Aiken v. City of Memphis

NATHANIEL R. JONES, Circuit Judge,

dissenting,

with whom KEITH, BOYCE F. MARTIN, Jr. and DAUGHTREY, Circuit Judges, join.

We respectfully dissent because, contrary to the majority, we believe that the City of Memphis has narrowly tailored the challenged affirmative action plans to achieve a compelling state interest. Furthermore, we are convinced that the majority’s application of the strict scrutiny test to reverse the grant of summary judgment to Memphis is a most regrettable and critical error. Finally, we feel compelled to express our conviction that by failing to uphold consent decrees, such as those at issue here, the majority runs afoul of the Fourteenth Amendment and the clearly stated aspirations of the 1991 Civil Rights Act, Pub.L. No. 102-166, 105 Stat. 1071 (codified in scattered sections of 42 U.S.C.).

I.

Strict scrutiny is inappropriately applied to benign racial classifications intended to remedy our nation’s deplorable history of racial discrimination. The majority has erroneously read recent Supreme Court cases, which hold that strict scrutiny is appropriately applied in some contexts, as requiring strict scrutiny be applied to all racial classifications. Even after examining the Memphis plans under this most stringent standard of review, we find that the affirmative action plans at issue here satisfy strict scrutiny.

Strict scrutiny requires that a state’s use of racial classifications must be narrowly tailored to support a compelling government interest. United Black Firefighters Ass’n v. City of Akron, 976 F.2d 999, 1009 (6th Cir.1992) (citing City of Richmond v. J.A Croson Co., 488 U.S. 469, 505-07 , 109 S.Ct. 706, 727-29 , 102 L.Ed.2d 854 (1989)). Applying this two-pronged analysis to the ease before us, we agree with the majority that “the race-based promotions in question were supported by a compelling interest.” Maj. Op. at 1163-64. We must part company with the majority, however, insofar as it concludes that the remedial actions taken by Memphis were not narrowly tailored.

In determining whether a remedy is narrowly tailored, the Supreme Court has instructed courts to look at several important criteria, including: (1) the efficacy of alternative remedies; (2) the planned duration of the remedy; (3) the relationship between the percentage of minority workers to be employed and the percentage of minority group members in the relevant population or work force; (4) the availability of waiver provisions if the plan cannot be met; and (5) the effect of the remedy upon innocent third parties. United States v. Paradise, 480 U.S. 149, 187 , 107 S.Ct. 1053, 1074 , 94 L.Ed.2d 203 (1987) (Powell, J., concurring); Davis v. City & County of San Francisco, 890 F.2d 1438, *1170 1447 (9th Cir.1989), cert. denied, 498 U.S. 897 , 111 S.Ct. 248 , 112 L.Ed.2d 206 (1990). Evaluating Memphis’ challenged plans in light of these considerations, we conclude that the City’s limited use of race-conscious relief was narrowly tailored for several reasons.

As an initial matter, the challenged plans do not bar white employees from being promoted. See Paradise, 480 U.S. at 183 , 107 S.Ct. at 1072 (quoting Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 282-83 , 106 S.Ct. 1842, 1851 , 90 L.Ed.2d 260 (1986)) (finding that “like a hiring goal, [the promotion goal] ‘impose[s] a diffuse burden, ... foreclosing only one of several opportunities.’ ‘Denial of a future employment opportunity is not as intrusive as loss of an existing job,’ and plainly postponement imposes a lesser burden still.”) (citations omitted); Stuart v. Roache, 951 F.2d 446, 454 (1st Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1948 , 118 L.Ed.2d 553 (1992); Higgins v. City of Vallejo, 823 F.2d 351, 360 (9th Cir.1987) (“Like hiring goals, promotion guidelines visit a minor burden on non-minority employees. But unlike hiring goals, promotion guidelines do not require that an individual bear the burden of past discrimination to the extent that he or she is denied a livelihood.”), cert. denied, 489 U.S. 1051 , 109 S.Ct. 1310 , 103 L.Ed.2d 579 (1989); accord Long v. City of Saginaw, 911 F.2d 1192, 1196-97 (6th Cir.1990) (“[Ajlthough initial employment opportunities coupled with hiring goals may burden some innocent individuals, they do not impose the same type of intrusive injuries that layoffs, which result in loss of job expectancy, security, and seniority, involve.”).

Furthermore, the promotion of unqualified persons over qualified persons is neither required nor permitted by the plans adopted in Memphis. Thus, to the extent that any Blacks are given “special” treatment, it should be noted that only qualified Blacks are afforded this advantage. This, too, is a significant indication of narrow tailoring. See Mackin v. City of Boston, 969 F.2d 1273, 1278 (1st Cir.1992) (finding that important indicium of narrow tailoring was the plans allowance for special treatment of qualified minorities only), cert. denied, — U.S.-, 113 S.Ct. 1043 , 122 L.Ed.2d 352 (1993).

