United States v. City of Cincinnati
| Decision Date | 15 September 2021 |
| Docket Number | 1:80-cv-369 |
| Parties | United States of America, Plaintiff, v. City of Cincinnati, et al., Defendants. |
| Court | United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio |
ORDER GRANTING PLAINTIFF'S MOTION TO MODIFY THE CONSENT DECREE
This matter is before the Court on the United States' Motion to Modify the Consent Decree (Doc. 193); Defendants the City of Cincinnati's, the Cincinnati Police Department's and the members of the Cincinnati Civil Service Commission's response in opposition (Doc. 194); and the United States' reply (Doc. 197). The Consent Decree at issue contains race-based and sex-based hiring and promotional goals. The United States contends the Consent Decree must be modified by removing these goals, as they allegedly violate the Equal Protection Clause. Defendants oppose modification, asserting the goals pass constitutional muster. For the reasons that follow, the Court GRANTS the United States' Motion.
Initially, the Court notes that neither party disputes the underlying facts. This case involves a 1981 Consent Decree entered into by the City of Cincinnati, the Cincinnati Police Department (“CPD”), members of the Cincinnati Civil Service Commission (collectively, the “City”), Queen City Lodge No. 69, Fraternal Order of Police, and the United States. The Consent Decree resulted from a 1980 complaint filed by the United States alleging the City discriminated against African-American and female applicants in its employment practices for entry-level police hiring and promotions to sergeant. (Doc. 184-1 at PageID 22; Doc. 193 at PageID 55-56.)
The purpose and intent of the Consent Decree is to ensure that African-American and female applicants are not disadvantaged by CPD's employment practices, and that any such disadvantage “which may have resulted from past discrimination is remedied so that equal employment opportunity is provided to all.” (Doc. 184-1 at PageID 24.) Pursuant to this purpose, the Consent Decree contains a long-term goal of having African Americans and women in all sworn ranks of CPD, subject to the availability of qualified applicants, reach the proportions of qualified African Americans and women in the labor force of the City of Cincinnati.[1] (Id.)
The Consent Decree also provides for a series of “interim measure” numerical hiring and promotional goals regarding African Americans and women. In particular, the Consent Decree established the following numerical goals to be met on an annual basis: (1) vacancies for entry-level sworn police officer positions are to be filled with qualified applicants in the proportion of, at a minimum, 34% African American and 23% female;[2] and (2) approximately 25% of vacancies for the police sergeant position are to be filled with qualified African-American and female candidates.[3] (Doc. 184-1 at PageID 24-25, 28-30.) These two goals are the focus of the United States' instant motion.
Both the United States and the City recognize that the Consent Decree has positively affected the composition of CPD. In July 1980, 9.9% of CPD's sworn workforce was African American and 3.4% was female. (Doc. 193 at PageID 57; Doc. 194 at PageID 78.) As of January 2021, CPD's sworn workforce was approximately 28.3% African American and 22.9% female, the police officer position was 31.3% African American and 23.9% female, and the rank of sergeant was 28.4% African American and 15.3% female.[4] (Doc. 194-1 at PageID 175; Doc. 197-1 at PageID 208-09.)
The United States previously approached the City regarding possible modification or dissolution of the Consent Decree (Doc. 193 at PageID 58; Doc. 194 at PageID 71.) The parties engaged in several discussions regarding a potential mutually agreeable modification, and although the City “strongly concurs with the United States' position that CPD's practices, which are based on the Consent Decree, should be modernized, ” the parties failed to reach an agreement. (Doc. 194 at PageID 71; Doc. 193 at PageID 58.)
On February 16, 2021, the United States moved to reopen the instant case in light of related litigation in Kohler v. City of Cincinnati, et al., 1:20-cv-00889 (S.D. Ohio). (Doc. 184.)
The City did not oppose this request, but rather welcomed this Court's assistance as “the City works . . . with the United States to bring the terms of the Decree into this century.” (Doc. 190 at PageID 47-48.) The Court granted the United States' motion. (Doc. 191.) Thereafter, the United States filed this instant motion seeking removal of the numerical hiring and promotional goals contained in paragraphs 2(A)-2(B), 3(B)(4), 3(C)(4), and 5[5] of the Consent Decree (Doc. 193), and the City filed a response in opposition (Doc. 194). This matter is now ripe for this Court's review.
