Author: Joshua Thompson
Apparently Chicago is contemplating doing away with entrance exams for police officers altogether. It seems as though the police department is worried that their tests run the risk of disparate impact lawsuits, when the certified results, despite painstaking measures to assure objectivity, result in a disproportionate number of minorities failing to qualify.
This story comes on the heels of the Supreme Court accepting review in a disparate impact lawsuit with regard to the Chicago fire department. In Lewis v. Chicago, minority firefighters are suing the city arguing that the tests used for firefighters were discriminatory under a disparate impact theory. PLF will be filing a brief to the Supreme Court in that case, arguing that the disparate impact theory cannot be squared with the Equal Protection Clause. I will blog more on that topic when PLF files its brief.
Isn't a legally theory fatally flawed when it shifts the government's chief concern from eliminating discrimination in government, or even hiring the best police officers/firefighters, to avoiding potential lawsuits? But that is precisely the result in legal environment that accepts disparate impact as a legitimate legal mechanism — as evidenced by Chicago contemplating doing away with its testing altogether. Granted, the Supreme Court took an important step in limiting disparate impact theory in Ricci v. DeStefano (a case PLF was also involved in), and it can go even further this term in Lewis v. Chicago, but isn't it time that the Supreme Court ended this song and dance with disparate impact and says, once and for all, that the theory is incompatible with the commands of the Equal Protection Clause?