Settlement in N.J. sergeant selection process case draws mixed emotions from officers

August 14, 2011  The Star-Ledger

Anthony Hyatt aced his police sergeant’s exam, but only because the Paterson police veteran said he studied four hours a day for three months. His score earned him a promotion in 2006, before budget cuts reduced his rank last year.

Lorenzo Tosado passed the exam twice, excelling the second time, but barely missed the cut for advancement.

"I worked really hard on the last test and it showed. It just wasn’t enough," the 17-year Jersey City detective said.

While both men acknowledge the 90-question multiple choice exam is imperfect — it relies too heavily upon rote memorization — Hyatt, who is African-American, and Tosado, who is Hispanic, reject any notion that it favors white candidates over minorities.

However, statistics tell a different story, and last week a proposed settlement in a federal lawsuit called for a new process for selecting sergeants in municipal and county police departments.

In January 2010, the Department of Justice sued the state and New Jersey Civil Service Commission, alleging the sergeants exam discriminates against black and Hispanic officers and arguing the tests weren’t necessary to prove candidates could do the job.

The lawsuit cited figures from 2000 to 2008, when 89 percent of white candidates passed the exam, compared with 77 percent of Hispanic officers and 73 percent of African-Americans. Black and Hispanic officers who passed received lower scores and were less likely to be promoted.

Under the proposed settlement, the exam will be revised and New Jersey will provide $1 million in back pay to officers deemed harmed by the promotion process.

Several black and Hispanic officers interviewed expressed conflicting emotions about the settlement. While hoping to see more minorities ascend the ranks, they were concerned their qualifications might be undermined in the eyes of fellow officers.

"This lawsuit is a slap in the face to us," said Hyatt. "It’s upsetting because they’re saying that all things being equal, we’re incapable of scoring as high, and I refuse to accept that."

But fairness is always an issue because tests are created by individuals with their own experiences, values and biases, said Gloria Browne-Marshall, associate professor at John Jay College of Criminal Justice in New York.

"American history is rife with complications regarding raced-based decision-making and test-taking, intentional or unintentional," said Browne-Marshall, who teaches constitutional law and racial justice law.

Representatives from the groups 100 Blacks in Law Enforcement and the National Latino Peace Officers Association said they supported revising the sergeants exam and also encouraged a state review of the promotion process.

"Unless you’re astute in how to determine whether a test is discriminatory or not, you could actually have black candidates taking a test that they don’t know is culturally biased," said Noel Leader, a co-founder of 100 Blacks in Law Enforcement.

According to the settlement, more than 1,600 black and Hispanic officers from 43 New Jersey departments were eligible for back pay, with about 80 percent of those also eligible for priority promotion. Officials don’t know how many will ultimately be selected.

As part of the settlement, New Jersey did not admit liability, and state and federal officials have refused to discuss what made the test unfair. Currently, it covers traffic and case law and includes a situational element, but experts say it doesn’t incorporate enough real-world skills.

Jeff Bernstein, whose test-prep company runs classes around the country — including New Jersey — said a more comprehensive exam with a video component will help asses the leadership skills required for the job.

A federal judge will consider the settlement at a hearing next month, but it remains unclear when a new test — which requires Department of Justice approval — will be given. The Civil Service Commission, which administers the exam, has already proposed adding a video-based, essay component. The next sergeants exam is scheduled for October, but it would be delayed if a revised test isn’t approved by then.

Whatever the new test method, "we have to ensure that every police officer has an equal opportunity to advance," said Wayne Fisher, who directs the Rutgers Police Institute.

Under the proposed settlement, priority consideration will be given to 48 black and 20 Hispanic candidates at 13 departments. Candidates must first pass the revised test.

At a community center in Carteret last week, Tosado and 50 other officers attended a Bernstein course for the upcoming exam. Tosado said the existing format is geared too much "toward college graduates because of some of the language on it."

"You don’t want a supervisor without language skills," he said, "but you also don’t want to cut out people who could be strong."

ED NOTE:  I have provided the "proposed" settlement documents in the RESOURCE BOX.