A consent decree is a “strange hybrid in the law” in that it is “a contract that has been negotiated by the parties” while simultaneously being “a court order which can be changed by a court if circumstances warrant.” Brown v. Neeb, 644 F.2d 551, 557 (6th Cir. 1981). A district court Cleveland Firefighters for Fair Hiring Practices v. City of Cleveland, 669 F.3d 737, 741 (6th Cir. 2012). Thus, a consent decree is properly described as “a settlement agreement subject to continued judicial policing.” Lorain NAACP v. Lorain Bd. of Edu., 979 F.2d 1141, 1148 (6th Cir. 1992); see also Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1018 (6th Cir. 1994) ().
The Supreme Court has established a “flexible” two-part standard for modification of a consent decree. Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 383, 393 (1992). First, the party seeking modification bears the burden of establishing that a “significant change in facts or law warrants revision of the decree.” Id. at 393. Changes in statutory or decisional law constitute a sufficient basis for modification if the change “make[s] legal what the decree was designed to prevent” or if an obligation pursuant to the consent decree “has become impermissible under federal law.” Id. at 388; see also United States v. Wayne Cnty., Mich., 369 F.3d 508, 515 (6th Cir. 2004). Once this initial burden is satisfied, the district court is to “consider whether the proposed modification is suitably tailored to the changed circumstance.” Rufo, 502 U.S. at 393; see also Northridge Church v. Charter Twp. of Plymouth, 647 F.3d 606, 614 (6th Cir. 2011).
The Sixth Circuit has explained why Rufo's “less stringent modification standard” is justified for modification of “consent decrees entered in settlement of so-called ‘institutional reform' litigation involving and affecting the operation of governmental institutions or organizations.” Lorain NAACP, 979 F.2d at 1149. First, institutional consent decrees “affect more than the rights of the immediate litigants.” Id. (quoting Heath v. De Courcy, 888 F.2d 1105, 1109 (6th Cir. 1989)). Second, broad judicial discretion is desirable “so that the agreed upon solution to the problem giving rise to the litigation may be fine-tuned to accomplish its goal.” Id. (quoting Heath, 888 F.2d at 1109). And finally, a court needs the ability to modify institutional consent decrees because “such decrees often remain in place for extended periods of time, [and therefore] the likelihood of significant changes occurring during the lifetime of the decree is increased.” Id. (quoting Rufo, 502 U.S. at 380).
A. Modification of the Consent Decree[6]
The Court now will turn to the issue of whether the Court must modify the Consent Decree to remove the race-based and sex-based goals. The Court will first consider the race-based goals, and then the sex-based goals. By way of background, the Consent Decree's race-based and sex-based hiring and promotional goals have been in effect for over 40 years. Throughout this time, CPD has witnessed an increase in both African-American and female police officers and sergeants. Although at one time the hiring and promotional goals passed constitutional muster, that time has passed. As explained further below, the City has failed to carry its burden establishing a compelling interest to justify continued use of the race-based goals or an important governmental interest to justify continued use of the sex-based goals. Pursuant to the reasons addressed below, the Court finds the Consent Decree must be modified by removing these goals.[7]
Turning first to the issue of the race-based goals, the United States has met its initial burden under Rufo to show modification is warranted. The parties do not dispute that the legal landscape governing race-based affirmative action has been significantly altered since the time the Consent Decree was initially entered. The Consent Decree was approved in 1981, at which time “[t]he Supreme Court had just begun to address the constitutionality of affirmative action.” Ensley Branch, NAACP v. Seibels, 31 F.3d 1548, 1564 (11th Cir. 1994) () (citing cases). Subsequently, in 1989 the Supreme Court held in Richmond v. J.A. Croson Co. that all race-based action by state and local governments is subject to strict scrutiny irrespective of the race of those burdened or benefited by the action. ...
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