post-Standard (Syracuse), August 8, 2010

It’s 1980, a dozen years after American cities erupted in race riots.

In Syracuse, there’s outrage over black-white disparities: Just 1 percent of the city’s firefighters are black–far less than the 10 percent in the city’s labor pool.

Syracuse is among the first cities to find a remedy. City leaders go to court and file a document that makes it OK for them to hire contrary to the law, by picking black firefighters and police officers who score lower than whites on civil service exams.

The document is essentially a license to racially discriminate, with justification. A federal judge in Syracuse says it is a means of guaranteeing “that America’s promise of freedom and equality is more than just a dream.”

Thirty years later, that document, called a consent decree, is at the center of a civil rights lawsuit against the city. It’s been blocking David Vivenzio, Scott Wilkinson and John Finocchio from their lifelong dream of becoming a professional firefighter. They say the time has come to get rid of it.

The fire department now has 59 black firefighters, or 16.6 percent of the 355 total.

A federal judge in 2008 threw out the lawsuit, but an appeals court last month overturned that decision and revived it in a lower court in Syracuse.

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Such decrees are being thrown out across the country, as are other affirmative action policies, said University of Michigan law professor Richard Primus. The movement stems from a Supreme Court that’s become increasingly intolerant of any form of race-conscious decision-making by government, Primus said.

In 2007, the court struck down a quota requirement for the number of black and white students in Seattle’s public high schools. In that case, Chief Justice John Roberts wrote a line that could be the battle cry for the anti-affirmative action side: “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”

There’s a flip side to that argument, said Primus, a leading expert on employment discrimination law whose work the Supreme Court has cited.

Both sides are working to figure out what the Syracuse labor pool looked like when the 2005 lawsuit was filed. Five years earlier, it was 21 percent black.

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The city has asked the appeals court to reconsider the case, with the entire panel hearing arguments instead of only three judges.

The two sides are tussling over the language of the 1980 decree. It lays out two goals for the city: blacks should make up 10 percent of each rank in the department, and the percentage of blacks in the department should match the percentage of blacks in the Syracuse labor pool.

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The decree is an important tool in recruiting black firefighters–especially with the department losing some of its African American members to retirement, Fire Chief Mark McLees said.

“It’s a constant effort to maintain a diverse fire department,” McLees said. “It doesn’t happen by itself. Just this year, two African American firefighters are retiring. That’s a number that affects the whole percentage.”

The lawsuit was filed five years ago by Vivenzio, Wilkinson, Finocchio and nine other white applicants who were denied jobs as firefighters because of the consent decree.

Six of them were hired a year later and three others dropped out of the case. The city’s lawyers said in court papers that the department didn’t hire Vivenzio and Wilkinson because their civil service scores of 95 were too low–although higher than the African Americans who were hired. The department didn’t hire Finocchio despite his score of 105 because he did not reveal that he had a driving-while-ability-impaired conviction 15 years earlier, court papers said.

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The legal battle comes down to an interpretation of the decree’s intended goals. Here’s the language from the 1980 decree:

“The city desires to . . . achieve the long-term goal to utilize blacks in all ranks within the fire and police departments in numbers approximating their representation within the labor force,” the decree said. “Subject to the foregoing sentence, the parties agree that the long-term goal for blacks in each rank is approximately 10 percent.”

The goals of the decree have not been met in Syracuse’s Police Department, where 7 percent of the 489 officers are black.

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Fennell wants the city to reassess the need for the decree. The state police were under a similar consent decree in the 1980s and they put on a statewide push to hire black troopers, he said. When they hit the decree’s goal soon afterward, the agency went back to court and got the decree terminated, Fennell said.

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But the decree’s original intent is still needed, Johnson said. That’s especially true because many of the African Americans hired 20 years ago are starting to retire, he said.

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