Cotter v. City of Boston
| Citation | 193 F.Supp.2d 323 |
| Decision Date | 21 March 2002 |
| Docket Number | No. CIV.A.99-11101-WGY.,CIV.A.99-11101-WGY. |
| Parties | Winifred N. COTTER, Vincent J. Difazio, John P. Doris, William J. Dwan, William G. Knecht, Michael Locke, Patrick L. Murphy, and Thomas L. Sexton, Plaintiffs, v. CITY OF BOSTON, Defendant, and Massachusetts Association of Minority Law Enforcement Officers, Dennis A. White, and Harold White, Defendant-Intervenors. |
| Court | U.S. District Court — District of Massachusetts |
Nadine M. Cohen, Michael C. McLaughlin, Boston, MA, for Plaintiffs.
Boston Police Department Office of the Legal Advisor, Rubin & Rudman, Rory J. Fitzpatrick, Irene C. Freidel, Andrew C. Glass, Kirkpatrick & Lockhart LLP, Ginny Sinkel, Office of the Attorney General, Mary Jo Harris, Boston, MA, Robert L. Quinan, Jr., Assistant Attorney General, Government Bureau, Boston, MA, for Defendants.
Rheba Rutkowski, Bingham, Dana & Gould, Scott P. Lweis, Paige Scott Reed, Palmer & Dodge LLP, Boston, MA, for Interested Party.
This is a case of alleged racial discrimination. Such cases come in two types.
The first involves allegations of public or private racial discrimination which are denied. While such cases give rise to complex problems of proof, the duty of a court once racial discrimination is established is clear and undoubted—to extirpate racial discrimination root and branch, adequately compensate its victims, and creatively invoke its equitable powers to provide equal opportunity to all citizens free of the blight of racial animus.
The second involves state-sponsored racial discrimination. Since, in certain narrowly-tailored circumstances, such state sponsored discrimination is at present undoubtedly lawful, such cases necessarily involve an exploration of whether justifying circumstances exist. This is such a case.
At the outset, therefore, it is appropriate to acknowledge two extraordinarily difficult aspects of any such case which sadly but inevitably make its resolution suspect and less acceptable to our society as a whole than is usually the case with a carefully-considered judicial opinion.
The first is a problem of definition. As a society we acknowledge and bewail our deeply troubled racial history—the horrors of slavery, the tawdry (and frequently violent) legacy of Jim Crow, the subtle (and not so subtle) resistance to conferring genuine equal rights and equal opportunities upon all Americans. When we attack racial discrimination head on, problems of racial definition rarely arise because they are subsumed in the proof that a particular person or group has, in fact, been the victim of discrimination on the basis of racial animus.
When the state itself seeks to discriminate on the basis of "racial factors," however, and claims such discrimination is legally justified, then the problem of definition becomes acute because all Americans are vitally interested in precisely the basis upon which the state determines to confer governmental benefits such as jobs and promotions. Unfortunately, one searches the authoritative decisions in vain for any adequate definition. The decisions rather casually use terms such as "white," "black," "African American," "Hispanic," "Native American" and the like, as though we all agreed on their meaning in the specific case. Of course, we do not. See generally, e.g., Rachel F. Moran, The Mixed Promise of Multiculturalism, 17 Harv. BlackLetter L.J. 47 (2001) (); Naomi Zack, American Mixed Race: The U.S. 2000 Census and Related Issues, 17 Harv. BlackLetter L.J. 33 (2001) (). There is more wisdom in Tiger Woods calling himself "Cablinasian," see, e.g., Michael A. Fletcher, Woods Puts Personal Focus on Mixed-Race Identity, Wash. Post, Apr. 23, 1997, at A1, than in all the gross racial classifications found in the governing decisions and the executive actions implementing race-based public policies.
