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Wilmington March 23, 2007
Bob Joyce, School of Government
You’ve Got to Love the Law of
Employment:
Recent Developments
Public Employee Free Speech
Community college employee’s discussion of salaries at the college was not “speech
on a matter of public concern.” Koehn v. Indian Hills Community College, 371 F.3d
394 (8th Cir. 2004).
Facts: The community college, in compliance with state law, published in a local
newspaper a list of all college employees and their salaries. Roger Koehn, a custodian at
the college, brought a copy of the paper with him to the night shift, and at a 1:30 a.m.
break, he and other custodians discussed the salaries of various college employees. Some
employees became upset. Learning about the incident, a college vice president
terminated Koehn’s employment, saying that he was an “antagonist.” Koehn sued,
alleging (among other things) that his termination was in violation of his free speech
rights.
The federal district court ruled for the college and Koehn appealed.
Holding: The federal Eighth Circuit Court of Appeals affirmed the district court
ruling: the college wins.
In a free speech case, the first question is whether the speech at issue was speech
“on a matter of public concern.” Here the court noted that Koehn, in bringing in the
newspaper and discussing the salaries, was not questioning the salaries as a misuse of
public funds or calling for reforms in the methods of determining salaries. Instead, he
was speaking as an employee and not as a tax-paying, out of personal concern for his
own salary. Therefore, his speech was not “on a matter of public concern,” and was not
constitutionally protected.
University violated free speech rights of students and faculty by ban on contact with
recruited athletes; chancellor may be personally liable. Crue v. Aiken, 370 F.3d 668
(7th Cir. 2004).
Facts: The nickname of the University of Illinois athletic teams is the “Fighting
Illini,” a reference to a loose confederation of Algonquin Indian tribes that inhabited the
upper Mississippi Valley. The mascot is “Chief Illiniwek,” who first came into use in
1926. The use of this Indian caricature was first challenged in 1975 as offensive to
Indian peoples, and the protests have grown over the years.
In 2001, some students and faculty let it be know that they intended to begin
contacting athletes that the university was recruiting, to press their point of view that the
university athletic program was using an offensive mascot. The chancellor sent out an
email directive to all students and employees, directing that they not contact prospective
athletes, on the grounds that such contact would be a violation of National Collegiate
Athletic Association recruiting rules. “We expect members of the University community
to express their viewpoints without violating NCAA rules concerning contacts with
prospective student-athletes,” the chancellor said.
Several students and faculty members sued, alleging that the ban amounted to a
prior restraint on free speech and a violation of their First Amendment rights. The federal
district court held that the chancellor’s ban on contact with prospective students was a
First Amendment violation, and the university appealed to the federal appeals court
Holding: The federal Seventh Circuit Court of Appeals upheld the ruling of the
district court: the chancellor’s ban did in fact violate the First Amendment.
In a free speech case, the first question to be answered is whether the speech at
issue is speech on a matter of public concern. If it is not, then the First Amendment is
simply not applicable. In this case, the court said, “There is no doubt that the speech
involved here concerns a matter of public concern.”
Once it is determined that the speech involved is speech on a matter of public
concern, then the second question is a balancing of the interests. Whose interests in this
particular case are more important: the interests of the university in suppressing the
speech or the interests of the students and faculty in exercising their free speech rights?
Here, the university argued that the purpose of the proposed speech was to hurt
the university’s recruiting efforts in order to pressure the university to drop its use of
Chief Illiniwek. The university said it had a compelling interest in staying in compliance
with NCAA rules. The students and faculty asserted their interest in convincing the
administration that the use of Chief Illiniwek hurts the university by creating a hostile
environment for Native American students.
The court said: “The free-speech interest of the plaintiffs—members of a major
public university community—in questioning what they see as blatant racial stereotyping
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is substantial. That interest is not outweighed by fear that an athletic association [the
NCAA] might not approve of what they say.” Further, it is not clear that the university
fully checked out with the NCAA the claim that contact with the student athletes would
really lead to sanctions. Therefore, their interests prevail, and the university loses.
