Public Personnel Examinations and the Constitution: Emergent Trends

Author(s): David H. Rosenbloom and Carole Cassler Obuchowski

Source: Public Administration Review, Vol. 37, No. 1 (Jan. - Feb., 1977), pp. 9-18
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Public Personnel
The Constitution: Emergent
David H. Rosenbloom, University of Vermont
Carole Cassler Obuchowski, University of Vermont
Despite almost a century of effort to depoliti-
cize public service in the United States, public
personnel administrationremainsdeeply entangled
in the "political thicket." Today the major chal-
lenge to public personnel administrationcomes
not from spoilsmen, political parties,or frustrated
political executives, but rather from decisions of
the federal judiciary. Indeed, in a series of cases
receiving little national attention during the past
few years, the lower and intermediate federal
courts have required major changes at the center
of contemporary public personnel administration
and have placedit on the thresholdof a new era in
which new values and techniques will have to be
employed.
PublicPersonnelAdministration's
PoliticalParadigm
For the most part, public personneladministra-
tion in the United States retains a political
paradigmdeveloped by the civil service reformers
in the 1870s and 1880s.1 Although the goals of
"efficiency," "morality," and "economy" are
generally associated with the reform movement,
the reformers'overall objectives were less related
to the condition of the federalservicethan to that
of the political system as a whole. As a leading
reformerexpressedit, "The question whether the
Departments at Washingtonare managed well or
badly is, in proportion to the whole problem, an
insignificant question...."2 The major defect of
the spoils system from their perspectivewas that it
produced unfit politicians.3 What the reformers
wanted, as they clearly stated, was to make it
possible for a new class of politicians to emerge,
JANUARY/FEBRUARY 1977
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9
Examinations and
Trends
* This article examines recent judicial decisions con-
cerning the constitutionality of public personnel
examinations. It is argued that these decisions are
challenging the traditional political paradigm of public
personnel administration by stressing the value of
representation. In so doing, they are forcing public
personnel administrators to attempt to develop exam-
inations having a high level of validity and to
reconsider the relationship between merit and repre-
sentation.
or, "... to make active politics once more
attractiveto men of self-respectand high patriotic
aspirations."4Reform, in short, stood for nothing
less than a fundamentalchange in the nature of
political leadership.
In order to accomplish this objective it was
necessary to take politics out of the civil service
and the civil service out of politics. Only through
depoliticization would it be possible to deny the
spoilsmen patronage,their chief political resource,
and thereby relegate them to a minor role in the
political system. Open competitive merit examina-
tions were the means through which depoliticiza-
David H. Rosenbloom is an associate professor of political
science at the University of Vermont. He has taught at the
Universities of Kansas and Tel-Aviv and was a NASPAA
Fellow with the U.S. Civil Service Commission. He has
authored Federal Service and the Constitution and several
other works dealing with public and personnel administra-
tion and constitutional law.
Carole Cassler Obuchowski attended Boston University
Law School and is currently doing research in the
Department of Political Science of the University of
Vermont. She was assistant law librarian with General
Motors Corporation. She has done extensive research in
the area of organization theory.
10
tion was to be effectuated. In the words of a
leadingreformer,open competition
... is proved to have given the best public servants; it
makes an end to patronage; and, besides being based on
equal rights and common justice, it has been found to be
the surest safeguard against both partisan coercion and
official favoritism.5
Thus open competitive examinationswere a tech-
nique for maximizingvirtuallyall of the reformers'
goals, but foremost among these was overall
political reform. Today, however, many view
public personnel examinations as detrimental to
the attainment of representativepublic services.It
has been charged,for instance, that "... the tests
given by the U.S. CivilServiceCommission... are
among the most discriminatory given by any
employer."6
To an extent, the reformerswere successful in
achievingtheir objectives. Spoils ceased to provide
the primarypolitical resourceof federalpoliticians
in the years following the enactment of the
reformers'proposalsinto law.7 However, as spoils
became less important, public personnel adminis-
tratorsbegan increasinglyto stress the administra-
tive benefits of examinations. Eventually, the
slogan "only the best shall servethe state" became
the rallying cry of public personnel administra-
tion8 and personnelexaminations,it was claimed,
were the most satisfactory method for assuring
this condition. Today, there is no doubt that,
"The cornerstoneof the public personnelprogram
is the processof selection by meansof competitive
examinations... " Yet, the cornerstone is
flawed.
As a whole, public personnel administrationin
the United States has not been successful in
demonstratingthe legitimacy and validity of merit
examinations. There are several reasons for this.
First, while the objective of obtaining the best
qualified civil servants is rarely questioned, de-
veloping techniquesfor predictinghumanbehavior
is extremely difficult. This is especially true in the
case of government employment where the en-
vironment is often relatively fluid and work
processes involve many highly qualitative and
intangibleelements. Past performance,knowledge,
and ability are related to future performance,in
general, but so are individualreactions to specific
environmental factors and styles of supervision.
The latter are almost never adequately taken into
account under merit procedures,and it is not clear
that they alwayscould be.
