Question: Kane v. Freeman 1997 U.S. Dist. LEXIS 4063 (M.D. Fla., March 17, 1997)
In 1996, Tampa police officers sued the police department to prohibit the continued use of the affirmative action plan that had been in place since 1976 and was to expire in 1995. The court held that though there had initially been a basis for instituting the plan, since there was no longer an underrepresentation of African American police officers and blatant discrimination that created the need for the plan, it was no longer justified and must be stopped.
Kovachevich, J.
The City of Tampa's Police Department (TPD) has granted promotions, assignments and transfers pursuant to an Affirmative Action Plan since 1976. The TPD considers race as one factor in determining the propriety of individual promotions and assignments, and the determination of workforce promotional and assignment goals. The 1990 TPD Plan continues to be effective in 1996, notwithstanding its internal language indicating the Plan was to terminate in 1995. In this case, there is a basis in the evidence for the Court to find that racial discrimination existed at the Tampa Police Department. Chief Bennie Holder testified that until the late 1970s it was not uncommon to hear derogatory speech toward black and female officers. Chief Holder further testified: It's been necessary at times to explain to people why we have affirmative action. People don't understand. Some people, because they didn't experience it, or it predates them, they don't know about some of the discriminatory practices that existed in the past.
They didn't know that black officers made less money than white officers; and that there was an understanding that they didn't arrest white people, that if they needed to arrest a white person, they had to summon a white officer; that they weren't allowed to drive police vehicles; that they didn't have roll call with black [sic] police officers, they had theirs in the hallway. Chief Holder also testified that to his knowledge none of the past discriminatory practices described above have existed at the Tampa Police Department for the last five years, and that he did not know the exact date these practices ended. The Court is certain that at one time an affirmative action plan was warranted, and must now determine whether present circumstances warrant the continuation or modification of the plan. In order to satisfy the "compelling governmental interest" prong of the strict scrutiny test, TPD must show that racial preference guides the affirmative action plan and that some governmental interest allows this discrimination.
One way TPD may satisfy the first prong is to demonstrate "gross statistical disparities" between the proportion of minorities hired by the public employer and the proportion of minorities willing and able to do the work. After reviewing TPD's statistical analyses, the Court concludes that no statistical evidence exists of present discrimination against blacks at the Tampa Police Department sufficient to support a "compelling governmental interest." The conclusions of two statistical analyses performed by the police officers demonstrate this point. The first statistical analysis performed by the police officers was the "rank below analysis of percentages." This analysis represents the overall percentages of blacks in each rank, compared to the percentages of blacks in each rank below (the next rank down). The studies found that black candidates for the rank of Lieutenant were promoted at rates that actually exceed the percentage of blacks in the rank of Sergeant, the eligibility rank below. This Court finds no statistical disparity
The second statistical analysis performed by the police officers was the "Statistical Workforce Analysis." This test demonstrates the racial composition of supervisory sworn personnel compared with the relevant labor market in the relevant geographic area. When performed by the police officers, the test exhibited no statistically significant underrepresentation in each geographic area considered among the Department's supervisory personnel. In fact, the test revealed that black employees are significantly overrepresented among TPD's non-supervisory employees. The desire to eliminate vestiges of past discrimination may support the "compelling governmental interest" requirement. However, as to the elimination of the vestiges of past discrimination, there is no duty to remedy an imbalance that is not caused by past discrimination so long as the current employment and promotional policies and practices are neutral with respect to race, gender, and ethnicity.
Chief Holder denied any specific knowledge that discrimination toward blacks in the Tampa Police Department continues to the present day. However, he did state "I'm not going to be so naive and say it's not occurring, but it certainly does not occur in my presence. And I would say, if it is going on, it's much more covert. It's just not prevalent because it's just not condoned." Anecdotal evidence may be used to document discrimination, especially if buttressed by relevant statistical evidence, but the Court looked for it in the supporting documents, and did not find it. Defendants have not brought forth evidence of a compelling state interest sufficient to justify the continuation of the present Affirmative Action Plan.
The Court concludes that the evidence presented of the necessity for the subject relief is not sufficient to justify continuation. At the very least, the parties must open discussions as to whether some modified plan may be necessary. One must attempt to eliminate all vestiges of past discrimination through nondiscriminatory measures before one resorts to discriminatory measures. The TPD has not revealed any evidence that it used, or even experimented with, any viable or meaningful plans to promote black candidates without employing discriminatory measures. The door is therefore now open for the application of alternative means. Limiting the duration of a raceconscious remedy which clearly impacts adversely upon the suing police officers is a keystone of a narrowly tailored plan. The TPD's present plan is perpetual, and establishes "moving targets."
The police officers argue that TPD has not implemented measures to evaluate its affirmative action program to determine whether the Plan at the very least needs revamping. The Court agrees with the officers' contention that TPD fail to show any evidence that they reevaluate the Plan periodically. The methods used by the City of Tampa are critically in need of review. The TPD's "availability percentage" is rigid. The most recent racial classifying plan developed before 1990 contained availability percentage data for each minority category. However, the TPD still uses percentages calculated before 1990 in 1996, even after the new census data was available. The police officers argue that TPD made no attempt to reassess or adopt available percentages to current data. According to the officers, TPD's calculation of the availability percentage for promotions has flaws. The Court agrees.
TPD's calculation uses percentage data obtained from outdated pre-1990 census data when 1990 census data is available. The Court finds that no compelling interest has been established as to the present Affirmative Action Plan of the Tampa Police Department, and the means employed by the Plan are not narrowly tailored. The Court enjoins the use of the present Affirmative Action Plan for promotions, assignments and transfers within the Tampa Police Department. There is "no universal answer to the problem of remedying racial discrimination." The choice of remedies to redress racial discrimination is a balancing process left, within appropriate constitutional or statutory limits, to the sound discretion of the trial court. Motion for partial summary judgment GRANTED.
1. Why do you think the police department was still using the plan even though the stated expiration date had passed?
2. What do you think the police officers who sued were feeling about the plan?
3. Assuming the suing police officers had their feelings before the expiration date of the plan, how would you have addressed them?