UNITED STATES HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON THE CONSTITUTION

TESTIMONY OF

WAYNE S. FLICK

of

LATHAM & WATKINS

633 WEST FIFTH STREET

SUITE 4000

LOS ANGELES, CA 90071

(213) 485-1234

Oversight Hearing

Department of Justice, Civil Rights Division

July 17, 1998

Washington, D.C.

Disclosure Pursuant to House Rule XI, clause 2(g)(4)

Pursuant to House Rule XI, clause 2(g)(4), Mr. Flick certifies that he has not received any federal grant, contract or subcontract in 1998 or during the preceding two years. Although Mr. Flick and the law firm of which he is a member, Latham & Watkins, do represent the cities of Torrance, California and Garland, Texas in ongoing litigation brought by the Civil Rights Division of the United States Justice Department, he does not formally represent either municipality at this hearing. He appears today to offer his own testimony at the invitation of the Subcommittee, and the opinions expressed by him do not necessarily reflect the opinions held by officials, members, employees or any other persons in, affiliated with or in any way related to Latham & Watkins, Torrance or Garland. Accordingly, no disclosure is made with respect to Latham & Watkins, Torrance or Garland regarding federal grants, contracts or subcontracts.

I. INTRODUCTION

Mr. Chairman and Members of the Subcommittee:

In May 1997, I had the privilege of testifying before this Subcommittee and took the opportunity to explain in detail the conduct of the Civil Rights Division in a Title VII action it brought in July 1993 against the police and fire departments in Torrance, California. You may recall that, after finding Torrance unwilling to accede to its demands that the City adopt race-conscious hiring practices, the Justice Department brought an adverse impact challenge to the standardized written examinations used by Torrance since 1981 in hiring entry-level police officers and fire fighters. These examinations were -- and the Court in the Torrance case expressly found them to be -- professionally developed and validated, job-related and essential to the City's employment selection process. The examinations were and continue to be used by literally hundreds of jurisdictions in California and elsewhere.

At the time we last met, the District Judge, Mariana R. Pfaelzer, had already issued a lengthy written decision in the Torrance case and had entered judgment in favor of the City. (That September 8, 1998 decision was provided to the Subcommittee with my

May 20, 1997 testimony.) Torrance had also filed and argued a motion seeking reimbursement of its attorneys fees from the Civil Rights Division, on the ground that the Government's adverse impact claim was frivolous, unreasonable and without any factual foundation. And the United States had filed an appeal of the district court's decision in the United States Court of Appeal for the Ninth Circuit.

Since I last appeared here, there have been several further developments in the Torrance litigation. On March 23, 1998, the Ninth Circuit summarily rejected the Civil Rights Division's appeal and affirmed the district court's decision in its entirety. Then, on April 13, the district court granted the City's sanctions motion, ordering the Justice Department to reimburse the City's legal fees and pay costs in an amount to which the Civil Rights Division has since agreed: $1,795,759.60. While this result is most certainly a resounding vindication of the City's consistent position that the lawsuit against it had absolutely no factual or legal merit, it also offers compelling reason for this Committee to do what it should have done long before now: bring to an end this ongoing pattern of abusive litigation by the Civil Rights Division conducted under the guise of enforcing Title VII.

I am aware of Mr. Lee's views regarding the Civil Rights Division's Title VII enforcement activities. I watched closely during his failed confirmation hearing last year. And, with due respect to Mr. Lee, I question his authority to continue to act in any official capacity within the Justice Department, absent Senate approval. Mr. Lee made quite clear during the confirmation hearings that, under his leadership, race-conscious enforcement policies would continue to be the Division's modus operandi. Indeed, the Justice Department admitted during the Torrance trial that it would permit the use of almost any selection device so long as it results in an "acceptable" bottom line. The same selection device that is permissible in one jurisdiction will be challenged as unlawful, however, in neighboring jurisdictions if the racial composition of their police and fire departments does not meet the Civil Rights Division's raw numerical criteria. In other words, it is the numbers that are important to the Justice Department, no matter how those numbers are achieved. Judging from his performance as Acting Assistant Attorney General, this approach fully reflects

Mr. Lee's philosophy of "equal opportunity."