Further, the chancellor might be personally liable. As a public official, he enjoys
qualified immunity from liability for free speech violations. That is, he cannot be held
personally liable so long as his conduct “does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Here, the court
said, the chancellor should have known that his actions were a free speech violation.
The Notion of “Adverse Employment Action”
Maybe something bad has happened to a school employee—something that on its
face would appear to be a constitutional or statutory violation. In many instances, the
employee will have a remedy in the courts. But in many other instances, the employee
will not. If the claim is a free speech violation, for instance, the court may find that the
public school employer’s interest in avoiding disruption or promoting efficiency
outweighs the employee’s interest in having his wrong remedied.
In an interesting handful of school employment cases over the past year,
employees who claim that something bad has happened to them have failed because the
courts have faced the employer’s argument that the bad thing they complained about did
not rise sufficiently to the level of an “adverse action.”
“Adverse Action” and the Title VII Prima Facie Case
A Title VII plaintiff alleging unlawful discrimination in employment may have
direct evidence of the employer’s intent to discriminate, and if the plaintiff does have
such direct evidence, he will use it. But in many cases, no such direct evidence is a hand,
and the courts have regularly used the so-called McDonnell Douglas test to permit the
plaintiff to attempt to prove indirectly the existence of a discriminatory intent. The first
step in the McDonnell Douglas test is the plaintiff’s obligation to establish a prima facie
case of discriminatory intent. An element in the prima facie case is that the plaintiff
suffered an “adverse employment action.”
“Only tangible, adverse employment actions may serve as the basis of a
prima facie case of discrimination.”
Love-Lane, 201 F. Supp. 2d at 574
The statement of requirements of the prima facie case vary, depending on the nature of
the employer action involved. For instance, if the claim is that an employer
discriminatorily reassigned the plaintiff to a new job, the plaintiff, in order to establish
the prima facie case, may have to show that
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1. she is a member of a protected class
2. she suffered an adverse employment action
3. she was performing at a satisfactory level and
4. she was replaced by someone outside her protected class
So a threshold question in a Title VII action is whether the plaintiff suffered an “adverse
action.”
Assigning assistant principal to teaching position—Love-Lane. In her action
in the district court, plaintiff Love-Lane asserted that there was race discrimination
involved in several actions that the school system took with respect to her. She claimed,
for instance, that once she ran into conflict with her supervisor she asked for a transfer to
another school and was denied that transfer, because of her race. The district court held
that a “failure to transfer” claim is not actionable under Title VII “because it does not
constitute an adverse employment action.” Love-Lane, 201 F. Supp. 2d at 575. She also
claimed that eventually another transfer—from her assistant principal job to a teaching
position—was imposed on her because of her race. The district court seemed to want to
hold that that transfer did not amount to an adverse action:
“In the present case, it is significant that following Plaintiff's
reassignment, her pay remained at the assistant principal level for the
remainder of her contract term. Thus, she did not suffer any adverse
financial consequences as a result of the reassignment. Admittedly,
Plaintiff no longer held an administrative role, but this evidence alone
does not necessarily indicate that Plaintiff's job as a teacher involved less
responsibility, only that it involved responsibility of a non-supervisory
kind. Moreover, Plaintiff has submitted no evidence that her teaching
position involved a ‘lesser degree of skill’.”
Love-Lane, at 576
Noting that this was a summary judgment disposition, the court acknowledged that it was
bound to view the evidence in the light most favorable to Love-Lane, however, and said,
“[D]espite the shortfalls in this element of Plaintiff's prima facie case, the
court will infer from the evidence Plaintiff has presented (namely, that
Plaintiff was deprived of her supervisory responsibilities) that Plaintiff's
non-renewal and subsequent reassignment were an adverse action for
purposes of her prima facie case.”
Id.
When the matter reached the court of appeals, it said it would also “assume” that
the transfer from assistant principal to teacher was a demotion and therefore constituted
an adverse employment action.
