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On the day its appellate brief was due to be filed, the U.S. Department of Justice announced that it was dropping its prosecution of a civil rights suit against Southeastern Pennsylvania Transportation Authority alleging that its physical fitness test discriminates against women applicants for police jobs. Although the department had pressed the case for four years under the Clinton administration, arguing that the test effectively excludes women from the SEPTA police force because 93 percent of women applicants can’t pass it, the new leadership appointed by President Bush opted not to fight a second defeat before Senior U.S. District Judge Clarence C. Newcomer, who found that the rigorous test was necessary to ensure public safety. But the appeal will continue because the department’s case was joined with a private suit, Lanning v. SEPTA, whose lawyers have vowed not to give up the fight. The Justice Department’s decision, announced Monday, apparently came after a lengthy internal battle in which, sources say, many lawyers in the department’s Civil Rights Division fought to keep the case. In the end, Assistant Attorney General Ralph F. Boyd Jr. made the decision to withdraw from the case. “We feel it is critical to public safety that police and firefighters be able to run, climb up and down stairs to rescue people quickly under the most trying of circumstances,” said spokesman Dan Nelson. SEPTA’s lawyer, Saul H. Krenzel, said he interpreted the department’s decision as “correcting a wrongheaded policy.” Krenzel said he believes it was no coincidence that the decision to drop the case came after the Sept. 11 terrorist attacks in New York and Washington. “What happened in New York underscores what we have been saying all along,” Krenzel said, adding that the terrorist attacks were a “wake-up call that we all received about this country’s preparedness at many levels.” The private plaintiffs have a new lead lawyer handling the appeal because the team that handled the trial — Lisa M. Rau and Jules Epstein — are no longer available. Rau is running for a seat on the Philadelphia Court of Common Pleas and won in both the Democratic and Republican primaries in May, virtually assuring her victory next month. Soon after, she was appointed by Gov. Tom Ridge to take an immediate seat on the bench. Attorney Michael Churchill of the Public Interest Law Center of Philadelphia took over the appeal for the plaintiffs in June when Epstein learned that he would be tied up for several months with a death penalty case before Senior U.S. District Judge Louis H. Pollak. Churchill has been involved with the case since before it was filed in 1997 because it began while Rau was still a PILCOP staff attorney. In an interview Tuesday, Churchill said he disagreed with Krenzel’s speculation that the terrorist attacks had anything to do with the department’s decision. “This is politics,” Churchill said. “They [the Bush administration] are willing to turn their backs on women despite their pledge to enforce existing civil rights laws.” Churchill said SEPTA’s safety argument is “bogus” since no other police force in the country uses such a rigorous test. And while SEPTA touts its new, higher standards as responsible for a drop in crime, Churchill said the real reason for the crime rate dropping was an increase in the size of the SEPTA force. Churchill said that two of the women who failed the SEPTA test had gone on to become police officers with the Philadelphia Police Department. The lead plaintiff, Catherine Lanning, is with the tactical bike control unit at the University of Pennsylvania and provides backup assistance to SEPTA officers, he said. The Justice Department’s decision angered civil rights and women’s organizations. Terry L. Fromson, managing attorney of the Women’s Law Project, said the department’s “backing out on a commitment to defend equal rights for women in a highly visible case is a serious mistake.” “It send a very clear message that this administration is not going to fight discrimination against women,” Fromson said. In the suit, plaintiffs claim that the test discriminates against women because it requires all applicants for the SEPTA police force to run 1.5 miles in 12 minutes. SEPTA argues that the test is necessary because some stations are several flights of stairs above or below ground level and officers can be required to run three to five blocks between stations. Officers are required to wear 26 pounds of gear, including a bulletproof vest. After a non-jury trial, Judge Newcomer ruled in favor of SEPTA in June 1998, but the 3rd U.S. Circuit Court of Appeals vacated the decision and held that Newcomer had applied the wrong test. Writing for the court, U.S. Circuit Judge Carol Los Mansmann ordered Newcomer to study the case again and decide whether the test measures the “minimum qualifications” necessary to do the job. Newcomer later held additional hearings and issued a second opinion in December that once again upheld SEPTA’s right to use the more rigorous test.

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