Public Personnel Examinations and the Constitution: Emergent Trends

Public Personnel Examinations and the Constitution: Emergent TrendsAuthor(s): David H. Rosenbloom and Carole Cassler ObuchowskiSource: Public Administration Review, Vol. 37, No. 1 (Jan. - Feb., 1977), pp. 9-18Published by: Wiley on behalf of the American Society for Public AdministrationStable URL: http://www.jstor.org/stable/974504 .

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9

Public Personnel Examinations and

The Constitution: Emergent Trends

David H. Rosenbloom, University of Vermont Carole Cassler Obuchowski, University of Vermont

Despite almost a century of effort to depoliti- cize public service in the United States, public personnel administration remains deeply entangled in the "political thicket." Today the major challenge to public personnel administration comes not from spoilsmen, political parties, or frustrated political executives, but rather from decisions of the federal judiciary. Indeed, in a series of cases receiving little national attention during the past few years, the lower and intermediate federal courts have required major changes at the center of contemporary public personnel administration and have placed it on the threshold of a new era in which new values and techniques will have to be employed.

Public Personnel Administration's Political Paradigm

For the most part, public personnel administration in the United States retains a political paradigm developed by the civil service reformers in the 1870s and 1880s.1 Although the goals of "efficiency," "morality," and "economy" are generally associated with the reform movement, the reformers' overall objectives were less related to the condition of the federal service than to that of the political system as a whole. As a leading reformer expressed it, "The question whether the Departments at Washington are managed well or badly is, in proportion to the whole problem, an insignificant question...."2 The major defect of the spoils system from their perspective was that it produced unfit politicians.3 What the reformers wanted, as they clearly stated, was to make it possible for a new class of politicians to emerge,

* This article examines recent judicial decisions concerning the constitutionality of public personnel examinations. It is argued that these decisions are challenging the traditional political paradigm of public personnel administration by stressing the value of representation. In so doing, they are forcing public personnel administrators to attempt to develop examinations having a high level of validity and to reconsider the relationship between merit and representation.

or, "... to make active politics once more attractive to men of self-respect and high patriotic aspirations."4 Reform, in short, stood for nothing less than a fundamental change in the nature of political leadership.

In order to accomplish this objective it was necessary to take politics out of the civil service and the civil service out of politics. Only through depoliticization would it be possible to deny the spoilsmen patronage, their chief political resource, and thereby relegate them to a minor role in the political system. Open competitive merit examinations were the means through which depoliticiza-

David H. Rosenbloom is an associate professor of political science at the University of Vermont. He has taught at the Universities of Kansas and Tel-Aviv and was a NASPAA Fellow with the U.S. Civil Service Commission. He has authored Federal Service and the Constitution and several other works dealing with public and personnel administration and constitutional law.

Carole Cassler Obuchowski attended Boston University Law School and is currently doing research in the Department of Political Science of the University of Vermont. She was assistant law librarian with General Motors Corporation. She has done extensive research in the area of organization theory.

JANUARY/FEBRUARY 1977



PUBLIC ADMINISTRATION REVIEW

tion was to be effectuated. In the words of a leading reformer, open competition ... is proved to have given the best public servants; it makes an end to patronage; and, besides being based on equal rights and common justice, it has been found to be the surest safeguard against both partisan coercion and official favoritism.5

Thus open competitive examinations were a technique for maximizing virtually all of the reformers' goals, but foremost among these was overall political reform. Today, however, many view public personnel examinations as detrimental to the attainment of representative public services. It has been charged, for instance, that "... the tests given by the U.S. Civil Service Commission ... are among the most discriminatory given by any employer."6

To an extent, the reformers were successful in achieving their objectives. Spoils ceased to provide the primary political resource of federal politicians in the years following the enactment of the reformers' proposals into law.7 However, as spoils became less important, public personnel administrators began increasingly to stress the administrative benefits of examinations. Eventually, the slogan "only the best shall serve the state" became the rallying cry of public personnel administra- tion8 and personnel examinations, it was claimed, were the most satisfactory method for assuring this condition. Today, there is no doubt that, "The cornerstone of the public personnel program is the process of selection by means of competitive examinations... " Yet, the cornerstone is flawed.

As a whole, public personnel administration in the United States has not been successful in demonstrating the legitimacy and validity of merit examinations. There are several reasons for this. First, while the objective of obtaining the best qualified civil servants is rarely questioned, de- veloping techniques for predicting human behavior is extremely difficult. This is especially true in the case of government employment where the en- vironment is often relatively fluid and work processes involve many highly qualitative and intangible elements. Past performance, knowledge, and ability are related to future performance, in general, but so are individual reactions to specific environmental factors and styles of supervision. The latter are almost never adequately taken into account under merit procedures, and it is not clear that they always could be.

