Wittmer v. Peters

Decision Date02 July 1996
Docket Number95-4034,Nos. 95-3729,s. 95-3729
Citation87 F.3d 916
Parties71 Fair Empl.Prac.Cas. (BNA) 312, 68 Empl. Prac. Dec. P 44,119, 65 USLW 2038 Earl WITTMER, Earl Craig Cox, and James Jeffers, Plaintiffs-Appellants, v. Howard A. PETERS, III, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Mary L. Leahy (argued), Cheryl R. Jansen, Springfield, IL, for Plaintiffs-Appellants.

Jeffrey D. Colman, Edward J. Lewis, II (argued), Melissa S. Widen, Jenner & Block, Chicago, IL, for Defendants-Appellees.

Before POSNER, Chief Judge, and ESCHBACH and EVANS, Circuit Judges.

POSNER, Chief Judge.

A number of states, including Illinois, have been experimenting in recent years with "boot camps" (or "shock incarceration," as it is sometimes called) for young criminals, in lieu of conventional prisons. See 730 ILCS 5/5-8-1.1 ("impact incarceration"); Correctional Boot Camps: A Tough Intermediate Sanction (Doris L. MacKenzie & Eugene E. Hebert eds., U.S. Dept. of Justice, Feb. 1996); Steven P. Karr & Robert J. Jones, "The Development and Implementation of Illinois' Impact Incarceration Program," in id. at 69. The idea is to give the inmates an experience similar to that of old-fashioned military basic training, in which harsh regimentation, including drill-sergeant abuse by correctional officers, is used to break down and remold the character of the trainee. This appeal raises the question whether the warden of a boot camp can ever take race into account in staffing it.

Illinois opened a boot camp in Greene County in 1993. It is a minimum security facility for nonviolent male criminals who are between 17 and 35 years of age, have no more than one previous felony, and are serving a prison sentence of no more than 8 years. If they complete a 120 to 180-day stint in the camp their sentence is reduced to time served. The camp holds 200 inmates, of whom, at the end of 1993, 68 percent were black. The security staff consists of 48 correctional officers, of whom only 2 were black when the camp opened and during the period relevant to this suit, plus 3 captains all of whom were white and 10 lieutenants of whom 2 (a man and a woman) were black. We do not know the current racial composition of the staff.

The plaintiffs are three white correctional officers who applied unsuccessfully for lieutenants' positions. They claim that the black man who was made a lieutenant was less qualified than they and received the appointment only because of his race. He ranked forty-second in the test given to applicants while the plaintiffs ranked third, sixth, and eighth. The defendants, officials of the Illinois Department of Corrections, do not deny that race was a factor in the appointment of the black but they submitted, in opposition to the plaintiffs' motion for summary judgment, reports by expert witnesses attesting to the penological necessity for the appointment. The judge thought little of these reports, though not because they were unsworn, hence not affidavits, hence not, strictly speaking, admissible to support or oppose summary judgment. Fed.R.Civ.P. 56(e); Fowle v. C & C Cola, 868 F.2d 59, 67 (3d Cir.1989). Both sides presented their expert evidence in this form, and, unlike the situation in Fowle, neither side objected. Rather, the judge held that the reports did not satisfy the defendants' stringent burden of justifying racial discrimination, and he therefore granted summary judgment for the plaintiffs on liability. But he rejected the plaintiffs' claim for damages, on the ground that the defendants had qualified immunity; and he denied the plaintiffs' request for injunctive relief on the ground that they had not established a causal relation between the appointment of the black and the rejection of their own applications. So he granted no relief to the plaintiffs, and he also refused to award attorneys' fees to them. Their victory on the constitutional issue turned out to be entirely Pyrrhic, and they appeal.

The defendants defend the grounds on which the district judge rejected the relief sought by the plaintiffs, but they also argue that the selection of a black applicant for the lieutenant's position did not, in the circumstances of the case, violate the Constitution. We think this is right, and so need not discuss any other issue. For future reference, however, we point out that the proper form of injunctive relief in this case is not, as the plaintiffs argue, to order the persons discriminated against appointed to the positions that they had applied for, unless they prove they would have been appointed had it not been for the discrimination. With the three plaintiffs all competing for a single position, an order that they all be appointed to it would be absurd. What they lost was merely a chance, and the proper injunctive remedy (the proper damages remedy we discussed in Doll v. Brown, 75 F.3d 1200, 1205-07 (7th Cir.1996)) is to restore the chance by enjoining the discriminatory practice. Whether to go further by booting out the incumbent and letting the plaintiffs compete for his job, rather than just for future openings, would be a matter within the equitable discretion of the district judge. Id. at 1205. But all this is on the assumption that the plaintiffs' rights were violated. They were not.

