by Art Gutman Ph.D., Professor, Florida Institute of Technology

The case is Finch v. Peterson [2010 U.S. App. LEXIS 18954, 9/10/10] in which three white police officers sued officials in the City of Indianapolis for reverse discrimination on grounds that they were denied promotion to police captain in favor three black applicants that ranked lower on the eligibility list. The City argued that they were entitled to qualified immunity on grounds that the promotions were sanctioned by a 1978 consent decree between the City and the Justice Department to settle racial discrimination charges. The City argued that the decree required them to take race into account when making the promotions. The district court disagreed and the 7th Circuit affirmed. The 7th Circuit ruled that the decree set recruitment and hiring goals, but also provided that “promotions shall be based upon relevant standards and criteria, which will be applied without regard to race or color.” Therefore, promotion of lower ranked blacks over higher ranked whites was deemed contrary to the decree.

The City argued that it was required to take “appropriate remedial actions” in promotion of police officers to all ranks, and that consideration of race as a factor in promotions was necessary to “harmonize” key provisions of the decree. However, the 7th Circuit ruled that the City’s argument “runs headlong into the consent decree's explicit prohibition against using race in making promotion decisions” and that there are “no inconsistencies in the language of the various provisions; in fact, the framework the decree establishes is quite logical,”

The decree was dissolved in 2008, but that’s beside the point. The key is that there is an important distinction between recruitment and actual selection decisions. Although a decree may permits enhanced recruitment and outreach to bolster potential hires (and ultimately promotions) for police officers, it cannot shield actual decisions.

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