Sadly, neither Mr. Lee nor the attorneys who work under his supervision appear to have learned anything from their defeat in Torrance or the virtually unprecedented sanctions award against them. Rather than taking the decisions of a widely respected Senior District Judge and the liberal Ninth Circuit as a strong sign of the federal courts' disapproval of their heavy-handed tactics, they have ignored these caveats and continue to operate using their standard play book in jurisdictions throughout the country, making the same frivolous allegations, using the same boilerplate pleadings, and waging war on merit-based hiring while refusing to point to a single alternative other than race-conscious selection.

The latest municipality to fall victim to the Government's massive exercise in social engineering is Garland, Texas, which I and my firm also now have the privilege to represent. (Mr. Lee's signature appears on the complaint in the Garland case, and we assume he is responsible for the press release issued when the suit was filed.) The Missouri State Highway Patrol and the Delaware Department of Public Safety have also recently found themselves on the receiving end of the Civil Right Division's so-called "enforcement activities," and they, too, are being called upon to abandon merit-based hiring under threat of enormously burdensome litigation.

Our experience in Garland is already eerily familiar, as the Justice Department has filed yet another lawsuit making adverse impact allegations about job-related examinations which it has admitted it cannot prove. After a five-year investigation in Garland, and notwithstanding the filing of a lawsuit in federal court in Dallas, the Government recently stated under oath that it has no idea which particular selection devices used in Garland are "unlawful," and it has acknowledged -- as it has repeatedly -- that it is aware of no lawful alternatives. Instead, it has said that it will be able to answer that question only after the City provides it the information necessary to do so. I met yesterday with attorneys in the Justice Department seeking an explanation; predictably, they had no credible explanation to offer.

So, I return here today not merely to update the Subcommittee on the developments in the Torrance and Garland cases, but to urge the Subcommittee finally to take action. The Subcommittee's hearings on this subject have brought together testing experts, educators, attorneys and representatives of jurisdictions targeted by the Civil Rights Division. You have heard uncontradicted, specific testimony about the way in which Justice Department lawyers routinely and systematically bully municipalities into signing consent decrees that prohibit testing for basic literacy skills and mandate race-conscious selection, something the Government knows full well it could never constitutionally achieve through litigation. You have before you the detailed findings of the district court in Los Angeles, which were followed by an award of substantial monetary sanctions against the Civil Rights Division. And you will hear more details today about the Government's ongoing war on merit-based hiring.

The record is now replete with evidence from which only one conclusion is possible: The Civil Rights Division continues to use Title VII as a mechanism to coerce employers to hire minority candidates based on race and national origin, rather than on merit, notwithstanding their inability to pass job-related examinations. This is a serious abuse of its statutory authority and directly contradicts the letter, the intent and the spirit of Title VII. It is time for the talking to end and for this Subcommittee to act.

II.Litigating the Obvious

The premise of the Government's adverse impact challenges to cognitive abilities tests is that the jobs of police officer and firefighter in each jurisdiction, and the processes used to hire for those positions, are unique. Each new investigation or lawsuit begins with essentially the same pronouncement by the Civil Rights Division: "You haven't hired enough minorities, so you must justify your hiring practices by demonstrating the relationship between cognitive abilities and the work performed by your police officers and firefighters." The Government approaches each state or municipality as if it is amazed to learn that the jurisdiction requires its public safety employees to possess basic literacy skills. It then plods its way through months, if not years, of enormously costly discovery in search of some evidence that the literacy requirement is merely a pretext and that, alas, police officers and firefighters in the target jurisdiction really don't need to read or write. Obviously, this makes about as much sense as suing the ballet for requiring its dancers to have legs.

When all is said and done, the credible literature on this subject and the decisions of the federal courts may be reduced to a handful of simple, if not obvious, facts: All of us know that police officers and firefighters need to read and write in order to perform successfully in training academies and in their jobs. All of us know it, but the Justice Department chooses to ignore it. Likewise, all of us know that professionally developed and validated tests of cognitive abilities accurately predict performance in training academies and on the job. All of us know it, but the Justice Department pretends it isn't so. And all of us know that, due to educational, socioeconomic and other societal differences, minorities as a group or groups tend to perform less well on valid tests of literacy skills than white testakers. All of us, including the United States Department of Education know it, but Justice Department attorneys keep filing lawsuits as if no one has told them.