Some aspects of organization theory are

pertinent in this regard. At least 12 kinds of ideal-type "organization men" have been identified or hypothesized.' It has also been convincingly argued that the behavior of individuals in the environments of large organizations is strongly related to their psychological predisposition and their specific positions in organizations, as opposed to their natural and learned abilities.' However, almost any system of examinations given to large numbers of people will have to concen- trate on relating ability, rather than the additional elements of psychological predispositions, achieve- ment orientation, and motivation, to specific positions. Therefore the differences between "climbers" and "conservers," or between "in- differents" and "ambivalents," for example, are only marginally related, at most, to that which is tested by merit examinations.1 2 Yet these be- havioral patterns are believed to be extremely important in determining performance and the nature of whole administrative units.

In sum, to be highly predictive, personnel examinations would have to relate specific environments and job functions to individual abilities, predispositions, and cognitive styles. More- over, predicting the nature of interpersonal behavior may require that some assessment be made of the group dynamics of the organizational unit to which an applicant is being considered for employment. While in some instances the social scientific technology may be available for so doing, in others it is absent, and, in general, a system of exams developed along these lines might well be prohibitive in terms of cost.

A second shortcoming of merit examinations has been a failure to analyze adequately the validity of these testing devices. It has been concluded, for example, that "... hundreds of public jurisdictions have probably never done a validity study."1 3

Perhaps the most common approach is to attempt to establish "content validity." This requires that the content of the examination match, insofar as possible, the content of the job. Content validation, however, does not enable prediction of job success on the basis of test score. That is, although it is assumed that the higher the score the better the performance on the job will be, the relationship between the two is not empirically established. A somewhat more sophis- ticated approach is to use the method of "construct validity." Here an effort is made to identify the characteristics, psychological predispositions, and mental abilities necessary for successful job


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PUBLIC PERSONNEL EXAMINATIONS

performance and the examination is designed to determine the extent to which candidates actually possess these requisites. Construct validation may create a greater relationship between exam score and on-the-job performance than does content validation, but it is still not predictive because the nature of this relationship is not ascertained.

In theory, the best method of establishing the validity of merit examinations is to employ a "predictive validation" approach. Unfortunately, this is extremely difficult to apply and consequently few public personnel systems utilize it. Predictive validation requires that the criteria indicating successful job performance be identified and that test scores be correlated with performance ratings. Only predictive validation estab- lishes the significance of differences in examination scores and whether the relationship between scores and performance is linear or even substantial enough to warrant use of the testing device. Yet, it could be argued convincingly that given present day technology in the social sciences it is impossible to find a significant relationship between exam score and job performance for many kinds of public service jobs, and especially the more important ones. Moreover, such a process would require a tremendous investment of time as those appointed would have to be "followed" for many years. In short,

... there is considerable evidence that neither construct nor predictive validity is a feasible method to use in most public personnel settings for a number of reasons. For example, the extent to which social, motivational and situational variables affect job performance makes it extremely difficult to identify job performance criteria. It may be possible in the abstract to identify job content factors pertinent to job proficiency, but job proficiency is different from job performance. The only areas in which there has been reasonable success in establishing performance criteria and in evaluating performance are routine and repetitive positions.14

In addition, at the present time there is no universal or even generally acceptable way of measuring "job success." "A 'success rating' usually amounts to a kind of 'report card' which is made out by the employee's supervisor," and, "... such ratings are inevitably limited in reliability - particularly when different supervisors are rating different people."1 Moreover, in some jurisdictions there is no success rating, but only an "efficiency report" at best. Another barrier to ascertaining the predictive validity of merit examinations is that, "... generally only a limited portion of the test taking group ever get the

chance to perform on the job,"1 6 and, therefore, nothing is known concerning how those with lower scores who were not appointed would have performed, if actually given the opportunity. Furthermore, those appointed often have very similar scores, which makes it difficult to explain differences in job success in terms of performance on the examinations. To an extent, it is possible to assess predictive validity by administering examinations to current employees and subsequently correlating their scores with their job performance ratings (concurrent validity). It is generally believed, however, that this approach introduces important intervening variables including on-the- job learning, situational factors, and a different attitude toward the exam itself.

A final problem public personnel administrators face in convincing others of the legitimacy of testing devices is that public jurisdictions tend, for political reasons, to be forced to use examinations having "face validity." While this generally means nothing more than that the exam not appear ridiculous to laymen, in fact, face validity may not be congruent with other types of validity. As a result of these difficulties, and perhaps others as well, the validity coefficients of civil service examinations are typically at about the .25 level and rarely, if ever, greater than .50.1 7 In other words, performance on such exams usually can be shown to explain only about six per cent of the variance in on-the-job performance and rarely more than 25 per cent. Moreover, in general, the greater the variance explained the less important the nature of the position. This weakness makes many public personnel examinations vulnerable to attack by those seeking to maximize political values, such as representation, in contrast to the traditional ones of efficiency and depoliticization of the public service.

