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An affirmative action plan by the Chicago Police Department that admittedly promoted African-American and Hispanic officers over white officers nearly a decade ago was constitutional because it honestly was designed to combat past discriminatory practices at the department, a federal court ruled on June 10. In recent years, Illinois courts have warned that such affirmative action plans would pass constitutional muster only if a history of discrimination against minorities could be shown and the remedy adopted had been narrowly tailored to meet that shortcoming. And that’s just what a review of this particular trial record revealed upon closer examination, concluded Judge William Bauer who wrote the opinion on behalf of a unanimous three-judge panel for the 7th U.S. Circuit Court of Appeals. In particular, Bauer noted, “The statistical proof revealed that past discrimination significantly lowered the number of African-Americans and Hispanics that were promoted to detective through the years.” Majeske v. City of Chicago, No. 99-1411, 99-3639. In so ruling, the appellate panel upheld a U.S. District court’s controversial decision to dismiss the 1989 reverse discrimination lawsuit brought by 83 disillusioned white officers against the city’s police force. Few employment discrimination cases in the public sector have drawn as much media attention during the 1990s or lasted as long in the court system. “This has been litigated since the late 1980s,” noted Jennifer Hoyle, a spokeswoman for the city’s law department. “We have spent an enormous amount of time and resources showing that the promotions in question were done because the city was trying to correct past discrimination in the police department.” Kimberly Sutherland, a sole practitioner who represented the officers, said that she would be filing for a rehearing before the full appeals court. Included in the testimony given during the 1998 jury trial heard before U.S. District Judge George W. Lindberg was a study of the department’s racial composition, hiring and promotion practices. According to Bauer, that review showed that if there had been no racial discrimination there should have been, in 1989, 221 African-American detectives, when there were only 57, and there should have been 43 Hispanic detectives when there were only 9. The white officers’ lawsuit stemmed from a promotion process that undeniably had lower eligible written test scores for African-American and Hispanic applicants than for white applicants. Of the 64 officers who were promoted, 18 African-Americans and four Hispanics were promoted out of rank from the eligibility list. The white officers sued claiming their right to equal protection guaranteed under the Fourteenth Amendment was violated by being passed over. But, Bauer noted, the jurors seemed to have little doubt about the existence of past discrimination in promoting African-Americans and Hispanics to detective within the city’s police force; or that the remedy finally chosen was carefully tailored to right that wrong — not create a reverse discrimination scenario. Indeed, following testimony given at trial, the jury answered 56 special interrogatories, many of them in the city’s favor, that African-American and Hispanic officers were discriminated against in the department in hiring, promotions and job assignments, Bauer wrote. The court did not agree with the officers’ argument, which held that the jury rejected that discrimination was behind the low number of African-American and Hispanic detectives by answering “no” to two of the interrogatories. “The most compelling reason to reject this argument is that, in other questions, the jury specifically said that past discrimination had reduced the number of African-American and Hispanic detectives at the CPD,” the opinion said. In addition to upholding the lower court ruling on the constitutionality of the affirmative action program, the appeals court upheld a district court ruling awarding the city $38,153 in legal fees to be paid by the plaintiffs.

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