Today CIR filed a petition for writ ofcertiorari in the United States Supreme Court on behalf of our client Timothy Pope, seeking review of the question of whether flawed judicial consent decrees from the distant past can be used to shield government agencies from liability for having violated constitutional rights.
In 2002, Pope, a correctional officer working for the State of Alabama, was denied a promotion because he was white. Under the terms of a consent decree that a federal court had entered in a case in 1970, the state was required to favor black applicants. The federal district court hearing Pope’s own lawsuit found this judicial order violated the equal protection clause of the Fourteenth Amendment and dissolved it. But it also held Pope was not entitled to damages, because the agency’s discrimination was required by the court order in that other case. The court’s logic? However misguided, outmoded, or downright illegal a given consent decree may be, it still gives government a “compelling interest” in discrimination — and thus safe harbor from the commands of the Constitution. On appeal, the Eleventh Circuit Court of Appeals affirmed the decision of the district court.
Numerous consent decrees, often dating from the heady judicial activist days of the 1970s, continue to mandate that states apply unconstitutional employment preferences. We think the Eleventh Circuit’s view of their legal effect clearly runs counter to prior Supreme Court pronouncements and the holdings of other circuits. We are asking the Court to resolve the circuit split and broadly hold that a discredited and dissolved consent order from the days of polyester and paleoliberalism (or any other time, for that matter) should not shield a state from liability for violating the Constitution.
- Read CIR’s petition