SPEAKERS CONTENTS INSERTS
Page 1 TOP OF DOC
67–163
2000
CIVIL RIGHTS DIVISION OF THE U.S. DEPARTMENT OF JUSTICE
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
JULY 12, 2000
Serial No. 115
Printed for the use of the Committee on the Judiciary
Page 2 PREV PAGE TOP OF DOC
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
Page 3 PREV PAGE TOP OF DOC
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
ASA HUTCHINSON, Arkansas
Page 4 PREV PAGE TOP OF DOC
SPENCER BACHUS, Alabama
BOB GOODLATTE, Virginia
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina
MELVIN L. WATT, North Carolina
MAXINE WATERS, California
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
CATHLEEN CLEAVER, Chief Counsel
BRADLEY S. CLANTON, Counsel
JONATHAN A. VOGEL, Counsel
PAUL B. TAYLOR, Counsel
C O N T E N T S
HEARING DATE
July 12, 2000
OPENING STATEMENT
Canady, Hon. Charles T., a Representative in Congress From the State of Florida, and chairman, Subcommittee on the Constitution
Page 5 PREV PAGE TOP OF DOC
WITNESSES
Lee, Hon. Bill Lann, Acting Assistant Attorney General, Civil Rights Division, U.S. Department of Justice
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Lee, Hon. Bill Lann, Acting Assistant Attorney General, Civil Rights Division, U.S. Department of Justice: Prepared statement
APPENDIX
Material submitted for the record
CIVIL RIGHTS DIVISION OF THE U.S. DEPARTMENT OF JUSTICE
WEDNESDAY, JULY 12, 2000
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to call, at 10 a.m., in Room 2237 Rayburn House Office Building, Hon. Charles Canady [chairman of the subcommittee] presiding.
Page 6 PREV PAGE TOP OF DOC
Present: Representatives Charles T. Canady, Henry J. Hyde, Asa Hutchinson, Bob Barr, Melvin L. Watt, Barney Frank, and John Conyers, Jr. Also visiting was Robert C. Scott.
Staff present: Cathleen Cleaver, chief counsel; Bradley S. Clanton, counsel; Jonathan A. Vogel, counsel; Susana Gutierrez, clerk; Sharee Freeman, counsel, Committee on the Judiciary; and Anthony Foxx, minority counsel.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY. The subcommittee will be in order.
Today, the subcommittee convenes to conduct an oversight hearing with respect to the Civil Rights Division at the United States Department of Justice. All the members of the subcommittee are aware of the important work carried out by the Civil Rights Division. The division has the preeminent role in enforcing the civil rights laws of the United States.
Responsibilities of the Civil Rights Division affect all Americans and are crucial to our national efforts to ensure equal justice for men, women and children of all races. The division's responsibilities are aimed at fulfilling the simple vision articulated by President Kennedy nearly 4 decades ago when he said, every American ought to have the right to be treated as he would wish to be treated, as one would wish his children to be treated.
Today, we are pleased to have with us the acting Assistant Attorney General for the Civil Rights Division, Mr. Bill Lann Lee. I will give him a formal introduction in a moment after other members have made their opening statements. The format for today's hearing will be a little different than some of our past oversight hearings where we have had panels of witnesses commenting on the work of the division. Today, we are simply going to hear from Mr. Lee, and Mr. Lee will have an opportunity to answer questions from members of the subcommittee.
Page 7 PREV PAGE TOP OF DOC
With that, I will recognize Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman.
Mr. Chairman, I want to try to be as civil as I can be today, and I want to choose my words very carefully so as not to create a problem, but as I settled in last night in front of the All Star game and started to read the staff counsel's memorandum I would have to say that my initial reaction was one of grave disappointment, and then I progressed from disappointment to an emotion of just plain feeling hurt, and then I progressed to a point of abhorrence and disappointment and outrage that we are about to undertake—this committee is about to undertake, oversight of the Department of Justice. And the primary focus of the staff memorandum, which I hope that the chairman of this committee will see fit to repudiate, is an indictment of the Department of Justice for doing its job, for undertaking the responsibilities that it has under the law.
The staff counsel's memorandum seemed to me to be an overt endorsement of a return to the era of segregation and separate but equal. The staff counsel's memorandum seemed to me to be more consumed with indicting the Department of Justice for pursuing a cause of action against the Adam's Mark Hotel chain, which entered into a consent judgment for in excess of $8 million than an indictment of the kind of allegations that were made against the Adam's Mark Hotel chain and its owner corporation.
This, Mr. Chairman, was 2 days after the Republican nominee for the President of the United States went in front of the NAACP in Baltimore and professed that one of the major cornerstones of his presidency would be the enforcement of the civil rights laws of this country.
Page 8 PREV PAGE TOP OF DOC
While he was out making politics and professing compassion and professing commitment to the laws, we are in here in the bowels of the House of Representatives, condemning the United States Department of Justice for doing its job.
So, Mr. Chairman, I can't join you today in your oversight function of the Department of Justice and its Civil Rights Division because I have to spend all my time oversighting the overseers here, those who on this committee would use the resources of this committee in a sinister effort to undermine the enforcement of the civil rights laws of this country.
Mr. CANADY. The gentleman's time has expired. By unanimous consent, the gentleman will have two additional minutes.
Mr. BARR. I object.
Mr. WATT. I yield back, Mr. Chairman. I thank the—I thank the gentleman for objecting.
Mr. HUTCHINSON. Mr. Chairman.
Mr. CANADY. Yes.
Mr. HUTCHINSON. I would be happy to give 2 minutes of my time to the gentleman.
Page 9 PREV PAGE TOP OF DOC
Mr. CANADY. I yield to the gentleman from Arkansas, who yields to the gentleman from North Carolina.
Mr. WATT. Mr. Chairman, I reject the—I appreciate the gentleman's sentiment, but that's exactly how this hearing is structured today, just the tone of the general counsel's—the staff counsel's memorandum; and I think it is the tone of the chairman, if he endorses the staff counsel's memorandum.
And it is obviously the tone of Mr. Barr, and if that's where we are, we need to know it in this country. And I respect Mr. Barr at least for being forthright about objecting, and I yield back, but understand that those are the rules under which we are playing today.
Mr. HUTCHINSON. May I reclaim my time?
Mr. CANADY. Yes. The gentleman from Arkansas is recognized.
Mr. HUTCHINSON. Perhaps I am going a little out of order, and I apologize, but it is appropriate to go ahead and make a few comments at this time.
I was happy to yield to the gentleman from North Carolina. I will be happy to yield again if he would like to make additional comments.
I think it is important not to paint these issues in broad strokes. There is probably a difference of opinion on this panel, and I hope that the gentleman from North Carolina will not assume that everyone's attitude is necessarily the same, and I think we can have a legitimate discussion in this country.
Page 10 PREV PAGE TOP OF DOC
I do want to welcome Mr. Lee, again, to the committee. I am looking forward to his remarks. I noticed the gentleman from North Carolina suggested that the approach of the majority is to condemn the Department of Justice for doing its job. That's certainly not my approach to this hearing. I think the oversight responsibilities are very important.
I consider it somewhat of a team effort, Mr. Lee, that you all have to make some very tough decisions in the Department. Sometimes mistakes are going to be made. It is a big department and if mistakes, in fact, are made, I think it is appropriate for you, as the head of that division, to ask questions about it; but I think it is also appropriate for this Congress to ask some questions about it as well—not in a condemning approach, but to what ascertain we can learn from this, and how we can improve the system if mistakes were, in fact, made? And, you know, the Adam's Mark case was settled. I think in one sense that if discriminatory practices were conducted by Adam's Mark and a settlement was reached, then, congratulations, a hat ought to be tipped to the Department for eliminating that aspect of discrimination.
I think the questions could come as to, whenever you have an institution the size of the Department of Justice, is there any intimidating factor that would lead to a settlement when the facts are not there? I don't know that that is the case, but those are, in fact, legitimate questions.
In reference to the case in which the Ninth Circuit Court of Appeals affirmed a $1.7 million attorneys fee back against the Department, I have filed lawsuits and have been kicked out of court before, and you know, it doesn't necessarily mean it was wrong to file it, but certainly there are some legitimate questions that should be asked. I want to say that's my approach to this. And after we hear Mr. Lee's testimony, we might want to give some congratulations to you on some of your work, but I do think it is appropriate for this committee to ask questions that are of concern.
Page 11 PREV PAGE TOP OF DOC
I am interested, very much interested, in charter schools, and I want to ask some questions about the attitude of the Department in reference to the charter school movement that this President supports in our public schools.
So I hope this is a fair-minded hearing along those lines. I am looking forward to the testimony.
I thank the chairman. I yield back.
Mr. CANADY. I thank the gentleman from Arkansas. Are there other members wishing to make an opening statement?
Mr. CONYERS. I would like to be recognized.
Mr. CANADY. The gentleman from Michigan is recognized for 5 minutes.
Mr. CONYERS. Thank you very much.
Ladies and gentlemen, the Judiciary Committee has become, in some ways, the graveyard of civil rights legislation. So this hearing is very important today. To have an acting head of the Civil Rights Division, who has not yet been confirmed, is a key indicator of the apparent hostility that has arisen around this very important office.
Page 12 PREV PAGE TOP OF DOC
Now, to me, the whole question of how America moves in terms of race relations turns upon how much progress we make, particularly at the Federal level. The Federal civil rights laws, the Voter Rights Act, the many other ancillary statutes that have been brought forward, the considerations of racial profiling, the hate crimes legislation, the many other acts, including the Law Enforcement Integrity Act, are all measures that would help move America forward.
The question is, how can we help do this and whether this committee has become the graveyard rather than the one that is facilitating the improvements that need to be made in the Department of Justice?
To read a statement authored in the year 2000 by the Judiciary Committee staff and not repudiate it or take it out instantly when it is seen, ''today an integrated school district is not necessarily the best solution to the problem of providing all persons an equal educational opportunity,'' that is literally an unbelievable declaration of moving in reverse.
So I want to remind everyone here that we as a Nation are still moving toward a settlement of the problem of race in America that has been with us for several centuries, and because it is being reported more, there is an increase in hate-based terror, lynching and atrocities that were formerly considered nightmares from the past that have now burst into our daily consciousness. Even today, I come to you with a case arising out of Louisiana in which a person of color was handcuffed, apparently lynched, beaten and damaged physically to death in many other ways.
In Kokomo, Mississippi, we will be meeting with the parents of a young man found hanging from a tree under circumstances reminiscent of the lynching at Emmett Till; and in West Virginia recently, a black man was beaten to death and his lifeless body was repeatedly run over by a car, reminding us of the James Byrd instance in Texas of 1998. At the same time, we hear of historical crime reductions. Our cities are still plagued by incidents of police misconduct, far too many, and far too often we hear of incidents of excessive force or racial profiling, often with deadly consequences.
Page 13 PREV PAGE TOP OF DOC
In Michigan, in Dearborn, tens of thousands turned out to protest the Fairlane Mall death of an African American male at the hands of private law enforcement.
So in all of these areas and many more, the Civil Rights Division of the Justice Department plays the critical role of ensuring the communities around the Nation that they can rely on fair administration.
May I have an additional 2 minutes, Mr. Chairman?
Mr. CANADY. Without objection, the gentleman will have an additional 2 minutes.
Mr. CONYERS. Thank you.
I, for one, am interested in seeing how we can help facilitate the investigation and resolution of this class of cases that seem to be coming forward with greater and greater frequency. The lesson here is not in each case, but the range of policies that are pursued to further the goal of equality.
So I want us to consider the appropriations process and that even though we have expanded the division's jurisdiction to pattern and practice enforcement authority, and the church-burning statute, we need to continue to examine the resource question.
We have hate-crime investigations that need to be considered in terms of how much resource they require. Has the division encountered jurisdictional issues in aiding local law enforcement? In the area of police violence and police misconduct, I understand that the division is actively pursuing a number of investigations. So we need to know what the magnitude of the law enforcement misconduct problem is.
Page 14 PREV PAGE TOP OF DOC
Finally, on charter schools, which have been criticized for having the potential to rob marginal school districts of financial resources, how has this been taken into account when analyzing their impact in the school desegregation context?
So I say to members of the committee that these questions, all of which fall directly within this important division, need the sensitivity that is required to move us into this new generation. I urge the members to carefully consider their oversight jurisdiction and their comments here this morning.
I thank the subcommittee chairman.
Mr. CANADY. The gentleman's additional time has expired.
Are there other members wishing to make a statement?
Mr. HYDE. Mr. Chairman, very briefly.
Mr. CANADY. Mr. Hyde is recognized for 5 minutes.
Mr. HYDE. I just want to say that I think these are important hearings and the subject matter is critical, sensitive, and I think it would be most helpful if we could proceed assuming the goodwill and the sincerity of all the members of this subcommittee and the full committee.
Page 15 PREV PAGE TOP OF DOC
I have been on the Judiciary Committee for—this is my 26th year, and I don't know anybody who ever served in either party, who agreed or disagreed with me, who was in bad faith or insincere, much less sinister. It is very easy to assign a moral superiority to one's own positions on issues like racism or abortion or many of these very sensitive issues that we have to grapple with, but I think we can make progress if we assume sincerity and honor and goodwill on the part of people rather than questioning their motives, which I think is an obstacle to reason.
Thank you, Mr. Chairman.
Mr. CANADY. Thank you.
We will now turn to our witness for today's hearing, the Honorable Bill Lann Lee, who is the acting Assistant Attorney General for the Civil Rights Division at the United States Department of Justice. Mr. Lee was appointed to his position on December 15th of 1997. Mr. Lee, of course, has been with the subcommittee on previous occasions.
Mr. Lee, we are glad to have you back with us again today. We will not enforce the 5-minute rule. I will ask the staff to put the light on so that it will be red at 10 minutes. If you need longer, the subcommittee will certainly be flexible. We appreciate your being with us here today, and we look forward to your testimony.
Mr. Lee.
STATEMENT OF HON. BILL LANN LEE, ACTING ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE
Page 16 PREV PAGE TOP OF DOC
Mr. LEE. Mr. Chairman, members of the committee, Mr. Hyde, Mr. Conyers, thank you for the opportunity to appear before you today. It is an honor to appear again before the subcommittee. I ask that my written statement be made a part of the hearing record.
Mr. CANADY. Without objection, it will be.
Mr. LEE. Since the earliest colonists arrived on this continent, we have grappled with the fundamental dilemma of building a fair and just society that incorporates individuals of different races. For far too long, we came up short. Because our Founding Fathers could not eliminate the tragedy of slavery, we fought a bloody civil war. We have struggled through the Nation's courts and legislatures to eliminate the bias and inequality that remained. Efforts to persuade Congress to address even the most egregious form of racial violence failed for the first half of the 20th century.
It was nearly a century after the Civil War that Congress finally began to address comprehensively the injustices imposed by discrimination on the basis of race, color, religion, national origin and sex. This subcommittee took the lead in formulating those long overdue remedies to address discrimination, education, public accommodations, federally assisted programs, employment, housing and voting. And this committee was instrumental in fashioning legislation to address the exclusion of individuals with disabilities from the mainstream of American life.
The Civil Rights Division has vigorously enforced the laws that Congress has provided. Yet our tasks remain large. Perhaps the most visible evidence of our Nation's continuing challenge is the persistence of violence motivated by hate.
Page 17 PREV PAGE TOP OF DOC
Last summer, we mourned the victims of alleged hate crimes involving black, Asian American, gay and Jewish victims in Sacramento, Chicago, Bloomington, Indiana, and Los Angeles, all committed by self-avowed white supremacists.
When I signed on to serve as acting Assistant Attorney General, I frankly signed on for law enforcement. I didn't expect to go to memorial services for the victims of hate crimes. Yet, Attorney General Reno and I spent much of last summer doing just that.
Through that experience, I learned that the victim of hate crime is more than an individual and his or her family. Our hopes for our communities and for our Nation also fall victim to hate crimes.
Many fear that this, too, will be a summer of hate. I hope fervently that it will not be, but I want to assure the American people that the Civil Rights Division stands ready to enforce our civil rights laws without fear or favor. We are determined not to allow those who would divide us to prevail. For this reason, the division's fight against hate crimes remains critically important. While much remains to be done, we are proud of what we have accomplished so far.
For example, we secured a guilty plea from a skinhead gang member who brutally assaulted a man of East Indian descent as he left a concert in California. The defendant beat the victim unconscious in the parking lot with metal pipes, along with his boots and fists, while yelling racial epithets and the name of his skinhead gang.
Page 18 PREV PAGE TOP OF DOC
We also helped convict a Virginia defendant for firebombing two vehicles owned by a black family, and we secured guilty pleas from two defendants who burned a cross on the lawn of the home of the only African American family living in their Alabama neighborhood.
The Civil Rights Division prosecutes such hate crimes under a statute that was enacted only after the killing of Dr. Martin Luther King, Jr., in 1968, but this statute restricts the Federal Government to investigate and prosecute only a limited number of hate crimes.
I am pleased that last month the Senate passed the Local Law Enforcement Enhancement Act to eliminate unnecessary jurisdictional obstacles and to provide for Federal prosecution of hate crimes committed on the basis of gender, sexual orientation and disability. The time is long past for this committee and the House to take similar action to give the Civil Rights Division the tools it needs to respond effectively to such violence.
The Civil Rights Division also helps lead the fight against modern-day slavery, the forced labor and trafficking in human beings. Last year, we successfully prosecuted seven Miami defendants who lured Mexican women and girls, some as young as 14 years old, into the United States and forced them to work as prostitutes and sex slaves in brothels in Florida and Georgia.
The victims were assaulted, beaten and forced to engage in sexual acts with as many as 130 men a week. Some were forced to have abortions when they became pregnant. The leader of this sex slave ring will be in prison for the next 15 years and was ordered to pay $1 million. Our worker exploitation task force is currently investigating a record number of cases involving allegations of such modern day slavery.
Page 19 PREV PAGE TOP OF DOC
Let me now turn to our efforts to improve police-community relations. While crime is down in many——
Mr. CANADY. Mr. Lee, there is a vote proceeding on the House Floor. I think if you are moving to—this is a transition point in your testimony, this might be a good place for us to break.
I apologize for having to break in the middle of your testimony, but members do need to go to the floor to cast their vote, and I sense that you will have a few more minutes left to go. So the subcommittee will now stand in recess.
I urge the members to return to the subcommittee so we can reconvene as soon as possible after the vote is completed.
Mr. LEE. Thank you, Mr. Chairman.
Mr. CANADY. Thank you.
[recess.]
Mr. CANADY. The subcommittee will now be in order, and Mr. Lee will proceed.
Mr. LEE. Thank you. Let me now turn to our efforts to improve police-community relations.
Page 20 PREV PAGE TOP OF DOC
While crime is down in many areas of the country, in some communities, particularly minority communities, confidence in the police has eroded because residents believe law enforcement is biased, disrespectful, or simply too aggressive. When people do not trust their local police officer, they are less willing to report crime, to be witnesses in criminal cases; and encounters between citizens and police officers generate more tension.
The Department of Justice is determined to help rebuild the bond of trust between law enforcement and the communities they serve by addressing police misconduct in several ways.
First, we are investigating at any given time several hundred individual allegations of misconduct by police and other law enforcement officers for violations of our criminal civil rights laws throughout the country. Since 1993, we have criminally prosecuted more than 350 law enforcement officers for willful violations of constitutional rights.
Second, under authority given to us by Congress in 1994, the Civil Rights Division conducts investigations and brings suits against police departments that are alleged to be engaged in a pattern or practice of misconduct, including excessive use of force.
In recent years, the Department has entered into consent agreements with the cities of Pittsburgh, Pennsylvania, and Steubenville, Ohio, that have established guidelines for training, supervision, discipline and complaint procedures in those departments.
In the past year, the Department has filed suit against the Columbus, Ohio, Police Department, alleging a pattern and practice of civil rights violations; has authorized litigation against the Los Angeles Police Department and has opened investigations into police practices in New York City and Washington, DC, among others.
Page 21 PREV PAGE TOP OF DOC
In addition, several of our investigations into alleged patterns and practices of police misconduct have involved allegations of racial profiling. Discriminatory stops by law enforcement of minorities traveling on highways or in urban areas is simply incompatible with the fundamental notions of equal justice and further erodes trust between police and the community.
Our investigation of discriminatory traffic enforcement by the New Jersey State Police led to a December 1999 consent decree that emphasized nondiscriminatory policies and practices, as well as improved data collection, training, supervision and monitoring of officers.
In January 2000, the Department reached a similar agreement with the Montgomery County, Maryland, Police Department.
Third, we also work to bring about positive changes in law enforcement through employment discrimination litigation. Law enforcement agencies must depend on the quality of officers they hire and promote. Breaking down barriers that unfairly deny talented women and people of color the opportunity to serve is key to creating high-performing law enforcement teams.
Finally, the Civil Rights Division is working with other parts of the Department to bring together individuals from law enforcement, civil rights groups, community organizations and academia to develop cooperative strategies for improving police integrity and police-community relationships. Together, we are working to develop best practices in the areas of police accountability systems, use of force, recruitment and selection data collection and racial profiling and community partnering.
Page 22 PREV PAGE TOP OF DOC
I would now like to say a few words about enforcing the Americans With Disabilities Act. July 26, 2 weeks from today, marks the tenth anniversary of the enactment of this landmark civil rights law that promises those long ignored and shunted aside a place in our mainstream, of educating entities covered by the act about their responsibilities; and educating people with disabilities about their rights has been central to our ADA enforcement effort. We often use information gleaned from our investigations to help other entities to comply.
For example, we recently published ''The ADA and City Governments: Common Problems,'' an easy-to-read, nine-page document which focuses on issues shared by city governments across the country, that we have identified in complaint investigations.
Our ADA enforcement focuses on fundamental barriers. At hotels, for example, barriers deprive travelers with disabilities of the independence that all of us take for granted. Wheelchair users often can't use the bathroom or blind people can't find their rooms because the room signs don't have braille or raised numbers.
To address these issues, we recently reached a comprehensive agreement with Days Inn of America, the Nation's largest hotel chain, requiring new hotels to certify that they comply with the ADA. That agreement serves as a model for other chains. To assist in compliance, we have published three technical assistance documents for hotel franchisers, their architects and contractors. I then wrote to over 300 hotel franchisers enclosing these materials.
The Federal civil rights laws are historic legislative achievements to address inequality and unfairness imposed on too many of our people, but these laws mean nothing unless they are faithfully executed. When the dedicated and talented lawyers and staff of the Civil Rights Division vigorously enforce these laws, they honor a sacred pledge to our Nation to provide equal justice under law. I believe that the Civil Rights Division has honored that pledge.
Page 23 PREV PAGE TOP OF DOC
I would be happy to answer any questions members might have about our work.
[The prepared statement of Mr. Lee follows:]
PREPARED STATEMENT OF HON. BILL LANN LEE, ACTING ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. Chairman and Members of the Subcommittee, thank you for the opportunity to appear before you today. I am pleased to discuss the important work of the Civil Rights Division. I ask that my written statement be made part of the hearing record.
It is an honor to appear again before the Subcommittee. I'd like briefly to review our record during the two years since our last oversight hearing, so you can see how we've sought to accomplish our law enforcement mission.
As you will see, we have been very busy. Indeed, our enforcement responsibilities have expanded substantially in recent years, as we have been tasked to investigate and prosecute church arsons, protect those who seek access to reproductive health care facilities, redress patterns of police misconduct, and enforce the motor voter law. The budget increase we received for this current fiscal year has thus been especially necessary, enabling us to expand our investigations and prosecutions of criminal civil rights cases (including hate crimes, police misconduct and modern-day slavery), increase fair housing and fair lending enforcement efforts, and better enforce the Americans with Disabilities Act. It also provided badly-needed resources to prepare for the review required by the Voting Rights Act of numerous redistricting changes that will follow the 2000 Census, as well as to obtain necessary technology improvements.
Page 24 PREV PAGE TOP OF DOC
HATE CRIMES
Let me start by discussing our hate crimes work. Hate crimes are the most visible evidence that the our nation's promise of equal opportunity and fairness is not yet a reality for many Americans. Hate crimes ruin the lives of some of our most vulnerable citizens. They divide our communities. These crimes—committed because the victims look different, practice a different faith, or have a different sexual orientation—send a message of fear and dissension.
Last summer we mourned Jewish, gay, black, and Asian American victims of alleged hate crimes in Sacramento, Chicago, Bloomington and Los Angeles committed by self-avowed white supremacists. When I signed on to serve as Acting Assistant Attorney General, I signed on for law enforcement. I didn't expect to go to funerals and memorial services for victims of hate crimes. Yet Attorney General Reno and I spent much of last summer doing just that—visiting some of the places where these hate crimes occurred, talking to investigators, participating in memorial services, visiting families, and attending unity events.
We are determined not to allow those who would divide us to prevail. For this reason, the Division's fight against hate crimes remains critically important. While much remains to be done, we are very proud of what we've accomplished so far. For example, our National Church Arson Task Force (which I co-chair together with the Under Secretary for the Department of the Treasury) has a 35% arrest rate—more than double the arrest rate for arsons generally.
Other recent examples of our work include the following: We secured a guilty plea from a skinhead gang member who assaulted a man of eastern Indian descent as he left a concert in California. The defendant beat the victim unconscious with pipes, along with his boots and fists, while yelling racial epithets and the name of his skinhead gang. We helped convict a Virginia defendant of firebombing two vehicles owned by a black family. And we secured guilty pleas from two defendants who burned a cross on the lawn of the home of the only African American family living in their Alabama neighborhood.
Page 25 PREV PAGE TOP OF DOC
MODERN-DAY SLAVERY
The Division's Criminal Section also helps lead the fight against modern-day slavery—forced labor and trafficking in human beings. To this end I co-chair—along with the Solicitor of Labor—the Worker Exploitation Task Force. This effort has brought a range of investigative and prosecutorial agencies to the table. Justice Department components include the Civil Rights and Criminal Divisions, the FBI, the INS, United States Attorneys, the Office for Victims of Crime, and the Violence Against Women Office. Outside partners include the Departments of Labor, State, and Agriculture, and the Equal Employment Opportunity Commission. We are convinced that by pooling information, expertise, and resources and using all of the authority available to these agencies, we can make a difference.
Last year, we successfully prosecuted seven Miami defendants who lured Mexican women and girls—some as young as 14 years old—into the United States and forced them to work as prostitutes and sexual slaves in brothels in Florida and Georgia. The victims were forced to engage in sexual acts with as many as 130 men a week. They were beaten and assaulted. Some were forced to have abortions when they became pregnant. The leader of this sex-slave ring will be imprisoned for the next 15 years and was ordered to pay $1 million.
As another example, we secured guilty pleas from three defendants in the Northern Mariana Islands for luring women from China with promises of waitressing jobs, only to force them to work as prostitutes. The defendants were sentenced to terms of imprisonment ranging from two and a half to fifteen years.
Page 26 PREV PAGE TOP OF DOC
We have also tried to increase public awareness of worker exploitation. We have set up a worker exploitation Complaint Line, and since the Line's phone number was nationally publicized in Parade magazine earlier this year, we have received hundreds of calls, opened more than 20 new investigations, and sent numerous referrals to other agencies.
POLICE MISCONDUCT
In some communities in this nation, confidence in the police has eroded because residents believe that law enforcement is biased, disrespectful, or simply too aggressive. When citizens do not trust their local police officer, they are less willing to report crime and less willing to be witnesses in criminal cases. When there is a breach of trust, encounters between citizens and police officers generate more tension within and less cooperation from the community. We are determined to help rebuild the bond of trust between law enforcement and the communities they serve by addressing police misconduct in several ways:
First, we are investigating at any given time several hundred individual allegations of misconduct by police and other law enforcement officers for violations of criminal civil rights laws around the country. Since 1993, we have criminally prosecuted more than 350 law enforcement officers for willful violations of constitutional rights. For example, we recently successfully prosecuted three prison guards at the Louisiana State Penitentiary. Two of the officers had brutally assaulted an inmate in the presence of their supervisor, who did nothing to stop it. The victim suffered a ruptured kidney, a punctured lung, broken ribs, three fractured vertebrae in his back, a punctured eardrum, and extensive internal bleeding. Witnesses at trial testified that the man was assaulted so severely that tennis shoe imprints were left on his face and back. Earlier this year, a federal jury convicted all three officers.
Page 27 PREV PAGE TOP OF DOC
Second, under authority given us by Congress in 1994, the Civil Rights Division conducts investigations and brings suit against police departments who are alleged to be engaging in a pattern or practice of abusive use of force. In recent years, the Department has entered into consent agreements with the cities of Pittsburgh, Pennsylvania and Steubenville, Ohio that established guidelines for training, supervision, discipline and complaint procedures in these departments. In the past two years, the Department has filed suit against the Columbus, Ohio police department alleging a pattern or practice of civil rights violations, has authorized litigation against the Los Angeles Police Department for a pattern and practice of misconduct, and has opened investigations into police practices in New York City and Washington, DC, among others.
In addition, several of our investigations into alleged patterns or practices of police misconduct have involved allegations of ''racial profiling''—i.e., discriminatory highway traffic stops and discriminatory stops of persons traveling in urban areas. Our investigation of discriminatory traffic enforcement by the New Jersey state police led to a lawsuit resolved through a December 1999 consent decree that emphasizes non-discriminatory policy and practices as well as improved data collection, training, supervision, and monitoring of officers. In January 2000, the Department reached a similar agreement with the Montgomery County, Maryland Police Department. The Civil Rights Division also has a handful of ongoing investigations into alleged practices of discriminatory traffic stops and searches in other jurisdictions across the country, including in Orange County, Florida and Eastpointe, Michigan, a Detroit suburb.
Third, the Civil Rights Division also works to bring about positive change in law enforcement through employment discrimination litigation. We are charged with enforcing Title VII of the Civil Rights Act of 1964 against state and local public employers, such as police and fire departments. Fighting employment discrimination helps us combat police misconduct. To address violence and lawlessness effectively, law enforcement agencies must depend on the quality of the officers they hire and promote. Breaking down barriers that unfairly deny talented women and people of color the opportunity to serve is key to creating high-performing law enforcement teams. Moreover, police forces that reflect the diversity of the communities they serve are better able to form positive working relationships with community members, leading to more effective law enforcement.
Page 28 PREV PAGE TOP OF DOC
For this reason, the Civil Rights Division has challenged a wide range of employment practices that have unjustly barred minorities and women from law enforcement, as well as other public-sector jobs. We're committed to ensuring that law enforcement agencies use tests that do not discriminate and that identify the best law enforcement officers. As you know, top-notch police officers require certain physical and cognitive skills, but also need a range of other skills that have not traditionally been tested—such as responsibility, emotional stability, attention to detail, and the ability to handle pressure.
Over the past few years, increasing numbers of law enforcement agencies have put into place tests that include a cognitive and/or physical ability component, but also include measures of a broader range of job-related abilities and traits. Included among these agencies are the Arkansas State Police, Louisiana State Police, Missouri State Police, New Jersey State Police, New York State Police, Nassau County, New York Police Department, Suffolk County, New York Police Department, Chicago Police Department, and the Las Vegas Metropolitan Police Department. We are pleased with this trend because tests that measure a broader range of job-related abilities and traits than cognitive ability alone will result in the selection of candidates better suited for law enforcement work and do not discriminate unlawfully against minority candidates.
Finally, the Civil Rights Division is working with other parts of the Department to bring together individuals from law enforcement management and labor, civil rights groups, community organizations, academia, and federal entities to try to develop cooperative strategies for improving police integrity and police-community relationships. By bringing together a diverse group representing several key constituencies—both at last year's conference on ''Strengthening Police-Community Relationships'' and at subsequent follow-up meetings—we hope to develop some consensus on ''best practices'' in the areas of police accountability systems, use of force, recruitment and selection, data collection and racial profiling, and community partnering.
Page 29 PREV PAGE TOP OF DOC
One example of our success to date is in the area of data collection. Last June, only a handful of police departments across the country were collecting traffic stop data by race or ethnicity. Today, over 100 jurisdictions are implementing data collection programs in order to assess whether their officers are engaged in racial profiling. Finding out if there is a problem is the first step toward addressing it.
EMPLOYMENT DISCRIMINATION:
In addition to our work with police departments that I discussed earlier, our employment discrimination work also includes our ongoing efforts to address racial and sexual harassment. For example, we recently entered into a settlement with the City of Belen, New Mexico, resolving our suit challenging pervasive harassment of women within the police department. As you know, when widespread sexual harassment poisons a workplace, it too often drives qualified women away or limits their ability to advance and succeed. The settlement, among other things, requires the City to implement a comprehensive sexual harassment, sex discrimination, and antiretaliation training program for all employees. It also provides for the appointment of an outside Equal Employment Opportunity Monitor to participate in the investigation of all such complaints. In addition, the City compensated the three women on whose behalf the United States sought relief in this lawsuit for a total of $560,000.
We also still see terrible cases of racial harassment. Last year we settled a case we had brought against the City of Willis, Texas, where an African-American police officer was routinely subjected to racial slurs and demeaning treatment. The then-police chief in Willis used the ''n-word'' on a daily basis when referring to African Americans. Moreover, the chief assigned the black officer to be the personal bodyguard for the Grand Wizard of the KKK when the Klan was holding a rally in Willis a few years ago. By the time we settled the case, the chief had been removed, and we were able to obtain substantial monetary relief for the black officer, as well as for a white officer who was retaliated against for standing up for his black colleague.
Page 30 PREV PAGE TOP OF DOC
Through our employment discrimination work, the Division is determined to help give life to our national promise of equal employment opportunity for all.
AMERICANS WITH DISABILITIES ACT
July 26—two weeks from today—marks the 10th anniversary of the enactment of this landmark civil rights law, which is designed to integrate persons with disabilities into the mainstream by removing barriers in communications, architecture and attitude. Its sweep is comprehensive C covering private sector employment, state and local government services, public accommodations and transportation. At the same time, Congress carefully crafted its requirements to balance the rights of people with disabilities to access with the legitimate needs of business.
Educating entities covered by the Act about their responsibilities and educating people with disabilities about their rights have been high priorities and central to our ADA enforcement effort. Our ADA Information Line receive over 100,000 calls per year; our ADA Home Page on the Internet received over 6 million visits last year. We have published more than 40 technical assistance documents. We often use information gleaned from our investigations to help other entities to comply. For example, we recently published ''The ADA and City Governments: Common Problems,'' an easy-to-read 9-page document that focuses on issues shared by city governments across the country that we have identified in complaint investigations.
Our ADA enforcement focuses on the fundamentals. Sometimes barriers are simple—a narrow door or a few steps prevent people with disabilities from attending a town meeting or registering to vote at City Hall. But often, public accommodations—such as hotels, restaurants and theaters—don't ensure that their newly constructed facilities are accessible to and usable by people with disabilities. At hotels, for example, barriers deprive travelers with disabilities of the independence that all of us take for granted. Wheelchair users often can't use the bathroom or blind people can't find their rooms because the room signs don't have Braille or raised numbers. To address these kinds of barriers, we recently reached a comprehensive agreement with Days Inns of America, the nation's largest hotel chain, requiring new hotels to certify that they comply with the ADA. That agreement serves as a model for other chains. To assist in compliance we published 3 technical assistance documents for hotel franchisers, their architects and contractors. I wrote to over 300 hotel franchisers, enclosing these materials, urging them to follow the Days Inns agreement.
Page 31 PREV PAGE TOP OF DOC
Nothing is more fundamental than access to 9–1–1 emergency services. But it can be a real barrier for people who use text telephones C people who are deaf, hard-of-hearing or have speech impairments. We have reached several agreements with cities large and small to insure that their 9–1–1 centers are accessible—not only by having text telephones—but also by training their staff to use them. We also developed and widely disseminated a technical assistance document to assist 9–1–1 centers across the country.
Here's another example of how our ADA work has a tangible impact on the lives of people who would otherwise be excluded from the mainstream: young Jeremy Alvarez lives in Northern California and has asthma. A few times each day, when he wheezes, he uses an inhaler to help his breathing. Jeremy can use the inhaler himself with minimal adult supervision. His parents both work full-time to make ends meet. When they decided to enroll Jeremy in a private preschool, they were told that the school had a ''no medications'' policy and a family member would have to come to the school whenever Jeremy needed his inhaler. Even though any adult could learn how to supervise Jeremy's inhaler use in a short training session that the local American Lung Association was willing to provide, the school remained adamant that Jeremy could not bring his inhaler to school. That meant that Jeremy couldn't go to the school. At their wit's end, his parents filed an ADA suit. We filed an amicus brief maintaining that the ADA requires ''reasonable modifications'' to policies to enable people like Jeremy to participate. The court agreed that it was reasonable in this case to modify the school's ''no medications'' policy and require its staff to attend a short session on inhaler use and provide limited supervision for Jeremy. He now attends that school.
None of these cases is unique. Similar issues cross my desk every day. It will take years to remove all the barriers faced by people with disabilities. But as we have learned from our experience with other civil rights laws, enforcement requires persistence.
Page 32 PREV PAGE TOP OF DOC
FAIR HOUSING AND LENDING:
A family home lies at the heart of the American dream. Yet for too long, invidious discrimination has prevented many Americans from turning that dream into a reality. Similarly, without a loan, none of us could buy a home. For these reasons, we have devoted increased resources to our fair housing and fair lending work.
A recent case of ours in Akron, Ohio helps illustrate these efforts. A 21-year-old woman lived with her mother, waiting two years for a Section 8 certificate so that she could someday live on her own. When she finally got the certificate and found what she described as her dream house, she went to meet her prospective landlord and sign the lease. Instead, the landlord sexually assaulted her until she ran out and vomited. She never returned. Our investigation revealed that this same landlord sexually assaulted many other female tenants, groping or attempting to kiss them when they met with him to pay rent or ask for repairs. He refused to honor a security deposit agreement with one tenant who refused his demands for sexual favors. Based on testimony about such conduct from more than 15 women, a jury awarded damages against the landlord totaling $490,000; the court awarded an additional $80,000 in civil penalties. Also as a result of the suit, the landlord will no longer be permitted to have any further direct contact with tenants or prospective tenants.
Another recent case involved a subsidized apartment complex in Richmond, Virginia, where the resident manager assumed that her white tenants shared her prejudice against African-Americans. Fortunately, she was wrong. When the manager falsely told African-American home seekers that no rentals were available and then boasted to white tenants of ''another n-----' who won't be living here,'' the tenants reported her actions to a local fair housing group. In settling a suit brought by the Civil Rights Division, the owners and managers of the complex agreed to pay $480,000 to those who had been unlawfully turned away and to the fair housing group that challenged the manager's conduct.
Page 33 PREV PAGE TOP OF DOC
We have also brought suits to stop lending discrimination such as redlining—the practice of limiting the area where a lender chooses to do business based on the national origin or race of the people who live there. For example, last year we sued the Albank Federal Savings Bank, a bank headquartered in New York. A few years ago, Albank began instructing its mortgage brokers that it would not take loans from certain cities in Connecticut and parts of Westchester County. The only areas that Albank excluded were those with large black and Hispanic populations. We investigated and discovered that Albank had no legitimate business justification for limiting its market that way. So we filed suit, and Albank entered into a consent decree. The decree required the lender to abandon its geographic limitations and to make $55 million in loans at below-market rates to eligible residents of the areas that were previously excluded. Albank also agreed to spend nearly $1 million for education and mortgage counseling services to residents of the excluded areas.
PUBLIC ACCOMMODATIONS
Sadly, we still face the need to eliminate bigotry and discrimination in our nation's public accommodations. For instance, we filed a lawsuit last December against the Adam's Mark Hotel chain. We discovered that this hotel chain charged African-American guests more than white guests. We discovered that they put minority guests in less desirable rooms than white guests. And we discovered that at one of their hotels in Florida, African Americans had been required to wear orange wristbands to identify them as guests. In March, Adam's Mark settled the case and agreed to pay $8 million in monetary relief, including $4.4 million to hotel guests and visitors who were discriminated against, and $1.5 million for hotel management programs at four historically black colleges.
Page 34 PREV PAGE TOP OF DOC
CIVIL RIGHTS OF INSTITUTIONALIZED PERSONS:
This year we also celebrate the 20th anniversary of the enactment of the Civil Rights of Institutionalized Persons Act (CRIPA). CRIPA is designed to protect some of our nation's most vulnerable citizens, including those who live in public nursing homes, mental retardation facilities, psychiatric hospitals, and correctional facilities. Tragically, we continue to find widespread unconstitutional and unconscionable conditions across the nation in these facilities. Instead of safe and adequate care and treatment, we all too often have found abuse and neglect of residents' most basic needs. We have used CRIPA effectively to remedy these deplorable conditions and to ensure that individuals are protected from harm and receive the care and treatment that they deserve and to which they are legally entitled.
For example, the Division recently launched a CRIPA investigation of a nursing home in West Virginia when we learned that two residents had died from strangulation after they had been tied to their bed rails with vest restraints. Based on our investigation, we found that the nursing home was using these restraints because it did not have enough staff and had no other way to protect residents from falling out of bed. As a result of our efforts, the nursing home hired more staff, stopped using restraints, obtained beds that were lower to the ground, and instituted a fall prevention program. In another nursing home in Pennsylvania, we found widespread staff abuse and inadequate medical and nursing care. Care was so deficient that residents were left in beds filled with urine and feces and suffered from deep ulcers because staff were not repositioning and bathing them. We also found that the facility was billing Medicare for services it never provided. We linked forces with the local U.S. Attorney's office and charged the facility with health care fraud and violations of residents' constitutional rights. The nursing home agreed to a detailed settlement agreement to remedy these egregious conditions.
Page 35 PREV PAGE TOP OF DOC
We have also used CRIPA to improve conditions in a number of psychiatric hospitals. Last May, we entered into a settlement agreement to remedy dangerous restraint practices and inadequate mental health care in a psychiatric hospital in central Virginia. In a widely publicized case at the hospital, a patient died while bound spread-eagle with heavy leather straps. This patient had endured prolonged use of restraints as a result of inadequate psychiatric and medical care. In the final two months of her life, she spent 300 hours strapped down in solitary confinement, despite a warning from her doctor that restraints could kill her because of her poor health. We worked with the state to develop and implement a comprehensive remedial plan to eliminate these abusive restraint practices and to provide adequate psychiatric treatment and medical care to patients.
In Puerto Rico, we acted swiftly when we found intolerable conditions throughout the Commonwealth's six public mental retardation facilities. Our investigation of these facilities revealed that some of the facilities were uninhabitable. They were firetraps—particularly for immobile residents—and in some instances did not even have sufficient running water. In one of the facilities, staff bathed residents by bringing in a garbage can filled with water and pouring it over the residents. The facilities frequently ran out of medications and necessary medical supplies. We entered into an emergency consent decree with Puerto Rico last April to remedy these life-threatening conditions and are working with the Commonwealth on a longer term comprehensive solution to ensure that Puerto Rico's mentally retarded citizens receive appropriate care and habilitation.
These are but a few of the examples of the horrendous conditions that continue to exist in some nursing homes and facilities for persons with mental disabilities. We are committed to eradicating these and other unacceptable systemic problems to ensure that institutionalized persons receive safe, humane, and appropriate care and treatment.
Page 36 PREV PAGE TOP OF DOC
VOTING RIGHTS:
The Voting Section's responsibilities are at the core of the Civil Rights Division's mission, for ensuring the right to vote free of discrimination is one of the cornerstone's of our democracy. The Voting Section has several important responsibilities: (1) review of voting changes under Section 5 of the Voting Rights Act; (2) litigation under Section 2 of the Voting Rights Act to combat vote dilution; and (3) monitoring elections across the country to ensure that voters are treated fairly and in accordance with the law at the polling place.
In our federal observer program, election observers are sent to locations where our investigation reveals a possibility of intimidation or harassment of minority voters, or the possibility of the lack of necessary assistance at the polling place for voters who need it.
For example, in last August's primary election in Mississippi, federal observers told us that a white pollwatcher had a camera that she used only to take pictures of African-American voters who needed assistance in casting their ballots (because of physical needs or illiteracy). The observers reported this to the Voting Section attorneys who contacted the county election official and led to a cessation of the conduct.
The Section's litigation program also serves a very important role in protecting the right to vote. Two important parts of this program are: (1)vote dilution suits that are aimed at election practices which discriminatorily abridge the ability of minorities to elect the candidate of their choice; and (2) suits enforcing the minority language requirements of the Act, which are designed to ensure that United States citizens who rely on Spanish, Chinese, other Asian languages and American Indian and Native Alaskan languages have the same opportunity to participate in voting-related activities as English-speaking voters.
Page 37 PREV PAGE TOP OF DOC
For example, in a vote dilution case against a school district in North Dakota (Parshall, North Dakota School District), Section attorneys first notified the school district that its at-large election system did not allow Native Americans, who comprised over a quarter of the school district's population, an equal opportunity to elect their choice of school board members. As a result of ensuing negotiations, the district worked with us to resolve our concerns. As a result, the board adopted a new system of election without the need for litigation. In the first election under the new plan, two candidates of choice of the Native American community were elected.
In a lawsuit against Passaic County and City, NJ, both of which have significant Spanish-speaking populations, the city and county agreed to a comprehensive consent decree, in which they agreed to translate all election materials into Spanish and hire Spanish-speaking election workers to assist Spanish-speaking voters in the election process. In addition, city officials solicited the Hispanic community's input into these procedures (an unprecedented effort), and made a commitment to work with that community in developing and implementing an effective permanent bilingual election program for the future. Under the agreement approved by the court, federal observers were permitted to monitor election day procedures to ensure that Hispanic voters were allowed the equal access to the election process and fair treatment the Act requires.
EDUCATIONAL OPPORTUNITIES:
In the education context, we still see school districts discriminating against African-American students—almost 50 years after Brown v. Board of Education. Take, for example, a case we have against Madison County, Mississippi, a county just north of Jackson with a long history of discrimination. Last year the Madison County School District proposed building several new schools and proposed bus routes for the students to attend the new schools. We discovered that for one of the new high schools, the average round-trip bus route for black students would be 2 hours. But for white students, the average bus route was only 30 minutes. We are litigating this matter right now.
Page 38 PREV PAGE TOP OF DOC
As another example, we recently took legal action against the Midland, Texas school district when we discovered that minority students were inappropriately tracked into the so-called basic classes, while white students were typically sent to the honors classes. Minority students were four times as likely as whites to be in the basic classes. Our investigation also revealed that the school district was allowing predominantly minority schools to deteriorate, while at the same time, building new state-of-the-art schools in white neighborhoods. Fortunately, the school district agreed to change its ways and entered into a consent decree with us.
TITLE IX:
Title IX has played a vital role in opening up opportunities for American women and girls to play sports, receive scholarships, and enjoy other important educational benefits that flow from athletic participation (such as developing teamwork, learning how to perform under pressure, discipline, and self-confidence—indeed, teenage girls who play sports have lower dropout and teen pregnancy rates). I've seen these benefits in my own teenage daughter, Angela, and I know many of you have with your daughters as well.
Because of Title IX's important legacy, we are extremely proud of our work in implementing President Clinton's initiative to reinvigorate its enforcement. In 1972, Congress specifically directed all executive agencies to develop regulations for the enforcement of Title IX. Yet twenty-eight years later, only four agencies have done so. In response to the President's directive, we are coordinating the drafting of a common rule, which all 25 agencies have agreed to participate in issuing. We plan to issue the final rule later this summer.
Page 39 PREV PAGE TOP OF DOC
ALTERNATIVE DISPUTE RESOLUTION:
Throughout my career, I have always believed it is better to resolve cases through conciliatory means whenever possible. I believe alternative dispute resolution (ADR) must be a component of any federal civil litigation program and building such a component into the Civil Rights Division's litigation program has been a high priority for me. ADR is consistent with the civil rights ideal of resolving our differences amicably and voluntarily. When ADR is successful, we free up resources to pursue other investigatory matters, thereby expanding our reach and effectiveness as an enforcement agency. ADR further serves to enhance long term relationships between and among parties, encouraging future settlements of disputes that commonly arise in a long term compliance environment. There is also much about ADR that is common business sense. Preventing costly litigation preserves federal court and Division resources. And parties who can resolve differences today decrease the possibility of future conflicts.
All Division attorneys have now received ADR training and are aware of my commitment to this dispute resolution technique. Our website and a Division brochure tell the public about our ADR process and how they can request ADR when they are dealing with us.
As with any new approach to problem-solving in a litigation context, results take time to achieve. To date, I am encouraged by the progress the Division has made with ADR. In FY 99, which marked the beginning of this initiative, we achieved 9 case settlements through ADR and had 19 cases or matters that were using ADR at the end of that fiscal year. Three quarters into this fiscal year, the Division has doubled the number of cases resolved through ADR to 18. More important than these numbers, however, is the fact that all Division attorneys and managers understand that each civil case or matter in the Division is to be periodically reviewed for its ADR potential.