Memphis’ plans are also narrowly tailored because they are specifically designed to remedy the existing imbalance between the proportion of Black entry level personnel and Blacks in promotional ranks. Under, the consent decrees the percentage of Blacks promoted approximated the percentage of Blacks in the next rank below to the greatest extent possible using qualified candidates. For example, of the seventy-five promotions made in the police department during the 1988 promotional process, Black candidates were awarded twenty-six positions. This ratio approximated the percentage of Blacks in the next rank below. In 1989, of the ninety-four promotions granted, thirty-three were awarded to Blacks, again approximating their percentage in the relevant applicant pool.

The Memphis Fire Department also made limited use of racial classifications to correct the effect of discrimination upon the promotion of minorities. In 1989, Blacks received nine of the forty-one promotions awarded. 1 Though this promotional process applied the 1980 consent decree’s target goal of 20%, instead of applying the actual percentage of Blacks in the rank next below, this does not defeat the narrow tailoring of the remedy. See Paradise, 480 U.S. at 179-80 , 107 S.Ct. at 1070-71 (approving temporary use of a 50% hiring goal to expedite achievement of long term goal of 25%). From 1989 to 1990, one of the two promotions made to the rank of fire investigator was a minority. Similarly, affirmative action facilitated the promotion of four Blacks to the rank of battalion chief, out of the thirteen total promotions to that position. Much like the promotions in the Police Department, each of the Fire Department’s rounds of promotions made limited use of race-conscious affirma *1171 tive action to remedy only the existing racial imbalance between ranks.

Had Memphis not employed affirmative action during these promotional processes, the percentage of Blacks promoted would have remained far below the percentage of Blacks in the next rank below. For example, in 1988, absent the use of race-conscious remedies, Blacks would have received only 9.3% of the promotions, despite the fact that they constituted 32.9% of the applicants, and comprised 32.4% of all patrol officers. Absent the use of affirmative action in the 1989-1990 promotions, neither of the promotions to fire investigator would have gone to minorities, even though 34.8% of the relevant applicant pool was Black. Similarly unacceptable results would have occurred in other areas of promotion absent the race-conscious relief currently under attack.

Also of significance, and contrary to the majority’s assertion, is the fact that the challenged plans are of limited duration. Memphis can dissolve the decrees at any time, upon the achievement of the stated goals. Yet, the majority argues that the plans are not narrowly tailored because “the City has made no effort to limit the duration of these remedies.” Maj. Op. at 1164. Memphis’ failure to dispense with the use of affirmative action is hardly an indication of a lack of narrow tailoring. Rather, it demonstrates Memphis’ keen appreciation that the current vestiges of prior discrimination have yet to be satisfactorily remedied. As we noted in Jansen v. Cincinnati, 977 F.2d 238 , 246 (6th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 2344 , 124 L.Ed.2d 254 (1993), a city is not required to prematurely dismantle its use of affirmative action:

While we recognize that a consent decree operating in perpetuity may not be the most effective way to eradicate the evils of discrimination in the municipal workplace, we must remain true to the wording and intent of such decrees, until their goals are met.

Consequently, though Memphis had made significant progress toward its goals, it had not yet reached them by 1988 or 1989. The majority ignores binding precedent when it implies that the continued pursuit of the goals of the decree renders the plans unlawful on the grounds that they are not narrowly tailored.

The majority also asserts that the plans are not narrowly tailored because “the 1979 and 1980 decrees may not bear a sufficiently precise relationship to the ‘relevant labor market.’ ” Maj. Op. at 1164r-65. The majority bases its conclusion on the questionable premise that qualifications for the position of “patrol officer” and “fire private” are in some manner special qualifications that “winnow out a significant portion of the general workforce.” Maj. Op. at 1166. The majority’s reasoning, however, is in conflict with Supreme Court precedent.

In City of Richmond v. J.A. Croson Co., 488 U.S. 469, 501-02 , 109 S.Ct. 706, 726 , 102 L.Ed.2d 854 (1989), the Court found that “where special qualifications are necessary, the relevant statistical pool ... must be the number of minorities qualified to undertake the particular task.” The Court further commented, however, that “[i]n the employment context, we have recognized that for certain entry level positions or positions requiring minimal training, statistical comparisons of the racial composition of an employer’s work force to the racial composition of the relevant population may be probative of a pattern of discrimination.” Id. at 501 , 109 S.Ct. at 726 (emphasis added). The qualifications required of Memphis’ entiy level police and fire personnel are of the sort described in Cro-son, which courts have found permit reference to general population statistics. See Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 631-32 , 107 S.Ct. 1442, 1452 , 94 L.Ed.2d 615 (1987) (“[A] comparison of the percentage of minorities or women in the employer’s work force with the percentage in the area labor market or general population is appropriate in analyzing jobs that require no special expertise.”); Hazelwood Sch. Dist. v. United States, 433 U.S. 299 , 308 n. 13, 97 S.Ct. 2736 , 2742 n. 13, 53 L.Ed.2d 768 (1977) (“[Cjomparison between the percentage of Negroes on the employer’s work force and the percentage in the general areawide population [is] highly probative [when] the job skill there involved ... is one that many persons possess or can fairly *1172 readily acquire.”); Davis, 890 F.2d at 1447 (allowing statistical comparison with general population for entry level position of firefighter). 2

