Pushing Back on Disparate Impact

In the Biden administration’s final year, the Department of Justice filed four lawsuits against local and state public-safety departments: the Maryland State Police; the fire departments of Durham, North Carolina, and Cobb County, Georgia; and the police department of South Bend, Indiana. In each case, the DOJ alleged that these agencies had used racially discriminatory written tests—citing disproportionate failure rates for black applicants and questioning whether the tests were sufficiently job-related. The DOJ also challenged the physical-fitness tests used by South Bend and Maryland, claiming that they unfairly screened out women, and objected to Cobb County’s past use of credit checks, which, it argued, had a racially disparate impact.

The complaints did not highlight concrete problems with the tests, but online, the popular X user “Crémieux” had a field day mocking the suits, posting lengthy threads of publicly available sample questions. As it turned out, the written exams tested basic math, reading, writing, and decision-making skills, with questions that were generally, if sometimes a bit artificially, set in relevant public-safety contexts.

One practice section of the National Police Officer Selection Test, at issue in the Maryland case, had applicants read four paragraphs about crime in libraries and answer simple questions, such as the true-or-false query “According to the passage, libraries in the United States do not experience very much theft or vandalism.” The practice exam for the Durham fire department’s test featured this brainteaser: “A firefighter determines that 350 feet of hose is needed to reach a particular building. If the hoses are 60 feet in length, what is the minimum number of lengths of hose needed?”

Some of the defendants were less amused. After all, they had been singled out from among tens of thousands of police and fire departments nationwide. In its public response, South Bend defended its practices, noting that its physical testing met the Indiana Law Enforcement Academy’s minimum standards, that it allowed applicants to attempt the test several times per hiring cycle—unlike other Indiana cities—and that its department had become increasingly diverse in recent years. The city also pointed out that it offers free tutoring for the written test, which it described as “similar to written tests in other Indiana police departments, including the Indiana State Police.” South Bend’s police chief added that he was “beyond disappointed that the DOJ has not been forthcoming with how these claims were determined in the first place.” Durham’s fire chief struck a similar note, telling local media that the department was “a little shocked” to learn that its validated, vetted test—developed by a company that produces exams for hundreds of fire departments—was suddenly no longer considered valid by the DOJ. He added that the department had received no explanation of which parts of the test were allegedly problematic.