Page 40 PREV PAGE TOP OF DOC
Two successful uses of ADR deserve mention. In one of the ADA cases I mentioned earlier, I believe the use of ADR provided a significant benefit to the Division by allowing us to resolve longstanding litigation against the Days Inns in a multi-district settlement. We were pleased to resolve this complex litigation in final form and in an amicable manner. ADR was also instrumental in bringing about a settlement at the appeal stage of our litigation involving the Virginia Military Institute. The result we achieved resolved our appeal and laid a foundation for greater cooperation between the parties in the future. In each of these cases, ADR proved to be a useful vehicle to resolve disputes that otherwise would have entailed lengthy litigation activity with uncertain results.
In short, I am excited about the progress the Division has made in the area of ADR under my leadership and believe the actions I have undertaken will serve the Division well in the future. Litigation should be a matter of last resort. I've prided myself on reaching settlements that benefit both parties and the public interest. I believe in obtaining remedies that will effectively cure the discrimination.
And those remedies must remain in place as long as needed to do the job—but no longer. For this reason, the Division has sought actively to modify or terminate a number of decrees in which court-ordered relief had achieved its goal and was no longer necessary. More specifically, in Temple, Texas, we worked with the school district to respond to community concerns about dismissal of a longstanding school desegregation case, including providing for community participation in action plans to address quality education concerns. We then worked with the district on an Agreed Order of Dismissal setting out the accomplishments of the school system, which was signed by the Court on June 30, 2000. A similar process was followed in Lufkin, Texas, and a proposed consent decree which calls for a declaration of unitary status and dismissal was submitted to the Court on June 22, 2000. In addition, over the last few years, the Division has worked cooperatively with over 30 Alabama school districts, private plaintiffs and the State of Alabama—agreeing to a declaration of partial unitary status and working with these school districts on plans to achieve full unitary status.
Page 41 PREV PAGE TOP OF DOC
CONCLUSION:
As you can see, we are confronting on a daily basis a very wide range of vitally important civil rights challenges. I think you will agree that the Division's work in enforcing our nation's civil rights laws remains vitally important. I hope the Committee will continue to support us in maintaining a level of resources that will enable the Division to address effectively the challenges we confront.
In conclusion, the Civil Rights Division continues faithfully to enforce our civil rights laws in order to redeem our nation's promise of equal opportunity and fairness. I'd be happy to answer any questions members may have about our work.
Mr. CANADY. Well, thank you, Mr. Lee. I appreciate your statement, and I appreciate your being here. We do appreciate the work that you and the other folks at the division do in enforcing the civil rights laws.
We, from time to time, have differences of opinion about enforcement issues and we tend to focus on those differences, but that should not overshadow the fact that there are major areas of agreement. Much of the work that you do, there would be no one here to raise any question, but only people here to congratulate you and to thank you for the work that you are doing to enforce the laws of the United States. So I think it is important that that be made clear.
But there are differences based on the—concerning the experience of the division. There are questions that I think we have a responsibility to raise, and that's the purpose of oversight. I think everyone understands that.
Page 42 PREV PAGE TOP OF DOC
Now, there is something that I want to ask about, which we have talked about before, that has to do with the City of Torrance case. We have talked about that over a period of time. There have been some developments connected with the City of Torrance case, which was—for those who have not followed the history of this, is an employment discrimination case brought by the Department against a city in California called the City of Torrance, particularly the fire department and the police department of the City of Torrance.
The Department has lost in that litigation at various steps along the way, and the claims of the Department have been rejected. Most recently, the Department—I think this just went out on July 3rd—sent to the attorney for the City of Torrance a check in the amount of something in excess of $1.8 million in payment of a judgment, plus accrued interest, which had been entered by the district court. That judgment was affirmed by a three-judge panel of the ninth circuit.
In their opinion, which was rendered on May 11th of this year, the Court noted that a district court may in its discretion award attorney's fees—and that's what the judgment was for—to a prevailing defendant in a title VII case on a finding that the plaintiff's action was frivolous, unreasonable, without foundation.
The Court went on to say in this case, the record amply supports the district court's determination that this standard was satisfied; that is, that the government had an insufficient factual basis for bringing the adverse impact claim and that the government continued to pursue the claim long after it became apparent that the case lacked merit.
Page 43 PREV PAGE TOP OF DOC
The Court goes on to say, for example, the district court found that the United States approved one of the challenged police officer examinations for use in other municipalities in Southern California, so that you had challenged it, the very same test, in this jurisdiction which you had approved for use in other jurisdictions.
The Court goes on to say, it also found the United States took substantial discovery on and challenged up until trial seven examinations for which it offered no evidence of adverse impact at all.
The district court further determined the United States failed to provide meaningful discovery regarding its allegations or the basis of those allegations, and that this unnecessarily and substantially increased the costs of defending the action.
Finally, the Court found the United States offered no alternative selection device that would equally serve Torrance's legitimate hiring objectives while repeatedly assuring the district court that it would do so.
Now, what I have read comes from the opinion of the ninth circuit, a three-judge panel. There was no dissent from this opinion of the Court.
Now, this concerns me, particularly if the division does not take this to heart. As Mr. Hyde rightly pointed out, mistakes happen, and misjudgments will be made in particular cases. My primary concern is with whether the division is going to learn from what I believe was a misjudgment in this case and which the ninth circuit believes was a misjudgment in this case, and be more careful about the claims it files.
Page 44 PREV PAGE TOP OF DOC
So I would like to just get your response to the ninth circuit's opinion. Do you believe that the ninth circuit is wrong and that the claims were justified? Do you believe that this opinion of the ninth circuit is an aberration, or are you going to be guided by the decision of the ninth circuit in making future judgments about whether to file claims or not?
Mr. Lee.
Mr. LEE. This was a case that was investigated under a previous administration and brought early in the last decade, years before I was here; and I believe that—as you mentioned earlier, you and I have discussed this case when I was very new on the job. In the past, we have brought to your attention how we differed with some of the factual allegations that now the district court and the ninth circuit have made, and if you want, I could give you that again.
But when I looked at this case, I reflected on whether there were lessons to be learned and——
Mr. CANADY. My time has expired. Without objection, I will have 3 additional minutes.
Mr. LEE. What I learned was that in the time that this case was indeed investigated and pending, the employment section of our division brought perhaps 150 cases. This is the only case in which attorneys' fees were assessed.
Page 45 PREV PAGE TOP OF DOC
Of course, we are careful. We will be much more careful, but I think that that record is not a bad record. We would, of course, like to have not had the Torrance decision happen, but reasonable people can differ about a particular matter, as Mr. Hutchinson said; I mean, litigation is not a risk-free kind of thing.
We will take the lessons to heart. I have analyzed the situation with respect to this section. I have also looked at our record generally with respect to this, and it is a similar record throughout the division.
We are talking about fees assessed against the Civil Rights Division in something less than 1 percent of the cases.
Some of the areas in which we litigate have been affirmed, so I think that that is a pretty good record, but of course, we will try to be much more careful.
Mr. CANADY. Well, I thank you for your comments on that.
I would point out that I believe that it is not infrequently the case that defendants who find themselves defendants in a suit brought by the Department of Justice feel that they have many incentives to settle, regardless of their questions about the merits of the case, simply because of the power of the government, the superior resources of the government.
So I think it is not typical for a municipality to be quite as stubborn as the City of Torrance was in pursuing the matter as vigorously—the defense of the case as vigorously as they did. That's just an observation on the lay of the land.
Page 46 PREV PAGE TOP OF DOC
Now I have some other questions about the City of Garland and other things, but in deference to the other members of subcommittee, I will pursue my questions on a subsequent round.
I will now yield to Mr. Watt.
Let me just say that if there is no objection, I would suggest that members be recognized for 10 minutes each, and I think that will give us more continuity and we will not have to have as many subsequent rounds if that's the case.
Without objection, Mr. Watt will be recognized for 10 minutes and all subsequent members will be recognized for 10 minutes.
Mr. WATT. Why don't you go ahead and take your 2 minutes?
Mr. CANADY. I will just do it on the next round. Please proceed.
Mr. WATT. Mr. Lee, in addition to the testing case that the Department of Justice brought against the City of Torrance, California, were there also other cases that the Department of Justice prevailed on?
Mr. LEE. Yes. I was heartened to hear that some people think that the reputation of the Justice Department is so awesome that people do not litigate against us. I have found in the 2 1/2 years that that is not necessarily true and that I have had many tenacious defendants in cases. But I think the record of the Civil Rights Division, in particular, has been an exemplary one.
Page 47 PREV PAGE TOP OF DOC
Yes, there are cases that have been lost. They are singular, but the far greater number of cases are cases in which the United States has prevailed.
It is not just through litigation victories that I count the good work of the Civil Rights Division. Many of our cases are resolved through informal resolution, and it is my personal belief that how you resolve a matter of great public controversy is often as important as what the resolution in a particular matter is. I am a big proponent of mediation, conciliation, alternative dispute resolution. In my time, I have required that all of our lawyers take ADR training. We have all kinds of management techniques in order to encourage ADR.
In the Torrance situation, the claim that we lost was one of three claims, in fact. We actually had resolved, to the satisfaction of both the city and ourselves, disparate treatment claims about the treatment of applicants; and I think that those resolutions early on in the case have made that case a case that accomplished something useful.
Mr. WATT. When you referred to a disparate treatment claim, is that the one that was based on the allegations in the complaint that white officers were using the code expression, quote, ''NIT,'' to stand for ''nigger in Torrance''; business cards listing membership in the KKK were posted on the bulletin board inside the locker room of the police department; a white field training officer pointed out to a black officer trainee the difference between street niggers and upstanding black citizens, and a white field officer told another trainee that he simply didn't like black people?
Would that be under the case that you prevailed upon, or would that be under the testing case that you lost in the City of Torrance?
Page 48 PREV PAGE TOP OF DOC
Mr. LEE. The United States obtained relief through an amicable resolution to take care of those very issues that you raised.
In fact—can I add to my answer? There is another reason why I think that the situation in Torrance will not occur again, which is, Torrance was tried under the law—under Wards Cove v. Atonio, and legal standards that this Congress and President Bush changed when President Bush signed into effect the Civil Rights Act of 1991.
Now that the legal standard is a different standard and the burdens of proof are different, I think that we will see that in the years to come, I hope, that the Torrance situation is an aberration.
Mr. WATT. I don't want to spend all my time dwelling on things in the staff counsel's memorandum to the committee, but let me just get one thing clear before I go on to some other things.
When the Department of Justice becomes a party to a consent decree dealing with school desegregation, what other parties typically are parties to such a consent decree?
Mr. LEE. The school district is a pretty necessary party to those, and in some cases there are private plaintiffs, and in some cases there are State defendants as well.
Mr. WATT. Then when I read the memo and it says what the Civil Rights Division needs to acknowledge that desegregation court orders and consent decrees need to be modified to accommodate charter schools, not the other way around, although only a court can modify an order or a decree, the division as a party to most desegregation cases can undertake to secure such modifications by drafting them and by seeking the consent of the other parties, would you view the role of the Department of Justice as having the primary responsibility for undertaking to undo consent decrees related to local school districts?
Page 49 PREV PAGE TOP OF DOC
Mr. LEE. Our job in most desegregation consent decrees is to live up to the consent decree and to make sure that its provisions are enforced. That's our primary obligation.
Mr. WATT. And who would have the primary responsibility, if they believed the consent decree ought to be undone or revised, to ask the Court to do that?
Mr. LEE. Any party can seek to have a consent decree revised, but under the Supreme Court law and order of all the circuits, it is the obligation of a school district to come forth if there is a situation where they believe they have accomplished all the purposes of the consent decree, and if they believe, let's say, a unitary status is appropriate, it is their burden under our law to come forward with the information.
That makes a lot of sense, because the school district has the best familiarity with the operation of the system. They live under the consent decree or the court order. They know or should know if a decree has been lived up to.
Mr. WATT. Let me go on to some other things that are not covered by the staff memo that professes to outline what the primary concerns of this committee are. And while I disavow that those are the concerns that I have about civil rights primarily, I want to go on to some other issues.
The Supreme Court not too long ago entered a decision in what is called the Bozier Parish case, which in effect says that a local jurisdiction's intent to discriminate against racial minorities basically is irrelevant in triggering the Department of Justice's authority to preclear a change in voting systems, that in order for the Department of Justice to have a preclearance role there has to be what is called retrogression.
Page 50 PREV PAGE TOP OF DOC
What impact, if any, is that Supreme Court decision having on the Department of Justice's ability to review changes in voting systems that may be intended to discriminate against minorities?
Mr. LEE. Well, we will know for sure in the coming years, particularly with the release of the redistricting information with the 2000 Census. But at this point it is pretty clear that it will have a pretty heavy impact on our ability to use section 5, as Congress intended, which was to be a useful device for jurisdictions to quickly obtain preclearance, to serve as a method to say what the clear rules are, to provide some deterrence to make sure that jurisdictions live up to their obligations under the Voting Rights Act.
Now, the Supreme Court has made clear that intentional kinds of discrimination that the Bozier Parish case rules out for our section 5 jurisdiction, those issues can still be raised in lawsuits under our section 2 jurisdiction. But, of course, section 2 lawsuits are much more expensive than the rather convenient route of section 5. So I think it will have, in the years to come, an adverse impact on our ability to fulfill our—to do our job under the Voting Rights Act.
I would hope that this committee would take a look at that.
Of course, our position on this was a position we asserted in good faith in the Supreme Court, and the Supreme Court didn't quite see it that way. But I think it is open to the Congress to take another look at this issue.
Page 51 PREV PAGE TOP OF DOC
The section 5 jurisdiction is an incredibly important part of the Civil Rights Division's work. It has worked to help change the face of this Congress, the face of State legislatures and many bodies throughout this country; and I think that many people have raised a concern that perhaps that decision is not in the best interests of the overall good that the Voting Rights Act was intended to accomplish.
Mr. WATT. Thank you, Mr. Chairman. I yield back.
Mr. CANADY. Thank you.
Mr. Hyde.
Mr. HYDE. Mr. Lee, good morning. I know how important racial issues are to your agency, and the time that is spent necessarily on dealing with them. I don't really have a question. I just have a very brief comment and then I will yield my time to Mr. Canady, if he wants.
People who are consumed about civil rights are very important people. Somebody has got to care, but I find a narrow focus that eliminates first amendment considerations. Campaign reform, there is a bandwagon hurtling down the hill for campaign reform. Nobody seems to give a thought to first amendment consideration about political speech and the regulation of political speech. That is what is happening and I don't hear any real hue and cry from the civil rights community about that.
On the contrary, they support limiting money in political campaigns as though it is a terrible evil. But its advocacy—it buys speech, it buys communication, and anything that encroaches on one's right to express one's self, particularly in the political arena, ought to be a matter of concern. But I just hear a deafening silence on that.
Page 52 PREV PAGE TOP OF DOC
The other point is on the abortion issue, I believe the Court just required an 8-feet distance between someone in front of an abortion clinic who is what they call ''sidewalk counseling,'' who is trying to persuade someone not to get an abortion. I can understand when you and I get into an argument on politics or on religion or something, and we are up close, that's an invitation to a problem. But, again, there are first amendment problems with requiring you to be so many feet away from somebody while you are expressing yourself. Soon you will need a megaphone to exercise free speech, and that will be restricted between the hours of 12 and 12:30.
So I just think there are a lot of threats to our civil rights, and the first amendment is under popular siege, and maybe it takes some unpopular stands to defend it.
But I just have a problem with some of the campaign reform, good-guy legislation which I think makes serious encroachments into the first amendment. And notions of free speech in front of an abortion clinic, I have problems with that, too.
I wish you occasionally would spend some of your quality time thinking about those things, too.
Mr. Canady may have the rest of my time.
Mr. CANADY. Thank you, Mr. Chairman.
I want to go now to a question about the Adam's Mark case. Let me just say, concerning that case, that obviously was a case in which very serious allegations of racial discrimination were made; and that's the sort of thing that I think the Department should pay attention to, should investigate and deal with. So I don't question that being an appropriate area for the Department's involvement.
Page 53 PREV PAGE TOP OF DOC
Now, as I understand that case, it has been settled, but the settlement agreement is now pending approval of the district court. Is that correct?
Mr. LEE. That's correct.
Mr. CANADY. Okay. I am also informed that counsel for the defendant in the Adam's Mark case, the owner of Adam's Mark Hotels, has requested specific information about the allegations of discrimination made against the hotel; and there is a letter here of June 16, 2000, which was sent to the Attorney General and you, Mr. Lee, from the President and Chief Executive Officer of Adam's Mark, which I will just read.
''As you know, a settlement decree between the United States and the HBE Corporation/Adam's Mark Hotels was presented to the court in March of 2000. The court has not yet approved the decree, but we have been working on compliance matters. In April, I requested from Mr. Heffernan,'' who is the Deputy Chief of the Housing and Civil Enforcement Section, ''information relating to the investigation of the Adam's Mark chain by the Department of Justice. To date, I have not received any response from Mr. Heffernan.
''It certainly seems to me that we are entitled to the information requested in my letter. As CEO of this organization, it is my responsibility to ensure that our compliance programs comply with the settlement decree and also address the particular issues which constituted the basis for the action taken by the Department of Justice.
''Such issues must be addressed from the context of our business as well as from the context of our compliance. Your response to these requests would be helpful.''
Page 54 PREV PAGE TOP OF DOC
Again, what they were looking for were specific facts which led the Department to institute this suit.
Now, am I correct in understanding that this letter from Adam's Mark has not yet been responded to, or do you know?
Mr. LEE. I don't know if it has been responded to, but I could respond to it.
Mr. CANADY. Please, please do.
Mr. LEE. I have met with the President of Adam's Mark, and I think part of the—part of our response has to be that we have provided substantial information to Adam's Mark about the basis of our allegations; and if you want, I could just run through some of them.
We had a situation which came to our attention because of the events at a black college, or union, at Daytona Beach involving the Adam's Mark there. Those were very serious allegations about African American patrons of the hotel being—and only African American patrons being forced to wear, I believe, neon, bright orange bands to show that they were guests.
They were charged more for certain services. They had to pay up front the entire reservations. White people were not.
Page 55 PREV PAGE TOP OF DOC
Mr. CANADY. Those facts are known.
Mr. LEE. There were many more, actually.
Mr. CANADY. Right. The specifics with respect to that particular hotel, I think, have been put on the table. I understood that Adam's Mark would contest some of those, but that's not what is in question here.
As I understand it, in instituting the litigation the Department instituted, you made a judgment that there were not just problems at that hotel but problems at a number of hotels and at the Adam's Mark chain. So I think the questions really relate more to those other hotels in the chain and what the factual basis was for the concern about the operations there.
I guess my question really boils down to this: If there is any evidence that you have of discriminatory or otherwise illegal conduct by Adam's Mark, it seems to me that you would want to provide it to Adam's Mark so that the management would be fully informed about the problems that they have and they could take all the possible steps that they could to remedy the situation. It seems to me to be something that would actually enhance the enforcement efforts of the Department to put all of those cards on the table.
But not only has this information not been provided to Adam's Mark, but it has not been provided to the subcommittee pursuant to our request.
So can't we have this information—all of the information related to claims of discrimination by Adam's Mark? And why can't Adam's Mark have it?
Page 56 PREV PAGE TOP OF DOC
Mr. LEE. We provided information to Adam's Mark about other hotels. There is actually public record information, because Adam's Mark had been sued and there had been neither—they had lost cases or had expressed——
Mr. CANADY. Are you saying you provided them all the information that you have?
Mr. LEE. Oh, no, and I would like to explain why.
This is an open, pending matter. We would not provide an opposing party in an open, pending matter our files. But I agree with you that it's important for the United States to tell and have a conversation with Adam's Mark about what they need to do to improve their operation, and we have done so.
I don't think there is any complaint about the fact that we have worked with them. We have talked to them. We have raised our concerns. We have set up a process in which there is a monitor. We have agreed on a monitor. We have agreed on all kinds of monitoring processes.
I think Adam's Mark really has no complaints about getting our views to how they can improve their operation.
And I will just say this: Based on my years as a litigator, sometimes the most—let me put it this way: Some defendants can be hard-headed. I know you may not believe that, but sometimes they are, and often the worst approach is to go and give them all the facts.
Page 57 PREV PAGE TOP OF DOC
People settle. They are usually forward looking. They have made a commitment to move forward, and in this case, Adam's Mark made a tremendous commitment to move forward. Now we have helped them and we have talked to them about what they need to do, and I don't think we could be faulted on that.
Nor do I think the State of Florida can be faulted on that, because we didn't bring this case ourselves. The State of Florida and private parties were involved. I think that the United States and the State of Florida, in particular, have worked very well with Adam's Mark in terms of developing a plan that will change the operations of this hotel.
I would also like to point out that part of the deal that we worked out is a rather novel feature, which is $1.5 million is going to black colleges in Florida, for them to be training African Americans to work for Adam's Mark or enter this field.
So, you know, we are committed to working with Adam's Mark, and I think we have made a substantial effort in that respect. But we can't, you know, just cough up our litigation documents.
Mr. CANADY. My time has expired. And there is——
Mr. FRANK. I would like to get my questions in, if I could, before—because I have to stay on the floor for an amendment after this.
Mr. CANADY. That will certainly be acceptable. The gentleman from Massachusetts is recognized for 10 minutes.
Page 58 PREV PAGE TOP OF DOC
Mr. FRANK. Thank you, Mr. Chairman.
I will not be offended if any of my colleagues tear themselves away from this——
Mr. CANADY. What if I leave?
Mr. FRANK [continuing]. Although I would hope they would stay.
I was, I must say, astonished that the majority brought up the Adam's Mark case in its effort to find things with which to criticize; and I continue to be.
First of all, I want to congratulate you on what is apparently a very well-run department because it is clear that the majority approach was to find whatever it could to be critical of, and they came up with so little that you must be doing a much better job than I would have thought possible in such a difficult area.
It is interesting that apparently they do believe that you have left no case of discrimination unprosecuted because, in their oversight, they have talked only about areas where they think you have done too much and none where you might have done too little. So certainly the majority apparently thinks that you have dealt with every possible area of discrimination within the resources, and that's a very impressive role. I don't think many agencies can be told by their oversight committee that they have done everything they were supposed to in the enforcement area.
Page 59 PREV PAGE TOP OF DOC
Then I am also struck by the paucity of the negative, but particularly Adam's Mark.
As I understand it, the Adam's Mark Hotel, there is no contesting these outrageously discriminatory acts that they took with regard to the black college or union. Bracelets? Making them pay more? I mean, am I correct that they never denied—they acknowledged those things?
Mr. LEE. Yes.
Mr. FRANK. They acknowledged explicit discriminatory behavior.
I was struck in the majority's memo that there is criticism of both yourself and the Attorney General because it says the Adam's Mark had not yet been served with a complaint, let alone had an opportunity to respond; and the Attorney General said, it is hard to believe that 35 years after the Civil Rights Act this type of discrimination still exists, and you say the Federal Government will not tolerate this type of behavior.
Now, in both cases you were referring to the behavior which was explicitly admitted by Adam's Mark; is that correct?
Mr. LEE. Yes.
Mr. FRANK. Well, I do not understand why the majority thought that the Attorney General and you should not comment on blatantly discriminatory behavior.
Page 60 PREV PAGE TOP OF DOC
Also, is it—you have been around the Justice Department for awhile—is it unusual for the enforcement officer bringing an enforcement case to criticize the actions against which they are moving without waiting for the other side to explain it all to them? I mean, do criminal cases always—do we say, well, I will say nothing wrong about this person we are about to indict because, after all, we haven't heard his side of the story? Is that the usual pattern at the Justice Department?
Mr. LEE. The usual pattern is that we speak when we think it is appropriate.
In this case, there was actually a preexisting lawsuit that the State of Florida had already filed. So at the point that the Attorney General and I made the statement, when we had decided to file the Federal case, we had—there was already a pending case, and as a matter of fact, we had actually negotiated for several months with Adam's Mark.
Mr. FRANK. Let me ask again now, this notion that you should turn over—let me say, first of all, I have—it is too late to be first of all.
Well, fourth of all, I have always opposed this dodge of people coming up on controversial issues and saying, I can't discuss it because it is in litigation. Obviously, you can discuss things, but the notion that—the chairman almost seems to think that we are the kind of, I know, a new court somewhere in the Federal hierarchy. I am not sure where, but we are supposed to get all the information.
Page 61 PREV PAGE TOP OF DOC
The notion that we are entitled to all of the facts about a pending case from one side seems to me very striking, and I will yield to the chairman if that's what he is prepared to ask me to do.
Mr. CANADY. Well, the point is, in our oversight responsibility, we have the right to get information not just about closed cases, but about pending cases; and I will be happy to show the gentleman the comments that he made on that very subject in an oversight hearing we had with respect to the Environment and Natural Resources Division of the Department back in 1995.
Mr. FRANKS. Yes, I will be glad to.
Mr. CANADY. I am sure he recalls what he said.
Mr. FRANK. But the notion that we should get everything—the gentlemen who is testifying has said he has put forward some of the information, but the notion that you get everything in a pending case and turn it over—and this is the key point—to one side seems to me striking.
We almost hear—this memo almost looks like we should sign on as associate counsel for the defense, because we are insisting that the defense be told everything about a pending case.
I have to say, I am not aware of any other enforcement situation in which we do this. They don't do this if they are going after an adulterated food or a drug ring.
Page 62 PREV PAGE TOP OF DOC
Here is the problem: It seems to me that there is implicit in the chairman's questions and in the majority's memo the notion that in civil rights cases the adversarial model is inappropriate because the Civil Rights Division stands accused by the majority as behaving as an adversary in a litigation, toward an adversary in a litigation; and here you are treating the other side in the litigation as if they are the other side, instead of engaging in some cooperative fact-finding with them—one-sided, I am sure, because I don't think they were giving you all of their information—and I think that bespeaks a disagreement with the fundamental mission of your agency.
You have a variety of responsibilities, but one of them is to be a law enforcement agency every bit as much as every other division of the Department of Justice. And I think there is an implicit notion that racial discrimination of the blatant sort that was acknowledged to have been engaged in by the Adam's Mark Hotel somehow is different than pollution or drug-running or food adulteration or fraud or money-laundering, and it seems to me that, no, it isn't.
Blatant conscious violation: We are not talking here about subtle adverse impacts. We are talking about blatant administration: Hey, black guy put the bracelet on; white guy, go ahead. Black guy, pay more; white guy, you are okay.
I mean, we are talking about blatant discrimination, and the notion that that should not be treated in an adversarial fashion by the law enforcement agency is just striking to me.
Page 63 PREV PAGE TOP OF DOC
So I—we do have to go vote. I want to go vote.
I just want to say, I think what has been done is appropriate, and it is interesting that there is no suggestion here that Adam's Mark was unfairly treated, no suggestion that they weren't guilty of blatant discrimination.
I will yield to the chairman.
Mr. CANADY. Yes, if the gentleman would yield, I think that the gentleman's reaction goes beyond what my suggestion was.
My suggestion is, when a settlement has been concluded—it has not yet been approved by the court, but the parties have reached agreement, it seems to me that if the government has specific information about specific acts of discrimination by the party that has entered into the settlement agreement, that would be helpful information to provide.
I guess one question I have, once the court approves the settlement, is there any problem——
Mr. FRANK. No, I yielded to you to respond to me.
It seems to me that the majority is also sort of acting as an advocate for Mr. Kummer's letter. Mr. Kummer, it appears to me, has belatedly gotten concerned about discrimination. But it did seem to me he was looking for a whole lot.
Page 64 PREV PAGE TOP OF DOC
I guess it does seem to me Mr. Kummer is asking for, and the majority is endorsing a request that the law enforcement agency turn over to the lawbreaker far more information than I have ever seen us ask to be given to the lawbreaker in any other case.
With that, we have to go vote.
Mr. CANADY. As the gentleman indicates, we do have to go vote. Unfortunately, I believe there is a series of votes pending on the floor. So it will be some time before we can come back and complete the hearing.
What I would suggest to the members is that we will reconvene at 12:30 or as soon thereafter as the members can get back from the votes they are going on.
Mr. WATT. Mr. Chairman, could I just inquire what the chairman's intentions are about the number of rounds? Because I have a commitment at 1. I am trying to see whether I need to revise that.
Mr. CANADY. The hearing may go beyond 1. I would hope that we would be——
Mr. WATT. That's about as forthcoming as you said the Department of Justice was in its response to Adam's Mark.
Mr. CANADY. I have a second sentence to add to that.
Page 65 PREV PAGE TOP OF DOC
Mr. WATT. Oh, okay.
Mr. CANADY. I would hope that we would be done between 1:30 and 2. That would be my hope.
Mr. WATT. Thank you, Mr. Chairman.
Mr. CANADY. The subcommittee stands in recess.
[Recess.]
Mr. CANADY. The subcommittee will be in order.
Mr. Lee, I apologize for the interruptions and for my delay in returning. I appreciate your patience. I hope we will be able to proceed now to the conclusion without further interruption.
I now recognize the gentleman from Arkansas.
Mr. HUTCHINSON. Thank you, Mr. Chairman.
I appreciate Mr. Lee's patience in these hearings. I may not use all of the time, but I wanted to inquire into a couple of different areas. I had a good discussion with you before concerning the criminal civil rights violations, which I was interested in.
Page 66 PREV PAGE TOP OF DOC
I noticed in your testimony that you cited 350 law enforcements, and I don't remember offhand whether that was prosecutions or investigations. Do you recall?
Mr. LEE. That's prosecutions of police officers and other law enforcement officers under 242.
Mr. HUTCHINSON. Now, the question I was going to ask was whether these were misdemeanor or felony prosecutions of these police officers. If you need to get back to me on that, that's fine, too, but I am interested in that area.
Mr. LEE. Yes, I will have to get back to you. My understanding is that most, if not all, of those are felonies, but I will get back to you.
Mr. HUTCHINSON. If you could, I would appreciate that.
Now I want to talk about the charter school issue in Louisiana, and I guess this also would be a nationwide issue. First of all, the charter schools—of course, we are talking about public charter schools, which is an initiative that the President has encouraged and something that, you know, we have pushed in Arkansas. It is my understanding that if you have a Federal desegregation court order in which the school district is under review or supervision, that any new schools would have to get the authority of the court in order to start or change the consent order. Would that be correct?
Mr. LEE. Well, it is a little more complicated than that, but that's generally the situation. Most school districts operating under a decree with respect to expansion or construction or opening new facilities would have to obtain the permission of a court.
Page 67 PREV PAGE TOP OF DOC
Mr. HUTCHINSON. And I read the pamphlet, I guess it is, that was prepared by the Department of Education, but it was in consultation, I believe, with your division in reference to charter schools and compliance with court orders and the civil rights issues involved in that.
The concern that I would have is whether the Department is being supportive or obstructive in terms of the charter school movement.
I am going to let you just comment on that in a minute, but I think I remember in reading the materials, there was one case in which obviously they may need to go to the court to make sure that this is in compliance; but I believe in one instance a Federal judge indicated that there was not a problem, and I believe the Department appealed from that Federal court decision. And this is a little bit problematic to me because again we should help accomplish this initiative, because regardless of race, there is an interest, as the President has indicated, in the development and growth of the charter schools as new options for public schools to improve education.
I know in Louisiana that the State is trying to do something to improve the educational circumstances for minorities and everyone, and they just see the Department of Justice as a roadblock rather than someone who is a part of the team to accomplish this and to get over hurdles. Could you just comment on your view on this?
Mr. LEE. Well, first, I would like to speak personally and then I will answer that question.
Page 68 PREV PAGE TOP OF DOC
I send my children to public schools, and it has been my experience that some of the best public schools are the best because they have the active involvement of parents. And I think the charter school movement is to be congratulated because that can be an avenue for parents who want to be active in public education to be active, and I think that the President and the Congress are right to be as assistive of charter schools as possible.
Now, how does the Civil Rights Division fit into this picture? There are perhaps at this point 1,700 charter schools in this country. Something like 50 are located in districts where the Civil Rights Division has an order or a consent decree of some kind. So the number is relatively small.
In the time I have been on board—and you know, we will provide the information in support of my statement—but we have objected only to three charter schools in the time I have been on board. I think Mr. Vogel has a higher number. We can provide the information and clarify the situation.
I don't know particularly——
Mr. HUTCHINSON. Could I interrupt you? You said that there are 50 that have consent decrees and that you only——
Mr. LEE. There are only 50 charter schools that exist in the districts covered by our consent decrees. We have objected to only three charter schools.
Page 69 PREV PAGE TOP OF DOC
Mr. HUTCHINSON. What happened to the other 47? Did they not have to go and get some kind of authority from the Federal judge to start the school? Did they have to go through the Department of Justice review?
What happened to the other 47?
Mr. LEE. Most of them, we didn't object to, and some we have been assistive of.
I believe that those who have been proponents of charter schools have sometimes been not getting as much assistance essentially from all levels of government, and sometimes they are mad at the school district, sometimes they are mad at the Federal Government, but our stance on this is to be very clear about what our obligation under the law is. That is, we can't be in a situation of impeding the desegregation process in those districts where we have decrees that require us to promote and to serve the interests of the court order.
Our experience is not a situation where there is a bright line that says, you shall never proceed on something like this. What we have found is that parents and those who want to start a charter school, who don't have the information, they don't have—you know, they may not have a good relationship with the school board, they may not have good information about what the court order requires. That's what led us to assist the Department of Education, preparing a document that actually explains this for those parents and other proponents and explains it for school districts.
Our experience has been that sometimes the opposition doesn't come from the United States, it comes from the school district, and sometimes has nothing to do with the consent decree or the order. It has to do with finances and things of that kind.
Page 70 PREV PAGE TOP OF DOC
Mr. HUTCHINSON. Are you familiar with the one instance which I referred to in which the Federal judge indicated it was not a violation of the consent decree, but the Department appealed that? Is that one of the three that you mentioned?
Mr. LEE. Well, I would have to get back to you on that. I am not familiar with that, but you know——
Mr. HUTCHINSON. And that's fine.
Let me move on to one other point and that's the City of Los Angeles. It's my understanding that the Department has made a decision to pursue a review of the City of Los Angeles Police Department and to start negotiations with them on a consent decree—am I characterizing that correctly—and that the city resisted. And I guess my question is, has the Department made a decision to file a lawsuit in that instance, or where are you on that?
Mr. LEE. I have authorized litigation against the City of Los Angeles on a pattern and practice case involving the Los Angeles Police Department. The division has had an investigation of the LAPD since 1995, I believe, and we have done what I think is a pretty thorough investigation.
What has come to light involving particularly the Rampart area and the allegations and charges about corruption and other kinds of activities that are just horrifying in terms of making life much more difficult for law enforcement across this country because some of those allegations and some of those admissions are pretty bad, that has obviously propelled forward our investigation.
Page 71 PREV PAGE TOP OF DOC
After I advised the City of Los Angeles of our decision, after conducting our investigation, the City of Los Angeles took the position they wanted to talk to us. So we have been in negotiation with a team that includes someone from the mayor's office, the city council, the city attorney.
Mr. HUTCHINSON. Are those negotiations ongoing?
Mr. LEE. Those negotiations are ongoing. They have been ongoing for about 2 months now.
Mr. HUTCHINSON. And so no decisions—you are withholding the lawsuit being filed while those negotiations are ongoing?
Mr. LEE. Yes, sir.
Mr. HUTCHINSON. And no final decision has been made as to whether those negotiations will be successful or not?
Mr. LEE. That's correct.
Mr. HUTCHINSON. Okay.
Mr. Chairman, my time is up and I yield back. Thank you, Mr. Chairman.
Page 72 PREV PAGE TOP OF DOC
Thank you, Mr. Lee.
Mr. CANADY. Thank you.
The gentleman from Georgia, Mr. Barr, is recognized.
Mr. BARR. Thank you, Mr. Chairman.
Mr. Lee, are you familiar with a task force maintained either at Justice or the FBI called VAAPCON?
Mr. LEE. I have heard of VAAPCON, yes.
Mr. BARR. That apparently is an acronym for Violence Against Abortion Providers Conspiracy Task Force.
Have you been involved in any discussions or reviewed any paperwork regarding VAAPCON?
Mr. LEE. No.
Mr. BARR. Are you familiar with the files that VAAPCON apparently maintains on organizations such as the, Conference of Bishops, the Christian Coalition, Concerned Women for America and other groups?
Page 73 PREV PAGE TOP OF DOC
Mr. LEE. I have never seen those files. The files you referred to, I believe, were created in 1994–1995. I came to the Department in December 1997.
Mr. BARR. Would it concern you if the FBI were, in fact, maintaining files on organizations with no known violent tendencies such as the Conference of Bishops, the Christian Coalition and Concerned Women for America and other groups?
Mr. LEE. Well, as I said, I am not familiar with the files. There have been, as I understand it, a newspaper article or a magazine article about this situation. What I do know is that the VAAPCON effort was a task force that was designed because there were concerns about whether there was a conspiracy to use violence against clinic providers, and like any task force of the United States Department of Justice or the FBI, it would be subject to the Privacy Act and to Attorney General guidelines, and I would be very surprised if files of the kind you mentioned were created.
Mr. BARR. Would it bother you if they were?
Mr. LEE. Yes.
Mr. BARR. Have you looked into this then? Because there are allegations out there, including, as you have mentioned, some recent media articles that claim to have evidence that the FBI has, in fact, maintained files on what by all accounts I would think would be very credible organizations—the Conference of Bishops, the Christian Coalition.
One may disagree or agree with the agenda of a particular group, but I would certainly hope you would agree, that alone would not justify in any way, shape or form the government maintaining files on organizations in the absence of any evidence that they are engaging in and/or are likely to engage in criminal activities.
Page 74 PREV PAGE TOP OF DOC
Mr. LEE. Let me answer it this way: The Attorney General some 1 1/2, 2 years ago, decided to have another task force concerning clinic violence after Dr. Slepian was shot in Northern New York.
I am the Chair of that task force. We have a database which consists of data to be used for law enforcement purposes, and I can assure you that we live up to the Privacy Act and we live up to the Attorney General guidelines on domestic terrorism, and we have nothing of the kind that you are talking about.
Mr. BARR. In other words, the task force that you are talking about would be one that would be looking at direct evidence that any particular individual or group may have been associated with terroristic or violent activities in violation of Federal law?
Mr. LEE. No. Ours is a task force that coordinates prosecution of conduct that is violative of our laws with respect to the provision of medical care at clinics.
Mr. BARR. Right, pursuant to potential violations of Federal laws?
Mr. LEE. That's right.
Mr. BARR. And you would not—can you give us assurances today that no task force, no activity is being conducted by the Civil Rights Division to gather material on groups or maintain files on any groups other than those as to which there is credible evidence that they have been engaging in or might engage in a violation of Federal laws?
Page 75 PREV PAGE TOP OF DOC
Mr. LEE. Absolutely.
Mr. BARR. Here again, I would ask, would you commit to us today to check out these stories that we have seen recently?
And I know the FBI wrote to Congressman Taylor from North Carolina, but questions remain, these stories remain, and I would think and I would hope that your department would check these out. Would you do that?
Mr. LEE. Yes, sir.
Mr. BARR. And get to me?
Mr. LEE. Yes.
Mr. BARR. Thank you very much.
Thank you, Mr. Chairman.
Mr. CANADY. Thank you. We will do a second round of questions now, beginning with Mr. Watt.
Mr. Watt, you can go ahead.
Page 76 PREV PAGE TOP OF DOC
Mr. WATT. Mr. Chairman, I would like to yield to Mr. Scott, our member emeritus on this subcommittee.
Mr. CANADY. Welcome back.
Mr. SCOTT. You thought you had gotten rid of me.
Mr. CANADY. I didn't get rid of you.
Mr. WATT. As much of my time as he may consume.
Mr. SCOTT. Thank you, Mr. Chairman.
Thank you, Mr. Watt.
Mr. Hyde asked questions about other forms of discrimination other than racial, and there is a piece of legislation that is finding its way into a number of different bills called ''charitable choice.'' I wanted to ask you a couple of questions about that.
Does the Civil Rights Division support that part of the legislation which allows federally funded programs to discriminate against people based on religion?
Mr. LEE. Mr. Scott, I don't believe that the Department of Justice has taken a position on the legislation you are talking about, and I have had no opportunity to review that. So what I would like is to have an opportunity to review the legislation referred to. I have not read it.
Page 77 PREV PAGE TOP OF DOC
Mr. SCOTT. If a religious organization can discriminate based on religion, it doesn't take a rocket scientist, I think you would agree, to convert that into racial discrimination.
Mr. LEE. I think there are concerns that should be considered in these charitable trust proposals. I think that there is a lot of good that could be done with involving religious institutions in the provision of services; but on the other hand, we need to make sure that our civil rights laws are lived up to and we need to make sure that there is not discrimination that results.
I would—in reading the legislation, I will look to see if we can accomplish both purposes, but it is very important in the provision of services funded by the Federal Government that there not be discrimination on any basis.
Mr. SCOTT. So most of the versions of charitable choice have a specific provision that allow the federally funded program to discriminate based on religion, and that is to tell a job applicant for a federally funded drug program, for example, applying for a job as a drug counselor, that some versions of charitable choice allow the program to tell that person, no, we don't hire your kind because you are the wrong religion.
As I understand your testimony, you would have concerns about that?
Mr. LEE. Well, based on what you are telling me, I think I would have concerns, and I would read that—I would look forward to reading that provision very carefully to make sure that in providing services through religious organizations that there not be discrimination.
Page 78 PREV PAGE TOP OF DOC
Mr. SCOTT. Okay. Some of the versions have a provision that the recipient—that the program is declared not to be in receipt of Federal aid. Some of the voucher programs in the education bill provide that a school receiving the vouchers shall not be considered in receipt of Federal aid, but the student is in receipt of the Federal aid.
Now, it's my understanding that if the school were, quote, ''in receipt of Federal aid,'' you would have various enforcement mechanisms at your disposal, not the least of which would be withholding of Federal funds; is that right?
Mr. LEE. Federal fund recipients are governed by title VI of the Civil Rights Act of 1964, which provides that there be no discrimination with respect to benefits and services provided by such recipients. So there are procedures for complaints to be filed and for investigations to be made to review such allegations, and title VI and its regulations specify certain potential remedies, and one of those remedies is the cessation of Federal funds.
Mr. SCOTT. Though, all of those tools will evaporate if the school is declared to be not in receipt of Federal funds; is that right?
Mr. LEE. Well, if the school chooses to forgo Federal funds, it would be——
Mr. SCOTT. No, no. If the legislation states in the legislation that for the purposes of the grant, the school will be considered not in receipt of Federal funds, then those enforcement mechanisms would evaporate?
Page 79 PREV PAGE TOP OF DOC
Mr. LEE. If an institution is deemed not to be in receipt of Federal funds, on its face it would appear that it would not be governed by title VI. I would like the opportunity to take a closer look at that.
Mr. SCOTT. The problem is if a school—if a program were running essentially a segregated academy, you would be stuck with having to wait for an individual plaintiff to file an individual suit and get individual relief as the only thing you could do—if you could find such a person; whereas if the school or program were in, quote, ''receipt of Federal funds,'' you would have much more in terms of civil rights enforcement and remedies at your disposal?
Mr. LEE. It is a true statement that the range of potential remedies is greater if the institution is deemed to be a recipient of Federal funds.
Mr. SCOTT. As legislators, one of the things that we look at is how the legislation that we are passing may affect your operations. Is your budget sufficient to fulfill your mission?
Mr. LEE. We believe that it would be appropriate for this subcommittee to espouse greater funding for the Civil Rights Division. Over the years, the Civil Rights Division has been given additional jurisdiction, but not the funds really to carry that forward; and I am talking about not just small kinds of things, but things like our pattern and practice jurisdiction against police departments that Mr. Hutchinson asked me about with respect to Los Angeles.
Page 80 PREV PAGE TOP OF DOC
We received that jurisdiction in 1994, but got no additional Federal funds.
We have undertaken to have a worker exploitation task force. We received no Federal funds for that. We had a church arson task force that was initiated after Congress appropriately devised a new law and gave us additional jurisdiction, but we had no additional funds for that.
Last year the administration, with the consent of the Congress, did seek and get us additional funding, but I have to say that in terms of the long term that has not made up for the fact that for many years the Civil Rights Division has basically been running on empty.
I believe that there are important things to be done, that need to continue to be done, and I think that giving additional funds to the Civil Rights Division is critical to that. And I am talking about initiatives under the Americans With Disabilities Act that we have proposed and that the administration has been arguing for to deal with providing access to basic civic involvement for those with disabilities.
I am talking about efforts to provide outreach training and public information to people like parents who might seek to start a charter school, or police departments who want to know what the best practices are, or to parents who—in school districts who want to know how to go about seeking unitary status. The gamut runs through all of our litigation.
I believe that one of the things that we have learned from the enforcement of the Americans With Disabilities Act, that the outreach and training and public information component is pretty important to this field.
Page 81 PREV PAGE TOP OF DOC
Sometimes the division has run into resistance and problems because people just don't understand what the statutes stand for and what they provide. If we had a greater ability to do outreach, I believe that we would be able to resolve many more matters.
We also obviously have a continuing need to deal with the problem of police misconduct. I think our pattern and practice jurisdiction has been useful in dealing with an issue that many Americans see as very troublesome. I think we have dealt with it in a very useful way. Most of our cases have ended up in conciliation, settlements, with model procedures that other departments can look to.
One thing I am particularly proud of is what is happening in racial profiling. Last June, June 1999, the Department of Justice held a conference and only two or three jurisdictions were voluntarily keeping records on racial profiling. Because of our efforts, because of the efforts of the Civil Rights Division and the Department of Justice to sit down with police departments, civil rights groups, unions and all the relevant actors in communities, we now have over 100 jurisdictions voluntarily keeping records on whether racial profiling exists or not. That's quite an achievement, and I think that's the kind of thing that we need to do, not only with our enforcement program but with the outreach program.
There are a number of other issues which I would like the opportunity to tell you about, perhaps I should do it in writing, where I think additional funding would not just allow the division to expand its work, but allow the division to survive and do its work, period.
Mr. CANADY. Thank you. The gentleman's time has expired.
Page 82 PREV PAGE TOP OF DOC
The gentleman from Georgia is recognized.
Mr. BARR. Thank you, Mr. Chairman. I appreciate very much the Chair holding this hearing today. In light of the, I think, very unfortunate and unprofessional attack on the staff launched by the other side earlier, I have again spent a little bit of time during the hearing today going through Mr. Vogel's memo and find it to be extremely professional, very well-documented and much more so than many other memoranda that are prepared by committee and subcommittee staffs.
The fact that a member may disagree with some of the conclusions or questions posed I think does not in any way, shape or form render appropriate an attack on a member, a professional member of this staff, for doing their job. I think this is very unfortunate. This is the first time that I have heard a member stoop to that, to attack the members of the staff for doing their job, and I just don't think that the record ought to go silent on that issue.
I wish to commend Mr. Vogel and the subcommittee chair for preparing this report. It raises a number of questions that the other side may not agree with, but the job of this subcommittee is to ask the questions. If the agency over which this committee, this subcommittee, has jurisdiction, in this case the Civil Rights Division of the Department of Justice, over cases in which they are involved, questions raised by GAO, some of the areas in which they are spending their time that seem very questionable at best, such as the—I was reading here about the Law School Admissions Council, whether or not the Federal Government needs to be dictating the amount of time that students can take on law school tests, their apparent responsiveness to outside forces, such as Jesse Jackson, to involve themselves in the number of suspensions that a local school can hand out in their efforts to protect students, I think these are very legitimate questions. I don't believe that it is the role of the Federal Government to be running our Nation's schools.
Page 83 PREV PAGE TOP OF DOC
Where there is legitimate, substantive evidence of discrimination, certainly that is the role of the Department of Justice and, in particular, the Civil Rights Division. We want to make sure that they do their job and in those areas where they are doing their job, and those are many, we certainly ought to encourage them. But simply because that is the case, yet there are other areas in which they are not using taxpayer resources as wisely as they should, to simply raise these questions, I think, is very legitimate and very proper. I think it is unfortunate that those of us, including staff who are just doing their job, have to, as Chairman Hyde had indicated earlier, have their motivations impugned by other members is very unfortunate. I have not heard that before, and I hope that we don't hear it again.
So I think this has been—and I know, Mr. Chairman, you have additional materials to go into. I commend you for this hearing and for your continued effort to conduct legitimate oversight and yield the balance of my time to you, Mr. Chairman.
Mr. CANADY. Thank you, Mr. Barr.
Mr. Lee, I want to turn attention to the GAO reports which I know you are familiar with and to which reference has previously been made. There are two that have been issued; another is in the works and I think we will receive toward the end of September. I don't know that we will have an opportunity to do anything with it, but hopefully that will also prove of benefit to the division.
First, I want to focus on the report of March 30th of this year, under the subject Civil Rights Division Fiscal Year 2000 Annual Performance Plan Could Be Improved, and in this the GAO looks at a number of issues related to the division's 2000 annual performance plan.
Page 84 PREV PAGE TOP OF DOC
In the report on page 4, it is stated that the division developed an annual performance plan for fiscal year 2000 that included performance goals and measures. We believe that the plan could be improved by establishing more results oriented and quantifiable performance goals and measures and by providing a closer link between the division's goals and its organizational component measures.