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Conducting investigation of counselor. The employer of an African-American
student counselor investigated incidents of her misadvising students. She brought a
lawsuit alleging, among other things, that the investigation was conducted because of her
race. The federal district court held that that claim could not go forward: “An
investigation does not constitute an adverse employment action.” Palmer-Boahene v.
Board of Trustees, 307 F. Supp. 2d 997 (N.D. Ill. 2004)
Transfer from coaching girls to coaching boys. A female teacher coached the
girls’ varsity basketball team and the boys’ JV team. When the position of boys’ varsity
coach came open, she applied. The defendant school system argued that she had not
made out a prima facie case, because failure to move from girls’ coach to boys’ coach
(with the salary staying the same) was not an “adverse action.” The district court held,
and the holding was affirmed by the appeals court, that the case was properly seen not as
a transfer from coaching girls to coaching boys, but as a promotion from coaching boys’
JV to coaching boys’ varsity, and that viewed that way, a failure to promote was an
adverse action. Fuhr v. School Dist. of City of Hazel Park, 364 F.3d 753 (6th Cir. 2004)
Transfer from teaching high school to teaching seventh grade. Teacher
claimed that such transfer was an “adverse action” because the new position required less
skill. The court noted, however, that the pay, benefits, and working conditions in the two
positions were virtually identical, there was no evidence that such a transfer was
generally considered a demotion, and no evidence that the transfer was accompanied by
any kind of reprimand. Therefore, the transfer was not adverse. Bell v. South Delta
School District, 325 F. Supp. 2d 728 (S.D.Miss. 2004). Special note: citing Harris v.
Victoria Independent School District, 168 F.3d 216, 220-221, the court said (internal
quotation marks omitted):
“[F]ederal courts should be extremely hesitant to invade and take over in
the area of education; a federal court is not the appropriate forum in
which to seek redress over faculty disputes concerning teaching
assignments, room assignments, administrative duties, classroom
equipment, teacher recognition, and a host of other relatively trivial
matters.”
“Adverse Action” and the Title VII Retaliation Claim
Title VII prohibits an employer from discriminating against an employee or
applicant because that person “opposed any practice made an unlawful employment
practice” by Title VII. Courts typically have imposed the “adverse employment action”
requirement on this statutory imperative, so that, for instance, in a recent case, the Eighth
Circuit stated it this way: “Title VII prohibits an employer from taking any adverse
employment action against an employee . . . [Plaintiff] must show that he suffered an
adverse employment action on account of his participation in the protected activity.”
Horn v. University of Minnesota, 362 F.3d 1042 (8th Cir. 2004).
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But in Burlington Northern & Santa Fe Railway Co. White, 126 S. Ct. 2405
(2006), the Supreme Court decided that the “adverse action standard is not to apply to
Title VII retaliation claims.
Imagine that a woman is the only female employee in a department in which there
are forklift operators and numerous other jobs. Imagine that she is assigned as a forklift
operator. Imagine further that her supervisor reassigns her to a standard laborer job
within the department, a job within the same job description, at the same pay rate, with
the same benefits and promotion opportunities. Even if the forklift job is considered
more desirable because it is cleaner and easier, it is unlikely that the employee would be
able to prevail on a claim that the reassignment was discriminatory against her based on
her sex. That is because it is unlikely that she would be able to convince a court that she
has suffered an “adverse employment action.” She suffered no loss in pay, benefits, or
promotion opportunities.
On the other hand, Title VII contains a separate anti-discrimination provision, one
that prohibits discrimination not on account of race, sex, etc., directly, but in retaliation
for making a charge of discrimination, participating in a discrimination investigation,
assisting someone with a charge of discrimination, or testifying. If an employee makes a
claim of unlawful discrimination, this anti-retaliation provision outlaws discrimination
against her.
