The ever-vigilant, and increasingly indispensable, Howard Bashman links to a Second Circuit case, Patrolmen’s Benevolent Association v. The City of New York, that casts a strange but revealing light on the often unintended (even if predictable) consequences of “taking race into account.”
Plaintiffs, all of whom are black or black-Hispanic, sued the City for transferring them into New York City’s 70th Precinct on the basis of their race in the wake of the beating and torture of Abner Louima, a black man, by police officers in the 70th Precinct in August 1997. They asserted violations of Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
They argued, that is, that transferring them because of their race violated their civil rights.
At the trial, defendants contended that the transfers, admittedly race-based, were necessary to prevent a delicate situation from getting out of control. [Police] Commissioner Safir stated that there was a “great potential for violence” in the 70th Precinct following the Louima incident and “we needed to act quickly and as quickly as possible to put people in the community who would have a stake in the community.” (A. 468.) Safir testified that at the meeting [with community activists and city councilperson] held at police headquarters several days after the incident …, “one of the themes that continually came out . . . was the theme that they needed more African-American officers . . . and that if we wanted better police community relations then we needed to assign more African- American police officers to their community.” (A. 475.)
The plaintiff officers won at trial, and the Second Circuit upheld that judgment, applying the “strict scrutiny” test and holding that the city had not established a “compelling state interest” in assigning officers on the basis of their race.
This case is reminiscent of one I referred to — actually, I quoted Rep. Charles Canady (R, Fl) referring to — in this post several days ago. Here’s what he said, again:
There are some people that contend that you have to take race into account in undercover police work. The theory is that you need black people to serve as undercover agents, and that’s the only effective way that can be carried out. Well, you know, it’s very interesting that the Drug Enforcement Administration actually had a policy of doing that. And the black drug enforcement agent sued the Drug Enforcement Agency over that very policy because it was discriminating against them. It was putting them in contexts where they were at greater risk, and it was limiting their opportunities for advancement. So what may start out as making some sense from one perspective can end up harming the very people that supposedly will benefit.
Whatever one thinks of the legitimacy of racially conscious hiring, assignment, promotion, etc., in the current case it’s hard to avoid some sympathy for the City of New York. Community activists and leaders demanded an infusion of black officers into the 70th precinct. If the City had said, “Sorry, we can’t take race into account in assigning our officers,” I think it safe to assume that the activists and leaders would have accused the city and the police of racist behavior. The DEA agents notwithstanding, interest groups who claim to speak for civil rights have been advocating (when they haven’t been demanding) racial consciousness for a generation now, and denouncing color-blindness as thinly-veiled racism.
And then there’s the equally elusive, slippery concept of “diversity,” which is usually employed to justify racially conscious hiring and admissions decisions. In this case, however, it was the black officers who claimed that their civil right to race-blind assignment had been violated; they rejected the racial identity assumptions on which diversity arguments rest.
Plaintiffs’ expert Dr. Stephen Leinin, a sociologist and former New York City police officer, testified that black officers were not necessarily better at policing black communities than white officers, and that cultural similarities — such as language skills — were more important than race.
The argument that race is not a valid proxy for any relevant employment or admissions criteria is something we haven’t heard from civil rights plaintiffs since the early, color-blind days of the civil rights movement, and it is most welcome.
It would be nice if the NAACP and other civil rights groups returned to their roots and took it to heart.