In order fully to comprehend the fundamental absurdity of the Civil Rights Division's adverse impact litigation, you must recognize these uncontrovertible facts. Indeed, you could scour the records in federal courts from coast to coast and I predict you would not find one brief filed by the Civil Rights Division that either effectively refutes these facts or offers any way they can be reconciled with the Division's view of Title VII or its enforcement practices. Simply put, the Justice Department's position in these cases is intellectually dishonest but they maintain their position in order to continue to justify using the Civil Rights Acts and burdensome, meritless litigation to ensure that competence is replaced by color in police and firefighter hiring across the country.

A.Different racial and ethnic groups possess different literacy skills

Though I understand it is not popular to say this aloud, it cannot credibly be denied that there are actual, measurable differences in the literacy skills of different racial and ethnic groups. These are not differences in innate ability; they are differences in educational achievement, which have been documented for at least two decades by the federal government itself. They are not an illusion created by employers' use of job-related, standardized tests of cognitive skills. They are not just a hypothesis that can be refuted by empirical data. The variance in performance by racial and ethnic groups on literacy skills tests reflects a problem in society which the Government and the educational and scientific communities have long known to be true but have been incapable of remedying. Whatever their cause, these differences ensure that an employer's use of a legitimate, job-related test of reading and writing skills in its selection process will generally have an adverse impact -- probably a statistically significant adverse impact -- on groups other than whites who take the test. The Justice Department's response to this problem is a simple but insidious one: stop measuring reading and writing skills. I doubt that anyone but the attorneys in the Civil Rights Division, who have shown themselves consistently to be philosophically opposed to merit-based hiring, thinks this makes any sense. Consider this evidence:

In 1994, the United States Department of Education, Office of Educational Research and Improvement issued findings on the percentage of students (ages 9, 13 and 17) who possess skills at or above selected reading proficiency levels, based on administrations of the National Assessment of Educational Progress Tests between 1971 and 1992. The NAEP Tests are administered to representative samples of students in public and private schools, and test reading, writing, mathematics and science at various levels. For 1980 and 1992, for example, the Department of Education reported the following statistics:

TABLE A

In 1990, the average NAEP reading, writing and mathematics test scores⁽³⁾ for 17-year-olds (approximately 11th grade) were as follows:

TABLE B

Source: Statistical Abstract of the United States, U.S. Department of Commerce, Bureau of the Census (1994).

The percentile distribution of NAEP reading proficiency scores has followed the same pattern. In 1980 and 1992, these scores were distributed as follows:

TABLE C

Source: The Condition of Education, U.S. Department of Education, Office of Educational Research and Improvement (1994).

Likewise, the distribution of average Scholastic Aptitude Test ("SAT") scores has consistently supported the proposition that whites, as a group, perform at higher levels on standardized tests. In 1980-81 and 1992-93, average Verbal SAT scores were as follows:

TABLE D

Source: Digest of Education Statistics, U.S. Department of Education, Office of Educational Research and Improvement (1994).

Like it or not, it is a sound empirical proposition that whites as a group consistently score higher on standardized tests of cognitive abilities than black, Hispanic and Asian applicants. I offer no thorough explanation for these results, nor need I or any Title VII defendant. Title VII does not require an employer to explain or defend against factors that are outside its control. But these data make clear that minority police officer and firefighter applicants bring with them to the hiring process skill levels that guarantee that they, as a group, will not perform as well as white applicants. Title VII is concerned with distinctions made by employers for which no legitimate explanation can be offered. The explanation for the disparity in group performance on literacy skills tests lies not with employers, but with the applicants themselves -- or, more broadly, with society in general. Using the Civil Rights Act to compel municipalities to hire less capable applicants will never solve this problem.

