Auriemma v. Rice

CUDAHY, Circuit Judge,

dissenting:

I join Judge Flaum’s dissent on the race discrimination issue but I write separately both to comment further on affirmative action and to note other dimensions of the problem which were not raised by the parties but which seem clearly relevant.

This is certainly not an ordinary case of affirmative action. It is not, at least from all appearances, the frequently encountered case of a government (usually white-dominated) instituting measures that benefit minorities in order to remedy past discrimination. But, even assuming that the case presents a real, if unusual, case of affirmative action, Chief Rice did nothing that was clearly unconstitutional given the case law of 1983. Indeed, the state of affirmative action law has been notoriously unclear and in flux throughout the evolution of the doctrine. In the early 1980s, affirmative action law was still really in its infancy. (The first full blown affirmative action case decided by the Supreme Court was the Bakke decision handed down in 1978.)

In 1980, for example, the Supreme Court held that the government could use appropriately tailored race-conscious measures to counter the effects of past discrimination. Fullilove v. Klutznick, 448 U.S. 448 , 100 S.Ct. 2758 , 65 L.Ed.2d 902 (1980). And, as late as 1986, the Supreme Court held that public employers may sometimes embark upon a race-conscious scheme for remedying past employment discrimination. Wygant v. Jackson Board of Education, 476 U.S. 267 , 106 S.Ct. 1842 , 90 L.Ed.2d 260 (1986). Our own case law has been consistent with these Supreme Court dictates. Cygnar v. City of Chicago, 865 F.2d 827 (7th Cir.1989) (citing to Lehman v. Yellow Freight System, Inc., 651 F.2d 520 (7th Cir.1981)). Hence, a reasonable governmental actor could have taken lawful race-conscious measures in 1983. At least, when viewed as affirmative action, what Chief Rice did was not clearly unconstitutional at the time he acted.

However, I would prefer to try to analyze this situation as something other than a case of affirmative action. Rice denied that he was engaging in affirmative action and the facts do not really fit that mold. This seems to me instead to be very much a political case cast in a racial mold. The 1983 election resulting in the election of *1462 Mayor Washington was fought to an extraordinary extent along racial lines, but it was an election nonetheless. Indeed, the political alignment was coterminous with race to a degree having few parallels in electoral history.

“ 'Except for the accidents,' ” in the words of an involved political consultant, “Washington got all of the black vote.” Kleppner, Chicago Divided: The Making of a Black Mayor 217 (1985). In fact, in the 1983 general election for mayor, Harold Washington received, according to some estimates, approximately 99% of the black vote and only 12 to 16% of the white vote, with the Hispanic vote split. Id. at 218 (Table 23); Levinsohn, Harold Washington: A Political Biography 270 (1983). In effect, the blacks won the 1983 election and the whites lost.

The 1983 election was not a traditional Chicago election.

“It used to be that ... many people would have chosen sides according to party, and the campaign would be over,” [Patrick] Caddell [a political expert] observed shortly before election day. “This time, people also have chosen sides, but the controlling fulcrum here is race not party.”

Kleppner, Chicago Divided at 236.

The Police Department itself apparently played a significant role in the 1983 mayoral election:

In the eight days before the April 12th general election, the mayoral race was shaping into a photo finish. In an effort to push Epton [the Republican candidate] over the finish line ahead of Washington, Police Supt. Richard Brzeczek announced his resignation on Tuesday, April 5, exactly one week before the big day. Brzeczek, who had campaigned for [former Mayor] Byrne in the primary, once warned the citizens of Chicago that the streets would not be safe under a Washington administration. The faint of heart were being led to believe that Chicago would become a 20th century Wild West Dodge City under a Black mayor. White police officers, among whom Ep-ton had a great deal of support, expressed regret and anger at Brzeczek’s departure. Black officers considered his resignation as a step forward.

Travis, “Harold”: The People’s Mayor 194 (1989). It is in this context of a supercharged political contest waged along starkly racial lines that we must view the controversy before us — not as some sort of sanitized exercise in racial balance. 1

In this case, Rice, a member of the winning (black) party 2 reorganized his department according to the classic dictates of politics to place more members of the prevailing party in policymaking positions. Since these were upper-rank policy positions the reorganization would not be illegal presumably even under Rutan v. Republican Party of Illinois, — U.S.-, 110 S.Ct. 2729 , 111 L.Ed.2d 52 (1990). Indeed, the district court held Rice to be qualifiedly immune from suit on the claim that the white officers were demoted for “political reasons.” The district court reasoned that, under the circumstances, it was “not a constitutional violation to make employment decisions based upon political affiliations when party affiliation is an appro *1463 priate requirement for effective performance of the public office involved.” This ruling has not been appealed. If this is a political case for one purpose, I believe it should be regarded as a political case for other purposes — including equal protection.

In addition, it should be noted that a violation of the equal protection guarantee requires an intent to discriminate against a particular group — in this case whites. See Washington v. Davis, 426 U.S. 229 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976). There seems to me no such intent on the facts before us. The Supreme Court has held that an intent to discriminate must be a “motivating factor” of the challenged action. Hunter v. Underwood, 471 U.S. 222 , 105 S.Ct. 1916 , 85 L.Ed.2d 222 (1985). The line that prefers blacks and discriminates against whites is so fine that it may be argued with some force that an “intent to discriminate” is not evident here. Rice evidently did not desire to hurt whites; he merely intended to recognize and reward those who had worked, or at least voted, for the victor (and who were “philosophically” compatible with Washington and Rice). Moreover, there is no evidence in the record of any specific “racial animus” involving a desire on Rice’s part to demean whites as such. Because this is really a political case and because Rice, in order to benefit members of the “black” party, had — by definition — to take actions that adversely affected whites, I cannot find the requisite discriminatory intent here. In short, Rice acted, not because he wanted to hurt whites, but “in spite of” the fact that he was hurting whites. See Personnel Administrator of Mass. v. Feeney, 442 U.S. 256 , 99 S.Ct. 2282 , 60 L.Ed.2d 870 (1979). 3

On the basis of this “political” equal protection analysis, which seems to me considerably more realistic than a conventional affirmative action one, Rice either would be arguably innocent of a civil rights infraction or would have qualified immunity since promotions among policymaking officials after a “black” party political victory did not constitute a clearly established constitutional violation in 1983.

. Racist pamphlets involving the police set the tone:

Handbills were circulated depicting a police insignia that read "Chicongo Po-lease.” On the insignia in the center were a pair of lips, a watermelon slice, a can of beer, and a slab of ribs; and the written commentary on the side deprecatingly linked these to black heritage and traditions. Another piece of racist propaganda, displayed in some of the police stations in white areas, posed a series of questions emphasizing the danger that with a black mayor, Chicago would become another Gary, Indiana, (emphasis supplied). "No matter what anyone tells you, this election has come down to race," it warned. Readers were urged to "make the difference" by voting for Epton and to "make copies" of the handbill "and get the word around.”

Kleppner, Chicago Divided at 211-212.

. Perhaps one should not call the contending organizations "parties"; perhaps “electoral vehicles” would be a more felicitous term. One of these survives even today in a perhaps attenuated form as the “Harold Washington Party.” But I think it is generally better that we recognize electoral reality and apply a doctrine that might fit than turn a blind eye to reality in search of convenient conclusions.

. See also United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144 , 97 S.Ct. 996 , 51 L.Ed.2d 229 (1977) (where six justices indicated that it was significant that the legislature had not intended to injure white voters when it drew up reapportionment plans that benefited minorities).