Judge: Metro in contempt for using arrest records in hirings

Wednesday, December 15, 2010 at 3:23pm

City government has repeatedly violated the terms of a nearly four-decades-old settlement, a federal judge ruled this week.

U.S. District Court Judge Aleta Trauger found Metropolitan Nashville government in contempt of court for not following a consent decree agreed to in a 1973 employment-rights case. But she acknowledged it may be time to rework the terms of that deal.

The decree essentially prohibited Metro from using arrest records in making hiring decisions. An obscure and largely ignored settlement, Metro stopped complying with the order in the late 1970s without much attention. In 2006, a suit was filed alleging violation of the decree and claiming widespread contempt of federal court by Metro government.

Trauger agreed that Metro government was indeed in contempt but held back on ordering relief, because the violation was so lengthy and potential so widespread that finding any one person harmed by the contempt could be an expensive and exhaustive process.

Instead, Trauger ordered the parties to spend four months hammering out an alteration to the consent decree in the face of nearly 40 years of jurisprudence and societal change. In large part, this relates to the city’s argument it cannot possibly comply with the ’73 order because federal law — particularly Head Start — requires background checks on potential employees to determine if they have a history of child abuse or sex crimes.

In her opinion, Trauger acknowledges the difficulties of complying with such a blanket order.

“[T]here is a huge disconnect between the scope of the 1973 Consent Decree and the right that the plaintiff maintains it is designed to protect," she writes. "While [seminal employment rights case] Schware indicates that it is constitutionally improper for a government actor to unreasonably rely on arrest records in making an employment decision, the 1973 Consent Decree prohibits Metro from even obtaining those records. If the potential violation of the plaintiff’s rights represents a small campfire, the 1973 Consent Decree is an industrial-strength fire hose.” 

Sue Cain of the Metro Department of Law said the city will work with the plaintiffs in the case to develop a new policy. 

4 Comments on this post:

By: Nathe on 12/16/10 at 8:34

There is a very huge difference between "Arrest Records" and "Court records of Conviction". This is the USA and last I remember, one is supposed to be innocent until found guilty in a court of law. To be suspected or even targeted by law enforcement - despite the fact that members of this group consider that to equate with guilt, does not meet the test of the law.

For a judge, and judge to step back from ordering relief for blatant disregard for the courts injunction NOT to use arrest records just because the finding show that the Metro Government has been trampling on every applicant's explicit rights and should be severely liable to all the individuals is simply saying the law is the law unless you are above the law (i.e. in power). He should lose his judgeship.

Being arrested IS NOT the same as being guilty. If you don't think so, then you are one of the fortunate who has not experienced false or unfounded arrest and are full of yourself.

Nathan in Madison TN

By: Nathe on 12/16/10 at 8:41

er, in the second paragraph I meant to say:

For a judge, any judge to step back from ordering relief...

Nathan in Madison TN

By: govskeptic on 12/16/10 at 8:59

Open Conviction records should certainly be part of any hiring decisions
and it shouldn't surprise anyone that the 1973 not to use such was ever
even part of an agreement! I have found Judge Trauger to be the most
sensible Federal Jurist in her ruling of any Federal District Judge in my
life. Surely wish there were more, instead of so many totally off the wall
we so often read about!

By: jim28373 on 12/16/10 at 4:37

to govskeptic- it was open arrest records not open coviction records. A big difference.