Legal challenge claims new Madison Police Civilian Oversight Board used illegal racial quotas

MADISON, Wis. — Part of Madison’s new Police Civilian Oversight Board is being challenged by the Wisconsin Institute for Law & Liberty for imposing what it calls “unconstitutional racial quotas.”

WILL filed a Notice of Claim on Wednesday on behalf of seven residents in Madison. They believe the city violated the Constitution’s ban on racial discrimination by requiring nine members of the eleven-member Police Civilian Oversight Board belong to specific racial groups.

“The City of Madison may think they are advancing racial progress, but this policy is, in effect, cloaking deeply regressive policies of racial discrimination,” said WILL President and General Counsel, Rick Esenberg said in a news release.

The Madison Common Council approved an ordinance in September to create the board, and accepted nominations for the board positions after that. Nine community organizations nominated three people each, with the board requiring four members of the Police Civilian Oversight Board belong to the following racial groups: African-American, Asian, Latinx and Native American. The first round of appointees were named to the board at the end of September.

News 3 Now asked Madison city attorney Michael Haas about the legality of requiring a certain number of people on the board to be people of color back in September, when the board was announced.

“Because the case law prohibiting racial quotas relates to educational and employment opportunities, we cannot conclude for certain that a court would extend similar analysis to such requirements for a Civilian Oversight Board,” Haas said at the time. “There are several potential distinctions that can be drawn between purpose and legality of the educational and employment affirmative action programs at issue in previous cases and the purpose of ensuring a diverse police oversight board, which is to enhance overall public safety by ensuring that the Board includes representation from historically disadvantaged communities and those who have experienced interactions with MPD.”

The Board is charged with appointing an independent police monitor, conducting police assessments and making recommendations on use of force and officer discipline. However, the Board will not have the authority to actually discipline or fire officers — that responsibility will still lie with the city’s Police and Fire Commission.

City leaders have received WILL’s correspondence and are processing it in accordance with state law and city procedures.

“The composition of the Civilian Oversight Board was intended to ensure broad and diverse representation from the Madison community,” said Madison City Attorney, Michael Haas to News 3 Now.

“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.”

In this case, WILL’s Notice of Claim starts a 120-day timeline before a lawsuit against the City is filed.