Boston officials are frustrated that a federal judge has not ruled on a case contesting the fairness of the police promotional exam, even though the case was heard more than two years ago.
More than 1,600 Boston police officers who are eligible to take the exam remain in career limbo because the department is reluctant to promote them in case Judge George A. O’Toole Jr. determines the test discriminates against some minorities, as several black and Latino officers have alleged.
The pending lawsuit “continues to cause uncertainty as to the process the city can and should follow in the selection of candidates,” Laurence J. Donoghue, an attorney for the city, wrote to O’Toole on May 14. Donoghue made a similar plea to the judge nearly a year ago.
In a statement, Boston Police Commissioner Edward F. Davis said: “We encourage the judge to make a decision to allow the Department to move forward with a new promotional examination that both meets legal requirements, and identifies the best supervisor candidates for the Department.”
A clerk for O’Toole said the judge does not discuss pending cases.
Federal judges have no deadlines to render a decision, but they must report the number of their pending cases twice a year to the Administrative Office of the United States Courts.
O’Toole heard closing arguments in February 2011 on the case brought by 44 minority patrol officers from seven departments across the state, who argued that the test, which is mostly multiple-choice questions, is inherently discriminatory because blacks and Hispanics historically do worse on such exams compared with white and Asian candidates.
‘How can you say there is nothing wrong with [the exam] and then you stop using it. It’s almost like you’re admitting there is something wrong.’
The complexities of the case are probably delaying the decision, said Nancy Gertner, a former federal judge who is now a professor at Harvard Law School.
“Unlike a jury who can say yea or nay, [O’Toole] has to write something of substance which takes time, and people don’t realize that,” Gertner said.
It is not unusual for a judge to take months, even years to decide a difficult case, she said.
“I had decisions I could do quickly and I had decisions that sat on my shelf that I was struggling with,” Gertner said. “The time was not because I was out golfing. The time was because I couldn’t figure out what to do.”
Civil service exams are given to most public sector employees who want a job or promotion. Police chiefs and commissioners are required to promote the top scorers, a system that was meant to eliminate favoritism.
The plaintiffs in this case, who, in addition to Boston work in departments in Lawrence, Lowell, Methuen, Springfield, and Worcester, and for the MBTA transit police, argued that to do well on the tests, candidates do not need to demonstrate that they are capable leaders, but must rely on rote memorization to answer written questions.
The plaintiffs took the 2005 sergeant exam and were not promoted. After they sued in 2007, Boston police decided to promote only officers who took the 2008 exam, but would not promote officers who took subsequent tests for not only sergeant, but also lieutenant and captain.
There are now 1,640 Boston police officers eligible to take a promotional exam.
The effect has damaged morale among officers who want to move up in the ranks but have no way of doing so, said Mark Parolin, vice president of the Boston Police Superior Officers Federation.
“The career path has been stymied,” Parolin said.
Minority officers are also anxious for a ruling, said Boston police Detective Larry Ellison, president of the Massachusetts Association of Minority Law Enforcement Officers.
But he blamed the department for the delay in promotions, arguing O’Toole never instructed the city to stop promoting from the exam until he made a decision.
“How can you say there is nothing wrong with [the exam] and then you stop using it,” Ellison said. “It’s almost like you’re admitting there is something wrong.”
There are no clear answers on why some minorities tend to do worse than whites on such exams. One theory that was raised by a psychologist during the trial is that whites, who are more likely to have received a better education than blacks or Hispanics, fare well on exams where there is only one answer to a question, while minorities excel when they are asked to come up with several different ways of solving a problem.
“It has nothing to do with intelligence and everything to do with the deprivation of educational opportunities,” said Mark Brodin, a Boston College Law School professor.
A former staff attorney with the Lawyers Committee for Civil Rights in Boston, Brodin recalls litigating cases involving civil service exams as far back as the 1970s.
“Part of the reasons for the stubborn insistence of civil service people to stick with these almost wholly discredited multiple choice exams, I suspect, is they’re relatively inexpensive and easy to administer,” he said. More modern tests, like interviews that ask candidates how they would respond to different scenarios, are more time-consuming and require more staff, Brodin said.
Davis has said he agrees with the criticism that the current civil service exam does not measure leadership skills effectively. Recently, he announced a $2.2 million initiative to replace the exam with a testing system that would include interviews and other components to judge leadership potential.
But during the trial, city attorneys defended the current test as an adequate way to measure a candidate’s knowledge, skills, and abilities to perform the functions of sergeant.
And unions are loath to accept a new system that could allow administration favorites to be promoted over qualified candidates with less political clout.
Said Parolin: “All we’re looking for is a fair and impartial exam with no outside influence for our membership.”