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Wisconsin Spotlight | Jan. 14, 2021

MADISON — The Wisconsin Institute for Law & Liberty is warning the city of Madison that its Police Civilian Oversight Board aimed at equity is imposing unconstitutional racial quotas.

On Wednesday, WILL filed a notice of claim with the Madison City Council and Mayor Satya Rhodes-Conway, challenging the city’s decision to require nine of the 11-member oversight board to belong to specific racial groups — “a clear violation of the Constitution’s ban on racial discrimination.” The claim initiates a 120-day timeline before a lawsuit against the city can commence. 

The Milwaukee-based civil rights law firm is representing seven Madison citizens, including conservative commentator David Blaska, “who is white, applied for a position on the Board and was rejected.”

“While it may represent the current zeitgeist, the City of Madison’s decision to insert racial quotas and classifications into law violates the Constitution’s ban on racial discrimination and equal protection before the law,” said Rick Esenberg, WILL’s president and general counsel. “The City of Madison may think they are advancing racial progress, but this policy is, in effect, cloaking deeply regressive policies of racial discrimination.”

The controversial board and an “independent monitor position” grew out of a report and recommendations on the Madison Police Department. While some residents have made claims of systemic racism in Madison law enforcement, the report found the department is “far from ‘a Department in crisis.’” It also concluded that the department is not plagued by improper use of force.

In September, the City Council enacted an ordnance requiring four members of the Police Civilian Oversight Board to belong to the following racial groups: “African American,” “Asian,” “Latinx,” and “Native American.” The City Council subsequently required “at least 50% Black members.”

The combined effect of the city’s ordinance and official policy, according to the claim, is that the 11-member Board must be made up of six black members, an Asian, one member identifying as “Latinx, and one Native American member. That leaves two open spots for individuals who do not identify as members of the pre-conditioned categories.

“Madison’s racial classifications—enshrined in City law and the official policy of the City—are unconstitutional, offensive, and repugnant to basic American values,” the claim states.

The letter cites the constitution’s guarantee of equal protection, as well as the 1995 U.S. Supreme Court case pushing back on racial classifications.

“Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that [racial] classifications ultimately have a destructive impact on the individual and our society,” Justice Clarence Thomas wrote.

The court and others have found that such racial classifications must be “narrowly tailored” to further “compelling governmental interests.”

City officials have not identified compelling governmental interest that justify discriminating against board applicants based on their race, WILL’s claim states.

City Attorney Michael Haas said the composition of the Civilian Oversight Board was “intended to ensure broad and diverse representation from the Madison community.”

“The Common Council expressed its interest in encouraging participation on the Board from those who have experienced, or who have worked with communities that have experienced, interactions with law enforcement,” Haas said. 

“We are particularly disappointed because Madison’s new racial quotas violate the City’s own ordinances, policy, and the longstanding judgment of the Dane County Circuit Court,” WILL’s claim states.

According to a city general ordinance, Madison’s policy is to provide equal opportunities and access to “all persons from all segments of the Madison community without regard to their race.”

At its Oct. 8 meeting, the City Council unanimously confirmed the first appointments to the newly established board, members who fit into the city’s race-based categories.

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