Reverse Discrimination Ruling May Spark New Legal Challenge

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A decision that ends a reverse-discrimination suit by white candidates for firefighter jobs and allows the city of Newark to hire from a 1995 eligibility list, rather than a 1992 list, may spark a challenge from a black firefighters’ group.

Attorneys in the suit, Almaguer v. State of New Jersey, No.95-4567, say they expect the group, known as the Vulcan Pioneers, to file an objection to a state Department of Personnel decision, approved by U.S. District Judge Nicholas Politan last Wednesday, that allows Newark to select 42 firefighters from the 1995 list, in which white candidates occupy more of the top spots than they occupy remaining spots on the 1992 list. That would, according to the group, make white candidates instead of minorities the top choice for the vacancies.

Senior Deputy Attorney General Douglass Derry, who represented the Department of Personnel in court hearings last week, argues that the state used the same test for ranking firefighter candidates in 1992 and 1995. And, he says, the results were virtually identical: Of the 605 candidates on the 1992 list, 276 are black and 106 are Hispanic. Of the 611 candidates on the 1992 list, 298 are black and are Hispanic. "Using the 1995 list preserves the integrity of the process and is consistent with the underlying consent decree," Derry says. He says the rankings are based on the candidates’ performance on an obstacle course. The written test and two other physical tests are both graded pass/fail.

Martin Kaufman, general counsel for the Atlantic Legal Foundation in New York, who represented the white firefighter candidates, says using the "stale" 1992 list, which has expired, would be tantamount to granting unconstitutional racial preference. He alleges that the U.S. Justice Department, which had pushed the use of the 1992 list, was "just trying to rig the numbers" of minorities in the fire department. The Justice Department Wednesday agreed to the use of the 1995 list. Kaufman says that if the city were to continue to use the 1992 list, rather than start at the top of the 1995 list, it would end up hiring fewer qualified candidates.

The Vulcan Pioneers’ attorney, Newark solo practitioner Vickie Donaldson, did not return a telephone message left at her office, but she told The Star Ledger last week that using the 1995 list defeats the goals of an earlier federal court decree designed to prevent discrimination in hiring.

Maureen Castellano