Some aspects of organization theory are
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PUBLICADMINISTRATION
REVIEW
pertinent in this regard. At least 12 kinds of
ideal-type "organization men" have been identi-
fied or hypothesized.' It has also been con-
vincingly arguedthat the behaviorof individualsin
the environmentsof largeorganizationsis strongly
related to their psychological predispositionand
their specific positions in organizations, as op-
posed to their natural and learned abilities.'
However,almost any system of examinationsgiven
to large numbers of people will have to concen-
trate on relatingability, ratherthan the additional
elements of psychologicalpredispositions,achieve-
ment orientation, and motivation, to specific
positions. Therefore the differences between
"climbers" and "conservers," or between "in-
differents" and "ambivalents,"for example, are
only marginallyrelated, at most, to that which is
tested by merit examinations.12 Yet these be-
havioral patterns are believed to be extremely
important in determining performance and the
natureof whole administrativeunits.
In sum, to be highly predictive, personnel
examinations would have to relate specific en-
vironments and job functions to individual abili-
ties, predispositions, and cognitive styles. More-
over, predicting the nature of interpersonal
behavior may require that some assessment be
made of the group dynamics of the organizational
unit to which an applicantis being consideredfor
employment. While in some instances the social
scientific technology may be available for so
doing, in others it is absent, and, in general, a
system of exams developedalong these lines might
well be prohibitivein termsof cost.
A second shortcoming of merit examinations
has been a failure to analyze adequately the
validity of these testing devices. It has been
concluded, for example, that "... hundreds of
public jurisdictions have probably never done a
3
validity study."1 Perhaps the most common
approach is to attempt to establish "content
validity." This requires that the content of the
examination match, insofar as possible, the con-
tent of the job. Content validation,however,does
not enable predictionof job success on the basis of
test score. That is, although it is assumedthat the
higher the score the better the performanceon the
job will be, the relationshipbetween the two is not
empirically established.A somewhat more sophis-
ticated approach is to use the method of "con-
struct validity." Here an effort is made to identify
the characteristics,psychological predispositions,
and mental abilities necessary for successful job
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PUBLICPERSONNELEXAMINATIONS
performance and the examination is designed to
determinethe extent to which candidatesactually
possess these requisites.Constructvalidationmay
create a greater relationshipbetween exam score
and on-the-job performance than does content
validation, but it is still not predictivebecause the
natureof this relationshipis not ascertained.
In theory, the best method of establishingthe
validity of merit examinations is to employ a
"predictive validation" approach. Unfortunately,
this is extremely difficult to apply and conse-
quently few public personnel systems utilize it.
Predictive validation requires that the criteria
indicating successfuljob performancebe identified
and that test scores be correlated with perfor-
mance ratings. Only predictive validation estab-
lishes the significance of differences in examina-
tion scores and whether the relationshipbetween
scores and performance is linear or even sub-
stantial enough to warrant use of the testing
device. Yet, it could be arguedconvincinglythat
given present day technology in the social sciences
it is impossible to find a significant relationship
between exam score and job performance for
many kinds of public service jobs, and especially
the more importantones. Moreover,such a process
would require a tremendousinvestmentof time as
those appointed would have to be "followed" for
many years. In short,
... there is considerable evidence that neither construct
nor predictive validity is a feasible method to use in most
public personnel settings for a number of reasons. For
example, the extent to which social, motivational and
situational variables affect job performance makes it
extremely difficult to identify job performance criteria. It
may be possible in the abstract to identify job content
factors pertinent to job proficiency, but job proficiency is
different from job performance. The only areas in which
there has been reasonable success in establishing perfor-
mance criteria and in evaluating performance are routine
and repetitive positions.14
In addition, at the present time there is no
universal or even generally acceptable way of
measuring"job success." "A 'success rating'usu-
ally amounts to a kind of 'report card' which is
made out by the employee's supervisor,"and, "...
such ratings are inevitably limited in reliability-
particularlywhen different supervisorsare rating
different people."1 Moreover, in some juris-
dictions there is no success rating, but only an
"efficiency report" at best. Another barrier to
ascertaining the predictive validity of merit
examinationsis that, "... generallyonly a limited
portion of the test taking group ever get the
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11
chance to perform on the job,"16 and, therefore,
nothing is known concerning how those with
lower scores who were not appointed would have
performed, if actually given the opportunity.
Furthermore, those appointed often have very
similar scores, which makes it difficult to explain
differencesin job success in terms of performance
on the examinations.To an extent, it is possible to
assess predictive validity by administeringexam-
inations to current employees and subsequently
correlatingtheir scores with theirjob performance
ratings (concurrent validity). It is generally be-
lieved, however, that this approach introduces
important intervening variables including on-the-
job learning, situational factors, and a different
attitude towardthe exam itself.
A final problempublic personneladministrators
face in convincing others of the legitimacy of
testing devices is that publicjurisdictionstend, for
political reasons, to be forced to use examinations
having "face validity." While this generallymeans
nothing more than that the exam not appear
ridiculousto laymen, in fact, face validity may not
be congruent with other types of validity. As a
result of these difficulties, and perhaps others as
well, the validity coefficients of civil service
examinations are typically at about the .25 level
and rarely, if ever, greater than .50.1 7
In other
words, performanceon such exams usually can be
shown to explain only about six per cent of the
variance in on-the-job performance and rarely
more than 25 per cent. Moreover,in general,the
greater the variance explained the less important
the nature of the position. This weakness makes
many public personnelexaminationsvulnerableto
attack by those seeking to maximize political
values, such as representation,in contrast to the
traditional ones of efficiency and depoliticization
of the public service.
