Bench Memos

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Is the Justice Department Reassessing Its Policies in Light of Ricci?


I think that’s a fair question, since the brief it filed, while it could have been worse, was nonetheless to the left of Justice Kennedy’s opinion (I discussed the brief on Bench Memos here). Moreover, it seems to me that there has been an uptick in the number of disparate-impact investigations and lawsuits against fire and police departments in the Obama administration. 

See, for example, this March press release involving a challenge to the Portsmouth, Va. fire department’s “written examination”; the complaint there alleges that “the City’s use of the National Firefighter Selection Test … has had a disparate impact upon African Americans.” On April 22, the Division sent a letter to another city, announcing a “full investigation” of “entry-level sworn police officer positions” and “entry-level firefighter positions” because the percentages of blacks and/or Hispanics employed was “significantly lower than their percentages in the City’s relevant civilian labor force.” Two days later, yet another city was contacted about “a full investigation” against it because “the percentage of black police officers and firefighters hired … is significantly lower than would be expected,” as is “the percentage of blacks promoted within the City’s fire department.” 

In February, the Division had entered a consent decree with the City of Dayton, Ohio, in a case where it alleged that “the City’s use of its written police officer examination and heightened minimum requirements for professional firefighter [i.e., “requiring that applicants have EMT-Basic and Firefighter I and II certifications at the time they apply”] result in disparate impact against African Americans….” To be fair, the complaint in this case was filed in September 2008, although the Bush administration was not immune to filing dubious lawsuits. Moreover, also troubling is a February 12 Obama addendum to a Bush administration consent decree addressing police department quotas by the City of Indianapolis; the addendum provides, “Nothing in this Decree prohibits the City from undertaking all lawful efforts to ensure the continued diversity of the [police department] at all ranks.”

In all events, the issue is not whether the Obama administration is worse than the Bush administration; rather, the point is to make sure that the Civil Rights Division’s enforcement policies will conform with a new Supreme Court decision — specifically, that the Division will not insist on disparate treatment in order to avoid dubious concerns about disparate impact (i.e., those not rooted in a “strong basis in evidence”).

The Senate has yet to confirm Thomas Perez as head of the division, BTW. So Republican senators should insist on getting assurances from him and the administration that they will reevaluate the Division’s policies in light of Ricci


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