One current and two former police officers failed to prove they were discriminated and retaliated against by the Michigan State Police (MSP) and its director because they were White men, a federal judge has ruled.
Michael Caldwell, Robert Hahn and Michael McCormick filed separate federal lawsuits last year claiming their employer’s diversity initiative was designed “to displace white males at all levels of the MSP with minorities and females.”
However, District Court Judge Robert J. Jonker for the Western District of Michigan said in dismissals filed on Monday that Caldwell, Hahn and McCormick did not provide direct evidence of race or gender discrimination by the MSP and its director Col. Joseph Gasper.
The MSP, like other law enforcement agencies across the country, has made attempts to address complaints about systemic racism and lack of diversity throughout the ranks by increasing cultural competency training and initiatives to promote and recruit more people of color. Yet, some White officers in San Francisco and New London, Connecticut, have pushed back by filing a complaint and lawsuit in response, claiming bias.
The judge in the Michigan ruling went on to say Caldwell and Hahn did not “demonstrate the reasons underlying their respective disciplines were pretext for unlawful race and gender discrimination or that their discipline was retaliation for their complaints about the administration’s diversity policies.”
Caldwell and Hahn filed separate lawsuits, but the judge decided to rule on their cases together because their claims were similar.
McCormick’s case was dismissed because he failed to provide direct evidence of race or gender discrimination, according to the judge. McCormick also put in an application for post commander in May 2019 but withdrew his application before it could be considered. The judge said this move by McCormick dismantled his argument that he was passed over for a promotion “in favor of a racial minority because of discriminatory and retaliatory animus due to his race” and gender.
Caldwell and Hahn were placed on administrative leave in March 2020 as a result of an internal investigation that revealed they “violated department policy related to promotion and selection process” when a subordinate’s request for a transfer was denied.
Caldwell was demoted from captain to inspector and retired in April. Hahn was fired as an inspector and McCormick remains employed with the MSP as a lieutenant, according to James Fett, the attorney for all three plaintiffs.
Gasper was appointed director of the MSP in 2019 by Gov. Gretchen Whitmer. One of his top priorities has been to diversify the agency, and he’s been frank about the department’s need to improve recruitment and promotion of minority officers.
Gasper’s diversity directive called to “set aside 25% of its positions for minorities and 20% for females throughout its ranks,” according to the lawsuits. (MSP described that claim as an “inaccurate statement of fact” in an answer to the lawsuits.)
In at least three director meetings, Gasper has allegedly “spoke at length” about the agency’s affirmative action and diversity initiatives, saying “the MSP was ‘way too White and way too male.’”
Gasper said in a statement on Tuesday, “there never was, or will be, employment, promotion, retention, or any other personnel practice decisions made motivated by bias or based on discrimination. We are pleased with this conclusion and remain committed to supporting a work environment with equal opportunity for all of our members.”
Fett told CNN on Wednesday that “we’re very disappointed in the judge’s decision” and believes “with all due respect the judge got it wrong and we’re going to appeal.”
In 2019, a Detroit Free Press investigation into a violent traffic stop involving a Black motorist called the culture of the department into question. Gov. Whitmer expressed concerns about the incident, which she called “‘very serious,’” and touted Gasper’s focus on racial equity and ensuring the department better reflects the diversity of the state.
Reverse discrimination lawsuits date back to the 90s
As far back as the early 1990s, reverse discrimination lawsuits have been filed against law enforcement agencies across the country that have implemented affirmative action initiatives.
In 1995, 99 White male Maryland State Police officers settled a lawsuit based on allegations they were passed over for promotions in favor of minority colleagues who had lower scores on promotion exams, according to the Baltimore Sun. During that same period, officers filed similar lawsuits in Grand Rapids, Michigan and Chicago, Illinois, with the judge finding in their favor, the Sun reported.
Nearly 20 years later, a St. Louis police officer was awarded nearly $800,000 in 2013 in a discrimination lawsuit, claiming that a position he sought was awarded to a Black woman he thought was less qualified, according to a report from the St. Louis Dispatch. And in 2019, 12 White male San Francisco police officers sued the department for discrimination, according to the San Francisco Chronicle. The officers who claimed they were passed over for promotions are suing the city for race and gender discrimination. The lawsuit is still pending. A 13th plaintiff, who was retired, said she also was denied a promotion because she is a White lesbian.
Fett, the attorney for the Michigan police officers, who has litigated affirmative action and diversity program cases in Michigan since 1993, says that diversifying the MSP with more Black men and women is virtually impossible when there are not enough applicants.
CNN has reached out to the MSP for further comment.
Michigan is approximately 74% White; 13.7% Black; about 5% Hispanic or Latino; 3% Asian as well as .6% American Indian and Alaska Native+, according to the US Census.
Within the total group of 1,900 MSP officers, there are 900 White men and 88 White women; 51 Black men and seven Black women; 20 Hispanic men and no Hispanic women; six Asian men and two Asian women and two Arab men; six Native American men, according to the Michigan Commission on Law Enforcement Standards’ demographics as of June 2020. Yet, over 800 men and women in the MSP did not report their race or ethnicity.
Fett told CNN that Gasper’s efforts “to match up the demographics of the state with the demographics of his workforce and that’s blatantly illegal and has been for years … it’s been illegal now since at least 1986.”
Legal experts criticize reverse racism claims
Michigan Attorney General Dana Nessel, whose office represented the MSP in the lawsuit, said the state’s diversity efforts are not illegal.
“These suits were an attempt to undermine MSP’s efforts to ensure the force properly represents the communities it serves. That doesn’t amount to discrimination – it’s responsible community policing,” she said.
Other legal experts have long criticized “reverse discrimination” lawsuits.
Historically, Black police officers have sued their departments while making “some of the same claims” as Caldwell, Hahn and McCormick – however, these Black officers actually had tangible evidence to support their allegations, according to Delores Jones-Brown, a former prosecutor and Professor Emerita at John Jay College of Criminal Justice.
Jones-Brown said Judge Jonker made the right decision in this case, adding that “to make a legal claim doesn’t mean that you can support that claim.”
“This is a situation where claims were made and not only did they fail to support those claims, but there seems to be some evidence that actually counters the claims that they’ve made,” she said, referring to the agency’s findings against Hahn and Caldwell as a result of the internal affairs investigation.
Policing, as a profession, has been “riddled with a long history of anti-Black discrimination” both internally and externally, Jones-Brown told CNN. At a time when the nation is attempting to address the structural racism that has existed since the country’s founding, many White officers are “finding themselves in a position to take advantage of this moment in history,” she added.
“To make a claim of reverse discrimination without support for that claim, and for there to be in existence evidence that you have problems that are not associated with your race, it’s associated with your efficiency and efficacy as a police officer, it confuses the public,” she said.
Throughout the years, pushback against “affirmative action has been that it creates a benefit for people of Black racial identity and other minority status that the general public may believe that they don’t deserve,” Jones-Brown said. But affirmative action law explicitly says that Black people, Native Americans and others of ethnic minority groups that “the law has intentionally harmed by racial exclusion, deserve to be given preference when they are qualified for jobs.”