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Boston, a city historically scarred by racial divisions, has improbably found itself on the losing side of a reverse discrimination claim challenging its fire department’s hiring practices. The 1st U.S. Circuit Court of Appeals on March 27 ruled that the city, operating under a 29-year-old federal court decree, had actually overcorrected its tendency toward hiring white firefighters and was now actually biased against them. Quinn v. City of Boston, No. 02-1727. But the case filed by five white male candidates seeking entry-level jobs as members of the Boston Fire Department is far from over. Attorneys for the city and for the intervening National Association for the Advancement of Colored People have said that it is likely they will petition the court for en banc review of the three-judge panel’s 2-1 ruling. Even if this decision stands, fashioning a remedy for the candidates may prove to be difficult because in remanding the case to U.S. District Judge Richard Stearns of the District of Massachusetts, the 1st Circuit specifically excluded any form of relief to the candidates that would require the dismissal of a firefighter currently serving in the department. The dispute has its roots in the 1974 settlement of two suits filed against the city and state complaining generally about statewide firefighter hiring practices and specifically those of Boston. At that time, the department was 99 percent white. In lieu of revising the state’s testing criteria, a deal known as the Beecher decree was hammered out between the NAACP and the state. Under Beecher, which has since been modified, each municipality in the state with a disproportionately white firefighting force, relative to the ratio of blacks and Hispanics in its population, would undertake an aggressive affirmative action program intended to achieve rough parity between the ratio of whites and minorities in its population and the whites and minorities in its fire department. The 1st Circuit majority said Boston has achieved “rough parity” because 31.5 percent of its entry-level firefighters are black or Hispanic, almost matching the city’s 38 percent minority general population. Boston lawyer Harold Lichten, a partner in Pyle, Rome, Lichten & Ehrenberg, represented the candidates. He said that while the court did not expressly say that the department’s continued operation under Beecher was unconstitutional, once it found that rough parity had been achieved, the decree could no longer survive. But Susan Weise, chief of litigation for the city’s law department, disputed whether the court was properly counting “firefighters” when it determined that the city had achieved its goals under Beecher. “Yes, we reached parity at the entry level,” she said, but added that the ruling “ignores the other half of the department.” The other half to which she refers is the department’s officers, who are only 6.2 percent integrated. The majority said the officers don’t count for Beecher compliance purposes. Dissenting 1st Circuit Judge Kermit Lipez argued that the majority was wrong to count only entry-level hirees as “firefighters” and asserted that the city should not be free of the Beecher strictures until parity had been achieved among all uniformed personnel. Toni Wolfman, an attorney with Boston’s Foley Hoag, represented the NAACP in Quinn. Agreeing with Lipez, she said that the majority’s distinction between “firefighters” and the department’s upper ranks was unprecedented. “Nobody until these plaintiffs had ever questioned that in litigation, let alone in practice.” Lichten conceded that the lack of minorities among the department’s 350 officers may need to be remedied, but said “the way to do that is not by flooding the entry-level positions.”

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