Representation: A Challenge to the Traditional Political Paradigm

The civil service reformers believed that a fundamental change in the nature of public personnel administration could lead to a transforma- tion of the political system as a whole. Interest- ingly enough, they shared this belief with Presi- dent Jackson and the spoilsmen who preceded them. Today the reform political paradigm is being eroded in an effort to redistribute political in- fluence by making public services more representative. The emergence of representation as a major


11




value to be maximized through public personnel administration has its origin in old style "fair employment" programs.

The principle of equal treatment in public personnel action regardless of race, religion, or national origin began to emerge during the 1940s as an outgrowth of a more general attempt to increase productivity and unify the nation for the war effort.' 8 Since that time, sex has been added to these illegitimate bases for differentiated treatment, and equal employment opportunity has become a major personnel activity. In general, the evolution of this function has been marked by three stages. Initially, equal employment opportunity meant non-discrimination and the elimina- tion of segregation in the public service. Programs of this nature were generally weak and ineffective, but by the early 1960s overt racial discrimination and segregation had become less common in the federal government and many other jurisdictions.' 9 Before the mid 1950s, few special efforts were made to recruit members of minority groups to public services.20 In the late 1950s and more so in the 1960s, as civil rights emerged as a dominant political issue, a change in EEO approaches occurred. In the federal government this development was symbolized by the creation of the President's Committee on Government Employ- ment Policy (1955), its replacement by the Presi- dent's Committee on Equal Employment Oppor- tunity (1961), and the subsequent transfer of federal EEO functions to the Civil Service Com- mission in 1965. Programs became significantly stronger, discrimination complaint systems and procedures were made more effective, and, most importantly, positive steps were taken to increase the number of minority group members in public services. Basically, these efforts consisted of special recruiting drives in minority neighbor- hoods, schools, and colleges; the development of new training opportunities for minorities; impart- ing to supervisors and managers a heightened awareness of the desirability of achieving more racially balanced public services; and, more generally, ".. . the removal of unnecessary barriers to the employment of particular groups of persons and ... support of community activities designed to facilitate employment of persons who otherwise might not have the opportunity."2

By the late 1960s and early 1970s EEO began to enter its current phase. Today, the major objective is achieving at least a moderately high level of proportional representation of minority

group members and women in public services. To some extent, this change in approach occurred as a result of the resolution of earlier EEO problems, including that of facilitating minority entry into public services. For example, by 1970 it was evident at the federal level that minorities, and especially blacks, had more or less attained an employment level commensurate with their proportion in the society as a whole.22 In general, however, minorities and women were heavily concentrated in the lower levels of public services and the major EEO problem had become increasing their employment in the upper grades. At the same time that the older EEO principles and practices seemed to have more or less successfully run their course, the objective of establishing greater representation in public bureaucracies had gained considerable acceptability in academia23 and government.

By 1970, several important agencies of the federal government adopted the notion that the federal service should be passively representative of all major groups found in the society at large. Thus the Commission on Civil Rights argued that, The Civil Service Commission ... should clarify its current policy, emphasizing specific goals in the Federal equal employment opportunity effort and develop a Government-wide plan designed to achieve equitable minority group representation at all wage and grade levels within each department and agency.24

Agencies such as the Office of Management and Budget and the Department of the Army sought to use minority employment goals and timetables in their EEO action plans. The Civil Service Commis- sion, which administers the current federal EEO program, also adopted the goal of a representative bureaucracy, but indicated its reservations concerning the approach suggested by the Commission on Civil Rights: We believe that to the extent practicable organizations of the Federal Government should, in their employment mix, broadly reflect, racially and otherwise, the varied characteristics of our population. This is a desirable goal to achieve within the context of employment on the basis of merit.25

In May 1971, under considerable pressure from Congress, the Commission on Civil Rights, the Equal Employment Opportunity Commission, other agencies, and some civil rights groups, the CSC issued a new policy directive authorizing agencies to use the goals and timetables approach to their EEO programs.26 It warned, however, that


12




Goals and timetables must not be interpreted by managers and supervisors as quotas. Agency action plans and instructions involving goals and timetables must state that all actions to achieve goals must be in full compliance with merit system requirements.2 7

