Religion-related questions on the MMPI -Reply

[rwg at MCLL.COM]

I wonder what kind of evidence there could be that those who believe sin
deserves punishment, or that theirs is the one true religion, make "worse"
police officers?  It seems like any measure of how "good" a police officer
was that could yield such a result would likely itself be inherently biased
against religion and the religious?  Maybe the court was right that the
questions themselves don't violate (per se) the 1A, but wouldn't a policy
that the "wrong" answer to the question, "do you believe that sin calls for
punishment," disqualified you from being a cop be almost a McDaniel v.
Paty kind of discrimination?

Rick Garnett

>>> VOLOKH at SMTP (Volokh, Eugene) {VOLOKH at mail.law.ucla.edu}
01/21/99 01:53pm >>>
        The Suffolk County Police Department evaluates candidates'
psychological capability for employment using, in part, the Minnesota
Multiphasic Personality Inventory - 2 (MMPI-2) and the California
Psychological Inventory (CPI).  The MMPI-2 calls for true/false
responses to the following statements:

        A.  Evil Spirits possess me at times.
        B.  My soul sometimes leaves my body.
        C.  I believe in a life hereafter.
        D.  I believe my sins are unpardonable.
        E.  I deserve severe punishment for my sins.
        F.  I have never seen a vision.
        G.  My thoughts these days turn more and more to death and the
life hereafter.
        H.  The man should be the head of the family.

Th CPI likewise calls for true/false responses to the following:

        A.  I feel sure that there is only one true religion.
        B.  I have no patience with people who believe there is only one
true religion.
        C.  I have never seen a vision.

        Bennett applied for a police officer job, passed a written civil
service examination, but was declared not qualified on psychological
grounds.  He claims that this decision was made partly based on his
answers to the above questions, and that this violates the Free Ex Cl
and Title VII.  The county "contend[s] that the questions posed to the
plaintiff were of a non-religious nature and were not intended to be
used as a means of discriminating against individuals based upon their
religion," and that plaintiff's answers to these questions played no
role in the decision to reject him.

        Held:  County's and plaintiff's motions for summary judgment is
denied.  "[T]he Court cannot rule that the questions . . . are per se
unconstitutional as a matter of law.  Whether the questions have a
rational and legitimate basis for determining the qualifications of a
potential Suffolk County Police Officer is contested by the respective
experts."  Bennett v. County of Suffolk, 1998 WL 909973 (E.D.N.Y. Dec.
24).

        My question:  Even if the questions are rationally connected to
likely future performance -- if, for instance, we conclude that people
who "believe [their] sins are unpardonable" or "feel sure that there is
only one true religion" are likely to make worse police officers -- does
the Constitution allow the government to make hiring decisions on this
basis?

        (Of course, if the plaintiff would have failed the psychological
test regardless of how his answers to these questions were graded, the
whole question becomes moot.)


Eugene Volokh, UCLA Law School
405 Hilgard Ave., L.A., CA 90095