B.Literacy skills tests predict performance

Literacy skills tests are highly predictive of success in police and fire training academies and in police officer and firefighter jobs. Literally thousands of studies in the field of industrial and organizational psychology have confirmed the intuitively apparent proposition that testing for reading, writing and reasoning skills for police officer and firefighter positions is job-related and is a valid predictor of job performance. Similarly, the substantial research in this area reveals that police officer and firefighter jobs do not vary substantially from one jurisdiction to the next. Thus, contrary to the position implicit in the Civil Rights Division's enforcement philosophy, it is not necessary that each municipal defendant sued by the Government for using standardized tests reinvent the validation wheel. There is an overwhelming consensus in the scientific and educational communities that cognitive abilities tests scores predict performance in a manner and to a degree consistent with Title VIII.

The "validity" of a test refers to the appropriateness, meaningfulness, and usefulness of specific inferences drawn from test scores. Test validation is the process by which evidence is gathered to support the use of test scores. Detailed discussion of the concept of validity is provided in two primary sets of professional standards, the Standards for Educational and Psychological Tests (1985) of the American Psychological Associates (the "APA Standards"), and the Principles for the Validation and Use of Personnel Selection Procedures (1987) of the Society for Industrial and Organizational Psychology (the "SIOP Principles"), and in the Government's Uniform Guidelines on Employee Selection Procedures (1978).⁽⁴⁾

Research by Dr. John Hunter, one of the pioneers of validity generalization (also known as "meta-analysis"), has established that, at least with respect to jobs such as police officer or firefighter, the process of developing a validity study of the type anticipated by the Uniform Guidelines is wholly unnecessary. The studies that have been done in the field of industrial and organizational psychology may now be combined through meta-analysis to establish that testing for reading, writing and reasoning skills for medium-complexity jobs, such as those of police officer and firefighter, is job-related.

Professional standards in the field of industrial organizational psychology recognize cumulative validity evidence, i.e., validity generalization, as a method for supporting the validity of tests of cognitive skills for positions such as police officer and firefighter. See, SIOP Principles at pages 26-27. In fact, the SIOP Principles expressly endorse the use of cooperative validation efforts and validity generalization studies:

Validity generalization is a demonstration that a selection procedure or kind of selection procedure permits valid inferences about job behavior or job performance across given jobs or groups of jobs in different settings. Systematic meta-analyses have been used to integrate the cumulative findings from number of validity studies to determine the best estimates of the validity of the procedure for the kinds of jobs or groups of jobs and settings included in the studies.

* * *

To the extent that validity generalization evidence is available, researchers may rely on it to support the use selection instruments.

See id. (emphasis added) (citing, inter alia, Schmidt, Hunter, Pearlman & Shane (1979); Schmidt, Pearlman, Hunter & Hirsch (1985)).

John Bernardin, known for his work on police officer job analysis, has reported the results of his summary of police officer job analyses conducted in ten different jurisdictions, as follows:

There have been many job analyses conducted on the police officer job across a variety of jurisdictions and using a variety of job analytic methods. It is clear that the cognitive elements of the job are essentially the same regardless of the size or location of the organization. Thus, for most purposes of job analysis, results from the past studies should be quite useful. There is also evidence that the job has not changed appreciably over the past 10 years. This consistency over time and settings supports arguments for validity generalization and transportability.

Validity generalization literature indicates that tests of cognitive ability are predictive of peace officer and firefighter job performance. Aside from the general proposition established through meta-analysis, validity generalization studies for law enforcement occupations have been available in the literature since at least 1986. See Hirsch, Northrop & Schmidt, Validity Generalization Results for Law Enforcement Occupations, Personnel Psychology 39 (1986) (aggregating cognitive test validity results across a number of studies, primarily for occupational group 375 in Dictionary of Occupation Titles -- Police and Detectives in Public Services (U.S. Dept. of Labor, 1977), and concluding that cognitive ability tests are excellent predictors of performance in job training programs). Dr. John Hunter has personally conducted such validity generalization analyses for the position of firefighter, which establish that testing for basic cognitive abilities involving reading, writing and reasoning skills for the position of firefighter is a valid and reliable predictor of performance for the job. See The Validity of General Cognitive Ability Predicting Job Performance for Firefighters (Hunter 1990).

Thus, to the extent that the Government contends that the use of literacy skills tests in the hiring of public safety employees runs afoul of Title VII because such tests do not accurately predict performance, that contention lacks any merit.