The CSC's reluctance to authorize the use of goals and timetables and its warning that these cannot be used as a substitute for merit procedures indicates that there is at least a tension, if not a genuine conflict, between the goals and timetables approach and merit principles. In reality, however, this tension is between merit and representation in a society, such as the United States, where cumulative inequalities tend to fall along racial and ethnic lines. No matter how culturally neutral a merit system, it is unlikely to produce a high degree of passive representation where equal opportunity to acquire the knowledge and ability necessary for skillful performance in bureaucratic positions is lacking. As CSC Chairman Robert Hampton expressed it, "... the distribution of job skills is not uniform for ethnic groups and ... factors outside the employment system itself, such as education and experience, contribute to the ability of minorities to compete successfully for jobs."28 Therefore, whereas public personnel administrators view representation as a desirable, but secondary goal to be achieved within the context of the merit system, others see the merit system as a barrier to representation, and tend to advocate the use of goals and timetables not only in conjunction with, but also in the absence of merit procedures. For example, some civil rights advocates have argued that "application of the merit system without regard to existing preferential practices and procedures is tantamount to ignoring the most prevalent form of discrimination in employment."2 9 Inevitably this divergence has found its way into the federal courts, and the judiciary is currently requiring a rethinking of traditional public personnel assumptions.

Public Personnel Examinations in the Courts

The Equal Protection Clause of the Fourteenth Amendment and the Due Process Clause of the Fifth Amendment to the United States Constitu- tion prohibit racial, ethnic, religious, and to a somewhat lesser extent, sexual discrimination in public employment.30 There are also several statutes and executive orders intended to accomplish this end. In recent years, there have been a substantial number of cases challenging specific

public personnel examinations on the grounds that they are unconstitutionally discriminatory. Al- though there has been a diversity of judicial opinion with regard to some of the questions posed, a fairly coherent body of constitutional law has emerged concerning the following issues: (1) what constitutes discrimination, (2) what constitutes legitimate discrimination, and (3) what are the appropriate remedies for illegitimate discrimination.

Discrimination

In a typical case in this area, members of a minority group who have taken a public personnel examination and have not scored high enough to receive appointment challenge the constitutionality of the examination procedures, both on their own behalf, and as a class action on behalf of all others similarly situated. They attempt to demonstrate that the exam has a disproportionate racial impact. The remedy generally sought consists of immediate employment in the position applied for, an injunction barring further use of the examination in question, and the introduction of an employment formula to redress the consequences of past discrimination. Therefore, the method for determining discrimination and the consequences of this technique are of crucial importance. Although public personnel administrators are wont to argue that the examinations they administer are neutral and that differential performance on them between minorities and non-minorities is due to more general social, educational, and economic inequalities found in the United States, the courts have reasoned that result rather than purity of intent is of greater relevance. It has been held, for instance, that:

It is no defense that defendants acted in good faith and without any intent to discriminate or that the discriminatory impact of the examination procedure may be due to socioeconomic disadvantages suffered by minority groups.... [W]hen state action which is neutral on its face unintentionally disadvantages racial minorities in areas such as public employment, the state has the burden of demonstrating that the action in question has at least a substantial relation to a legitimate state interest....31

Thus, ". .. harsh racial impact, even if unintended, amounts to an invidious de facto classification that cannot be ignored...,"32 and the question becomes, therefore, what constitutes a harsh racial impact.

In answer, different, but related approaches have developed. For the most part, it is true that:


13




There have been so many of these cases in litigation that a viable test has emerged which in fact ... has wide judicial support. Where the plaintiffs have established that the disparity between the hiring of Whites and minorities is of sufficient magnitude, then there is a heavy burden on the defendant to establish that the examination creating the discrimination bears a demonstrable relationship to successful performance of jobs for which they were used.33

In some cases, however, a less stringent test has been used: ... [T]he percentage of minority-group persons employed by [a public jurisdiction] is grossly and dispropor- tionately less than the percentage of minority-group persons in the general population of the area. Thus, whatever may have been the good intentions of defendants, there is a prima facie case for predicating employment discrimination unless defendants justify the selection method....34

Finally, in at least one case, both these criteria have been used to establish discrimination.35

Under current rulings then, whatever the intent, public personnel examinations are generally deemed discriminatory if (a) there is a significant disparity in the performance of minorities and non-minorities on them,36 or (b) there is a considerable passive under-representation of minorities in the public employment positions covered by the examinations. Once a prima facie case of discrimination has been established, it becomes the public personnel administrators' "... burden to justify the examination's use despite its differential impact by proving that it is job-related... 3 7

Thus it is possible to defend successfully a discriminatory examination if it can be shown that performance on the exam is positively related to performance on the job, and that job performance criteria are within an area of legitimate state interest. To date, there has been a considerable number of cases in which discriminatory examinations might have withstood constitutional challenge if it could have been shown that they were acceptably valid and, here too, a fairly coherent body of law has been emerging.

