We focus our discussion on discrimination against disadvantaged racial minorities. Our definition encompasses both individual behaviors and institutional practices.
Subscribe Vincent Dimeo, et al. Reargued En Banc June 11, Grossman arguedAlan K. The Illinois Racing Board promulgated a rule that requires jockeys and other participants in horse races in Illinois to submit to random drug testing not founded on any suspicion of wrongdoing.
A class action on behalf of these participants was brought against the Board, charging that the rule violated their Fourth Amendment right to be free from unreasonable searches.
The district court granted a preliminary injunction. A panel of this court, by a divided vote, affirmed the district court, agreeing that the rule violated the Fourth Amendment.
We granted rehearing en banc to enable the full court to consider the unclear, delicate, and important question of where the Fourth Amendment should be deemed to strike the balance between the interest of the state in using drug testing as a regulatory instrument and the interest of persons in preserving their physical privacy.
The operative word in the Fourth Amendment is "reasonable," the legal standard therefore is reasonableness, and the decision whether a particular public program that invades interests protected by the amendment is nonetheless reasonable, and therefore lawful, requires a judgmental, forward-looking, balance-striking, probabilistic assessment, rather than, as the plaintiffs would have it, a conclusive demonstration of measurable harms certain to be inflicted if the program is struck down.
Von Raab, U. Department of Transportation, F. The weaker the interest asserted, therefore, the less showing of countervailing harms the government must make. Railway Labor Executives' Ass'n, U.
Thornburgh, supra, F. And since the plaintiff's interest--the privacy interest--cannot be quantified, neither need the regulatory interest be quantified. Although the appeal is from a preliminary injunction, the parties have asked us to decide the ultimate question, which is whether the drug-testing program violates the Fourth Amendment.
City of Chicago, F. Department of Agriculture, F. The facts that bear on the balance of the competing interests in this case, and therefore on the reasonableness of the challenged rule, are set forth in the panel majority opinion, and can be summarized briefly.
Horse racing in Illinois, as everywhere else in the civilized world as far as we knowis a heavily regulated activity, and this for three reasons. It is highly dangerous to jockeys and to their counterparts in harness racing, called drivers; it is a magnet for gambling; and it has an unsavory, or at least a shadowed, reputation, growing out of a long history of fixing, cheating, doping of horses, illegal gambling, and other corrupt practices.
Monmouth Park Jockey Club, 29 N. Washington Jockey Club, U. The second and third points are of course related.
Gambling on horse races as on other sports and games has generally been illegal in this country, and illegal activities create and attract unsavory characters and methods: Illinois allows parimutuel betting where the odds are determined automatically by the amount bet on each horse rather than set by bookmakersbut betting through bookmakers continues to flourish though illegal and the industry has never been able wholly to dispel an aura of scandal.
The Illinois Racing Board has a dual concern with the use of illegal drugs by participants in horse races. First is a concern with the personal safety of those participants, who might be injured or killed in accidents that would not have occurred but for such use.
Second is a financial concern. Illinois derives tens of millions of dollars in tax revenues annually from parimutuel betting. Those revenues would fall if betting declined as a result of a belief by the public that the fairness of the races was being impaired because jockeys and other participants were using drugs.
Illinois Racing Board, Ill. Members of the Jockeys' Guild first approached the Illinois Racing Board in with expressions of concern about drug use by participants in horse races. In the Board adopted a pilot drug test screening program for jockeys and harness drivers; 17 percent tested positive for cocaine, marijuana, or both.
The validity of the test methodology is challenged but there is doubtless some drug use among horse-race participants, for the Jockeys' Guild has instituted a drug counseling program for its members.Indeed, the legal requirement that unlawful disparate treatment discrimination must involve intentional discrimination may result in many indirect, subtle, and ambiguous types of discrimination .
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