If an employee claims unlawful retaliation, must she show the same kind of
“adverse employment action” in order to prevail? That is the question that came before
the U.S. Supreme Court in Burlington Northern & Santa Fe Railway Co. v. White, 548
U.S. ____, decided June 22, 2006. The Court answered No. There is a lower standard in
retaliation cases than in straight discrimination cases.
In Burlington Northern, a woman was in fact the only female employee in a
department like the one described above. She alleged that she was being subjected to
sexual harassment by her supervisor in violation of Title VII. The supervisor was
disciplined for the harassment. Shortly thereafter, the employee was transferred from her
forklift job to a laborer job, as described above. She filed a lawsuit under the anti-
retaliation provision, claiming that she was transferred in retaliation for the original
allegation of sexual harassment.
The Supreme Court ruled that she should not be held to the “adverse employment
standard.” Instead, the standard in a retaliation case is whether a reasonable employee
would have found the employer’s action to be materially adverse, whether the action
“might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” 548 U.S. at ___ (internal quotations and citations omitted)
So, rather than meeting the “adverse employment action” standard, the plaintiff in
a retaliation case need show only an action that is “materially adverse,” a standard, the
Court said, intended “to separate significant from trivial harms.” 548 U.S. at ___.
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In the Burlington case, the fact that the laborer job was dirtier, more arduous,
lower in prestige, and generally considered a worse job was enough to make the transfer
“materially adverse,” to support a retaliation claim, even if the transfer would not have
amounted to an “adverse employment action” to support a direct discrimination claim.
“Adverse Action” and First Amendment Claims
Just as an “adverse employment action” is a requirement for a successful showing
by a plaintiff of a Title VII prima facie case, so it is also a requirement for a successful
showing of a claim of retaliation for exercise of First Amendment free speech rights.
In Stavropoulos v. Firestone, 361 F.3d 610 (11th Cir. 2004), rehearing and
rehearing en banc denied, 123 Fed.Appx. 388 (2004), cert. denied, 544 U.S. 976 (2005),a
university faculty member pointed to several actions by her superiors as constituting
adverse employment actions in violation of both Title VII and the First Amendment:
encouraging others who opposed her promotion to appear before the promotion review
panel, sending her a memo criticizing her for filing complaints with the dean’s office
regarding a job applicant’s candidacy, and preparing and distributing a memo regarding
the effect on the plaintiff’s job performance of her supposed mental illness. The court
held that the Title VII standards for an “adverse employment action” apply to First
Amendment claims.
“A public employer retaliates [in violation of the First Amendment] when
he takes an adverse employment action that is likely to chill the exercise
of constitutionally protected speech. . . . While it is true that a claimant
must show a chilling effect on her protected speech, she must also show
that this effect resulted from an adverse employment action. To be
considered an adverse employment action in a First Amendment
retaliation case, the complained-of action must involve an important
condition of employment” Stavropoulos, 361 F.3d at 618-619
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Affirmative Action in Public Employment
1. The door to affirmative consideration of race is still open—at least a crack—in
public employment.
Grutter v. Bollinger, 539 U.S. 306 (2003), rehearing denied, 539 U.S. 982, (2003), and
Gratz v. Bollinger, 539 U.S. 244 (2003)
Sometimes governments wish to take race into account in making decisions. Is
that ever constitutional? Yes, but only when it is done in the narrowest way possible to
serve a compelling interest. In two cases coming from the University of Michigan,
Grutter v. Bollinger and Gratz v. Bollinger, the Supreme Court kept open the door to the
affirmative use of race, but closed the door to racial quotas.
Governments make all sorts of decisions all the time: this applicant will get the
job and that one will be rejected; the Glenwood Heights neighborhood will be in this
elementary school attendance zone and not that one; this road will be resurfaced this
month and that road will have to wait; the electoral district line between Ward One and
Ward Two will run along Maple Street and not Elm.