Validity: The Key to Legitimate Discrimination

Assessing the validity of public personnel examinations has clearly presented the courts with great difficulties. For, "Despite discriminatory impact, the law in this area clearly recognizes the possibility that examination procedures can be justified by the requirements of the job."38 It is necessary, therefore, for the courts to rule on the degree to which discriminatory examinations are "job re-

lated." However, "The problem which confronts the trier of fact when charged with applying these principles [of test validation] to a given situation is that normally ... he is expert neither in

psychometrics nor in the field in which the examination is given."39 Two complementary strategies have been developed by the judiciary in an effort to overcome this difficulty.

The dominant approach appears to be a familiar one taken by the courts when dealing with administrative officials. Given that these officials, rather than the judiciary, are often the experts in the substantive fields under judicial scrutiny, by and large the courts have tried to avoid substitut- ing their own judgment for that of administrators and have opted for an initial requirement that certain procedural, as opposed to substantive, conditions be met. In one of the most comprehen- sive decisions to take this position, the court reasoned that a discriminatory examination may be judged constitutionally valid only if public personnel administrators have addressed four elements: 1. Analysis of the job to isolate the essential

knowledge, skills, and abilities required by it; 2. Determination of the scope of the examination,

the method or methods of testing to be employed and the weight to be given different portions of the examination process;

3. Formulation of individual items; and 4. Establishment of the passing point.40 Under this approach, "The primary emphasis ... is on the validity of the methods used in creating the examination not on the independent validity of the end product."41 Where public personnel administrators cannot demonstrate that these elements were rationally considered, an examination having a harsh racial impact will be found unconstitutional.

If, however, public personnel administrators can show that these prerequisites for establishing validity have been sufficiently analyzed, the courts may either defer to their judgment42 or make an independent assessment of "job relatedness." In pursuing the latter course, the courts have expressed a preference for "predictive validity," but have also indicated that other methods of validation may be acceptable. Thus, it has been held that failure to use predictive validity is not "fatal,"43 although it may be unacceptable "... without a demonstration that proof of empirical [predictive] validity is not feasible."44 Nevertheless, in the absence of a showing of predictive validity, there


14




has been a tendency for the courts to seize upon questions deemed irrelevant to on-the-job performance and to find examinations containing these to be unconstitutionally discriminatory. In Bridgeport Guardians, Inc. v. Bridgeport CSC, for example, it was found that at least 14 out of 117 questions on an exam used in recruitment for police positions were irrelevant to job performance. The court reasoned that:

While it is concededly difficult to prepare examinations which can accurately calibrate and measure the ability of a person to perform the duties of a policeman which combines not only professional skills but decisions involving judgment and tact and qualities of personal courage, compassion, dedication and moral probity, we are persuaded that the challenged examination was primarily based upon verbal skills and was not significantly job related.4 5

Similarly, an examination for potential firemen, which had discriminatory racial impact, was found unconstitutional because a substantial proportion of its questions concerned current events and aspects of the city's government which were not deemed to be job related by the court.46

Finally, it is possible that even if the content and validity of a discriminatory examination are found to be constitutionally acceptable, the establishment of an arbitrary pass/fail point may render its use unconstitutional. Thus, it has been held that such a point cannot legitimately subordinate "... the goal of job-relatedness to that of administrative convenience."47 Elsewhere it was argued that an examination was "... vulnerable in that the City ordinance mandates a uniform cut-off score of 75. This is an arbitrary determination indicative of an archaic testing system particularly where there is no evidence of weighting of questions based upon actual job requirements."48 Hence, in establishing a passing point, personnel- ists must be able to show that those not reaching it are incapable of minimally acceptable performance in the position sought.

Remedies

It is evident that the courts are willing to subordinate the value of representation to those traditionally associated with the merit system if it can be shown that a discriminatory examination has a satisfactory level of validity in its relationship to the performance of legitimate state functions. However, where an examination has been found unconstitutional the courts have tended to remedy the situation by requiring that greater

passive representation of minority group members be established directly. It is here that the challenge to public personnel administration is greatest because the judiciary may require hiring and promotion on a non-merit or modified-merit basis. Although for the most part, the courts agree "... that hiring quotas are discriminatory since they deliberately favor minority groups on the basis of color,"49 several have ". . . sanctioned hiring quotas to cure past discrimination... ."50 Thus in Armstead v. Starkville Municipal Separate School District,5 it was held that a school district could validly be ordered by the judiciary to maintain a specific racial balance among its teachers of 30 per cent black and 70 per cent white. Elsewhere it was held that in order to remedy past discrimination minorities should be appointed to 50 per cent of the first ten vacancies to occur, 75 per cent of the next 20, and 50 per cent of all those thereafter until 50 minorities had been appointed.52 Simi- larly, in another case, it was ordered that three- fifths of all those hired in the future should be minorities until they constituted 30 per cent of the patrolmen and sergeants in a police department.5 3

