In Search of a Right

The 13-year struggle of targets in a racial dragnet reveals the elusive nature of justice

The plaintiffs' petition to the U.S. Supreme Court—to hear what had become known as the test case about racial profiling—was denied. The rejection came less than a month after the 9-11 attacks, as law enforcement agents across the country jailed or interrogated thousands who appeared to be Arab or Muslim. Attorney Fein believes the timing was a factor in the denial.

State court posed another hurdle. Never had New York's courts allowed plaintiffs alleging purely constitutional violations to sue the government for money damages. The thought was that money would cheapen the constitutional principles involved. But the Oneonta plaintiffs had no other option. They could not take the traditional route of demanding that the violation be stopped—it had happened years before.

As their lawyers duked it out with the state's lawyers in over 50 motions and court appearances, the plaintiffs grappled with anger and disbelief. The police sweep had been an outrage, but the rejection by the courts was coldly stunning.

Oneonta student rally, September 1992
photo: Bruce Endries/The Daily Star
Oneonta student rally, September 1992

If the constitutional guarantee of racial equality could not be invoked to avenge his degrading treatment at the hands of Investigator Chandler and his troops, Hopeton Gordon wondered if it was good for anything. In September 1992, he had shared his feelings at a rally of students. "I'm not stupid. I might be black, but I'm not dumb. I felt humiliated," he told the crowd. As the years went on, Gordon earned his master's degree in public administration from New York University, got married, and had children. Today he works for the city's Health and Hospitals Corporation.

He recently told of being pulled over by police "for being a black man driving an Acura." His young daughter had been in the back seat. She said, "Daddy, are you going to jail?" Gordon recalled. "We take it for granted that this is 2005, but I tell my girls to be careful not to put themselves in a situation where they might get arrested or in trouble with the cops. You come to expect that you're going to be harassed."

Plaintiff John Mason, 32, who grew up in Hollis, Queens, and is now a technology consultant at JPMorgan in Manhattan, says he has been pulled over "15 to 20 times in my life, between driving up to Oneonta for school and visiting my mom in Pennsylvania."

He calls the police conduct in Oneonta "arrogant," warning that a lack of punishment will embolden racist officials everywhere. "We thought, for sure, there was going to be hell to pay, that heads would roll at the police department. But here we are, 13 years later, and nothing," says Mason. "There's a part of these people that is ingrained, where these guys do these things unabashed and undaunted, and then they say, 'We did it. So?' In order for them to do what they did in Oneonta, they had to have thought, 'There are going to be no consequences. These are just black folks.' "

Other plaintiffs share stories about being pulled over by highway police, being frisked without cause by police, and constantly having to deal with suspicions or stereotypical assumptions at work. They say their Oneonta experience often comes back in these moments as their lesson on just how bad such tensions can get.

Even as they endured the struggles of racism in their daily lives, the plaintiffs won—to the astonishment of legal observers—that historic break at state court that they needed. Faced with turning the Oneonta dragnet victims away or revolutionizing state law, in 1996 New York's Court of Appeals chose the latter and ruled that the plaintiffs could demand monetary compensation for their constitutional claims. But it would be another eight years before a judge would tell the government defendants that they had run out of appeals and that they should prepare themselves for trial.

More than victory

The Court of Appeals may have shocked traditionalists by allowing money talk to enter the lofty constitutional debate, but the plaintiffs are demanding still more. Not only has each member of the class claimed $75,000—not pennies, but not extravagant in view of their ordeal—but the plaintiffs have from the beginning made some unusual demands, demands that look more like public reform than private litigation.

One of the earliest desires of the student plaintiffs was for the state university system to provide free tuition to one qualified person—a relative or community member—per plaintiff, on top of the damages claimed. They thought it apt, since they were alleging that the state had deprived them of their right to enjoy an education just like any white student. The demand was quickly pooh-poohed by legal experts, since court remedies must typically be linked specifically to the plaintiffs. The state rejected the idea.

Thirteen years later, the plaintiffs are not thinking any smaller. Although he says the money is negotiable, Fein calls one novel and provocative demand a "critical" part of any conclusion: the creation of a statewide ban on police misuse of race, along with training and discipline to instill racial awareness into policing culture.

"We need a change on the books," says plaintiff Brown. "I don't think the cops would hesitate to do this again, generate a list based on race. Not after 9-11."

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