All governmental decisions are subject to challenge under the Equal Protection
Clause of the Fourteenth Amendment of the United States Constitution. As a general
rule, it is an easy matter for the government to prevail on such a challenge. If the
decision that the government made is rational, the government will prevail. This
“rational basis” test is the regular scrutiny that courts apply in ruling on equal protection
claims.
Where race plays a role in a governmental decision, however, the courts do not
apply regular scrutiny. They take a much closer look, applying “strict scrutiny.” Under
strict scrutiny, it is not sufficient that the government’s use of race in making a decision
has a rational basis. More is required. The use of race must be justified by a compelling
governmental interest, not just a rational basis. Strict scrutiny is applied whether the use
of race by the government is thought to be aimed at harming a particular racial group or
helping one.
Over more than two decades, the debate has raged on the question of what
interests can qualify as compelling interests for this purpose.
One interest is universally acknowledged as sufficiently compelling: overcoming
the present effects of prior discrimination by the unit of government itself. That is, if the
city or county or school administrative unit or public college has itself in the past
discriminated on the basis of race, and if it is possible today to identify lingering ill
effects of that past discrimination, then race can be taken into account in making
decisions that might overcome those lingering effects. This potential compelling interest
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is seldom employed by any government to justify the use of race in decision-making,
because it would require the government to admit its own prior discrimination and to
point to ongoing effects of that discrimination.
Are there any other interests sufficiently compelling to permit a unit of
government to base a decision on race? In a line of decisions leading up to the Grutter
and Gratz decisions, the United States Supreme Court had one-by-one rejected several
rationales for race-based decision-making as not sufficiently compelling.
In an employment case, it struck down a provision in a school system’s collective
bargaining agreement that protected African-American teachers against layoff. The
school system said that there was a compelling interest in keeping African-American
teachers employed to serve as role models for African-American students. The Supreme
Court rejected the argument that the need for role models was a compelling interest.
Wygant v. Jackson Board of Education, 476 U.S. 267 (1986).
In a government-contracting case, the Court struck down a city’s requirement that
prime contractors to whom the city awarded construction contracts must subcontract a
certain proportion to minority-owned businesses. The Court said that the city had not
successfully pointed to its own discrimination but had instead pointed to an interest in
overcoming “general societal discrimination.” The Court rejected that as a compelling
governmental interest. Richmond v. Croson Co., 488 U.S. 469 (1989).
In a voting rights case, the Court even refused to hold that a state’s interest in
avoiding liability under the Voting Rights Act of 1965 was a compelling governmental
interest to justify use of race in designing electoral districts. Shaw v. Hunt, 517 U.S. 899
(1996).
One early case had—to some extent—bucked the trend. That case was Regents of
the University of California v. Bakke, 438 U.S. 265 (1978). The university directly
considered race in making admissions decisions to its medical school. What compelling
governmental interest might support such a use of race? The Court rejected a couple of
possibilities: reducing the historic deficit of minorities in the medical profession, and
increasing the number of physicians who will practice in underserved communities. But
in one of the court’s opinions, one member of the court accepted an alternative
compelling interest: the attainment of a diverse student body. This one member’s
opinion was important because his was the swing vote in a 5-to-4 court decision. But no
other members of the Court joined in the opinion or accepted student body diversity as a
compelling interest that would withstand strict scrutiny.
So, for 25 years, while all courts recognized that a unit of government has a
compelling interest in taking race into account in its decision-making to overcome the
present effects of its own prior discrimination, the debate went on. Could educational
diversity be such a compelling interest? Are there are any other potential compelling
interests?
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In 2002, the Supreme Court agreed to hear Gratz and Grutter, two related cases
from the University of Michigan, both concerning the university’s use of race in
admissions, one to the undergraduate school and the other to the law school. The Court
said it wanted to answer “a question of national importance: Whether diversity is a
compelling interest that can justify the narrowly tailored use of race in selecting
applicants for admission to public universities.” It answered the question: Yes.
If the Supreme Court had answered the question in the negative, there would have
been great force to the argument that the only compelling interest that would support the
use of race by units of government is the interest in overcoming the current effects of that
unit’s own past discrimination.
