New York City
1999–2001
The horror of Amadou Diallo’s death gripped the city for months, and with so much going on, only the Vulcans noticed when the results of firefighter exam 7029 came back. They were extremely depressing. The exam attracted 17,151 test takers overall and 75 percent of them were white. Even though the FDNY claimed to have spoken with 8,000 minority candidates during its recruitment phase, only 1,700 blacks sat for the exam, roughly 10 percent. Hispanics came in at 12 percent with just over 2,000. Women, as always, lagged the farthest behind. Ninety-seven percent of test takers were male; only 473 women took the exam.1 Just like the prior firefighter test, 7029 was a bust, at least as far as the Vulcans were concerned.
For reasons that were never explained to the Vulcans, the Department of Citywide Administrative Services—the new name for the old Department of Personnel that handled civil service exams—decided to alter the passing grade for the 1999 firefighter test. Instead of setting it at 70, which was the usual cutoff mark, city exam experts in DCAS, as the agency was known, pushed it up to 84.75. Any score below that was considered a failing grade. The change was made even after DCAS was warned by one of its own analysts that the higher benchmark would hit minority candidates the hardest. The largest clumping of blacks typically fell in the mid-80s, the analyst said. The response from DCAS was a collective shrug; the passing grade was 84.75.
As a result of that decision, the pass rate for whites on exam 7029 was 89.9 percent, while the pass rate for blacks was 60.3 percent. Blacks who did score above the cutoff mark were still ranked on average 630 places lower than white candidates on the eligibility hiring list. Of the 3,027 firefighters ultimately hired by the FDNY off list 7029, only 99—3.1 percent—were black. Hispanics got 269 hires, 8.4 percent.2
Among those who didn’t make it were Rohan Holt, a 25-year-old from Queens, and Jose Ortiz, a 26-year-old Bronx resident who dreamed of joining the FDNY or NYPD like many of his friends and family. Holt earned an 88, well above the cutoff mark. But when he checked in with the FDNY a few months later, he was told his grade was so low he likely would never get called. He finally took a job with the Metropolitan Transportation Authority as a bus driver. Ortiz, who eventually moved out of state, was never contacted after he took the test. He never learned his score.
Determined to use the weak numbers to create more traction through the press, Paul Washington tracked down a newspaper reporter at the NY Daily News and fed him the figures. Black candidates were being knocked out of contention for a great job because of a written exam that did nothing to measure how good a firefighter they’d be, Washington argued. It was like the Yankees giving an SAT test to pick who would play shortstop. The story appeared May 2, 1999, a two-page spread that caused a big splash. Washington considered it his preliminary shot across the city’s bow. The reporter, David Saltonstall, did his due diligence and included quotes from Tommy Von Essen and his deputy commissioner, Lynn Tierney. Saltonstall noted their determined outreach to minorities through the cadet program and recruitment events at community centers and black churches, plus a $250,000 ad campaign. It was a miniscule figure compared to the NYPD’s $9 million ad budget, but then again the police department was four times larger than the FDNY. The NYPD had also taken a far more progressive and aggressive approach to diversity under former commissioner Ben Ward, appointed in 1984 and the first black to lead the police department. The FDNY had already broken that barrier—appointing its first black commissioner, Robert Lowery, in 1966, and then a second, Augustus Beekman, in 1978. Lowery, the first black fire commissioner in any major U.S. city, served seven years. Beekman followed from 1978 to 1980. Both their appointments were a tremendous boost symbolically and emotionally for the black firefighters. Among the white majority, some embraced Lowery and Beekman, some tolerated their appointments, and a few grumbled that the FDNY was kowtowing to black groups. For all their good intentions—especially Lowery—neither man achieved the same impact as Ben Ward in the NYPD. He hired a special team to tackle the department’s lack of diversity and studied other agencies like the Department of Corrections, which had a heavily minority membership. Things still weren’t perfect in the NYPD either, as Diallo’s death showed. But Ward’s determined inroads in the 1980s made a big difference. Between 1986 and 1996, the number of Latino cops in the NYPD grew by 74.5 percent, Asians grew by 127.5 percent, women by 62.5 percent and blacks by 18 percent. The number of white cops decreased by 13.4 percent.3
Saltonstall also included Von Essen’s deep-seated opposition to any talk of a hiring quota—even though two court-ordered quotas briefly improved the number of blacks, Hispanics and women when they were applied to the FDNY some 25 years earlier. For the Vulcans, it was a familiar story: the FDNY applauded itself for its minimal efforts to improve minority turnout, but flat-out refused to consider any change to the traditional way of hiring. From what the Vulcans could see, updating the written civil service exam was the biggest remedy that could bring more blacks on the job.