For all the reasons stated, we find that the majority erred in concluding that Memphis’ challenged plans were not narrowly tailored to meet a compelling state interest. The decrees utilize a benign racial classification to eliminate the present effects of Memphis’ prior discrimination in a manner that is both carefully structured and narrowly drafted. We fail to discern any difference between these cases and that of Ohio Contractors Ass’n v. Keip, 713 F.2d 167 (6th Cir.1983) (Lively, J.), in which this court upheld a racially conscious remedy to past discrimination in the awarding of state construction contracts. We note also that Justice O’Conner cited Ohio Contractors Ass’n approvingly in Croson, even though it utilized an intermediate level of scrutiny in finding the Ohio plan to be narrowly tailored. Croson, 488 U.S. at 501 , 109 S.Ct. at 725 . Croson does not require that we find otherwise here. Accordingly, it was error not to uphold the plans as constitutionally valid.

II.

Having determined that the challenged plans satisfy both prongs of strict scrutiny, we would ordinarily conclude this analysis. However, we wish to address, briefly but with sincere conviction born of stark historical reality, the grave injustice that is perpetrated by the majority’s insistence on applying strict scrutiny to the use of remedial racial classifications under the pretext of advancing a color-blind Constitution. Croson, it should be remembered, was a “set-aside” case with a totally different historical context than the affirmative action plans under consideration here. Given the determination of the majority to apply an elevated standard of scrutiny, it might be edifying to revisit the purposes of the Fourteenth Amendment and examine the principle cases which have dealt with employment discrimination remedies.

The Fourteenth Amendment was never intended to impose an absolute standard of color blindness upon our law to the extent that such a standard becomes a bar to the achievement of the purposes of the amendment. 3 Rather the amendment sought to ensure that the law would no longer turn a blind eye to the indignities that Black Americans were forced to endure as a result of their race. Thus, adherence to our constitutional mandate requires us to recognize that remedying past discrimination may require the temporary use of benign racial classifications so long as they relate substantially to the important governmental interest of remedying past discrimination.

I suspect that it would be impossible to arrange an affirmative-action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot — we dare not — let the Equal Protection Clause perpetuate racial supremacy.

Regents of University of California v. Bakke, 438 U.S. 265, 407 , 98 S.Ct. 2733, 2807 , 57 L.Ed.2d 750 (1978) (Blackmun, J.). Yet, this is precisely the impact of the majority’s opinion. Review of these plans under a strict scrutiny standard routinely results in the invalidation of plans which are designed to achieve the vital goal of remedying our nation’s history of discrimination. Such an ap *1173 plication is clearly antithetical to the Fourteenth Amendment. In fact, applying strict scrutiny to the benign use of race-conscious affirmative action, which seeks to alter employment patterns shaped by past racial discrimination, comes perilously close to nullifying the amendment as it pertains to persons of color.

A plurality of the Supreme Court first urged the use of the intermediate scrutiny standard of review when evaluating challenges to remedial racial classifications in Bakke . 4 Of the five justices in Bakke who addressed the standard of review question, four justices expressly rejected the notion that strict scrutiny was the proper standard to be applied. See 438 U.S. at 356-62 , 98 S.Ct. at 2781-85 (Opinion of Brennan, White, Marshall, & Blackmun, JJ.). Writing in the context of their Fourteenth Amendment inquiry, Justices Brennan, White, Marshall, and Blackmun found that

claims that law must be “color-blind” or that the datum of race is no longer relevant to public policy must be seen as aspiration rather than as description of reality. This is not to denigrate aspiration; for reality rebukes us that race has too often been used by those who would stigmatize and oppress minorities. Yet we cannot— and, as we shall demonstrate, need not under our Constitution ... — let color blindness become myopia which masks the reality that many “created equal” have been treated within our lifetimes as inferi- or both by the law and by their fellow citizens.

Id. at 327 , 98 S.Ct. at 2767 (emphasis added). Thus, acknowledging this history — which is beyond challenge — and recognizing that applying a more stringent standard of review would result in the unwarranted dismantling of myriad affirmative action programs, the Bakke plurality concluded “that racial classifications designed to further remedial purposes ‘must serve important governmental objectives and must be substantially related to achievement of those objectives.’ ” Id. at 359 , 98 S.Ct. at 2783 (citing Califano v. Webster, 430 U.S. 313, 317 , 97 S.Ct. 1192, 1194 , 51 L.Ed.2d 360 (1977) (quoting Craig v. Boren, 429 U.S. 190, 197 , 97 S.Ct. 451, 456 , 50 L.Ed.2d 397 (1976))).