But since the Supreme Court answered the question in the affirmative, there is
still room to argue that other potential compelling interests exist. The Court said, “Not
every decision influenced by race is equally objectionable and strict scrutiny is designed
to provide a framework for carefully examining the importance and sincerity of the
reasons advanced by the governmental decision maker for the use of race in that
particular context.” The Court also said, “[W]e have never held that the only
governmental use of race that can survive strict scrutiny is remedying past
discrimination.”
Identifying a compelling governmental interest is the first element in the
application of strict scrutiny. There is a second element. It is called “narrow tailoring.”
Because the use of race is so disfavored, even where it is justified by a compelling
interest, it must be done in a way that is “specifically and narrowly framed to accomplish
that purpose.” As the Court said in the Croson case, the narrow tailoring requirement is
to ensure that “the means chosen ‘fit’ . . .th[e] compelling goal so closely that there is
little or no possibility that the motive for the classification was illegitimate racial
prejudice or stereotype.”
That is, there are not many circumstances in which governments may consider
race—only where there is a compelling interest—and even in those circumstances, the
courts will look very closely at the way race is considered.
In Grutter and Gratz, it was the closeness of the “fit” or the narrowness of the
tailoring, that made the difference. The Court found in Grutter that the law school’s use
of race did not violate the Equal Protection Clause, but in Gratz that the undergraduate
college’s use did.
In the law school case, the university was sued by a white applicant who was not
admitted, and who claimed that her application was rejected because the law school used
race unconstitutionally as a predominant factor in making admissions decisions. The law
school based its admissions largely on a combination of an applicant’s undergraduate
grade point average and score on the Law School Admissions Test. Admissions officials
were granted, by the admissions policy, discretion to admit students who would not be
admitted simply based on that combination, if the admission would help “achieve that
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diversity which has the potential to enrich everyone’s education and thus make a law
school class stronger than the sum of its parts.” Especially, the policy said, the school
had a commitment to “racial and ethnic diversity with special reference to the inclusion
of students from groups which have been historically discriminated against, like African-
Americans.” According to the testimony of the director of admissions, the law school
looked to admit enough minority students to achieve a “critical mass,” and that race was
taken into account in order to achieve enough minority admissions. The law school
engaged, the Court said, in a “holistic review of each applicant’s file,” giving
individualized consideration to all applicants of all races, and considering minority-race
status as a “plus” for the purpose of achieving diversity. There was no quota at work, the
Court said. For these reasons, the law school’s practices met the narrow tailoring
requirement and did not violate the Equal Protection Clause. “To be narrowly tailored,”
the Court said, “a race-conscious admissions program cannot use a quota system.”
In the undergraduate admission case, as in the law school case, the university was
sued by applicants who claimed they were rejected because of their race. They
challenged two different policies: (1) the 1995-98 admissions scheme, which reserved a
specific number of seats for minorities, and used separate scoring grids for minority and
white applicants; and (2) the 1999-2000 scheme, which granted extra points to the
admissions score of under-represented minority candidates and allowed admission
counselors to “flag” for further consideration the files of certain students who would not
otherwise have passed the first round of selection. The Court found that these schemes,
unlike the law school practices, did not provide the necessary “individualized
consideration” to meet the requirement of narrow tailoring. In effect, these schemes
operated as quotas, and quotas never amount to narrow tailoring. The undergraduate
admissions practices did violate the Equal Protection Clause.
The lessons for units of government from these two cases are these:
1. Strict scrutiny continues to be the standard by which race-conscious actions
by governments will be judged when challenged under the Equal Protection
Clause.
2. There are at least two compelling interests that will withstand strict scrutiny:
overcoming the current effects of one’s own prior discrimination, and (for
educational institutions) achieving a diverse student body.
3. The Court did not close the door to the possibility that other compelling
interests might in the proper case be identified, but it gave no indication as to
what they might be.