Representation:A Challengeto the
TraditionalPoliticalParadigm
The civil service reformers believed that a
fundamental change in the nature of public per-
sonnel administrationcould lead to a transforma-
tion of the political system as a whole. Interest-
ingly enough, they shared this belief with Presi-
dent Jackson and the spoilsmen who preceded
them. Today the reformpolitical paradigmis being
eroded in an effort to redistribute political in-
fluence by makingpublic servicesmore representa-
tive. The emergence of representationas a major
12
value to be maximized through public personnel
administration has its origin in old style "fair
employment"programs.
The principle of equal treatment in public
personnel action regardless of race, religion, or
national origin began to emerge duringthe 1940s
as an outgrowth of a more general attempt to
increase productivityand unify the nation for the
war effort.' 8 Since that time, sex has been added
to these illegitimate bases for differentiatedtreat-
ment, and equal employment opportunity has
become a major personnel activity. In general,the
evolution of this function has been marked by
three stages. Initially, equal employment oppor-
tunity meant non-discriminationand the elimina-
tion of segregationin the public service.Programs
of this nature were generallyweak and ineffective,
but by the early 1960s overt racial discrimination
and segregationhad become less common in the
federal government and many other jurisdic-
tions.' 9 Before the mid 1950s, few specialefforts
were made to recruit membersof minority groups
to public services.20In the late 1950s and more so
in the 1960s, as civil rightsemergedas a dominant
political issue, a change in EEO approachesoc-
curred. In the federal government this develop-
ment was symbolized by the creation of the
President's Committee on Government Employ-
ment Policy (1955), its replacementby the Presi-
dent's Committee on Equal Employment Oppor-
tunity (1961), and the subsequent transfer of
federal EEO functions to the Civil Service Com-
mission in 1965. Programsbecame significantly
stronger, discrimination complaint systems and
procedureswere made more effective, and, most
importantly, positive steps were taken to increase
the number of minority group membersin public
services. Basically, these efforts consisted of
special recruiting drives in minority neighbor-
hoods, schools, and colleges; the development of
new training opportunitiesfor minorities;impart-
ing to supervisors and managers a heightened
awareness of the desirability of achieving more
racially balanced public services;and, more gen-
erally, ".. . the removalof unnecessarybarriersto
the employment of particulargroups of persons
and ... support of community activities designed
to facilitateemployment of personswho otherwise
might not have the opportunity."2
By the late 1960s and early 1970s EEO began
to enter its current phase. Today, the major
objective is achieving at least a moderately high
level of proportional representation of minority
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PUBLICADMINISTRATION
REVIEW
group membersand women in public services.To
some extent, this changein approachoccurredas a
result of the resolution of earlier EEO problems,
including that of facilitating minority entry into
public services. For example, by 1970 it was
evident at the federal level that minorities, and
especially blacks, had more or less attained an
employment level commensurate with their pro-
portion in the society as a whole.22 In general,
however, minorities and women were heavily
concentratedin the lower levels of public services
and the major EEO problem had become in-
creasingtheir employment in the uppergrades.At
the same time that the older EEO principlesand
practicesseemed to have more or less successfully
run their course, the objective of establishing
greater representationin public bureaucracieshad
gained considerable acceptability in academia23
and government.
By 1970, several important agencies of the
federal government adopted the notion that the
federal service should be passively representative
of all major groups found in the society at large.
Thus the Commissionon Civil Rights arguedthat,
The Civil Service Commission ... should clarify its
current policy, emphasizing specific goals in the Federal
equal employment opportunity effort and develop a
Government-wide plan designed to achieve equitable
minority group representation at all wage and grade levels
within each department and agency.24
Agencies such as the Office of Managementand
Budgetand the Departmentof the Army sought to
use minority employment goals and timetables in
their EEO action plans. The CivilServiceCommis-
sion, which administersthe current federal EEO
program,also adopted the goal of a representative
bureaucracy, but indicated its reservationscon-
cerningthe approachsuggestedby the Commission
on Civil Rights:
We believe that to the extent practicable organizations of
the Federal Government should, in their employment
mix, broadly reflect, racially and otherwise, the varied
characteristics of our population. This is a desirable goal
to achieve within the context of employment on the basis
of merit.25
In May 1971, under considerable pressurefrom
Congress, the Commission on Civil Rights, the
Equal Employment Opportunity Commission,
other agencies, and some civil rights groups, the
CSC issued a new policy directive authorizing
agencies to use the goals and timetables approach
to their EEO programs.26 It warned, however,
that
JANUARY/FEBRUARY 1977
PUBLICPERSONNELEXAMINATIONS
Goals and timetables must not be interpreted by managers
and supervisors as quotas. Agency action plans and
instructions involving goals and timetables must state that
all actions to achieve goals must be in full compliance
with merit system requirements.2 7
The CSC's reluctance to authorize the use of
goals and timetables and its warning that these
cannot be used as a substitute for merit procedures
indicates that there is at least a tension, if not a
genuine conflict, between the goals and timetables
approachand merit principles.In reality, however,
this tension is between merit and representationin
a society, such as the United States, where
cumulativeinequalitiestend to fall along racialand
ethnic lines. No matter how culturally neutral a
merit system, it is unlikely to produce a high
degree of passive representationwhere equal op-
portunity to acquire the knowledge and ability
necessary for skillful performancein bureaucratic
positions is lacking. As CSC Chairman Robert
Hamptonexpressed it, "... the distributionof job
skills is not uniform for ethnic groups and ...