Nor is the lack of definition surprising. If we go beyond self-definition and seek to confer some genuine meaning upon race-based identifiers, we rapidly find ourselves slipping into the most abhorrent racial stereotyping and classification—the very conduct directly forbidden by our Constitution and laws. We simply cannot condemn the notorious black codes, see, e.g., Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877, at 199-201 (1988) (); Theodore Brantner Wilson, The Black Codes and the South 66-70, 72-75, 78-80 (1965) (same), and Nazi eugenics, see, e.g., 4 Office of U.S. Chief of Counsel for Prosecution of Axis Criminality, Nazi Conspiracy & Aggression 8-9 (1946) (Nazi citizenship law defining who is and who is not a Jew in order to disqualify Jews from German citizenship), quoted in part in Fullilove v. Klutznick, 448 U.S. 448, 534 n. 5, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980) (Stevens, J., dissenting), while at the same time looking behind self-identification. The very idea of imposing some lexicon of United States government racial definitions is revolting.
Here the parties neatly sidestep the issue. This case involves a certain police promotional examination. Those who took the exam were asked to assign themselves to one of a number of pre-fixed racial identifiers. Not everyone did so. Those who did not were nevertheless consigned to a pre-fixed racial classification from the records of the Boston Police Department. It is unclear whether these records are the result of self-classification or observations by someone within the Department.1 As no party here challenges or seeks to examine these racial classifications, the Court adopts them, pointing out here that they are in the main based on individual self-identification, while a minority of exam takers were somehow assigned a pre-fixed racial classification by the Boston Police Department.
Second, the most difficult aspect of this case is the basic premise upon which the Court is required to approach it. Simply stated, the premise is that, as we ultimately seek a colorblind society under our Constitution, it is necessary in certain circumstances to discriminate along racial lines to move toward that society. See, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 407, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) () ("In order to get beyond racism, we must first take account of race."). So imbedded is this premise in our constitutional jurisprudence that it is not for this Court to question it. Still, as discrimination necessarily begets discrimination, as racial discrimination is perhaps our society's most tragically divisive fault line, and as "[o]ur government is the potent, the omnipresent teacher" that "teaches the whole people by its example," Olmstead v. United States, 277 U.S. 438, 468, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting), one cannot help but recall the reflexive statement of the field artillery officer in Vietnam: "We had to destroy the village to save it."
Winifred N. Cotter, Vincent J. DiFazio, John P. Doris, William J. Dwan, William G. Knecht, Michael Locke, Patrick L. Murphy, and Thomas L. Sexton (collectively the "Plaintiffs"), all members of the Boston Police Department (the "Department"), brought this section 1983 action against the City of Boston (the "City") and James J. Hartnett, Jr. ("Hartnett"), in his official capacity as Personnel Administrator of the Commonwealth of Massachusetts Human Resources Division (the "Division"). The Plaintiffs allege that the City and Hartnett unlawfully discriminated against them in promoting to the rank of sergeant three black officers (the "Black Officers") who scored 84 on a 1996 civil service exam (the "1996 exam"), while declining to promote the Plaintiffs, who also scored 84. The Plaintiffs claim that the City and Hartnett violated the Fifth and Fourteenth Amendments to the Constitution.2 The Massachusetts Association of Minority Law Enforcement Officers ("MAMLEO"), along with two of the Black Officers, Dennis A. White and Harold White, entered the lawsuit as defendant-intervenors after getting permission from the First Circuit, Cotter v. Mass. Ass'n of Minority Law Enforcement Officers, 219 F.3d 31 (1st Cir.2000), while Hartnett exited the lawsuit by settling with the Plaintiffs.
All of the parties remaining have filed cross-motions for summary judgment. The City acknowledges that it considered race in making its promotion decisions, but responds that it is nonetheless entitled to summary judgment for two reasons. First, the City contends that the Plaintiffs lack standing to complain of the City's race-conscious decision because the City would not have promoted the Plaintiffs even if the City had made its promotion decisions without regard to race. Second, the City argues that even if the Plaintiffs have standing, the City's actions were narrowly tailored to further three compelling government interests: advancing the operational needs of the City by ensuring a diverse police force that represents the communities it serves, remedying past discrimination perpetrated by the Department against minorities, and avoiding a lawsuit from MAMLEO or disgruntled minority officers.
MAMLEO's motion for summary judgment focuses on the past discrimination of the Department, and on the disparate impact the 1996 exam had on minority officers vis-a-vis white officers....
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