Who’s Really Being Mugged?

by Witold Walczak, Legal Director, ACLU of Pennsylvania

While recently browsing books on the Black History Month display at the local library, I stumbled across Ann Coulter's 2012 book Mugged, subtitled Racial Demagoguery from the Seventies to Obama.  I had never read Ms. Coulter or, frankly, paid attention to anything she said on TV.  But now intrigued, I read the first chapter.  

Ms. Coulter's theory is that “there had been a real fight over civil rights for a century .... but by the end of the sixties, it was over. Segregated violence was gone, and all public places integrated.” Wow, who knew? She then excoriates “liberals” for a “ritualistic reenactment of the struggle for civil rights - long after it had any relevance to what was happening in the world.”  In essence, she claims race discrimination ended decades ago, and that ever since, liberals have been simply demagoguing on civil rights for electoral gain. 

My favorite example of Ms. Coulter’s claim about how “phony” the civil rights struggle has been relates to New York City, where she says “there was never any public segregation” and there were no “whites only” water fountains or lunch counters.  So there’s no racial discrimination in NYC.  Huh.  Again, who knew?  Certainly not the young black and Latino men who are disproportionately stopped and frisked by NYC police. Though they account for only 4.7 per cent of the city’s population, black and Latino males between the ages of 14 and 24 accounted for 41.6 per cent of stops in 2011. Ninety per cent of the men stopped were innocent.

What Ms. Coulter doesn't get, or acknowledge, is the distinction between de jure and de facto discrimination.  As a lawyer from a top law school, she should understand this distinction because it is Con Law 101.  De jure, according to Black’s Law Dictionary, means “anything that exists in law or formal, legitimate, moral, or rightful effect.”  Slavery and Jim Crow laws were forms of de jure discrimination, and such discrimination in this country is largely a historical relic. De facto is the opposite of de jure.  It means “in fact, in deed, actually.”  Such discrimination may be harder to identify, but it is no less damaging.  For instance, applying a different standard to stop and frisk individuals based on skin color is illegal everywhere, including in New York City.  Yet the grossly disproportionate stopping and frisking of blacks (and Latinos) by the NYPD is a form of racial (and ethnic) discrimination, whether Coulter admits it or not.

                                                           

As I was reading (and seething), I wondered what Ms. Coulter would say to James Foster and Mike Sharp, two plaintiffs in Foster v. City of Pittsburgh, our lawsuit alleging race discrimination in hiring by the Pittsburgh Bureau of Police (PBP).  James is a mental-health professional on the verge of a master's degree, a father and a black man who grew up in Pittsburgh.  Mike is a graduate of Indiana University of Pennsylvania’s prestigious Police Training Academy, has been a police officer in suburban Pittsburgh departments for over five years, and also grew up in Pittsburgh.  They are nice, smart, physically fit black men who want to perform a dangerous public service but who were rejected, without reason, for police officer positions in the PBP.  And they are not alone.

Back to Ms. Coulter’s hypothesis, the city doesn’t have a rule or policy institutionalizing race discrimination.  And publicly, they profess frustration at not being able to find more “qualified blacks.”  So, according to Ms. Coulter, there must not be race discrimination.  Or any problem.  This is just the ACLU demagoguing for ... hmmm.  What could we possibly get out of this?  Maybe justice and fairness?  Let’s look at some Pittsburgh police hiring facts.

Despite race-neutral policies, it’s impossible to explain the city’s hiring rate over the past dozen years as anything other than discriminatory. Since 2001, only 15 of the 406 officers hired by the city are African-American, which is less than 3.7 per cent of the total.  It’s worse if you look only at the figures since 2007; six out of 226 hires are African-American, which is under 2.7 per cent.  

Whether this is illegal discrimination will be decided by the court in Foster v. City of Pittsburgh, but some basic facts begin to show why the city’s claim that they aren’t discriminating rings hollow.  The city’s most recent decennial census shows that African-Americans make up about 27 per cent of Pittsburgh’s population.  A more refined measure, calculated by federal agencies, based on education and other factors, shows that the percentage of Pittsburgh’s African-American labor force qualified for “sworn protective service” employment, a.k.a., police, is about 20 per cent.   The city’s response to the disparity has been the same for many years - blacks are just not applying in high enough numbers or we can’t find “qualified” black applicants.  

Using data obtained through public records requests, the ACLU-PA learned that the applicant pool in 2009 for police included about 20 per cent African-American candidates.  When we looked more closely at each step of the city’s selection process, a disproportionate number of blacks were rejected at every stage.  The ACLU’s investigation found irregularities, deviations from practice, gamesmanship and simply inexplicable (and unexplained) decision-making at each stage.  African-Americans, as well as Latinos and women – two other groups that historically have suffered discrimination – seemed to be excluded, suspiciously in almost every instance.

The rejected applicants we've met seem particularly worthy of a Pittsburgh police badge.  Like James and Mike, they are educated, some with advanced degrees, engaged in community service, who have lived solid lives.  They have strong work histories and several are already police officers in suburban departments.  It is hard to fathom why these folks, all members of minority groups, cannot get a job with the Pittsburgh police when so many white candidates with questionable records are getting in, and then failing out of the police academy or being fired for misconduct on the job. 

If groups like the ACLU did not allege discrimination and take legal measures to stop it, the practices would continue.  The discriminatory police-hiring in Pittsburgh has continued for more than a decade.  The harm to victims, like James, Mike and others, is not different because it’s the more subtle de facto discrimination than the in-your-face de jure discrimination.  Either way, they aren't getting hired or getting a job that, based on merit, they deserve.  The harm and the pain are the same.

I don’t know how Ms. Coulter would respond to my musings.  She’d probably find reasons why these applicants weren't worthy, which is how the city is expected to defend the case.  Or she might say it’s the free market.  Or because there is no purposeful discrimination – it just happens – too bad, life is unfair.  But to harken back to her book title, if you get mugged, the pain and injury are the same whether the mugging was part of a carefully planned operation or done on a whim by some punk.  You've still been mugged.  The same is true for James and Mike and many other people of color. They have unfairly been mugged based on an immutable physical characteristic by systems that have not, unfortunately, been purged of bias and discrimination. 

This post is part of a series honoring Black History Month.