factors outside the employment system itself, such
as education and experience, contribute to the
ability of minorities to compete successfully for
jobs."28 Therefore, whereas public personnel ad-
ministratorsview representationas a desirable,but
secondary goal to be achievedwithin the context
of the merit system, others see the merit system as
a barrierto representation,and tend to advocate
the use of goals and timetables not only in
conjunction with, but also in the absenceof merit
procedures. For example, some civil rights advo-
cates have argued that "application of the merit
system without regard to existing preferential
practices and proceduresis tantamountto ignoring
the most prevalent form of discrimination in
employment."29 Inevitably this divergence has
found its way into the federal courts, and the
judiciary is currently requiring a rethinking of
traditionalpublic personnelassumptions.
PublicPersonnelExaminationsin the Courts
The Equal Protection Clauseof the Fourteenth
Amendment and the Due Process Clause of the
Fifth Amendment to the United States Constitu-
tion prohibit racial, ethnic, religious, and to a
somewhat lesser extent, sexual discriminationin
public employment.30 There are also several
statutes and executive orders intended to accom-
plish this end. In recent years, there have been a
substantial number of cases challenging specific
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13
public personnelexaminationson the groundsthat
they are unconstitutionally discriminatory. Al-
though there has been a diversity of judicial
opinion with regard to some of the questions
posed, a fairly coherent body of constitutionallaw
has emerged concerning the following issues: (1)
what constitutes discrimination,(2) what consti-
tutes legitimate discrimination,and (3) what are
the appropriateremedies for illegitimate discrim-
ination.
Discrimination
In a typical case in this area, members of a
minority group who have taken a public personnel
examination and have not scored high enough to
receive appointment challenge the constitution-
ality of the examinationprocedures,both on their
own behalf, and as a class action on behalf of all
others similarlysituated. They attempt to demon-
strate that the exam has a disproportionateracial
impact. The remedy generally sought consists of
immediate employment in the position applied
for, an injunction barring further use of the
examination in question, and the introduction of
an employment formula to redress the conse-
quences of past discrimination. Therefore, the
method for determining discriminationand the
consequences of this technique are of crucial
importance. Although public personnel adminis-
trators are wont to argue that the examinations
they administer are neutral and that differential
performance on them between minorities and
non-minorities is due to more general social,
educational, and economic inequalities found in
the United States, the courts have reasoned that
result rather than purity of intent is of greater
relevance.It has been held, for instance, that:
It is no defense that defendants acted in good faith and
without any intent to discriminate or that the discrimina-
tory impact of the examination procedure may be due to
socioeconomic disadvantages suffered by minority
groups.... [W]hen state action which is neutral on its
face unintentionally disadvantages racial minorities in
areas such as public employment, the state has the burden
of demonstrating that the action in question has at least a
substantial relation to a legitimate state interest....31
Thus, ". .. harshracialimpact, even if unintended,
amounts to an invidious de facto classification
that cannot be ignored...,"32 and the question
becomes, therefore, what constitutes a harshracial
impact.
In answer, different, but related approaches
have developed. For the most part, it is true that:
14
There have been so many of these cases in litigation that a
viable test has emerged which in fact ... 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 jobs for which they were
used.33
In some cases, however, a less stringent test has
been used:
... [T]he percentage of minority-group persons em-
ployed by [a public jurisdiction] is grossly and dispropor-
tionately less than the percentage of minority-group
persons in the general population of the area. Thus,
whatever may have been the good intentions of defend-
ants, there is a prima facie case for predicating employ-
ment discrimination unless defendants justify the selec-
tion method....34
Finally, in at least one case, both these criteria
have been used to establishdiscrimination.35
Undercurrentrulingsthen, whateverthe intent,
public personnel examinations are generally
deemed discriminatoryif (a) there is a significant
disparity in the performance of minorities and
non-minorities on them,36 or (b) there is a
considerable passive under-representation of
minorities in the public employment positions
covered by the examinations. Once a primafacie
case of discrimination has been established, it
becomes the public personneladministrators'"...
burdento justify the examination'suse despite its
differential impact by proving that it is job-re-
lated... 37
Thus it is possible to defend successfully a
discriminatoryexaminationif it can be shown that
performanceon the exam is positively related to
performanceon the job, and that job performance
criteria are within an area of legitimate state
interest. To date, there has been a considerable
number of cases in which discriminatoryexamina-
tions might have withstood constitutional chal-
lenge if it could have been shown that they were
acceptably valid and, here too, a fairly coherent
body of law has been emerging.