The plaintiffs remind us that discrimination in favor of blacks and members of other minority groups, like discrimination against them, is subject to the test of strict scrutiny. Adarand Constructors, Inc. v. Pena, --- U.S. ----, ---- - ----, 115 S.Ct. 2097, 2110-13, 132 L.Ed.2d 158 (1995) (plurality opinion). It used to be thought that "subject to strict scrutiny" was a euphemism for "absolutely forbidden" ("strict in theory, fatal in fact," was the refrain). Some Justices expressly reject this equation. Id. at ----, 115 S.Ct. at 2117 (plurality opinion). Whether they are a majority of the Court is unclear, see id. at ----, 115 S.Ct. at 2101 (plurality opinion); id. at ----, 115 S.Ct. at 2118 (separate opinion), but enough other Justices reject subjecting reverse discrimination--discrimination in favor of a minority--to strict scrutiny to create a majority of the Court in favor of permitting some reverse discrimination. Id. at ----, 115 S.Ct. at 2117 (plurality opinion); id. at ---- - ----, 115 S.Ct. at 2122-23 (dissenting opinion). And a recent dictum associates a majority of the Court with rejection of the proposition that strict scrutiny of racial classifications is inevitably "fatal in fact." United States v. Virginia, --- U.S. ----, ---- n.7, 116 S.Ct. 2264, 2276 n. 7, --- L.Ed.2d ---- (U.S. June 26, 1996). How much reverse discrimination is permitted is unclear. All that is clear is that discrimination in favor of a minority is sometimes permissible to rectify past discrimination against that minority by the discriminating institution. But this shows that reverse discrimination is not illegal per se, although it does not establish that there are any other exceptions besides the one for correcting past discrimination. That question remains open in the Supreme Court. The plaintiffs, as we are about to see, want us to answer it "no."

While we may assume that a practice that is subject to the skeptical, questioning, beady-eyed scrutiny that the law requires when public officials use race to allocate burdens or benefits is not illegal per se, it can survive that intense scrutiny only if the defendants show that they are motivated by a truly powerful and worthy concern and that the racial measure that they have adopted is a plainly apt response to that concern. They must show that they had to do something and had no alternative to what they did. The concern and the response, moreover, must be substantiated and not merely asserted. Wygant v. Jackson Board of Education, 476 U.S. 267, 276-78, 106 S.Ct. 1842, 1848-49, 90 L.Ed.2d 260 (1986) (plurality opinion); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 494-95, 109 S.Ct. 706, 722-23, 102 L.Ed.2d 854 (1989) (plurality opinion); Hayes v. North State Law Enforcement Officers Ass'n, 10 F.3d 207, 213-17 (4th Cir.1993). It is not enough to say that of course there should be some correspondence between the racial composition of a prison's population and the racial composition of the staff; common sense is not enough; common sense undergirded the pernicious discrimination against blacks now universally regretted.

The plaintiffs argue that the only form of racial discrimination that can survive strict scrutiny is discrimination designed to cure the ill effects of past discrimination by the public institution that is asking to be allowed to try this dangerous cure. There are dicta to this effect. City of Richmond v. J.A. Croson Co., supra, 488 U.S. at 493, 109 S.Ct. at 721 (plurality opinion); Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir.1996); Milwaukee County Pavers Ass'n v. Fiedler, 922 F.2d 419, 421-22 (7th Cir.1991). And certainly it is the most frequently mentioned example of a case in which discrimination is permissible. Billish v. City of Chicago, 989 F.2d 890, 893 (7th Cir.1993) (en banc); Triad Associates, Inc. v. Robinson, 10 F.3d 492, 500 n. 10 (7th Cir.1993). But there is a reason that dicta are dicta and not holdings, that is, are not authoritative. A judge would be unreasonable to conclude that no other consideration except a history of discrimination could ever warrant a discriminatory measure unless every other consideration had been presented to and rejected by him. The dicta on which the plaintiffs rely were uttered in cases that did not involve, by judges who had never had cases that involved, the racial composition of a prison's staff. Such cases were not, at least insofar as one can glean from the opinions, present to the minds of the judges when they...

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