“I can’t think of a worse solution . . . than to impose a quota,” Von Essen said to Saltonstall. “We have a very dangerous job, and to not reach out to find the very best in every population would be a serious mistake.”
Washington wasn’t surprised by the commissioner’s quote. Like every fire commissioner before him, Von Essen clung to the popular firehouse myth that the standardized tests ranked merit. In reality, the test did a decent job of weeding out the functionally illiterate; what its ranked results truly revealed about the skills of each candidate was anybody’s guess. Not even the city’s own test experts knew. The exam questions and testing methodologies evolved, piecemeal, from the days of Tammany Hall, when firefighters themselves composed exams. The development process for each test became slightly more sophisticated over time, especially after the first legal challenges in the 1970s. But the city never hired an outside expert to find out how effective the make-or-break exam was in filtering candidates so the best came out on top. Once DCAS took control of the exams, the contents were fiercely guarded to avoid allegations of cheating. But the basic format was well known: about 100 questions, heavily weighted toward cognitive ability and reading comprehension. Sample questions were readily available.
“Firefighters are at the scene of an uncontrolled fireplace fire. They have followed proper procedure and have just found that the fire has extended into the wall. The next thing the firefighters should do is: A. Tear open the wall with axes. B. Put out the fire in the fireplace. C. Put out the fire in the wall. D. Make sure the necessary equipment is ready for use. (The correct answer is D),” said one.4
“While inspecting an automobile repair garage, Firefighter Morales observed the following conditions: A. A mechanic is repairing a hole in a half-filled gas tank while smoking a cigarette. B. A heater is being used to heat the garage. C. A mechanic is changing the tire on a van while smoking a pipe. D. There is no fire extinguishing equipment in the garage. Of the four conditions observed by Firefighter Morales, which is the most dangerous fire hazard? (The correct answer is A),” said another.
Candidates had about two hours to finish, and many questions focused on memorization. Applicants were shown a drawing of a fire scene and allowed to study it for five minutes. Then they had to turn the page—no looking back—and answer a series of questions about what they had observed, such as how many victims were involved, where the fire hydrants were located and whether it was an apartment fire or a commercial fire. Another segment showed them a grid of city streets, with arrows indicating which routes were one-way traffic only. Candidates were asked to show how they would travel from the firehouse to an emergency a few blocks away, and to pick which types of tools they would use for different types of firefighting tasks. Was a hammer or a Halligan tool better to make a hole in the wall? The test wasn’t particularly challenging—nor was it particularly good at discerning who had the best temperament for firefighting.
Washington’s first round of media success soon led to another. In July 1999, the New York Times ran an article about three black FDNY lieutenants who filed a civil discrimination lawsuit after they were denied transfer requests to desirable posts. All three were Vulcans. One of them, Edward Alston, a 37-year veteran, said a white man with less seniority got his requested transfer. The FDNY admitted that the transfer Alston wanted was given to a more junior man—but it was because he had experience on a naval patrol boat in Vietnam. Lieutenant Rod Lewis was a veteran firefighter with tons of seniority, and his requests were turned down three times in favor of white men with fewer years on the job. Lieutenant Michael Cuttino had similar complaints. The allegations were under investigation, said the fire department, which made a point of criticizing the black lieutenants for wasting taxpayer money. That frugal attitude didn’t last long. In the decade to come, the city and FDNY would throw away millions fighting the Vulcans’ discrimination lawsuit.
Washington was pleased. The media attention flushed out some helpful politicians, and by September 1999, Von Essen was summoned to a City Council hearing to testify about FDNY recruitment. Washington’s right-hand man, Sheldon Wright, was at his side. Wright wasn’t completely convinced a lawsuit would get the Vulcans where they wanted to be. It was expensive and time-consuming, and the last suit the Vulcans pushed forward had only resulted in minimal gains—while creating a tidal wave of resentment. Its effects hadn’t lasted long either: the federal judge only imposed the hiring quota for four years. Blacks jumped to 6 percent of the FDNY because of it, but now that number had drifted down to less than 3 percent. It was far more effective, in Wright’s mind, to keep the specter of a lawsuit hovering over the FDNY. He was happy flexing the power of the threat.