Validity: The Key to LegitimateDiscrimination
Assessingthe validity of public personnelexam-
inations has clearlypresentedthe courts with great
difficulties. For, "Despite discriminatoryimpact,
the law in this area clearly recognizes the possi-
bility that examinationprocedurescan be justified
by the requirementsof the job."38 It is necessary,
therefore, for the courts to rule on the degree to
which discriminatoryexaminations are "job re-
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PUBLICADMINISTRATION
REVIEW
lated." However, "The problem which confronts
the trier of fact when chargedwith applyingthese
principles [of test validation] to a given situation
is that normally ... he is expert neither in
psychometrics nor in the field in which the
examination is given."39 Two complementary
strategieshave been developed by the judiciaryin
an effort to overcomethis difficulty.
The dominantapproachappearsto be a familiar
one taken by the courts when dealing with
administrativeofficials. Given that these officials,
rather than the judiciary, are often the experts in
the substantive fields under judicial scrutiny, by
and large the courts have tried to avoid substitut-
ing their own judgment for that of administrators
and have opted for an initial requirement that
certain procedural, as opposed to substantive,
conditions be met. In one of the most comprehen-
sive decisions to take this position, the court
reasoned that a discriminatoryexamination may
be judged constitutionally valid only if public
personnel administratorshave addressed four ele-
ments:
1. Analysis of the job to isolate the essential
knowledge,skills, and abilitiesrequiredby it;
2. Determinationof the scope of the examination,
the method or methods of testing to be
employed and the weight to be given different
portions of the examinationprocess;
3. Formulationof individualitems; and
4. Establishmentof the passingpoint.40
Under this approach, "The primary emphasis ... is
on the validity of the methods used in creatingthe
examination not on the independent validity of
the end product."41 Where public personnel ad-
ministrators cannot demonstrate that these ele-
ments were rationallyconsidered,an examination
having a harsh racialimpact will be found uncons-
titutional.
If, however, public personnel administrators
can show that these prerequisitesfor establishing
validity have been sufficiently analyzed,the courts
may either defer to their judgment42 or make an
independent assessment of "job relatedness."In
pursuing the latter course, the courts have ex-
presseda preferencefor "predictivevalidity," but
have also indicated that other methods of valida-
tion may be acceptable.Thus,it has been held that
failure to use predictivevalidity is not "fatal,"43
although it may be unacceptable "... without a
demonstrationthat proof of empirical [predictive]
validity is not feasible."44 Nevertheless, in the
absence of a showing of predictivevalidity, there
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PUBLICPERSONNELEXAMINATIONS
has been a tendency for the courts to seize upon
questions deemed irrelevant to on-the-job per-
formance and to find examinations containing
these to be unconstitutionally discriminatory.In
Bridgeport Guardians,Inc. v. BridgeportCSC, for
example, it was found that at least 14 out of 117
questions on an exam used in recruitment for
police positions were irrelevant to job per-
formance.The court reasonedthat:
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 in-
volving 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 signifi-
cantly job related.4 5
Similarly, an examination for potential firemen,
which had discriminatoryracialimpact, was found
unconstitutional because a substantialproportion
of its questions concerned current events and
aspects of the city's governmentwhich were not
deemed to be job relatedby the court.46
Finally, it is possible that even if the content
and validity of a discriminatoryexamination are
found to be constitutionallyacceptable,the estab-
lishment of an arbitrarypass/failpoint may render
its use unconstitutional. Thus, it has been held
that such a point cannot legitimately subordinate
"... the goal of job-relatednessto that of adminis-
trative convenience."47 Elsewhere it was argued
that an examination was "... vulnerablein that
the City ordinance mandates a uniform cut-off
score of 75. This is an arbitrary determination
indicative of an archaictesting system particularly
where there is no evidence of weighting of
questions based upon actualjob requirements."48
Hence, in establishinga passing point, personnel-
ists must be able to show that those not reachingit
are incapableof minimallyacceptableperformance
in the position sought.
Remedies
It is evident that the courts are willing to
subordinate the value of representationto those
traditionallyassociatedwith the merit system if it
can be shown that a discriminatoryexamination
has a satisfactory level of validity in its relation-
ship to the performanceof legitimate state func-
tions. However, where an examination has been
found unconstitutional the courts have tended to
remedy the situation by requiring that greater
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15
passive representationof minority groupmembers
be establisheddirectly. It is here that the challenge
to public personnel administration is greatest
because the judiciary may require hiring and
promotion on a non-meritor modified-meritbasis.
Although for the most part, the courts agree"...
that hiring quotas are discriminatorysince they
deliberatelyfavor minority groups on the basis of
color,"49 several have ". . . sanctioned hiring
quotas to cure past discrimination... ."50 Thus in
Armstead v. StarkvilleMunicipalSeparateSchool
District,5 it was held that a school districtcould
validly be ordered by the judiciary to maintain a
specific racialbalanceamongits teachersof 30 per
cent black and 70 per cent white. Elsewhereit was
held that in order to remedy past discrimination
minorities should be appointed to 50 per cent of
the first ten vacanciesto occur, 75 per cent of the
next 20, and 50 per cent of all those thereafter
until 50 minorities had been appointed.52 Simi-
larly, in another case, it was ordered that three-
fifths of all those hired in the future should be
minorities until they constituted 30 per cent of
the patrolmen and sergeants in a police depart-
ment.5 3
Perhapsthe logic of "color conscious" remedies
was most cogently discussed in NAACP v. Allen.