They went on to say; that is, the GAO went on to say, that the division's plan appears to be weighted toward measuring the quantity of completed activities rather than the outcome or results of such activities.
Now you had a letter in response to that, I believe. No, I guess that was on the other—yes, you had a letter in response in which you acknowledged, we agree that our plan, and I quote your letter, could be enhanced by including more results oriented and quantifiable performance goals and measures and over time we will seek to achieve greater progress in this area.
And there is going to be a question, but let me also refer to the report of the GAO dated February 17 of this year, entitled ''Civil Rights Division Policies and Procedures for Establishing Litigation Priorities Tracking and Managing Case Organization and Disseminating Litigation Results.''
In that report, the GAO noticed that the division at the time the review was conducted was implementing a new database system called Interactive Case Management, ICM, that was scheduled to become fully operational by July 2000 at a cost of $800,000 for development, design and first year maintenance.
Page 85 PREV PAGE TOP OF DOC
The report goes on to say that we mentioned to division officials that the case-related activity code, as part of this new system, ICM, which covers all case-related hours except court time, seemed broad and might not be specific enough to capture information needed to assess performance under the Government Performance and Results Act.
For example, the system could not generate information on broad subcategories of case-related hours such as the hours spent on settlement negotiations. According to a senior division official, to gain attorney acceptance and compliance with tracking time charges, the division limited the number of activity codes used so that attorneys did not find it too burdensome to enter the information.
Agency officials told us that the time reporting module had not been finalized and that they would take into consideration the issues we had raised.
I would just like to get any response that you have to those particular points that the GAO made. I am interested, in particular, about the status of the new ICM system. Is it fully operational? Are you experiencing any problems, or any comments you would like to make concerning that?
Mr. LEE. Mr. Chairman, first let me say that I appreciate the help that the GAO has given us by reviewing some of our management activities.
If I can, my understanding is that the GAO has not done any reports. They have issued two informational letters.
Page 86 PREV PAGE TOP OF DOC
Mr. CANADY. You are correct, and these are not headed reports, but they are the letters that I am referring to.
Mr. LEE. Yes. Yes. Well, when I started in this position, I wanted to make sure that we had a case management system that was useful not just from the point of view of the management of the Civil Rights Division but also the overseers, and I felt that it was important to have a case management system. So I am proud that we instituted it, you know, with some degree of sacrifice because of the amount of money it took. But I felt that it was very important and we did it before the GAO came upon us, and so I am proud of the fact that the GAO has generally noted that we have made good progress in this direction.
Now we have considered what the GAO has said and we are going to be working in the subsequent versions of the case management system on providing the kind of detail that we think could be done expeditiously and would be helpful to the management and to Congress and to all others.
I think it is very important for the people to know how this division is being operated.
We have—I could check on this but I believe that we have a pilot version of the case management system and we will be expanding it within the next few months to the entire division. At that point, I can tell you better with respect to what kinds of information we will be putting on. But certainly we will be happy to work with GAO and appreciate the advice they have given us.
Page 87 PREV PAGE TOP OF DOC
With respect to the annual performance plan, it is in fact very difficult for most law enforcement agencies to come out with what is called result-oriented, I think, criteria and the field work——
Mr. CANADY. The gentleman's time has expired but I will recognize myself now, so we will continue.
Mr. LEE. We have that—we believe we should be moving in that direction, we should be moving toward results-oriented criteria, and in the next budget cycle we are making proposals to address the very issues that GAO has raised.
I would also like to sort of put this in perspective. Mr. Chairman, the GAO was asked to look at a rather broad range of issues, and I think it is a measure of how we operate at the Civil Rights Division, that they have focused on, the relatively narrow ones of case management and this issue of the performance criteria. But again I say, I appreciate the help and, you know, we try not to decline it.
Mr. CANADY. Let me continue on the issue of case management or an issue related to that.
As you know, since January I have been in communication with the division seeking to obtain information related to school desegregation cases of which the division is involved either as a party or in some other capacity. We have to date, I think, received copies of the consent decrees or court orders in most, if not all, of those cases, although that could take some period of time for the division to get those in hand.
Page 88 PREV PAGE TOP OF DOC
I have also, from the outset of our communications with respect to this, requested a status report on each of those cases. Now, I understand there are about 450 cases.
To date, I have not received a status report on the cases. It was suggested in some of the correspondence that I received that it would be unduly burdensome to present the subcommittee with a status report on all the cases, and that a representative sample of the cases might be dealt with instead; but we have not received that either.
I guess my question is, why can't we get a simple status report on those cases? I would think that in whatever system you have for managing your cases, you would have the ability, without undue burden, to say the last thing that happened in a particular case; if there is any pending issue in the case, if a motion has been filed that is pending. And I realize some of these cases that you are involved in you are not the primary party by any means, but if you have lawyers that are doing anything on these cases they should be able to tell you, without great difficulty, what the current status of the case is and the last action that was taken in the case.
So I am candidly puzzled that we haven't been able to get that information from the division.
Mr. LEE. Well, I appreciated the opportunity yesterday to talk to you about this. We will provide the last litigation action and the current status of our cases to you. We will go ahead and do that.
My understanding is that perhaps there was some misunderstanding as to what was desired, but we will go ahead——
Page 89 PREV PAGE TOP OF DOC
Mr. CANADY. Well, we were asking for more than that. We were asking what your future plans were for the case, but I will settle for less, which is not unusual in this oversight process, as I think all the members and anyone from the Department who has been involved in it understands.
Mr. LEE. We will provide it.
Mr. CANADY. Okay. When?
Mr. LEE. What I would like to do is——
Mr. CANADY. I am leaving. I won't be here in the next Congress, and I would like to see it soon.
Mr. LEE. We will provide it to you, sir.
Mr. CANADY. Can we have it—again, I am not——
Mr. LEE. I will be giving you something in the framework of a few weeks, I believe, to——
Mr. CANADY. If you could do that, I think that would be beneficial. Again, it is not our interest to impose an undue burden on the people in the division to divert them from their other work, but it just seems to me that this is information that should be readily at hand and that you would want to have readily accessible to you.
Page 90 PREV PAGE TOP OF DOC
So I would very much appreciate it if we could have that within a month. Again, I would just point out that this is an effort that began almost at the first of the year; it was certainly in January.
Mr. LEE. On behalf of our folks, I think now that we understand what you are asking for, we will be happy to provide it and we will try to meet that deadline of a month.
With respect to the decrees, I believe you have at this point 425 out of potentially 450 decrees, and we will be working on the remainder as well.
Mr. CANADY. Okay. Well, I do appreciate that.
Let me, in the little bit of remaining time that I have, turn to another subject, which has been the subject of discussion previously here in hearings. I want to particularly focus on an affidavit that has been filed in a case in New York that is pending in the Eastern District of New York. I am sorry we didn't give this to you before today but I understand that a copy of this affidavit has been provided to you today. It is in the case of Candace Carrabus against Alan Schneider, the Personnel Officer of the County of Suffolk, and Suffolk County.
Do you have some familiarity with this affidavit to which I make reference?
Page 91 PREV PAGE TOP OF DOC
Mr. LEE. I had an occasion—well, I had the opportunity to flip through it.
Mr. CANADY. Maybe during lunch when we were out of here you would have had a chance.
As you know from looking at it, this is an affidavit filed in a case related to Suffolk County and the Police Department of Suffolk County by someone who took the employment test administered to applicants for law enforcement positions in the Suffolk County Police Department.
The petitioner in this case is complaining about the test, and the central complaint is that the test has been constructed so that the element of the test that relates to the cognitive ability of the person taking the test has been reduced, and it is more of a personality test than anything else.
I will just read some of the questions that this applicant states she remembers occurring on this test administered by Suffolk County. One question was, how do you feel about shift work? And there are certain possible options. Another question, how do you rate yourself on physical appearance? How do you rate yourself on popularity? Your high school teachers would most likely describe yourself disciplined as? The number of high school clubs and organized activities such as bands, sports, newspapers, et cetera, in which you participated in? How would you rate yourself in the ability to do things as well as most other people? During your high school years, how would you rate your attendance record? What was your grade average in all major courses in high school? Do you have any friends who influenced your decision to become a police officer? How many good friends do you have? And so on, a number of other questions along those lines.
Page 92 PREV PAGE TOP OF DOC
Now, it is the contention of the petitioner in this case, who had previously taken a test administered by Suffolk County Police Department and made 100, had a perfect score on that, and who on this test had a score of 75, that the test has been changed in the way that I described to minimize any cognitive ability element in the test.
I just want to ask you what you know about the test that was administered to Candace Carrabus and if the Department has had any role in determining the nature or the content of that test?
Mr. LEE. Right. The Department has played no role in the questions that you are talking about and in framing the test. The test that the individual has submitted an affidavit about was devised by an expert that was agreed to by the United States as party, Suffolk County and other parties to a case, in order to devise a test. If I could back up and explain what I know about this, I can just tell you just some of the basic facts.
Mr. CANADY. My time has expired. What I propose if there is no objection is I will give myself another 5 minutes and then we will give the other members here an additional 5 minutes, and that will be the last round of questions.
Is that acceptable, Mr. Watt?
Mr. WATT. That is fine, Mr. Chairman.
Mr. CANADY. I will go ahead.
Page 93 PREV PAGE TOP OF DOC
Mr. LEE. Suffolk County has used a composite examination for selecting employees. It did so in the prior administration, which I believe the individual says was 1996. The declaration—the affidavit, rather, says she got 100 on the cognitive portion of that test. The problem with the 1996 administration of that test was that Suffolk County threw out the results of the cognitive examination because it was a tainted test. There apparently were proven allegations about widespread cheating. So Suffolk County found itself in a situation where they had to administer another test.
Suffolk County at this point has, again, another composite. When I say composite examination, it continues to have a cognitive examination but it also has other aspects, and I don't know exactly what the other aspects here are, but——
Mr. CANADY. Well, what portion of the test is designed to test cognitive ability? How much of the ultimate grade on the test is determined by questions testing cognitive ability as opposed to questions that test whatever else?
Mr. LEE. Well, I will have to get back to you on questions of detail as to that, but I want to assure you that from the point of view of the United States there has been no watering down. This is a department which hires people who have had at least 2 years of college education and then they administer a series of tests. Personality tests, and I am not—I am not saying—you used the term ''personality.'' I am not sure exactly what the test here is.
Mr. CANADY. I am not, either.
Page 94 PREV PAGE TOP OF DOC
Mr. LEE. Okay. Well, personality measures are not unusual as part of the composite examination or, you know, series of examinations, particularly for police departments. I think that many police departments and many people who—industrial psychologists, basically, have come to the realization that cognitive examinations are an important part of the selection device but there also need to be other measures, particularly when we have police departments who are using community policing, and that we recognize that, yes, cognitive ability is important but also responsibility, self-discipline, attendance, things of that kind are also important.
Mr. CANADY. Well, I think everyone would agree with what you have just said about those other things being important.
Mr. LEE. Yes.
Mr. CANADY. But let me ask this.
Mr. LEE. If I could just add one thing.
Mr. CANADY. Sure. Go ahead.
Mr. LEE. This matter is in litigation. This is a supporting affidavit from a party that is challenging this examination, and so what I would like to do is get you more than one affidavit——
Page 95 PREV PAGE TOP OF DOC
Mr. CANADY. Sure.
Mr. LEE [continuing]. Of a party. You might as well see what the rest of the parties are saying.
Mr. CANADY. I think that would be very helpful to the subcommittee. But let me ask this, and then we can move on from this subject. Does the Department have a position, or has the Department taken a position in this case or in any other case, concerning the weight that should be given to a test of cognitive ability in the employment of police or fire fighters?
Mr. LEE. We have not taken a position per se on the weight. What we have taken a position on is to encourage police departments to use tests that minimize adverse impact but also are highly valid. Some of the measures like personality measures—I am not saying all. I am just saying some of them are rather highly predictive of police performance, as are biographical measures, and sometimes they actually have a greater predictive value than some cognitive ability measures. After all, not all cognitive ability measures are equal.
With respect to the job in question of a police officer, sometimes it is more important to know something about attendance and responsibility than whether an applicant knows an algebraic formula, things of that kind. So we encourage police departments to utilize what is best out there in terms of selection devices that are effective.
We care very much about the quality of police officers, because they are there, after all, the person on the line, and departments depend on them. We feel very strongly that departments should utilize the best possible selection device in order to get the best possible police officers so that the public can be protected and so that communities will have greater confidence in their police officers.
Page 96 PREV PAGE TOP OF DOC
Mr. CANADY. My 5 minutes have expired.
Mr. WATT. If the gentleman needs more time, I will be happy to yield him 2 additional minutes of my time.
Mr. CANADY. Mr. Lee.
Mr. LEE. No, I am finished.
Mr. CANADY. Mr. Lee, let me just thank you.
I now recognize Mr. Watt.
Mr. WATT. Did the gentleman finish his line of questioning? I will yield him some time.
Mr. CANADY. Yes. Thank you.
Mr. WATT. Mr. Lee, I am looking at the affidavit that you have been asked about. The caption of the case is Candace Carrabus, Christopher Barry and some other petitioners against Alan Schneider, Personnel Officer of the County of Suffolk and Suffolk County. Is the Department involved in this case? It is not apparent whether it is or is not from the caption of the case.
Page 97 PREV PAGE TOP OF DOC
Mr. LEE. Well, from the caption the United States is not listed as a party.
Mr. WATT. Are you aware of whether the Department is a party in this case?
Mr. LEE. I am aware that the Department has an employment discrimination case. I am receiving some assistance, and I am told we have intervened in this case.
Mr. WATT. You intervened as an intervenor?
Mr. LEE. We have an underlying Federal case, and I assume this has come up because someone has challenged the examination.
Mr. WATT. Okay. But did the Department play any role in directing the County of Suffolk or officer of the county of the—Personnel Officer of the County of Suffolk to administer this particular test?
Mr. LEE. No. We agreed on an expert.
Mr. WATT. Okay. I take it then if you were following the entreaty that the chairman of the committee has previously issued to you about the City of Torrance case, the Department would be treading very carefully in telling a local department either to use a case or not—to use a test or not use a test because that is how the Department got burned before?
Page 98 PREV PAGE TOP OF DOC
Mr. LEE. Well, as I pointed out, we kind of feel that we didn't get completely burned. We accomplished some good in that case.
In this situation, we have worked very well with Suffolk County, and there have been some challenges to the tests that have been unsuccessful that the county and we have defended against, but this is—you know, this is an open matter and I would like to see how it works out. Obviously, you know, we need to assess the merits of this situation, and we will do so.
Mr. WATT. All right. I just want to thank Mr. Lee for being here and close, Mr. Chairman, by making it clear to both you and Mr. Barr that my attack has never been on a member of this committee's staff.
I assume that every member of the staff works for somebody on the committee, and to the extent that I have issued an attack on anybody it is the superior of the staff member. I have no interest in attacking the staff member here. If he is carrying out the directions of the chairman, then I make it very clear that I disagree with the chairman and made that clear in my opening statement.
If he is operating beyond the scope of his authority, I assume the chairman will rein the staff member in. That's between him and the staff.
What I resent is either the chairman or the staff member saying that they are speaking for the committee when they—you know, it is one thing to oversight the last series of questions that the chairman has had about case management. It is an entirely different thing to go out and try to defend overt racist activities such as those in the Adam's Mark case, and to use the resources of this committee to impede the Department of Justice from pursuing its legitimate civil rights imperatives that we have imposed on it.
Page 99 PREV PAGE TOP OF DOC
So if you all think I need to respond to the staff person, I will make it very clear that my attack was not on some staff person. It was on—unless he was proceeding beyond the scope of his authority. My attack is on the committee itself. If this memorandum reflects the opinion of the committee, then I make no apologies for pointing out that this memorandum does not reflect the opinions of this member of this subcommittee.
I yield back.
Mr. CANADY. The gentleman's time has expired.
The gentleman from Georgia is recognized.
Mr. BARR. Mr. Chairman, one way or another we have gone into in previous hearings with the Acting Assistant Attorney General the misuse of or the violations of the Vacancies Act. I have not gone into that today. I continue to believe that Mr. Lee serves in this capacity in violation of Federal law, but given the fact that I don't think we will get anywhere going into that today, let me just register my continued concern about that matter, and yield back to the chairman for any additional questions that he might have.
Mr. CANADY. Thank you, Mr. Barr. I appreciate your yielding.
At this point, I have just one other area of inquiry for the gentleman and then we will be done.
Page 100 PREV PAGE TOP OF DOC
It is the practice of the division to sometimes seek remedies in settlement agreements that you might not be able to receive if the case had gone to trial, such as contributions to be made to third parties for a particular project. In the Adam's Mark case, for instance, you mentioned one such example of that.
I am interested in asking what the division does to ensure that the money that is paid out to third parties is actually spent in the manner that the United States contemplates? Is there any subsequent monitoring? This is a subject that has come up before when this subcommittee had oversight responsibility with respect to the Environmental and Natural Resources Division because they have a similar practice.
I would like to know what you do to make sure the money is properly expended.
Mr. LEE. Well, in many of our cases we have the ability to obtain monetary relief. It is the—under title II, for instance. In the Adam's Mark case, the monetary relief was actually obtained under a Florida State statute and that gets to the aspect of the case I was trying to talk about earlier, which was the United States was not the only party plaintiff.
I think the party that needs to take credit for this aspect of the relief was actually the State of Florida, and with respect to the other parts of the monetary relief they would be the party, the individual plaintiffs in that case.
With respect to your more general question about when we obtain monetary relief what monitoring do we do, if there is retained jurisdiction we obviously report to the court on whether a particular remedy is carried out. If there is no retained jurisdiction, we would obviously make sure that, as would any prudent counsel, what is provided for in a court order, an agreement, actually occurs.
Page 101 PREV PAGE TOP OF DOC
Unless I have missed something in your question, I think that should give you an idea of what we do, but if I am missing part of it.
Mr. CANADY. Our time is about to expire here. Do you have any other comments you would like to make? Not just about that question but about anything else?
Mr. LEE. Mr. Chairman, I know that you are going to be leaving the Congress soon and I would like to thank you for the interesting time that I have had here, and I wish you the best.
Mr. CANADY. We do live in interesting times.
Mr. LEE. We live in interesting times, and I wish the best of luck to you and your family. Thank you.
Mr. CANADY. Thank you very much. I wish you the best, Mr. Lee. It was a pleasure to meet your wife today. I thank you for being here today, and we will look forward to the responses on the items that we have discussed.
With that, the subcommittee stands adjourned.
[Whereupon, at 1:40 p.m., the subcommittee was adjourned.]
A P P E N D I X
Page 102 PREV PAGE TOP OF DOC
Material Submitted for the Hearing Record
| U.S. Department of Justice, |
| Office of Legislative Affairs, |
| Washington, DC, August 9, 2000. |
Hon. CHARLES CANADY, Chairman,
Subcommittee on the Constitution,
Committee on the Judiciary,
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: This letter responds to a number of requests made at the Civil Rights Division (''Division'') oversight hearing on July 12, 2000. I ask that this letter and enclosures be made part of the hearing record.
Criminal Prosecution of Police Misconduct Cases
With respect to our criminal prosecutions of law enforcement officers alleged to have engaged in willful violations of constitutional rights, Representative Hutchinson asked how many were felony, as opposed to misdemeanor, charges. Approximately 90% of our criminal official misconduct prosecutions involve felony charges.
Enforcement of School Desegregation Orders
Several questions arose at the hearing regarding the Division's enforcement of desegregation orders. First, Representative Hutchinson asked for additional information about a report that the Division had recently appealed a district court's dismissal of a desegregation order.
Page 103 PREV PAGE TOP OF DOC
Based on the information provided at the hearing, it is our understanding that Representative Hutchinson's question refers to United States and Ridley v. State of Georgia. In that case, after receiving information about possible violations of existing court orders, the Division and private plaintiffs moved the district court to return the case to its active docket with respect to the Wayne County, Georgia School District. These concerns involved racially identifiable schools, a decline in minority faculty, and possible disparities in intradistrict transfers, extracurricular activities, and discipline. Last February—without notice to the plaintiff-parties, without receiving any response from the school district, without a hearing, and without making the required factual findings and legal conclusions—the court dismissed the entire Ridley action in the Southern District of Georgia, affecting 21 school districts. We appealed this ruling, pointing out that the Eleventh Circuit has long made clear that a district court must comply with notice and hearing requirements before dismissing a school desegregation case. Pitts v. Freeman, 755 F.2d 1423, 1426 (11th Cir. 1985); see also Lee v. Etowah County Bd. of Educ., 963 F. 2d 1416, 1423–24 (11th Cir. 1992).
On July 11, 2000, the Eleventh Circuit issued a per curiam opinion granting our motion for summary reversal, vacating the district court's order, and remanding our motion to restore the case to the district court's active docket for further proceedings.
Second, in his response to Representative Hutchinson's question about the Division's enforcement of desegregation orders with respect to charter schools, Assistant Attorney General Lee explained that the Division had objected only to three proposed charter schools (rather than the seven listed in the staff memorandum provided to Subcommittee members in advance of the hearing) and offered to provide further clarification on this matter.
Page 104 PREV PAGE TOP OF DOC
The Division has not objected to proposed charter schools in four of the districts listed in the staff memorandum: East Baton Rouge, St. Helena Parish, Monroe, and Avoyelles Parish (please note that Assistant Attorney General Lee is recused from participating in the East Baton Rouge and St. Helena Parish matters).
In East Baton Rouge, the Division expressed concern about the effect of the proposed Children's Charter School on the district's ability to comply with its current desegregation responsibilities. The Division has requested additional information about the proposal but has not entered an objection. Currently, three other charter schools operate in the district. The Division has not objected to these schools (one of which is operated by the same community group that seeks to open Children's Charter School) and has approved proposals for their expansion.
Similarly, in St. Helena Parish, the Division did not object to a proposed charter school but asked for additional information regarding its impact on desegregation. In Monroe, the Division did not object to a proposed charter school but instead requested an evaluation of the proposal's effect on desegregation before court approval. Indeed, the Division helped facilitate an agreement between the school board and the charter school operators that has since allowed the Monroe charter school to open. And in Avoyelles Parish, we again requested information about the effect of proposed charter schools on the district's desegregation responsibilities but did not object. However, the local school board did enter an objection.
Third, Chairman Canady asked for a listing of the most recent litigation activity in each of our open desegregation cases. We are currently working on this listing and will provide it to the Subcommittee as soon as possible.
Page 105 PREV PAGE TOP OF DOC
VAAPCON
Representative Barr expressed concern about recent press reports alleging that the 1994–96 VAAPCON Task Force investigating incidents of violence against reproductive health care providers had inappropriately created and retained files on individuals and groups engaged in legitimate first amendment activity. The Department of Justice takes these allegations very seriously and is currently working to provide a responsive answer with regard to the questions raised. We will be happy to brief the Subcommittee as soon as we learn more.
Charitable Choice
Representative Scott requested the Department' s views about the civil rights implications of various legislative proposals involving the concept of ''charitable choice.'' The Department is currently reviewing these proposals, as well as Representative Scott's subsequent letter to Assistant Attorney General Lee, and will respond to the Subcommittee as soon as this review has been completed.
Civil Rights Division Resources
In response to Representative Scott's request, attached is a summary of the need for additional FY2001 resources for the Civil Rights Division, and the specific issues and initiatives to be addressed by an increase in funding.
Suffolk County Police Department
Page 106 PREV PAGE TOP OF DOC
In discussing ongoing litigation (in which the Division is participating as defendant-intervenor) challenging the hiring examination currently administered by the Suffolk County, New York, Police Department, Chairman Canady asked for additional information about the weighting of various elements of the examination. The examination is a composite of three tests: a cognitive test, a personality inventory, and an autobiographical inventory. All candidates are required to achieve a passing score on the cognitive test in order to be considered for employment. Candidates who pass the cognitive test then receive a total examination score, which is a weighted score based on the candidate's performance on all three examination components. Apart from this, Suffolk County has requested that we not make public any information about test weighting and scoring to prevent compromising test security. We welcome the opportunity to work with the Subcommittee to provide it with the information it needs to fulfill its oversight function, while balancing the County's concerns.
Assistant Attorney General Lee also offered to provide additional materials from the Suffolk County litigation to shed further light on the issues in contention. Those materials are attached.
Interactive Case Management implementation
Chairman Canady asked for a status report on the implementation of the Division' s new Interactive Case Management System (ICM). ICM will be implemented this month, which will allow the Division to roll it out at the same time as the Division deploys its new office automation network, Justice Consolidated Office Network (JCON II). JCON II uses a new operating system, Windows NT, while our current office automation network (JCON I) operates on Windows 95. Since JCON II and ICM require operation on the Windows NT platform, a conversion to both at the same time facilitates maximum efficiency.
Page 107 PREV PAGE TOP OF DOC
I hope this information is helpful to you. Please do not hesitate to contact us if we can provide any additional information.
Sincerely,
| Robert Raben, Assistant Attorney General. |
cc:
The Honorable Melvin Watt
Ranking Minority Member
CIVIL RIGHTS
The Department of Justice is the chief enforcer of the Nation's Constitutional and statutory civil rights laws. Through the enforcement efforts of the Civil Rights Division, the United States Attorney Offices, and the Federal Bureau of Investigation, the Department seeks to protect civil rights and liberties guaranteed all Americans. The FY 2001 President's Budget reflects the Department's commitment to advance the Administration's civil rights agenda and requests a $16 million increase in funding for the Civil Rights Division—a 19 percent increase over the FY 2000 enacted level of $82.2 million.
The additional resources will enable the Civil Rights Division to significantly enhance its investigations and prosecution of criminal civil rights cases, increase the Division's efforts to promote continued compliance with the Americans with Disabilities Act, promote compliance with the Nation's fair housing, lending and employment laws, protect the rights of institutionalized persons, and to expand ''pattem or practice'' investigations and prosecutions thereby addressing egregious violations of widespread civil rights abuses.
Page 108 PREV PAGE TOP OF DOC
Civil Rights Division
Prosecuting Criminal Civil Rights Actions
$482 thousand and 8 positions (5 attorneys) to eradicate egregious criminal activities. This increase will provide resources necessary to enhance the Civil Rights Division's ability to investigate and, where warranted, prosecute civil rights violations in the areas of hate crimes, color of law, and abortion clinic violence.
Fulfilling the Promise: Promoting Compliance with the Americans with Disabilities Act
$2.3 million and 29 positions (12 attorneys) to fulfill the promise of the ADA. This year marks the tenth anniversary of the enactment of the Americans with Disabilities Act. Congress charged the Department of Justice with the responsibility to open the mainstream of American life to over 50 million individuals with disabilities and their families. The first decade of ADA implementation has opened opportunities for millions of Americans. To fulfill the promise of this historic legislation, the Civil Rights Division seeks program enhancements for a comprehensive initiative to meet the remaining unmet needs of people with disabilities throughout the nation.
Civil Enforcement of ''Pattern or Practice'' Police Misconduct
$656 thousand and 5 positions (3 attorneys) to combat abusive, discriminatory, and other unconstitutional actions by law enforcement officials. Through ''pattern or practice'' investigations, lawsuits, and settlements, the Division is implementing remedies for specific law enforcement agencies engaged in illegal conduct.
Page 109 PREV PAGE TOP OF DOC
Protecting Our Most Vulnerable: Combating Abuse and Neglect in Institutions
$389 thousand and 3 positions (2 attorneys) to carry out the Administration's initiative to combat abuse and neglect in institutions, to protect the rights of nursing home residents and youth in juvenile detention and correctional facilities, and to address the mental health needs of individuals in correctional and health care facilities. To this end, this request will significantly enhance the Civil Rights Division's law enforcement efforts by increasing the number of investigations, settlements, and cases and by strengthening the Department's monitoring of settlements to ensure compliance.
Vigorous Enforcement of the Voting Rights Act
$1.8 million and 11 positions (5 attorneys) to assist in the review, required by the Voting Rights Act, of numerous redistricting submissions and other voting changes that will follow the 2000 Census. Specifically, $690,000 will provide the funding necessary for the positions that are required for the timely review of Section 5 voting changes and redistricting proposals submitted by covered jurisdictions. The remaining $1,080,000 will be used for technology improvements and funding to acquire technical expertise for the conversion of data into the digital format compatible with the Civil Rights Division's Geographic Information System.
Fighting for Fundamental Opportunities
The Civil Rights Division requires additional resources to expand programs which seek to protect basic civil rights. These enhancements will provide resources necessary for improvements in the following areas
Page 110 PREV PAGE TOP OF DOC
$143 thousand and 2 attorneys to handle civil rights appeals.
$189 thousand and 3 positions (2 attorneys) to address the influx of employment discrimination cases anticipated as a result of streamlining operations at the Equal Employment Opportunity Commission.
$189 thousand and 3 positions (2 attorneys) to attack in-school segregation, insuring that desegregation has been achieved, to promote diversity, and to insure that non-English speaking students have access to an effective educational experience.
$189 thousand and 3 positions (2 attorneys) to provide training to federal agencies and state and local governments on the legal requirements and investigatory techniques applicable under Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972.
$250 thousand for computer software and technical support to assist the Civil Rights Division's Housing and Civil Enforcement Section in the review of records of lending institutions.
$530 thousand and 8 positions (5 attorneys) to fight immigration fraud and inform immigrant communities of their rights under the law. Resources will enable the Civil Rights Division to address new legislative requirements under American Competitiveness and Workforce Improvement Act.
Page 111 PREV PAGE TOP OF DOC
$1.3 million to meet the Civil Rights Division's litigation support requirements.
Providing Administrative Support to Civil Rights Enforcement
$441 thousand and 13 positions are required to maintain adequate levels of administrative support to the Civil Rights Division's litigating sections. Additional resources will provide support in areas such as financial management and planning, litigation support, information technology and human resources.
| U.S. Department of Justice, |
| Office of Legislative Affairs, |
| Washington, DC, September 6, 2000. |
Hon. CHARLES CANADY, Chairman,
Subcommittee on the Constitution,
Committee on the Judiciary,
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: In the Subcommittee's July 12 oversight hearing on the Civil Rights Division, you asked for a listing of the most recent litigation activity in each of our open desegregation cases. Enclosed please find this listing.
I hope this information is helpful to the Subcommittee. Please do not hesitate to contact us if we can provide any additional information.
Page 112 PREV PAGE TOP OF DOC
Sincerely,
| Robert Raben, Assistant Attorney General. |
Enclosure
cc:
The Honorable Melvin Watt
Ranking Minority Member
CIVIL RIGHTS DIVISION
EDUCATIONAL OPPORTUNITIES SECTION
CONGRESSIONAL RESPONSE (AUGUST 28, 2000)
Note: As requested by the Subcommittee, the dates listed reflect the dates of the most recent litigation activity. However, for many of the cases listed, the latest activity in the case has been non-litigation related. As additional information, we have marked these cases with an asterisk. Examples of such activities include: investigating complaints received by the Department from citizens and/or community groups; requesting updated data and information about the district's desegregation efforts and compliance with existing orders; seeking clarifications of data or information previously provided by the district; negotiating with the district as to how it can resolve any desegregation-Related concerns we have raised; or responding to requests or questions from school districts.
Page 113 PREV PAGE TOP OF DOC
STATE: ALABAMA
Hereford and United States v. Huntsville Board of Education
DJ 144–100–1 (N.D. Ala.)
Date of Last Litigation-Related Activity: July 10, 1998
Nature of Litigation-Related Activity: Plaintiffs' Response to defendant's motion for approval of Williams Middle School and other amendments to the desegregation order.*
Lee and United States v. Central Alabama Community College
DJ 144–100–2–1 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 27, 2000
Nature of Litigation-Related Activity: Joint letter to the court identifying the issues to be considered in the unitary analysis of this institution.*
Bennett and United States v. Madison County Board of Education
DJ 169–1–1 (N.D. Ala.)
Date of Last Litigation-Related Activity: May 4,1998
Nature of Litigation-Related Activity: Order granting motion to amend desegregation order.*
Brown and United States v. Board. of Education of the City of Bessemer
DJ 169–1–2 (N.D. Ala.)
Date of Last Litigation-Related Activity: April 20, 2000
Nature of Litigation-Related Activity: Joint Motion and proposed Consent Order and Settlement Agreement filed.*
Page 114 PREV PAGE TOP OF DOC
United States and Stout v. Jefferson County Board of Education
DJ 169–1–5 (N.D. Ala.)
Date of Last Litigation-Related Activity: February 16, 2000
Nature of Litigation-Related Activity: Report to the Court*
United States and Stout v. Jefferson County (Homewood City Board of Education)
DJ 169–1–5 (N.D. Ala.)
Date of Last Litigation-Related Activity: February 24, 2000
Nature of Litigation-Related Activity: Report to the Court*
United States and Stout v. Jefferson County (Midfield City School District)
DJ 169–1–5 (N.D. Ala.)
Date of Last Litigation-Related Activity: February 10, 2000
Nature of Litigation-Related Activity: Report to the Court
United States and Stout v. Jefferson County (Vestavia City Board of Education)
DJ 169–1–5 (N.D. Ala.)
Date of Last Litigation-Related Activity: February 4, 2000
Nature of Litigation-Related Activity: Report to the Court*
United States and Miller v. Gadsden County School District
DJ 169–1–7 (M.D. Ala.)
Page 115 PREV PAGE TOP OF DOC
Date of Last Litigation-Related Activity: March 21, 2000
Nature of Litigation-Related Activity: Order of Dismissal
Boykins and United States v. Fairfield City Board of Education
DJ 169–1–8 (N.D. Ala.)
Date of Last Litigation-Related Activity: October 6, 1986
Nature of Litigation-Related Activity: Letter from Superintendent to the Court listing faculty ratio of the schools for the 1986–87 school year.
Lee and United States v. Macon (Cullman County School District
DJ 169–1–9 (N.D. Ala.)
Date of Last Litigation-Related Activity: July 11, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.*
Lee and United States v. Macon (Muscle Shoals School District)
DJ 169–1–10 (N.D. Ala.)
Date of Last Litigation-Related Activity: June 6, 1977
Nature of Litigation-Related Activity: Order granting defendant's motion to dismiss plaintiff-intervenor's, Charles L. Carter, motion for a temporary restraining order and further relief*
Lee and United States v. Macon (Tuscaloosa City School District)
DJ 169–1–11 (N.D. Ala.)
Date of Last Litigation-Related Activity: May 18, 2000
Page 116 PREV PAGE TOP OF DOC
Nature of Litigation-Related Activity: Order of Dismissal
Lee and United States v. Anniston City Board of Education
DJ 169–1–12 (N.D. Ala.)
Date of Last Litigation-Related Activity: July 9, 1999
Nature of Litigation-Related Activity: Order approving closure of school and reassignment of grades.*
Lee and United States v. Macon (Tuscaloosa County School District)
DJ 169–1–13 (N.D. Ala.)
Date of Last Litigation-Related Activity: March 29, 197 8
Nature of Litigation-Related Activity: Court of Appeals decision dated March 16, 1979 affirming the April 9, 1979 Order of the district court.
Lee and United States v. Macon (Sumter County School District)
DJ 169–1–14 (N.D. Ala.)
Date of Last Litigation-Related Activity: May 1, 1979
Nature of Litigation-Related Activity: Order staying proceeding with regards to defendants' petition for an injunction.
Lee and United States v. Macon (Greene County School District)
DJ 169–1–15 (N.D. Ala.)
Date of Last Litigation-Related Activity: November 17,1976
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Page 117 PREV PAGE TOP OF DOC
Lee and United States v. Calhoun County Board of Education
DJ 169–1–17 (N.D. Ala.)
Date of Last Litigation-Related Activity: April 7,1999
Nature of Litigation-Related Activity: Order approving consolidation of two elementary schools.*
United States and Horton v. Lawrence County Board of Education
DJ 169–1–18 (N.D. Ala.)
Date of Last Litigation-Related Activity: January 27, 1982
Nature of Litigation-Related Activity: Order vacating reporting requirement.
Lee and United States v. Macon (Jackson County School District)
DJ 169–1–19 (N.D. Ala.)
Date of Last Litigation-Related Activity: March 7, 1977
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.*
Lee and United States v. Macon (Fort Payne City School District)
DJ 169–11–21 (N.D. Ala.)
Date of Last Litigation-Related Activity: July 25, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Lee and United States v. Macon (Limestone County School District)
DJ 169–1–22 (N.D. Ala.)
Page 118 PREV PAGE TOP OF DOC
Date of Last Litigation-Related Activity: July 1, 1991
Nature of Litigation-Related Activity: Order in accordance with Findings of Fact and Conclusions of Law filed July 1, 1991.
Lee and United States v. Macon (Pickens County School District)
DJ 169–1–23 (N.D. Ala.)
Date of Last Litigation-Related Activity: August 27, 1976
Nature of Litigation-Related Activity: Order setting forth criteria for teacher assignment in the district.
Lee and United States v. Macon (Russellville City School District
DJ 169–1–24 (N.D. Ala.)
Date of Last Litigation-Related Activity: February 21, 1975
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.*
Lee and United States v. Macon (Bibb County Board of Education)
DJ 169–1–25 (M.D. Ala.)
Date of Last Litigation-Related Activity: October 11, 1988
Nature of Litigation-Related Activity: Order staying proceeding in case pending outcome of appeals in Etwah, Sylacauga, Talladega City, and Talladega County systems.*
Lee and United States v. Macon (Shelby County School District)
DJ 169–1–27 (N.D. Ala.)
Date of Last Litigation-Related Activity: November 15, 1988
Page 119 PREV PAGE TOP OF DOC
Nature of Litigation-Related Activity: Motion for further relief
Lee and United States v. Macon. (Cleburne County School District)
DJ 169–1–28 (N.D. Ala.)
Date of Last Litigation-Related Activity: May 3, 1979
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Lee and United States v. Macon.(Athens City School District)
DJ 169–1–29 (N.D. Ala.)
Date of Last Litigation-Related Activity: December 16, 1975
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.*
Lee and United States v. Macon (Decatur City School District)
DJ 169–1–32 (N.D. Ala.)
Date of Last Litigation-Related Activity: December 29, 1997
Nature of Litigation-Related Activity: District's notification of proposal to acquire additional site for elementary school.*
Lee and United States v. Macon.(Tuscumbia City School District)
DJ 169–1–33 (N.D. Ala.)
Date of Last Litigation-Related Activity: February 21 , 1975
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.*
Page 120 PREV PAGE TOP OF DOC
Lee and United States v. Macon (Tarrant City School District)
DJ 169–1–35 (N.D. Ala.)
Date of Last Litigation-Related Activity: December 8, 1973
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.*
Lee and United States v. Macon (Sheffield City School District
DJ 169–1–37 (N.D. Ala.)
Date of Last Litigation-Related Activity: July 8, 1977
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Lee and United States v. Macon (Attalla County School District)
DJ 169–1–38 (N.D. Ala.)
Date of Last Litigation-Related Activity: November 11, 1988
Nature of Litigation-Related Activity: Order staying proceeding pending outcome Etowah, Sylacauga, Talladega City and Talladega County systems.
Lee and United States v. Macon (Colbert County School District)
DJ 169–1–40 (N.D. Ala.)
Date of Last Litigation-Related Activity: January 27, 1978
Nature of Litigation-Related Activity: Final Judgment overruling and denying plaintiff-intervenor's motion for further relief or in the alternative request to show cause.*
Page 121 PREV PAGE TOP OF DOC
Lee and United States v. Macon (Cherokee County School District)
DJ 169–1–41 (N.D. Ala.)
Date of Last Litigation-Related Activity: July 25, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.*
Lee and United States v. Macon (Clay County School District)
DJ 169–1–42 (N.D. Ala.)
Date of Last Litigation-Related Activity: July 21, 2000
Nature of Litigation-Related Activity: Order granting in part and denying in part district motion for approval of inter-district transfers.
Lee and United States v. Macon (Clay County School District)
DJ 169–1–42 (N.D. Ala.)
Date of Last Litigation-Related Activity: July 21, 2000
Nature of Litigation-Related Activity: Order granting in part and denying in part Board's petition re: student transfers from Talladega and Randolph Counties.
Lee and United States v. Macon (Blount County School District)
DJ 169–1–43 (N.D. Ala.)
Date of Last Litigation-Related Activity: March 7, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Lee and United States v. Macon (DeKalb County School District)
Page 122 PREV PAGE TOP OF DOC
DJ 169–1–44 (N.D. Ala.)
Date of Last Litigation-Related Activity: July 25, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Lee and United States v. Macon.(Carbon Hill City School District)
DJ 169–1–45 (N.D. Ala.)
Date of Last Litigation-Related Activity: February 2, 1975
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Lee and United States v. Macon (Morgan County School District)
DJ 169–1–47 (N.D. Ala.)
Date of Last Litigation-Related Activity: July 12, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Lee and United States v. Macon (Jacksonville City School District)
DJ 169–1–49 (N.D. Ala.)
Date of Last Litigation-Related Activity: July 11, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Lee and United States v. Macon (Lamar County School District)
DJ 169–1–50 (N.D. Ala.)
Page 123 PREV PAGE TOP OF DOC
Date of Last Litigation-Related Activity: February 2, 1975
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Lee and United States v. Macon (Marion County School District)
DJ 169–1–51 (N.D. Ala.)
Date of Last Litigation-Related Activity: February 2, 1975
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Lee and United States v. Macon (Fayette County School District
DJ 169–1–52 (N.D. Ala.)
Date of Last Litigation-Related Activity: February 2, 1975
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Lee and United States v. Macon (Florence City School District
DJ 169–1–53 (N.D. Ala.)
Date of Last Litigation-Related Activity: March 23, 2000
Nature of Litigation-Related Activity: Report to the Court
Lee and United States v. Macon (Franklin County School District)
DJ 169–1–54 (N.D. Ala.)
Date of Last Litigation-Related Activity: February 2, 1975
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Page 124 PREV PAGE TOP OF DOC
Lee and United States v. Macon (Lauderdale County School District)
DJ 169–1–55 (N.D. Ala.)
Date of Last Litigation-Related Activity: September 9, 1977
Nature of Litigation-Related Activity: Order dismissing plaintiff-intervenors' motion for further relief.
Lee and United States v. Macon (Marshall County School District)
DJ 169–1–56 (N.D. Ala.)
Date of Last Litigation-Related Activity: July 25, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Lee and United States v. Macon (Guntersville City School District)
DJ 169–1–57 (N.D. Ala.)
Date of Last Litigation-Related Activity: July 25, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Lee and United States v. Macon (Cullman City School District)
DJ 169–1–58 (N.D. Ala.)
Date of Last Litigation-Related Activity: July 11, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Page 125 PREV PAGE TOP OF DOC
Lee and United States v. Macon (Piedmont City School District)
DJ 169–1–59 (N.D. Ala.)
Date of Last Litigation-Related Activity: December 16,1977
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Lee and United States v. Macon (Scottsboro City School District)
DJ 169–1–60 (N.D. Ala.)
Date of Last Litigation-Related Activity: July 11, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Lee and United States v. Macon (Winfield City School District)
DJ 169–1–61 (N.D. Ala.)
Date of Last Litigation-Related Activity: February 2, 1975
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Lee and United States v. Macon (Winston County School District)
DJ 169–1–62 (N.D. Ala.)
Date of Last Litigation-Related Activity: February 2, 1975
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Lee and United States v. Macon (Mountain Brook School District)
Page 126 PREV PAGE TOP OF DOC
DJ 169–1–63 (N.D. Ala.)
Date of Last Litigation-Related Activity: March 7, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Lee and United States v. Macon (Innuendo City School District)
DJ 169–1–64 (N.D. Ala.)
Date of Last Litigation-Related Activity: March 7, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Lee and United States v. Macon (Oxford City School District)
DJ 169–1–65 (N.D. Ala.)
Date of Last Litigation-Related Activity: April 6, 1999
Nature of Litigation-Related Activity: Order approving consolidation of Bynum and Coldwater Elementary Schools into K–6 school to be housed at Coldwater Elem.
Lee and United States v. Macon (St. Clair County Board of Education)
DJ 169–1–66 (N.D. Ala.)
Date of Last Litigation-Related Activity: May 9, 2000.
Nature of Litigation-Related Activity: Motion of U.S. to amend or clarify court's April 25, 2000 Order regarding procedures for reactivating case in accordance with Eleventh Circuit precedence.*
Lee and United States v. Macon (Pell City Board of Education)
DJ 169–1–101 (N.D. Ala.)
Page 127 PREV PAGE TOP OF DOC
Date of Litigation-Related Activity: March 13, 2000
Nature of Litigation-Related Activity: U.S. filed a ''No Objection Response'' to the Board's Petition seeking Court's approval of a re zoning plan for elementary schools.
Lee and United States v. Macon (Macon County School District)
DJ 169–2–1 (M.D. Ala).
Date of Last Litigation-Related Activity: October 17, 1977
Nature of Litigation-Related Activity: Order denying Plaintiff Lee's request for investigation of audit findings.
Lee and United States v. Macon (Autauga County Board of Education)
DJ 169–2–6 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 30, 1999
Nature of Litigation-Related Activity: Report to the Court*
Lee and United States v. Macon (Tallassee County School District)
DJ 169–2–7 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 19, 2000
Nature of Litigation-Related Activity: Court ordered that status conference be set for August 29, 2000 and that a joint status report be filed August 24, 2000.*
Harris and United States v. Crenshaw County Board of Education
DJ 169–2–8 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 31, 2000
Nature of Litigation-Related Activity: Order granting motion of U.S. to modify.
Page 128 PREV PAGE TOP OF DOC
Lee and United States v. Macon (Eufaula City Board of Education)
DJ 169–2–9 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 19, 2000
Nature of Litigation-Related Activity: Court ordered that status conference be set for August 29, 2000 and that a joint status report be filed August 24, 2000.*
Lee and United States v. Macon (Elmore County School District)
DJ 169–2–10 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 31, 2000
Nature of Litigation-Related Activity: Order granting motion of U.S. to modify.*
Lee and United States v. Macon (Houston County Board of Education)
DJ 169–2–11 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 19, 2000.
Nature of Litigation-Related Activity: Court Order setting status conference for August 28, 2000 and filing of joint progress report by August 24, 2000 on progress in implementing July 14, 2000 consent decree finding partial unitary status and setting specific actions for district to attain unitary status in remaining areas.
United States and Franklin v. Barbour County Board of Education
DJ 169–2–12 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 19, 2000
Nature of Litigation-Related Activity: Status Conference
Page 129 PREV PAGE TOP OF DOC
Lee and United States v. Macon (Elba City School District)
DJ 169–2–14 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 19, 2000
Nature of Litigation-Related Activity: Court ordered that status conference be set for August 29, 2000 and that a joint status report be filed August 24, 2000.*
Lee and United States v. Macon (Dale County School District)
DJ 169–2–16 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 19, 2000
Nature of Litigation-Related Activity: Court ordered that status conference be set for August 29, 2000 and that a joint status report be filed August 24, 2000.*
Lee and United States v. Macon (Lee County School District)
DJ 169–2–17 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 31, 2000
Nature of Litigation-Related Activity: Order granting motion of U.S. to modify.*
Lee and United States v. Macon (Dothan City Board of Education)
DJ 169–2–18 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 19, 2000.
Nature of Litigation-Related Activity: Court Order setting status conference for August 28, 2000 and filing of joint progress report by August 24, 2000 on progress in implementing July 14, 2000 consent decree finding partial unitary status and setting specific actions for district to attain unitary status in remaining areas.
Page 130 PREV PAGE TOP OF DOC
Lee and United States v. Macon (Henry County Board of Education)
DJ 169–2–19 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 19, 2000
Nature of Litigation-Related Activity: Order setting status conference for August 29, 2000
Lee and United States v. Macon (Chilton County School District)
DJ 169–2–20 (M.D. Ala.)
Date of Last Litigation-Related Activity: October 15, 1999
Nature of Litigation-Related Activity: Report to the Court*
Lee and United States v. Macon (Butler County Board of Education)
DJ 169–2–21 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 27, 2000
Nature of Litigation-Related Activity: Order granting U.S. motion to modify.*
Lee and United States v. Macon (Chambers County School District)
DJ 169–2–22 (M.D. Ala.)
Date of Last Litigation-Related Activity: December 2, 1999
Nature of Litigation-Related Activity: Report to the Court*
Lee and United States v. Macon (Covington County Board of Education)
DJ 169–2–23 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 31, 2000
Nature of Litigation-Related Activity: Order granting U.S. motion to modify.
Page 131 PREV PAGE TOP OF DOC
Lee and United States v. Macon (Russell County School District)
DJ 169–2–24 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 31, 2000
Nature of Litigation-Related Activity: Order granting motion of U.S. to modify.*
Lee and United States v. Macon (Alexandria City School District)
DJ 169–2–25 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 31, 2000
Nature of Litigation-Related Activity: Order granting motion of U.S. to modify.