“Trust me, you do not want a solution to this problem to be imposed on you,” Wright was fond of reminding FDNY and city officials when the topic of diversity came up at interdepartmental meetings. He knew nothing scared them more that the Q-word—a quota. He also freely shared his opinion that the written exam should be thrown out entirely. He found its whole creation and application absurd.
“We’ve got the college credit requirement now, and if anything we should require more. If someone can get themselves through college with at least a C average, why do you need this exam to tell you that they’re worth hiring?” Wright argued. Plus, whoever heard of setting the passing grade based on how many hires a department needed to make?
“It’s just a bad test,” he’d say. Von Essen didn’t view the test as all that awful, but in his opinion if it was a bad test, at least it was bad for everyone. But he did dig around in his budget to produce enough money for Wright to buy new recruitment vehicles.
Washington and Michael Marshall agreed with Wright that the test was generally useless, but without a lawsuit they didn’t think it would ever disappear. They weren’t getting anywhere with finding a lawyer, however, and it was starting to cause some concern. Then Washington got a good tip. Kevin James, the president of the FDNY’s Islamic group, suggested he call a lawyer at the Center for Constitutional Rights (CCR). Washington and Marshall weren’t aware of the firm, or its origins in the Civil Rights Movement. William Kunstler, the radical lawyer who became one of the most venerated and hated legal figures of his time for his defense of groups like the Black Panther Party, Attica prisoners and the Weather Underground, was among its founders.
Marshall and Washington were unaware of CCR’s illustrious—or infamous—roots. But they were happy to find a law firm willing to listen. The search for a gung-ho legal team was harder than either man expected. Not only were they getting turned down by just about everybody, they discovered a clump of naysayers within the Vulcans who disliked anything their outspoken new president said. The far more serious deterrent, however, was financing, because the Vulcans had very little. In their first few months in office, Washington and Marshall conducted business in a freezing cold hall, with members shivering inside their tightly wrapped jackets, gloves and hats. The old, three-story brownstone in Crown Heights along Eastern Parkway in Brooklyn was like a sieve, letting what little heat there was seep through porous windows and creaky door frames. The Vulcans bought the single-family home in the 1960s, moving their headquarters from Harlem. By the late 1980s the ramshackle building was badly in need of renovations. Washington gutted it and made a top-to-bottom overhaul his first priority when he took over in 1999. But landing a law firm was a close second.
The CCR lawyer who called them in was Stanford-educated Barbara Olshansky. She was slender and intense, with a riot of dark curls sitting on her head, and she cursed more than any firefighter Washington or Marshall had ever met. She dropped f-bombs with a ferocity that made them laugh, and they liked her immensely. Olshansky hacked through the Vulcans’ dense legal tangle in just a few quick meetings. They could build a strong legal argument that minorities were disproportionately hurt by the civil service exam just on the hiring results alone, she said. But there was an intriguing glimmer of an even larger claim lurking in the FDNY stats, Olshansky realized. It was hard to believe an agency had remained 94 percent white for nearly 150 years in a place as diverse as New York City purely by accident. But the Vulcans had a lot further to go if they wanted to prove the FDNY’s exclusion of blacks was intentional.
“I need evidence. Bring me evidence, examples of ways blacks are getting weeded out beyond the initial exam,” she told Washington and Marshall. Olshansksy had no doubt she could bring a discrimination lawsuit against the city using Title VII of the 1964 Civil Rights Act. She only needed to figure out the best approach.
Marshall had evidence—reams of it. For many years, he’d been the self-appointed advocate for black candidates who got turned away by the FDNY during the background investigation phase. Marshall didn’t have the same direct ability to steer candidates through the system that Henry Blake did in the 1980s, but he could and did go to FDNY headquarters to follow up on guys who were dropped from the list. The Vulcans had long suspected that more minorities got rejected for minor blips in their personal histories than whites, and Marshall amassed all the information he could.
The Vulcans had suspicions about other parts of the hiring system as well. The five-point residency program was an ongoing point of contention. The extra credit was designed to go to applicants who grew up in the city. But the way the regulation was written, a candidate only had to show they’d been a resident for one day to get the five points. Then there was the promotional Emergency Medical Services exam created by Von Essen that fast-tracked EMTs and paramedics into the firefighting ranks. The Vulcans noted that plenty of young white EMS workers used that route too—and a lot of them had the same last names as high-ranking FDNY officers. The Vulcans never expected the fire department to limit residency points or the EMS promotional exam to blacks and Hispanics only, but it galled Washington to watch both programs push even more white firefighters into the firehouses. He didn’t like the cheating but couldn’t blame the kids alone. He understood as well as anybody that fierce drive to follow a family tradition. But he did fault the FDNY brass who knew what was happening and still refused to cut off the pipeline.