The court reasonedthat:
Since no decision has adequatelyrationalizedthe consti-
tutional problemsraised by affirmativehiring relief, we
now undertake that task within the factual matrix
presentedby this case. At the outset, it is apparentthat
no applicantfor publicemploymentcan base any claimof
right under the Fourteenth Amendment'sequal protec-
tion or due process clauses upon an eligibility ranking
which results from unvalidatedselection proceduresthat
have been shown to disqualifyblacks at a disproportion-
ate rate.Thisis so becauseby definitionsuch criteriahave
not been shown to be predictive of successful job
performance.Hence,thereis no reliableway to know that
any accepted applicant is truly better qualified than
others who have been rejected. Until the selection
procedures used by the defendants here have been
properly validated, it is illogical to argue that quota hiring
produces unconstitutional "reverse" discrimination, or a
lowering of employment standards, or the appointment of
less or unqualified persons.54
The court went on to sanction relief which
required that the public employer "... tempor-
arily institute race as the final determinativefactor
in their appointment of applicants. .. ." 5
In short, with regardto remedies for unconsti-
tutionally discriminatory examinations, several
courts have reasonedthat representationis in itself
a value to be maximized, even if through the
16
imposition of practiceswhich, at least temporarily,
substitute racialand ethnic criteriafor those of the
merit system in the selection of employees. This is
all the more significant when it is borne in mind
that the courts have available the less drastic
alternativeof orderingthat a new and non-discrim-
inatory examination be developed and adminis-
tered.56 At the same time, however, it should be
noted that few, if any, judges believe that quotas
or similar devices are satisfactory means for
establishing representativepublic services in the
long run. Moreover,several members of the judi-
ciary are opposed to their use in the absence of
"... a clear-cut pattern of long-continued and
7
egregiousracialdiscrimination."5
Conclusion
Analysis of recent judicial decisionsconcerning
the constitutionality of public personnelexamina-
tions indicates that the courts have become an
effective forum for challenging the traditional
political paradigmof public personnel administra-
tion in the United States. Indeed, as one court
noted, an attack on the content of such exams
may merely herald "... future confrontations
between the advocates of equal employment op-
portunities and the supportersof our civil service
system."58 Moreover, the judiciary is requiring
public personnel administrators to adopt new
perspectives.It has not held that merit examina-
tions must produce a high degree of passive
representationin the public services in order to
withstand constitutional scrutiny. However,it has
clearly indicated that exams having a dispropor-
tionate racial impact are constitutionally suspect
and can only be justified on the groundsthat they
are relatedto the administrationof legitimatestate
functions. Whereno such showing can be made,
the courts have sometimes opted for the direct
establishment of greater passive representation
through the use of quotas. And, in so doing, they
have seriously challengedthe traditionalvalues of
the merit system.
These developments pose important challenges
for public personnel administration.It is evident
that if the basic principlesof the merit system are
to be maintained,far more will have to be done in
an effort to ascertain and increase the validity
levels of public personnelexaminations.Assuming
a strong relationship between exam score and
on-the-job performancewill no longer suffice and
will tend toward the imposition of direct judicial
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PUBLICADMINISTRATION
REVIEW
action which may bypass merit principlesentirely.
In addition, public personnel administratorswill
have to make concerted efforts to develop exam-
inations that do not have a harsh racial impact.
Finally, public personnel administratorswill have
to consider other ways of achievinga high degree
of passive representationin public serviceswithin
the basic frameworkof the merit system. Among
these might be the abandonmentof such practices
as the "rule of three" to allow selection from
among a largernumber of individualsand thereby
expand the possibility of increasingpassive repre-
sentation.59
No matter what the response of public per-
sonnel administration,however, it is apparentthat
the judiciary will play a considerablygreaterrole
in this areain the future. Althoughthe courts have
been reluctant to substitute their own judgment
for that of personnel administratorswhere tech-
nical matters such as validity are concerned, the
judiciary has not been disinclined to find public
personnel examinations to be unconstitutional.It
is also evident that, given the nature of constitu-
tional provisions,the largerthe role played by the
judiciary, the greater the emphasis that will be
placed on establishing a high level of passive
representation. From an historical perspective
then, these developmentscan be understoodas an
effort to reinstate the value of representative
public services, which was eclipsed by the civil
service reform movement, and to make govern-
ment in the United States more democratic.
