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US appeals court orders review of police hair-testing lawsuit

After more than a decade of litigation, a federal judge will have to consider for the third time whether a controversial hair test the Boston Police Department uses to screen officers for drug use discriminates against officers of color.

A federal appeals court ruled Wednesday that a lower court judge erred when he dismissed the case, based on his view that the officers of color did not have sufficient evidence to prove to a jury that the test discriminated against them. The US Court of Appeals for the First Circuit did not offer a direct opinion on the test, but it found that a jury should have been able to decide whether the department could offer another type of test — one of the factors a jury may weigh when considering discrimination claims.

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“A reasonable fact finder could . . . conclude that the department refused to adopt an available alternative to the challenged hair testing program that would have met the department’s legitimate needs [of drug testing] while having less of a disparate impact,” the court ruled in a 22-page decision Wednesday.

The ruling was a victory for the officers of color, even if it means more litigation in the case.

Ivan Espinoza-Madrigal, of the Lawyers’ Committee for Civil Rights and Economic Justice, which represented the officers and a minority officers’ group, said Wednesday that the appeals court affirmed his view that the city can consider an alternative testing method, and he hopes the opinion would convince the city to settle the case.

Citing the ongoing litigation, a spokeswoman for the city declined to comment.

“There’s a lot at stake here that’s important for all parties to move forward in a way that is expeditious and amicable, in light of the powerful ruling from the [appeals court],” Espinoza-Madrigal said.

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All of the officers who tested positive denied any drug use, he said, and their work record gave no indication that they used drugs.

“We’ve demonstrated clearly that the hair test is not only scientifically unreliable, but also discriminatory against African-Americans,” he said. “We’ve repeatedly said this to the city, we’ve asked the city to stop using this test, and to consider alternatives.”

The lawsuit was first filed in 2005, by the Massachusetts Association of Minority Law Enforcement Officers and 10 former officers. They alleged the test is discriminatory because black officers’ hair texture makes them more susceptible to false positives.

The officers argued in the lawsuit that the hair test “is not a reliable indicator of drug use,” and called on the city to use a urine test as well. City officials argued that the urine testing would add unnecessary costs to the testing process, and that there was no evidence that adding the test would reverse the false positive results.

In a related case, the Massachusetts Civil Service Commission has determined that the hair test is unreliable and ordered the Boston Police Department to reinstate six officers who were fired because of positive test results, some who were plaintiffs in the federal lawsuit. In November, the Supreme Judicial Court let that ruling stand.


Milton J. Valencia can be reached at milton.valencia@globe.com. Follow him on Twitter @miltonvalencia.