Judge questions if racial bias is inherent in Cedar Rapids Citizens Review Board rules

CEDAR RAPIDS — The Cedar Rapids man asserting that a rule about who can serve on the city’s police Citizens Review Board is racially discriminatory is asking a federal judge to bar enforcement of the rule pending the outcome of his lawsuit.

Kevin Wymore, who is white, is suing the city and Mayor Tiffany O’Donnell over an ordinance that requires five of the nine-member board identify as people of color.

Although U.S. District Court Judge C.J. Williams did not immediately make a ruling at a hearing Tuesday, he questioned why the ordinance lays out a quota for board members who identify as people of color. The Citizens Review Board was created in the wake of the George Floyd murder by Minneapolis police in 2020 and intended to promote equitable treatment of citizens and remedy trends rooted in bias.

Williams suggested the city could have considered race as a factor in making board appointments without requiring that a certain number of board members be people of color.

“I think we are living through times of social upheaval where there are pressures upon elected officials to act and act rapidly,” Williams said. When a city acts in a way that is not constitutional, he said, that “exacerbates the upheaval that exists in our society right now.”

Wymore filed the lawsuit in July in U.S. District Court. He is a retired Wisconsin public health analyst with a master’s degree in public policy who volunteers to teach English as a second language to immigrants from West Africa.

Wymore’s attorney, Alan Ostergren, contends the ordinance outlining requirements to serve on the review board contains a classification based upon race.

Advocates called for the review board, which provides oversight of local law enforcement, to be made up of mostly people of color to address systemic inequities in policing that disproportionately affect marginalized populations.

But this policy “provides that the CRB will include five members who identify as people of color — it contains no requirement that any of the CRB members actually be people of color,” according to the plaintiff’s legal briefs.

Because those who identify as people of color may be better equipped to identify trends rooted in bias than those who do not, the city argues, the requirement that the board contain some members who identify as people of color rationally serves a legitimate government interest.

The defendant has not alleged any demonstration of irreparable harm if the motion for a preliminary injunction is not granted, the city contends.

There is no need for an injunction, the city argues, because no new appointments to the panel are expected until June 30, 2023. The city also anticipates amending this section of the ordinance before any board members’ terms expire, according to legal briefs, so the provision in question will no longer be in existence at that time.

It is possible there could be departures from the board through June, Williams said, posing the hypothetical of a member being hit by a bus.

Since the panel began meeting last summer, four members have left the board. Some of those appointments were due to cycle off after one year, but others have parted in the middle of their term and left vacancies that the city has since filled.

Ostergren said it would be different for the court to consider the city’s plans to amend the ordinance if the City Council was preparing to vote on specific language rather than an “amorphous” intent to change the racial requirement. The city has not justified its use of race in making appointments to the board, Ostergren said.

“The city cannot just ignore the meaning of its own ordinance when it uses race in this way,” Ostergren said, taking issue with the city’s argument that the “identify as” language in the policy means the city is not requiring people be of a certain race.

Though there are other slots on the board that don’t have to be filled by a person of color, Williams said statistically, the city has decreased Wymore’s odds of being appointed.

Commenting on the city’s argument that the board’s role is to address trends rooted in bias, Williams asked whether the policy itself inherently reflected a bias that only people of color could identify such trends.

“There’s nothing in your policy that says white people need to be included,” Williams said.

Patricia Kropf, the attorney representing the city, responded that “what we were looking for is a diversity of perspectives.”

As for Wymore specifically, Kropf said there were more than 70 applicants for the initial nine board spots.

“I believe that’s significantly more than we receive” for typical municipal boards and commissions, Kropf said. “ … It’s not that Mr. Wymore is one race or another.”

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