Addendum
Our conclusions are strengthened by the
Supreme Court's opinion in Washingtonv. Davis
(June 7, 1976), which modifies the technical
nature of the legal issues discussed,but does little
to alter their substantivedetermination.Its eye on
other policy areas,the Court sought to negate the
presumptionthat a law which is neutralon its face
is neverthelessconstitutionally suspect if it has a
disproportionateracial impact. The latter "... is
not irrelevant,but it is not the sole touchstone of
an invidious racialdiscriminationforbiddenby the
Constitution." Consequently, a "discriminatory
purpose" must at least be "inferred from the
totality of relevantfacts." In practice,this will not
change the outcome of decisions involvingpublic
employment because it is a standard far more
stringentthan that created by the Civil Rights Act
of 1964, as applied to public employees at all
JANUARY/FEBRUARY 1977
PUBLIC PERSONNEL EXAMINATIONS
governmental levels by the Equal Employment
OpportunityAct of 1972. In the Court'swords:
Under Title VII, Congress provided that when hiring and
promotion practices disqualifying substantially dispropor-
tionate numbers of blacks are challenged, discriminatory
purpose need not be proved, and that it is an insufficient
response to demonstrate some rational basis for the
challenged practices. It is necessary, in addition, that they
be "validated" in terms of job performance. ... However
this process proceeds, it involves a more probing judicial
review of, and less deference to, the seemingly reasonable
acts of administrators and executives than is appropriate
under the Constitution where special racial impact,
without discriminatory purpose, is claimed.
Thus, not only are the kind of decisions formerly
rendered by the lower courts on a constitutional
basis likely to continue under the applicable
statutes now available,but the role of the judiciary
in overseeing public personnel examinations is
likely to expand.
Notes
1. On reform see Leonard D. White, The Republic Era
(New York: The Free Press, 1965); Paul P. Van
Riper, History of the United States Civil Service
(Evanston, Ill.: Row, Peterson, 1958); and Ari
Hoogenboom, Outlawing the Spoils (Urbana: Univer-
sity of Illinois Press, 1961).
2. Carl Schurz, Speeches, Correspondence, and Political
Papers of Carl Schurz, Frederick Bancroft (ed.) (New
York: G.P. Putnam's Sons, 1913), II, p. 123.
3. See Dorman Eaton, The Civil Service in Great Britain
(New York: Harper and Bros., 1880), esp. p. 392.
4. Carl Schurz, editorial in Harper's Weekly, Vol.
XXXVII (July 1, 1893), p. 614.
5. Eaton, p. 365.
6. Statement of Richard Levin, assistant director, Phila-
delphia Commission on Human Relations, at Hear-
ings Before the Subcommittee on Labor of the
Committee on Labor and Public Welfare, U.S.
Senate, 91st Congress, 1st Session, S. 2453, "Equal
Employment Opportunity Enforcement Act" (Aug-
ust 11, 12; September 10, 16, 1969), p. 156.
7. The reformers and the class they represented, how-
ever, did not assume the role in political leadership
which they sought. See Matthew Josephson, The
Politicos (New York: Harcourt, Brace & Co., 1939).
8. Norman Sharpless, Jr., "Public Personnel Selection -
An Overview," in J. Donovan (ed.) Recruitment and
Selection in the Public Service (Chicago: Public
Personnel Association, 1968), pp. 8-9.
9. O. Glenn Stahl, Public Personnel Administration
(New York: Harper and Row, 1962), p. 67.
10. See Anthony Downs, Inside Bureaucracy (Boston:
Little,Brown, 1967); Robert Presthus, The Organi-
zational Society (New York: Vintage Books, 1962);
and Leonard Reisman, "A Study of Role Concep-
tions in Bureaucracy," in Social Forces, Vol. 27
JANUARY/FEBRUARY 1977
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17
(March 1949), pp. 305-310.
11. Downs, ch. 9; Presthus, ch. 6-8.
12. Ibid.
13. Kenneth Wentworth, "The Use of Commercial
Tests," in Donovan (ed.), Recruitment and Selec-
tion, p. 155.
14. Dean Nesta Gallas, John Jay College of Criminal
Justice, Communication to Author (1975).
15. Glenn McClung, "Statistical Techniques in Testing,"
in Donovan (ed.), Recruitment and Selection, pp.
339-340.
16. Ibid., p. 340.
17. Ibid., Table 2.
18. On federal equal employment programs see Samuel
Krislov, The Negro in Federal Employment (Minne-
apolis: University of Minnesota Press, 1967); and
D.H. Rosenbloom, The United States Civil Service
Commission's Role in the Federal Equal Employ-
ment Opportunity Program, 1965-1970 (Washing-
ton, D.C.: U.S. Civil Service Commission, December
1970).
19. Indeed, by the end of the Johnson Administration,
several black officials concluded that "... the most
prevalent form of discrimination in Federal employ-
ment is not the individual overt act of discrimina-
tion, but the built-in biases that result in minority
selection-out." "The Equal Employment Oppor-
tunity Posture of the U.S. Federal Government," p.
6 (unpublished, undated report [1968?] authored
by Roger Wilkins, former director, Community
Relations Service, U.S. Department of Justice; James
Frazier, Jr., past director of the Civil Service
Commission's Office of Federal Equal Employment
Opportunity, and others. The document was widely
circulated among civil rights and EEO officials and is
a candid statement of the thinking of several leading
black officials at the time.
20. For example, the Fair Employment Board, which
had the major responsibility for EEO at the federal
level from 1948 until 1955, wrote: The fair employ-
ment policy does not mean that any fixed propor-
tion of persons of different races, religions, or
national origins must be given Federal employment
....No applicant or employee having merit and
fitness shall be refused or deprived of employment
or earned promotion by reason of his or her race,
color, religion, or national origin. On the same
principle, no one lacking merit or fitness shall receive
preferment for the same reasons. The fair employ-
ment policy is a double-edged tool." U.S. Civil
Service Commission, Fair Employment Board, Fair
Employment in the Federal Service, Pamphlet 44
(December 1951), p. 1.
