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Under new mayor, Boston continues to fight a lawsuit alleging police lieutenant exam was discriminatory

At the heart of the dispute over police promotions is a now-revised exam alleged to have been discriminatory against people of color.
At the heart of the dispute over police promotions is a now-revised exam alleged to have been discriminatory against people of color.Jessica Rinaldi/Globe Staff

It is the latest chapter in a legal saga that has dragged on for almost a decade, pitting a collection of Black police supervisors against the City of Boston over a lieutenants promotional exam.

A pair of new court filings signal that the city is continuing in its defense of the test at the heart of the case, despite a federal judge’s finding that the exam unfairly favored white candidates and the US Department of Justice saying Boston should drop its appeals.

The latest legal moves represent a notable new wrinkle: Even with a new acting mayor who has emphasized racial equity and called for a substantial overhaul of Boston’s approach to policing, the city appears to be pressing forward with its fight against a group of 10 Black police sergeants who sued, alleging lieutenant promotions were discriminatory.

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In late April, an attorney representing the city filed a brief in the case, which is now before a federal appeals court, pointing out that the plaintiffs did not challenge that the knowledge tested in the exam was job-related. A week later, the city made another filing, designating the attorney who would be presenting oral arguments on June 8.

Those developments have sparked fresh condemnation from critics, who say the city is wrong and misguided in pursuing its appeal.

“It is shocking to me that the city is still fighting this case,” said Shannon Liss-Riordan, the attorney representing the plaintiffs. She said the decision to move forward is especially surprising given the ongoing discussions about police reform and the critical importance of the Boston Police Department’s need to be more empathetic to the communities it serves.

The promotional exam, she said, was was racist, and there is “no reason for the city to be defending this in this day and age.”

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The exam tested how skilled people were at memorizing books, not “how good a leader they are.” The process, she said, did not consider someone’s performance history. (The exam has been changed since the complaint was filed some nine years ago.)

“It just seems to be a mindless continuation of the status quo,” she said of the city’s continued fight.

Through a spokesman, Acting Mayor Kim Janey, who became the city’s first Black and first woman mayor when Martin J. Walsh left City Hall in March to be US labor secretary, declined to comment, citing the ongoing litigation.

In recent months, Janey has spoken about the need to reimagine policing. Her proposed budget for next fiscal year included slashing police overtime pay by one third and included a $1 million investment for racial-equity training for police and an additional $1 million for the new Office of Police Accountability and Transparency, a watchdog agency that will probe officer misconduct.

Still, some critics have charged that her budget proposal does not go far enough to revamp policing.

Last summer, as a city councilor, Janey called for deeper cuts to the department’s budget, among a host of other policy changes, including a commitment to adding Black supervisors. She also advocated for eliminating “discriminatory practices in hiring and promotion,” including promotional exams, and a commitment for the city to “stop appealing decisions.”

Recent efforts have been made to diversify the Police Department, which the Globe reported last year had become slightly more white, even as the city’s population grew less so in recent years.

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In an attempt to further diversify the police force, then-mayor Walsh last year pushed for the state civil service system, which governs the department’s hirings, to include a preference for prospective officers who had graduated from the city’s high schools. The civil service system, adopted in the 1800s, was originally intended to thwart patronage in government hiring. But critics say it prioritizes certain candidates, such as military veterans, with no regard for other demographics, leading to a wide pool of white male candidates.

The ongoing legal fight dates to 2012, when Black sergeants sued after failing to advance because of a 2008 civil service exam. The suit demanded that Boston scrap a multiple-choice lieutenant’s test. At the time, the litigation was seen as underscoring long-running tension between officers of color and department commanders.

More than three years later, in the fall of 2015, a federal judge ruled that the city had discriminated against people of color by using the 2008 promotional exam because it was slanted in favor of white candidates.

“This is a profoundly important case,” the federal judge wrote, “one that evokes the finest of our nation’s aspirations to give everyone equal opportunity and a fair shot.”

Based on scores from that civil service exam, the Police Department promoted 33 sergeants to lieutenant, including five Black sergeants, over six years. But the judge found that the written portion of the exam had a “racially disparate impact” and that the multiple-choice questions were not sufficiently job-related.

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That same judge upheld his previous ruling in 2017. The city appealed, and the matter is now before the Court of Appeals for the First Circuit.

In recent documents, the city argued that the court should reverse the previous ruling, saying “it is all but impossible to discern how such an exam was not ‘job related for the position in question’ — or, as this Court put it, ‘significantly correlated with an important element of work behavior.’”

The city’s lawyers said the plaintiffs do not challenge the fact that the knowledge tested in the 2008 exam was job-related.

“And as the district court found, the 2008 exam measured ‘an important element of work behavior,’ " read a recent filing.

Jeffrey Lopes, a detective who is president of the Massachusetts Association of Minority Law Enforcement Officers, said Boston has fought and lost this battle on multiple occasions.

“It makes no sense” that city officials are continuing the case, he said.

Given the discussions about reform and the importance of equity, he said it was hypocritical to continue the litigation.

“You’re pretty much saying you’re OK with a discriminatory practice,” he said.

Sophia L. Hall, supervising attorney for Lawyers for Civil Rights, which filed an amicus brief in the case, said it’s “yet another example of the City of Boston expending taxpayer dollars to defend against and prolong legally recognized systemic discrimination.”

“It is my hope that a new mayor will work with communities of color to support their advancement opportunities rather than continue the trend of reinforcing glass ceilings,” she said in a statement.

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Last month, the Department of Justice weighed in — firmly against the city. In a brief, the department argued that the city is wrong to defend the exam and wrong to try not to pay the nearly $500,000 awarded to the officers who sued.

Adrian Walker of the Globe staff contributed to this report.






Danny McDonald can be reached at daniel.mcdonald@globe.com. Follow him on Twitter @Danny__McDonald.