4. Even if a unit of government has a compelling interest in taking race into
account in making decisions, its practices will not be narrowly tailored—and
so will not be constitutional—if they amount to quotas.
2. One court has already walked through the opening.
Petit v. Chicago, 352 F.3d 1111, cert. denied, 541 U.S. 1074 (7th Cir. 2003)
11
In the mid-1980s, the Chicago Police Department administered an examination to
candidates for promotion from patrol office to supervisor. The examination consisted of
several written and oral portions. When the scoring results were tabulated, only 60
African-American candidates (out of 931) would have been eligible for promotion,
compared with 383 white candidates (out of 2,274). The city then went through a process
it described as “standardization,” by which the scores on the subjective parts of the
examination were adjusted to make up for adverse impact that the subjective parts had for
African-American candidates. As the court described it, “[T]he city standardized the
scores based on race.” After the standardization, the city promoted 298 white candidates
and 138 African-Americans. Several whites who were passed over sued. The results of
the examination were not used in future promotion decisions, and the court said, “[N]o
race-conscious promotions have been made since that time.”
In December 2003, the Federal Seventh Circuit Court of Appeals ruled that the
use of the race-conscious standardization did not amount to a violation of the Equal
Protection Clause.
In so doing, it relied on the Grutter and Gratz decisions described above. In those
decisions, the Supreme Court held that the need for diversity in the student body of an
educational institution can constitute the “compelling interest” that will allow the use of
race in admissions decisions to pass the test of strict scrutiny. The Seventh Circuit held
that the same considerations apply to the Chicago Police Department:
“It seems to us that there is an even more compelling need for diversity in
a large metropolitan police force charged with protecting a racially and
ethnically divided major American city like Chicago. Under the Grutter
standards, we hold, the City of Chicago has set out a compelling
operational need for a diverse police department.”
What about the second requirement, narrow tailoring? In Grutter, the law school
admissions scheme was found to be “specifically and narrowly framed” in a way
sufficient to survive strict scrutiny, but in Gratz the undergraduate program was not,
since it acted more as a quota. The Seventh Circuit interpreted the difference this
succinct way: “A race-conscious admission program cannot use a quota system.”
Here, the Seventh Circuit held that the use of standardization of scores acted more
as a “plus factor” in the promotion scheme than as a quota, and therefore met the Grutter
and Gratz standard for narrow tailoring. To be narrowly tailored, the court said,
1. there must be individualized consideration of each and every candidate
(and here there was),
2. the program must not unduly harm members of any racial group (the
court said: “[S]tandardizing the scores can be seen not as an arbitrary
advantage given to minority officers, but rather as eliminating an
advantage the white officers had on the test”), and
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3. the program must be limited in time (this program had in fact ended).
Therefore, meeting the compelling interest of diversity and being narrowly tailored,
the race-conscious standardization of the test scores did not violate the principles of equal
protection.
3. But Courts still look for something more than “ad hoc” decision-making.
See Alexander v. City of Milwaukee, 474 F.3d 437, 445-46 (7th Cir. 2007).
“Each Commissioner in his or her own testimony denied the use of race-
conscious policies in their votes to approve potential candidates for
promotion. The record therefore discloses no policy, no set parameters and
no means of assessing how race should be weighed with other promotional
criteria. Faced with no evidence of a plan in the trial record, the
defendants are left to urge that the Commissioners' testimony
demonstrates that, even though they considered each candidate
individually, they embraced a view of increasing diversity. They contend
that the Commissioners took a flexible approach, in which diversity was
important, but under which the individual qualifications of each candidate
were considered before promotion. They further contend that this
approach is supported by evidence that they undertook review of Chief
Jones' performance and that his ability and successes in promoting
diversity were cornerstones of their review.
Our cases approving of a race-conscious promotion policy for a public
employer as a narrowly tailored response to a compelling governmental
interest have never approved such a loose and indeed effectively standard-
less approach. See, e.g., Petit, 352 F.3d at 1115-17. . .”
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