After Bakke , the Supreme Court, with solid historical justification, used intermediate scrutiny to determine the lawfulness of other affirmative action plans. In United Steelworkers v. Weber, 443 U.S. 193 , 99 S.Ct. 2721 , 61 L.Ed.2d 480 (1979), a majority of the Court determined that a modified standard of review should be applied to race-based affirmative action plans challenged as viola-tive of Title VII. The Weber Court adopted the Bakke plurality’s position that traditional racial classifications are distinct from benign racial classifications and thus warrant a modified form of inquiry. The Weber Court fur-' ther recognized that the use of remedial racial classifications was not adverse to the spirit or intention of Title VII. Id. at 201-04 , 99 S.Ct. at 2726-28 . Accordingly, the Court found that, when considering the legality of challenged affirmative action programs, Title VII’s “prohibition against racial discrimination ... must ... be read against the background of the legislative history of Title VII and the historical context from which the Act arose.” Weber, 443 U.S. at 201 , 99 S.Ct. at 2726 . The majority has not — and cannot— offer any justification for treating the Fourteenth Amendment with less consideration than Title VII.

Since Bakke and Weber , the virtues of the intermediate scrutiny standard in the context of benign racial classifications have been noted repeatedly. See also Fullilove v. Klutznick, 448 U.S. 448, 517-19 , 100 S.Ct. 2758, 2794-96 , 65 L.Ed.2d 902 (1980) (Marshall, J., joined by Brennan & Blackmun, JJ.) (“Be *1174 cause the consideration of race is relevant to remedying the continuing effects of past racial discrimination, and because governmental programs employing racial classifications for remedial purposes can be crafted to avoid stigmatization, we conclude[ ] that such programs should not be subjected to conventional ‘strict scrutiny 5 — scrutiny that is strict in theory, but fatal in fact.”); Wygant, 476 U.S. at 301-02 , 106 S.Ct. at 1861-62 (Marshall, J., joined by Brennan & Blackmun, JJ.); John son, 480 U.S. at 626-27, 107 S.Ct. at 1448-49 (holding that “assessment of the legality of the Agency Plan must be guided by our decision in Weber ”); Local Number 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 601 , 616-16, 106 S.Ct. 3063, 3071-72 , 92 L.Ed.2d 405 (1986) (affirming Weber Court’s holding that “Title VII permits employers and unions voluntarily to make use of reasonable race-conscious affirmative action”); Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 564-65 , 110 S.Ct. 2997, 3008-09 , 111 L.Ed.2d 445 (1990) (holding that “benign race-conscious measures mandated by Congress ... are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives”).

Before today, this circuit, too, acknowledged the need for application of intermediate scrutiny in reverse discrimination cases. See Detroit Police Officers’ Ass’n v. Young, 608 F.2d 671 (6th Cir.1979), cert. denied, 452 U.S. 938 , 101 S.Ct. 3079 , 69 L.Ed.2d 951 (1981). In Detroit Police Officers’Ass’n, this court was asked to consider the validity of an affirmative action program implemented by the Detroit Police Department. In reversing the district court’s determination that the plan was not supportable, we concluded the following:

Bakke and Weber make it clear that a case involving a claim of discrimination against members of the white majority is not a simple mirror image of a case involving claims of discrimination against minorities. One analysis is required when those for whose benefit the Constitution was amended or a statute enacted claim discrimination. A different analysis must be made when the claimants are not members of a class historically subjected to discrimination. When claims are brought by members of a group formerly subjected to discrimination the case moves with the grain of the Constitution and national policy. A suit which seeks to prevent public action designed to alleviate the effects of past discrimination moves against the grain, and the official actions complained of must be subjected to the analysis prescribed in Weber and the plurality opinion in Bakke which we find controlling.

608 F.2d at 697 . The force of the justification for adopting this intermediate standard, so logically stated by Judge Lively in Detroit Police Officers’ Ass’n , cannot be ignored. Yet, the majority, today, retreats from these settled remedial principles.

Judicial contempt for racial classifications did not arise in a historical vacuum. Rather, the law belatedly acknowlédged the centuries of racial discrimination that had been imposed upon minorities simply because of the color of their skin. Thus, as the plurality in Bakke noted, racial classifications are objectionable not due to some abstract notion of color-blind justice, but because of the astute recognition that most such classifications stigmatize people on the basis of their skin color. Bakke, 438 U.S. at 361-62 , 98 S.Ct. at 2784-85 . Benign racial classifications, however, do not result in stigmatization. Quite to the contrary, benign racial classifications further the very constitutional principle— equality — that makes most other racial classifications odious in the first place. Consequently, the “principles outlawing the irrelevant or pernicious use of race [are] inappo-site to racial classifications that provide benefits to minorities for the purpose of remedying the present effects of past racial discrimination.” Fullilove, 448 U.S. at 518 , 100 S.Ct. at 2795 . Affirmative action programs, which seek to remedy prior discrimination, promote the true goals of constitutional equality. Thus, a presumption of diminished skepticism should attach to these racial classifications, justifying application of a less stringent standard of review.