Lee and United States v. Macon (Andalusia City Board of Education)
DJ 169–2–26 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 19, 2000
Nature of Litigation-Related Activity: Court ordered that status conference be set for August 28, 2000 and that a joint status report be filed August 24, 2000.
Lee and United States v. Macon (Troy City Board of Education)
DJ 169–2–27 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 19, 2000
Nature of Litigation-Related Activity: Court ordered that status conference be set for August 29, 2000 and that a joint status report be filed August 24, 2000. *
Lee and United States v. Macon (Randolph County School District)
DJ 169–2–29 (M.D. Ala.)
Date of Last Litigation-Related Activity: April 18, 2000
Page 132 PREV PAGE TOP OF DOC
Nature of Litigation-Related Activity: Verified Suggestion of Status and Motion by Randolph Board of Education to Dismiss or, in the alternative, for Summary Judgement.*
Lee and United States v. Macon (Lanett City School District)
DJ 169–2–30 (M.D. Ala.)
Date of Last Litigation-Related Activity: June 23, 2000
Nature of Litigation-Related Activity: Consent Order*
Lee and United States v. Macon (Ozark City Board of Education)
DJ 169–2–32 (M.D. Ala.)
Date of Last Litigation-Related Activity: June 30, 2000
Nature of Litigation-Related Activity: Report to the Court*
Lee and United States v. Macon (Florala City School District)
DJ 169–2–33 (M.D. Ala.)
Date of Last Litigation-Related Activity: October 21, 1992
Nature of Litigation-Related Activity: Consent Agreement and Order
Lee and United States v. Macon (Pike County Board of Education)
DJ 169–2–34 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 19, 2000
Nature of Litigation-Related Activity: Order setting status conference for August 29, 2000.*
Lee and United States v. Macon (Coosa County School District)
DJ 169–2–35 (M.D. Ala.)
Page 133 PREV PAGE TOP OF DOC
Date of Last Litigation-Related Activity: July 19, 2000
Nature of Litigation-Related Activity: Order setting status conference for August 29, 2000.*
Lee and United States v. Macon (Phenix City School District)
DJ 169–2–36 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 31, 2000
Nature of Litigation-Related Activity: Order granting motion of U.S. to modify.*
Lee and United States v. Macon (Auburn City Board of Education)
DJ 169–2–37 (M.D. Ala.)
Date of Last Litigation-Related Activity: April 12,2000
Nature of Litigation-Related Activity: Status conference*
Lee and United States v. Macon (Opelika City Board of Education)
DJ 169–2–38 (M.D. Ala.)
Date of Last Litigation-Related Activity: April 12, 2000
Nature of Litigation-Related Activity: Status conference*
Lee and United States v. Macon (Coffee County Board of Education)
DJ 169–2–40 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 19, 2000
Nature of Litigation-Related Activity: Court ordered that status conference be set for August 28, 2000 and that a joint status report be filed August 24, 2000.*
Lee and United States v. Macon (Daleville City Board of Education)
Page 134 PREV PAGE TOP OF DOC
DJ 169–2–41 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 19, 2000
Nature of Litigation-Related Activity: Court ordered that status conference be set for August 28, 2000 and that a joint status report be filed August 24, 2000.
Lee and United States v. Macon (Geneva County School District)
DJ 169–2–42 (M.D. Ala.)
Date of Last Litigation-Related Activity: October 15, 1999
Nature of Litigation-Related Activity: Report to the Court
Lee and United States v. Macon (Enterprise City Board of Education)
DJ 169–2–43 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 19, 2000
Nature of Litigation-Related Activity: Court ordered that status conference be set for August 28, 2000 and that a joint status report be filed August 24, 2000.
Lee and United States v. Macon (Opp City Board of Education)
DJ 169–2–44 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 19, 2000.
Nature of Litigation-Related Activity: Court Order setting status conference for August 29, 2000 and filing of joint progress report by August 24, 2000 on progress in implementing July 14, 2000 Consent Decree finding partial unitary status and setting specific actions for district to attain unitary status in remaining areas.*
Lee and United States v. Macon (Roanoke City Board of Education)
Page 135 PREV PAGE TOP OF DOC
DJ 169–2–45 (M.D. Ala.)
Date of Last Litigation-Related Activity: August 2, 2000
Nature of Litigation-Related Activity: Supplement to Annual Report*
Lee and United States v. Macon (Tallapoosa County School District)
DJ 169–2–46 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 31, 2000
Nature of Litigation-Related Activity: Order granting motion of U.S. to modify.*
Knight and United States v. State of Alabama (State Senior College System)
DJ 169–2–54 (M.D. Ala.)
Date of Last Litigation-Related Activity: August 10, 2000
Nature of Litigation-Related Activity: Motion to modify scholarship program filed by Alabama State University.*
Lee and United States v. Macon (Statewide Special Education Issue)
DJ 169–2–57 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 19, 2000
Nature of Litigation-Related Activity: Court ordered that status conference be set for August 29, 2000 and that a joint status report be filed August 24, 2000.
Lee and United States v. Chattahoochee Valley Community College
DJ 169–2–58 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 21, 2000
Nature of Litigation-Related Activity: Order rescheduling status conference for August 3, 2000.*
Page 136 PREV PAGE TOP OF DOC
Lee and United States v. Southern Union State Community College
DJ 169–2–59 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 21, 2000
Nature of Litigation-Related Activity: Order rescheduling status conference for August 3, 2000.*
Lee and United States v. George C. Wallace Community College
DJ 169–2–60 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 21, 2000
Nature of Litigation-Related Activity: Order rescheduling status conference for August 3, 2000.*
Lee and United States v. Enterprise State Community College
DJ 169–2–61 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 27, 2000
Nature of Litigation-Related Activity: Joint letter to the court identifying the issues to be considered in the unitary analysis of this institution.*
Lee and United States v. Lurleen B. Wallace State Community College
DJ 169–2–62 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 21, 2000
Nature of Litigation-Related Activity: Order rescheduling status conference for August 3, 2000.*
Lee and United States v. Douglas MacArthur State Community College
DJ 169–2–63 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 21, 2000
Page 137 PREV PAGE TOP OF DOC
Nature of Litigation-Related Activity: Order rescheduling status conference for August 3, 2000.*
Lee and United States v. John M. Patterson State Community College
DJ 169–2–64 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 21, 2000
Nature of Litigation-Related Activity: Order rescheduling status conference for August 3, 2000.*
Lee and United States v. Chauncey Sparks State Technical College
DJ 169–2–65 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 27, 2000
Nature of Litigation-Related Activity: Joint letter to the court identifying the issues to be considered in the unitary analysis of this institution.*
Lee and United States v. H. Council Trenholm State College
DJ 169–2–66 (M.D. Ala.)
Date of Last Litigation-Related Activity: July 21, 2000
Nature of Litigation-Related Activity: Order rescheduling status conference for August 3, 2000.*
Lee and United States v. Macon County Board of Education (Statewide Facilities)
DJ 169–2–67 (M.D. Ala.)
Date of Last Litigation-Related Activity: May 17, 2000
Nature of Litigation-Related Activity: Order requiring state defendants to submit report on resolution of state-wide facilities issue by November 15, 2000, and setting status conference for November 21, 2000.*
Page 138 PREV PAGE TOP OF DOC
United States v. Choctaw County Board of Education
DJ 169–3–8 (S.D. Ala.)
Date of Last Litigation-Related Activity: September 21, 1970
Nature of Litigation-Related Activity: Order approving Plaintiff-intervenors' amended motion for further relief.
STATE: ARIZONA
United States v. Phoenix Union High School District No. 210
DJ 169–8–3 (D. Az.)
Date of Last Litigation-Related Activity: January 10, 2000
Nature of Litigation-Related Activity: Report to the Court*
Fisher, Mendoza and United States v. Tucson School District No. 1
DJ 169–8–29 (D. Az.)
Date of Last Litigation-Related Activity: April 13, 1999
Nature of Litigation-Related Activity: Report to the Court
STATE: ARKANSAS
United States v. Cotton Plant No. 1 (Watson Chapel School District No. 24)
DJ 169–9–9 (E.D. Ark.)
Date of Last Litigation-Related Activity: October 27, 1989
Nature of Litigation-Related Activity: Report to the Court*
Page 139 PREV PAGE TOP OF DOC
United States v. Cotton Plant No. 1 (England School District No. 2)
DJ 169–9–12 (E.D. Ark.)
Date of Last Litigation-Related Activity: July 5, 1973
Nature of Litigation-Related Activity: Order dismissing with prejudice Mr. A.W. Woodard's petition to be reinstated.
United States v. Cotton Plant No. 1 (Hazen School District No. 2)
DJ 169–9–18 (E.D. Ark.)
Date of Last Litigation-Related Activity: October 22, 1970
Nature of Litigation-Related Activity: Report to the Court*
United States v. Crawfordville School District No. 2
DJ 169–9–20 (E.D. Ark.)
Date of Last Litigation-Related Activity: June 14, 1973
Nature of Litigation-Related Activity: Order retaining jurisdiction, etc.*
United States v. Cotton Plant School District No. 1
DJ 169–9–40 (E.D. Ark.)
Date of Last Litigation-Related Activity: October 2, 1970
Nature of Litigation-Related Activity: Report to the Court
United States v. Cotton Plant No. 1 (Wabbaseka School District No. 7
DJ 169–9–41(E.D. Ark.)
Date of Last Litigation-Related Activity: August 18, 1970
Page 140 PREV PAGE TOP OF DOC
Nature of Litigation-Related Activity: Order requiring dist. to develop and implement plan with no duplication of grades in any school and requiring district to file report no later than September 15, 1970.*
United States v. Cotton Plant No. 1 (Holly Grove School District No. 7)
DJ 169–9–49 (E.D. Ark.)
Date of Last Litigation-Related Activity: December 15, 1970
Nature of Litigation-Related Activity: Report to the Court*
United States v. Cotton Plant No. 1 (Helena-West Helena School District No. 2)
DJ 169–9–50 (E.D. Ark.)
Date of Last Litigation-Related Activity: September 14, 1970
Nature of Litigation-Related Activity: Report to the Court*
United States v. Hermitage School District 12
DJ 169–10–10 (W.D. Ark.)
Date of Last Litigation-Related Activity: October 29, 1969
Nature of Litigation-Related Activity: Consent Order*
United States v. Bradley No. 20 (Thornton School District No. 26)
DJ 169–10–12 (W.D. Ark.)
Date of Last Litigation-Related Activity: August 18, 1970)
Nature of Litigation-Related Activity: Consent Order
Page 141 PREV PAGE TOP OF DOC
United States v. Junction City School District No. 75
DJ 169–10–18 (W.D. Ark.)
Date of Last Litigation-Related Activity: May 20, 1974
Nature of Litigation-Related Activity: Order removing case from active docket, but retaining jurisdiction.*
United States v. Bradley School District No. 20
DJ 169–10–25 (W.D. Ark.)
Date of Last Litigation-Related Activity: April 28, 1972
Nature of Litigation-Related Activity: Consent Decree and Order re: bus seating assignments.*
United States v. Bright Star School District No. 6
DJ 169–10–33 (W.D. Ark.)
Date of Last Litigation-Related Activity: February 3, 1970
Nature of Litigation-Related Activity: Final Order*
United States v. ovett (Warren School District No. 1)
DJ 169–10–40 (W.D. Ark.)
Date of Last Litigation-Related Activity: February 14, 1980
Nature of Litigation-Related Activity: Order allowing relocation of 4th grade.*
STATE: CALIFORNIA
United States v. Bakersfield School District
DJ 169–11E–24 (E.D. Ca.)
Page 142 PREV PAGE TOP OF DOC
Date of Last Litigation-Related Activity: January 25, 1984.
Nature of Litigation-Related Activity: Consent decree addressing student and program assignment.*
STATE: CONNECTICUT
United States v. Board of Education of Waterbury
DJ 169–14–1 (D. Conn.)
Date of Last Litigation Related Activity: March 23, 1992
Nature of Litigation-Related Activity Filed: Hearing held regarding plaintiff-intervenor's December 13, 1991 motion to enforce stipulation and order between plaintiff-intervenor and defendant withdrawing appeal with prejudice and without cost.*
STATE: FLORIDA
United States v. Gadsden County (Jefferson County School District)
DJ 169–17–3 (N.D. Fla.)
Date of Last Litigation-Related Activity: August 18, 1976
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States v. Gadsden County (Jackson County School District)
DJ 169–17–5 (N.D. Fla.)
Date of Last Litigation-Related Activity: September 20, 1976
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Page 143 PREV PAGE TOP OF DOC
United States v. Gadsden County (Lafayette County School District)
DJ 169–17–12 (N.D. Fla.)
Date of Last Litigation-Related Activity: November 8, 1976
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States v. Gadsden County (Gulf County School District)
DJ 169–17–14 (N.D. Fla.)
Date of Last Litigation-Related Activity: August 18, 1976
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States v. Gadsden County (Wakulla County School District)
DJ 169–17–15 (N.D. Fla.)
Date of Last Litigation-Related Activity: August 18, 1976
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States and Youngblood v. Board of Public Inst. of Bay County
DJ 169–17–2 (N.D. Fla.)
Date of Last Litigation-Related Activity: August 14, 1995
Nature of Litigation-Related Activity: Order amending 8/15/88 Consent Order.
United States v. Baker County (Pasco County School District)
Page 144 PREV PAGE TOP OF DOC
DJ 169–17M–11 (M.D. Fla.)
Date of Last Litigation-Related Activity: November 7, 1973
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States v. Seminole County Board of Education
DJ 169–17M–14 (M.D. Fla.)
Date of Last Litigation-Related Activity: July 10, 2000
Nature of Litigation-Related Activity: Order approving the consent decree negotiated and filed by the parties.*
United States v. Baker County (Flalgler County School District)
DJ 169–17M–25 (M.D. Fla.)
Date of Last Litigation-Related Activity: April 17, 1987
Nature of Litigation-Related Activity: Supplemental Report
United States v. Baker County (Bradford County School District)
DJ 169–17M–26 (M.D. Fla.)
Date of Last Litigation-Related Activity: October 5, 1970
Nature of Litigation-Related Activity: Report to the Court
United States v. Baker County (St. John's County School District)
DJ 169–17M–27 (M.D. Fla.)
Date of Last Litigation-Related Activity: April 7, 2000
Nature of Litigation-Related Activity: Report to the Court
Page 145 PREV PAGE TOP OF DOC
United States v. Baker County School District
DJ 169–17M–29 (M.D. Fla.)
Date of Last Litigation-Related Activity: February 21, 1990
Nature of Litigation-Related Activity Filed: Order approving February 20, 1990 Stipulated Motion to alter attendance zones for the elementary schools.
United States v. Marion County School District
DJ 169–17M–41 (M.D. Fla.)
Date of Last Litigation-Related Activity: April 6, 2000
Nature of Litigation-Related Activity: Semi-Annual Report to the Court*
United States v. Hendry County School District
DJ 169–18–6 (S.D. Fla.)
Date of Last Litigation Related Activity: January 13, 1975
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
STATE: GEORGIA
United States and Ridley v. State of Georgia (Coweta County School District)
DJ 169–19–4 (N. D. Ga.)
Date of Last Litigation-Related Activity: July 23, 1973
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Page 146 PREV PAGE TOP OF DOC
United States and Ridley v. State of Georgia (Barrow County School District
DJ 169–19–11 (N. D. Ga.)
Date of Last Litigation-Related Activity: July 23, 1973
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.*
United States and Ridley v. State of Georgia (Walker County School District)
DJ 169–19–24 (N. D. Ga.)
Date of Last Litigation-Related Activity: July 23, 1973
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States v. State of Georgia (Meriwether County)
DJ 169–19–25 (N. D. Ga.)
Date of Last Litigation-Related Activity: April 1999
Nature of Litigation-Related Activity: Eleventh Circuit Opinion affirming July 1997 district court order approving Meriwether's construction plan*
United States v. State of Georgia (Troup County School District)
DJ 169–19–26 (N. D. Ga.)
Date of Last Litigation-Related Activity: June 28, 2000
Nature of Litigation-Related Activity: Revised scheduling order for discovery*
United States and Ridley v. State of Georgia (Rome City School District)
Page 147 PREV PAGE TOP OF DOC
DJ 169–19–29 (N. D. Ga.)
Date of Last Litigation-Related Activity: July 23, 1973
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States and Ridley v. State of Georgia (Americus City School District)
DJ 169–19M–1 (S.D. Ga.)
Date of Last Litigation-Related Activity: November 30, 1984
Nature of Litigation-Related Activity: Consent Order between Sumter and Americus City re: student transfers.*
United States and Ridley v. State of Georgia (Baldwin County School District)
DJ 169–19M–2 (M. D. Ga.)
Date of Last Litigation-Related Activity: October 15, 1996
Nature of Litigation-Related Activity: Report to the Court*
United States and Ridley v. State of Georgia (Wilkes County School District)
DJ 169–19M–9 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 18, 2000
Nature of Litigation-Related Activity: Remand order from Eleventh Circuit
United States and Ridley v. State of Georgia (Mitchell County School District)
DJ 169–19M–11 (M. D. Ga.)
Page 148 PREV PAGE TOP OF DOC
Date of Last Litigation-Related Activity: January 12, 1989
Nature of Litigation-Related Activity: Order denying motion to enter agreed order of dismissal.
United States and Ridley v. State of Georgia (Baker County School District)
DJ 169–19M–12 (M.D. Ga.)
Date of Last Litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.*
United States and Ridley v. State of Georgia (Irwin County School District)
DJ 169–19M–14 (M.D. Ga.)
Date of Last Litigation-Related Activity: January 12, 1989
Nature of Litigation-Related Activity: Order denying motion to enter agreed order of dismissal.
United States and Ridley v. State of Georgia (Thomas County School District)
DJ 169–19M–15 (M. D. Ga.)
Date of Last Litigation-Related Activity: March 15, 1977
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.*
United States and Ridley v. State of Georgia (Miller County School District)
DJ 169–19M–16 (M.D. Ga).
Date of Last Litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.*
Page 149 PREV PAGE TOP OF DOC
United States and Ridley v. State of Georgia (Terrell County School District)
DJ 169–19M–18 (M. D. Ga.)
Date of Last Litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States v. Webster County Board of Education
DJ 169–19M–19 (M. D. Ga.)
Date of Last Litigation-Related Activity: January 6, 1978
Nature of Litigation-Related Activity: Order approving modification to the desegregation plan.
United States and Ridley v. State of Georgia (Grady County School District)
DJ 169–19M–20 (M.D. Ga.)
Date of Last Litigation-Related Activity: January 12, 1989
Nature of Litigation-Related Activity: Order denying motion to enter agreed order of dismissal.
United States and Ridley v. State of Georgia (Hancock County School District)
DJ 169–19–M–21 (M.D. Ga.)
Date of Last Litigation-Related Activity: January 12, 1989
Nature of Litigation-Related Activity: Order denying motion to enter agreed order of dismissal.
United States and Ridley v. State of Georgia (Clay County School District)
Page 150 PREV PAGE TOP OF DOC
DJ 169–19M–22 (M.D. Ga.)
Date of Last Litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.*
United States and Ridley v. State of Georgia (Calhoun County School District)
DJ 169–19M–23 (M.D. Ga.)
Date of Last Litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.*
United States & Ridley v. State of Georgia (Early County School District)
DJ 169–19M–24 (M.D. Ga.)
Date of Last Litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States v. Ben Hill County School District
DJ 169–19M–25 (M. D. Ga.)
Date of Last Litigation-Related Activity: April 28, 1969
Nature of Litigation-Related Activity: Order modifying previous decree.*
United States v. Board of Education of Crisp County
DJ 169–19M–26 (M. D. Ga.)
Page 151 PREV PAGE TOP OF DOC
Date of Last Litigation-Related Activity: March 1, 1976
Nature of Litigation-Related Activity: Consent Order allowing district to modify desegregation plan.*
United States and Ridley v. State of Georgia (Taylor County School District)
DJ 169–19M–29 (M. D. Ga.)
Date of Last Litigation-Related Activity: July 3, 1978
Nature of Litigation-Related Activity: U.S. Response to defendant's June 1, 1978 proposed student assignment plan.
United States v. Board of Education of Decatur County
DJ 169–19M–30 (M. D. Ga.)
Date of Last Litigation-Related Activity: August 17, 1996
Nature of Litigation-Related Activity: Defendants' proposed notice to modify attendance zone lines.*
United States and Ridley v. State of Georgia (Quitman County School District)
DJ 169–19M–31 (M. D. Ga.)
Date of Last litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States and Ridley v. State of Georgia (Randolph County School District)
Page 152 PREV PAGE TOP OF DOC
DJ 169–19M–32 (M. D. Ga.)
Date of Last Litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States and Ridley v. State of Georgia (Marion County School District)
DJ 169–19M–33 (M. D. Ga.)
Date of Last Litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.*
United States and Ridley v. State of Georgia (Sumter County School District)
DJ 169–19M–36 (M. D. Ga.)
Date of Last Litigation-Related Activity: November 30,1984
Nature of Litigation-Related Activity: Consent Order between Sumter and Americus City re: student transfers.
United States and Ridley v. State of Georgia (Brooks County)
DJ 169–19M–37 (M.D. Ga.)
Date of Last Litigation-Related Activity: March 15, 1977
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States and Ridley v. State of Georgia (Dooly County School District)
DJ 169–19M–38 (M.D. Ga.)
Page 153 PREV PAGE TOP OF DOC
Date of Last Litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States and Ridley v. State of Georgia (Crawford County School District)
DJ 169–19M–40 (M.D. Ga.)
Date of Last Litigation-Related Activity: January 12, 1989
Nature of Litigation-Related Activity: Order denying motion to enter agreed order of dismissal.*
United States and Ridley v. State of Georgia (Monroe County School District)
DJ 169–19M–42 (M. D. Ga.)
Date of Last Litigation-Related Activity: January 12, 1989
Nature of Litigation-Related Activity: Order denying motion to enter agreed order of dismissal.
United States and Ridley v. State of Georgia (Morgan County School District)
DJ 169–19M–42 (M. D. Ga.)
Date of Last Litigation-Related Activity: January 12, 1989
Nature of Litigation-Related Activity: Order denying motion to enter agreed order of dismissal.
United States v. Board of Education of Lowndes County
DJ 169–19M–43 (M. D. Ga.)
Date of Last Litigation-Related Activity: October 29, 1979
Nature of Litigation-Related Activity: Report to the Court
Page 154 PREV PAGE TOP OF DOC
United States and Ridley v. State of Georgia (Lamar County School District)
DJ 169–19M–44 (M. D. Ga.)
Date of Last Litigation-Related Activity: March 8, 1978
Nature of Litigation-Related Activity: Semi-Annual Report to the Court
United States and Ridley v. State of Georgia (Bleckley County School District)
DJ 169–69M–46 (M.D. Ga.)
Date of Last Litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States and Ridley v. State. of Georgia (Seminole County School District)
DJ 169–19M–47 (M. D. Ga.)
Date of Last Litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.*
United States and Ridley v. State of Georgia (Jones County School District)
DJ 169–19M–48 (M. D. Ga.)
Date of Last Litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Page 155 PREV PAGE TOP OF DOC
United States and Ridley v. State of Georgia (Cook County School District)
DJ 169–19M–49 (M.D. Ga.)
Date of Last Litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.*
United States and Ridley v. State of Georgia (Worth County School District)
DJ 169–19M–50 (M. D. Ga.)
Date of Last Litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States v. Board of Education of Talbot County
DJ 169–19M–52 (M. D. Ga.)
Date of Last Litigation-Related Activity: June 20, 1972
Nature of Litigation-Related Activity: Order dismissing complaint w/o prejudice to either party to move to reopen case if appropriate.
United States v. Board of Education Clinch County
DJ 169–19M–53 (M. D. Ga.)
Date of Last Litigation-Related Activity: August 14, 1979
Nature of Litigation-Related Activity: U.S. Response to defendants' motion for additional and supplemental relief.*
United States and Ridley v. State of Georgia (Harris County School District)
Page 156 PREV PAGE TOP OF DOC
DJ 169–19M–56 (M.D. Ga.)
Date of Last Litigation-Related Activity: January 12, 1989
Nature of Litigation-Related Activity: Order denying motion to enter order of dismissal.
United States v. Valdosta County School District
DJ 169–19M–57 (M. D. Ga.)
Date of Last Litigation-Related Activity: August 17, 1993
Nature of Litigation-Related Activity: Order granting district's motion to modify order to rebuild a new junior high school.*
United States and Ridley v. State of Georgia (Elbert County School District)
DJ 169–19M–60 (M.D. Ga.)
Date of Last Litigation-Related Activity: March 15, 1977
Nature of Litigation-Related Activity: Desegregation Order*
United States and Ridley v. State of Georgia (Butts County School District)
DJ 169–19M–61 (M.D. Ga.)
Date of Last Litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States and Ridley v. State of Georgia (Pulaski County School District)
DJ 169–19M–62 (M. D. Ga.)
Date of Last Litigation-Related Activity: January 24, 1974
Page 157 PREV PAGE TOP OF DOC
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States and Ridley v. State of Georgia (Putnam County School District)
DJ 169–19M–63 (M. D. Ga.)
Date of Last Litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States and Ridley v. State of Georgia (Macon County School District)
DJ 169–19M–64 (M. D. Ga.)
Date of Last Litigation-Related Activity: January 12, 1989
Nature of Litigation-Related Activity: Order denying motion to enter agreed order of dismissal.
United States and Ridley v. State of Georgia (Hart County School District)
DJ 169–19M–65 (M.D. Ga.)
Date of Last Litigation-Related Activity: January 12, 1989
Nature of Litigation-Related Activity: Order denying motion to enter agreed order of dismissal.
United States and Ridley v. State of Georgia (Echols County School District)
DJ 169–19M–66 (M.D. Ga.)
Date of Last Litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
Page 158 PREV PAGE TOP OF DOC
United States and Ridley v. State of Georgia (Chattahoochie School District)
DJ 169–19M–67 (M.D. Ga.)
Date of Last Litigation-Related Activity: January 12, 1989
Nature of Litigation-Related Activity: Order denying motion to enter agreed order of dismissal.*
United States and Ridley v. State of Georgia (Peach County School District)
DJ 169–19M–68 (M. D. Ga.)
Date of Last Litigation-Related Activity: January 12, 1989
Nature of Litigation-Related Activity: Order denying motion to enter agreed order of dismissal.
United States and Ridley v. State of Georgia (Twiggs County School District)
DJ 169–19M–69 (M.D. Ga.)
Date of Last Litigation-Related Activity: March 15, 1977
Nature of Litigation-Related Activity: Desegregation Order*
United States and Ridley v. State of Georgia (Wilcox City School District)
DJ 169–19M–70 (M. D. Ga.)
Date of Last Litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States and Ridley v. State of Georgia (Wilkinson County School District)
DJ 169–19M–71 (M. D. Ga.)
Date of Last Litigation-Related Activity: March 17,1977
Page 159 PREV PAGE TOP OF DOC
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States and Ridley v. State of Georgia (Schley County School District)
DJ 169–19M–72 (M. D. Ga.)
Date of Last Litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States and Ridley v. State of Georgia (Pelham City School District)
DJ 169–19M–73 (M. D. Ga.)
Date of Last Litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction.
United States and Ridley v. State of Georgia (Lee County School District)
DJ 169–19M–74 (M. D. Ga.)
Date of Last Litigation-Related Activity: January 24, 1974
Nature of Litigation-Related Activity: Consent Order dissolving regulatory injunction and imposing permanent injunction
United States v. State of Georgia (Jasper County School District)
DJ 169–19M–77 (M.D. Ga.)
Date of Last Litigation-Related Activity: January 12, 1989
Nature of Litigation-Related Activity: Order denying motion to enter agreed order of dismissal.
Page 160 PREV PAGE TOP OF DOC
United States and Turner v. Goolsby (Board of Education of Taliaferro County)
DJ 169–20–5 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 28, 1967
Nature of Litigation-Related Activity: Opinion of three judge court
United States v. Board of Education of Wheeler County
DJ 169–20–6 (S.D. Ga.)
Date of Last Litigation-Related Activity: November 24,1970
Nature of Litigation-Related Activity: Defendant's answers to plaintiff's interrogatories.
United States v. Board of Education of Dodge County
DJ 169–20–7 (S.D. Ga.)
Date of Last Litigation-Related Activity: February 1, 1979
Nature of Litigation-Related Activity: Order approving defendants' motion to amsne the existing desegregation plan.
United States and Ridley v. State of Georgia (Warren County School District)
DJ 169–20–9 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 18, 2000
Nature of Litigation-Related Activity: Remand order from Eleventh Circuit
United States v. Board of Education of Telfair County
DJ 169–20–11 (S.D. Ga.)
Page 161 PREV PAGE TOP OF DOC
Date of Last Litigation-Related Activity: March 19, 1970
Nature of Activity: Order directing the district to file reports.*
United States v. Lincoln County Board of Education.
DJ 169–20–12 (S.D. Ga.)
Date of Last Litigation-Related Activity: December 1, 1972
Nature of Activity: Fifth Circuit Opinion affirming district court's decision.*
United States and Ridley v. State of Georgia (Toombs County School District)
DJ 169–20–13 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 18,2000
Nature of Activity: Remand order from Eleventh Circuit
United States v. Board of Education of Glascock County
DJ 169–20–14 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 30, 1971
Nature of Activity: Order adopting the HEW plan for the district.*
United States and Ridley v. State of Georgia (Jeff Davis County School District)
DJ 169–20–16 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 18, 2000
Nature of Litigation-Related Activity: Remand order from Eleventh Circuit*
United States and Ridley v. State of Georgia (Tattnall County School District)
Page 162 PREV PAGE TOP OF DOC
DJ 169–20–17 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 18, 2000
Nature of Litigation-Related Activity: Remand order from Eleventh Circuit*
United States and Ridley v. State of Georgia (McDuffie County School District)
DJ 169–20–18 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 18, 2000
Nature of Litigation-Related Activity: Remand order from Eleventh Circuit.
United States and Ridley v. State of Georgia (Camden County School District)
DJ 169–20–19 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 18, 2000
Nature of Activity: Remand order from Eleventh Circuit
United States and Ridley v. State of Georgia (Montgomery County School District)
DJ 169–20–20 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 18, 2000
Nature of Litigation-Related Activity: Remand order from Eleventh Circuit*
United States and Ridley v. State of Georgia (Wayne County School District)
DJ 169–20–21 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 18, 2000
Nature of Litigation-Related Activity: Remand order from Eleventh Circuit*
Page 163 PREV PAGE TOP OF DOC
United States v. Emanuel County Board of Education
DJ 169–20–23 (S.D. Ga.)
Date of Last Litigation-Related Activity: September 23, 1969
Nature of Litigation-Related Activity: Order vacating stay and making full operative September 15, 1969 order requiring implementation of H.E.W. plan.*
United States and Ridley v. State of Georgia (Appling County School District)
DJ 169–20–24 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 18, 2000
Nature of Litigation-Related Activity: Remand order from Eleventh Circuit
United States and Ridley v. State of Georgia (Candler County School District)
DJ 169–20–25 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 18, 2000
Nature of Litigation-Related Activity: Remand order from Eleventh Circuit
United States v. Bulloch County School District
DJ 169–20–26 (S.D. Ga.)
Date of Last Litigation-Related Activity: January 20, 1972
Nature of Litigation-Related Activity: Order concerning personnel in school district.*
United States and Ridley v. State of Georgia (Jenkins County School District)
Page 164 PREV PAGE TOP OF DOC
DJ 169–20–29 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 18, 2000
Nature of Litigation-Related Activity: Remand order from Eleventh Circuit
United States v. Johnson County Board of Education
DJ 169–20–30 (S.D. Ga.)
Date of Last Litigation-Related Activity: June 26, 1970
Nature of Last Litigation-Related Activity: Order requiring Board to implement H.E.W. desegregation plan.*
United States and Ridley v. State of Georgia (Jefferson County School District)
DJ 169–20–31 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 18, 2000
Nature of Litigation-Related Activity: Remand order from Eleventh Circuit
United States and Ridley v. State of Georgia (Atkinson County School District)
DJ 169–20–33 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 18, 2000
Nature of Litigation-Related Activity: Remand order from Eleventh Circuit*
United States and Ridley v. State of Georgia (Vidalia County School District)
DJ 169–20–34 (S.D. Ga.)
Page 165 PREV PAGE TOP OF DOC
Date of Last Litigation-Related Activity: July 18, 2000
Nature of Litigation-Related Activity: Remand order from Eleventh Circuit
United States v. Screven County School District
DJ 169–20–35 (S.D. Ga.)
Date of Last Litigation-Related Activity: May 29,1975
Nature of Litigation-Related Activity: Consent Order
United States v. Long County School District
DJ 169–20–36 (S.D. Ga.)
Date of Last Litigation-Related Activity: February 2, 1970
Nature of Litigation-Related Activity: Order adopting the plan presented by HEW.
United States and Ridley v. State of Georgia (Columbia County School District)
DJ 169–20–37 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 18, 2000
Nature of Litigation-Related Activity: Remand order from Eleventh Circuit
United States and Ridley v. State of Georgia (Treutlen County School District)
DJ 169–20–40 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 18, 2000
Nature of Litigation-Related Activity: Remand order from Eleventh Circuit
Page 166 PREV PAGE TOP OF DOC
United States and Ridley v. State of Georgia (Charlton County School District)
DJ 169–20–41 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 18, 2000
Nature of Litigation-Related Activity: Remand order from Eleventh Circuit
United States and Ridley v. State of Georgia (Bryan County School District)
DJ 169–20–42 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 18, 2000
Nature of Litigation-Related Activity: Remand order from Eleventh Circuit*
United States and Ridley v. State of Georgia (McIntosh County School District)
DJ 169–20–43 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 18, 2000
Nature of Litigation-Related Activity: Remand order from Eleventh Circuit
United States and Ridley v. State of Georgia (Dublin City School District)
DJ 169–20–44 (S.D. Ga.)
Date of Last Litigation-Related Activity: July 18, 2000
Nature of Litigation-Related Activity: Remand order from Eleventh Circuit*
STATE: ILLINOIS
United States v. School District 151 of Cook County
Page 167 PREV PAGE TOP OF DOC
DJ 169–23–3 (N.D. Ill.)
Date of Last Litigation-Related Activity: January 19, 2000
Nature of Litigation-Related Activity: Status Report
United States v. Board of Education of the City of Chicago
DJ 169–23–31 (N.D. I11.)
Date of Last Litigation-Related Activity: July 25, 2000
Nature of Litigation-Related Activity: Court Order granting Chicago Board's Motion for Involuntary Dismissal.*
United States v. School District 189 of St. Clair County
DJ 169–24–1 (E.D I11.)
Date of Last Litigation-Related Activity: August 12, 1967
Nature of Litigation-Related Activity: Finding of Fact, Conclusion of Law and Order.*
United States v. School District No. 12 of Madison County
DJ 169–25–4 (S.D. Ill.)
Date of Last Litigation-Related Activity: November 18, 1974
Nature of Litigation-Related Activity: Consent Order
STATE: INDIANA
United States v. South Bend School District
DJ 169–26–2 (N.D. Ind.)
Date of Last Litigation-Related Activity: August 7, 1992
Page 168 PREV PAGE TOP OF DOC
Nature of Litigation-Related Activity: Agreed Order approving reorganization plan.
United States and Buckley v. Board of School Commissioners of Indianapolis
DJ 169–26S–1 (S.D. Ind.)
Date of Last Litigation-Related Activity: March 17, 1999
Nature of Litigation-Related Activity: Order declining to redefine the terms in court's finance order of June 17, 1981.*
STATE: LOUISIANA
Brumfield and United States v. Dodd
DJ 169–0–18 (E.D. La.)
Date of Last Litigation-Related Activity: 1985
Nature of Litigation-Related Activity: Consent Decree*
United States and Harris v. St. John Baptist Parish School Board
DJ 169–32–2 (E.D. La.)
Date of Last Litigation-Related Activity: November 24, 1997
Nature of Litigation-Related Activity: Report to the Court
United States and Smith v. St. Tammany Parish School Board
DJ 169–32–6 (E.D. La.)
Date of Last Litigation-Related Activity: January 7, 1999
Nature of Litigation-Related Activity: Report to the Court*
Page 169 PREV PAGE TOP OF DOC
United States and Thomas v. West Baton Rouge Parish School Board
DJ 169–32–7 (E.D. La.)
Date of Last Litigation-Related Activity: July 15, 1999
Nature of Litigation-Related Activity: Order administratively closing the case and advising that defendants are no longer required to file reports.*
United States and Dunn v. Livingston Parish School District
DJ 169–32–8 (M.D. La.)
Date of Last Litigation-Related Activity: June 9, 1999
Nature of Litigation-Related Activity: Letter from School Board Attorney re: proposed motion and order.*
United States and Dunn v. Pointe Coupee Parish School District
DJ 169–32–9 (M.D. La.)
Date of Last Litigation-Related Activity: August 27, 1992
Nature of Litigation-Related Activity: Letter from School Board Attorney re: revised desegregation plan for the district.*
Carter and United States v. West Feliciana Parish School Board
DJ 169–32–10 (E.D. La.)
Date of Last Litigation-Related Activity: January 20, 2000
Nature of Litigation-Related Activity: Report to the Court
United States and Jenkins v. City of Bogalusa School Board
DJ 169–32–11 (E.D. La.)
Page 170 PREV PAGE TOP OF DOC
Date of Last Litigation-Related Activity: September 3, 1999
Nature of Litigation-Related Activity: Report to the Court
Williams and United States v. Iberville Parish Board of Education
DJ 169–32–13 (E.D. La.)
Date of Last Litigation-Related Activity: May 12, 2000
Nature of Litigation-Related Activity: Order granting partial unitary status and Decree governing remaining areas of operation.*
Banks and United States v. St. James Parish School Board
DJ 169–32–14 (E.D. La.)
Date of Last Litigation-Related Activity: June 26, 1974
Nature of Litigation-Related Activity: Order approving Co-Educational Reorganization Plan submitted by the district.*
Charles and United States v. Ascension Parish School District
DJ 169–32–18 (M.D. La.)
Date of Last Litigation-Related Activity: November 3, 1997
Nature of Litigation-Related Activity: Consent Order approving new attendance zones for the schools in the district.*
United States v. St. Bernard Parish School District
DJ 169–32–19 (E.D. La.)
Date of Last Litigation-Related Activity: August 26, 1968
Nature of Litigation-Related Activity: Order modifying desegregation plan.*
Page 171 PREV PAGE TOP OF DOC
United States v. Plaquemines Parish School District
DJ 169–32–22 (E.D. La.)
Date of Last Litigation-Related Activity: August 18, 1971
Nature of Litigation-Related Activity: Order granting U.S. motion for further relief.*
United States & Davis v. East Baton Rouge Parish School Board
DJ 144–100–32M–2 (M.D. La.)
Date of Last Litigation-Related Activity: August 23, 2000
Nature of Litigation-Related Activity: Motion by school district for an extension of time to file joint status report.
United States & Hall v. St. Helena Parish School Board
DJ 144–100–32M–3 (M.D. La.)
Date of Last Litigation-Related Activity: December 22, 1988
Nature of Litigation-Related Activity: Order approving consolidation
United States v. Louisiana Higher Education
DJ 169–32M–3 (E.D. La.)
Date of Last Litigation-Related Activity: May 5, 2000
Nature of Litigation-Related Activity: Report to the Court
Lemon and United States v. Bossier Parish School Board
DJ 169–33–1 (W.D. La.)
Date of Last Litigation-Related Activity: February 5, 1996
Page 172 PREV PAGE TOP OF DOC
Nature of Litigation-Related Activity: Memorandum of telephone conference held January 31, 1996.*
United States and Monteilh v. St. Landry Parish School Board
DJ 169–33–4 (W.D. La.)
Date of Last Litigation-Related Activity: June 3, 1992
Nature of Litigation-Related Activity: Order granting district's motion to change grade structure at North Central High School, returning 7th grade students to elementary schools.
Jones and United States v. Caddo Parish School Board
DJ 169–33–5 (W.D. La.)
Date of Last Litigation-Related Activity: November 26, 1999
Nature of Litigation-Related Activity: Report to the Court*
Graham and United States v. Evangeline Parish School District
DJ 169–33–6 (W.D. La.)
Date of Last Litigation-Related Activity: April 14, 2000
Nature of Litigation-Related Activity: In-chamber Hearing*
Johnson and United States v. Jackson Parish School Board
DJ 169–33–8 (W.D. La.)
Date of Last Litigation-Related Activity: April 6, 1993
Nature of Litigation-Related Activity: Order denying March 8, 1993 motion (by Aleane Hayes and Rose Foster) to enforce court order.*
Valley and United States v. Rapides Parish School Bd.
Page 173 PREV PAGE TOP OF DOC
DJ 169–33–9 (W.D. La.)
Date of Last Litigation-Related Activity: April 17,2000
Nature of Litigation-Related Activity: Order approving ''A New School Desegregation Plan for Rapides Parish,'' contingent on voter approval of sales taxes to fund new plan.*
Banks and United States v. Claiborne Parish School Board
DJ 169–33–11 (W.D. La.)
Date of Last Litigation-Related Activity: November 1, 1999
Nature of Litigation-Related Activity: Report to the Court*
Trahan v. Lafayette Parish School District
DJ 169–33–13 (W.D. La.)
Date of Last Litigation-Related Activity: July 24, 2000
Nature of Litigation-Related Activity: Hearing*
Smith and United States v. Concordia Parish School Bd.
DJ 169–33–18 (W.D. La.)
Date of Last Litigation-Related Activity: June 1, 2000
Nature of Litigation-Related Activity: Order granting Board's May 17, 2000 Motion for Approval and Modification of Court Order.*
United States v. Richland Parish School District
DJ 169–33–19 (W.D. La.)
Date of Last Litigation-Related Activity: March 22, 1984
Nature of Litigation-Related Activity: Copy of letter from Judge Stagg to Superintendent Hayden re: establishment of ''Bonding District'' for the Holly Ridge Schools, with attached letter from Superintendent to Judge.*
Page 174 PREV PAGE TOP OF DOC
United States v. Lincoln Parish School District
DJ 169–33–21 (W.D. La.)
Date of Last Litigation-Related Activity: February 12, 1996
Nature of Litigation-Related Activity: Report to the Court*
Name: United States v. East Carroll Parish School District
DJ 169–33–23 (W.D. La.)
Date of Last Litigation-Related Activity: May 23, 2000
Nature of Litigation-Related Activity: 2nd Semester Report to the Court for 1999–2000 school year.*
United States and Celestain v. Vermillion Parish School Board
DJ 169–33–24 (W.D. La.)
Date of Last Litigation-Related Activity: December 7, 1974
Nature of Litigation-Related Activity: Order dissolving regulatory injunction and imposing permanent injunction.*
United State v. Bienville Parish School Board
DJ 169–33–25 (W.D. La.)
Date of Last Litigation-Related Activity: November 25, 1989
Nature of Litigation-Related Activity: Proposed petition of plaintiff-intervenors.*
United States v. LaSalle Parish School Board
DJ 169–33–26 (W.D. La.)
Page 175 PREV PAGE TOP OF DOC
Date of Last Litigation-Related Activity: October 18, 1971
Nature of Litigation-Related Activity: Report to the Court*
United States v. Grant Parish School District
DJ 169–33–28 (W.D. La.)
Date of Last Litigation-Related Activity: June 26, 2000
Nature of Litigation-Related Activity: Order approving the closure of Montgomery Gaines Junior High School.*
United States v. DeSoto Parish School District
DJ 169–33–31 (W.D. La.)
Date of Last Litigation-Related Activity: March 20, 2000
Nature of Litigation-Related Activity: Report to the Court*
United States v. Avoyelles Parish School District
DJ 169–33–34 (W.D. La.)
Date of Last Litigation-Related Activity: July 27, 2000
Nature of Litigation-Related Activity: Addendum to the Board's motion requesting permission and approval to operate a charter school in the district.*
United States v. Monroe City School District
DJ 169–33–35 (W.D. La.)
Date of Last Litigation-Related Activity: March 17,1999
Nature of Litigation-Related Activity: Second report for the 1998–99 school year*
Page 176 PREV PAGE TOP OF DOC
United States v. Franklin Parish School District
DJ 169–33–36 (W.D. La.)
Date of Last Litigation-Related Activity: June 14, 2000
Nature of Litigation-Related Activity: Order granting unopposed motion of school district for the consolidation of two schools.*
United States v. Catahoula Parish School Board
DJ 169–33–43 (W.D. La.)
Date of Last Litigation-Related Activity: August 7, 1995
Nature of Litigation-Related Activity: Order granting motion and amended motion of defendants for authorization to close Manifest Elementary School and to reassign students to Jonesville Elementary School and Jonesville High School beginning with the 1995–96 school year.*
United States v. Sabine Parish School Board
DJ 169–33–44 (W.D. La.)
Date of Last Litigation-Related Activity: August 19, 1981
Nature of Litigation-Related Activity: Order requiring that district officials certify to the court that no out-of-parish students are attending schools in the system.*
United States and Williams v. West Carroll Parish School Board
DJ 169–33–46 (W.D. La.)
Date of Last Litigation-Related Activity: July 15, 1998
Nature of Litigation-Related Activity: Report to the Court
United States v. Tensas Parish School District
Page 177 PREV PAGE TOP OF DOC
DJ 169–33–47 (W.D. La.)
Date of Last Litigation-Related Activity: December 15, 1999
Nature of Litigation-Related Activity: Report to the Court*
United States v. Morehouse Parish School Board
DJ 169–33–48 (W.D. La.)
Date of Last Litigation-Related Activity: February 22, 1978
Nature of Litigation-Related Activity: Order granting limited student transfer exception, i.e., permitting certain students residing in Morehouse Parish to attend schools in Ouachita Parish for the 1977–78 school year only.*
United States v. Red River Parish School District
DJ 169–33–49 (W.D. La.)
Date of Last Litigation-Related Activity: October 18, 1999
Nature of Litigation-Related Activity: Order approving new construction for the district.*
United States and Thomas v. St. Martin Parish School Board
DJ 169–33–51 (W.D. La.)
Date of Last Litigation-Related Activity: December 20, 1974
Nature of Litigation-Related Activity: Order dissolving regulatory injunction and imposing permanent injunction.*
United States v. Caldwell Parish School District
DJ 169–33–54 (W.D. La.)
Date of Last Litigation-Related Activity: November 15, 1982
Page 178 PREV PAGE TOP OF DOC
Nature of Litigation-Related Activity: Report to the Court*
STATE: MICHIGAN
United States v. Flint Community School District
DJ 169–37–29 (E.D. Mich.)
Date of Last Litigation-Related Activity: March 2, 1989
Nature of Litigation-Related Activity: Consent Agreement
STATE: MISSISSIPPI
United States v. Indianola Municipal Separate School District
DJ 169–40–1 (N.D. Miss.)
Date of Last Litigation-Related Activity: July 27, 2000
Nature of Litigation-Related Activity: U.S. filed a response to district's motion for supplemental relief.
United States v. Sunflower County School District
DJ 169–40–3 (N.D. Miss.)
Date of Last Litigation-Related Activity: March 31, 2000
Nature of Litigation-Related Activity: Report to the Court
United States v. Carroll County School District
DJ 169–40–6 (N.D. Miss.)
Date of Last Litigation-Related Activity: April 17, 1973
Page 179 PREV PAGE TOP OF DOC
Nature of Litigation-Related Activity: Order approving student assignment plan.
United States and Baird v. Benton County School District
DJ 169–40–8 (N.D. Miss.)
Date of Last Litigation-Related Activity: January 20, 1993
Nature of Litigation-Related Activity: Report to the Court*
United States v. Aberdeen Municipal Separate School District
DJ 169–40–10 (N.D. Miss.)
Date of Last Litigation-Related Activity: March 13, 2000
Nature of Litigation-Related Activity: Report to the Court
United States v. Calhoun County Board of Education
DJ 169–40–17 (N.D. Miss.)
Date of Last Litigation-Related Activity: March 17, 2000
Nature of Litigation-Related Activity: Report to the Court*
United States v. State of Mississippi (Webster County School District)
DJ 169–40–20 (N.D. Miss.)
Date of Last Litigation-Related Activity: October 16, 1995
Nature of Litigation-Related Activity: Report to the Court*
United States v. Iuka Special Municipal Separate School District
DJ 169–40–21 (N.D. Miss.)
Date of Last Litigation-Related Activity: April 19, 1991
Page 180 PREV PAGE TOP OF DOC
Nature of Litigation-Related Activity: Order approving the district's motion to consolidate schools in Iuka MSSD and Tishomingo County District.
United States v. Columbus Municipal Separate School District
DJ 169–40–22 (N.D. Miss.)
Date of Last Litigation-Related Activity: March 13, 2000
Nature of Litigation-Related Activity: Order granting district's motion to appoing two (2) members to the Bi-racial Committee.
United States v. Lowndes County School District
DJ 169–40–22 (N.D. Miss.)
