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…we are appalled to learn that the DOJ has branded our tests as “invalid,” despite having been appraised openly in advance of our validation steps, methods, and resulting data, and despite having never raised a single concern over the process during the entire seven-month-period prior to the exam administration. [Page 372]…Only at this point, two months after the exams were given, has the DOJ made any assertion about the unfairness or impropriety of the selection exam, much less that the tests are not valid. This complete reversal and flip-flop of judgment contradicts DOJ’s position prior to test administration, i.e. that the test was valid. Given that the only new information introduced after test administration was test scores and passing rates by race, it is not a difficult leap to conclude that the DOJ’s decision to contradict their prior position is drive solely by test scores and passing rates by race…In fact, it is illegal and in direct violation of Title VII and the Equal Protection Clause of the 14th Amendment. [Page 374]…It is our opinion that throwing out the exam results will inevitably lead to less qualified candidates taking the place of qualified candidates. We therefore recommend that the DOJ concedes with the City’s decision to move forward with the exam results, selecting one of three available cutoffs that align with the minimum competency levels established by the validation study. [Page 375]

Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it has uncovered hundreds of documents from the City of Dayton, Ohio, showing that Department of Justice (DOJ) officials pressured the Dayton Police Department to lower testing standards because not enough African American candidates passed the written exam. On May 25, Judicial Watch also filed a lawsuit against the DOJ to obtain additional records related to the Dayton program after the DOJ failed to respond to a Judicial Watch Freedom of Information Act (FOIA) request (Judicial Watch v. U.S. Department of Justice (No. 11-971)).The documents obtained by Judicial Watch include the City of Dayton’s standards and test materials for police and firefighter candidates produced by Fire & Police Selection, Inc., a company with a 15-year track record of designing and validating tests used to recruit police officers and firefighters. The documents also include correspondence between the City of Dayton and the DOJ as DOJ officials conducted their analysis of the Dayton recruitment and testing program. (A “Consent Decree” was signed by both parties to resolve a discrimination lawsuit filed by the DOJ against the City of Dayton.)The City of Dayton submitted ahead of time its recruitment and testing plans in detail (including its written examination), per the request of the DOJ. Dayton also took steps to focus its recruitment strategy on “minority – African-Americans, Hispanic, Asian, Females and other underrepresented minority groups.” These plans apparently did not elicit any significant objection from the DOJ until after the tests had been administered and scores were calculated.According to an internal assessment by Fire & Police Selection, Inc., “An exhaustive item-level analysis was conducted on the data from the administration and our statisticians did not identify any significantly problematic items that negatively affected the reliability of the test.” But after reviewing the test results, the DOJ registered its objections.In a letter dated February 7, 2011, DOJ Senior Attorney Barbara Thawley informed the City of Dayton that the DOJ rejected the written portion of the Dayton examination: “The United States has determined that the City’s proposed use of the written examination…violates…the Civil Rights Act of 1964…because it has a statistically significant disparate impact upon African American candidates…” The letter closed by threatening court action. A subsequent letter on February 17, 2011, suggests the written exam be used as a “pass/fail” screening device, which the DOJ described as a “compromise.” The DOJ also objected to the use of a written test in general for firefighter applicants. “With regard to the writing portion for firefighter, it seems unusual to me. I have never seen a fire department give a writing test to entry level firefighter applicants. From what I know about the job, it seems very unlikely that an entry-level firefighter would have to do much writing,” wrote Ms. Thawley. “All of our firefighters are either EMT or paramedics and do a lot of report writing,” responded Giselle S. Johnson, Secretary and Chief Examiner, Civil Service Board.On February 18, 2011, Fire & Police Selection, Inc. CEO Dan Biddle issued a sharp rebuttal:

According to a report by Dayton’s ABC News affiliate on March 11, 2011, the ultimate compromise struck between the City of Dayton and the DOJ resulted in a lowering of test standards for Police Department candidates:

The Dayton Police Department is lowering its testing standards for recruits. It’s a move required by the U.S. Department of Justice after it says not enough African-Americans passed the exam. Dayton is in desperate need of officers to replace dozens of retirees. The hiring process was postponed for months because the D.O.J. rejected the original scores provided by the Dayton Civil Service Board, which administers the test.Under the previous requirements, candidates had to get a 66% on part one of the exam and a 72% on part two. The D.O.J. approved new scoring policy only requires potential police officers to get a 58% and a 63%. That’s the equivalent of an ‘F’ and a ‘D’.

On June 29, 2009, the Supreme Court ruled that city officials in New Haven, Connecticut violated the rights of white firefighters when they discarded the results of a promotions test because minority firefighters performed poorly on the test. “The city rejected the test results solely because the higher scoring candidates were white,” Justice Anthony M. Kennedy wrote for the majority. (Ricci et al.. v. DeStefano et. al., (No. 07–1428)).“One would be hard pressed to find a more egregious example of the unlawful application of race-based quotas,” said Judicial Watch President Tom Fitton. “These documents show the City of Dayton bent over backwards to accommodate the Justice Department’s ridiculous demands. But the Justice Department did not care a whit about the testing process; they cared only about the results and race quotas. Now the Justice Department has attempted to cut standards and game the system to give critical first responder jobs to less qualified candidates. This puts the public safety at risk. And, as is typical, this Justice Department can’t be bothered to comply with basic FOIA law and tell the American people exactly what it is up to.”