C.Literacy skills are essential for police officers and fire fighters

The jobs of police officer and firefighter are, without a doubt, among the most studied professions in our society. Countless studies of the knowledge, skills and abilities required successfully to perform these jobs establish beyond peradventure that literacy skills are among the most critical basic requirements for municipal public safety employees.

The Supreme Court recognized this in Washington v. Davis, 426 U.S. 229 (1976). The Justice Department insists, however, that non-cognitive skills (what it calls "personality measures") are more appropriate selection criteria for public safety employees. No credible police or fire department official, or municipal human resources specialist of whom I am aware would disagree that successful police officer and firefighter hiring must include measures of non-cognitive skills. But the Government believes that personality measures should replace cognitive skills testing. This is where the Government departs from common sense, not to mention the mainstream scientific community and those actually responsible for police officer and firefighter selection. Indeed, the Justice Department has it backwards. The most appropriate method of hiring public safety personnel who are likely to perform successfully on the job is to supplement cognitive skills testing with selection procedures that measure personality and other non-cognitive traits. Indeed, virtually all jurisdictions use multi-component selection processes that include one or more of the following, in addition to some form of literacy skills testing: oral interviews, background examinations, psychological screenings and polygraph tests.

As Professor Linda Gottfredson of the University of Delaware explained in her May 1997 testimony before this Subcommittee, and as Dr. Stephen Wollack, one of the nation's foremost testing experts, explains in The Nassau Test: The Justice Department's Latest Weapon in the War Against Merit Systems (hereinafter, "Wollack, The Nassau Test," attached as Exhibit A hereto), the Civil Rights Division has spent millions of dollars constructing what it now claims is a pair of legitimate, entry-level police officer examinations that eliminate adverse impact. As the Civil Rights Division knows full well, however, these tests do not pass even the most lenient of scientific standards. The notion that they measure literacy skills to any degree whatsoever is, to be blunt, preposterous. It is not hyperbole to say that no one with any substantive knowledge in this area actually believes that these tests have any validity whatsoever -- except the handful of psychologists who were paid to create a written test that could be said to eliminate adverse impact (without regard to its effectiveness), and those inside the Justice Department.

The first of these tests was developed by the Justice Department and Nassau County, New York as a result of a 1990 consent decree between the County and the Civil Rights Division. The second test, developed for use in Louisiana, is essentially a clone of the Nassau test. Dr. Wollack explains:

The Nassau test consists of a single reading comprehension measure buried in a battery of eight personality tests. The reading comprehension test is based upon a set of reading passages which are made available to job applicants up to 30 days before the exam. If applicants are given a month to study the actual reading passages used in the examination, one cannot reasonably argue that the test measures reading comprehension. It is beyond dispute that this practice totally undermines the meaningfulness of the only portion of the Nassau test designed to measure intellectual ability.

As if the reading test had not been simplified enough, a "cutoff" was set so that only the bottom one percent of the police officers in the validation sample would be excluded. Moreover, the cutoff really wasn't a cutoff, since the applicants' score was based upon the entire test battery--which was predominantly made up of personality tests. This means that applicants with good personalities, but poor intellectual skills, passed the test--which is not a bad selection strategy if you are hiring police officers who do not need to read.

As if they were planting a needle in a haystack, this so-called reading comprehension test was embedded in a battery of eight personality measures, and the statistical weighting of the nine subtests in the battery was manipulated to further reduce the weight given to the reading test.

The Louisiana test is just more of the same. The DOJ consultants started with a battery of six tests -- the reading comprehension test; a test of the ability to comprehend policies and procedures, a few personality measures, and a biographical data form which supposedly predicts success in police work. The consultants then proceeded to delete the reading comprehension test because they didn't want two intellectual tests in the battery due to increased adverse impact. The policies and procedures test, the one cognitive measure in the battery, was used without a minimum cutoff score. Scores on this test were virtually a constant for all applicants. Roughly two-thirds of the applicants received scores on the policies and procedures test which were within plus or minus three points of the mean. When most of the applicants receive virtually identical scores on a test, there exists no basis for identifying the individuals with superior qualifications. Also, because of the brevity of this test of 20 items, one may infer that its reliability is unacceptably low.

As with the Nassau test, this one rather marginal cognitive examination was planted in a battery of four non-cognitive measures, and the weightings were adjusted to minimize the influence of the cognitive test.

