Smith, Mulligan and Timbers, Circuit Judges.
This is an appeal from a judgment of the United States District Court for the District of Connecticut dated February 7, 1973 which followed a Memorandum of Decision filed on January 29, 1973, Hon. Jon O. Newman, United States District Court Judge (354 F. Supp. 778).
The action here was commenced on February 24, 1972 by the Bridgeport Guardians, Inc., a non-profit corporation whose members include nearly all the Black policemen of Bridgeport; by the Housing Police Benevolent Association, composed of special policemen who patrol public housing projects in Bridgeport and by individual Black and Puerto Rican residents who have taken but failed the patrolmen's examinations as well as several Black policemen who have failed promotion examinations. The named defendants are the members and the director of the Bridgeport Civil Service Commission and the superintendent of the Bridgeport Police Department. Intervening defendants are Bridgeport police officers who are or may be eligible for promotion as well as those who have high standing on current eligibility lists, and presumably would be appointed to the force but for the decision below. The complaint in essence charged that the merit system examinations for initial appointments and promotions within the Police Department of the City of Bridgeport discriminated against Black and Spanish residents on the basis of race, color and/or national origin. Injunctive and declaratory judgment relief were sought under the Civil Rights Acts, 42 U.S.C. §§ 1981, 1983 and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202. The action was filed before the 1972 amendment to Title VII of the Civil Rights Act of 1964 which deleted the exemption of states and political subdivisions as employers within the Act.*fn1
An applicant for the Bridgeport Police Department must meet age and physical requirements, possess emotional stability, have good moral character and an aptitude for increasing his knowledge of crime detection and law enforcement techniques. He must take a written exam with a passing grade of 75 on a scale of 0 to 100. The grade is established in the rules of the Civil Service Commission and applies to all Civil Service tests given in the City. The applicant's prior training and experience is rated according to a chart assigning arithmetical values for experience and higher education. A background investigation is conducted for all who pass the written exam and the physical requirements. The director of Civil Service reviews the background investigation and in his discretion determines whether the applicant is suitable. A numerical rating is then assigned by weighting the exam grade at 70% and training and experience at 30%. The eligibility list ranks the successful applicants in accordance with this weighted average and the list is valid for two years.*fn2
The claim of the plaintiffs is that their constitutional rights to Equal Protection under the Fourteenth Amendment have been violated primarily because the written examination denies them equal employment opportunity. The court below found that the plaintiffs had made a prima facie showing of discrimination and the evidence amply supports the finding. Between 1965 and 1970 some 644 persons took the policeman's written examination. 58% of the 568 White candidates passed while only 17% of the 76 Black and Puerto Rican applicants were successful. Thus the passing rate for Whites was 3 1/2 times better than Blacks and Puerto Ricans. This is a greater disparity than that existing in comparable cases where courts have found that a case of prima facie discrimination was established.*fn3 Moreover, while Bridgeport has a combined Black and Spanish speaking population of 25%, members of these minorities only represent 3.6% of the Department.*fn4 It is further significant that the cities of Hartford and New Haven, Connecticut, which have roughly the same population and the same size police departments, show a decidedly better record of minority police employment.*fn5
Appellants cannot dispute seriously that a de facto case of discrimination has been here established. Moreover, they do urge that it is not of constitutional magnitude and even if it were, the court below erred in not applying the customary "rational relationship" test of the Fourteenth Amendment. Indeed, Judge Newman found that the written examination under attack did test intelligence and hence he concluded it was not irrational to employ it for police candidates. 354 F. Supp. at 791. Appellants relying principally upon San Antonio Independent School Dist. v. Rodriguez 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (March 21, 1973), urge that case as authority for the proposition that the defendants here are only required to establish a rational basis for the test and since Judge Newman found this to exist, the judgment below must be reversed. Rodriguez, however, is not controlling here. In that case, the Court dealt with the Texas property tax plan for financing educational facilities. It was urged that scheme was subject to the more rigorous compelling government interest test because it created a suspect wealth classification. The Court rejected the argument since the plaintiffs had failed to establish that the plan operated to the peculiar disadvantage of any class fairly definable as indigent, i.e., poor persons do not necessarily live in poor school districts, 411 U.S. at 22-23, 93 S. Ct. at 1291. Here however, the plaintiffs have been found to constitute a class which has been disadvantaged by the employment of the test. Therefore, we do not consider Rodriguez in point.
