Two black applicants for positions in the District of Columbia Police Department were turned down. They sued, arguing that the Police Department used racially discriminatory hiring procedures, including its use of a test of verbal skills (Test 21), which was failed disproportionately by blacks.
Laws that have a racially discriminatory effect but were not adopted to advance a racially discriminatory purpose are constitutionally valid.
To become a police officer in the District of Columbia, a police recruit is required to satisfy certain physical and character standards, to be a high school graduate or its equivalent, and to receive a grade of at least 40 out of 80 on “Test 21,” an examination that is used generally throughout the federal service which was developed by the Civil Service Commission and which was designed to test verbal ability, vocabulary, reading, and comprehension.
The evidence showed that roughly 4x as many blacks as whites failed Test 21. Apart from the test, however, the Police Department had systematically and affirmatively sought to enroll black officers. As a result, 44% of new police force recruits had been black in the years preceding this case.
Plaintiffs argue that Test 21 has a substantially discriminatory impact and could not be used unless the Police Department could show that it bears a substantial and demonstrated relationship to performance on the job.
Did the recruiting procedures violate the Equal Protection Clause of the Fourteenth Amendment?
No, the recruiting procedures did not violate the Equal Protection Clause of the Fourteenth Amendment.
I agree that a constitutional issue does not arise every time some disproportionate impact is shown. However, the line between discriminatory purpose and discriminatory impact is not as bright as the Court’s opinion suggests. Frequently, the most probative evidence of intent will be objective evidence of what actually happened, rather than evidence describing the subjective state of mind of the actor.
The procedures and written personnel test did not constitute racial discrimination under the Equal Protection Clause, which was designed to prevent official discrimination on the basis of race. Laws that have racially disproportionate impacts are not automatically constitutional violations. The District of Columbia Police Department’s procedures did not have discriminatory intent and were racially neutral measures of employment qualification. Test 21 is neutral on its face and rationally may be said to serve a purpose the government is constitutionally empowered to pursue. Namely, the government may seek to hire employees with certain communicative abilities.
Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution. Standing alone, it does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by compelling governmental considerations.