He and Marshall pulled together a list of about six black applicants fighting with the FDNY over their background investigations and brought it to Olshansky. One of them, Damon Alston, took the firefighter exam in 1992 and was just on the brink of being permanently ejected from the hiring list. At 31 years old, he was running out of time in other ways too. Alston was embroiled in a lengthy back-and-forth with the white female investigator, and he couldn’t get a handle on what was holding up his appointment. Finally, he went to FDNY headquarters to speak to her in person, and she let him know what the problem was: he had a sealed arrest in his past, she said.
“You’re kidding, right?” and incredulous Alston said. His lone arrest was for jumping the turnstile once as a teen. The only other blotch on his record was a summons given to him a few years later by a cop who spotted him dumping some traffic tickets out his car window.
The investigator told him the two incidents were “cause for concern.” Alston left the meeting dispirited. He’d known it was a difficult process going in, and at that point he had no reason to think he was being held to a standard that was any different for anybody else. He shrugged his shoulders and prepared to move on, but decided to let the Vulcans know it was over for him. He’d kept in close contact with the group since first taking their tutorials for the test, and periodically showed up at Vulcan Hall to help out with events. He reached out to Michael Marshall, who quickly set him straight.
“No, that is not normal, and those two things should have no relevancy to you now,” was Marshall’s firm response. “Let me make a few calls.”
Two days later, Alston was summoned back to fire department headquarters. The FDNY had just sworn in its latest class of probies and he’d missed the cutoff. But Alston hoped his investigator was going to say he could join the next class in six months. To his shock, he was ushered up to the eighth floor and into the office of Fire Commissioner Von Essen, who was waiting to swear him in. The private ceremony was over in minutes, and a businesslike Von Essen politely showed him the door. Alston’s background investigation was never brought up again. He was hustled into the probationary class that had just started, and he dedicated himself to being an eager and grateful student. But as he got to know some of the other probies, almost all of them white, he heard some disturbing information. Quite a few of the other new hires also had stains on their records—and most for things much worse than Alston’s turnstile jump. There were drunk-driving arrests, collars for bar fights, even some domestic violence assaults. Those who’d gotten through had signed a “stip,” something he knew nothing about.
“You sign it if there’s something in your background that makes the investigator think twice about hiring you. It says you can be hired on the stipulation you maintain a clean record and agree to random drug tests for a while,” one guy explained to him as they sat in the locker room after a workout. Alston was stunned. The word stipulation never came out of his investigator’s mouth. The revelation soured him slightly. When the Vulcans called to ask him to meet with their new lawyer and share his story, he said yes. The other blacks had experiences that were remarkably similar to his, including one who’d scored a 98.25 out of 100 on the test and wound up ranked in the sixtieth hiring spot. He was held back because of an eight-year-old infraction on his military record. He’d been charged for insulting an officer in the navy, but was later cleared of the insubordination accusation. Yet that incident was cited by the FDNY as an issue in his delayed hiring when he went down to ask what was taking so long.
Olshansky was stunned to learn the FDNY didn’t need to provide applicants with a written letter explaining the reason for their rejection. Thanks to the one-in-three rule instituted a century ago by Tammany Hall, the FDNY was free to choose one candidate out of every three if it wanted to. Those not picked got bumped to the next spot on the hiring list. If they were passed over two more times, they fell off the list for good. All the FDNY had to do was issue a letter saying they’d been “considered but not selected.” The evidence was compelling enough to give the Vulcans another avenue for a discrimination lawsuit, but if they chose that path the half-dozen candidates they’d brought to Olshansky would never get on the FDNY. By the time litigation got done, it would likely be too late for them.
“We can’t take that chance,” Washington said to Marshall, who agreed. Besides being unfair to the waiting men, it was counterintuitive for the Vulcans to do something that would keep eligible blacks from joining the FDNY. Instead, they worked out a system with Olshansky. She agreed to write letters to fire department officials on behalf of all those still sidelined. At the same time, the Vulcans requested sit-downs with FDNY chiefs to go over each applicant’s history. It didn’t take long for the FDNY to start moving its creaky bureaucracy; one by one, the men previously on the verge of getting tossed out were able to move forward.
