UNIVERSITY PARK, Pa. – The U.S. Court of Appeals for the First Circuit agreed with an argument made in an amicus curiae brief filed by Penn State Law’s Civil Rights Appellate Clinic when it recently remanded a case for a jury trial. The appeals court vacated the lower court’s summary judgment in Jones v. City of Boston, maintaining that a jury could find that an alternative to the hair follicle drug testing the city performed on its police officers could have met the city’s needs.
The clinic’s brief supported the claims of disenfranchised African American officers at the Boston Police Department that they were adversely affected by hair follicle drug testing that generated false positives indicating ingestion of cocaine. There are serious questions in the scientific community regarding whether hair follicle testing can distinguish between actual drug ingestion and external contamination.
The officers in Jones were appealing a summary judgment decision granted by the Federal District Court. The plaintiffs introduced evidence demonstrating that hair testing has a greater likelihood of showing false positives for minority officers, but also that hair testing is unreliable in general, a finding supported by the rulings of the Massachusetts Civil Service Commission.
The clinic supported the plaintiffs’ position in its brief, and further argued that the court did not apply the proper standard for summary judgment and failed to consider what Congress aimed to achieve when it codified disparate impact law in Title VII of the Civil Rights Act.
The First Circuit Court agreed with the argument in the clinic’s brief that there should be a full hearing on whether there are alternatives to hair follicle testing, namely urine testing, that would not have a disparate impact on minorities.
“The record contains sufficient evidence from which a reasonable factfinder could conclude that hair testing plus a follow-up series of random urinalysis tests for those few officers who tested positive on the hair test would have been as accurate as the hair test alone at detecting the nonpresence of cocaine metabolites while simultaneously yielding a smaller share of false positives in a manner that would have reduced the disparate impact of the hair test,” Judge William J. Kayatta Jr. wrote for the court.
“These are extremely fact -driven cases, so it is essential that the rules of summary judgment are strictly adhered to so that victims of employment discrimination claims are not dismissed before all the evidence is before the court,” said Michael Foreman, director of the Civil Rights Appellate Clinic. “The students who worked so hard on the brief now appreciate not only the importance of the substance of the law, but that process matters as well.”
The clinic submitted the Jones amicus brief on behalf of numerous organizations committed to the rights of minority workers, including the National Employment Lawyers Association, the Equal Justice Society, Justice at Work, and the American Civil Liberties Union of Massachusetts.
The Civil Rights Appellate Clinic, one of nine legal clinics available to Penn State Law students, provides intensive training in appellate advocacy by involving students in noncriminal civil rights cases before state appellate courts, federal courts of appeal, and the U.S. Supreme Court. Students conduct research, draft briefs, assist in case selection, develop substantive legal positions, and plan appellate strategy. The clinic is an exciting opportunity for law students to learn appellate advocacy and get involved in federal civil rights cases.