Date of Last Litigation-Related Activity: April 10, 198
Nature of Litigation-Related Activity: U.S. Response to defendants' notice of construction.
United States v. Coffeeville-Oakland Consolidated School District
DJ 169–40–28 (N.D. Miss.)
Date of Last Litigation-Related Activity: November 3, 1999
Nature of Litigation-Related Activity: Report to the Court *(9/9/97 letter from York) (Letter dated September 9, 1997 counsel for the district advising that U.S. do not object to the proposed consolidation of Oakland and Coffeeville Elementary Schools.)
United States v. Kosciusko Municipal Separate School District
DJ 169–40–33 (N.D. Miss.)
Date of Last Litigation-Related Activity: April 2, 1996
Nature of Litigation-Related Activity: Report to the Court
Page 181 PREV PAGE TOP OF DOC
United States v. Louisville Municipal Separate School District
DJ 169–40–35 (N.D. Miss.)
Date of Last Litigation-Related Activity: October 15, 1999
Nature of Litigation-Related Activity: Report to the Court
United States v. Montgomery County School District
DJ 169–40–36 (N.D. Miss.)
Date of Last Litigation-Related Activity: June 12, 1989
Nature of Litigation-Related Activity: Order authorizing district to closing of Duck Hill School.*
United States v. State of Mississippi (Attala County School District)
DJ 169–40–37 (N.D. Miss.)
Date of Last Litigation-Related Activity: October 15, 1976
Nature of Litigation-Related Activity: Report to the Court*
United States v. State of Mississippi (East Tallahatchie School District)
DJ 169–40–42 (N.D. Miss.)
Date of Last Litigation-Related Activity: May 31, 1990
Nature of Litigation-Related Activity: Report to the Court
United States v. Lowndes County School District
DJ 169–40–43 (N.D. Miss.)
Date of Last Litigation-Related Activity: December 15, 1999
Nature of Litigation-Related Activity: Report to the Court*
Page 182 PREV PAGE TOP OF DOC
United States v. North Tippah Consolidated School District
DJ 169–40–44 (N.D. Miss.)
Date of Last Litigation-Related Activity: April 28, 1988
Nature of Litigation-Related Activity: Semi-annual Reports (1983–84 2nd month-1987–88 Fall semester)*
United States v. South Tippah Consolidated School District
DJ 169–40–44 (N.D. Miss.)
Date of Last Litigation-Related Activity: July 9, 1976
Nature of Litigation-Related Activity: Consent order modifying the amended desegregation plan, i.e., changing the of paragraph V and dismissing defendants' motion to intervene.
United States v. Greenwood Municipal Separate School District
DJ 169–40–46 (N.D. Miss.)
Date of Last Litigation-Related Activity: March 16, 2000
Nature of Litigation-Related Activity: Report to the Court
United States v. Humphreys County School District
DJ 169–40–50 (N.D. Miss.)
Date of Last Litigation-Related Activity: November 8, 1990
Nature of Litigation-Related Activity: Report to the Court*
United States v. Leflore County School District
DJ 169–40–51 (N.D. Miss.)
Page 183 PREV PAGE TOP OF DOC
Date of Last Litigation-Related Activity: March 16, 1993
Nature of Litigation-Related Activity: Report to the Court
United States v. Tunica County School District
DJ 169–40–57 (N.D. Miss.)
Date of Last Litigation-Related Activity: November 29, 1999
Nature of Litigation-Related Activity: Court hearing approving consent decree.*
United States v. State of Mississippi (Choctaw County School District)
DJ 169–40–60 (N.D. Miss.)
Date of Last Litigation-Related Activity: November 20, 1989
Nature of Litigation-Related Activity: Order granting back pay to Plaintiff Charles Thomas; mandating that plaintiff is to be offered lst vacant principal position; directing district to file reports; advising that a unitary hearing will be set for a later date upon defendants' request.
United States v. Nettleton Line Consolidated School District
DJ 169–40–61 (N.D. Miss.)
Date of Last Litigation-Related Activity: January 12, 2000
Nature of Litigation-Related Activity: Amended Bi-annual Report to the Court
United States v. Pontotoc County School District
DJ 169–40–62 (N.D. Miss.)
Date of Last Litigation-Related Activity: November 8, 1990
Nature of Litigation-Related Activity: Report to the Court*
Page 184 PREV PAGE TOP OF DOC
United States v. State of Mississippi (West Tallahatchie School District)
DJ 169–40–67 (N.D. Miss.)
Date of Last Litigation-Related Activity: July 2, 1993
Nature of Litigation-Related Activity: Report to the Court*
Harris and United States v. Oktibbeha County School District)
DJ 169–40–68 (N.D. Miss.)
Date of Last Litigation-Related Activity: January 4, 1989
Nature of Litigation-Related Activity: Order and Opinion entered re: inter-district-transfers.*
Ayers and United States v. Musiarove (Mississippi Junior and Senior College Systems)
DJ 169–40–89 (N.D. Miss.)
Date of Last Litigation-Related Activity: July 2000
Nature of Litigation-Related Activity: Order continuing hearing on admissions.*
United States and Cowan v. Cleveland City School District
DJ 169–40–92 (N.D. Miss.)
Date of Last Litigation-Related Activity: September 21, 1989
Nature of Litigation-Related Activity: Consent Order*
United States and Hudson v. Leake County School District
169–41–1 (S. D. Miss.)
Date of Last Litigation-Related Activity: October 23, 1986
Page 185 PREV PAGE TOP OF DOC
Nature of Litigation-Related Activity: Order approving joint motion for modification.
United States v. Biloxi City School District
DJ 169–41–4 (S.D. Miss.)
Date of Last Litigation-Related Activity: July 22, 1998
Nature of Litigation-Related Activity: Reply memorandum of defendants in support of its motion to modify its desegregation plan.*
United States and Anderson v. Canton Municipal Separate School District
DJ 169–41–6 (S.D. Miss.)
Date of Last Litigation-Related Activity: September 21, 1999
Nature of Litigation-Related Activity: Memorandum Opinion and Order granting the district's motion for modification.
United States v. Quitman County School District
DJ 169–41–7 (S.D. Miss.)
Date of Last Litigation-Related Activity: January 15, 1981
Nature of Litigation-Related Activity: Report to the Court
United States v. Enterprise City School District
DJ 169–41–7 (S.D. Miss.)
Date of Last Litigation-Related Activity: January 9, 1981
Nature of Litigation-Related Activity: Fifth Circuit Order prohibiting parties from filing any further reports on the status of the school district with the Fifth Circuit clerk's office.
Page 186 PREV PAGE TOP OF DOC
United States and Adams v. Rankin County School District
DJ 169–41–8 (S.D. Miss.)
Date of Last Litigation-Related Activity: May 1, 1997
Nature of Litigation-Related Activity: Consent Order
United States & Bernhardt v. Meridian City School District
169–41–11 (S. D. Miss.)
Date of Last Litigation-Related Activity: January 7, 1981
Nature of Litigation-Related Activity: Order terminating reporting requirement.*
United States v. Neshoba County School District
DJ 169–41–12 (S.D. Miss.)
Date of Last Litigation-Related Activity: January 9, 1981
Nature of Litigation-Related Activity: Fifth Circuit Order prohibiting parties from filing any further reports on the status of the school district with the Fifth Circuit clerk's office.
Alexander and United States v. Holmes County Board of Education
DJ 169–41–13 (S.D. Miss.)
Date of Last Litigation-Related Activity: February 21, 1992
Nature of Litigation-Related Activity: Report to the Court*
Anderson and United States v. Madison County School District
DJ 169–41–14 (S.D. Miss.)
Date of Last Litigation-Related Activity: April 7, 2000
Nature of Litigation-Related Activity: Approval of Consent Agreement re: all issue except location of new high school.*
Page 187 PREV PAGE TOP OF DOC
United States v. Philadelphia Municipal Separate School District
DJ 169–41–16 (S.D. Miss.)
Date of Last Litigation-Related Activity: April 18, 1974
Nature of Litigation-Related Activity: Report to the Court*
United States v. Lincoln County School District
DJ 169–41–17 (S.D. Miss.)
Date of Last Litigation-Related Activity: January 9, 1981
Nature of Litigation-Related Activity: Fifth Circuit Order prohibiting parties from filing any further reports on the status of the school district with the Fifth Circuit clerk's office.*
United States and Blackwell v. Issaquena County Board of Education
DJ 169–41–18 (S.D. Miss.)
Date of Last Litigation-Related Activity: July 6, 2000
Nature of Litigation-Related Activity: Report to the Court
United States v. North Pike County School District
DJ 169–41–19 (S.D. Miss.)
Date of Last Litigation-Related Activity: January 9, 1981
Nature of Litigation-Related Activity: Fifth Circuit Order prohibiting parties from filing any further reports on the status of the school district with the Fifth Circuit clerk's office.
United States v. State of Mississippi (Laurel Municipal Separate School District)
Page 188 PREV PAGE TOP OF DOC
DJ 169–41–21 (S.D. Miss.)
Date of Last Litigation-Related Activity: April 27, 2000
Nature of Litigation-Related Activity: Order entered approving consent agreement modifying desegregation plan.*
United States v. State of Mississippi (Scott Municipal Separate School District)
DJ 169–41–22 (S.D. Miss.)
Date of Last Litigation-Related Activity: November 15, 1999
Nature of Litigation-Related Activity: Report to the Court
United States v. Natchez Special Municipal Separate School District
DJ 169–41–23 (S.D. Miss.)
Date of Last Litigation-Related Activity: January 20, 2000
Nature of Litigation-Related Activity: Report to the Court*
United States v. Lauderdale Community School District
DJ 169–41–25 (S.D. Miss.)
Date of Last Litigation-Related Activity: January 9, 1981
Nature of Litigation-Related Activity: Fifth Circuit Order prohibiting parties from filing any further reports on the status of the school district with the Fifth Circuit clerk's office.
United States and Lee v. Forrest County School District
DJ 169–41–27 (S.D. Miss.)
Date of Last Litigation-Related Activity: June 12, 1997
Page 189 PREV PAGE TOP OF DOC
Nature of Litigation-Related Activity: District's response to Hattiesburg School District's motion to be dismissed.
United States v. Clinton Municipal Separate School District
DJ 169–41–28 (S.D. Miss.)
Date of Last Litigation-Related Activity: November 19, 1999
Nature of Litigation-Related Activity: Report to the Court
United States v. Brookhaven Municipal Separate School District
DJ 169–41–29 (S.D. Miss.)
Date of Last Litigation-Related Activity: October 14, 1999
Nature of Litigation-Related Activity: Report to the Court
United States v. State of Mississippi (Smith County School District)
DJ 169–41–31 (S.D. Miss.)
Date of Last Litigation-Related Activity: October 24, 1979
Nature of Litigation-Related Activity: Report to the Court
United States v. Wayne County School District
DJ 169–41–34 (S.D. Miss.)
Date of Last Litigation-Related Activity: March 6, 2000
Nature of Litigation-Related Activity: Semi-annual Report to the Court
United States v. Marion County School District
DJ 169–41–35 (S.D. Miss.)
Page 190 PREV PAGE TOP OF DOC
Date of Last Litigation-Related Activity: January 9, 1981
Nature of Litigation-Related Activity: Fifth Circuit Order prohibiting parties from filing any further reports on the status of the school district with the Fifth Circuit clerk's office.
United States v. State of Mississippi (Newton County Sch. Dist.)
DJ 169–41–38 (S.D. Miss.)
Date of Last Litigation-Related Activity: October 28, 1996
Nature of Litigation-Related Activity: Report to the Court*
United States v. State of Mississippi (Harrison County School District)
DJ 169–41–40 (S.D. Miss.)
Date of Last Litigation-Related Activity: November 154, 1996
Nature of Litigation-Related Activity: Report to the Court
United States and Harris v. Yazoo County Board of Education
DJ 169–41–42 (S.D. Miss.)
Date of Last Litigation-Related Activity: July 21, 1998
Nature of Litigation-Related Activity: Order approving modification of agreement regarding transfer of students.
United States v. Poplarville Special Municipal School District
DJ 169–41–45 (S.D. Miss.)
Date of Last Litigation-Related Activity: March 28, 1985
Nature of Litigation-Related Activity: Report to the Court
Page 191 PREV PAGE TOP OF DOC
United States v. Columbia Municipal Separate School District
DJ 169–41–48 (S.D. Miss.)
Date of Last Litigation-Related Activity: January 9, 1981
Nature of Litigation-Related Activity: Fifth Circuit Order prohibiting parties from filing any further reports on the status of the school district with the Fifth Circuit clerk's office.
United States v. Lawrence County School District
DJ 169–41–54 (S.D. Miss.)
Date of Last Litigation-Related Activity: April 2, 1998
Nature of Litigation-Related Activity: Report to the Court
United States v. Simpson County Board of Education
DJ 169–41–57 (S.D. Miss.)
Date of Litigation-Related Activity: May 26, 2000
Nature of Litigation-Related Activity: Report to the Court
United States v. South Pike Consolidated School District
DJ 169–41–58 (S.D. Miss.)
Date of Last Litigation-Related Activity: January 9, 1981
Nature of Litigation-Related Activity: Fifth Circuit Order prohibiting parties from filing any further reports on the status of the school district with the Fifth Circuit clerk's office.
United States v. McComb Municipal Separate School District
DJ 169–41–60 (S.D. Miss.)
Date of Last Litigation-Related Activity: June 6, 1999
Page 192 PREV PAGE TOP OF DOC
Nature of Litigation-Related Activity: Report to the Court*
United States v. Kemper County Board of Education.
DJ 169–41–62 (S.D. Miss.)
Date of Last Litigation-Related Activity: February 15, 1989
Nature of Litigation-Related Activity: Consent Decree
United States v. Noxubee County School District
DJ 169–41–63 (S.D. Miss.)
Date of Last Litigation-Related Activity: November 12,1984
Nature Last Litigation-Related Activity: Order approving the reorganization of grade structure for the district.
United States and Harris v. Yazoo City Board of Education
DJ 169–41–64 (S.D. Miss.)
Date of Last Litigation-Related Activity: December 12,1999
Nature of Litigation-Related Activity: Report to the Court*
United States v. Wilkinson County School District
DJ 169–41–65 (S.D. Miss.)
Date of Last Litigation-Related Activity: February 4, 1999
Nature of Last Litigation-Related Activity: Order permitting district to reorganize the schools to include junior high (grades 6–8) to be located in Centreville.
United States v. Walthall County School District
Page 193 PREV PAGE TOP OF DOC
DJ 169–41–66 (S.D. Miss.)
Date of Last Litigation-Related Activity: October 12, 1973
Nature of Litigation-Related Activity: Report to the Court
United States v. Covington County School District
DJ 169–41–71 (S.D. Miss.)
Date of Last Litigation-Related Activity: January 9, 1981
Nature of Litigation-Related Activity: Fifth Circuit Order prohibiting parties from filing any further reports on the status of the school district with the Fifth Circuit Clerk's office.*
United States v. Franklin County School District
DJ 169–41–73 (S.D. Miss.)
Date of Last Litigation-Related Activity: January 9, 1981
Nature of Litigation-Related Activity: Fifth Circuit Order prohibiting parties from filing any further reports on the status of the school district with the Fifth Circuit clerk's office.
United States v. Hazelhurst Municipal School District
DJ 169–41–74 (S.D. Miss.)
Date of Last Litigation-Related Activity: May 8, 1990
Nature of Litigation-Related Activity: Report to the Court
United States v. Copiah County School District
DJ 169–41–78 (S.D. Miss.)
Date of Last Litigation-Related Activity: April 18,2000
Nature of Litigation-Related Activity: Report to the Court*
Page 194 PREV PAGE TOP OF DOC
United States v. State of Mississippi (Vicksburg-Warren School Board.)
DJ 169–41–82 (S.D. Miss.)
Date of Last Litigation-Related Activity: February 2, 1999
Nature of Last Litigation-Related Activity: Report to the Court*
United States v. Union Municipal School District
DJ 169–41–83 (S.D. Miss.)
Date of Last Litigation-Related Activity: October 14, 1974
Nature of Litigation-Related Activity: Report to the Court
United States v. Jones County School District
DJ 169–41–126 (S.D. Miss.)
Date of Last Litigation-Related Activity: April 1, 2000
Nature of Litigation-Related Activity: Semi-annual Report to the Court*
STATE: NEW YORK
United States v. Yonkers Board of Education
DJ 169–51–22 (S.D. N.Y.)
Date of Last Litigation-Related Activity: July 19, 2000
Nature of Litigation-Related Activity: Pre-Argument Conference*
STATE: NORTH CAROLINA
Page 195 PREV PAGE TOP OF DOC
United States and Coppedge v. Franklin County of Education
DJ 169–54–7 (E.D. N.C.)
Date of Last Litigation-Related Activity: July 11, 2000
Nature of Litigation-Related Activity: Order extending time to respond to defendants' motion to dismiss to and including September 29, 2000.*
United States v. Bertie County Board of Education
DJ 169–54–8 (E.D. N.C.)
Date of Last Litigation-Related Activity: July 6, 1971
Nature of Litigation-Related Activity: Order sustaining defendant's motion to compel.
United States v. Halifax County Board of Education
DJ 169–54–25 (E.D. N.C.)
Date of Last Litigation-Related Activity: August 4, 1972
Nature of Litigation-Related Activity: Supreme Court Order vacating mandate of Fourth Circuit and affirming judgement of district court.
United States v. Burlington City Board
DJ 169–54M–25 (M.D. N.C.)
Date of Last Litigation-Related Activity: July 31, 1971
Nature of Litigation-Related Activity: Order approving desegregation plan.*
STATE: SOUTH CAROLINA
United States v. Dorchester County School District No. 4
Page 196 PREV PAGE TOP OF DOC
DJ 169–67–1 (D.S.C.)
Date of Last Litigation-Related Activity: July 1, 1969
Nature of Litigation-Related Activity: Order approving desegregation plan for the district.*
United States v. Florence Public School District No. 1
DJ 169–67–3 (D.S.C.)
Date of Last Litigation-Related Activity: July 9, 1993
Nature of Litigation-Related Activity: Reply to defendant's response to U.S. motion to consolidate and transfer case.
United States v. School District No. 1. Lexington County
DJ 169–67–9 (D. S.C.)
Date of Last Litigation-Related Activity: March 23, 1967
Nature of Litigation-Related Activity: Order to desegregate schools.*
United States v. Barnwell School District No. 45
DJ 169–67–11 (D. S.C.)
Date of Last Litigation-Related Activity: January 23, 1992
Nature of Litigation-Related Activity: Report to the Court*
United States v. Hampton County School District. No. 1
DJ 169–67–12 (D.S.C.)
Date of Last Litigation-Related Activity: July 21, 1993
Nature of Litigation-Related Activity: Order approving defendants' request to reassigned move 7th and 8th grades from three of the elementary schools to attend north District Middle School, transferring the 5th and 6th grades at this school to Hampton Elementary School.*
Page 197 PREV PAGE TOP OF DOC
United States and Miller v. Clarendon County School District No. 2
DJ 169–67–16 (D.S.C.)
Date of Last Litigation-Related Activity: October 30, 1970
Nature of Litigation-Related Activity: Order allowing school district to allow some transfers from Clarendon County School District No. 1.
United States v. Berkeley County School District
DJ 169–67–19 (D.S.C.)
Date of Last Litigation-Related Activity: October 14, 1974
Nature of Litigation-Related Activity: Report to the Court*
United States v. Calhoun County School District No. 2
DJ 169–67–34 (D.S.C.)
Date of Last Litigation-Related Activity: October 12, 1970
Nature of Litigation-Related Activity: Report to the Court
United States v. Barnwell School District No. 19
DJ 169–67–44 (D.S.C.)
Date of Last Litigation-Related Activity: August 11, 1970
Nature of Litigation-Related Activity: Order Approving Student Assignment Plan*
United States v. Colleton County School District
DJ 169–67–48 (D.S.C.)
Date of Last Litigation-Related Activity: November 17, 1999
Page 198 PREV PAGE TOP OF DOC
Nature of Litigation-Related Activity: Consent Order.*
United States v. Florence County Sch. Dist. No. 4
DJ 169–67–55 (D.S.C.)
Date of Last Litigation-Related Activity: August 24, 1970
Nature of Litigation-Related Activity: Court order adopting the desegregation plan filed by the U.S.*
United States v. McCormick County Board of Education
DJ 169–67–61 (D.S.C.)
Date of Last Litigation-Related Activity: October 13, 1970
Nature of Litigation-Related Activity: Report to the Court*
United States v. Hampton County School District No. 2
DJ 169–67–62 (D.S.C.)
Date of Last Litigation-Related Activity: August 11, 1971
Nature of Litigation-Related Activity: Order directing that Gifford-Lurray School be reopened to serve 4th grade students in the district.*
United States v. Chesterfield County School District
DJ 169–67–64 (D.S.C)
Date of Last Litigation-Related Activity: November 11, 1977
Nature of Litigation-Related Activity: Consent Order*
United States v. Allendale County School District
Page 199 PREV PAGE TOP OF DOC
DJ 169–67–65 (D.S.C)
Date of Last Litigation-Related Activity: March 30, 1970
Nature of Litigation-Related Activity: Order implementing HEW Plan B.*
United States v. Calhoun County School District No. 1
DJ 169–67–67 (D.S.C.)
Date of Last Litigation-Related Activity: October 18, 1971
Nature of Litigation-Related Activity: Report to the Court
United States v. Georgetown County Board of Education.
DJ 169–67–72 (D.S.C.)
Date of Last Litigation-Related Activity: September 2, 1980
Nature of Litigation-Related Activity: Order discontinuing the operation of Bynum School as a regular elementary school, reassigning the affected students and converting Bynum to a center for special programs.
United States v. Anderson County School District No. 3
DJ 169–67–80 (D.S.C.)
Date of Last Litigation-Related Activity: June 10, 1969
Nature of Litigation-Related Activity: Order approving desegregation plan.*
United States v. Bamberg County School District No. 2
DJ 169–67–84 (D.S.C.)
Date of Last Litigation-Related Activity: April 28, 1970
Nature of Litigation-Related Activity: Order implementing desegregation plan.
Page 200 PREV PAGE TOP OF DOC
United States v. Saluda County School District
DJ 169–67–85 (D.S.C.)
Date of Last Litigation-Related Activity: May 1, 2000
Nature of Litigation-Related Activity: Amended Consent Order re: re-zoning.*
United States v. Fairfield County School District
DJ 169–67–97 (D.S.C.)
Date of Last Litigation-Related Activity: March 17, 1992
Nature of Litigation-Related Activity: Report to the Court
United States v. Barnwell Co. (Orangeburg County School District No. 3)
DJ 169–67–102 (D.S.C.)
Date of Last Litigation-Related Activity: March 13, 1981
Nature of Litigation-Related Activity: Petition of school district.
Stanley and United States v. Darlington County School District
DJ 169–67–124 (D.S.C.)
Date of Last Litigation-Related Activity: May 24, 2000
Nature of Litigation-Related Activity: Order granting district's motion for unitary status.*
United States and Mellette v. Jones
DJ 169–67–125 (D.S.C.)
Date of Last Litigation-Related Activity: February 29, 2000
Nature of Litigation-Related Activity: Status Report
Page 201 PREV PAGE TOP OF DOC
STATE: TENNESSEE
United States & Geier v. Sundguist (Tennessee Higher Education System
DJ 169–71–6 (M.D. Tenn.)
Date of Last Litigation-Related Activity: July 19, 2000
Nature of Litigation-Related Activity: Order continuing hearing to October 16, 2000.*
United States v. Franklin Special School District
DJ 169–71–10 (M.D. Tenn.)
Date of Last Litigation-Related Activity: August 26, 1971
Nature of Litigation-Related Activity: Order approving implementation of stipulated desegregation plan.
Robinson and United States v. Shelby County Board of Education
DJ 169–72–1 (W.D. Tenn.)
Date of Last Litigation-Related Activity: May 26, 2000
Nature of Litigation-Related Activity: Hearing held on plaintiff's motion for further relief filed March 3, 2000.
Monroe and United States v. Jackson-Madison County School System Board of Education
DJ 169–72–2 (W.D. Tenn.)
Date of Last Litigation-Related Activity: July 25, 2000
Nature of Litigation-Related Activity: Status conference with Court.*
Page 202 PREV PAGE TOP OF DOC
McFerren and United States v. Fayette County Board of Education
DJ 169–72–3 (W.D. Tenn.)
Date of Last Litigation-Related Activity: April 17,1985
Nature of Litigation-Related Activity: Consent Order of Dismissal w/prejudice as to all motions for further relief filed by Myles Wilson.
United States and Fayne and Weaver v. Tipton County Board of Education
DJ 169–72–4 (W.D. Tenn.)
Date of Last Litigation-Related Activity: November 5, 1999
Nature of Litigation-Related Activity: Report to the Court
United States v. Crockett County Board of Education
DJ 169–72–6 (W.D. Tenn.)
Date of Last Litigation-Related Activity: February 5, 1974
Nature of Litigation-Related Activity: Order dissolving regulatory injunction and imposing permanent injunction.
United States v. Crockett County Board of Education (Alamo County School District
DJ 169–72–6 (W.D. Tenn.)
Date of Last Litigation-Related Activity: February 5, 1974
Nature of Litigation-Related Activity: Order dissolving regulatory injunction and imposing permanent injunction.
Page 203 PREV PAGE TOP OF DOC
United States v. Crockett County Board of Education (Bells County School District)
DJ 169–72–6 (W.D. Tenn.)
Date of Last Litigation-Related Activity: February 5, 1974
Nature of Litigation-Related Activity: Order dissolving regulatory injunction and imposing permanent injunction.
United States v. Crockett County Board of Education (Maury City School District)
DJ 169–72–6 (W.D. Tenn.)
Date of Last Litigation-Related Activity: February 5, 1974
Nature of Litigation-Related Activity: Order dissolving regulatory injunction and imposing permanent injunction.
United States v. Hardeman County Board of Education
DJ 169–72–11 (W.D. Tenn.)
Date of Last Litigation-Related Activity: November 21, 1994
Nature of Litigation-Related Activity: Order granting defendant's motion to transfer grades within Bolivar zone and authorizing a county-wide construction program.
United States v. Haywood County Board of Education
DJ 169–72–12 (W.D. Tenn.)
Date of Last Litigation-Related Activity: February 26, 1974
Nature of Litigation-Related Activity: Order dissolving regulatory injunction and imposing permanent injunction.
Page 204 PREV PAGE TOP OF DOC
United States v. Brownsville City Board of Education
DJ 169–72–12 (W.D. Tenn.)
Date of Last Litigation-Related Activity: February 26, 1974
Nature of Litigation-Related Activity: Order dissolving regulatory injunction and imposing permanent injunction.
United States v. Gibson County Board of Education (Humboldt City School District)
DJ 169–72–15 (W.D. Tenn.)
Date of Last Litigation-Related Activity: October 8, 1992
Nature of Litigation-Related Activity: Consent Decree*
United States v. Gibson County Board of Education (Gibson County Special School District)
DJ 169–72–15 (W.D. Tenn.)
Date of Last Litigation-Related Activity: June 15, 1999
Nature of Litigation-Related Activity: Order granting motion to construct a new middle school facility in the Medina attendance zone.*
United States v. Gibson County Board of Education (Milan City School District)
DJ 169–72–15 (W.D. Tenn.)
Date of Last Litigation-Related Activity: October 21, 1977
Nature of Litigation-Related Activity: Report to the Court
Page 205 PREV PAGE TOP OF DOC
United States v. Dyersburg Board of Education
DJ 169–72–17 (W.D. Tenn.)
Date of Last Litigation-Related Activity: November 18,1983
Nature of Litigation-Related Activity: Report to the Court
STATE:TEXAS
United States v. Wichita Falls Independent School District
DJ 169–73–12 (N.D. Tex.)
Date of Last Litigation-Related Activity: July 13, 2000
Nature of Litigation-Related Activity: Agreed Order of dismissal.
United States v. Big Spring Independent School District
DJ 169–73–16 (N.D. Tex.)
Date of Last Litigation-Related Activity: October 7, 1992
Nature of Litigation-Related Activity: Consent decree finding partial unitary status and setting specific actions for district to attain unitary status in remaining areas.*
United States v. Garland Independent School District
DJ 169–73–31 (N.D. Tex.)
Date of Last Litigation-Related Activity: July 14,1987
Nature of Litigation-Related Activity: Agreed judgment concerning student assignments.*
United States v. Richardson Independent School District
Page 206 PREV PAGE TOP OF DOC
DJ 169–73–34 (N.D. Tex.)
Date of Last Litigation-Related Activity: May 15, 2000
Nature of Litigation-Related Activity: Order Appointing Student Members to Bi-Racial Committee*
United States v. TEA (Wilmer Hutchins Independent School District)
DJ 169–73–27 (N.D. Tex.)
Date of Last Litigation-Related Activity: August 3, 1978
Nature of Litigation-Related Activity: Memorandum Opinion & Permanent Injunction of Wilmer-Hutchins.
United States & Coleman v. Midland Independent School District
DJ 169–76–4 (W.D. Tex.)
Date of Last Litigation-Related Activity: December 3, 1999
Nature of Litigation-Related Activity: Order approving settlement agreement.*
United States and Sampson v. Aldine Independent School District.
DJ 169–74–6 (S.D. Tex.)
Date of Last Litigation-Related Activity: October 30, 1998
Nature of Litigation-Related Activity: Defendant's Alternative Desegregation Plan.*
United States v. Klein Independent School District
169–74–21 (S.D. Tex.)
Date of Last Litigation-Related Activity: July 1, 1998
Nature of Litigation-Related Activity: Order terminating reporting provisions.*
Page 207 PREV PAGE TOP OF DOC
United States v. Galena Park Independent School District
169–74–17 (S.D. Tex.)
Date of Last Litigation-Related Activity: July 1, 1998
Nature of Litigation-Related Activity: Order terminating reporting requirements.*
United States v. Board of Trustees of Crosby Independent School District
DJ 169–74–29 (S.D. Tex.)
Date of Last Litigation-Related Activity: May 11, 2000
Nature of Litigation-Related Activity: Report to the Court
United States v. Katy Independent School District
169–74–35 (S.D. Tex.)
Date of Last Litigation-Related Activity: July 1, 1998
Nature of Litigation-Related Activity: Order terminating reporting provisions.
United States v. Madisonville Independent School District
169–74–37 (S.D. Tex.)
Date of Last Litigation-Related Activity: July 1, 1998
Nature of Litigation-Related Activity: Order terminating reporting provisions.*
Adams and United States v. Mathews (Longview Independent School District)
DJ 169–75–4 (E.D. Tex.)
Date of Last Litigation-Related Activity: August 1999
Nature of Litigation-Related Activity: Report to the Court*
Page 208 PREV PAGE TOP OF DOC
United States v. TEA (Port Arthur Independent School District)
DJ 169–75–6 (E.D. Tex.)
Date of Last Litigation-Related Activity: November 5, 1991
Nature of Litigation-Related Activity: Report to the Court*
United States v. Tatum Independent School District
DJ 169–75–9 (E.D. Tex.)
Date of Last Litigation-Related Activity: July 12, 1971
Nature of Litigation-Related Activity: Re-entry of 4/20/71, as modified, per instructions from Fifth Circuit.
United States v. TEA (Carthage Independent School District)
DJ 169–75–14 (E.D. Tex.)
Date of Last Litigation-Related Activity: July 21, 2000
Nature of Litigation-Related Activity: Order requiring school district to provide written reports to the U.S. for three years beginning with July 15, 2001.
United States v. Kilgore Independent School District
DJ 169–75–18 (E.D. Tex.)
Date of Last Litigation-Related Activity: July 12, 2000
Nature of Litigation-Related Activity: Order of Dismissal
United States v. TEA (Henderson Independent School District
DJ 169–75–19 (E.D. Tex.)
Date of Last Litigation-Related Activity: April 17,1998
Page 209 PREV PAGE TOP OF DOC
Nature of Litigation-Related Activity: Order denying motion to intervene for modification of desegregation order.
United States v. State of Texas (Buffalo Independent School District)
DJ 169–75–19 (E.D. Tex.)
Date of Last Litigation-Related Activity: April 17, 1998
Nature of Litigation-Related Activity: Order denying motion to intervene for modification of desegregation order.
United States v. State of Texas (Colmesneil Independent School District)
DJ 169–75–19 (E.D. Tex.)
Date of Last Litigation-Related Activity: April 17, 1998
Nature of Litigation-Related Activity: Order denying motion to intervene for modification of desegregation order.
United States v. State of Texas (Fairfield Independent School District)
DJ 169–75–19 (E.D. Tex.)
Date of Last Litigation-Related Activity: April 17,1998
Nature of Litigation-Related Activity: Order denying motion to intervene for modification of desegregation order.
United States v. State of Texas (Daingerfield Independent School District)
DJ 169–75–19 (E.D. Tex.)
Date of Last Litigation-Related Activity: April 17,1998
Nature of Litigation-Related Activity: Order denying motion to intervene for modification of desegregation order.
Page 210 PREV PAGE TOP OF DOC
United States v. State of Texas (Maladoff Independent School District)
DJ 169–75–19 (E.D. Tex.)
Date of Last Litigation-Related Activity: April 17,1998
Nature of Litigation-Related Activity: Order denying motion to intervene for modification of desegregation order.
United States v. State of Texas (Nacogdoches Independent School District)
DJ 169–75–19 (E.D. Tex.)
Date of Last Litigation-Related Activity: April 17, 1998
Nature of Litigation-Related Activity: Order denying motion to intervene for modification of desegregation order.
United States v. State of Texas (Oakwood Independent School District
DJ 169–75–19 (E.D. Tex.)
Date of Last Litigation-Related Activity: April 17, 1998
Nature of Litigation-Related Activity: Order denying motion to intervene for modification of desegregation order.
United States v. State of Texas (Whitewright Independent School District)
DJ 169–75–19 (E.D. Tex.)
Date of Last Litigation-Related Activity: April 17,1998
Nature of Litigation-Related Activity: Order denying motion to intervene for modification of desegregation order.
Page 211 PREV PAGE TOP OF DOC
United States v. Tyler Independent School District
DJ 169–75–20 (E.D. Tex.)
Date of Last Litigation-Related Activity: April 15, 2000
Nature of Litigation-Related Activity: Consent agreement allowing relocation of G/T program and Alternative School to newly purchased property and related student/staff reassignments.*
United States v. TEA (Jefferson Independent School District.)
DJ 169–75–27 (E.D. Tex.)
Date of Last Litigation-Related Activity: July 14, 2000
Nature of Litigation-Related Activity: Consent Order*
United States v. TEA (Lufkin Independent School District)
DJ 169–75–28 (E.D. Tex.)
Date of Last Litigation-Related Activity: July 11, 2000
Nature of Litigation-Related Activity: Agreed order granting unitary status and dismissal
United States v. TEA (Sulphur Springs Independent School District)
DJ 169–75–30 (E.D. Tex.)
Date of Last Litigation-Related Activity: July 14, 2000
Nature of Litigation-Related Activity: Order of Dismissal
United States v. TEA (Elysian Fields Independent School District)
DJ 169–75–31 (E.D. Tex.)
Date of Last Litigation-Related Activity: July 13, 2000
Nature of Litigation-Related Activity: Agreed Order of Dismissal
Page 212 PREV PAGE TOP OF DOC
United States v. TEA (San Angustine Independent School District)
DJ 169–75–35 (E.D. Tex.)
Date of Last Litigation-Related Activity: July 9, 1971
Nature of Litigation-Related Activity: Fifth Circuit remanded case with directions to re-enter order of April 20, 1971.
United States and Coleman v. Midland Independent School District
DJ 169–76–4 (W.D. Tex.)
Date of Last Litigation-Related Activity: June 2, 2000
Nature of Litigation-Related Activity: Written status report by MISD.*
United States v. Ector County Independent School District
DJ 169–76–5 (W.D. Tex.)
Date of Last Litigation-Related Activity: June 19, 2000
Nature of Litigation-Related Activity: Order approving modification of desegregation plan re: magnet school.*[
United States v. TEA (LaVega Independent School District)
DJ 169–76–18 (W.D. Tex.)
Date of Last Litigation-Related Activity: February 12, 1985
Nature of Litigation-Related Activity: Order eliminating the bi-racial committee as reporting requirement.
United States v. Temple Independent School District
Page 213 PREV PAGE TOP OF DOC
DJ 169–76–27 (W.D. Tex.)
Date of Last Litigation-Related Activity: June 30, 2000
Nature of Litigation-Related Activity: Order approving agreed order of dismissal.*
United States v. TEA (Calvert Independent School District)
DJ 169–76–28 (W.D. Tex.)
Date of Last Litigation-Related Activity: August 15, 1989
Nature of Litigation-Related Activity: Status Report
United States v. TEA (Hearne Independent School District)
DJ 169–76–29 (W.D. Tex.)
Date of Last Litigation-Related Activity: November 30,1989
Nature of Litigation-Related Activity: Status Report
STATE: UTAH
United States and Meyers v. San Juan County School District
DJ 169–77–21 (D. Utah)
Date of Last Litigation-Related Activity: April 7, 1995
Nature of Litigation-Related Activity: Consent Order*
STATE: VIRGINIA
Corbin and United States v. School Board of Loudoun County
DJ 169–79–8 (E.D. Va.)
Page 214 PREV PAGE TOP OF DOC
Date of Last Litigation-Related Activity: August 27, 1976
Nature of Last Litigation-Related Activity: Order dissolving regulatory injunction and imposing permanent injunction.*
United States v. Southampton County School Board
DJ 169–79–10 (E.D. Va.)
Date of Last Litigation-Related Activity: August 17, 1999
Nature of Litigation-Related Activity: Report to the Court.
United States v. Franklin City School Board
DJ 169–79–22 (E.D. Va.)
Date of Last Litigation-Related Activity: June 12, 1974
Nature of Litigation-Related Activity: Order approving amendment to the desegregation plan entered October 2, 1970.*
United States v. Commonwealth of Virginia (VMI)
DJ 169–80–25 (W.D. Va).
Date of Litigation-Related Court Activity: June 2, 2000
Nature of Litigation-Related Activity: Status Report*
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
XXXXXXXXXXXXXXXXXXX x
Page 215 PREV PAGE TOP OF DOC
RC–1541
In the Matter of the Application of
CANDACE CARRABUS, CHRISTOPHER BARRY and all
other Petitioners similarly situated as set forth and
described in the Petition,
Petitioners,
-against-
ALAN SCHNEIDER, PERSONNEL OFFICER OF THE
Index No.
COUNTY OF SUFFOLK AND SUFFOLK COUNTY,
CV00–2885 (ILG)
Page 216 PREV PAGE TOP OF DOC
Respondents.
For a Judgment pursuant to Article 78 of the Civil Practice
Law and Rules directing that Alan Schneider, Personnel
Officer of the County of Suffolk and the County of Suffolk
comply with those provisions of the Civil Service Law of the
State of New York and the Suffolk County Code which
obligate Respondents in the performance of their duties to
offer and certify a competitive Civil Service Test based
upon merit and fitness and to certify and supply answers to
the 1999 Suffolk County Police Exam.
XXXXXXXXXXXXXXXXXXX x
MEMORANDUM OF LAW IN SUPPORT OF MOTION
TO VACATE TEMPORARY RESTRAINING ORDER
Dated:
Hauppauge, New York
June 28, 2000
Page 217 PREV PAGE TOP OF DOC
Respectfully submitted,
Robert J. Cimino
Suffolk County Attorney
Attorney for Defendants
100 Veterans Memorial Highway
P. 0. Box 6100
Hauppauge, New York 11 788
Page 218 PREV PAGE TOP OF DOC
BY:
Robert H. Cabble
Assistant County Attorney
PRELIMINARY STATEMENT
On May 22, 1999 the County of Suffolk administered a written civil service examination for the entry-level position of Police Officer (hereinafter referred to as the ''Police Exam''). The Police Exam was developed, validated and graded by Suffolk County's contractor, the firm of SHL Landy, Jacobs. The United States Department of Justice, which monitors hiring practices in the Suffolk County Police Department pursuant to a Consent Decree entered by this Court on September 12, 1986 (a copy of which is annexed to the Verified Petition as exhibit B, and an additional copy of which is annexed as an exhibit to the notice of removal) (hereinafter referred to as the ''Consent Decree''), approved the administration of the Police Exam and authorized the use of the eligibles list created thereby to hire Suffolk County Police Officers.
On May 17, 2000 the petitioners, Candace Carrabus, et al. commenced a C.P.L.R. Article 78 proceeding in New York Supreme Court, Suffolk County seeking judicial review of the Police Exam. The state court proceeding alleges that the Consent Decree has expired, that the Police Exam does not comply with New York State civil service law requirements for competitive examinations, that the Police Exam is not a valid selection device and that Suffolk County violated N.Y. General Business Law §349(a) and (h), which prohibit consumer-oriented conduct which is deceptive or misleading in a material way, when it administered the Police Exam.
Page 219 PREV PAGE TOP OF DOC
On May 17, 2000 the petitioners also presented an order to show cause to Justice Robert A. Lifson of the Supreme Court, County of Suffolk, which sought to preliminarily enjoin Suffolk County from hiring any police officers and from using the results of the Police Exam for any purpose whatsoever pending the hearing and determination of the underlying C.P.L.R. Article 78 proceeding. The order to show cause also sought a temporary restraining order pending the hearing and determination of the motion for a preliminary injunction. Justice Lifson granted that part of the order to show cause which sought to temporarily restrain the hiring of police officers, but he refused to enjoin Suffolk County from using the results of the Police Exam for any purpose whatsoever. The order to show cause was made returnable in the New York State Supreme Court, County of Suffolk, on May 22, 2000.
On May 22, 2000, Suffolk County filed a Notice of Removal of the state court proceeding with the Suffolk County Clerk. Suffolk County sought to remove the state court proceeding to federal court under the grounds specified under the provisions of 28 U.S.C. §1441 (a) and (b), §1443(2) and under the All Writs Act. 28 U.S.C. §1651.
By notice of motion dated June 19, 2000 the petitioners moved to remand this action to state court.
Under the present procedural posture of the case, the temporary restraining order preventing the hiring of police officers is still in effect, the petitioners' motion for a preliminary injunction is pending and has not been heard, Suffolk County has served and filed its answer to the Verified Petition and the United States of America has intervened in this case. Pursuant to a scheduling order by U.S. Magistrate Judge Marilyn D. Go entered after conferences with the Court at the Courthouse on June 19, 2000 and by telephone on June 20, 2000, the petitioners were directed to serve amended and/or additional pleadings and moving papers by June 27, 2000, Suffolk County was directed to move to vacate the temporary restraining order and to oppose the motion to remand by June 28, 2000 and this matter was made returnable before the Court on July 7, 2000.
Page 220 PREV PAGE TOP OF DOC
The petitioners have not pursued a bearing on their application for a preliminary injunction. Consequently, the respondents are moving this Court to vacate the temporary restraining order, and submit this memorandum of law in support of that motion.
POINT I
THE PETITIONERS HAVE FAILED TO PROVE THAT THEY ARE ENTITLED TO THE EXTRAORDINARY RELIEF OF A PRELIMINARY INJUNCTION
Upon removal of this matter, it arrived in this Court with a temporary restraining order in place issued by a state court judge. The petitioners have not pursued the next step, that of seeking a preliminary injunction. The respondents demonstrate below that there is no justification for the continuance of the temporary restraining order, nor for the issuance of a preliminary injunction.
A. The Legal Standards
''The standards which govern consideration of an application for a temporary restraining order . . . are the same . . . as those which govern a preliminary injunction.'' Local 1814 International Longshoremen's Association, AFL–CIO v. New York Shipping Assoc., Inc. 965 F.2d 1224, 1228 (2d Cir. 1992). cert.den., 506 U.S. 953. 113 S.Ct. 406. 121 L.Ed.2d 331 (1992).
Therefore, the following discussion of the standards relating to preliminary injunctions has equal application in considering the propriety of the temporary restraining order.
Page 221 PREV PAGE TOP OF DOC
A preliminary injunction is an ''extraordinary remedy that should not be granted as a routine matter.'' JSG Trading Corp. v. Tray-Wrap. Inc., 917 F.2d 75, 80 (2d Cir. 1990)(citing Patton v. Dole, 806 F.2d 24, 28 (2d Cir. 1986)); Hanson Trust PLC v. ML SCM Acquisition, Inc., 781 F.2d 264, 273 (2d Cir. 1986)(preliminary injunction is ''one of the most drastic tools in the arsenal of judicial remedies'').
In this Circuit, the general standard for preliminary injunctive relief is well established, and consists of a two-prong test:
A party seeking a preliminary injunction generally must establish ''(a) irreparable harm and (b) either (1) likelihood of success on the merits, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.''
Charette v. Town of Oyster Bay, 159 F.3d 749, 754 (2d Cir. 1998)(quoting Jackson Dairy, Inc. v. H.P. Hood & Sons. Inc., 596 F.2d 70. 72 (2d Cir. 1979)).
As to the first prong, proof of irreparable harm is considered the ''single most important requirement'' in meeting the standard for injunctive relief. Bell & Howell: Mamiya Co. v. Masel Supply, Co., 719 F.2d 42. 45 (2d Cir. 1983). Accord, Rodriguez v. DeBuono, 175 F.3d 227, 233–34 (2d Cir. 1999). To establish irreparable harm, ''the movant must demonstrate an injury that is neither remote nor speculative but actual and imminent and that cannot be remedied by an award of monetary damages.'' Rodriguez, 175 F.2d at 234 (quoting Shapiro v. Cadman Towers, Inc., 51 F.3d 328. 332 (2d Cir. 1995)).
Page 222 PREV PAGE TOP OF DOC
A movant may satisfy the second prong of the test only by meeting the higher ''likelihood of success'' standard where, as here, the request is to stay governmental action taken pursuant to statutory authority in the public interest. Statharos v. New York City Taxi and Limousine Commission, 198 F.3d 317, 321 (2d Cir. 1999)(citation omitted): Bery v. City of New York, 97 F.3d 689, 694 (2d Cir. 1996). cert.den., 520 U.S. 1251, 117 S.Ct. 2408, 138 L.Ed.2d 174 (1997). Accordingly, a strong showing of entitlement is necessary where an injunction might ''adversely affect the public interest in a manner which cannot be compensated for by an injunction bond.'' Medical Society of State of New York v. Toia, 560 F.2d 535, 538 (2d Cir. 1977). A court should carefully balance the public interest, otherwise a claim that ''appears meritorious at a preliminary stage but is ultimately determined to be unsuccessful will have precipitated court action that might needlessly have injured the public interest.'' Time Warner Cable of City of New York v. Bloomberg, L.P., 118 F.3d 917, 929 (2d Cir. 1997).
B. Irreparable Harm
In their application to the state court for a temporary restraining order, the petitioners asserted merely, a generic contention that they would be irreparable harmed. Given the context within which this motion is being made, the respondents have no information of the precise harm each individual petitioner may assert in opposing the motion. However, it is anticipated that the petitioners will posit as irreparable harm one or more of the usual litany found in employment cases, such as: (a) loss of employment in the next academy class, with consequent loss of pay, benefits, and seniority; (b) inability to fulfill their aspirations of becoming Suffolk County police officers with consequent psychological and emotional damages; and (c) frustration at seeing other allegedly less qualified persons appointed before them.
Page 223 PREV PAGE TOP OF DOC
As a general rule, loss of employment in and of itself does not establish irreparable injury. Savage v. Gorski, 850 F.2d 64, 67–68 (2d Cir. 1988). So, too, the loss of a promotional opportunity during the pendency of a lawsuit challenging a promotional examination is not irreparable harm. See, e.g., Adams v. City of Chicago, 135 F.3d 1150, 1154–55 (7th Cir. 1998). Accordingly, where as here, a plaintiff seeks instatement as an employee, there is no irreparable injury in not granting interim relief. E.g., Washington v. Walker, 529 F.2d 1062, 1065–66 (7th Cir. 1976).
These principles apply with special force in the context of public employment. The case of Washington v. Walker, supra, with an analogous fact pattern is instructive in this matter. In Washington, plaintiffs alleged racial discrimination in the selection procedures used by the Illinois State police, in particular, the written examination. They sought a preliminary injunction blocking the state police from appointing any cadets in the upcoming academy class. The district court denied the injunction, and the Seventh Circuit affirmed. That court rejected the plaintiffs' contention that given the paucity of openings in the state police, any victory on the merits would be meaningless if the class were allowed to go forward. The court observed that Title VII would afford the plaintiffs remedies such as instatement with backpay. It further held that, ''At most, employment by the state police would be delayed if the training class is not enjoined. Such delay does not constitute irreparable harm.'' Washington, 592 F.2d at 1065–66 (citation omitted).