Perhaps the logic of "color conscious" remedies was most cogently discussed in NAACP v. Allen. The court reasoned that:

Since no decision has adequately rationalized the constitutional problems raised by affirmative hiring relief, we now undertake that task within the factual matrix presented by this case. At the outset, it is apparent that no applicant for public employment can base any claim of right under the Fourteenth Amendment's equal protection or due process clauses upon an eligibility ranking which results from unvalidated selection procedures that have been shown to disqualify blacks at a disproportionate rate. This is so because by definition such criteria have not been shown to be predictive of successful job performance. Hence, there is no reliable way to know that any accepted applicant is truly better qualified than others who have been rejected. Until the selection procedures used by the defendants here have been properly validated, it is illogical to argue that quota hiring produces unconstitutional "reverse" discrimination, or a lowering of employment standards, or the appointment of less or unqualified persons.54

The court went on to sanction relief which required that the public employer "... temporarily institute race as the final determinative factor in their appointment of applicants. .. ." 5

In short, with regard to remedies for unconstitutionally discriminatory examinations, several courts have reasoned that representation is in itself a value to be maximized, even if through the


15




imposition of practices which, at least temporarily, substitute racial and ethnic criteria for those of the merit system in the selection of employees. This is all the more significant when it is borne in mind that the courts have available the less drastic alternative of ordering that a new and non-discriminatory examination be developed and adminis- tered.5 6 At the same time, however, it should be noted that few, if any, judges believe that quotas or similar devices are satisfactory means for establishing representative public services in the long run. Moreover, several members of the judiciary are opposed to their use in the absence of "... a clear-cut pattern of long-continued and egregious racial discrimination."5 7

Conclusion

Analysis of recent judicial decisions concerning the constitutionality of public personnel examinations indicates that the courts have become an effective forum for challenging the traditional political paradigm of public personnel administration in the United States. Indeed, as one court noted, an attack on the content of such exams may merely herald "... future confrontations between the advocates of equal employment opportunities and the supporters of our civil service system."58 Moreover, the judiciary is requiring public personnel administrators to adopt new perspectives. It has not held that merit examinations must produce a high degree of passive representation in the public services in order to withstand constitutional scrutiny. However, it has clearly indicated that exams having a disproportionate racial impact are constitutionally suspect and can only be justified on the grounds that they are related to the administration of legitimate state functions. Where no such showing can be made, the courts have sometimes opted for the direct establishment of greater passive representation through the use of quotas. And, in so doing, they have seriously challenged the traditional values of the merit system.

These developments pose important challenges for public personnel administration. It is evident that if the basic principles of the merit system are to be maintained, far more will have to be done in an effort to ascertain and increase the validity levels of public personnel examinations. Assuming a strong relationship between exam score and on-the-job performance will no longer suffice and will tend toward the imposition of direct judicial

action which may bypass merit principles entirely. In addition, public personnel administrators will have to make concerted efforts to develop examinations that do not have a harsh racial impact. Finally, public personnel administrators will have to consider other ways of achieving a high degree of passive representation in public services within the basic framework of the merit system. Among these might be the abandonment of such practices as the "rule of three" to allow selection from among a larger number of individuals and thereby expand the possibility of increasing passive representation.5 9

No matter what the response of public personnel administration, however, it is apparent that the judiciary will play a considerably greater role in this area in the future. Although the courts have been reluctant to substitute their own judgment for that of personnel administrators where technical matters such as validity are concerned, the judiciary has not been disinclined to find public personnel examinations to be unconstitutional. It is also evident that, given the nature of constitutional provisions, the larger the role played by the judiciary, the greater the emphasis that will be placed on establishing a high level of passive representation. From an historical perspective then, these developments can be understood as an effort to reinstate the value of representative public services, which was eclipsed by the civil service reform movement, and to make government in the United States more democratic.

Addendum

Our conclusions are strengthened by the Supreme Court's opinion in Washington v. Davis (June 7, 1976), which modifies the technical nature of the legal issues discussed, but does little to alter their substantive determination. Its eye on other policy areas, the Court sought to negate the presumption that a law which is neutral on its face is nevertheless constitutionally suspect if it has a disproportionate racial impact. The latter "... is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution." Consequently, a "discriminatory purpose" must at least be "inferred from the totality of relevant facts." In practice, this will not change the outcome of decisions involving public employment because it is a standard far more stringent than that created by the Civil Rights Act of 1964, as applied to public employees at all


16




governmental levels by the Equal Employment Opportunity Act of 1972. In the Court's words: Under Title VII, Congress provided that when hiring and promotion practices disqualifying substantially disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved, and that it is an insufficient response to demonstrate some rational basis for the challenged practices. It is necessary, in addition, that they be "validated" in terms of job performance. ... However this process proceeds, it involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is appropriate under the Constitution where special racial impact, without discriminatory purpose, is claimed.

