Court Overturns Race-Based Transfers In Fire Department

In 1995, the Newark, New Jersey City Council hired Samuel Rosenfarb, a CPA, to determine whether it was in statistical compliance with an earlier consent decree requiring it to desegregate its Fire Department. Rosenfarb reported his findings to the Council in a 1995 report, which indicated that the fire companies “were significantly homogenous, either black or white.” His report noted that 81 of the 108 companies “had a majority of white personnel with 30 being comprised entirely of white personnel. Fifteen of the companies were predominately black.”

The City took no action with respect to the existence of single-race fire companies for another seven years. Then, in 2002, the mayor ordered that all fire companies be integrated “to improve morale” and “to honor a court order to make our Fire Department the mirror of the City of Newark.” The mayor appointed the Department’s former affirmative action specialist, Edward Dunham, as the new Director of the Fire Department, and charged him with implementing this “diversification order.”

After hearing several recommendations, Dunham issued an executive order announcing a list of transfers that would ensure that every fire company would “achieve 100 percent diversity.”

Thirty-four firefighters who were involuntarily transferred or were denied requested transfers due to the new policy filed a lawsuit against the City, alleging that the race-based transfers violated the equal protection guarantees of the Fourteenth Amendment to the Constitution. The federal Third Circuit of Appeals agreed, and struck down the transfers.

To begin with, the Court was extremely skeptical of the mayor’s two reasons for the transfers – to improve morale and “to honor a court order to make our Fire Department the mirror of the City of Newark.” As the Court commented, “with reference to the former, there is no evidence that morale needed improving; with reference to the latter, the by-then 22-year-old consent decree required no such thing.”

The Court then turned to the legal standards applicable to the case. Citing a series of Supreme Court decisions, the Court found that the race-based transfers would have to be justified by a “compelling reason,” and that “race-based preferences cannot be justified by reference to past societal discrimination in which the municipality played no material role.”

The Court noted that “the City does not even suggest that it participated, directly or passively, in any form of discrimination; indeed, it concedes that it neither intentionally discriminated against minority firefighters with respect to assignments or transfers, nor intentionally segregated firefighters into racially homogenous companies. Moreover, the City concedes that the single-race fire companies resulted, not from Fire Department management, but from the tendency on the part of management to allow people to work where they choose to work, and to accommodate their desire to work in the neighborhoods where they live.”

The City attempted to meet its burden of proving a compelling reason for the transfers by asserting that “integration in fire companies leads to greater camaraderie between workers, acceptance and consideration for people of varying backgrounds, sharing of information and study support. It also improves tolerance and mutual respect among colleagues.”
Once again, the Court was skeptical of the City’s arguments. The Court stated that “we note that the under-inclusiveness of the diversity policy, specifically its failure to consider gender, other ethnic groups, age, or socio-economic class, seems to belie Newark’s claim that educational benefits were its actual purpose. The Fire Department’s mission is not to educate. Its mission is the control, fighting, and extinguishment of any conflagration which occurs within the City’s limits. The City does not argue that diversity within individual fire companies is in any other way necessary, or even beneficial, to the Fire Department’s mission of fighting fires, and we do not read the City’s assertions of increased camaraderie, acceptance, and tolerance as making such an argument. In sum, we conclude that the benefits of diversity, as set forth by the City, are not a compelling interest that justifies its diversity policy.”

The Court concluded its opinion “by reiterating what this case is not about. It is not about remedying intentional discrimination in the Newark Fire Department. It is not about improving the Department’s ability to extinguish fires. It is not about whether diverse workplaces are good for employees or for society or whether long-range hiring goals are being met. This case is about whether Newark can ‘create a rainbow’ in each of the 108 companies solely by means of a racial classification. We hold that it cannot. Racial balancing, and that is what this is, simply cannot be achieved by means of a racial classification without running afoul of the equal protection clause of the Constitution.”

Lomack v. City of Newark, 463 F.3d 303 (3d Cir. 2006).

This article appears in the November 2006 issue