21. Memo of Civil Service Commission Chairman R.
Hampton to H. Glickstein, Staff Director, U.S.
Commission on Civil Rights (July 24, 1970).
22. See U.S. Civil Service Commission, Study of Minor-
ity Group Employment in the Federal Government
(Washington, D.C.: the Commission, 1970).
23. On representative bureaucracy, see among many
others, F. Mosher, Democracy and the Public Service
(New York: Oxford University Press, 1968), ch. 1.
He draws a useful distinction between active and
18 REVIEW
PUBLICADMINISTRATION

passive representation. The former involves a situa-
tion in which "... an individual (or administrator) is
expected to press for the interests and desires of
those whom he is presumed to represent,..."
whereas passive representation refers to "... the
source of origin of individuals and the degree to
which, collectively, they mirror the total society,"
pp. 11-12.
24. U.S. Commission on Civil Rights, Federal Civil
Rights EnforcementEffort (Washington,D.C.: U.S.
Government Printing Office, 1970), p. 1076.
25. Letter of CSC Chairman Hampton to R. Kelley,
Assistant Secretary of Defense, August 6, 1970. The
letter received widespread circulation among federal
equal employment opportunity officials.
26. For an analysis see David H. Rosenbloom, "The Civil
Service Commission's Decision to Authorize the Use
of Goals and Timetables in the Federal Equal
Employment Opportunity Program," WesternPoliti-
cal Quarterly, Vol. 26 (June 1973), pp. 236-251.
27. CSC Memorandum, "Use of Employment Goals and
Timetables in Agency Equal Employment Oppor-
tunity Programs," May 11, 1971.
28. Hampton memo to Glickstein (July 24, 1970).
29. "EEO Posture," p. 4. Underlining deleted.
30. See among others, Brooks v. School District, 267
F2d 733 (1959); Baker v. City of St. Petersburg, 400
F2d 294 (1968); Eslinger v. Thomas, 476 F2d 225
(1973). The Supreme Court has not squarely
addressed the issue, but its opinion in Griggs v. Duke
Power Company, 401 U.S. 424 (1971) is instructive.
The judiciary has tended to treat public sector
equality cases as unique. See Kirkland v. New York
State Departmentof CorrectionalServices,520 F2d
420 (1975) For a more general discussion see D.H.
Rosenbloom and J.A. Gille, "The Current Constitu-
tional Approach to Public Employment," Kansas
Law Review, Vol. 23 (Winter 1975), pp. 249-275.
31. VulcanSociety v. CivilService Commission,360 F.
Supp. 1265, 1272 (1973).
32. Chance v. Board of Examiners, 458 F2d 1167, 1175
(1972).
33. Bridgeport Guardiansv. Bridgeport Civil Service
Commission, 482 F2d 1333, 1337 (1973), emphasis
added.
34. Western Addition Community Organization v.
Alioto, 330 F. Supp. 536, 539 (1971), emphasis
addedin first sentence.
35. Vulcan,at 1269.
36. There is no agreement on what constitutes a signifi-
cant disparity. In Chance, a pass rate of 1.5 whites to
one black was considered evidence of discrimination.
37. Kirklandv. New YorkState Departmentof Correc-
tional Services, 374 F. Supp. 1361, 1365 (1974).
38. King v. New York City CivilServiceCommission,6
E.P.D. 6243, 6248 (1973).
39. Kirkland, 374 F. Supp. 1361, 1372.
40. Ibid., at 1373.
41. Ibid.
42. See Douglas v. Hampton, 338 F. Supp. 18 (1972);
and 512 F2d 976 (1975), on appeal.
43. Kirkland, 374 F. Supp. 1361, 1371.
44. Douglas v. Hampton, 512 F2d 976, 987.
45. Guardians,at 1338.
46. Vulcan.
47. Kirkland, 374 F. Supp. 1361, 1377.
48. Guardians, at 1338.
49. Ibid., at 1340.
50. Ibid.
51. 325 F. Supp. 560 (1971).
52. Guardians, at 1339-1340.
53. Officers for Justice v. CSC, 371 F. Supp. 1328
(1973). See also Carter v. Gallagher, 452 F2d 315
(1971).
54. 493 F2d 614, 618 (1974).
55. Ibid.
56. See Fowler v. Schwarzwalder, 351 F. Supp. 721
(1972). It is possible that such an exam would not
have greater validity, but rather would be less
discriminatory.
57. Kirkland v. New York, 520 F2d 420, 427. The court
overturned the "color conscious" relief provided in
Kirklandv. New YorkState Departmentof Correc-
tional Services, note 37 supra, but it affirmedthe
facets of the earlier decision discussed here.
58. Ibid., at 428-429.
59. This approach has been endorsed by the National
Civil Service League and at least partially adopted in
Michigan. See U.S. Commission on Civil Rights,
Federal Civil Rights Enforcement Effort - 1974
(Washington, D.C.: U.S. Commission on Civil Rights,
1975), Vol. 5, p. 57.

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