“Racially Motivated” Hiring Hurting White Firemen Challenged by Black Activists in Court

Project 21 Black Leadership Network Joins Pacific Legal Foundation, Others in Charging the City of Buffalo, New York “Allowed the Fire Department’s Promotional Lists to Expire, Because the Next Applicants in Line for Promotion Were all Caucasian”

Washington, D.C. / Albany, NY – Black activists and legal experts with the Project 21 leadership network are supporting white firefighters in court against a city’s “racially motivated” decision that deprived the white firefighters of promotions they earned.

“It is axiomatic that city government can’t cancel promotions because they don’t like the race of the applicants – black or white. In 2014, one would think people wouldn’t have to go to court over such a decision,” said Project 21 Co-Chairman Horace Cooper, a legal commentator who taught constitutional law at George Mason University and a former leadership staff member for the U.S. House of Representatives.

In the case of Margerum v. City of Buffalo, which was argued this week before the Court of Appeals for the State of New York, Project 21 joined an amicus curiae (“friend of the court”) legal brief filed with the court that was written by the Pacific Legal Foundation and also joined by the Center for Equal Opportunity, Individual Rights Foundation, Reason Foundation and Cato Institute. The brief charged city officials in Buffalo, New York “allowed the fire department’s promotional lists to expire, because the next applicants in line for promotion were all Caucasian and the City sought to avoid disparate impact litigation.”

“Every applicant in Buffalo – and everywhere else, for that matter – should expect hiring or promotion decisions will be made on the merits and not be offered or withheld based on their skin color,” added Project 21’s Cooper. “Moreover, it should be plainly known that we don’t solve the problem of racial discrimination by discriminating on the basis of race.”

Project 21’s legal brief “examines the conflict between disparate impact theory and the Equal Protection Clause [of the U.S. Constitution] in cases such as this one, where government discriminates against people of one race, in order to avoid an adverse impact on people of another race.” In this case, in which white firefighters were deprived of career advancement, it is noted that “the City decided to allow the Fire Department’s promotional eligibility lists to expire. The City’s decision was racially motivated: the next applicants in line for promotions were Caucasians, and the City feared a disparate impact challenge from the black firefighters had the Caucasian firefighters been promoted.”

In 2002, action on civil service exam results was suspended because the 13 Buffalo firefighters listed as eligible for promotion were all white. After several years of intentional delay, the list was allowed to expire in 2005 and the promotions were not awarded because the city’s commissioner of human resources deemed the test results were “suspect.” A lawsuit was filed by the firefighters in 2007 against the city, the fire department and the commissioner.

The firefighters have won their case in the lower courts, but the city has repeatedly appealed the case. The Court of Appeals is New York’s highest court.

A similar case involving white and Hispanic firefighters in New Haven, Connecticut, Ricci v. DeStefano, was decided in favor of the plaintiffs in 2009. The Project 21 legal brief draws upon the lessons of that case, noting that it “demonstrates how the specter of disparate impact litigation leads government employers to engage in unconstitutional race-conscious decision making in an attempt to avoid liability for such claims.” The brief added:

The City would not have let the list expire had the next eligible candidates on the list been African-American firefighters. Thus, the City made the decision to treat candidates differently because of race and fear of disparate impact litigation. Neither reason justifies the resulting intentional discrimination against those firefighters who excelled on the promotional examination.

“In the Ricci case, the U.S. Supreme Court showed how when government tries to remedy a perceived racial disparity that it can actually violate the Equal Protection Clause of the Constitution,” said Project 21 Co-Chairman Cherylyn Harley LeBon, a former senior counsel to the U.S. Senate Judiciary Committee. “Two wrongs don’t make things right, and the Buffalo firemen in the Margerum case now have consistently proven in the lower courts that city officials denied them the promotions they deserved because they were all white. A merit-based promotion must not be sidelined because it is not a diverse promotion list, especially when it involves deserving first-responders like it does in this situation. These men put their lives on the line for us, and they should not find their careers or earning potential compromised by a bean-counting politician.”

A copy of the Pacific Legal Foundation-filed brief in the case of Margerum v. City of Buffalo on which Project 21 is a co-amici can be downloaded at http://object.cato.org/sites/cato.org/files/pubs/pdf/margerum-ny-ct-app.pdf

Project 21 involves itself in significant legal cases at the federal and state levels. It participated, for instance, in the cases of Schuette v. Coalition to Defend Affirmative Action, Fisher v. University of Texas at Austin and Shelby County v. Holder in particular over the past two terms of the U.S. Supreme Court as well as Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama and Texas Department of Housing and Community Affairs, et al. v. The Inclusive Communities Project, Inc. during the Court’s current term. Over the years, Project 21 has been involved in over a dozen legal briefs. Project 21 legal experts and other members have discussed these cases in hundreds of media interviews and citations.

In 2014, Project 21 members were interviewed or cited by the media over 2,000 times, including on TVOne, the Philadelphia Inquirer, Fox News Channel, MSNBC, the Orlando Sentinel, Westwood One, St. Louis Post-Dispatch, SiriusXM satellite radio and 50,000-watt talk radio stations such as WHO-Des Moines, KOA-Denver, WGN-Chicago, WBZ-Boston and KDKA-Pittsburgh, on topics including civil rights, entitlement programs, the economy, voter ID, race preferences, education, illegal immigration and corporate social responsibility. Project 21 members also provided substantial commentary regarding the Trayvon Martin, Michael Brown and Eric Garner judicial proceedings. Project 21 has also defended voter ID laws at the United Nations. Its volunteer members come from all walks of life and are not salaried political professionals.

Project 21, a leading voice of black conservatives for over two decades, is sponsored by the National Center for Public Policy Research (https://nationalcenter.org).

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