Justice Marshall succinctly, and perhaps more compellingly, argued in favor of appli *1175 cation of the intermediate standard of review to benign racial classifications in his dissent in Croson, 488 U.S. at 528-61 , 109 S.Ct. at 740-57 (Marshall, J., joined by Brennan & Blackman, JJ.). Justice Marshall observed that application of a strict scrutiny analysis will too often result in the unwarranted dismantling of remedial affirmative action plans intended to confront our nation’s long history of racial discrimination. Id. at 552-53 , 109 S.Ct. at 752-53. As a practical matter, the strict scrutiny standard is always likely to be fatal to race-based affirmative action plans. See Michael Rosenfeld, Decoding Richmond: Affirmative Action and the Elusive Meaning of Constitutional Equality, 87 Mich.L.Rev. 1729, 1758 (1989). Once one acknowledges this undeniable consequence, the needless application of a strict scrutiny analysis to affirmative action plans cannot be justified, for to do so conflicts directly with the purpose and historical function of the Fourteenth Amendment — the very amendment by which such scrutiny is ostensibly commanded.

As Justice Marshall noted:

[I]t is inconceivable that the Fourteenth Amendment was intended to prohibit all race-conscious relief measures. It “would be a distortion of the policy manifested in that amendment, which was adopted to prevent state legislation designed to perpetuate discrimination on the basis of race or color,” Railway Mail Ass’n v. Corsi, 326 U.S. 88, 94 [ 65 S.Ct. 1483, 1487 , 89 L.Ed. 2072 ] (1945), to hold that it barred state action to remedy the effects of that discrimination. Such a result would pervert the intent of the Framers by substituting abstract equality for the genuine equality the Amendment was intended to achieve.

Bakke, 438 U.S. at 398 , 98 S.Ct. at 2803 (Marshall, J.). Accordingly, to the extent that we concede the undeniable history of racial discrimination in America, and to the extent that we acknowledge the Framers’ desire to redress this history through the Fourteenth Amendment’s guarantees, we should decline to adopt a standard of review that effectively destroys any chance this nation has of realizing the Amendment’s true aspirations. Moreover, members of the majority conceded during argument, and subsequently, that remedying discrimination in the Memphis Police and Fire Departments is justified by a compelling state interest.

Because the central purpose of the Fourteenth Amendment was to remedy the effects of past discrimination against Black Americans, and because, as a practical matter, application of the strict standard of review prohibits the use of benign racial classifications intended to achieve this goal, we conclude that intermediate scrutiny is the only legally defensible standard to be applied in a case such as this.

III.

Though under Marbury v. Madison, 5 U.S. (1 Cranch) 137 , 2 L.Ed. 60 (1803), and Cooper v. Aaron, 358 U.S. 1 , 78 S.Ct. 1401 , 3 L.Ed.2d 5 (1958),.it is the province of the Court to interpret laws and the Constitution, the majority would be wise to heed the sentiments of the American people as expressed through their elected representatives. The Civil Rights Act of 1991 (the “1991 Act”) prohibits certain challenges to employment practices under the Constitution and federal law when those practices are pursuant to consent decrees. See 42 U.S.C. §§ 2000e-2(n)(l)(A)-(B)(ii) (Supp. IV 1992). Section 108 of the 1991 Act was a specific Congressional response to Martin v. Wilks, 490 U.S. 755 , 109 S.Ct. 2180 , 104 L.Ed.2d 835 (1989) (holding that a party can not be deprived of rights at a proceeding to which he is not a party), as well as City of Richmond v. J.A. Croson Co., 488 U.S. 469 , 109 S.Ct. 706 , 102 L.Ed.2d 854 (1989). Section 108 explicitly bars judicial assaults upon consent decrees by persons whose interests have been previously considered by the court. The statute states in relevant part:

(n) Resolutions to challenges to employment practices implementing litigated or consent judgments or orders

(1)(A) Notwithstanding any other provision of law, and except as provided in paragraph (2), an employment practice that implements and is within the scope of a litigated or consent judgment or order that resolves a claim of employment discrimination under the Constitution or Fed *1176 eral civil rights laws may not be challenged under the circumstances described in sub-paragraph '(B).

