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City argues against race-related lawsuit


City argues against race-related lawsuit

The following appeared September 14, 2010 in The Toledo Journal. Read below, or view on The Toledo Journal website.

Written arguments have been submitted but no hearing has been scheduled yet in a federal court lawsuit filed against the City of Toledo regarding its latest firefighter class.

Advocates for Basic Legal Equality (ABLE), arguing racial imbalance, filed suit in July, asking U.S. District Court Judge David A. Katz to prohibit the city from using a 2008 eligibility list from which to draw its next class of firefighters.

The city, which will pay up to $50,000 to a private law firm to help defend its position, wants to bring aboard new firefighters by the end of this year. It contends that a consent decree, which was agreed to two years after a 1972 race-discrimination lawsuit, should be dissolved.

City argues against race-related lawsuit

The following appeared September 14, 2010 in The Toledo Journal. Read below, or view on The Toledo Journal website.

Written arguments have been submitted but no hearing has been scheduled yet in a federal court lawsuit filed against the City of Toledo regarding its latest firefighter class.

Advocates for Basic Legal Equality (ABLE), arguing racial imbalance, filed suit in July, asking U.S. District Court Judge David A. Katz to prohibit the city from using a 2008 eligibility list from which to draw its next class of firefighters.

The city, which will pay up to $50,000 to a private law firm to help defend its position, wants to bring aboard new firefighters by the end of this year. It contends that a consent decree, which was agreed to two years after a 1972 race-discrimination lawsuit, should be dissolved.

"The laudatory goals of the original consent decree have been met or exceeded in the years since this action commenced," the city, which is being assisted by the law firm Spengler Nathanson P.L.L., argued in a recently entered motion. "The city recognizes the importance of continuing the fair and open recruiting process.

"The city remains committed to diversity in the workplace through its standardized selection and hiring process," the motion continues. "While the City of Toledo does not contend that racism has been eradicated from American society, it does maintain that its fire fighter recruitment, hiring and selection process no longer requires judicial oversight."

The city also contends that, whether or not there is a judicial order, it considers the consent decree and a 1995 amendment to that decree to no longer be in effect.

"...The city does not believe that it is subject to any consent decree on fire fighter hiring as it maintains that the consent decree and its progeny have dissolved," its motion states.

ABLE notes in its court filing that nearly 50 percent of the African American firefighters hired since the consent decree took effect have accumulated 25 or more years, making them eligible for retirement. They would be replaced mostly by newly hired white firefighters, based on eligibility list demographics.

"Unless progress is made in ensuring that the new classes of firefighters have representation from the African American and Hispanic communities -- the groups that have traditionally been denied access -- we will have erased the progress made over the years following the consent decree," ABLE contends.

The 2008 eligibility list originally consisted of 134 individuals. Of those, 12 were Latinos and only six were African Americans. City council extended the timeline for the list, now consisting of 65 individuals. Of those, 10 are Latinos and only three are African Americans.
In reply, the city, which says it needs 525 firefighters to "operate at full strength," contends that it anticipates 35 firefighter retirements in the near future. Of those, six are African Americans, one is Hispanic and the rest are Caucasians, it says.

As of Aug. 13 of this year, 18.7 percent of the fire department's 492 uniformed staff were African American and 9.1 percent were Hispanic, the city says.

"These numbers prove a major, concerted commitment over the course of decades... to diversifying the fire department," the defense motion states. "Plaintiffs make absolutely no assertion that the selection and hiring process itself is flawed. For the past 15 years, the plaintiffs have acquiesced to the city's actions; their inaction evidences the fact that the consent decree -- and the 1995 stipulation and order -- are no longer vital to the operation of fair hiring processes in the fire department.

"To the contrary, the consent decree's requirements have become embedded and institutionalized in the selection and hiring of fire fighters."

The city also argues that ABLE's wish to eliminate the 2008 list would result in an understaffed workforce, endangering the public at a time when arsons are on the rise and forcing the city to pay millions in overtime to firefighters still on duty. Its motion goes further, saying a decision by Judge Katz in favor of ABLE would amount to forcing it to discriminate against white people.

"Discarding the 2008 eligibility list would be a decision based solely on the race of those who did qualify, in direct contradiction of eliminating race-based hiring," it contends. "Requiring the city to do what plaintiffs seek -- postpone the hiring of the upcoming 2010 fire fighter class and disregarding the eligibility list for those applicants who have passed the validated examination -- would mean requiring defendants to engage in reverse discrimination."

The city's filings include an affidavit from Mayor Mike Bell. He was among the first African Americans to benefit from the consent decree, serving 27 years on the fire department after his hiring, the last 17 as the city's fire chief.

"In my professional and personal judgment and experience, the intent of the consent decree has been met," the mayor stated in the affidavit. "The intent was to diversify the Toledo Fire and Rescue Department and to make it reflective of our community. The intent of the consent decree was to eliminate any race-based hurdles to entry into [the department].

"Prior to the 1970s, there were hurdles," the affidavit continues. "We standardized the mode of entry into the fire service for all, regardless of race or gender."

Council's three African American members -- Wilma Brown, Michael Ashford and Phil Copeland -- joined in the 12-0 vote last month to hire Spengler Nathanson. The firm has assigned its attorneys Theodore Rowan and Lisa Pizza to the case. The law department's Ellen Grachek is also working on the case.

ABLE attorneys Aneel Chablani and C. Thomas McCarter are representing the plaintiffs.

Mr. Chablani previously told The Journal that hiring from the 2008 list, which would have expired in June if not for the council-approved extension, would affect the fire department's racial balance for "the next 20 to 30 years."

"We're talking about hiring that will have long-term effects," Mr. Chablani said.