In another analogous case, Leen v. Carr, 945 F.Supp. 1151 (N.D.Ill. 1996), a preliminary injunction was denied to plaintiffs who were not selected for paramedic positions in a city fire department. The plaintiffs were challenging the city's practice of giving hiring preference to individuals who participated in certain favored paramedic training programs. They sought to enjoin the formation of the next paramedics class. In denying the motion, the district court rejected the assertions of irreparable harm, stating:
Page 224 PREV PAGE TOP OF DOC
The Court is unpersuaded by plaintiffs' arguments and finds that plaintiffs could be sufficiently made whole by an order granting them instatement, retroactive seniority, and back pay . . . The harms that plaintiffs claim they will suffer appear to be tangible and economic ones that can be easily ascertained and rectified, pending the outcome of this litigation.
Leen, 94 F.Supp. at 1157.
Once again, in Philippeaux v. County of Nassau, 921 F.Supp. 1000 (E.D.N.Y. 1996), the district court denied injunctive relief to a plaintiff seeking to enjoin Nassau County from filling a civil service position of veterans counselor. The plaintiff contended that the position was property his pursuant to a failed settlement agreement with the county. The district court rejected the claim of irreparable harm, observing:
Simply stated. the court is unpersuaded of any impediment preventing the plaintiff from actively seeking employment in the private sector while this litigation is pending. The fact that he desires a specific civil service job that was the subject of the parties' settlement negotiations is insufficient to show irreparable harm . . . Indeed, the plaintiff himself asserts little more than a hope of obtaining the civil service job that he interviewed for. Although he is understandably, frustrated that his aspiration did not come to fruition, this does not provide a basis for the court to conclude that a binding agreement was reached.
Philippeaux, 921 F.Supp. at 1013–14.
Page 225 PREV PAGE TOP OF DOC
The petitioners in this matter can make no stronger case for irreparable injury than the plaintiffs in the cited decisions. Assuming that the petitioners achieve success, their worst harm is delayed entry into the police academy. An appropriate order granting full relief can be entered by this Court. During the pendency of this litigation, many of the petitioners will be, by their own admission, gainfully employed in law enforcement positions. This circumstance deprives the petitioners of any credible claim of irreparable harm. In the context of loss of employment one court observed that to qualify for injunctive relief. ''In essence, the plaintiff must quite literally find herself being forced into the streets or facing the spectre of bankruptcy before a court can enter a finding of irreparable harm.'' Williams v. State University of New York, 635 F.Supp. 1243, 1248 (E.D.N.Y. 1986). In the absence of any proof that the petitioners cannot obtain other employment; lack personal or family resources; lack unemployment insurance; are unable to secure a loan: or are ineligible for public assistance, they simply fail to establish irreparable harm. Id.
Despite the petitioners' self-serving belief that they have superior qualifications over those candidates currently being screened for appointment, their assertions are rank speculation. Like the plaintiff in Phillippeaux, supra, the petitioners have merely aspirations for, not certainty, of appointment. Applicants do ''not possess any mandated right to appointment or any other legally protected interest. [They] can assert at most the right to consideration for and a 'hope' of appointment.''' Matter of Deas v. Levitt, 73 N.Y.2d 525, 532, 541 N.Y.S.2d 958, 960, 539 N.E.2d 1086 (1989)(quoting, Cassidy v. Municipal Civil Service Commission of the City of New Rochelle, 37 N.Y.2d 526, 529, 375 N.Y.S.2d 300, 303, 337 N.Y.2d 752; cert den., 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989). None of the petitioners would necessarily be admitted in the next, or any, academy class should the injunction issue. Their claim that a readjustment of the scoring of the examination would cause the petitioners to leap to the top of the eligible list is speculative, if not fanciful. Thus, the petitioners cannot prove that they will be irreparable harmed.
Page 226 PREV PAGE TOP OF DOC
Counterbalancing the petitioners' rank speculation is the reality of the adverse effect an injunction would have upon the public interest. As described in the affidavit of Edward Webber, dated June 28, 2000, the Suffolk County Police Department has been unable to appoint officers since 1996, when use of the police examination given that year became impossible due to allegations of widespread cheating. Since that time. the number of patrol officers has steadily declined due to a combination of retirements, resignations, and other factors. The department is considerably below its authorized strength. As a result, there has arisen a shortage of officers to staff sector cars, which are the police department's primary resource in responding to calls for police services of all types. The department has compensated for the staffing shortages through the use of off duty officers in an overtime status, which, in turn, has bloated the overtime budget. Despite this, there are occasions in which sector cars are shut down due to staffing shortages. This circumstance is a dancer to public safety, and militates against anting the relief sought by the petitioners. See, Bertoncini v. City of Providence, 767 F.Supp. 1194, 1198 (D.R.I. 1991)(finding irreparable harm to city from injunction barring appointment of upcoming fire fighter training class where city had to make up for manpower shortages by using off-duty fire fighters for overtime, and such practice would be continued during pendency of litigation). Accord, Washington, 529 F.2d at 1066 (''Surely the public interest would be adversely affected by such a preliminary injunction since fewer state troopers would be available. This was one of the factors that the district court properly considered in denying the requested relief
Finally, the Court should consider the effected injunctive relief would have on these candidates who scored well on the examination and are currently undergoing the additional qualifying tests for appointment. Bertoncini, 767 F.Supp. at 1198. The petitioners, gratuitously and without factual basis, pejoratively label these candidates as unqualified. The harm to these persons militates against granting interim relief to the petitioners. Indeed, under New York law, these persons were entitled to be joined as necessary parties in an Article 78 proceeding challenging the police examination. See, McGuinn v. City of New York, 219 A.D.2d 489, 490; 656 N.Y.S.2d 770, 771 (1st Dept. 1995): mot. for lv. to app. den., 87 N.Y.2d 966, 642 N.Y.S.2d 193 (1996)(dismissing Article 78 petition challenging credit given to city firefighter applicants residing in the city for failure to join as necessary parties examination candidates who were city residents and received the benefit of the residency credit.)
Page 227 PREV PAGE TOP OF DOC
C. Likelihood Of Success On The Merits
The petitioners also fail to satisfy the second prong of the injunctive relief test. They cannot establish a likelihood of success on the merits.
Although the petitioners in their original papers filed in state court strove to characterize their petition as grounded exclusively, in New York state law, the respondents dispute this, and assert that this matter is governed by federal law. Indeed, the amended petition, which was received by the respondents as this memorandum,'' as prepared, appears to plead claims grounded in federal law. Moreover, even if the petitioners are correct in their interpretation of New York law, their contentions must be rejected due to the supremacy of federal law in this area.
1. Title VII Prevails 0ver Conflicting State Law
It is well settled that to the extent that an employer seeks to justify a discriminatory employment practice in reliance on state law, the state law must yield to federal law. Title VII unequivocally exempts employers from adhering to a state law employment provision ''which purports to require or permit any discriminatory hiring practice.'' 42 U.S.C. §2000(e)–7.
The Second Circuit has consistently held that where a New York constitutional or statutory provision, as interpreted by an employer, conflicts with Title VII, the federal statute prevails. In Guardians Association of New York City Police Department v. Civil Service Commissioner of the City of New York, 630 F.2d 79 (2d Cir. 1980), an action challenging the written examination for police officers, New York City sought to justify its practice of rank order hiring off the eligible list upon the claim that Article V, §6 of the New York Constitution required it. The Second Circuit flatly rejected that argument, citing Title VII's proscription against any state law which would, as applied, perpetuate discrimination. Guardians Assn. of NYC, 630 F.2d at 105–06. Accord, Kirkland v. New York State Department of Correctional Services, 711 F.2d 1117, 1132, n. 18 (2d Cir. 1983) cert. den., 465 U.S. 1005, 104 S.Ct. 997, 79 L.Ed.2d 230 (1984). (''Because state law must yield to federal law in Title VII cases [citation omitted], we need not consider whether the settlement agreement violates state law.'').
Page 228 PREV PAGE TOP OF DOC
Similarly, without merit is the petitioners' insistence upon compliance with certain provisions of the Suffolk County Code. (Petition, 25, 26–28 at pp.6–7; Carrabus Aff., 11–16 at pp.3–5. Kelly, Aff., 22, 25–31 at pp. 4–5). As with state constitutional provisions, ''municipal charter provisions cannot override the goals of Title VII.'' Bridgeport Guardians. Inc. v. City of Bridgeport, 933 F.2d 1140, 1148 (2d Cir. 1991 )(rejecting argument that city must hire in rank order as required by city charter).
Based upon the foregoing decisional law, the petitioners cannot prevail in their assertion that the Consent Decree, by its silence, does not override New York or County laws or regulations. The Decree need not explicitly recite that it supercedes conflicting state or local law, its requirement that the County comply with Title VII is sufficient. Similarly, the absence of a separate consent order addressing the police exam at issue is of no legal consequence. As the Second Circuit has held, Title VII, by operation of law, overrides any contrary state or local law. 42 U.S.C. §2000(e)–7.
Courts have expressed their preference that there be voluntary compliance with meeting the goals of Title VII. Kirkland, 711 F.2d at 1128. For this reason, ''voluntary compromises of Title VII actions enjoy a presumption of validity.'' Id. It was thus unnecessary, as the petitioners contend, for the respondents to obtain a supplemental consent order to utilize the police exam. The Consent Decree did not by its terms require such a consent order, except in the case of the RBH selection device. Moreover, requiring prior judicial approval of a test's validity for a settlement ''would seriously undermine Title VII's preference for voluntary, compliance and is not warranted.'' Id. at 1130.
Page 229 PREV PAGE TOP OF DOC
In their amended pleadings, the petitioners also rely, on the Tenth Amendment to the United States Constitution. Any claim that the Tenth Amendment compels dissolution of the Consent Decree may be quickly refuted. The Tenth Amendment does not bar the application of Title VII and its requirements of non-discriminating employment practices to states or municipalities. Guardians Ass'n. of NYC, 630 F.2d at 88: Commonwealth of Pennsylvania v. O'Neill, 465 F.Supp. 451. 462 (E.D.Pa. 1979).
2. State Law Claims
The petitioners claim that New York law compels the use of a cognitive examination, and that the police exam violates that requirement.
Article V, §6 of the New York Constitution provides:
Appointments and promotions in the civil service of the state and all the civil divisions thereof . . . shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable shall be competitive.
Examinations are addressed in section 50(6) of the New York Civil Service Law, which states:
Scope of examinations. Examinations shall be practical in their character and shall relate to those matters which fairly test the relative capacity and fitness of the persons examined to discharge the duties of that service into which they seek to be appointed . . .
Page 230 PREV PAGE TOP OF DOC
Under the petitioners' interpretation of these provisions, the ''merit and fitness'', or alternatively, ''capacity and fitness'' standard mandates an examination that is cognitive in nature. Such an examination, according to the petitioners, is the only type which is truly competitive, because it promotes standards or measures which are objective and capable of being reviewed by persons of equal ability and experience. See, Petition, 33 at p.8 Carrabus Aff., 18 at p.4; Kelly Aff., 7–10, 12 at p. 2–3. This interpretation of New York law is erroneous. It ignores the flexibility of the ''as for as practible'' clause in the constitutional provision and assigns a crimped scope to the ''merit and fitness'' element.
The New York Court of Appeals recently had occasion to review the construction of the state constitutional provision at issue. In Merlino v. Schneider, 93 N.Y.2d 477, 63 N.Y.S.2d 71, 715 N.E.2d 99 (1999), the Court of Appeals approved the oral language proficiency portion of a civil service examination, in which it was claimed that the examination rested upon subjective opinion of the examinator, in contravention of the requirement that it be ''competitive'' within the meaning of the State Constitution.
Although the New York Court of Appeals had before it an oral examination, the rationale it fashioned applies with equal authority to a written examination. Construing Article V §6, the Court of Appeals observed:
The mandate of the Constitution for the ascertainment of merit and fitness, so far as practicable, by competitive examination, may not be transformed into an interdict against the examinations which are best adapted for the demonstration the fitness. It would be impossible to formulate a standard by which such qualities may be defined or measured with entire objectivity.
Page 231 PREV PAGE TOP OF DOC
Merlino, 93 N.Y.2d at 485, 693 N.Y.S.2d at 76 (quoting, Matter of Sloat v. Board of Examiners, 274 N.Y. 367, 393, 9 N.E.2d 12 (19??).
Thus, the Court of Appeals interpreted the New York State Constitution as having a flexible requirement of objectivity, consonant with practicable considerations. If there was any doubt that New York law had flexibility, on this point. the Court of Appeals resoundingly dispelled it:
The Constitution does not require rigid adherence to some unrealistic principle of objectivity the law does not require the impossible.
Id.
The petitioners have not cited any authority supporting their restrictive interpretation of New York law. To the contrary, the New York Court of Appeals has given an expansive interpretive gloss to the State Constitutional mandate. The ''merit and fitness'' standard does not translate to an exam that measures only cognitive abilities. A competitive examination can measure other attributes as well. The police exam utilized by the respondents was researched, constructed and validated to measure a range of attributes and skills including cognitive. See, Affidavit of Rick Jacobs, dated June 28, 2000. New York law does not discourage the testing of skills beyond cognitive ones, where those other skills are a fair measure of merit and fitness. See, Cassidy Municipal Civil Service Commission of the City of New Rochelle, supra, 37 N. Y.2d at 259, 375 N.Y.S.2d at 302 (''an individual's ability to achieve a high examination score does not necessarily demonstrate his capacity to perform the actual duties of a particular position. Moreover, examination success cannot reveal any possible defects of personality, character or disposition which may impair the performance of one's duties in a civil service position.'')
Page 232 PREV PAGE TOP OF DOC
In this connection, the petitioners also err in their argument that the police exam is not competitive because it is not susceptible of independent review. The examination was validated, using the rigorous procedures required by the Uniform Guidelines. See, Jacobs Aff. 14. The Guidelines demand objective proof that a test is reasonably job related. Beyond this, the United States Department of Justice conducted its own review of the test, employing independent experts. Given the ability of the Justice Department to review the police exam, it ''conforms to measures or standards which are sufficiently objective to be capable of being challenged and reviewed, when necessary by other examiners of equal ability and experience.'' Matter of Fink v. Finegan, 270 N.Y. 356, 2, 1 N.E.2d 462 (1936).
As an alternative state law claim, the petitioners allege a violation of section 349 of the New York General Business law. That statute prescribes deceptive acts or practices in the conduct of business, trade or commerce. To establish a violation of this law ''a plaintiff must demonstrate that the defendant is engaging in consumer-oriented conduct which is deceptive or misleading in a material way and that the plaintiff has been injured because of it.'' St. Patrick's Home for the Aged and Infirm v. Laticrete International, Inc., 264 A.D.2d 652, 655, 696 N.Y.S.2d 117, 122 (1st Dept. 1999). The statute was intended to apply to a ''modest'' transaction. Id. There is no reported decision holding that a municipality soliciting candidates to take a police examination is engaging in ''consumer-oriented conduct'' within the reach of this statute.
3. The Reverse Discrimination Claim
Page 233 PREV PAGE TOP OF DOC
The petitioners' attempt to cloak their claims in New York law, but their case is, in truth, a reverse discrimination claim under Title VII. This is evidenced by the notices of claim each of them served after commencement of this action in state court. For example, the notice of claim served by the lead petitioner, Candace Carrabus (a copy of which is attached to his memorandum) alleges that:
Respondent and/or agents adjusted the scores, used different cutoffs, or otherwise altered the results of employment tests on the basis of race, color, sex, age or national origin . . . Such actions violate 42 U.S.C. 1981 Section 106 and other relevant sections of the Civil Rights Act of 1991, New York Constitution, New York Civil Service Law, and the Suffolk County Code, the United States Constitution's privileges and immunities clause, the contract clause and veterans rights as established in common law and existing at the time of the founding of the nation as well as separate statutory federal and state law.
Additionally, the petitioners have now amended their original state court petition to assert federal claims. However, even the petitioners' federal claims, tantamount to a reverse discrimination allegation. are unlikely to succeed on the merits.
In alleging that a test used to determine employment violates Title VII's prohibition against discrimination, a plaintiff may establish a prima facie case of disparate impact by showing that the test causes the selection of applicants in a pattern that differs significantly from the pool of applicants. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975). See, also, Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656–57, 109 S.Ct. 2115, 2112–25, 104 L.Ed.2d 733 (1989): Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994–95. 108 S.Ct. 2777, 2788–89. 101 L.Ed.2d 827 (1988). Upon plaintiff making a prima facie case, the burden shifts to the defendant employer to come forward with evidence that the test has ''a manifest relationship to the employment in question.'' Albemarle, 422 U.S. at 425, 95 S.Ct. at 2375 (quoting Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971 )). The plaintiff may then show that there exist alternative tests that meet both the defendant's legitimate business needs and reduce disparate impact. Id. at 425. Throughout this process of burden shifting the ultimate burden of proving discrimination remains with the plaintiff ''at all times.'' Wards Cove, 490 U.S. at 659–60, 109 S.Ct. at 2126–27.
Page 234 PREV PAGE TOP OF DOC
In this case, the petitioners cannot make out a prima facie case of discrimination. The exam was administered and graded in the same manner in regard to all applicants. There were no separate grading methodologies applied to any distinct group; rather, the same methodology was applied to all candidates.
It is also unlikely that the petitioners can mount a credible challenge to the validity of the police exam under Title VII. An employer may utilize ''any professionally developed ability test'' that does not discriminate on the basis of race, color, religion, sex or national origin. 42 U.S.C. §2000(e)–2(h). The examination in this case was professionally researched, designed, and validated in deliberate conformity with the rigorous standards of the Uniform Guidelines. Those standards, and the various methods of validation suggested by them, are judicially acceptable. See, generally, Guardians Assn. of NYC, 630 F.2d at 91–99. The petitioners have offered no proof disputing compliance with these standards.
Lastly, the petitioners are unlikely to suggest a viable alternative to the examination at issue. Their preferred remedy—a regrading of the examination to include only the cognitive component and creation of a special eligible list—cannot possibly pass muster under the Uniform Guidelines. See, Jacobs Aff., p.17. See, also, Castro v. Beecher, 334 F.Supp. 930 (D. Mass. 1971)(an ''intelligence'' examination, consisting of 100 multiple choice questions testing word knowledge, numerical sequence, reading comprehension, reasoning, arithmetic, and analogy was not rationally related to the capacity of applicants to be trained for, or to perform the duties of police officers, and was discriminatory on basis of desperate pass rates). Despite the petitioners' fixation on the virtues of a cognitive test, the state of the law, as well as the state of the art in test construction, condemns their challenge to this examination to failure.
Page 235 PREV PAGE TOP OF DOC
CONCLUSION
The preliminary injunction should be denied and the temporary restraining order should be vacated.
DATED:
Hauppauge, New York
June 28, 2000
Respectfully submitted,
ROBERT J. CIMINO
Suffolk County Attorney
Attorney for Defendants
Office & P.O. Address
100 Veterans Memorial Highway
PO Box 6100
Hauppauge, New York 11788
BY:
Robert H. Cabble/RC–1541
Page 236 PREV PAGE TOP OF DOC
Assistant County Attorney
BY:
Theodore D. Sklar/TS–9083
Assistant County Attorney
NOTICE-OF-CLAIM
In the Matter of the claim of CANDACE CARRABUS
TO THE COUNTY OF SUFFOLK:
PLEASE TAKE NOTICE, that the undersigned Claimant(s) by attorneys, hereby make(s) claim and demands against you as follows:
NATURE OF CLAIM(S):
The nature of the claim is fraud, fraud in the inducement, deceptive business practices, fraud in equity involving acts and omissions, which involve a breach of legal or equitable duty, trust or confidence justify reposed in respondent's injurious to claimant, and by which undue and unconscionable advantage was and is being taken of claimant. Deliberate misrepresentations of fact by respondent were relied upon by claimant to claimant's detriment. Breach of contract is alleged.
Page 237 PREV PAGE TOP OF DOC
DATE, TIME, PLACE AND MANNER IN WHICH THE CLAIM(S) AROSE:
The claim arose with the claimant paying an application fee for an open competitive civil service examination for Suffolk Police Officer in May, 1999 and the grading and issuance of an eligible list for the Suffolk County Police Department in March, 2000 following an examination for Suffolk County Police Department position of police officer.
Claimant claims that the County of Suffolk and its agents, including the Department of Civil Service and Alan Schneider, Personnel Director, breached the public trust in defaulting on their duty to make certain that open and competitive civil service positions be filled, when practicable, by competitive examination. Respondent and/or agents adjusted the scores, used different cutoffs, or otherwise altered the results of employment tests on the basis of race, color, sex, age or national origin. Such adjustment or altering of results was done by separating the grading from valid predictors of job readiness. Analysis of data will indicate that the respondent's and their agents failed to perform analysis clearly indicated by accepted professional practice. Claimant claims that negative significant results, including a lack of validity in the reference sample, were disregarded herein. Such actions violate 42 USC 1981 Section 106 and other relevant sections of the Civil Rights Act of 1991, New York Constitution, New York Civil Service Law and the Suffolk County Code, the United States Constitution's privileges and immunities clause, the contract clause and veterans rights as established in common law and existing at the time of the founding of the nation as well as separate statutory federal and state law.
If claimant is a military veteran, the adjustment of scores was in violation of the privileges and immunities clause of the 14th Amendment entitling veterans of military service to fundamental rights identifiable in history and in the common law as veterans of the United States military and citizens of the United States. Such national rights include a clear computation of advancement priority in selection for government positions on competitive examinations which is made irrelevant by adjustment or altering of scores; that such altering or adjustment of scores was made in a discriminatory fashion as against individuals with combat era military experience and/or disability veterans preference points. In that there is no valid distinction between those who score in the 70's and those who score in the 90's with relation to job readiness and relatedness as measured in the grading herein, the grading discriminates against those with rights as veterans and national citizens and state citizens to veterans preference points being meaningful factors in selection of applicants.
Page 238 PREV PAGE TOP OF DOC
The citizenship clause of the 14th Amendment does not allow for degrees of citizenship creating a multi-tiered scheme designed to discriminate against equally eligible citizens. The two notable exceptions to this rule for government employment are veterans credits and knowledge, skills and abilities shown on competitive examination. The scheme engaged in by the County herein, vitiates both of these exceptions, at the same time gifting open competitive positions to candidates made eligible without regard to merit. These acts there by endanger public safety, the public treasury and harm claimant.
Actions of the County herein violated New York State Constitution Article V Section 6 and New York Civil Service Law, New York Code of Rules and Regulations, Suffolk County Code, New York Executive Law Section 296 and 42 USC 2000 et seq. Said actions were fraudulent and deceptive business practices under General Business Law Section 349. Said actions were and are in breach of the public trust and fraudulent.
Respondent's actions were fraudulent in inducing claimant to take a supposed open competitive civil service examination without disclosing that grading would eliminate substantive ''knowledge, skills and abilities'' questions and grading would be accomplished through individuals other than the Suffolk County Department of Civil Service. Respondent created an eligible list for civil service without regard to merit and endangered the public safety by breach of their obligations under law. Claimant has sought and continues to seek orders restraining respondent from using such graded lists and regarding the lists utilizing the full complement of knowledge skills and abilities questions for hiring. Claimant seeks fees and costs attendant to such application and the creation of an eligible list of those who have affirmatively and successfully challenged the initial eligible list. Claimant also seeks compensatory damages for respondent's failure to offer a position, based on claimant's merit or fitness, to the Suffolk County Police Department, together with damages for emotional distress.
Page 239 PREV PAGE TOP OF DOC
THE ITEMS OF DAMAGE(S) OR INJURIES CLAIMED ARE:
Injuries/Damages:
The items of damage include statutory violations, breach of the public trust and fraud, impairment of contract and unlawful dealing with regard to diluting veteran's rights.
PLEASE TAKE FURTHER NOTICE that the said claims and demands are hereby presented for adjustment and payment and that upon default of the respondent to pay to the claimant within the time limited for compliance with this demand by the statutes in such cases made and provided, claimants intend(s) to commence action against respondent to recover the aforesaid sum, together with interest, costs and disbursements.
| Claimant: |
| Candace Carrabus |
STATE OF NEW YORK
COUNTY OF SUFFOLK
CANDACE CARRABUS, being duly sworn, deposes and says: I am the claimant herein, and have read the foregoing NOTICE OF CLAIM against the respondents and know the contents thereof; that the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters deponent believes it to be true.
Page 240 PREV PAGE TOP OF DOC
Sworn to before me this 5 day of June, 2000.
Lawrence Kelly, Notary Public
GLYNN AND MERCEP, LLP
BY:
Lawrence E. Kelly
Attorneys for Claimant
Office & P. O. Address
North Country Road
Post Office Box 712
Stony Brook, New York 11790
631–751–5757
Page 241 PREV PAGE TOP OF DOC
RUBIN &ESQS.
BY:
A. Craig Purcell, Esq.
Attorneys for Claimant
Office & P. O. Address
700 Veterans Memorial Highway
Hauppauge, New York 11788
631–979–1600
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
XXXXXXXXXXXXXXXXXXX x
Page 242 PREV PAGE TOP OF DOC
RC–1541
In the Matter of the Application of
CANDACE CARRABUS, CHRISTOPHER BARRY and
all other Petitioners similarly situated as set forth and
described in the Petition,
Petitioners,
-against-
NOTICE OF MOTION
ALAN SCHNEIDER, PERSONNEL OFFICER OF THE
COUNTY OF SUFFOLK AND SUFFOLK COUNTY,
CV00–2805 (ILG)
Page 243 PREV PAGE TOP OF DOC
Respondents.
For a Judgment pursuant to Article 78 of the Civil Practice
Law and Rules directing that Alan Schneider, Personnel
Officer of the County of Suffolk and the County of
Suffolk comply with those provisions of the Civil Service
Law of the State of New York and the Suffolk County
Code which obligate Respondents in the performance of
their duties to offer and certify a competitive Civil Service
Test based upon merit and fitness and to certify, and
supply answers to the 1999 Suffolk County Police Exam.
XXXXXXXXXXXXXXXXXXX x
PLEASE TAKE NOTICE that upon the Affidavits of Edward Webber and Rick Jacobs, and the accompanying Memorandum of Law, and upon all prior proceedings had herein, the undersigned will move this Court, on behalf of defendant County of Suffolk, before the Honorable Eugene H. Nickerson, at the United States District Court, located at 225 Cadman Plaza East, Brooklyn, New York, on the 7th day of July, 2000, for an order vacating the temporary restraining order, and for other such other further relief that the Court deems just and proper.
Dated:
Page 244 PREV PAGE TOP OF DOC
Hauppauge, New York
Respectfully submitted,
June 28, 2000
Robert J. Cimino
Suffolk County Attorney
Attorney for Defendants
100 Veterans Memorial Highway
P. 0. Box 6100
Hauppauge, New York 11 788
Page 245 PREV PAGE TOP OF DOC
BY:
ROBERT H. CABBLE/RC–1541
Assistant County Attorney
BY:
THEODORE D. SKLAR/T8–9083
TO:
Lawrence E. Kelly, Esq.
Glynn & Mercep, LLP
Attorneys for Petitioners
P.O. Box 712, N. Country Road
Page 246 PREV PAGE TOP OF DOC
Stony Brook, New York 11790
Craig Purcell, Esq.
Rubin & Purcell, LLP
Attorneys for Petitioners
700 Veterans Memorial Highway
Hauppauge, New York 11788
John Gadzichowski, Esq.
Special Litigation Counsel
Employment Litigation Section
U. S. Department of Justice
P.O. Box 65968
Washington, D.C. 20035–5968
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
XXXXXXXXXXXXXXXXXXX x RC–1541
In the Matter of the Application of
CANDACE CARRABUS, CHRISTOPHER BARRY and
and all other Petitioners similarly situated as set forth
and described in the Petition,
Page 247 PREV PAGE TOP OF DOC
Petitioners,
-against-
AFFIDAVIT IN
ALAN SCHNEIDER, PERSONNEL OFFICER OF
SUPPORT OF
THE COUNTY OF SUFFOLK AND SUFFOLK
MOTION TO VACATE
COUNTY.
TEMPORARY
Page 248 PREV PAGE TOP OF DOC
RESTRAINING
Respondents.
ORDER
For a Judgment pursuant to Article 78 of the Civil
CV00–2805 (ILG)
Practice Law and Rules directing that Alan Schneider,
Personnel Officer of the County of Suffolk and the
County of Suffolk comply with those provisions of
the Civil Service Law of the State of New York and
the Suffolk County Code which obligate Respondents
in the performance of their duties to offer and certify
a competitive Civil Service Test based upon merit and
Page 249 PREV PAGE TOP OF DOC
fitness and to certify and supply answers to the 1999
Suffolk County Police Exam.
XXXXXXXXXXXXXXXXXXX x
STATE OF NEW YORK)
COUNTY OF SUFFOLK) SS.:
EDWARD WEBBER, being duly sworn, deposes and says that:
1. I am the Chief of the Support Services Division of the Suffolk County Police Department. I joined the Department in 1972 and have risen through the ranks to my current rank.
2. By training, I am also a certified public accountant.
3. As Chief of Support Services, I exercise command over most personnel matters in the Police Department. The division is responsible for areas including the Personnel and Community Relations Bureau. which handles personnel recruitment and applicant investigation for candidates for the position of police officer. The division also oversees the operations of the Police Academy Bureau, which trains police officer candidates after appointment. Overall, I have been involved in the recruitment, hiring, and training of police officers since 1988, in various capacities within the Personnel Bureau, as well as Deputy Chief and Chief of the Support Services Division.
Page 250 PREV PAGE TOP OF DOC
4. In May, 1996, the Suffolk County Department of Civil Service administered an entrance examination for the position of police officer, a test which was designed by the firm of Richardson, Bellows & Henry (RBH). RBH had been designated to design the test pursuant to a consent decree entered into between the County of Suffolk and the United States, which resolved a lawsuit commenced in 1983 by the United States alleging, among other things, discriminatory hiring practices through the use of a police examination which had disparate impact. A list of eligible candidates who passed the 1996 test was certified by the Civil Service Department in November, 1996.
5. Shortly thereafter, allegations of widespread cheating began to surface. These allegations spawned a grand jury probe which resulted in the indictment of a selling police sergeant for improperly obtaining and using questions from the RBH test in tutoring prospective candidates. Another consequence of the cheating allegations was a disciplinary proceeding commenced against a serving deputy inspector who was also accused of improperly obtaining and using RBH test questions for tutoring purposes.
6. The net effect of the cheating allegations was to call into question the integrity of the 1996 police examination. As a result, the County was unable to appoint any candidates from the eligible list generated by the 1996 examination.
7. The last time that the County was able to hire police officers from an open competitive list was in October, 1996, the last month the list from the 1992 examination could be used. In that month, twenty-nine (29) persons were appointed as police officers.
Page 251 PREV PAGE TOP OF DOC
8. Since that time, the only persons the County has been permitted to hire as police officers were twenty-five (25) cadets, who were minority group members participating in an affirmative action program who took the 1996 test on a promotional basis. Although the program was declared unconstitutional in a federal court proceeding, the County was able to hire these cadets as a result of a court approved settlement agreement in a lawsuit commenced by the cadets. One other person was hired from the military list stemming from the 1992 examination.
9. When the Police Department was last able to hire police officers in October, 1996, it had 2,736 sworn officers. At the present time, the Police Department has an authorized strength of 3,045 sworn officers, of which 2,766 are funded. As of June 27, 2000, the current complement is 2,564 sworn officers.
10. As of June 27, 2000, thirty-seven (37) officers have filed for retirement, effective in July and August, 2000.
11. By August, 2000, the projected date of appointment of the first academy class from the 1999 examination, the Police Department will be 17% below its authorized strength, and almost 9% below its funded strength.
12. As can be seen from these figures, the Police Department now has far fewer officers to deploy than in 1996. The shortage is particularly acute in the sector cars which patrol each of the seven precincts. The sector cars are the Police Department's primary means of delivering police services. Calls for service can range from the serious—felonies in progress: accidents with deaths or serious physical injuries, domestic violence—to the more mundane, yet essential—controlling traffic—quelling neighborhood disturbances: handling property damage complaints. etc.
Page 252 PREV PAGE TOP OF DOC
13. Due to retirements, resignations, and other separations from service since the Police Department was last able to hire, staffing the sector cars has become increasingly difficult. The department has made up for the shortfall by staffing, on average, thirty-three (33) sector cars per day, through assigning officers on overtime.
14. For fiscal year 2000 the Police Department has budgeted overtime in two major appropriations totaling$16,199,672. If present trends continue, the Police Department will exceed its budgeted overtime this year by approximately 5.6 million dollars.
15. The monetary harm caused by this excessive overtime is not the only deleterious effect upon the Police Department flowing from the staffing shortages. The excessive demands upon officers to work overtime has resulted in an increasing number of officers unwilling to do so. The phenomenon has reached a point where there have been occasions some sector cars have not been staffed because, officers willing to work overtime have been unavailable. This situation will become exacerbated as retirements continue and the hiring freeze due to the restraining order remains in effect.
16. Due to the combined effects of retirement and lack of new officers over the course of time, the frequency of sector cars being shut down will increase. This translates into a public safety issue, as fewer sector cars means greater delay in responding to calls for police services.
17. The Police Department projects that it will swear in a new academy class of approximately 150 candidates in August, 2000. The academy training program is 25 weeks, followed by a 12-week field training period. Thus, even if the Police Department is able to meet its projected date for hiring new officers, these will not actually be on the streets until well into the year 2001.
Page 253 PREV PAGE TOP OF DOC
18. Given the time lapse between appointment and actual deployment of a person as a police officer, any delay beyond the projected date for new appointments will harm the ability of the Police Department to meet its patrol commitments.
19. It is respectfully requested that the temporary restraining order be lifted in order that the Police Department may hire police officers to satisfy its emergent need to protect public safety.
Sworn to before me this 28th day of June, 2000
Jacqueline Pace, Notary Public, State of New York
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
XXXXXXXXXXXXXXXXXXX x RC–1541
In the Matter of the Application of
CANDACE CARRABUS, CHRISTOPHER BARRY and
all other Petitioners similarly situated as set forth and
described in the Petition,
Page 254 PREV PAGE TOP OF DOC
Petitioners,
-against-
AFFIDAVIT OF RICK
ALAN SCHNEIDER, PERSONNEL OFFICER OF THE
JACOBS IN SUPPORT
COUNTY OF SUFFOLK AND SUFFOLK COUNTY,
OF MOTION TO
VACATE TEMPORARY
Page 255 PREV PAGE TOP OF DOC
Respondents.
RESTRAINING ORDER
For a Judgment pursuant to Article 78 of the Civil Practice
Law and Rules directing that Alan Schneider, Personnel
CV00–2805 (ILG)
Officer of the County of Suffolk and the County of
Suffolk comply with those provisions of the Civil Service
Law of the State of New York and the Suffolk County
Code which obligate Respondents in the performance of
their duties to offer and certify a competitive Civil Service
Test based upon merit and fitness and to certify and supply
answers to the 1999 Suffolk County Police Exam.
XXXXXXXXXXXXXXXXXXX x
Page 256 PREV PAGE TOP OF DOC
STATE OF NEW YORK)
COUNTY OF SUFFOLK) ss.:
RICK JACOBS, being duly sworn, deposes and says that:
1. I am the Chief Operating Officer of SHL, North America, a consultant firm specializing in assessment and testing.
2. I submit this affidavit in support of Suffolk County's motion to vacate the temporary restraining order.
3. I have been with SHL since March of 1998 when my former firm, Landy, Jacobs and Associates, was acquired by SHL. Landy, Jacobs and Associates was also in the business of assessment, with specialization in testing for public safety organizations. I was the senior vice president of that firm for 16 years.
4. I also hold the position of Professor of Psychology of Penn State University. I have been on the faculty at Penn State since 1979 with responsibilities for undergraduate and graduate education as well as research. A copy of my curriculum vitae, detailing my work history and past accomplishments is attached to this affidavit.
5. During the past 20 years I have participated in teaching, research and practice with respect to testing for employment. In this time I have developed and implemented police testing programs in departments across the United States including New York City; Buffalo, New York; Akron, Columbus, Cleveland and Cincinnati, Ohio; Miami, Florida; Colorado Springs, Colorado; Wilmington, Delaware; and St. Louis, Missouri. I have also worked on testing programs for state police in Massachusetts, New York, Florida, Delaware, and Illinois.
Page 257 PREV PAGE TOP OF DOC
6. In the course of my involvement in this work, I have seen the selection of police officers evolve from simple programs focusing on the single domain of cognitive abilities to more complex models that more fully measured the necessary skills, abilities and personal characteristics requisite for successfully forming responsibilities of law enforcement.
7. SHL, North America contracted with Suffolk County to research and construct an examination for the position of police officer for its police department slated for administration in May, 1999.
8. In the testing program designed for Suffolk County, a project team from SHL, performed a job analysis to detail the tasks performed by Suffolk County police officers in order to better understand the required cognitive abilities, as well as personal attributes, that contribute to success in the job of Suffolk County police officer. These analyses were conducted by SHL testing specialists using the expertise of incumbent police officers and their supervising sergeants in the Suffolk County Police Department. The methods used included observations, interviews and surveys.
9. The results of these analyses were consistent with those done in other departments, and indicated that the test developed must not only assess cognitive abilities, but also biographical information and work styles. With this in mind, SHL designed a complete written assessment device for the 25,000+ candidates expected to compete for the vacancies in the Suffolk County Police Department.
Page 258 PREV PAGE TOP OF DOC
10. In order to fully understand the relationship between the test developed and actual job performance, another study was conducted to demonstrate the relationship between test scores and job performance. This study included over 200 currently serving Suffolk County police officers. The participants in the study were randomly selected in a manner that resulted in a sample that had similar characteristics to the department as a whole. That is, the sample was representative of the department in variables such as age, experience, percentage of females and percentage of minorities. Each officer in the study was evaluated by his or her immediate supervisor using an appraisal instrument designed by SHL for use in the study. The incumbent officers were also administered the entry level test for police officers. Each participating officer received a cognitive ability test score, six scores on the biographical inventory, and 26 scores in the work-styles instrument.
11. Utilizing the data collected described above, SHL documented the relationship between test scores and job performance apply methodologies recognized and accepted in the field.
12. The results of the study indicated that both the biographical and work style scales were extremely important for the prediction of police officer performance. It was also found that cognitive abilities in the Suffolk County study had only a small, nonsignificant, relationship to job performance. The study was also used to determine the weights to be applied to the various test scores and in what manner each test score would be applied. The resultant study and its underlying data were submitted to the United States Department of Justice for review by experts of its choosing.
13. This study resulted in a selection device that minimized adverse impact and also maintained high levels of validity.
Page 259 PREV PAGE TOP OF DOC
14. SHL conducted its study and constructed the examination in conscious conformity to current legal standards including the Uniform Guidelines on employee selection procedures, as well as professional practices in the field.
15. I understand that the petitioners in this matter allege that the cognitive component was not scored or used. This is completely in error. The cognitive items were scored.
16. The selection device requires that a candidate achieve a passing score on the cognitive ability test to remain in the competition for appointment. Once a candidate qualified based upon passing the cognitive test, cognitive ability test score, along with scores from the biographical inventory and work styles survey were weighted to form a composite score. A composite score reflected the relationship uncovered in (he study incumbent with police officer. This system was applied to all candidates in exactly the same manner and the resulting list was provided to Suffolk County by SHL.
17. I understand that the petitioners in this matter assert that the final composite score should not be used to select candidates and, instead, the eligibility list should be created based only on the cognitive test scores. This would lead to both a poorer prediction of job performance, and a massive adverse impact. In effect, Suffolk County would be using a selection system that minimizes validity while maximizing adverse impact. This would clearly violate not only the Uniform Guidelines, but also sound testing practices.
Dated:
Page 260 PREV PAGE TOP OF DOC
Hauppauge, New York
June 28, 2000
BY: RICK JACOBS
Sworn to before me this 28th day of June, 2000.
Notary Public: Tracey L. Pletcher
Index No. CV00–2805
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
In the Matter of the Application of CANDACE CARRABUS, CHRISTOPHER BARRY and all other petitioners Similarly situated as set forth and described in the Petition, Petitioners, against ALAN SCHNEIDER, Personnel Officer of the County of Suffolk and Suffolk County, Respondents
For a Judgment Pursuant to Art 78 of the Civil Practice law and Rules Directing that Alan Schneider, Personnel Officer of the County of Suffolk and the County of Suffolk comply with those provisions of the Civil Service Law of the State of York and the Suffolk County Code which obligate Respondents in the performance of their duties to offer and certify a competitive Civil Service based upon merit and fitness and to certify and supply answers to the 1999 Suffolk County Police Exam.
Page 261 PREV PAGE TOP OF DOC
MOTION TO VACATE TEMPORARY RESTRAINING ORDER WITH SUPPORTING AFFIDAVITS
ROBERT J. CIMINO
Suffolk County Attorney
Attorney for Alan Schneider
Office and Post Office Address, Telephone
H. Lee Dennison Building
100 Veterans Memorial Highway, PO. Box 6100
Hauppauge, New York 11788-0099
(516) 853-4049
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
RUBIN &
Attorneys for Petitioners
700 Veterans Memorial Highway
Hauppauge, New York 11788
(631) 979–1600
By: A. CRAIG PURCELL (AP9292)
GLYNN &
Attorneys for Petitioners
Page 262 PREV PAGE TOP OF DOC
712 North Country Road
P. O. Box 712
Stony Brook, New York 11790
(631) 751–5757
By: LAWRENCE KELLY (LK7072)
XXXXXXXXXXXXXXXXXXX x
In the Matter of the Application of
INDEX NO.: CV00–2885
SUPPORTING AFFIDAVIT
CANDACE CARRABUS, CHRISTOPHER BARRY and all
other Petitioners similarly situated as set forth and described
in the Petition,
Petitioners,
Page 263 PREV PAGE TOP OF DOC
-against-
ALAN SCHNEIDER, PERSONNEL OFFICER OF THE
COUNTY OF SUFFOLK AND SUFFOLK COUNTY,
Respondents.
For a Judgment pursuant to Article 78 of the Civil Practice
Law and Rules directing that Alan Schneider, Personnel
Officer of the County of Suffolk and the County of Suffolk
comply with those provision of the Civil Service Law of the
State of New York and the Suffolk County Code which
obligate Respondents in the performance of their duties to
offer and certify a competitive Civil Service Test based upon
merit and fitness and to certify and supply answers to the
1999 Suffolk County Police Exam.
XXXXXXXXXXXXXXXXXXX x
STATE OF NEW YORK)
COUNTY OF SUFFOLK)
CANDACE CARRABUS, being duly sworn, says:
Page 264 PREV PAGE TOP OF DOC
1. That I am a petitioner herein. I reside in the County of Suffolk, own a home Suffolk County, pay local Suffolk County real estates taxes including a Suffolk Police District tax and have paid Suffolk County Sales tax on purchases. I am employed as a Corrections Officer by the sheriff's Department of the County of Suffolk.
2. Prior to May 22, 1999 I timely completed a form CS–205 LE (blank form annexed hereto as Exhibit E) Suffolk County Application for Law Enforcement Application for the 1999 Suffolk Police Service Examination.
3. That I completed the form, I included a check for $100 as an application fee, and time submitted the materials to Suffolk County Department of Civil Service at the North County Complex Building 158 in Hauppauge New York.
4. I reasonably believed that I had made application for an examination which included and, on being graded would include, cognitive skills testing which would be practical in its character and would relate to the matters which would fairly test my relative capacity and fitness to discharge the duties of Suffolk police officer as required by New York Civil Service Law Section 50(6).
5. I reasonably believed myself capable of attaining a relatively high mark on such a test, having completed almost two decades as a Registered Nurse and recently completing the Suffolk County Sheriff's Academy training with excellent credentials, finishing third in my recruit class of forty officers.
6. On May 22, 1999, I completed the 1999 Suffolk Police Selection Device. I left the test location confident that I had completed the selection device cognitive portion at the same level of excellence I experienced in the 1996 Suffolk police selection device. In that 1996 test I scored a 100.
Page 265 PREV PAGE TOP OF DOC
7. Outlined below is my recollection of the contents of a number of these non-cognitive questions which we believe were inappropriately given great weight in determining the final grades of the petitioners and other applicants:
1. How do you feel about shift work?
a) absolutely no reservation b) some reservations c) strong reservations d) very serious reservations e) no opinion
2. How do you rate yourself on physical appearance?
a) commanding b) pleasing c) average d) unattractive e) insignificant
3. How do you rate yourself on popularity?
a) very popular b) good mixer c) average d) exclusive e) unpopular
4) Your high school teachers would most likely describe your self discipline as:
a) superior b) above average c) average d) below average e) do not know
5) The number of high school clubs and organized activities (such as band, sports, newspapers etc.) in which you participated in:
Page 266 PREV PAGE TOP OF DOC
a) 4 or more b) 3 c) 2 d) 1 e) none
6) How would you rate yourself in the ability to do things as well as most other people?
a) superior b) above average c) average d) below average e) poor
7) During your high school years how would you rate your attendance record?
a) excellent b) good c) average d) below average e) poor
8) What was your grade average in all major courses in high school?
a) A's and B's b) mostly B's c) B's and C's d) C's and B's e) failing grade
9) During your high school days, in which of the following did you participate most?
a) clubs or student organizations b) student government c) varsity athletics d) I worked or studied and did not participate.
10) In most tasks that you do:
a) work very quickly b) work more quickly than the average c) work at about the same pace as other d) work more slowly than the average e) work very slowly
11) Do you have any friends who influenced your decision to become a police officer?
Page 267 PREV PAGE TOP OF DOC
a) definitely yes b) probably yes c) probably no d) definitely no
12) How many good friends do you have?
a) none b) 1–3 c) 4–6 d) 7–10 e) more than 10
13) How many high school sports did you engage in?
a) none b) 1 c) 2 d) 3 e) more than 3
14) When you took mathematics tests, what percentile did you score in?
a) 95–100 b) 90–94 c) 85–89 d) 80–84 e) less than 80
15) How your friends and family feel about you becoming a police officer?
a) very encouraging b) positively c) indifferent d) negatively e) strongly opposed
16) How many sports did you participate in during high school?
17) When working on a project you:
a) take as long as needed to complete the job perfectly b) finish job quickly, maybe not to perfection c) finish as fast as possible, regardless of quality
Page 268 PREV PAGE TOP OF DOC
18) If you become overloaded with work at your job you:
a) stay as long as it takes to complete all the tasks b) prioritize the work and complete only the most important tasks c) ask your supervisor to delegate work to others because you cannot finish it all
19) Were you ever a captain in a high school sport?
a) one team b) two teams c) never d) all teams
20) In high school how many times were you on the Honor roll?
a) once b) twice c) all semester d) never
8. In March of 2000 I received a grading from the 1999 Suffolk Police Selection Device. I was graded at a 75.
9. I contacted Suffolk County Department of Civil Service and requested the opportunity to review the test, my answers and the rating key, and was advised that the County Civil Service Department would not allow me to review the test, that they did not have the answers, and had not produced a rating key for use by applicants in reviewing the test as in a civil service examination.
10. I am 41 years of age, an age where I will not be eligible for any further Suffolk County Police Examinations when, as is expected, an age limit is reimposed following this selection device group.
Page 269 PREV PAGE TOP OF DOC
11. I will suffer irreparable harm if the Applicant test is not reviewed according to duly established review procedures and the court does not enforce such a duty on the Respondents Alan Schneider and the County of Suffolk under New York Civil Service Law Section 50 (7) and Suffolk County Code.
12. Suffolk Police Officer is a position within the competitive class under Suffolk County Code Section 580–5 (A).
13. Under Section 580–7(B)(1), Alan Schneider was to post a public announcement of the examination for this position including the type of tests and relative weights. Relative weights were never disclosed. I will suffer irreparable harm if the relative weighing of the test is not disclosed and reviewed by the court at this time, as such information discloses the noncompetitive nature of the selection device.
14. Under Section 580–9(1), for examinations prepared and/or rated by the Suffolk County Department of Civil Service, Rating keys will be prepared for each examination and shall be a permanent part of the record of each examination. Under 580–9(7) the County Personnel Director may at any time during the life of an eligible list correct any clerical or computational errors in the ratings of candidates who competed in the examination.
15. I will suffer irreparable harm if Respondents Schneider and the County of Suffolk are not compelled to correct the computational errors made with regard to my selection device answers. The remaining Petitioners are similarly situated and will be irreparably harmed unless the court grants the within relief as against the Respondent government actors.
Page 270 PREV PAGE TOP OF DOC
16. Under Section 580–11(E) the County Personnel Director has the power to correct any error, to amend any eligible list where an error has been made, and to revoke any eligible list where the provisions of these rules were not properly or sufficiently carried out.
17. I will suffer irreparable harm, as will the remaining Petitioners, if the court does not order compliance by the Respondents Alan Schneider and Suffolk County with the above sections of Suffolk County Code and New York Civil Service Law.
18. I request the court mandate that Alan Schneider and Suffolk County correct the grading reported herein with regard to the Petitioner test takers and place Petitioners on a list of those who have affirmatively challenged the validity of the list as graded and enjoin the Respondents from hiring off of the Suffolk Police graded list made public in March 2000.