(B) A practice described in subpara-graph (A) may not be challenged in a claim under the Constitution or Federal civil rights laws—

(i) by a person who, prior to the entry of the judgment or order described in sub-paragraph (A), had—

(I) actual notice of the proposed judgment or order sufficient to apprise such person that such judgment or order might adversely affect the interests and legal rights of such person and that an opportunity was avaiiable to present objections to such judgement or order by a future date certain; and

(II) a reasonable opportunity to present objections to such judgment or order; or

(ii) by a person whose interests were adequately represented by another per-, son who had previously challenged the judgment or order on the same legal grounds and with a similar factual situation, unless there has been an intervening change in law or fact.

42 U.S.C. §§ 2000e-2(n)(l)(A)-(B)(ii) (Supp. IV 1992) (emphasis added).

In the instant case, prior to entry of the consent decree governing the Fire Department’s hiring and promotional practices, notice was given, and a hearing was held on May 16, 1980, to allow individuals to voice objections to the entry of the decree. See Appellees Br. on Rehearing En Banc (Ea-son ) at 8. Similarly, prior to the adoption of the consent decrees governing the Police Department, non-minorities were given an opportunity to express any objections to its entry. See Appellee’s Br. on Rehearing En Banc {Aiken) at 7. Consequently, if applied to this case, section 108 would foreclose the current attack on Memphis’ adoption of race-conscious remedies to effect the goals of those decrees.

This court has declined to apply the 1991 Act retroactively to conduct which occurred before the Act became law and which is made unlawful by the Act itself. See Holt v. Michgan Dept. of Corrections, 974 F.2d 771 (6th Cir.1992) (finding that state employee could not sue state for alleged discrimination in its selection of employees for promotion to higher-level positions under 1991 Act because alleged discrimination had occurred before Act became law); Vogel v. City of Cincinnati 959 F.2d 594 (6th Cir.1992) (holding that 1991 Act did not apply retroactively to plaintiffs claim for damages resulting from hiring policy adopted pursuant to 1981 consent decree) ce rt. denied, — U.S. -, 113 S.Ct. 86 , 121 L.Ed.2d 49 (1992); Harvis v. Roadway Express, Inc., 973 F.2d 490 (6th Cir.1992) (holding that 1991 Act could not be applied retroactively to race discrimination in firing claims because suits were pending at time 1991 Act was enacted), aff'd sub nom. Rivers v. Roadway Express, Inc., — U.S. -, 114 S.Ct. 1510 , 128 L.Ed.2d 274 (1994).

More recently, the Supreme Court has held two provisions of the 1991 Act not to apply to proceedings pending on the November 11, 1991, the date of enactment. In Landgraf v. U.S.I. Film Prods., — U.S. -, 114 S.Ct. 1483 , 128 L.Ed.2d 229 (1994), the Court held that section 102 of the 1991 Act, 42 U.S.C. § 1981a (Supp. IV 1992), which includes provisions that create a right to recover compensatory and punitive damages for intentional discrimination violative of Title VII, would not apply retroactively to pending cases. Similarly, in Rivers v. Roadway Express, Inc., — U.S.-, 114 S.Ct. 1510 , 128 L.Ed.2d 274 (1994), the Court upheld this circuit’s Harris holding by finding that section 101 of the Act, 42 U.S.C. § 1981 (b) (Supp. IV 1992), which defines 42 U.S.C § 1981’s “make and enforce contracts” phrase to embrace all phases and incidents of a contractual relationship, including discriminatory contract terminations, does not apply to cases which arose before it was enacted. In declining to apply the 1991 Act retroactively, this circuit reasoned that “‘the law should confine its prohibitions and regulations to future conduct, so that the persons subject to the law can conform their conduct to it and thus avoid being punished, whether criminally or civilly, for conduct that they had no reason to think unlawful.’ ” Holt, 974 F.2d at 774 (quoting Luddington v. Indiana *1177 Bell Tel. Co., 966 F.2d 225, 227-28 (7th Cir.1992), ce rt. denied, — U.S.-, 114 S.Ct. 1641 , 128 L.Ed.2d 862 (1994)). The Supreme Court has expressed a similar concern in its decisions. See generally Landgraf, — U.S. at-, 114 S.Ct. at 1497-1501.

The present case is, however, qualitatively different from the aforementioned cases. Here, Memphis seeks to use the 1991 Act as a shield rather than as a sword, as was the case in Holt, Vogel, Harris, Landgraf, and Rivers . Fairness generally requires that “individuals should have an opportunity to know what the law is and to conform their conduct accordingly.” Landgraf , — U.S. at -, 114 S.Ct. at 1497. Yet, this general rule neither requires nor implies that newly enacted legislation which is not punitive in character, cannot be applied retroactively. Although neither the Supreme Court nor this circuit has allowed the punitive provisions of the 1991 Act to be applied retroactively, we have not specifically determined whether section 108, a provision protective of remedial consent decrees, is appropriately applied to cases arising before the date of enactment. Any contrary inference from our previous holdings is premature.