Based on the validation findings, the one most valid component of the Louisiana test battery was the biographical data form. This test was represented to be a valid predictor of success in police work. Inexplicably, the group of applicants tested with this instrument achieved a significantly higher average score than did the incumbent officers in the Louisiana State Police. This means that an unselected group of police applicants, on average, have a higher probability of being successful as police officers than do the officers already employed by the State Police. I would like to hear the researchers who developed this bio-data form explain this finding.

(Wollack, The Nassau Test, pp. 4-6.)

It is difficult to understand how people sworn to uphold the Civil Rights Acts could seriously argue that the Nassau and Louisiana tests offer valid means of guaranteeing equal opportunity consistent with our Constitution, while ensuring that our police and fire departments hire the best possible candidates. Anyone who has ever owned, operated, managed, worked in or even patronized a business of any kind can appreciate the necessity of merit-based hiring. I find it remarkable that this Congress would willingly fund a massive effort by the Justice Department to compel just the opposite -- especially in some of the most important jobs in our communities. The Civil Rights Division appears to believe that the Civil Rights Acts repealed the laws of common sense.

III.Civil Rights Division Games in Garland, Texas

Garland, Texas, like hundreds of other municipalities across the country, uses professionally developed standardized tests of reading, writing, reading comprehension and quantitative skills as part of its multi-faceted selection process for police officers and firefighters. Like Torrance, California, Garland leases these examinations from the test developers; it does not create the tests themselves. Like the tests challenged in the Torrance litigation, the tests used by Garland have been used in dozens of other jurisdictions in Texas and elsewhere. There simply is no question about the legitimacy of these selection devices as valid predictors of job performance.

Nevertheless, the Justice Department filed suit against Garland in February, apparently contending that some or all of these written examinations violate Title VII. I say "apparently" because the Government's complaint fails to identify a single specific selection device or practice that is allegedly unlawful. Instead, as is its usual practice, the Civil Rights Division has challenged, in the vaguest of terms, every selection practice used by Garland -- expressly because the City has not hired "enough" minorities. It will soon become clear, though, that the Garland case is really about literacy skills tests, and that all of the allegations in the complaint that are not directed at Garland's use of written skills test are merely "filler." Ultimately they will likely be abandoned, and only the attack on the written tests will be pursued aggressively.

As if to demonstrate that they do not comprehend the implications of the defense victory followed by the $1.8 million attorneys' fee award in the Torrance litigation, the attorneys prosecuting the Garland case have thus far borrowed the first several chapters from their colleagues' Torrance playbook, one I would have thought the Justice Department had scrapped by now. Notwithstanding the fact that the Government conducted a five-year investigation into the hiring and employment practices in Garland -- during which it consistently refused to identify a single alternative to the written examinations it claimed were unlawful -- it merely filed a form complaint accusing Garland of a wide range of unspecified civil rights misdeeds. In fact, the complaint in the Garland case is virtually identical to the complaint filed in the Torrance case, as well as those the Civil Rights Division filed or threatened to file against El Monte, Alhambra and Pomona, California (and most likely several other jurisdictions nationally).

The substantive allegations of the Torrance and Garland complaints -- if they can be called that -- are set forth below for comparison. After merely reciting the numbers of people who applied for jobs and the numbers who were hired, by racial and ethnic group, the complaints set forth the Justice Department's apparent view of the way in which Torrance and Garland violated Title VII. Judge for yourselves whether these allegations reflect the Government's exhaustive pre-litigation investigation:

TABLE E

(See Exhibits B and C hereto.)

From jurisdiction to jurisdiction, with this standard set of vague accusations, the Civil Rights Division initiates the broadest possible lawsuits, using its boilerplate pleading to justify the most burdensome and costly possible discovery, at all times insisting that it is "entitled" to whatever discovery it seeks. Although it insists upon virtually unlimited discovery, it simultaneously refuses to provide any discovery of its own. It then justifies this conduct by telling the defendant that the Civil Rights Division can't answer any substantive discovery about the complaint until the defendant provides the information with which to do so. In the Garland suit, as in the Torrance case, the United States:

1.Refused to produce a single witness to provide any deposition testimony whatsoever to explain the basis of its vague, form pleading.

