actions in the entire country, the brainchild of an extraordinarily creative O&G partner, Adam Kline. Our clients are suing the U.S. Department of Commerce for how one of its key constituent units, the Census Bureau, hired approximately one million temporary employees, mainly as enumerators, to conduct short data-collection interviews for the 2010 decennial census. In its hiring process, the bureau had the FBI do a criminal-background check on all the applicants. Census personnel then decided the types of crimes and arrests that would disqualify applicants. The flaws in its system, however, were many. In the first place the FBI records were in terrible shape, as the FBI obtained most of its records from states that often did not update them after an arrest or add the actual disposition of the charge. Second, the Census Bureau developed its own completely arbitrary criteria for whom it should eliminate from the pool of acceptable applicants. To do so it conducted no studies and employed no qualified personnel to decide what crimes were job related, or how much time an applicant should be crime-free before becoming eligible for hire. The results were grim. Beside eliminating some applicants for arrests only as well as for convictions having nothing to do with the enumerator’s job, the bureau rejected candidates who had been crime-free for many years after being released from custody. To make matters infinitely worse for the applicants, the bureau sent out about one million letters to the approximately four million applicants with a “hit” on the FBI database, instructing them that they had thirty days to return a certified copy of the final dispositions of whatever crimes were on the database, even though the letter did not list those crimes. For more than 90 percent of the applicants the “thirty-day letter” killed the application.
To Adam, looking at that “system,” the outcome was obvious. Blacks and Latinos are arrested at much higher rates than whites. As a result they were disqualified at much higher rates than were whites. Therefore that “system” had a racially disparate impact on blacks and Latinos, in violation of a key section of the 1964 Civil Rights Act and its 1991 amendment. The U.S. Justice Department, however, did not see it that way. With Adam, another O&G partner, Ossai Miazad, and I taking or defending a seemingly endless number of depositions in Washington and New York, writing innumerable briefs, and with each side employing experts to bolster its arguments, we have beaten back the Justice Department’s attempts to dismiss our case, but the battle goes on. If we prevail, that could be “the next big thing” in racial discrimination litigation, as legions of private employers apply equally arbitrary and discriminatory means to screen their job applicants. That means we may be able to begin the process of opening up hundreds of thousands of jobs to people of color as well as to whites who also find themselves rejected for work, perhaps for life, based upon something they did, or maybe even didn’t do, in their younger years.
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It is probably fairly common for people still working in their late seventies to live in the present but think often about the past. Bill Rutherford, of course, is a fixture in my mind, a reminder of what set me on this journey. Bob Carter is also a constant presence, as are attorneys and clients who have been with me in my courtroom battles.
Many years after we lost the Cincinnati school desegregation case, I attended an NAACP LDF celebration honoring Bob. There, I ran into Nathaniel Jones, who had replaced Bob as the NAACP general counsel, before becoming a U.S. Sixth Circuit Court of Appeals judge. He said he had become friendly with Judge Peck, who had been elevated to his court. Judge Jones said that Peck had told him that in all his years as a district-court judge, the only decision that he regretted was the one he rendered in the Deal v. Cincinnati Board of Education case.
“You should tell Judge Peck he should go public. It might have some impact,” I replied.
I have no idea whether Judge Jones did that, but I do know that Peck never went public. So his one big mistake died with him, and another generation of children has paid the price. If Peck had come clean, in all probability that would have changed nothing. But change, if it is to come, must start somewhere, and Peck’s silence was a lost opportunity to start the conversation.