Moreover, in determining the applicability of the 1991 Act to a longstanding policy of racial consideration in promotions, such as the one at issue today, we find little guidance in this circuit’s use of such an amorphous test as whether the “conduct occurred prior to the Act.” Holt, 974 F.2d at 773-74 (emphasis added). When an individual alleges discrimination in promotions outside of the remedial policy context, as was claimed by the Black employee in Holt , the court can easily isolate the precise time that the alleged discriminatory “conduct” took place — i.e., the time when the aggrieved individual was passed over for a promotion. This determination is not so readily made when evaluating a challenge to a longstanding remedial policy. Arguments could reasonably.be made that the “conduct” occurred when the consent decree was entered into or when appellants were passed over for promotion. However, an argument could also reasonably be made that the “conduct” occurred at all times from the effective date of the consent decree until today.

This circuit has yet to specifically address either of these important issues. Given the historic and practical necessity for the use of consent decrees and benign racial classifications to remedy past racial discrimination, we are inclined to believe that section 108 is appropriately applied retroactively to challenges such as this. 5 However, we recognize that this court can only make such a determination after the issue has been raised and we have been appropriately briefed. Cf. Vogel, 959 F.2d at 601 (Ryan, J., concurring in part and dissenting in part).

IV.

As one academic recently noted:

Although affirmative action treats whites unequally to blacks, it need not deprive them of any legitimate equal opportunity rights. Viewed from the proper contextual perspective, the only thing that affirmative action seems to take away from the “innocent” white person is the increased prospects of success gained as a consequence of the racially discriminatory acts (or omissions) of the state. The reduction in the *1178 prospects of blacks attributable to official ■racial discrimination has already produced a windfall in the form of increased prospects of success for all the other competitors seeking to obtain scarce public goods. In this sense, affirmative action merely restores the equal-opportunity balance, placing both blacks and whites in the position in which formal means-regarding equality of opportunity would have left them absent official racial discrimination.... Even if completely innocently acquired, the increased prospects of success gained through the unjust treatment of blacks are entirely undeserved. Thus, although the loss of these increased prospects may result in bitter disappointment, it does not amount to a violation of any equal opportunity right.

Rosenfeld, supra, at 1790. Bearing this in mind, I would be remiss if I failed to respond to the benighted concerns raised in the separate concurrence.

The concurrence, part two, argues that there is a substantially greater risk that the challenged remedial plans will be abused because Memphis is now predominantly Black. This fact alone led into a non sequitur by concluding that the City’s current demographics require that the plans be painstakingly scrutinized to “ensure that the decree is not being used to prefer the majority race in the city, whether black or white.” Concurrence, at 1168-69. This point ignores the record against which the tailored remedy of the consent decree must be measured. That record clearly shows the existence of vestiges of racial exclusion that the parties, by entering into the consent decree, sought to eradicate. A change in the politieal/racial makeup of Memphis is irrelevant with respect to that reality. The reversal here threatens to freeze into place the vestiges of those racial policies. A cursory examination of the historic interplay of race and power in our nation reveals the expressed fear of “majority” preference to be unwarranted at best. See Keith, J., dissenting, at 1180.

The simple reversal of the races to determine the propriety of racial classifications is not useful in evaluating the validity of the plans before this court, for it decontextual-izes a debate that has little actual relevance outside of the context of the history or politics from which it arose. Because

the differences between blacks and whites relevant for purposes of assessing the legitimacy of unequal treatment are more than a mere matter of skin pigmentation ... the reversal test is superficial and misleading. To be meaningful, the reversal test must take these differences into account, entailing more than its simple hypothetical color switch, but also a switch in economic, political, and historical conditions, and a switch in attitudes, beliefs, and psychological makeups.

Rosenfeld, supra, at 1776. Consequently, because the current racial traits of each of these considerations have not also been altered, there is little reason to believe that Memphis’ limited use of benign racial classifications will result in a system of reverse discrimination.

V.

We write at considerable length, because today the majority invalidates Memphis’s laudable attempt at racial healing and eradication of the present day effects of racial discrimination. In so holding, the majority takes yet another premature step toward the illusory concept of a color-blind Constitution. This represents a repudiation of the good faith that attended the unifying purpose of the consent decree. The undeniable fact is that this nation has yet to fully confront its racist history. Until this preliminary hurdle is surmounted, the rejection of race-conscious remedies, under the guise of promoting col- or-blind justice, simply maintains a status quo premised upon the subordination of minorities.

In Bakke , Justice Marshall cautioned that, given “the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order. To fail to do so is to ensure that America will forever remain a divided society.” Bakke, 438 U.S. at 396 , 98 S.Ct. at 2802 (Marshall, J.). Significant gains have been made since Justice Marshall wrote these words. Nevertheless, failure to *1179 observe the continuing viability of his message is improvident. As former Chief Justice Burger wrote:

All things being equal, with no history of discrimination, it might well be desirable to [engage in solely race-neutral employment policies]. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial [discrimination]. The remedy for such [discrimination] may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all the awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate [our racially-sullied past.]