19. I strongly suspect that the cognitive components of this police application tests have been quietly removed from the grading of the test. This is in direct conflict with the Laws of Suffolk County, New York Civil Service Law and the New York State Constitution.
20. It is also contrary to the mandates of the federal law originally cited as a reason for federal intervention in Suffolk County Police hiring in 1983.
21. One can reduce disparate impact by making a selection device into a lottery, but that is not an exam practical in its character, which fairly tests relative capacity and fitness of the persons examined, to discharge the duties of the service into which they seek to be appointed (Civil Service Law Section 59(6).
Page 271 PREV PAGE TOP OF DOC
22. Some examples of the ''lottery'' aspect of the grading of this selection device are the incredibly low job related qualities of the applicants placed in the top tier under the selection device and, in contrast, the high quality of applicants graded with low scores.
23. Petitioners have included the annexed affidavits of some Petitioners indicating awards and credentials and low 1999 Suffolk Police test scores (collectively referred to as Exhibit ''F''):
Matthew Mullins:
Suffolk Deputy Sheriff
Suffolk Police Academy Top Overall Recruit
1999 Test Score: 85
John Moisa:
Suffolk Deputy Sheriff
Police Officer of the Year 1997
Governor's Award for Valor 1997
1999 Test Score: 87.5
Vincent Marcoccia:
Suffolk Deputy Sheriff
Police Officer of the Year 1999
1999 Test Score: 72.5
Page 272 PREV PAGE TOP OF DOC
24. The results of such quiet undermining of the quality of the Suffolk County Police Department are evident.
25. I am aware that Suffolk County Deputy Sheriffs, who are hired based on a purely cognitive test, have outperformed Suffolk County Police cadets at the Suffolk Police Academy in every phase of their training in the last recruit class.
26. Predicting job performance from questionnaire and survey materials, without a strong cognitive component is below the level of science and is convenient social engineering.
27. The refusal to comply with civil service requirements is injurious to both the innocent victims and public safety.
WHEREFORE, Petitioner prays for a judgment:
1) Requiring Alan Schneider and the County of Suffolk to comply with the dictates of Suffolk County Code, New York Civil Service Law and the State Constitution merit and fitness clause (Article V Section 6) and grade the 1999 police selection device utilizing the full complement of cognitive questions presented in the test;
2) Requiring the providing of a score and ranking for the individual test takers including Petitioners on that portion of the test;
Page 273 PREV PAGE TOP OF DOC
3) Requiring the weighing of cognitive results properly in conjunction with properly validated job related questionnaire and survey answers, if any; and,
4) For such other and further relief as this Court deem just and proper.
Sworn to before me this
26th day of June, 2000.
Marie Procopio, Notary Public
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
RUBIN &
Attorneys for Petitioners
700 Veterans Memorial Highway
Hauppauge, New York 11788
(631) 979–1600
By: A. CRAIG PURCELL (AP9292)
GLYNN &
Attorneys for Petitioners
712 North Country Road
P. O. Box 712
Stony Brook, New York 11790
Page 274 PREV PAGE TOP OF DOC
(631) 751–5757
By: LAWRENCE KELLY (LK7072)
XXXXXXXXXXXXXXXXXXX x
In the Matter of the Application of
INDEX NO.: CV00–2885
AFFIDAVIT
CANDACE CARRABUS, CHRISTOPHER BARRY and all
other Petitioners similarly situated as set forth and described
in the Petition,
Petitioners,
-against-
Page 275 PREV PAGE TOP OF DOC
ALAN SCHNEIDER, PERSONNEL OFFICER OF THE
COUNTY OF SUFFOLK AND SUFFOLK COUNTY,
Respondents.
For a Judgment pursuant to Article 78 of the Civil Practice
Law and Rules directing that Alan Schneider, Personnel
Officer of the County of Suffolk and the County of Suffolk
comply with those provisions of the Civil Service Law of the
State of New York and the Suffolk County Code which
obligate Respondents in the performance of their duties to
offer and certify a competitive Civil Service Test based
upon merit and fitness and to certify and supply answers to
the 1999 Suffolk County Police Exam.
XXXXXXXXXXXXXXXXXXX x
STATE OF NEW YORK)
COUNTY OF SUFFOLK)
JAMES CALLINAN, being duly sworn, deposes and says:
1. I am one of the petitioners herein that make this affidavit in support of the within proceeding brought pursuant to Article 78 of the Civil Practice Law and Rules of the State of New York.
Page 276 PREV PAGE TOP OF DOC
2. I have been employed for five years by the New York City Police Department as a Police Officer. I presently work at Police Headquarters for the Chief of Departments. Previously I was a patrol officer in the 17th Precinct in Manhattan.
3. I presently reside in Suffolk County and have completed three years of study at the State University of New York at Stony Brook.
4. In 1996 I took the Suffolk County Police examination and scored a 100. In 1999 I took the examination again and scored a 77.5.
5. My perception of the examination is that it was substantially the same in nature as the 1996 exam. Accordingly, my score should have been in the same range.
6. Moreover, based on my five years experience as a New York City Police Officer, I do not believe that the majority of non-cognitive questions bear any relationship to my job as a Police Officer. Therefore, I cannot see how these questions can possibly accurately predict who would become a competent police officer.
7. Contained in the enclosed supporting affidavit of petitioner CANDACE CARRABUS is a sampling of questions that demonstrate how subjective—and subject to manipulation—large parts of this examination work. Indeed, there were many more such questions on the examination which in my view, if given any significant weight, made the selection device a tool to select whoever respondents desired to select.
Page 277 PREV PAGE TOP OF DOC
8. It is thus submitted that the only way to find qualified candidates for the position of Suffolk County Police Officer would be to regrade and reweight the exam giving emphasis to the more relevant cognitive question.
Sworn to before me this
26th day of June, 2000.
A. Russo, Notary Public
AFFIDAVIT OF SERVICE
STATE OF NEW YORK)
COUNTY OF SUFFOLK)
I, the undersigned, being sworn, say: I am not a party to the action, am over 18 years of age and reside in Sayville, New York.
On June 27, 2000 I served the within AMENDED AND SUPPLEMENTAL NOTICE OF PETITION AND PETITION by mailing a copy to each of the following persons at the last known address set forth after each name below BY OVERNIGHT MAIL:
ROBERT J. CIMINO
JOHN GADZICHOWSKI
Page 278 PREV PAGE TOP OF DOC
Suffolk County Attorney
Department of Justice
100 Veterans Memorial Highway
601 D Street, N.W.
P. O. Box 6100
Room 4609
Hauppauge, New York 11788
Washington, D.C. 20004
Sworn to before me this
27th day of June, 2000
Page 279 PREV PAGE TOP OF DOC
Valerie A. Flegom, Notary Public
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
CANDACE CARRABUS et. al.,
Civil Action
No. CV 00-2885 (ILG) (MDG)
Plaintiffs,
v.
NOTICE OF JOINT MOTION
ALAN SCHNEIDER, PERSONNEL
OF THE SUFFOLK COUNTY
Page 280 PREV PAGE TOP OF DOC
OFFICER OF THE COUNTY OF
DEFENDANTS AND
SUFFOLK, COUNTY OF SUFFOLK,
DEFENDANT-INTERVENOR
UNITED STATES TO DISMISS
Defendants.
AMENDED AND
SUPPLEMENTAL PETITION
UNITED STATES OF AMERICA
Page 281 PREV PAGE TOP OF DOC
Defendant Intervener.
NOTICE OF JOINT MOTION OF THE SUFFOLK COUNTY DEFENDANTS AND DEFENDANT-INTERVENOR UNITED STATES TO DISMISS AMENDED AND SUPPLEMENTAL PETITION
PLEASE TAKE NOTICE that, upon the Amended and Supplemental Petition, this Notice of Motion and the accompanying Memorandum of Law, the Suffolk County defendants and defendant-intervenor United States, by their undersigned counsel, will jointly move this Court on the 8th day of September for an Order, pursuant to Rule 12(b)(6), Fed.R.Civ.P. dismissing the Amended and Supplemental Petition in Carrabus et. al. v. Schneider CV 00–2885 (ILG) (MDG).
Pursuant to the June 20, 2000 Order of Magistrate Judge Go, answering papers, if any, shall be served by plaintiffs upon all defendants on or before July 21, 2000 and any reply memorandum by defendants shall be served on or before July 28, 2000.
On behalf of defendant-intervener United States: On behalf of the Suffolk County defendants:
Bill Lann Lee
Robert J. Cimino
Acting Assistant Attorney, General
Page 282 PREV PAGE TOP OF DOC
Suffolk County, Attorney
Civil Rights Division
Suffolk County
Department of Justice
Department of Law
P.O. Box 65968
P.O. Box 6100
Washington, D.C. 20035–5968
Hauppauge, NY 11788–0099
Page 283 PREV PAGE TOP OF DOC
(202) 514–5766
(631) 853–4049
John M. Gadzichowski (JG–6605)
Robert H. Cabble (RC–1541)
Special Litigation Counsel
Assistant County Attorney
Sharyn A. Tejani (ST–6008)
Trial Attorney
Theodore D. Sklar (TS–9083)
Assistant County Attorney
Page 284 PREV PAGE TOP OF DOC
Sanford M. Cohen
Assistant U.S. Attorney
Civil Rights Litigation
Eastern District of
New York
1 Pierrepont Plaza
16th Floor
Brooklyn, NY 11201
(718) 254–6155
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
CANDACE CARRABUS et. al.,
Civil Action
No. CV 00-2885 (ILG) (MDG)
Plaintiffs,
v.
Page 285 PREV PAGE TOP OF DOC
MEMORANDUM OF LAW
ALAN SCHNEIDER, PERSONNEL
IN SUPPORT
OFFICER OF THE COUNTY OF
OF JOINT MOTION OF THE
SUFFOLK, COUNTY OF SUFFOLK,
SUFFOLK COUNTY
DEFENDANTS AND
Defendants.
DEFENDANT-INTERVENOR
Page 286 PREV PAGE TOP OF DOC
UNITED STATES TO DISMISS
UNITED STATES OF AMERICA
AMENDED AND
SUPPLEMENTAL PETITION
Defendant Intervener.
MEMORANDUM OF LAW IN SUPPORT OF JOINT MOTION OF THE SUFFOLK COUNTY DEFENDANTS AND DEFENDANT-INTERVENOR UNITED STATES TO DISMISS AMENDED AND SUPPLEMENTAL PETITION
Pursuant to Federal Rule of Civil Procedure 12(b)(6). defendants Alan Schneider and Suffolk County (Suffolk County-defendants) and defendant-intervenor United States have jointly moved this Court to dismiss plaintiffs' Amended and Supplemental Petition (Amended Petition).
I. BACKGROUND
A. The 1986 Consent Decree
Page 287 PREV PAGE TOP OF DOC
On June 24, 1983, the United States filed suit against Suffolk County, the Suffolk County Police Department (SCPD), the Commissioner of Police and the Suffolk County Civil Service Commission (County defendants) alleging, inter alia, that Suffolk County was engaged in a pattern or practice of employment discrimination against women, African Americans and Hispanics with respect to job opportunities in the SCPD, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq. (Title VII), the State and Local Fiscal Assistance Act of 1972, as amended, 31 U. S.C. §122 1, et seq. (the Revenue Sharing Act) and the Omnibus Crime Control and Safe Streets Act of 1968, as amended. 42 U.S.C. §3766(c)(3) (the Safe Streets Act). Among other claims, the United States alleged that the written examination then used by the County defendants to select entry-level police officers discriminated against African American and Hispanic applicants in violation of Title VII.
In 1986, the United States, Suffolk County and the Suffolk County Patrolman's Benevolent Association, Inc., settled the United States' claims by entering into a Consent Decree that was approved and entered by the Court on September 12. 1986. In the Consent Decree, while Suffolk County expressly denies that it had discriminated against African Americans, Hispanics or women, it acknowledges that certain of its selection criteria and personnel practices and the substantial underrepresentation of African Americans. Hispanics and women in the SCPD could support an inference that discrimination had occurred. Decree, 7.
The Consent Decree expressly prohibits Suffolk County from engaging in any further discrimination (Decree, 2), calls for the monitoring by the United States of the County's compliance with the Decree (Decree, 32–35), and provides that the Court retain Jurisdiction of the United States' action against the County for the purpose of implementing the relief provided in the Decree, as well as ''to effectuate Suffolk County's full and complete compliance with Title VII.'' Decree, 37.
Page 288 PREV PAGE TOP OF DOC
The 1986 Decree specifically enjoins Suffolk County from using any qualifications or selection criteria for hire, assignment. transfer or promotion within the SCPD that result in disparate impact upon African Americans, Hispanics or women, unless such qualifications or criteria have been validated in accordance with the Uniform Guidelines on Employee Selection Procedures and, thus, are lawful under Title VII. Decree, 9. In this regard, the Decree required that the County through its consultant at the time, Richardson, Henry, Bellows & Co. (RBH), undertake a criterion-related validity study of RBH's written entry-level law enforcement officer examination to determine if the RBH examination was appropriate under Title VII for use by the County in the selection of candidates for the position of entry-level police officer in the SCPD. Decree, 4. That study was subsequently undertaken and completed, the parties agreed that the RBH-developed examination could be lawfully used by the County under Title VII; and, at the request of the parties, the Court approved the County's administration of the RBH examination (then scheduled for April 16, 1988) and the County's subsequent use of the results of that administration. April 1988 Consent Order. The April 121, 1988 Consent Order neither requires that Suffolk County, continue to administer and use the RBH-developed examination nor prohibits the County from doing so.
The 1986 Consent Decree does not call for the approval by the Court of any qualifications or selection criteria for employment in the Suffolk County Police Department other than for the County's initial use of the RBH-developed written examination. Instead, and consistent with the monitoring responsibilities of the United States under the Decree, the Decree provides only that the County provide the United States with at least 90 days notice prior to the implementation of any changes to such qualifications or selection criteria. Decree, 8.
Page 289 PREV PAGE TOP OF DOC
Suffolk County administered the RBH examination in 1988, 1992 and 1996. Amended Petition p. 4.
In 1999, the County administered another examination developed by SHL/ Landy Jacobs (SHL/ LJ). It is this examination that plaintiffs in the instant action challenge
B. Procedural History of the Carrabus Action
On May 17, 2000 Carrabus, et al., commenced a C.P.L.R. Article 78 proceeding in New York Supreme Court in Suffolk County, seeking judicial review of the County's 1999 police officer examination developed by SHL/LJ. Also on May 17, the Carrabus plaintiffs presented Justice Robert A. Lifson of the State Supreme Court with an order to show cause why the County should not be preliminarily enjoined from both hiring any police officers and using the results of the 1999 police officer examination for any purpose pending the hearing and determination of plaintiffs' claim. Justice Lifson granted that part of plaintiffs' tendered order to show cause temporarily restraining the hiring of police officers. However, Justice Lifson refused to enjoin the County, from using the results of the 1999 examination for any purpose whatsoever. The order to show cause was made returnable on May 21, 2000.
On May 22. 2000, Suffolk County filed with the Suffolk County Clerk a Notice of Removal of the Carrabus action from state court to the federal court pursuant to 28 U.S.C. §1441 (a) and (b), §1443(2) and the All Writs Act, 28 U.S.C. §1651.
On June 19, 2000, the Carrabus plaintiffs moved this Court for an order remanding this action to state court. On June 20, 2000, and without objection from either the Suffolk County defendants or the Carrabus plaintiffs, United States Magistrate Judge Go granted the application of the United States to intervene in this action as a party defendant. With leave of Magistrate Judge Go, the Carrabus plaintiffs filed an Amended and Supplemental Petition on June 27, 2000. Thereafter, on June 28, 2000, Suffolk County filed a motion to vacate the temporary restraining order; and. on June 28th, Suffolk County and the United States filed a joint memorandum in opposition to the Carrabus plaintiffs' motion to remand.
Page 290 PREV PAGE TOP OF DOC
C. Plaintiffs' Allegations
Plaintiffs in this action are applicants for the position of entry-level police officer who took the SHL/ LJ examination and failed to score as well as they expected. The gravamen of plaintiffs' Amended Petition is that Suffolk County reduced the amount of cognitive skills for which the 1999 examination tested and increased the amount of non-cognitive skills for which the 1999 examination tested in order to increase the representation of minorities among those who would be screened further for hire. Amended Petition 10, 20, 21, 35, 42, 44, 55, 56, 57, 59. For example, Amended Petition 21 states ''the grading lists were altered after the use originally of a substantial number of cognitive questions created grading lists with small numbers of minority candidates at the top level;'' 43(E) states ''such selection devices then create a high level of minority 'achievement';'' 43(F) states ''the quota system with no true validity delivers a final top ranked group with minimal or nonexistent levels of knowledge . . . but a preordained high minority composition in the top ranked group.'' In addition, plaintiffs' Amended Petition alleges complicity by the United States (Amended Petition 38, 39, 40, 41, 43, 45) and the federal courts (Amended Petition 51, 52, 53) in such a scheme. For example, 43(C) states ''the grading of knowledge, skills and abilities questioning is viewed by the Justice Department as discriminatory;'' and 51 states ''Petitioners note the strict scrutiny given by courts to the validity of cognitive testing and the pass given by courts from such strict scrutiny to selection devices which have an alleged social purpose acceptable to the court.''
Despite the fact that their claims involve race discrimination and employment, plaintiffs have not brought claims under the Equal Protection Clause of the Fourteenth Amendment or Title VII, apparently in an effort to avoid the Second Circuit's decision in Hayden v. Nassau County, 180 F.3d 42 (2d Cir. 1999) (see discussion, infra). Instead, the Carrabus plaintiffs allege in their Amended Petition that the SHL/LJ examination as used by Suffolk County violates the Consent Decree in United States v. Suffolk County ( 11, 14, 15, 16, 18); the Tenth Amendment ( 38, 39, 40, 41, 45); the privileges and immunities clause of the Fourteenth Amendment ( 47, 55); 42 U.S.C. §2000e (7) ( 55); Article V, §6 of the New York State Constitution ( 8, 9, 10, 35, 36); New York Civil Service Law §50(6) ( 8, 9, 25, 32); Suffolk County Code §580 ( 8, 9, 26, 27, 28, 29, 30, 32); New York State's requirement for veteran's preference points (New York State Constitution Article V, §6, New York State Civil Service Law §85) ( 49, 50, 54); and New York General Business Law §349 ( 61). Plaintiffs' Amended Petition should be dismissed in its entirety.
Page 291 PREV PAGE TOP OF DOC
II. ARGUMENT
A. Plaintiffs' Amended Petition Should Be Dismissed pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) for Failure to State a Claim upon which Relief Can be Granted.
1. Standard of Review for 12(b)(6) Motion to Dismiss
In considering a motion under Federal Rule of Civil Procedure 12(b)(6), a court accepts allegations contained in the complaint as true, and draws all reasonable inferences in favor of the non-movant. Still v. DeBuono, 101 F.3d 888, 891 (2d Cir. 1996)(affirming dismissal of a complaint when issue raised was purely legal). In addition to the facts alleged in the complaint, a court may consider documents attached to the complaint as exhibits and documents incorporated by reference in the complaint. Hayden, 180 F.3d at 54. A court may refer to supplemental materials but not rely on them or use them as a basis for the court's decision. Id.
A complaint must contain sufficient factual allegations to make out a claim under the relevant law. Hertz Corp. v. City of New York, 1 F.3d 121, 131–32 (2d Cir. 1993), cert. denied. 510 U.S. 1111 (1994). Dismissal is appropriate where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Still. 101 F.3d at 891 (citations omitted).
2. Plaintiffs' Amended Petition Should Be Dismissed pursuant to the Second Circuit's Decision in Hayden v. Nassau County, 180 F.3d 42 (2d Cir. 1999) and the Requirements of Title VII.
Page 292 PREV PAGE TOP OF DOC
Plaintiffs allege that the County attempted to reduce the amount of cognitive skills for which the 1999 examination tested and increase the amount of non-cognitive skills for which the 1999 examination tested in an effort to increase the representation of minorities among those who would be screened further for hire. See, e.g. Amended Petition 10, 21, 43). Despite plaintiffs' attempts to plead otherwise, this is a reverse discrimination claim and is identical to that brought by plaintiffs in Hayden v. County of Nassau, 180 F.3d 42 (2d Cir. 1999). This Circuit affirmed the dismissal of plaintiffs' complaint in Hayden for failure to state a cause of action; because plaintiffs here raise the same claim as that in Hayden, plaintiffs' Amended Petition should be dismissed as well.
In 1977, the United States brought suit against Nassau County alleging that the entry-level police examination used by Nassau County violated Title VII in that it had a disparate impact on African Americans and Hispanics and was not job-related and consistent with business necessity. In 1982, the parties settled that case with a Consent Decree; just as the Decree in United States v. Suffolk County, the Decree in United States v. Nassau County ordered Nassau to utilize entrance examinations with either no discriminatory impact on minority applicants or examinations that had been validated. Hayden, 180 F.3d at 46. In Hayden, a group of non minority applicants challenged the entry-level police officer examination used by Nassau County, contending that ''by deliberately designing an entrance exam which would minimize the adverse impact on African American candidates, Nassau County necessarily discriminated against appellants [plaintiffs].'' Id. at 47. Plaintiffs' claims in Hayden, identical to the case at bar, hinged on the use of the cognitive portions of the examination. The plaintiffs in Hayden claimed prejudice because the Nassau County police officer examination did not include many of the cognitive sections that had been administered to the applicants. Like plaintiffs in this case, plaintiffs in Hayden claimed that their overall scores would have been better had those cognitive sections been included. Id. at 51. This Circuit rejected all of plaintiffs' claims in Hayden, affirming that the challenged practice did not violate the Equal Protection Clause or Title VII's proscription against intentional discrimination and adverse impact discrimination. Specifically, the Court held:
Page 293 PREV PAGE TOP OF DOC
Applicants' position would have us equate the County's desire to eliminate the discriminatory impact of its hiring practices on minority applicants with an intent to discriminate against Appellants. To so find could seriously stifle attempts to remedy discrimination. If employers or governmental entities fear they will be charged with discriminating against non-minorities, they will shy away from all proper efforts to rectify prior discrimination.
Id.
Similarly, plaintiffs' Amended Petition in the case at bar challenges an employer's attempt to reduce the adverse impact of its police officer examination.(see footnote 1) To allow such complaints would limit an employer's ability to rectify discrimination. Because, as this Circuit found, a method of reducing disparate impact that treats all applicants equally, as was done here and in Hayden, is legal, plaintiffs' Amended Petition in the instant action should be dismissed.
Moreover, given that this case is, in essence, a Title VII reverse discrimination claim, plaintiffs' Amended Petition should be dismissed because it does not meet the requirements of Title VII. Title VII allows for two types of race discrimination cases: disparate treatment and disparate impact. Plaintiffs have failed to allege any facts that would allow them to bring a case under either theory.(see footnote 2) First, plaintiffs have failed, under the standard set forth in Hayden to allege disparate treatment. Id. at 52. (''plaintiff must establish that the employer acted with the intent to discriminate''). As the Court found in Hayden, plaintiffs ''sole allegation . . . is that designing the police officers' entrance exam to mitigate the negative impact on minority candidates . . . is akin to an intent to discriminate against appellants. This allegation is wholly insufficient to state a claim that the County intended to discriminate against appellants.'' Id. at 50–51 (emphasis added).
Page 294 PREV PAGE TOP OF DOC
Nor can plaintiffs here make out a disparate impact claim, because they have failed to plead that Suffolk County's police officer examination had a disparate impact on them. Further, because plaintiffs have failed to make such an allegation, all of plaintiffs' allegations regarding validity are meaningless. Under Title VII, the validity, or job relatedness, of an employment selection test can be raised by an employer as a defense to the claim that such test, although neutral on its face, results in disparate impact. 42 U.S.C. 2000e–2(k)(1)(A): Griggs v. Duke Power Co., 401 U.S. 424 (1971). But plaintiffs here are challenging, and not defending, Suffolk County's police officer examination. The validity of a test can also be raised by plaintiffs in the context of a claim that there exists an alternative selection device that is job related but has less adverse impact. However, in order to reach such a claim, plaintiffs must first show that the selection device in question has a disparate impact on them. Plaintiffs have made no such claim.
3. Plaintiffs Fail to State a Claim under the Consent Decree.
Plaintiffs appear to be both challenging the legality of the 1986 Consent Decree (Amended Petition 43(B)), and arguing that the parties violated the Decree. Amended Petition 18. Neither claim has merit.
First, plaintiffs challenge the Consent Decree as a source of a ''quota system''. Amended Petition 43(B). Plaintiffs do not cite any portion of the Consent Decree as the source of the ''quota system;'' as indeed they cannot. Nothing in the Consent Decree requires Suffolk County to hire based on quotas. Rather, it appears that plaintiffs claim that the Consent Decree is somehow a ''quota system'' because it does not require that the County use the type of examination the plaintiffs want, a cognitive-only examination. Given plaintiffs' allegation that minorities do not do as well on cognitive examinations (Amended Petition 21, 43(E)), it appears that what plaintiffs actually seek is an order from this Court for an all-cognitive examination that will favor them.
Page 295 PREV PAGE TOP OF DOC
Plaintiffs also allege that the United States and the County violated 6 of the Consent Decree, in that they did not seek the Court's approval of the SHL/LJ examination prior to the County's administration and use of the examination.(see footnote 3) This complaint is devoid of merit because 6, by its own terms, expressly refers only to the RBH examination.(see footnote 4) Thus, by not submitting a motion to the Court concerning the SHL/ LJ examination, the parties did not violate 6 of the Consent Decree.
If the United States and Suffolk County agree that the RBH criterion-related validity study shows that the RBH selection procedure, or any portions of it, may be used under the Uniform Guidelines and that RBH's proposal for the use of the selection procedure, or any part of it, is consistent with the Uniform Guidelines, they shall—within thirty (30) days from their receipt of the RBH report—submit to the Court a joint motion for Suffolk County's use of the procedure the selection of candidates for Police Officer in the SCPD. Upon approval of that motion by the Court, Suffolk County shall administer and utilize such procedure in the selection of candidates for Police Officer in the SCPD.
Consent Decree, 6 (emphasis added).
Moreover, 8 of the Consent Decree provides that the County defendants must give the United States notice prior to implementing any changes in the County's qualifications or selection criteria for hire. There is no requirement in 8 that the parties inform the Court of such changes. Rather, the notice provision in 8 allows the United States adequate time to file a motion to challenge any such change, if it believes such a motion is necessary. The change by Suffolk County to the SHL/ LJ examination is the type of change that would require notice to the United States pursuant to 8; because the United States did not challenge the SHL/LJ examination, the issue was not brought before the Court. Plaintiffs do not allege that the United States was not given notice under 8 of the Decree before the County used the SHL/ LJ examination.
Page 296 PREV PAGE TOP OF DOC
4. Plaintiffs Fail to State a Claim under the Tenth Amendment.
The Tenth Amendment states ''the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'' U.S. Const. amend. X. Plaintiffs are apparently claiming that by having a Consent Decree with the County defendants, the United States is somehow infringing upon the right of the states (or here the County). Plaintiffs cannot make this claim. The Second Circuit has not found that private individuals have standing to bring Tenth Amendment claims. Vermont Assembly of Home Heath Agencies, Inc. v. Shalala, 18 F.Supp. 2d 355, 370–371 (D.Vt. 1998). As the court in Vermont Assembly correctly observed, the Second Circuit ''has not extended Tenth Amendment standing to all private parties. Only those arms of state or local government with delegated State sovereign powers have been approved as claimants.'' Id. at 371.(see footnote 5) Allowing Tenth Amendment standing is especially inappropriate when, as here, the local government of Suffolk County opposes plaintiffs' Amended Petition. Even if this Court determines that a private plaintiff may allege a violation of the Tenth Amendment, plaintiffs in this action do not have standing to do so because they have failed to show two prerequisites of standing: injury in fact and redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, plaintiffs cannot show that then, were injured by an examination that placed them in a certain place on the eligibility list, because the Second Circuit has already found that ''[a] person on an eligibility list does not posses any mandated right to an appointment or any other legally protectable interest.'' Kirkland v. New York State Dep't of Corrections, 711 F.2d 1117. 1134 (2d Cir. 1983), cert. denied, 465 U.S. 1005 (1984) (citations and internal quotations omitted). Second, even if the Consent Decree were dissolved, the County could elect to use the SHL examination. Thus, plaintiffs' claim lacks redressability.
Page 297 PREV PAGE TOP OF DOC
Even if plaintiffs have standing to make this allegation, it fails as a matter of law. The County's actions in this case were taken pursuant to the Consent Decree in a case brought under Title VII. Title VII was passed and made applicable to local governments pursuant to Congress' authority under the Thirteenth and Fourteenth Amendments, among others. As the Supreme Court held in Fitzpatrick and re-affirmed in Seminole Tribe, by ratifying the Fourteenth Amendment, the States ceded to Congress the power to ''interfere with the full enjoyment of rights'' the States would otherwise have. Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976); Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). Thus, actions taken pursuant to Title VII do not violate the Tenth Amendment. See e.g. Guardians Ass'n v. Civil Service Comm., 630 F.2d 79, 88 (2d Cir. 1980), cert. denied, 452 U.S. 940 (1981) (Title VII's disparate impact provisions do not violate the Tenth Amendment).(see footnote 6)
5. Plaintiffs Fail to State a Claim under either the Privileges and Immunities Clause of the Fourteenth Amendment or 42 U.S.C. §2000e (7).
The privileges and immunities clause of the Fourteenth Amendment states ''No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.'' U.S. Const. amend. XIV §1 cl. 1. This provision has been interpreted to proscribe infringement upon those rights that are ''essential attributes of national citizenship.'' Lutz v. City of York, Penn., 899 F.2d 255, 26') (3d Cir. 1988) (citations omitted). These rights include the right to inform federal officials of violations of federal law, the right to be free from violence while in custody of a federal marshal, the right to homestead, the right to vote in national elections, the right to petition Congress, and the right to travel. Id. at 263 n. 20. None of plaintiffs' allegations concern an infringement of any of these rights. The allegations regarding the privileges and immunities clause appear in the Amended Petition under the heading ''Veterans' Rights''; plaintiffs appear to be claiming that the right to veterans' preference points is a ''right of national citizenship.'' To the extent that plaintiffs make such a claim, it must fail. The right to such points is a creation of state, not federal law. Thus the right is not protected by the privileges and immunities clause.(see footnote 7)
Page 298 PREV PAGE TOP OF DOC
Likewise, plaintiffs' claim under Title VII must fail. 42 U.S.C. §2000e (7) provides:
Nothing in this subchapter [Title VII of the Civil Rights Act of 1964] shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this subchapter.
This provision does not create a right of action under Title VII. Rather, it sets forth the pre-emptive effect of Title VII and is used to defend actions taken in furtherance of Title VII (Kirkland, 711 F.2d at 1132 n. 18) or to permit equal employment claims under other laws. See Wymer v. New York Division of Youth, 671 F.Supp. 210, 213) (W.D.N.Y. 1987). In addition, it has been interpreted to overcome state law requirements that interfere with Title VII. As the Second Circuit has held, ''Title VII explicitly relieves employers from any duty to observe a state hiring provision which purports to require or permit a discriminatory employment practice.'' Guardians, 630 F.2d at 104–105; Brown v. City of Chicago, 8 F.Supp. 2d. 1095, 1112 (N.D. Ill. 1998), aff'd 200 F.3d 1092 (7th Cir. 2000), pet. for cert. filed May 15, 2000, (42 U.S.C. §2000e (7) obviated City's need to follow state court mandate regarding a prohibition on merit promotions). Plaintiffs can not raise a claim under this provision.
6. Plaintiffs Fail to State a Claim under either Article V, §6 of the New York State Constitution or §50(6) of New York State Civil Service Law.
Page 299 PREV PAGE TOP OF DOC
Article V, §6 of the New York State Constitution states that civil service examinations ''shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive.'' Section 50(6) of New York State Civil Service Law states ''[e]xaminations shall be practical in their character and shall relate to those matters which will fairly test the relative capacity and fitness of the persons examined to discharge the duties of that service into which they seek to be appointed.'' According to plaintiffs, Article V, §6 and §50(6) require that civil service examinations must consist of solely cognitive questions because non-cognitive questions are inherently noncompetitive and that the cognitive portion of an examination must receive a specific weight in the final score. Amended Petition 8, 9, 10, 21, 22, 35, 37, 43, 45, 51, 52, 53, 55, 60. Plaintiffs' interpretation of Article V. §6 and §50(6) is wrong as a matter of law; thus, their claims should be dismissed.
Article V, §6 was designed to replace the spoils system and cronyism in civil service appointments. McGowen v. Burnstein, 525 N.E.2d 710 (N.Y. 1988). Neither Article V, §6 nor §50(6) by its plain language prohibit the use of non-cognitive items. Indeed, in 1980, this Circuit found that an examination for entry-level police officer should include a test of human relations skill (a non-cognitive ability) because the job analysis showed the importance of such an ability. Guardians, 630 F.2d at 97 (nearly one-third of the examination attempted to test human relations). While the Court in Guardians found that the human relations questions were not especially successful, the Court did note, that ''[a]s feasible techniques in this area evolve, employers will be expected to use them.'' Id. at 97.(see footnote 8) See also Merlino v. Schneider, 715 N.E.2d 99 (N.Y. 1999) (oral civil service examination that tested for grammar, vocabulary and pronunciation constitutional); Carroll v. Ortiz, 470 N.Y.S. 2d 978 (N.Y. Sup. Ct. 1983) (interactive oral examination that tested for monitoring, coaching, training, and resolving conflict constitutional); Bobrowich v. Poston, 383 N.Y.S. 2d 113 (N.Y. App. Div. 1976) (unassembled examination testing for professional experience, college training, supervisory experience constitutional).(see footnote 9)
Page 300 PREV PAGE TOP OF DOC
Plaintiffs in Hayden also raised a claim under Article V, §6 in the district court. Judge Mishler dismissed this count of the complaint, stating:
[p]laintiffs do not contend that a black candidate who did not receive the requisite score on the examination was chosen over another candidate who had the requisite score. See e.g. Jackson v. Poston, 40 A.D. 19, 337 N.Y.S. 2d 108 (.1972) (improper and unlawful to grant absolute preference in the appointment of civil service positions to Black or Spanish-speaking eligibles on the basis of eradicating past and future racial discrimination in employment).
Hayden v. Nassau County, CV 97–1411 (E.D.N.Y. March 20, 1998) (copy attached as Appendix A).
Plaintiffs appear to equate ''merit'' and ''fitness'' in Article V, §6 and §50(6) with the Title VII concept of validity; plaintiffs claim that the County's inclusion of non-cognitive items and the weight given to those items reduced the validity of the examination and therefore it no longer measures ''merit''. However, Article V, §6 and §50(6) do not require that the County use an examination that is demonstrably ''valid''; therefore the reduction in validity alleged by the plaintiffs is unimportant. In fact, although civil service examinations are bound to measure merit and fitness, this Circuit has recognized that, ''a high examination score does not necessarily demonstrate an ability to perform on the job.'' Suerez v. Ward, 896 F.2d. 28, 29 (2d Cir. 1990). New York State courts have reached the same conclusion. Cassidy v. Municipal Civil Service Comm'n of New Rochelle, 337 N.E.2d 752, 754 (N.Y. 1975) (''[a]n individual's ability to achieve a high examination score does not necessarily demonstrate his capacity to perform the actual duties of a particular position. Moreover, examination success cannot reveal any possible defects of personality, character or disposition which may impair the performance of one's duties in a civil service position''). Thus, public employers are allowed to pick one of three from the eligible list, id., or may use zone scoring when appropriate. McGowen, 525 N.E.2d 710 (N.Y. 1988).
Page 301 PREV PAGE TOP OF DOC
In addition, it is settled under New York State law that a civil service commission is not bound by any particular form of examination. In Altman v. Lang, 255 N.Y.S. 2d 284, 287 (Sup. Ct. N.Y. Co.), aff'd. 259 N.Y.S. 2d 779 (1st Dept), aff'd. 266 N.Y.S. 975 (1965), the court stated in relevant part:
Contrary to petitioners' contention, however, as indicated in the Young matter (supra), compliance with these laws does not compel a perpetuation of traditional practices of personnel recruitment. . . . The mandate of the Constitution for the selection of qualified civil service candidates, by competitive examinations ''as far as practicable'' (N. Y. Const.) cannot be transformed into an interdict against innovations such as the technique employed here, which may very well prove to be best or better adapted for the necessary demonstration of fitness and merit. . . . The manifest purpose of the civil service statutes and of our State Constitution is to improve the civil service by securing employees of greater merit and ability. To achieve this desirable end, it must also be deemed within their purpose and intendment that familiar and customary methods of examination need not perpetually control, particularly when other and newer methods clearly demonstrate a better ability to satisfy the requirements of our laws.
Plaintiffs also allege that the weighting of various questions somehow violated Article V, §6 and §50(6). First, Article V, §6 and §50(6) contain no provisions prohibiting weighting different portions of the examination. Furthermore, regulations that apply to the New York State Civil Service Commission (4 NYCRR 1.1) specifically provide for the weighting of some components over others. 4 NYCRR 67.1(b),(g).
Page 302 PREV PAGE TOP OF DOC
7. Plaintiffs Fail to State a Claim concerning the Rights of Veterans.
Article V, §6 of the New York State Constitution and New York State Civil Service Law §85 grant honorably discharged veterans a certain number of additional points on civil service examinations. Plaintiffs claim that the SHL/LJ examination somehow negates the veteran preference points awarded under state law. This claim has no merit. Neither Article V, §6 nor §85 require that the validity of the examination be determined before the veterans points are added. Regulations that apply to the New York State Civil Commission provide that in the scoring of examinations, formulas may be used, including weighting (what plaintiffs allege was done in this case) and subtraction of points or other calculations. See 4 NYCRR 67.1 (possible scoring methods include: (f)(1) deducting points from raw score for wrong answers rather than omissions; (f)(1) deducting one point for every four wrong answers; (f)(1) adding points to raw score for omissions; (g) weighting different parts of the examination; (h) subtracting or dividing scores (even if done differently depending on score range); (h)(1) statistical adjustment). None of these measures deprive veterans of their preference. Additionally, points added for residency do not violate the veterans preference provisions. McGuinn v. City of New York, 670 N.Y.S. 2d 460 (N.Y. App. Div. 1 1998)
8. Plaintiffs Fail to State a Claim under General Business Law.
Section 349 of the General Business Law of New York states ''[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful.'' ''The typical violation contemplated by the statute involves an individual consumer who falls victim to misrepresentations made by a seller of consumer goods usually by way of false advertising. The consumer oriented nature of the statute is evidenced by the remedies it provides.'' Genesco Entertainment v. Koch, 593 F.Supp. 743, 751 (S.D.N.Y. 1984). Therefore, ''in order to plead and prove a claim for relief under this statute, the plaintiff must at a threshold, charge conduct that is consumer oriented.'' Occidental Chemical Corp. v. OHM Remediation Services Corp., 173 F.R.D. 74, 76 (W.D.N.Y. 1997) (citations and internal quotation marks omitted). The Suffolk County Department of Civil Service is not engaged in a commercial business. Civil Service did not sell anything to the applicants; rather, it collected an application fee to defray the costs of test administration. Furthermore, applicants are not consumers—they did not purchase some type of good or service. See Blacks Law Dictionary (consumer is ''one who consumes. Individuals who purchase, use, maintain and dispose of products and services. . . . Consumers are to be distinguished from manufacturers (who produce goods) and wholesalers or retailers (who sell goods)''). The statute simply does not apply to a public organization testing for positions.
Page 303 PREV PAGE TOP OF DOC
9. Plaintiffs Fail to State a Claim under Suffolk County Code.
Plaintiffs' attempt to state a cause of action under the Suffolk County Code provisions that set forth civil service rules that are applicable to the County of Suffolk is equally unavailing. The plaintiffs' allegations under the Suffolk County Code are not a model of precision. The Amended Petition contains explicit or implicit reference to the Suffolk County Code in only eight paragraphs. Amended Petition 8, 9, 26, 27, 28, 29, 30, 32. In four of those paragraphs, the Amended Petition merely recites what plaintiffs summarize as the language or legal effect of the relevant code provisions. Amended Petition 8, 26, 27, 28. Paragraph 9 the Amended Petition states, in conclusory fashion, that the SHL/LJ examination was not competitive under statutory measure, not constitutional and not valid for its use of non-cognitive data in employee selection. Paragraph 29 of the Amended Petition alleges that the respondent, Alan Schneider, erroneously relies upon a November 1987 Consent Order regarding the RBH test as a waiver of his obligations to ascertain acceptable answers for the examination administered in 1999. Paragraph 30 of the Amended Petition asserts that the SHL/ LJ examination was scored by a private company that, plaintiffs assert, administered the examination ''as though it was not bound by any obligations under New York Civil Service Law or Suffolk County Code.'' It is difficult to distill from these cryptic references exactly in what manner it is alleged that the County defendants violated the Suffolk County Code.
Preliminarily, regardless of the merits of plaintiffs' claims, if any, concerning the Suffolk County Code, the Second Circuit has held that ''municipal charter provisions cannot override the goals of Title VII.'' Bridgeport Guardians, 933 F. 2d at 1148. In Bridgeport Guardians, the Second Circuit rejected the argument that the City of Bridgeport must hire officers in rank, order as required by the City charter. Similarly, where, as here, plaintiffs assert that the Suffolk County Code requires certain acts by the County defendants that would defeat the goals of Title VII, the plaintiffs' claims must fail.
Page 304 PREV PAGE TOP OF DOC
Paragraphs 29 and 30 of the Amended Petition may possibly be constructed as an allegation that the County defendants improperly delegated their duty to create an examination to a private entity in order to circumvent obligations under the Suffolk County Code. Although not clearly articulated, plaintiffs appear to argue that the County's Personnel Officer should be compelled to regrade the SHL/ LJ examination and to create a new eligibility list on the theory that he does not personally know what the answers are to the examination. If this is the intent of the Amended Petition, then this contention is without merit and fails to state a cause of action.
The provision of the Suffolk County Code cited by plaintiffs sets forth standards for when an examination is created by Suffolk County and other standards for when an examination is created by New York State. The Code provision does not address the County's responsibilities when it contracts with another entity to create the examination. Nothing in the Suffolk County Code or State Civil Service Law prohibits a personnel officer from contracting or employing any qualified entity or individual as an aid to carry out his duties. In fact, §17, subd. 4 of New York State Civil Service Law provides ''[e]ach municipal commission and personnel officer shall have power at its own expense to conduct examinations and establish lists for any position within its jurisdiction.'' By its terms, this provision does not prohibit a personnel officer from using the services of a qualified expert. In Fitzgerald v. Conway, 88 N.Y.S. 2d 649 (3d Dept. 1949), a civil service examination was challenged on the basis, inter alia, that the New York State Civil Service Commission improperly employed persons not in the official service of the state in preparing questions for the examination at issue. The Court rejected that claim and held that the statutory powers conferred on the Commission, which provided that the Commission ''may employ such officers and employees as it may deem necessary or proper to carry out the purposes of this chapter,'' was broad enough to confer on the Commission the authority to employ such clerical and technical assistance as may be necessary to enable it to perform its functions, including that of preparing questions for examinations. Id. at 654. Section 17, subd. 4 of the New York State Civil Service Law, applicable to the respondent Personnel Officer, is arguably even broader than the statute at issue in Fitzgerald v. Conway, supra, in its general grant of jurisdiction to personnel officers ''to conduct examinations and establish eligibility lists.''
Page 305 PREV PAGE TOP OF DOC
Further, the practice of using outside experts is widespread, entirely proper and ensures a better quality of examination. In Merlino v. Schneider, supra, for example, the Spanish oral examination that the New York Court of Appeals approved was administered and rated by a college professor, not by the personnel officer. Under plaintiffs' theory, Mr. Schneider would have to learn Spanish to administer the examination rather than hiring the professor. Indeed, in consulting with a professional testing firm to construct the police officer examination, the County was in full compliance with the course preferred by the Second Circuit. In Guardians, supra, the Second Circuit expressed displeasure with the New York Police Department's entry level police examination because it was developed ''in house'' with no participation by persons specializing in test preparation, exactly what plaintiffs claim Suffolk County should have done. The Second Circuit observed, ''[o]f course, the law should not be designed to subsidize specialists. But employment testing is a task of sufficient difficulty to suggest that an employer dispenses with expert assistance at his peril. Certainly, the decision to forgo such assistance should require a Court to give the resulting test careful scrutiny.'' Guardians, 630 F.2d at 96. There is no statutory prohibition on the use of qualified testing firms to assist personnel officers, and, for practical reasons, the Second Circuit has recognized that there should be no such prohibition. Therefore, plaintiffs claims under the Suffolk County Code should be dismissed.
III. CONCLUSION
For the foregoing reasons, plaintiffs' Amended Petition should be dismissed pursuant to Federal Rule Civil Procedure 12(b)(6).
Page 306 PREV PAGE TOP OF DOC
On behalf of defendant intervenor United States:
On behalf of the Suffolk County Defendants:
Bill Lann Lee
Robert J. Cimino
Acting Assistant Attorney General
Suffolk County Attorney
Civil Rights Division
Suffolk County
Department of Justice
Department of Law
P.O. Box 65968
Page 307 PREV PAGE TOP OF DOC
P.O. Box 61 00
Washington, D.C. 20035–5968
Hauppauge, NY 11788–0099
(202) 514–5766
(631) 853–4049
By:
By:
John M. Gadzichowski (JG–6605)
Robert H. Cabble (RC–1541)
Page 308 PREV PAGE TOP OF DOC
Special Litigation Counsel
Assistant County Attorney
Sharyn A. Tejani (ST–6008)
Trial Attorney
By:
Theodore D. Sklar (TS–9083)
Sanford M. Cohen
Assistant County Attorney
Assistant U.S. Attorney
Civil Rights Litigation
Eastern District of
New York
1 Pierrepont Plaza
16th Floor
Page 309 PREV PAGE TOP OF DOC
Brooklyn, NY 11201
(718) 254–6155
CERTIFICATE OF SERVICE
I hereby certify that on July 10, 2000, I served a copy of the following documents with their attachments:
1. Notice of Joint Motion of the Suffolk County Defendants and Defendant-Intervenor United States to Dismiss Amended and Supplemental Petition; and
2. Memorandum of Law in Support of Joint Motion of the Suffolk County Defendants and Defendant-Intervenor United States to Dismiss Amended and Supplemental Petition
upon the following counsel of record in by federal express delivery and facsimile:
Counsel for Carrabus Plaintiffs
A. Craig Purcell
Rubin & Purcell, LLP
700 Veterans Memorial Highway
Hauppauge, New York 11788
Lawrence Kelly
Glynn & Mercep, LLP
712 North County Road
Page 310 PREV PAGE TOP OF DOC
P.O. Box 712
Stony Brook, NY 11790
Sharyn A. Tejani (ST–6008)
Trial Attorney
U.S. Department of Justice
Civil Rights Division
Employment Litigation Section
P.O. Box 65968
Washington, DC 20530–5968
(202) 514-5766
APPENDIX A
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
XXXXXXXXXXXXXXXXXXX x
WILLIAM HAYDEN, et al.,
Plaintiffs,
CV 97–1411
Page 311 PREV PAGE TOP OF DOC
-against-
COUNTY OF NASSAU, THE NASSAU
COUNTY CIVIL SERVICE COMMISSION,
THE NASSAU COUNTY POLICE
DEPARTMENT, et al.,
Defendants,
UNITED STATES OF AMERICA,
MEMORANDUM
OF DECISION
Defendant-Intervenor,
AND ORDER
Page 312 PREV PAGE TOP OF DOC
NASSAU COUNTY GUARDIANS'
MARCH 20, 1998
ASSOCIATION,
Defendant-Intervenor.
XXXXXXXXXXXXXXXXXXX x
For the Plaintiffs
Atlantic Legal Foundation, Inc.
205 E. 42nd Street Ninth Floor
New York, New York 10017
Martin S. Kaufman, Of Counsel
For the Defendants County of Nassau et al.
