Wednesday, March 6, 2002

The Justice Department and Department of Army attorneys are reviewing a federal judge’s ruling that struck down the Army’s officer promotion policy on grounds that it discriminates against white male officers.
The policy was declared unconstitutional by U.S. District Court Judge Royce C. Lamberth because it gives preference to women and minorities in promotions while passing over qualified white male officers.
Specifically, the judge ruled that the policy urges the Army’s promotion boards to consider the past and personal discrimination faced by women and minorities but it does not order the boards to also consider whether there has been discrimination against white men.
“This undeniably establishes a preference in favor of one race or gender over another, and therefore is unconstitutional,” Judge Lamberth wrote in his opinion.
Officials from both departments said yesterday that they will review the judge’s opinion before they decide whether to appeal the ruling. They also said the ruling refers to a policy that is no longer used by the Army.
“This case involves the Army’s former equal-opportunity instructions, which have not been used at centralized selection boards since September 1999,” said Lt. Col. Tara Osborn, chief of the military personnel branch with the Army litigation division.
The ruling came in a case involving retired Lt. Col. Raymond Saunders, a white officer who claimed he was denied promotion to the rank of colonel in 1996 and 1997. He sued the Army in 1999, claiming that its equal-opportunity policy which it used twice to determine whether he should be promoted favored minority and female officers.
Monday’s decision could affect thousands of Army officers passed over for promotion in the past six years, and even affect equal-opportunity policies of other branches of the military, according to lawyers who specialize in military law. The ruling would not, however, affect any officers who have already been promoted, they said.
“This is a landmark case, in that a lot of other people are going to be using this as a precedent,” said Christopher Sterbenz, an attorney who represents Col. Saunders. Mr. Sterbenz also represents nine other white officers in similar complaints.
“This case teaches how the military treats its promotions,” said Eugene Fidell, a military law lawyer. “This case will have an enormous impact on past passovers for promotions.”
The policy struck down by the judge instructed the boards to be aware of any past discrimination practices when considering promotions, “whether intentional or inadvertent in the assignment patterns, evaluations, or professional development of all officers.”
But the policy also warns board members against making a person’s racial background the basis for promotion. “The foregoing guidance shall not be interpreted as requiring or authorizing you to extend any preference of any sort to any officer or group of officers solely on the basis of race, ethnicity or gender,” it states.

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