2.Refused to produce documents on the ground that the Attorney General "used them" in reaching her decision to bring suit in the first place. (The law does not recognize a broad privilege that entitles the United States to withhold evidence merely because someone looked at it, even if that someone is the Attorney General.)

3.Refused to provide substantive answers to even the most basic discovery requests, including those that sought the following information:

the specific selection devices or aspects of the City's selection process being challenged;

any evidence that supports the allegation that the written examinations used have no legitimate business justification or are not job-related;

any alternative selection devices or practices that Garland could or should have used in place of the challenged examinations.

(The Government's verified responses to Garland's Interrogatories and Requests for Admission are attached hereto as Exhibits E and F, respectively.) The Justice Department's consistent justification for refusing to provide this information is that the City has not yet provided it the information needed to respond. This, of course, reveals that, as in the Torrance case, the Civil Rights Division has filed the Garland complaint alleging a full range of Title VII violations with absolutely no factual basis for doing so. It cannot say which, if any, aspects of the hiring process is unlawful; it merely assumes that some or all of the process must be unlawful because the bottom line does not satisfy the Justice Department.⁽⁵⁾ This is a clear violation of Federal Rule of Civil Procedure 11, and is precisely the reason the federal court in Los Angeles ordered the Government to pay $1.8 million in sanctions to the City of Torrance.

Manifestly, the Justice Department is of the view that the rules of procedure and the ethical rules apply only to Title VII defendants, and that it may conduct lengthy, costly litigation under a shroud of almost total darkness. Once it concludes that a jurisdiction has used selection procedures that fail to pass ideological muster, the Civil Rights Division ignores its obligations as the sovereign, and sets out to litigate in the most unfair and, at least in the Torrance case, unethical manner it knows how. A clear example of this disregard for ethical standards is described in the following excerpt from the hearing on the City of Torrance' motion for sanctions:

One of the arguments we make in our motion is that when the Government filed this lawsuit, they did not have a proper factual basis for alleging that every written examination used by the police and fire departments from 1981 forward failed to meet the test of job-relatedness. Now, they have met that argument by telling us that before they filed suit they hired an expert, and although the expert did not look at any of the tests, he claims that he looked at the validation studies relating to two of those tests. And although they don't tell us how he reached his conclusion, they tell us that, before they filed suit, he opined that those two tests were not job-related. Keep in mind that the complaint was filed in July 1993.

Later, during discovery, because the Government refused to produce any witnesses for deposition we sent them a set of interrogatories. Interrogatory No. 2 called upon the Government to identify every selection device that they contended had an adverse impact. Interrogatory No. 3 asked them to state, with respect to each selection device identified in response to number two, whether they contended that the selection device was not job-related and, if not, why not.

In February 1994, the Government served its verified responses, and their answer to Interrogatory No. 3 was, "we can't tell you because it's work product and, in any event, we have not yet hired an expert."

I'm tempted to ask whether they were being untruthful then or whether they are being untruthful now, but in either case, one of those statements was false when made, and I think it is a perfect example of the way this entire case was prosecuted -- in extraordinary bad faith.

(Transcript of Hearing, 4/13/98, attached hereto as Exhibit D.) The Civil Rights Division has never explained the documented misrepresentations it made in the Torrance case. Indeed, they are unexplainable. They do demonstrate, however, that the Civil Rights Division is willing to go to almost any length to force municipalities to eliminate the merit-based hiring of police officers and firefighters, even if that means making false statements to a federal court.

The abusiveness of these lawsuits is exacerbated by the fact that the Division apparently has unlimited resources with which to wage what it obviously hopes will be wars of attrition. As it learned painfully in Torrance, however, and as it shall soon learn in Garland, innocent municipalities will not stand for its threats and its coercion. If this Congress cannot or will not reign in the Civil Rights Division, then municipalities will be forced to continue using their scarce tax dollars to defend frivolous litigation. And defend them they will. But, if this Subcommittee refuses to act, you will fail in your oversight responsibility and you will fail the American people. Make no mistake -- we are watching, and we expect results.