Having established the discrimination we cannot agree that since there was no showing that the test was deliberately or intentionally discriminatory, the defendants have therefore escaped the burden of establishing justification for its utilization. Chance v. Board of Examiners, 458 F.2d 1167, 1177 (2d Cir. 1972); see Pride v. Community School Bd., 482 F.2d 257, 265 (2d Cir. 1973); Kennedy Park Homes Ass'n v. City of Lackawanna, 436 F.2d 108, 114 (2d Cir. 1970), cert. denied, 401 U.S. 1010, 91 S. Ct. 1256, 28 L. Ed. 2d 546 (1971). The question then becomes what is the appropriate burden of justification thrust upon the defendants. This court has thus far avoided the problem since in Chance we found that in any event the examination in question did not even comply with the less rigorous standard of "rational basis." Judge Feinberg who wrote the opinion in Chance, has since observed (Green v. Waterford Bd. of Educ., 473 F.2d 629, 633-634 (2d Cir. 1973)) that the rational basis test has become perceptibly more rigorous as the result of the unanimous opinion of the Supreme Court in Reed v. Reed, 404 U.S. 71, 76, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971). Judge Newman held that the appropriate test was somewhere between the traditional rational basis and compelling necessity criteria the courts have employed in Equal Protection cases. 354 F. Supp. at 788 & n. 6.
The public employment test cases are sui generis in that the classification is not made by the municipal body but results from a testing device which in fact results in an invidious discrimination since it disadvantages minority groups. Hence, while the right to public employment is not fundamental in an Equal Protection context (see San Antonio Independent School Dist. v. Rodriguez, supra, 411 U.S. at 29-34, 93 S. Ct. at 1295-1297) there is a suspect (racial) classification which ensues. There have been so many of these cases in litigation that a viable test has emerged which in fact was adopted by the court below and 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 the jobs for which they were used. This essentially was the test employed by this court in Chance and by the First Circuit in Castro v. Beecher, 459 F.2d 725 (1972). This "job relatedness" test was recently employed by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 n. 14, 36 L. Ed. 2d 668 (May 14, 1973). While McDonnell was a Title VII case and did not technically involve Equal Protection issues, it is significant that the court relied not only on Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971) but also cited both Castro and Chance which were Section 1983 cases as is the case before us.*fn6 In view of the substantial authority for this test we see no advantage in an agonizing semantic discussion as to whether it is within or without the parameters of the "rational basis" test employed in distinguishable situations.
We therefore turn to the question of whether the defendants have established that the written examination under attack was "job related." Did it bear a demonstrable relationship to successful performance of the patrolman's job? Judge Newman meticulously reviewed the evidence and concluded that the defendants had failed to sustain their burden. We cannot characterize this to be a clearly erroneous finding.
The best method of establishing job relatedness is to establish that the test had "predictive validity." Criteria must be identified which indicate successful job performance. Test scores are then matched with job performance ratings for the selected criteria. This establishes realistically whether the applicant who received high scores was actually performing as predicted. No validation studies have been conducted here either before the exams were given or later. Two other recognized methods of insuring that examinations are job related are based upon so called "construct validity" and "content validity." Construct validity would be achieved if there had been an identification of the characteristics believed important to successful job performance followed by the structuring of an examination directed to a determination of the degree to which the applicant possessed the required characteristics. Content validity would be established if the content of the test closely duplicates the actual duties to be performed by the applicant. 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.
The examination used was not prepared by the defendants but was purchased from the Public Personnel Association (PPA), a private non-profit corporation. It was prepared in 1953 and is utilized by several hundred governmental agencies. It is basically an intelligence test not geared in any significant fashion to establish whether or not the applicant will be a good policeman. Thus many of the vocabulary and arithmetic questions are only superficially or peripherally related to police activity. For example:
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