Snitow & Pauley
345 Madison Avenue
New York, New York 10017
Page 313 PREV PAGE TOP OF DOC
William H. Pauley III, Of Counsel
Charles D. Cunningham, Of Counsel
For the Defendant-Intervenor
United States of America
United States Attorney's Office
Civil Rights Litigation
Eastern District of New York
1 Pierrepont Plaza, 16'' Floor
Brooklyn, NY 11201
Zachary W. Carter
United States Attorney
Marla Tepper
Assistant U.S. Attorney
U.S. Department of Justice
Civil Rights Division
Employment Litigation Section
P.O. Box 65968
Washington, D.C. 20035
Isabelle Katz Pinzler,
Acting Assistant Attorney General
John M. Gadzichowski
Special Litigation Counsel
Page 314 PREV PAGE TOP OF DOC
Sharyn A. Tejani
Trial Attorney
For the Defendant-Intervenor
Nassau County Guardians Association
Cravath, Swaine & Moore
Worldwide Plaza
825 Eight Avenue
New York, New York 10019
Paul C. Saunders, Of Counsel
Robin L. Alperstein, Of Counsel
Lawyers' Committee For
Civil Rights Under Law
1400 G Street, N.W.
Washington, D.C. 20005
Richard T. Seymour, Of Counsel
MISHLER, District Judge
This class action is brought by 68 White and Hispanic, male and female applicants who took the 1994 Nassau County Civil Service Commission Open Competitive Examination No.4220 for Police Officers (''1994 exam'').(see footnote 10) They claim that the 1994 exam was designed, administered and scored with the intent of solely and primarily benefitting Blacks.(see footnote 11)
Page 315 PREV PAGE TOP OF DOC
By designing, administering and scoring the Exam in a race-conscious way, with the intent of solely or primarily benefitting one racial group to the detriment of other racial or ethic groups, Defendants have violated the rights of Plaintiffs and the Class to the equal protection of the law guaranteed by the Fourteenth Amendment to the Constitution of the United States.
Other theories of liability are stated.
The class is divided into six sub classes: A—white males who scored lower than 80; B—white males who scored higher that 80; C—white females who scored lower than 80; D—white females who scored higher than 80; E—Hispanic females who scored lower than 80; and F—Hispanic males who scored lower than 80. The complaint alleges that all the members of each class would have scored higher ''had the [1994] [e]xam been fairly and properly designed and scored.'' ( 124).
Defendant-Intervenor, Nassau County Guardians' Association Inc. (''Guardians' Association'') moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c).
The United States of America (''United States''), defendant-intervenor, and defendants County of Nassau and The Nassau County Civil Service Commission, et al. (''Nassau County Defendants'')(see footnote 12) move to dismiss the Second Amended complaint for ''failure to state a claim upon which relief ran be granted,'' pursuant to Fed. R. Civ. P.12(b)(6).(see footnote 13)
Page 316 PREV PAGE TOP OF DOC
We consider the motions made pursuant to Fed. R. Civ. P. 12(b)(6) and (c). We accept the material facts alleged in the complaint as true, and the inferences which may reasonably be drawn from the allegations. Still v. DeBuono, 101 F.3d 888, 891 (2d Cir. 1996); Cohen v. Koenig, 25 F.3d 1168, 1171–72 (2d Cir. 1994); Palda v. General Dynamics Corporation, 47 F.3d 872, 874 (7th Cir. 1995). The allegations must be construed favorably to the plaintiff. Walker v. New York, 974 F.2d 293, 298 (2d Cir. 1992), cert. denied. 507 U.S. 961, 113 S. Ct. 1387 (1993).
The complaint must not be dismissed ''unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'' Conley v. Gibson, 355 U.S. 41, 45, 78 S. Ct. 99, 102 (1957); Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994); Cohen 25 F.3d at 1172.
As a general proposition, the court may not look beyond the four corners of the complaint. However, the court in its discretion may consider matters of public record, Gemtal Corp. v. Community Redevelopment Agency, 23 F.3d 1542, 1544, n.1 (9th Cir. 1994); Cinel v. Connick, 15 F 3d 1338, 1343, n.6 (5th Cir.), cert. denied., 513 U.S. 868, 115 S. Ct. 189 (1994), as well as documents that are integral to plaintiffs' claims. Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991), cert. denied, 503 U.S. 960, 112 S. Ct. 1561 (1992).(see footnote 14)
Page 317 PREV PAGE TOP OF DOC
HISTORY OF THE 1994 EXAM
The United States, in a complaint filed on September 21, 1977 (77 C 1881), charged Nassau County with engaging in a pattern or practice of employment discrimination on the basis of race (against Blacks), national origin (against Hispanics), and sex (against women), with respect to employment opportunities in the Nassau County Police Department (''NCPD''), in violation of Title VII of the Civil Rights Act of 1964 (''Title VII''), as amended, 42 U.S.C. §2000e, et. seq.
The parties entered into a consent decree, which the court approved on April 21, 1982 (''1982 Consent Decree''). Paragraph 1 of the 1982 Consent Decree recited that:
The major purpose of this Decree is two-fold: to ensure that blacks, Hispanics and females are considered for employment by Nassau County in the NCPD on an equal basis with white males, and that the present effects of the County's alleged prior discriminatory employment practices against blacks, Hispanics and females be corrected.
The 1982 Consent Decree prohibited any practice in ''the recruitment or hire of applicants for employment in the NCPD . . . which has either the purpose or the effect of discriminating against blacks on the basis of race, Hispanics on the basis of national origin or females on the basis of sex.'' ( 2).
The 1982 Consent Decree also required that the exam be validated in accordance with Title VII and the Uniform Guidelines.(see footnote 15) We note at this point that the Court in Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 95 S. Ct. 2362, 2378 (1975) explains that:
Page 318 PREV PAGE TOP OF DOC
[t]hese Guidelines draw upon and make reference to professional standards of test validation established by the American Psychological Association. The EEOC Guidelines are not administrative regulations promulgated pursuant to formal procedures established by the Congress. But, as this Court has heretofore noted, they do constitute ''[t]he administrative interpretation of the Act by the enforcing agency,'' and consequently they are ''entitled to great deference.'' Griggs v Duke Power Co., 401 U.S. at 433–434, 91 S.Ct. at 854. See also Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94, 94 S.Ct. 334, 339, 38 L.E.2d 287 (1973) (footnote omitted).
In 1987, Nassau County administered a new written police officer's exam (''the 1987 exam''). The United States and the Guardians' Association objected to the use of the 1987 exam, claiming that it was not job related and would have an adverse impact on blacks, Hispanics and females in violation of the 1982 Consent Decree and Title VII. A complaint was filed challenging the validity of the 1987 exam by the Guardians' Association (88–CV–3836). The litigation resulted in two consent orders—one between the United States and Nassau County dated April 16, 1990, and one between the Guardians' Association and Nassau County dated April 25, 1990 (collectively referred to as the ''1990 Consent Orders''). The 1990 Consent Orders provided for modified use of the 1987 exam and for a project to be undertaken by the United States and Nassau County for the purpose of designing and developing an exam for use in the selection of candidates for employment by the NCPD that would comply with the 1982 Consent Decree and the 1990 Consent Orders.
On May 14, 1990, the court conducted a fairness hearing relating to the proposed settlements contained in the 1990 Consent Orders and approved the orders on May 22, 1990.
Page 319 PREV PAGE TOP OF DOC
DEVELOPMENT OF 1994 EXAM
Pursuant to the consent order between the United States and Nassau County, two industrial organizational Psychologists were appointed to carry out the project. Nassau County appointed David P. Jones, Ph.D. and the United States (Department of Justice) appointed Irving L. Goldstein, Ph.D. The United States and Nassau County formed a ''Technical Design and Advisory Committee'' (''TDAC''), co-chaired by Drs. Goldstein and Jones, consisting of eight additional outstanding experts in the design of written examinations for the selection of candidates for law enforcement positions or related fields. Drs. Jones and Goldstein are highly qualified for the task for which they were appointed.
In July 1995, Drs. Jones and Goldstein submitted a ''Project Technical Report'' consisting of 195 pages and appendices detailing ''the research methods, data analysis strategies, technical findings, and job-relatedness results for the Nassau County Police Officer Examination No. 4200.'' (Project Technical Report at 1).
We accept the United States and Nassau County Defendants' summary of the Project Technical Report as stated in their memorandum in support of their motions to dismiss and append a copy of the same to this memorandum of decision and order.
This court approved the 1994 exam ''in the manner recommended in the Project Technical Report'' on September 22, 1995 (''1995 Consent Order). In so doing the court stated at page 6 of the 1995 Consent Order:
Page 320 PREV PAGE TOP OF DOC
The experts retained respectively by the United States and the Nassau County defendants for the joint project completed a criterion-related validation study of the 1994 examination, and prepared a written report on that study, as required by paragraphs 3(b) and 3(e) of the 1990 Order. See ''Design, Validation and Implementation of 1994 Police Officer Entrance Examination, Project Technical Report (July, 1995),'' (the ''Project Technical Report''). The experts reported to the United States and the Nassau County defendants that the results of the study demonstrate the validity of the 1994 examination for use by Nassau County in the selection of candidates for appointment to the rank of Police Officer and proposed a use of the 1994 examination in a manner consistent with Title VII and the provisions of the Consent Decree. See 1990 Order 3(f).
PLAINTIFFS' POSITION
Plaintiffs argue that the gravamen of the complaint
is that the defendants decided to design implement and validate an examination solely or primarily to increase the number of black candidates who would score well enough to make the cut-off for further processing. (Plaintiffs' memo, p.8–9).
* * *
A test designed or implemented with the intent to increase the number of persons of one race in the pool of candidates for further screening, if successful, necessarily reduces the number of persons of other races or ethnic groups in the pool for further processing. Claims for discriminatory intent under Sections 106 and 107 of the 1991 Civil Rights Act are adequately pleaded. (Plaintiffs' memo, p.9).
Page 321 PREV PAGE TOP OF DOC
The claim is that ''the 1994 exam was not 'race neutral' in design or impact. (Plaintiffs' memo, p. 11). The individual claims are set forth below.
First Claim for Relief
[Denial or Equal Protection]
By designing, administering and scoring the 1994 exam in a rare-conscious way, with the intent of solely or primarily benefitting one racial group to the detriment of other racial or ethnic groups, defendants have violated the rights of plaintiffs and the class to the equal protection of law guaranteed by the Fourteenth Amendment to the Constitution of the United States.
Second Claim for Relief
[Race Discrimination—Title VII]
Defendants have unlawfully failed or refused to hire plaintiff's and members of the class because of their race, color or national origin in violation of 42 U.S.C. §2000e–2(a).
Third Claim for Relief
[Violation of 42 U.S.C §2000e–2(l)]
Page 322 PREV PAGE TOP OF DOC
Defendants and their servants by designing, administering and scoring the 1994 exam as aforesaid, unlawfully adjusted the scores of or otherwise altered the results of an employment related test on the basis of race. Defendants and their servants by designing, administering and scoring the 1994 exam as aforesaid violated §106 of the Civil Rights Act of 1991, Pub. L. 102–166, 42 U.S. C. §2000e–2(l).
Fourth Claim for Relief
[Racial Discrimination—New York State Human Rights Law]
Defendants' disparate treatment of plaintiffs and members of the class was in violation of the New York State Human Rights Law, N.Y. Exec. L. §296(l)(a).
Fifth Claim for Relief
[Violation of New York State Law Requiring Merit Hiring]
The appointment of candidates based on the eligible list generated from the 1994 exam would not be according to merit, and thus in violation of Article V, §6 of the State Constitution which requires appointments in the civil service to be made, and fitness to be ascertained by competitive examination.
The appointment of candidates based on the eligible list generated from the 1994 exam would not be according to merit, and thus in violation of §61 of the New York Civil Service Law which requires all permanent appointments to be made from three persons certified as standing highest on an eligible list.
Page 323 PREV PAGE TOP OF DOC
DENIAL OF EQUAL PROTECTION
The Fourteenth Amendment provides in relevant part that ''[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.'' U.S. Const. Amend. XIV, §1. ''The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race.'' Washington v. Davis, 426 U.S. 229, 239, 96 S. Ct. 2040, 2047 (1976).
A claim of denial of equal protection under the Fourteenth Amendment may be based on the fact that a law or policy classifies persons on the basis of race, i.e., it is discriminatory on its face. See Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292 (1979). However even if the law or practice appears facially neutral, it may violate the Equal Protection Clause if it is applied in a discriminatory fashion. Washington, 426 U.S. at 241, 96 S. Ct. at 2048 (citing Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064 (1886)).
A facially neutral statute or practice may also violate the Equal Protection Clause if it was motivated by an intent to discriminate and its application results in a discriminatory effect. In Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264–65, 97 S. Ct. 555, 563 (1977)(quoting Washington, 426 U.S. at 242, 96 S. Ct. at 2049) the Court specifically states:
Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination.'' Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection clause (citation omitted).
Page 324 PREV PAGE TOP OF DOC
The requirement of intent was later confirmed in Hunter v. Underwood, 471 U.S. 222, 227, 105 S. Ct. 1916, 1920 (1985) (''Presented with a neutral state law that produces disproportionate effects along racial lines, the Court of Appeals was correct in applying the approach in Arlington Heights to determine whether the law violates the Equal Protection Clause of the Fourteenth Amendment.''); see also Orange Lake Associates Inc. v. Kirkpatrick, 21 F.3d 1214, 1226 (2d Cir. 1994) (''We will not strike down an even-handedly applied, facially neutral law as, violative of the Equal Protection Clause unless the plaintiff can demonstrate discriminatory intent or purpose. Barnett v. Daley, 32 F.3d 1196, 1198 (7th Cir. 1994) (''The Equal Protection clause prohibits only intentional racial discrimination.'').
Plaintiffs do not claim that the examination administered to blacks was different than that administered to all of the other candidates, that it was scored differently for other candidates, or that blacks were ranked differently on the eligibility list. Thus, plaintiffs are not claiming that the 1994 exam is discriminatory on its face or that it was applied to blacks differently for the purposes of discriminating against blacks.
The complaint alleges that the 1994 exam was designed and administered to increase the number of blacks who qualified for the position in the NCPD and, therefore, decreased the chances of other races and ethnic groups for appointment.
First, we note that the claim cannot stand because plaintiffs fail to allege discriminatory impact. We also find that plaintiffs fail to adequately claim intentional discrimination. The earlier exams discriminated against blacks; the 1994 exam was created to lessen such adverse impact which most likely resulted in more blacks obtaining passing scores. Moreover, the procedures undertaken to create the 1994 exam, i.e., the creation of the TDAC and the work performed by its experts, culminated in this court's approval of the 1994 exam ''in the manner recommended in the Project Technical Report.'' 1995 Consent Order at p. 7. We find that in light of these circumstances, where an exam that discriminates against a group or groups of persons is reviewed, studied and changed in order to eliminate, or at the very least, alleviate such discrimination, there is a complete absence of intentional discrimination.
Page 325 PREV PAGE TOP OF DOC
As Judge Leval aptly noted in Cuesta v. State of N.Y. Office of Court Administration, 708 F.Supp. 583, 587 (S.D.N.Y.), aff'd, 888 F.2d 125 (2d Cir. 1989):
In designing this examination the defendants took extraordinary care to produce a test that would fairly measure qualifications free of both intentional and involuntary discrimination. Whether they achieved perfection is not the standard. Nor is the issue whether we can conceive of a preferable system.
Plaintiffs may very well have performed better had the original exams been maintained, but such an allegation does not support a claim of intentional discrimination.
Because plaintiffs do not allege that the 1994 exam classified persons on the basis of race or was applied differently to black applicants as opposed to the white or Hispanic applicants (whether male or female) and because plaintiffs fails to adequately allege that the 1994 exam was developed with an intent to discriminate, it appears beyond doubt that the plaintiffs can prove no set of facts in support of their claim which would entitle them to the relief they request. See Conley, 355 U.S. at 45, 78 S. Ct. at 102. Claim one is therefore dismissed.
TITLE VII CLAIMS
Plaintiffs' Second and Third Claims allege, as in the First Claim, that the 1994 exam diminished their chances of qualification for appointment to the NCPD because of race and/or ethnicity.
Page 326 PREV PAGE TOP OF DOC
The Second Claim is based on Title VII, Section 703 of the 1964 Civil Rights Act, which is codified at 42 U.S.C. §2000e–2(a)(1) and states as follows:
(a) Employer practices. It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individuals's race, color, religion sex, or national origin.
The case law recognizes that discrimination under this section can be in the form of disparate treatment or disparate impact. In a claim of disparate treatment, it is alleged that the employer 'treats some people less favorably than others because of their race, color, religion, sex, or national origin.' Hazen Paper Co. v. Biggins, 507 U.S. 604, 609, 113 S. Ct. 1701, 1705 (1993) (quoting International Brotherhood of Teamster v. United States, 1431 U.S. 324, 335–36, n. 15. 97 S. Ct. at 1843, 1854, n.15 (1977)). Plaintiffs must allege and prove that the disparate treatment is intentional. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 n. 1, 113 S. Ct. 2742, 2746–47 n. 1 (1993)(discussing the manner of proving Title VII discriminatory treatment cases under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973) and noting that ''the purposeful discrimination element of respondent's 1983 claim . . . is the same as the purposeful discrimination element of his Title VII claim''); see also Lowe v. Commack Union Free School District, 886 F.2d 1364, 1369 (2d Cir. 1989)(disparate treatment claim requires proof of subjective intent to discriminate), cert. denied, 494 U.S. 1026, 110 S. Ct. 1470 (1990). As discussed earlier, plaintiffs complaint fails to adequately claim intentional discrimination.(see footnote 16) Plaintiffs, therefore, fail to allege a claim of disparate treatment under this section of Title VII.
Page 327 PREV PAGE TOP OF DOC
Under a disparate impact theory, plaintiffs must claim and prove the existence of ''practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and can't be justified by business necessity.'' International Brotherhood, 431 U.S. at 335 n. 15, 97 S. Ct. at 1855, n.15. When claiming disparate impact, intent need not be proven. Id.
In their opposition to defendants' motions, plaintiffs admit that they do not assert a disparate impact claim. Since plaintiff cannot allege a claim of disparate treatment (because intentional discrimination is absent) and do not allege that plaintiffs were disparately impacted, the Second Claim must also be dismissed.
The Third Claim, based on Section 106 of the 1991 Civil Rights Act, codified at 42 U.S. C. 2000e–(2)(1), reads as follows:
(1) It shall be an unlawful employment practice for a respondent, in connection, with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex or national origin.
This section is among several amendments made to Title VII in 1991. The legislative history of this section is clear that its purpose was to ban practices used to alter or adjust the scores of job applicants on employment examinations, such as ''race norming.'' See 137 Cong. Rec. H9529, H3930. Plaintiffs do not allege that the test scores of any of the candidates were in any way altered, that the tests were scored differently, or that there were different cutoff scores. We find that plaintiffs' complaint fails to allege a claim under this section. See, e.g., Fioriglio v. State of New Jersey, Department of Personnel, Civ. Act. No. 95–3422, at 1996 WL 599400, *5 (D. N.J. October 15, 1996) (complaint dismissed where ''[t]he defendants changed the testing criteria and applied the new criteria evenhandedly to each and every score, not just to the scores of minority candidates. Thus plaintiff fails to convince the court that the employment practice violates either the statute [2000e–2(1)] or the disparate impact caselaw.''). Therefore, the Third Claim is also dismissed.(see footnote 17)
Page 328 PREV PAGE TOP OF DOC
THE STATE CLAIMS
Claims Four and Five allege state law violations. Claim Four alleges a violation of New York State Human Right's Law, N.Y. Executive Law §296(l)(a) as a result of disparate treatment. This claim is analyzed using the same standards as a claim under Title VII. See Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1180 (2d Cir.)(''New York courts have consistently looked to federal caselaw in expounding the Human Rights Law.''), cert. denied, 506 U.S. 826, 113 S. Ct. 82 (1992). Thus, for the same reasons discussed above in connection with the Title VII claims, Claim Four also fails to state a claim upon which relief can be granted.
Claim Five alleges a violation of §61 of the New York State Civil Service Law and Article 5, §6 of the New York State Constitution. Section 61 of the New York State Civil Service Law requires that appointment and promotion be made from an eligible list by the selection of one of three persons certified by the particular civil service commission. Plaintiffs do not allege that defendants failed to select candidates from the eligible list from ''one of three'' candidates as required by the statute or that a black candidate was selected over a white candidate on the basis of race. New York State's Constitution requires that appointments and promotions be made according to merit and fitness determined by competitive examination. Plaintiffs do not contend that a black candidate who did not receive the requisite score on the examination was chosen over another candidate who had the requisite score. See, e.g., Jackson v. Poston, 40 A D.2d 19, 337 N.Y.S.2d 108 (1972)(improper and unlawful to grant absolute preferences in the appointment of civil service positions to Black or Spanish-speaking eligibles on the basis of eradicating past and future racial discrimination in employment). Plaintiffs Fourth and Fifth Claims do not state a claim under either of these state law provisions and, therefore, are dismissed.
Page 329 PREV PAGE TOP OF DOC
ORDER
The complaint is dismissed, and it is
SO ORDERED.
The TDAC conducted—as was required by Paragraph 3b of the 1990 Consent Order—a job analysis of the position of police officer in the NCPD. Exhibit 4, Technical Report at 13–30. Based upon the results of its job analysis, the TDAC next developed job performance measures. Id., at 72–84. With the information obtained from the job analysis and job performance measurement phases of the project, together with information it obtained regarding selection procedures used by other law enforcement agencies, the TDAC developed an experimental examination battery of seven principal measures and containing 25 components:
I.
Situational Judgment Test
II.
Remembering and Using Information Test
Page 330 PREV PAGE TOP OF DOC
III.
Learning and Applying Information Test
IV.
Understanding Written Material Test
V.
Reading and Using Maps Test
VI.
Life Experiences and Preferences Inventory ('LEAP'), measuring:
Achievement Motivation
Responsibility
Non-Delinquency
Emotional Control
Influence
Sociability
Cooperativeness/Team play
Interpersonal Perceptiveness
Adaptability
Page 331 PREV PAGE TOP OF DOC
Tolerance
Fate Controls
Attention to Detail/Accuracy
Realistic Interests
Practical Intelligence
VII.
Work Readiness and Adaptation Profile ('WRAP'), measuring:
Self-Esteem
Emotional Stability
Agreeableness
Conscientiousness
Openness to Experience
Overall Work Adaptation
On July 30 and 31, 1994, Nassau County administered the experimental examination battery developed by the TDAC to approximately 22,000 candidates for the position of police officer. On October 9, 1994, the County administered the experimental examination battery to approximately 3,000 candidates over the age of 29 years who had been allowed to apply for the position of police officer pursuant to a consent order entered in a state court proceeding, Reilly v. County of Nassau, Index No. 94–019668 (Sup. Ct., Nassau County). Exhibit 4, Technical Report at 113.
Page 332 PREV PAGE TOP OF DOC
As noted, supra, the 1990 Consent Order in the United States action called for the parties' experts not only to develop a new Police officer examination for Nassau County's use, but also to undertake a criterion-related study as to the validity of the examination they developed. Simply stated, validation can be defined as ''the effort through which the appropriateness and of meaningfulness of interpretations from scores on a measure can be estimated.'' SIOP Principles, at 41. As the Uniform Guidelines explain:
The concept of validation as used in personnel Psychology involves the establishment of the relationship between a test instrument or other selection procedure and performance on the job.
43 Fed. Reg. 38291 (August 25, 1978)
A criterion-related study—one of three validation strategies discussed in both the SIOP Principles and the Uniform Guidelines—can be defined as an attempt to demonstrate the existence of a statistical relationship between scores on a selection procedure (termed a 'predictor') and one or more measures job relevant behavior (termed the ''criterion'' or ''criteria''). SIOP Principles, at 6, 37. Similarly, the Uniform Guidelines provide that:
Evidence of the validity of a test or other selection procedure by a criterion-related validity study should consist of empirical data demonstrating that the selection procedure is predictive of or significantly correlated with important elements of job performance.
Uniform Guidelines, 29 C.F.R. §1607.5 (B).
Page 333 PREV PAGE TOP OF DOC
In any criterion-related validity study, the statistical relationship between a predictor and the criterion measure is expressed by what is termed a correlation, or validity, coefficient. SIOP Principles, at 25. A validity coefficient, expressed as a decimal value ranging from –1.0 (a perfect inverse relationship) to 1.0 (a perfect positive relationship), reflects the degree of relationship between scores obtained on the predictor (here, the components of the TDAC's experimental examination battery) and scores obtained on the criterion measure (here, job performance). Generally, a selection procedure or examination is considered related to the criterion measure if the statistical relationship between scores on the procedure or examination and performance on the criterion is significant at the 0.05 level of confidence.
In order to determine whether a statistical relationship existed between scores on its experimental examination battery, or any portions thereof, and job performance, the TDAC administered its experimental examination battery to a large sample of incumbent Nassau County police officers, and the TDAC obtained job performance criteria for the incumbent officers in this sample. Exhibit 4: Technical Report at 119–122.
As a result of the criterion study which it undertook, the TDAC found that four of the original seven measures and ten of the 25 components of the experimental examination battery had sufficient validity (i.e., were sufficiently correlated with job performance) to retain for possible use in the final selection battery. Exhibit 4, Technical Report at 133. Those components-two cognitive measures and two personality measures—were:
I.
Page 334 PREV PAGE TOP OF DOC
Situational Judgment Test
II.
Understanding Written Materials Test
III.
LEAP, measuring:
Achievement Motivation
Responsibility
Non-Delinquency
Influence
Adaptability
Attention to Detail/Accuracy
IV.
WRAP, measuring:
Emotional Stability
Openness to Experience
Page 335 PREV PAGE TOP OF DOC
The TDAC eliminated the remaining is components of the experimental examination battery because they lacked sufficient evidence of validity. Exhibit 4, Technical Report at 133, 168–73, 177–78, Appendix W. Of the 15 components eliminated by the TDAC because they lacked sufficient evidence of validity, three were cognitive in nature (Remembering and Using Information; Learning and Applying Information; and Reading Maps), while the remaining twelve were components of two personality inventories (LEAP—Emotional Control, Sociability, Cooperativeness, Interpersonal Perceptiveness, Tolerance, Fate Controls, Realistic Interests and Practical Intelligence; and WRAP—Self-Esteem, Agreeableness and Conscientiousness, and Overall Work Adaptation). Exhibit 4, Technical Report at 133.
The TDAC next considered how to combine and weight the ten remaining components of its experimental examination battery so as to ''maximize the criterion-related validity of the battery, while also minimizing any adverse impact of the battery on protected groups.'' Exhibit 4, Technical Report at 134. Adverse impact, as defined by the Uniform Guidelines, occurs when the selection rate for any race, sex or ethnic group is less than four-fifths (4/5's), or eighty percent (80%), of the rate for the group with the highest rate. 29 C.F.R,. §1607.4(D).
The six models that were considered by the TDAC as the final examination battery are as follows:
1. Full Model—
Situational Judgment Test
Understanding Written Materials Test
LEAP:
Page 336 PREV PAGE TOP OF DOC
Achievement Motivation
Responsibility
Non-Delinquency
Influence
Adaptability
Attention to Detail/Accuracy
WRAP:
Emotional Stability
Openness to Experience
2. Reduced Model—
Situational Judgment Test
Understanding Written Materials Test
LEAP:
Achievement Motivation
Adaptability
WRAP:
Emotional Stability
Openness to Experience
3. Minimum Model—
Understanding Written Materials Test
LEAP:
Adaptability
WRAP:
Page 337 PREV PAGE TOP OF DOC
Emotional Stability
Openness to Experience
4. Non-Cognitive Model—
LEAP:
Achievement Motivation
Responsibility
Non-Delinquency
Influence
Adaptability
Attention to Detail/Accuracy
WRAP:
Emotional Stability
Openness to Experience
5. Non-Cognitive plus Situational Judgment Test Model—
Includes all components in
Model 4, supra, plus
Situational Judgment
6. Non-Cognitive plus Reading Standard at the First Percentile Model—
Includes all components
In Model 4, supra, plus
Understanding Written Materials Test
scored in a dichotomized manner.
Page 338 PREV PAGE TOP OF DOC
All six models produced statistically significant and equivalent levels of observed criterion-related validity. Exhibit 4, Technical Report at 137, 138, 186. As the report also reflects, all of the models would, if used, result in adverse impact upon ''African Americans and/or Hispanics, but that degree of impact varied across the models. Id., at 138, 187. The TDAC concluded that Model 6 produced the best results in terms of demonstrating statistically significant criterion-related validity, covering important job requirements, and minimizing adverse impact. Id., at 139–40. Model 6 results in essentially no adverse impact against Hispanics, but it does result in statistically significant adverse impact against African Americans. Id. Model 4, which was not recommended by the TDAC, had less adverse impact against African Americans than Model 6. Id.
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
CANDACE CARRABUS et. al.,
Civil Action
No. CV 00-2885 (ILG) (MDG)
Plaintiffs,
v.
Page 339 PREV PAGE TOP OF DOC
ORDER
ALAN SCHNEIDER, PERSONNEL
OFFICER OF THE COUNTY OF
SUFFOLK, COUNTY OF SUFFOLK,
Defendants.
UNITED STATES OF AMERICA
Defendant Intervener.
ORDER
Pursuant to Federal Rule Civil Procedure 12(b)(6), it's hereby ordered that the Joint Motion of the Suffolk County defendants and defendant-intervenor United States to dismiss plaintiffs' Amended and Supplemental Petition for failure to state a claim upon which relief may be granted is GRANTED.
Dated XXXXXXXXXX
UNITED STATES DISTRICT JUDGE
Page 340 PREV PAGE TOP OF DOC
| HBE Corporation, |
| St. Louis, MO, April 12, 2000. |
Mr. BRIAN F. HEFFERNAN, Deputy Chief,
Housing and Civil Enforcement Section,
U.S. Department of Justice, Washington, DC.
VIA FAX 202–514–1116 AND FIRST CLASS MAIL
DEAR MR. HEFFERNAN: Now that there is a proposed decree in front of the court, we are in the process of addressing the practicalities of our compliance. The Department of Justice has alleged that their investigation revealed indicia of discrimination in public accommodation on a chainwide basis. At no time during our various discussions was the Department of Justice willing to reveal any of the specific facts which lead them to this conclusion. I understand that settlement negotiations do not require these disclosures. However, it is necessary for me as CEO of this company to be aware of the facts indicating that discrimination on this basis exists within this organization. We are entitled to this information. Not only will this information assist us in our compliance with the Decree, but it is also important to me as part of my personal undertaking.
I would appreciate your response as soon as possible
Very truly yours,
| HBE Corporation, |
| St. Louis, MO, June 16, 2000. |
Hon. JANET RENO, Attorney General,
Office of the Attorney General,
Washington, DC.
Mr. BILL LANN LEE, Acting Assistant Attorney General,
Civil Rights Division,
Department of Justice, Washington, DC.
VIA REGISTERED MAIL
DEAR MS. RENO AND MR. LEE: As you know, a Settlement Decree between the United States and HBE Corporation/Adam's Mark Hotels was presented to the court in March of 2000. The court has yet to approve the decree, but we have been working on compliance matters. In April, I requested from Mr. Heffernan information relating to the investigation of the Adam's Mark chain by the Department of Justice (copy of letter attached). To date, I have not received any response from Mr. Heffernan.
It certainly seems to me that we are entitled to the information requested in my letter. As CEO of this organization, it is my responsibility to ensure that our compliance programs comply with the Settlement Decree and also address the particular issues which constituted the basis for the action taken by the Department of Justice.
Page 342 PREV PAGE TOP OF DOC
Such issues must be addressed from the context—of our business as well as from the context of compliance. Your response to these requests would be helpful.
Very truly yours,
| Fred S. Kummer, President/CEO. |
ADAM'S MARK
We filed a complaint alleging that the HBE Corporation, which operates 21 Adam's Mark Hotels and Resorts throughout the country, violated Title II of the Civil Rights Act of 1964 by discriminating on the basis of race and/or color. Title II of the Civil Rights Act prohibits public accommodations, including hotels and motels, from discriminating on the basis of race, color, creed or national origin. Our complaint alleged a pattern or practice of resistance to, and denial of, the full and equal enjoyment by non-white persons of the goods, services, facilities, privileges, advantages, and accommodations offered by the Adam's Mark hotels throughout the country.
We initiated our investigation based on events surrounding the Black College Reunion in Daytona Beach, Florida held in April 1998. Our action followed a private class action lawsuit filed against the company claiming violations of Title II and other civil rights statutes. In addition, the State of Florida intervened in the private lawsuit against the company for violations of state unfair trade practices.
Page 343 PREV PAGE TOP OF DOC
The results of our investigation included the following:
At the Black College Reunion in Florida, Adams Mark required African-American guests, but not white guests, to wear bright neon orange wristbands;
Adams Mark required African-American guests during the Black College Reunion to make FULL payment at the time of RESERVATION plus an additional $100 security deposit. Moreover, African American guests received limited access to mini-bars and telephones without further deposit, notwithstanding the $100 security deposit prepaid at time of reservation
During the Black College Reunion, non-registered guests were prohibited from visiting registered customers when this prohibition was not enforced for any other large special event. Prepayment was required for room service, which arrived w/ plasticware and styrofoam.
Other Adams Mark hotels engaged in policies or practices to limit or prohibit the number of minorities patronizing the hotels' outlets (i.e. restaurants, clubs, bars), and utilized different payment/contract terms for large minority groups.
We successfully settled the case, along with private plaintiffs and the State of Florida, when Adam's Mark agreed to, among other things, implement non-discrimination policies and extensive nationwide employee training, attract more minority customers, and pay $8 million in monetary relief, including $1.5 million for hotel management programs at four historically black colleges in Florida. Court approval of the settlements is pending.
Page 344 PREV PAGE TOP OF DOC
Under the agreement, which will remain in effect for four years, the hotel chain has agreed to hire an outside monitor—Project Equality of Kansas City, Missouri—to ensure that Adam's Mark is complying with the terms of the agreements. Project Equality will: investigate any complaints filed by Adam's Mark guests; design and monitor diversity and nondiscrimination training programs for all Adam's Mark employees; oversee a program designed to test all Adam's Mark hotels on a yearly basis to ensure compliance with these agreements, and with federal civil rights law; and establish a marketing plan with Adam's Mark to identify, target, and reach African American markets.
In addition, the chain will pay a total of $8 million in monetary relief including: $4.4 million to class members, both guests and visitors to the hotel last spring; and $1.5 million to the State of Florida to distribute to the four historically black colleges in the state for tuition scholarships, and hotel and hospitality management internships.
E-mail:
From: Ho, Deborah Y [Deborah.Y.Ho@usdoj.gov]
Sent: Monday, July 10, 2000 3:13 PM
To: Foxx, Anthony
1Subject: FW: questions re attorney's fees
We had promised y'all info from the meeting with staff on the times we've paid fees/costs in disparate impact/employment discrimination cases in relation to all disparate impact cases we have. This topic came up in the context of the Torrence and Garland cases (question 1 of the oversight request). The following is what I got from Helen on the topic:
Page 345 PREV PAGE TOP OF DOC
----Original Message----
From: Helen Norton
Sent: Friday, July 07, 2000 7:00 PM
To: Ho, Deborah Y
Subject: questions re attorney's fees
Debbie,
Torrance is the only time in the last 10 years that the Employment Section has been assessed attorney's fees—out of more than 150 cases filed during that period. BLL will try to mention that himself, but it would be great if a Member could ask something along those lines (e.g., how many other times have you been assessed attorney's fees in employment cases?)
Overall, here are the rough numbers: over the past 5 years, we've filed between 500 and 600 civil cases. A court has assessed fees against us in approximately five cases, has assessed costs (considerably less expensive) another 3 to 5 times. If you include situations where we paid fees and/or costs as part of a settlement (as opposed to a court-ordered judgment), the total is around 20.
Mr. WAYNE S. FLICK, Esq.,
Latham & Watkins,
Los Angeles, CA.
Re: United States v. City of Torrance, et al. CV 93–4142 MRP (C.D. Cal)
DEAR WAYNE: Pursuant to the district court's order of September 18, 1998 and your request, the United States is enclosing a check made out jointly to Latham & Watkins and the City of Torrance in the amount of $1,858,990.90. This amount includes the judgment amount of $1,714,727.50, plus interest in the amount of $144,263.40. Interest was calculated from September 18, 1998 until June 29, 2000 in accordance with 28 U.S.C. §1961. Accordingly, the applicable interest rate is 4.730%.
Please call me when you have received this check. At that time we can discuss filing a stipulation with the court acknowledging that payment of the judgment has been made. Please call me at (202) 514–2168 if you have any questions.
Sincerely,
| Katherine A. Baldwin, Chief, Employment Litigation Section. |
| By: Philip K. Eure, Attorney, |
| Employment Litigation Section. |
Page 347 PREV PAGE TOP OF DOC
67163a.eps
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
FILED MAY 11, 2000, CATHY A. CATTERSON, CLERK, U.S. COURT OF APPEALS
XXXXXXXXXXXXXXXXXX
UNITED STATES OF
AMERICA,
Nos. 99–56503, 98–56906
Plaintiff-Appellant,
D.C. No. CV–93–04142–MRP
v.
Page 348 PREV PAGE TOP OF DOC
CITY OF TORRANCE; CITY
OF TORRANCE POLICE
MEMORANDUM
DEPARTMENT; JOSEPH DE
LADURANTEY, Police Chief
in his official capacity; CITY
OF TORRANCE FIRE
DEPARTMENT; SCOTT
ADAMS, Fire Chief in his
official capacity,
Defendants-Appellees.
XXXXXXXXXXXXXXXXXX
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
MARIANA R. PFAELZER, DISTRICT JUDGE, PRESIDING
Page 349 PREV PAGE TOP OF DOC
ARGUED AND SUBMITTED APRIL 10, 2000
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36–3.
PASADENA, CALIFORNIA
Before: FERNANDEZ and WARDLAW, Circuit Judges, and WEINER,(see footnote 18) District Judge,
The United States appeals the district court's order awarding attorneys' fees to the appellees ''under either or both'' Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e–5(k), and Rule 11 of the Federal Rules of Civil Procedure. We have jurisdiction pursuant to 28 U.S.C. §1291, and we affirm the fee award under Title VII. Because the parties are familiar with the factual and procedural history of the case, we discuss it only as necessary to explain our decision.
''[A] district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation . . .'' Christiansburg Gannent Co. v. EEOC, 434 U.S. 412, 421 (1978); see also Warren v. City of Carlsbad, 58 F.3d 439, 444 (9th Cir. 1995) (holding that this same standard applies ''to an assessment of Title VII claims under Rule 11''). In this case, the record amply supports the district court's determination that this standard was satisfied, that is, ''that the Government had an insufficient factual basis for bringing the adverse impact claim'' and ''that the Government continued to pursue the claim . . . long after it became apparent that the case lacked merit.''
Page 350 PREV PAGE TOP OF DOC
For example, the district court found that the United States ''approved'' one of the challenged police-officer examinations for use ''in other municipalities in Southern California.''(see footnote 19) It also found that the United States took ''substantial discovery'' on, and challenged up until trial, seven examinations for which it ''offered no evidence'' of adverse impact at all. The district court further determined that the United States ''fail[ed] to provide meaningful discovery regarding its allegations or the bases of those allegations,'' and ''[t]his unnecessarily and substantially 'increased the cost of defending the action.'' Finally, the court found that ''the United States . . . offered no alternative selection device that would equally serve Torrance's legitimate hiring objectives,'' while repeatedly assuring the district court it would do so.
The United States argues on appeal that several of the district court's findings of fact are clearly erroneous. These arguments lack merit, and only two warrant discussion.(see footnote 20)
First, the United States argues that ''[t]he district court unaccountably concluded that [it] failed to make 'an independent effort to determine the validity of the challenged examinations before it filed its Complaint.''' According to the United States, it relied on the opinion of William C. Bums, a consultant in the area of industrial and organizational psychology, before filing its complaint; the United States contends that ''[o]nce Burn's affidavit was filed, it was clear that the United States had acted responsibly prior to filing suit.'' According to his affidavit, however, Burns examined the validity studies for only two of the 12 challenged examinations and expressed no opinion as to whether, regardless of the validity studies, the tests actually were job-related. Moreover, the district court did consider Burn's affidavit, but, given ''the Government's verified discovery responses'' to the contrary, found that the United States ''did not retain an expert to determine the job-relatedness of the challenged examinations until some time after February 1994, seven months after filing suit.
Page 351 PREV PAGE TOP OF DOC
Second, the United States contends that it ''presented a prima facie statistical case of disparate impact.'' The record does not support this argument, however. Although the district court denied the appellees' motion to dismiss on the grounds that the United States had failed to establish a prima facie case, it did so ''because this was not a jury trial [and the court] thought it advisable to hear all of the evidence before resolving a matter involving such serious allegations.'' Indeed, the district court never found that the United States established a prima facie case of disparate impact, but rather concluded that the testimony of the United States's statistical expert was unpersuasive.
Therefore, we hold that the district court did not abuse its discretion in awarding attorneys' fees to the appellees. See EEOC v. Pierce Packing Co., 669 F.2d 605, 609 (9th Cir. 1982) (''It is well settled in this circuit that the award of fees and costs rests within the sound discretion of the trial judge, and will not be overturned absent abuse.''); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 404 (1990) (noting that ''[d]eference to the determination of courts on the front lines of litigation will enhance these courts' ability to control the litigants before them,'' and that ''such deference will streamline the litigation process by freeing appellate courts from the duty of reweighing evidence and reconsidering facts already weighed and considered by the district court''). Accordingly, the judgment of the district court is AFFIRMED.
Mr. WAYNE S. FLICK,
Ms. LISA VON EACHEN,
Latham & Watkins,
Los Angeles, CA.
Re: United States v. City of Garland, Texas, No. 3–98–CV–0307–L (N.D. Tex.)
DEAR COUNSEL: Pursuant to the First Interim Scheduling Order, the United States is to identify, by today, any hiring and/or employment policies, practices and procedures as to which it will pursue disparate treatment claims in this lawsuit.
The United States has decided that it will not pursue any claims for relief under a disparate treatment theory. Therefore, the United States withdraws the allegation in paragraph 10(c) of its Complaint and the corresponding part (c) of the prayer for relief.
The United States' decision in this regard is not and should not be interpreted by the City as a determination by the United States that the City's treatment of Black and Hispanic police officers and firefighters, and Black and Hispanic applicants for such positions, has been lawful at all times or in all respects. Indeed, at the time the United States filed suit, its investigation had developed credible evidence that gave it reason to believe that the City had engaged in disparate treatment against Blacks and Hispanics.
However, since the filing of this lawsuit, the City has made considerable efforts toward reforming several of its employment policies and practices. For example, the City has enhanced its efforts to recruit minority applicants, including the appointment of a minority recruiter, appointed minority community representatives to the oral interview boards, and increased the number of minorities granted special assignments and promoted to supervisory positions, and that the racially hostile work environment has been effectively corrected. The decision not to pursue other information received since the filing of this lawsuit.
Page 353 PREV PAGE TOP OF DOC
Sincerely,
| Katherine A. Baldwin, Chief, |
| Employment Litigation Section. |
| By: Michael T. Kirkpatrick, Trial Attorney, |
| Employment Litigation Section |
cc: Bill Glazer
(Footnote 1 return)
As in Hayden, plaintiffs here do not allege that their tests were scored differently than the tests of other racial or ethnic groups, that different tests were administered to different racial or ethnic groups, or that the examination had an adverse impact on the plaintiffs' racial or ethnic group. Hayden 180 F.3d at 48–49, 51–52.
(Footnote 2 return)
In addition, plaintiffs have not alleged that they have fulfilled a prerequisite for filing a claim under Title VII: filing a charge with the Equal Employment Opportunity Commission. Campbell v. Grayline Air Shuttle, Inc., 930 F.Supp. 794, 798–799 (E.D.N.Y. 1996).
(Footnote 3 return)
Plaintiffs also claim that the 1986 Consent Decree is ''stale''—a term that has no legal significance whatsoever. Contrary to plaintiffs' claim, the parties to the Consent Decree (the United States and the County defendants) have continued to follow the relevant portions of the Consent Decree since it was entered. The County defendants continue to submit compliance reports to the United States as is required by 32 of the Decree and the County defendants continue to actively recruit applicants as set forth in Section III of the Decree. The Consent Decree contains a provision for how it is to be terminated ( 37); the County defendants have never moved to have the Decree dissolved. Thus, far from being a ''stale'' document, the Consent Decree is an ongoing order of the Court and agreement between the parties.
(Footnote 4 return)
Paragraph 6 of the Decree states:
(Footnote 5 return)
The Supreme Court has found that a roup of private plaintiffs that did not include any States or state officers did not have standing under the Tenth Amendment. Tennessee Valley Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 144 (1939); accord Mountain States Legal Foundation v. Costle, 630 F.2d 754, 761–62 (10th Cir. 1980), cert. denied, 450 U.S. 1050 (1981). Despite this decision, the Seventh and Eleventh Circuits have permitted private individuals to bring claims under the Tenth Amendment. See Gillespie v. City of Indianapolis, 185 F.3d 693, 700 (7th Cir. 1999), cert. denied, 120 S.Ct. 934 (2000) (finding standing but calling issue ''unsettled) and n.3 (collecting cases); and Seniors Civil Liberties Ass'n v. Kemp, 965 F.2d 1030, 1034 n.6 (11 th Cir. 1992) (''we conclude with admitted doubts that the . . . [plaintiffs] have standing to advance Tenth Amendment claims). See also Nance v. EPA, 645 F.2d 701, 716 (9th Cir.), cert. denied, 454 U.S. 1081 (1981) (standing of private parties under the Tenth Amendment may be ''seriously questioned,'' not deciding standing).
(Footnote 6 return)
In one of the headings in the Amended Petition (although not in a numbered paragraph), plaintiffs' claim that the Consent Decree violates the Tenth Amendment because it has no ending date. Amended Petition p. 10. Paragraph 37 of the Decree provides that the County may move to dissolve the Decree at any point after five years from its date of entry. The County has never so moved.
(Footnote 7 return)
Indeed, the Lutz court described the privileges and immunities clause of the Fourteenth Amendment as ''essentially moribund since Slaughter-House.'' Lutz 899 F.2d at 264. The Slaughter-House Cases were decided in 1873. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).
(Footnote 8 return)
Given plaintiffs' allegation that minorities do better on non-cognitive measures (Amended Petition 43), plaintiffs' legal theory violates the alternative selection device provision of Title VII. If the County defendants had used a cognitive-only examination, they would have violated Title VII in that there would have been a selection device (one that combined testing for cognitive and non-cognitive skills) that would have maintained or increased validity (according to Guardians) of the examination process and decreased the adverse impact which the County refused to use. 42 U.S.C. §2000(k)(1)(A)(ii). See e.g. Bridgeport Guardians Inc., v. City of Bridgeport, 933 F.2d 1140 (2d Cir.), cert. denied, 502 U.S. 924 (1991).
(Footnote 9 return)
In fact, according to plaintiffs' Amended Petition, 31, the 1996 examination also included such non-cognitive measures.
(Footnote 10 return)
The exam was administered on July 30, July 31 and October 9, 1994.
(Footnote 11 return)
Paragraph 131 of the Second Amended complaint states:
(Footnote 12 return)
The Guardians' Association, United States and Nassau County Defendants are collectively referred to as ''defendants.''
(Footnote 13 return)
The United States and the Nassau County Defendants move alternatively for summary judgment pursuant to Fed. R. Civ. P. 56(c).
(Footnote 14 return)
The standards for determining the Rule 12(c) motion are the same. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994), cert. denied, 513 U.S. 816, 115 S. Ct. 73 (1994).
(Footnote 15 return)
The Uniform Guidelines on Employee Selection Procedures (29 CFR §1607) were adopted by the EEOC, the Civil Service Commission, and the Departments of Justice and Treasury.
(Footnote 16 return)
See also Kirkland v. New York State Department of Correctional Services, 711 F.2d 1117, 1126 (2d Cir. 1983) (''Non-minorities do not have a legally protected interest in the mere expectation of appointments which could only be made pursuant to presumptively discriminatory employment practices.''), cert. denied, 465 U.S. 1005, 104 S. Ct. 987 (1984).
(Footnote 17 return)
Although not part of the complaint, plaintiffs claim in their Opposition that defendants are liable pursuant to 42 U. S.C. §2000e–2(m). This section gives no greater right to plaintiffs than the Title VII sections alleged in plaintiffs' complaint and discussed above. Plaintiffs also refer to 42 U.S.C. §1983 in their Opposition. To make a claim under §1983 plaintiffs must allege the depravation of rights, privileges or immunities secured by the Constitution and laws. Plaintiffs set forth no claim that a law or section of the Constitution has been violated apart from its Equal Protection and Title VII claims: therefore, the dismissal of those claims also disposes of the §1983 claim.
(Footnote 18 return)
The Honorable Charles R. Weiner, Senior United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
(Footnote 19 return)
We previously reviewed and adopted this finding of fact, as well as many of the others relied upon by the district court and challenged by the United States in this appeal, in the earlier appeal on the merits, See United States v. City of Torrance, No. 97–55290, 1998 WL 132979, at **1 (9th Cir. Mar. 23, 1998) (unpublished). We are bound to these findings under the law of the case doctrine. See Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir. 1997) (en banc) (''Law of the case is a jurisprudential doctrine under which an appellate court does not reconsider matters resolved on a prior appeal.'').
(Footnote 20 return)
We also reject the United States's argument that the district court's award of fees was ''based . . . on legally erroneous ideas as to how a Title VII lawsuit should be conducted.'' We have already determined that the district court correctly applied Title VII when it granted judgment to the appellees on the merits. See City of Torrance, 1998 WL 132979, at **1.