Swann, 402 U.S. at 28, 91 S.Ct. at 1282 (emphasis added).

We will never get beyond the issue of race until we squarely recognize its harmful presence. Justice Blackmun recognized that suspicion of racial classifications cannot justify our collective failure to move toward racial equality.

I, of course, accept the proposition that (a) Fourteenth Amendment rights are personal; (b) racial and ethnic distinctions where they are stereotypes are inherently suspect and call for exacting judicial scrutiny; ... and (d) the Fourteenth Amendment has expanded beyond its original 1868 concept and now is recognized to have reached a point where ... it embraces a “broader principle.”

This enlargement does not mean for me, however, that the Fourteenth Amendment has broken away from its moorings and its original intended purposes. Those original aims persist. And that, in a distinct sense, is what “affirmative action,” in the face of proper facts, is all about. If this conflicts with idealistic equality, that tension is original Fourteenth Amendment tension, constitutionally conceived and constitutionally imposed, and it is part of the Amendment’s very nature until complete equality is achieved....

Bakke, 438 U.S. at 404-05 , 98 S.Ct. at 2806 (Blackmun, J.).

Notwithstanding the undeniable force of this observation, the majority today opts to sidestep the lingering and indisputable vestiges of past discrimination by reversing one city’s commendable effort at healing, as it struggles to come to terms with the sins of its past. I concede that for many persons dealing with racial injustice and remedies is painful. The easier course is to marginalize the issue or pretend that color blindness forbids us from directly confronting the problem. This ill serves our nation, and is in contravention of sound remedial principles and precedent. We DISSENT.

. In 1988-89, the Fire Department commenced a promotion process for the rank of fire lieutenant. The department’s fire privates and fire drivers, the relevant applicant pool from which fire lieutenants were drawn, was only 15.3% Black. Because this percentage was below the target percentage identified in the 1980 consent decree, the City used the 20% goal established in the decree.

. The majority hints that the requirement that an applicant be a non-felon constitutes a "special qualification” which renders reference to general population statistics inappropriate. However, with fewer than 500 of every 100,000 Americans in jail, see Dan Cordtz, Getting Tough On Violent Crime, Financial World, March 15, 1994, at 22, the majority’s assertion that this qualification excludes significant portions of the population to be unsubstantial and unpersuasive at best.

. First espoused in Plessy v. Ferguson, 163 U.S. 537, 559 , 16 S.Ct. 1138, 1146 , 41 L.Ed. 256 (1896) (Harlan, J., dissenting), the concept that our Constitution must be color-blind was not adopted by a majority of the Court. See also Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 19 , 91 S.Ct. 1267, 1277 , 28 L.Ed.2d 554 (1971) (rejecting contention that Constitution requires color-blindness). Had Justice Harlan’s view been adopted and prevailed during the 58 years of Plessy , the situation today would permit the result urged by the majority.

. Justice Powell, writing for the majority, concluded that the judgment of the California Supreme Court should be affirmed insofar as it held Bakke should be admitted to the University’s Medical School. Powell, however, stood alone in his conclusion that strict scrutiny was the appropriate standard to be applied to affirmative action programs. The four justices in Bakke , who with Powell comprised a majority with respect to the actual result, avoided reaching the constitutional issue by deciding instead that the University's affirmative action program was vio-lative of Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d et seq. See Bakke, 438 U.S. at 411-12 , 98 S.Ct. at 2809-10 (Stevens, J.) (finding that Court should avoid "constitutional issue if a case can be fairly decided on a statutory ground.”).

. In addition to section 108 discussed above, Congress made clear its intent to protect consent decrees in section 116 of the 1991 Act. Section 116 reads as follows:

LAWFUL COURT ORDERED REMEDIES, AFFIRMATIVE ACTION, AND CONCILIATION AGREEMENTS NOT EFFECTED.

Nothing in the amendments made by this title shall be construed to affect court ordered remedies, affirmative action plans, or conciliation agreements that are in accordance with the law.

42 U.S.C. § 1981 note (Supp. IV 1992).

Section 116 has been referred to as a “savings clause.” See Reginald C. Govan, Honorable Compromises and the Moral High Ground: The Conflict Between the Rhetoric and the Content of the Civil Rights Act of 1991, 46 Rutgers L.Rev. 1, 241 (1993). Its language makes clear Congress’ intent that the 1991 Act not be used as a mechanism to dismantle remedial programs. While remedial programs may be attacked on other legal grounds, I think it prudent, in all cases, to remain mindful of the quagmire that we create when we use laws which are intended to remedy past racial discrimination against the very people who have historically been made to bear the burden of legal and extra-legal racial discrimination.