Thus, not only are the kind of decisions formerly rendered by the lower courts on a constitutional basis likely to continue under the applicable statutes now available, but the role of the judiciary in overseeing public personnel examinations is likely to expand.

Notes

1. On reform see Leonard D. White, The Republic Era (New York: The Free Press, 1965); Paul P. Van Riper, History of the United States Civil Service (Evanston, Ill.: Row, Peterson, 1958); and Ari Hoogenboom, Outlawing the Spoils (Urbana: Univer- sity of Illinois Press, 1961).

2. Carl Schurz, Speeches, Correspondence, and Political Papers of Carl Schurz, Frederick Bancroft (ed.) (New York: G.P. Putnam's Sons, 1913), II, p. 123.

3. See Dorman Eaton, The Civil Service in Great Britain (New York: Harper and Bros., 1880), esp. p. 392.

4. Carl Schurz, editorial in Harper's Weekly, Vol. XXXVII (July 1, 1893), p. 614.

5. Eaton, p. 365. 6. Statement of Richard Levin, assistant director, Phila-

delphia Commission on Human Relations, at Hear- ings Before the Subcommittee on Labor of the Committee on Labor and Public Welfare, U.S. Senate, 91st Congress, 1st Session, S. 2453, "Equal Employment Opportunity Enforcement Act" (Aug- ust 11, 12; September 10, 16, 1969), p. 156.

7. The reformers and the class they represented, however, did not assume the role in political leadership which they sought. See Matthew Josephson, The Politicos (New York: Harcourt, Brace & Co., 1939).

8. Norman Sharpless, Jr., "Public Personnel Selection - An Overview," in J. Donovan (ed.) Recruitment and Selection in the Public Service (Chicago: Public Personnel Association, 1968), pp. 8-9.

9. O. Glenn Stahl, Public Personnel Administration (New York: Harper and Row, 1962), p. 67.

10. See Anthony Downs, Inside Bureaucracy (Boston: Little,Brown, 1967); Robert Presthus, The Organi- zational Society (New York: Vintage Books, 1962); and Leonard Reisman, "A Study of Role Concep- tions in Bureaucracy," in Social Forces, Vol. 27

(March 1949), pp. 305-310. 11. Downs, ch. 9; Presthus, ch. 6-8. 12. Ibid. 13. Kenneth Wentworth, "The Use of Commercial

Tests," in Donovan (ed.), Recruitment and Selec- tion, p. 155.

14. Dean Nesta Gallas, John Jay College of Criminal Justice, Communication to Author (1975).

15. Glenn McClung, "Statistical Techniques in Testing," in Donovan (ed.), Recruitment and Selection, pp. 339-340.

16. Ibid., p. 340. 17. Ibid., Table 2. 18. On federal equal employment programs see Samuel

Krislov, The Negro in Federal Employment (Minne- apolis: University of Minnesota Press, 1967); and D.H. Rosenbloom, The United States Civil Service Commission's Role in the Federal Equal Employ- ment Opportunity Program, 1965-1970 (Washing- ton, D.C.: U.S. Civil Service Commission, December 1970).

19. Indeed, by the end of the Johnson Administration, several black officials concluded that "... the most prevalent form of discrimination in Federal employment is not the individual overt act of discrimination, but the built-in biases that result in minority selection-out." "The Equal Employment Oppor- tunity Posture of the U.S. Federal Government," p. 6 (unpublished, undated report [1968?] authored by Roger Wilkins, former director, Community Relations Service, U.S. Department of Justice; James Frazier, Jr., past director of the Civil Service Commission's Office of Federal Equal Employment Opportunity, and others. The document was widely circulated among civil rights and EEO officials and is a candid statement of the thinking of several leading black officials at the time.

20. For example, the Fair Employment Board, which had the major responsibility for EEO at the federal level from 1948 until 1955, wrote: The fair employment policy does not mean that any fixed proportion of persons of different races, religions, or national origins must be given Federal employment ....No applicant or employee having merit and fitness shall be refused or deprived of employment or earned promotion by reason of his or her race, color, religion, or national origin. On the same principle, no one lacking merit or fitness shall receive preferment for the same reasons. The fair employment policy is a double-edged tool." U.S. Civil Service Commission, Fair Employment Board, Fair Employment in the Federal Service, Pamphlet 44 (December 1951), p. 1.