“You know, if we hadn’t gotten all these guys this help, we’d have a better chance at our lawsuit. We just undermined one of our own claims,” Marshall joked to Washington. “We’re too good for our own good.”
Even with the success of specific cases brought to Olshansky, Washington wasn’t ready to let the FDNY off the hook. He and Marshall decided early on to take a good-cop/bad-cop approach with the department. Washington had no difficulty playing the hardball role, or saying the abrasive truths in meetings and to the press that annoyed Mayor Rudy Giuliani and the fire department leadership. He’d learned that getting the FDNY to agree with the Vulcans’ points didn’t mean anything would actually change. In his view, the only way to achieve his goals was through a forceful media campaign and pressure from friendly politicians. Marshall had the role of the affable, reasonable Vulcan, the one who could be counted on to respond in a way FDNY officials found rational. Few people realized that underneath his easy grin and cheery moustache, Marshall’s militancy matched his partner’s. As Von Essen’s day to testify to the City Council approached, Washington played his role to the hilt, unloading a fresh fusillade of criticism at the FDNY, again through the NY Daily News.
The dynamic duo at work. Lieutenant Michael Marshall on a rare detail to Captain Paul Washington’s Brooklyn firehouse, Engine 234. Photo credit: Vulcan Society.
“Bravest Hard on Minorities; More Candidates Rejected On Character, Health Issues,” trumpeted a September 26, 1999, headline. Washington fed the reporter some of the backstories of black applicants he and Olshansky were helping. The FDNY had also handed over what scant data it had on its background screening process—and the numbers weren’t good. Since 1995, the city greenlighted 2,501 white firefighters—but 8 percent were ultimately weeded out by problems with their background checks. In the same time frame, the city had deemed 212 minority firefighters eligible, but 11 percent were eliminated through background checks. The same pattern held true for medical disqualifications: 4 percent of whites were washed out compared to 7 percent of minorities.5 Washington knew that if the FDNY had released numbers just for blacks—instead of clumping minorities together—the disparity would have been even more glaring. The article succeed in turning up the heat on Von Essen during his City Council hearing two days later, although he didn’t deviate much from his planned testimony.
“Before we begin I would like to state that as it is, hiring at the New York City Fire Department is a fair and competitive process,” Von Essen began. “The way to get a job in the Fire Department is to score high on the written test and to score at the top of the physical test. . . . Also understand that before you start comparing this job to other civil service positions in the city, this universe is very different. Traditionally, we fill only about 500 positions a year. Not thousands. Over the life of a list that can be 6–7 years, we may hire only 3,000 people.”6
Von Essen also added that they’d tightened up the criteria for the five residency points amid allegations of widespread abuse. “Applicants must prove residency for a period of at least one year . . . we believe it’s a much more stringent requirement that will be harder for the applicant to prove but easier for the Department to verify,” he said.
He went on to detail his team’s efforts to increase diversity through the Fire Cadet program, noting that its participants were city residents attending a city college, and they had to have at least 30 college credits, and were recruited over a ten-month period. The first class in 1996 was 70 percent minority, and the second class nearly the same—probably about 60 minority kids in total. It put them in an ideal spot to join EMS after graduation, and from there springboard off the EMS promotional exam into the FDNY, he said.
“We firmly believe that making these positions eligible for promotion will help us to attract qualified candidates into the ranks of firefighter,” Von Essen said.
The Vulcans were pleased with the more restrictive five-point program, until they read the fine print. The city mandated that an applicant had to be a resident for a year. But a kid from Long Island could apply for the test, and as long as he said he’d lived somewhere in the five boroughs during the period required by DCAS, he could get the extra credit. There were plenty of ways to cheat too. Some candidates got together and rented a cheap place in the city, so they could show they got their mail delivered to an NYC zip code. Others relied on a city-living aunt or uncle who would let them put a utility bill in their name, another way to prove residency. The FDNY investigators were supposed to thoroughly go over each claim, but it was common knowledge that many applicants found a way around it—and nobody was all that worried about catching the violators.
The Vulcans’ concerns were waved away. But another embarrassment for the FDNY was coming. Two months after Von Essen’s testimony, a red-faced city had to defend itself after a NY Daily News exposé detailed dozens of relatives of white firefighters who’d taken the streamlined route through the Fire Cadet program to get into the FDNY—including the sons of four high-ranking fire officials. Even the son of a Uniformed Firefighters Association official—the union that had fought so hard to block Tierney’s training course at Randall’s Island—was found in the Cadet Corps ranks. The promotional pathway meant for minorities had become a backdoor route for the well-connected few.
