Lawsuit: Mich. LE exam discriminates against blacks
The lawsuit alleges that two different civil service exams the state has used since 2014 violate a civil rights law
By Paul Egan
Detroit Free Press
WAYNE COUNTY, Mich. — A Wayne County judge has certified a class-action lawsuit brought on behalf of more than 600 black applicants who wanted to work as state police or conservation officers but failed the required Michigan civil service exam.
The lawsuit alleges that two different civil service exams the state has used since 2014 — one of which remains in use today — violate the Elliott-Larsen Civil Rights Act and discriminate against black applicants, who have a higher failure rate than white applicants do.
"The Michigan Civil Service Commission engaged in a pattern and practice of race discrimination in its hiring process through testing that had a disparate adverse impact on African-Americans," the suit alleges. "This illegal policy ... was furthered by command officers'/officials' failure to monitor the adverse impacts of the employment policies in place."
The suit doesn't allege the state intentionally discriminated — just that the exam produced racially disparate results in ways that weren't necessary to determine which test writers could best do the job. The suit alleges there are alternative tests that could screen applicants just as effectively without producing discriminatory results.
The commission — a bipartisan panel whose four members are appointed by the governor to oversee state hiring and employment issues — denied the allegations in a court filing.
Michigan State Police were under a federal consent order to increase minority hiring from 1977 through 1992, but a 2015 Detroit Free Press investigation showed that hiring of black troopers plummeted once the consent order was lifted in 1993, and the percentage of black troopers gradually dropped from close to 13 percent to about 5 percent. Black residents make up about 14 percent of Michigan's population, according to census numbers, and that percentage is much higher in major cities such as Detroit.
Police departments that lack diversity or don't reflect the racial makeup of the communities they police are seen as an aggravating factor in ongoing tensions between police agencies and urban communities around the United States.
Judge David Groner's Nov. 7 certification of the class-action suit can still be appealed until next week. The certification is not a ruling on the merits of the case, but is based partly on evidence the Michigan Civil Service Commission failed to monitor whether the exam it administers on behalf of state agencies was producing discriminatory results, as the suit alleges it was required to do.
For the exam used between Feb. 15, 2014, and Nov. 24, 2014, blacks had a fail rate of 77 percent, while whites had a fail rate of 51 percent, the suit alleges. That exam, which included an essay question portion, was replaced late in 2014 with a new exam, which is all multiple choice. For that exam, which remains in use today, blacks had a fail rate of between 4 and 5 percent, compared with a 1-percent fail rate for white test writers, the suit alleges.
The state Attorney General's Office, representing the Civil Service Commission, opposed the certification, arguing the exam is only a screening tool, passing it is not equivalent to a job offer, the commission doesn't require anyone to write it, and each state agency does its own hiring.
The suit doesn't specify which parts of the exams — designed by Washington-based Ergometrics & Applied Personnel Research, Inc. — are unfair to black applicants. The exams include sections related to human interaction, reading, and writing.
Leonard Mungo, the Detroit attorney representing the plaintiffs, said cultural differences can make certain questions more difficult for blacks to answer correctly. The test itself is subject to a protective order, since the state doesn't want applicants to be able to study it before they sit down to write it.
The lead plaintiff in the case, Carlos Bell, 46, a St. Clair Shores resident who grew up in Detroit and graduated from Henry Ford High School, said he failed the older state exam once and the newer exam twice, though he easily passed the equivalent screening exam for the Detroit Police Department.
Bell, a married father of two, said he was extremely disheartened by the results and it didn't immediately occur to him that the problem could have been the test itself.
"I may not have a lot of book smarts, but my common sense is pretty good," Bell told the Free Press. "I feel like I could have been the guy coming up to your car (on the freeway), and I wasn't given a chance."
Though he passed the State Police physical test a few years ago, Bell said he thinks his hopes of becoming a state trooper have died, as his knees have worsened since then. He now drives a cement truck.
Shanon Banner, a spokeswoman for the Michigan State Police, said the agency "is confident that neither the civil service exam nor our hiring practices favor or discriminate" against anyone.
"Our current trooper recruit school, which today consists of 110 total recruits, includes 20 recruits who identify as nonwhite, including 11 black recruits," Banner said in a Monday email to the Free Press. "This school also includes 17 females, making it our most diverse recruit school in 20 years."
Mungo said that lack of police diversity and related tensions with those who come into contact with police has become a national security issue, and it's essential to "conduct these tests in a way that is not likely to screen people out because of their cultural backgrounds."
Assistant Attorney General Christopher argued on behalf of the commission the proposed class of plaintiffs includes black exam writers who suffered no injury as a result of receiving a failing grade, That's because far more people wrote and passed the exam than could have been hired as Michigan State Police troopers, motor carrier officers and state property security officers, or as Department of Natural Resources conservation officers, Christopher wrote in a court filing.
But based on the number of successful exam writers who were hired, Kyle Brink of Western Michigan University, an organizational psychologist retained by Mungo, calculates that 13 more black applicants would have received jobs between 2014 and 2017 if the pass rate for black and white exam writers had been equal.
Based on lost pay and pension income for those 13 applicants, Mungo pegs economic damages at about $6.5 million, which would be distributed among all the black applicants who failed the exam. The suit seeks unspecified noneconomic damages in addition to that amount.
James Fett, a Pinckney attorney who has represented white plaintiffs in lawsuits related to Michigan State Police promotion and hiring practices, said more data needs to be analyzed before concluding the state exam is discriminating on the basis of race.
"There may be nondiscriminatory factors that explain the difference" in test performance between blacks and whites, Fett said.
For example, if most of the whites who wrote the exam had college degrees, while most of the blacks who wrote it had only completed high school, that would skew the results, he said. The education levels of all the test writers should be included in the analysis, he said.
Mungo said Monday that data about the educational level of the test writers — if it exists — has not yet been made available to the plaintiffs.