21. Memo of Civil Service Commission Chairman R. Hampton to H. Glickstein, Staff Director, U.S. Commission on Civil Rights (July 24, 1970).

22. See U.S. Civil Service Commission, Study of Minor- ity Group Employment in the Federal Government (Washington, D.C.: the Commission, 1970).

23. On representative bureaucracy, see among many others, F. Mosher, Democracy and the Public Service (New York: Oxford University Press, 1968), ch. 1. He draws a useful distinction between active and


17




passive representation. The former involves a situation in which "... an individual (or administrator) is

expected to press for the interests and desires of those whom he is presumed to represent,..." whereas passive representation refers to "... the source of origin of individuals and the degree to which, collectively, they mirror the total society," pp. 11-12.

24. U.S. Commission on Civil Rights, Federal Civil Rights Enforcement Effort (Washington, D.C.: U.S. Government Printing Office, 1970), p. 1076.

25. Letter of CSC Chairman Hampton to R. Kelley, Assistant Secretary of Defense, August 6, 1970. The letter received widespread circulation among federal equal employment opportunity officials.

26. For an analysis see David H. Rosenbloom, "The Civil Service Commission's Decision to Authorize the Use of Goals and Timetables in the Federal Equal Employment Opportunity Program," Western Politi- cal Quarterly, Vol. 26 (June 1973), pp. 236-251.

27. CSC Memorandum, "Use of Employment Goals and Timetables in Agency Equal Employment Oppor- tunity Programs," May 11, 1971.

28. Hampton memo to Glickstein (July 24, 1970). 29. "EEO Posture," p. 4. Underlining deleted. 30. See among others, Brooks v. School District, 267

F2d 733 (1959); Baker v. City of St. Petersburg, 400 F2d 294 (1968); Eslinger v. Thomas, 476 F2d 225 (1973). The Supreme Court has not squarely addressed the issue, but its opinion in Griggs v. Duke Power Company, 401 U.S. 424 (1971) is instructive. The judiciary has tended to treat public sector equality cases as unique. See Kirkland v. New York State Department of Correctional Services, 520 F2d 420 (1975) For a more general discussion see D.H. Rosenbloom and J.A. Gille, "The Current Constitu- tional Approach to Public Employment," Kansas Law Review, Vol. 23 (Winter 1975), pp. 249-275.

31. Vulcan Society v. Civil Service Commission, 360 F. Supp. 1265, 1272 (1973).

32. Chance v. Board of Examiners, 458 F2d 1167, 1175 (1972).

33. Bridgeport Guardians v. Bridgeport Civil Service Commission, 482 F2d 1333, 1337 (1973), emphasis added.

34. Western Addition Community Organization v.

Alioto, 330 F. Supp. 536, 539 (1971), emphasis added in first sentence.

35. Vulcan, at 1269. 36. There is no agreement on what constitutes a signifi-

cant disparity. In Chance, a pass rate of 1.5 whites to one black was considered evidence of discrimination.

37. Kirkland v. New York State Department of Correc- tional Services, 374 F. Supp. 1361, 1365 (1974).

38. King v. New York City Civil Service Commission, 6 E.P.D. 6243, 6248 (1973).

39. Kirkland, 374 F. Supp. 1361, 1372. 40. Ibid., at 1373. 41. Ibid. 42. See Douglas v. Hampton, 338 F. Supp. 18 (1972);

and 512 F2d 976 (1975), on appeal. 43. Kirkland, 374 F. Supp. 1361, 1371. 44. Douglas v. Hampton, 512 F2d 976, 987. 45. Guardians, at 1338. 46. Vulcan. 47. Kirkland, 374 F. Supp. 1361, 1377. 48. Guardians, at 1338. 49. Ibid., at 1340. 50. Ibid. 51. 325 F. Supp. 560 (1971). 52. Guardians, at 1339-1340. 53. Officers for Justice v. CSC, 371 F. Supp. 1328

(1973). See also Carter v. Gallagher, 452 F2d 315 (1971).

54. 493 F2d 614, 618 (1974). 55. Ibid. 56. See Fowler v. Schwarzwalder, 351 F. Supp. 721

(1972). It is possible that such an exam would not have greater validity, but rather would be less discriminatory.

57. Kirkland v. New York, 520 F2d 420, 427. The court overturned the "color conscious" relief provided in Kirkland v. New York State Department of Correc- tional Services, note 37 supra, but it affirmed the facets of the earlier decision discussed here.

58. Ibid., at 428-429. 59. This approach has been endorsed by the National

Civil Service League and at least partially adopted in Michigan. See U.S. Commission on Civil Rights, Federal Civil Rights Enforcement Effort - 1974 (Washington, D.C.: U.S. Commission on Civil Rights, 1975), Vol. 5, p. 57.

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