“The reality is that [the relatives] got into the program on the same basis as everyone else,” a defensive Giuliani told the press. “[They] had to be accepted because otherwise you would have a very serious reverse-discrimination case if you didn’t accept them.”7
Not long after the city gave exam 7029 in 1999, the Equal Employment Practices Commission that had audited and found fault with FDNY recruitment under Commissioner Howard Safir in 1994 began another audit of FDNY recruitment practices. It took a look at exam 7029 and how it was constructed. By the next year, the EEPC was hectoring Von Essen for a meeting to discuss its audit results, which were not good. From the written correspondence that followed, the meeting did not go well. The fire commissioner and EEPC spent most of the year sniping at each other in memos. On July 14, Von Essen wrote to point out several “factual inaccuracies” and differing interpretations of data that needed to be cleared up.8 The EEPC responded a month later, criticizing Von Essen for giving half-answers to questions about FDNY recruiting and skipping others entirely. The committee also accused him of reneging on promises he’d made to the EEPC earlier to implement certain diversity recruitment steps.
“Given these facts, this Commission has determined that your response letter is inadequate and therefore unacceptable,” the EEPC said. The fire department’s recruitment for exam 7029 “will have minimal impact on diversity” within the FDNY, the agency said.9 By the fall Von Essen adopted a much more conciliatory and cooperative tone. He provided a detailed description of the FDNY’s actions and responses to the EEPC’s recommendations. But he still resisted two key suggestions: he refused to hire experts to study the FDNY’s written exam and its college credit requirement to judge if they unfairly hurt minorities’ hiring chances.
“The Fire Department should conduct an adverse impact study based on the results of the written examination. If the department’s study reveals that the test disproportionately screens out minority or female candidates, FDNY should conduct a validation study in accordance with the federal government’s [procedures],” the EEPC wrote.10
Adverse impact was by then a well-established part of employment law, having grown out of a 1970s discrimination case brought by a North Carolina laborer named Willie Griggs and 12 other blacks who worked in a hydroelectric plant. Blacks at Duke Power Plant were limited to menial labor in one department until the Civil Rights Act of 1964 opened new pathways. Duke came up with two hiring and transfer prerequisites: a high school diploma or a high score on a general intelligence test given by the company. The new criteria meant no blacks could transfer into higher-paying positions. Griggs filed a discrimination lawsuit that went all the way to the Supreme Court, and won. The Supreme Court found that the intelligence tests and diploma requirement had been implemented to limit minority hiring, and had nothing to do with actual job performance. Griggs v. Duke Power made it illegal for a company to impose arbitrary criteria, unless it could be proven that the standards were job-related—a process called validation. Von Essen was not about to tie up precious FDNY resources in one of those studies—especially when it was clear results wouldn’t be good.
“Not applicable,” Von Essen answered. He pointed the EEPC to DCAS. That was the agency responsible for designing and administering the civil service test, he said.11
The back-and-forth culminated in a meeting just before Christmas in 2000 between EEPC officials and Von Essen. Amid the wide-ranging discussion, which touched upon the five-point residency credits, mentoring and other recruitment efforts, a new fact emerged: the civil service exam administered in 1999 was based on the same material used in the prior exam from 1992. This same material was also going to be used as the template for the next scheduled exam going forward, sometime in the early to mid-2000s. Yet at no time had the city hired outside experts to assess how well the test was designed.
The testing material as it existed actually only measured nine cognitive abilities deemed important to being a firefighter—even though there were nine others considered equally important. DCAS had gotten its information from several Bravest, who gave them feedback on the qualities they deemed most relevant to the job. The firefighters said that oral comprehension and oral communication were the two most important qualities of all—and they were completely left off the DCAS test. The other seven important qualities were also left off, because it was not within DCAS’s standard operating procedure to test for them. It seemed the only thing the city learned from the Vulcans’ 1970s discrimination lawsuit was that it didn’t like court-imposed hiring quotas. It certainly hadn’t figured out yet that the way it made up the FDNY civil service tests was fatally flawed.