IV.Conclusion

Just two weeks ago, the nation celebrated its independence from the tyranny of a monarchy an ocean away. Ironically, I come here today, the second time in as many years, to protest what many fairly regard as the tyranny of an agency of our own national government. With the tacit approval of this Congress, and funding from the public, the Civil Rights Division is and has been for several years engaged in a pattern and practice of using the Civil Rights Acts of 1964 and 1991 to secure for the few (who it obviously sees as its constituents) rights that offend a Constitution that protects us all.

In its quest to see merit-based hiring abandoned in favor of race-conscious selection, the Civil Rights Division has betrayed the trust placed in it by the American people, violated the rights of innocent municipalities it has arbitrarily and maliciously turned into civil rights defendants, and done violence to a statute that has had, for the last third of this century, a noble history of guaranteeing equality of opportunity without regard for race or national origin.

This Congress has an obligation to ensure that no agency of the federal government has the power and the freedom to trample the rights of some in the name of advancing the rights of others. If the Civil Rights Division cannot control itself, then it must be controlled. As more and more municipalities find themselves seeking relief from frivolous lawsuits brought in the name of "diversity," the need for a legislative solution becomes more compelling. It would be far too easy for this Subcommittee to see this problem as a mere ideological debate, a difference of opinion defined by political agendas and party affiliations. It would be far to easy to leave this battle to the States and municipalities, and the already over-burdened federal courts.

There are people here today, and many more in municipalities across the nation, wondering whether this Subcommittee has the will and courage finally to act. I urge you not only to act now, but to act decisively, to exercise the full extent of your oversight authority to bring to an end what has been almost a decade of government abuse. Dozens of innocent municipalities, fully committed to the principles embodied in Title VII but also faced with the difficult task of hiring capable men and women to protect and serve our communities, have been victimized by so-called "enforcement actions" that may accurately be characterized as punitive. Municipalities that will not quietly acquiesce in adopting racial quotas find themselves penalized financially and otherwise by well-funded teams of Justice Department lawyers let loose to wage mindless wars. The people of those municipalities look to you now to declare a cease fire. I ask today that you restore their hope and their belief that justice is indeed blind, and that this Subcommittee is not.

Judiciary Homepage

1. The Department of Education does not report NAEP test results for Asians.

2. 0. NAEP test data are reported at various "proficiency" levels. The level presented in Table A is the midpoint of the five defined levels. The other proficiency levels are defined as follows:

1. Able to follow brief written directions and carry out simple, discrete reading tasks.

2. Able to understand, combine ideas, and make inferences based on short, uncomplicated passages about specific or sequentially related information.

3. [Described in table above.]

4. Able to find, understand, summarize, and explain relatively complicated literary and informational material.

5. Able to understand the links between ideas even when those links are not explicitly stated and to make appropriate generalizations even when the text lacks clear introductions or explanations.

Source: Digest of Education Statistics, U.S. Department of Education, Office of Educational Research and Improvement (1994).

3. 0. The range of possible scores on the NAEP tests is 0 to 500, except on the writing test, on which the highest possible score is 400.

4. The Uniform Guidelines, which have not been revised since their publication in 1978, are inconsistent in several respects with the SIOP Principles and the APA Standards. Many developments in validation research, particularly in the area of "validity generalization" have been made in the nearly 20 years since the publication of the Uniform Guidelines. In fact, the SIOP Principles expressly recognize the use of cooperative validation efforts and validity generalization studies which permit inferences about job behavior or job performance across given jobs or groups of jobs in different settings.

5. After five years of investigation, the Government alleged that all of Garland's selection practices and criteria for police officers and firefighters violate Title VII. It admitted under oath on June 15, 1998, however, that it lacks sufficient information to determine whether any of the following selection practices or criteria actually violate the statute:

1. High school degree or equivalency requirement;

2. United States citizenship requirement;

3. Successful completion of a medical examination;

4. Requirement of no felony conviction;

5. Successful completion of a physical agility test;

6. Successful completion of one or more oral interviews;

7. Driver's license requirement (police only); and

8. Successful completion of a psychological examination (police only).

The improper use of the litigation process by the Civil Rights Division is routine. The Division regularly files suit without any factual basis in order to justify the use of burdensome discovery to determine whether, in fact, any violation exists. This is precisely why it was ordered to reimburse Torrance its attorneys' fees.