Although the exchanges between the FDNY and the EEPC occurred largely outside of the public eye, Washington and Marshall couldn’t have been happier with how things were shaping up. They continued to work closely with Olshansky and another bright young lawyer she’d brought in, Shayana Kadidal, from Yale. Moreover, the city’s political landscape was taking on some interesting dimensions. A longshot billionaire candidate, Michael Bloomberg, appeared on the scene. He was a Democrat in Republican’s clothing, having switched parties to stand out in the crowd. Few pundits gave him much of a shot. The real race was in the tense, divisive Democratic primary that pitted public advocate Mark Green against Bronx Borough President Fernando Ferrer. Two other candidates were also in the field, Council Speaker Peter Vallone and City Comptroller Alan Hevesi.
In the middle of the city’s run-up to the 2001 primary, the Vulcans got wind of a new FDNY hire. One of the four Street Crime cops who had shot Amadou Diallo was joining the Bravest. Edward McMellon had taken the firefighter exam before the fateful night he and three colleagues shot and killed the African immigrant—and the FDNY had reached his list number. An upstate jury had acquitted McMellon and the three other cops of second-degree murder and other charges, but the NYPD was still working on its own internal investigation. The fire department’s review board cleared McMellon for hire anyway. It was time for the Vulcans’ first major news conference, Washington decided.
On April 14, 2001, Washington stood outside Vulcan Hall with Diallo’s father, Saikou Diallo. They were backed by Michael Marshall and a dozen other black firefighters, including Keith Maynard, whom Washington was grooming as a future Vulcan leader. Washington had a short press release, typed out for him by his new wife, Tabitha. He’d been nervous thinking about his first real foray in front of the press as the Vulcans’ leader—and half afraid no reporters would show up. When he saw all the cameras and notebooks, the nerves disappeared.
“If a black man had ever murdered somebody and went to trial for murder, no matter what the circumstances, that man would not be allowed to be a firefighter,” Washington said to reporters. “Officer McMellon has easily shown that he has poor judgment. This is not the type of man we want to put in life-and-death situations,” he said, noting that McMellon pulled the trigger for 16 of the 41 shots fired at Diallo.12
As the press conference hit the evening news and made headlines the next day, mutterings of what many saw as the Vulcans’ hypocrisy flew around the department. If a black man was put on trial for murder but cleared of all charges, the Vulcans would have been first in line to demand the FDNY hire him, whispered more than one high-ranking official. The FDNY chiefs weren’t the only ones paying attention to the press coverage. Public advocate and mayoral candidate Mark Green added his voice to the Vulcans’, telling the New York Post that it was “wrong . . . to transfer one of the officers to the Fire Department so that the [Police] Department’s investigation of him may never be completed.”13 Green later asked the Vulcans for their endorsement. They didn’t grant it, but they did pass along the latest figures on FDNY diversity.
Headed into a difficult primary against Fernando Ferrer, who had large support in Hispanic communities, Green was more than willing to get on the Vulcans’ bandwagon. He took their information and ran with it, crafting a letter of concern to Von Essen. It spelled out all the stats that Von Essen already knew by heart: white men make up 93 percent of the FDNY, while minorities rank significantly lower. Green added a new twist by including a graphic of minority representation in other uniformed city agencies: the numbers for Latinos, blacks and women were in the double digits for the NYPD and the Sanitation and Correction Departments, Green noted—and in some cases were more than 50 percent. In the FDNY, no single minority group cracked 5 percent. He also factored in black and Latino representation in fire departments around the country, noting that the FDNY was woefully out of step with other major cities. Los Angeles, Houston, Philadelphia, San Antonio—much smaller departments overall—had at least four times the diversity of the FDNY, and in some cases much more. Even Chicago, which for decades had a deliberate policy of discrimination, had jumped from 5 percent to 29 percent following an aggressive affirmative action program.
Calling on the FDNY to end “this long and unacceptable history of de facto and formal segregation of one of the city’s largest and most vital uniformed services,” Green proposed creating two new fire science high schools dedicated to feeding students into the Cadet Corps, then EMS and then the FDNY.14
These were all good things as far as Washington and Marshall were concerned. In just a few short years, they’d moved their agenda ahead significantly. They’d put the FDNY on notice of the seriousness of their intentions and found a dedicated, gutsy lawyer to handle what they anticipated would be a major civil rights discrimination case. They had only high hopes for the future, and Washington was already pulling together the different pieces for his next round of attack. And then, on September 11, 2001, two commercial airplanes plowed into the Twin Towers and changed the city and the FDNY forever.