31 Fair empl.prac.cas. 465, 31 Empl. Prac. Dec. P 33,497 Hanson Bratton v. City of Detroit, and Guardians of Michigan, Intervening

MERRITT, Circuit Judge,

concurring in part and dissenting in part.

I concur in Sections I, II.A, III, IV.A and IV.B of the opinion filed by Judge Jones for the Court. I do not concur in the reasoning of Sections II.B or the result or the reasoning of Section IV.C.

I. THE COURT HAS NO POWER TO MAKE THE AFFIRMATIVE ACTION PLAN MANDATORY

In Section IV.C of the opinion, the Court, affirming the opinion of the District Court, has ordered the City to enforce a plan requiring the Police Department to hire or promote a white officer for every other job opening. The plan governs all hiring and promotion in the Police Department. If the City of Detroit has two vacancies in the Police Department, it may not hire or promote two blacks or two whites depending on availability and qualifications. The Court has ordered that the City must always fill the two vacancies with one black and one white. Our Court’s order, like the District Court’s order to this effect, is irrational and constitutes an illegal exercise of judicial power.

Today, according to the latest decennial census, Detroit’s population is more than 63% black. According to the census, Detroit has a population of 1,203,339 people, 758,939 of whom are black and 413,730 of *902 whom are white. See General Population Characteristics for Michigan, 1980 Census, PC80-1-B24, United States Bureau of Census, Table 44, page 24-418. A court-ordered plan that forbids the City from hiring or promoting blacks in proportion to the population and labor pool appears patently discriminatory against the black citizens of Detroit. The City is 68% black, but by federal court order the Police Department may not be more than 50% black.

The District Court got itself into this strange situation because it held that if an “affirmative action plan is upheld,” then “the approved plan should be treated as a court judgment, just as a consent decree is. It is this rule of law which this court will adopt.” (Emphasis added.) The District Court went on to say that “affirmative action is required, not merely permitted” and “must have the force and effect of an order of this Court.” (Final opinion, Nov. 17, 1980, Technical Record, Vol. V, Document 129, pp. 6-8.) Where such a “rule of law” comes from, neither this Court nor the District Court tries to tell us. I know of no justification for such a “rule of law.” None is cited. Even if the plan does not now appear to discriminate against black citizens of Detroit, there is no justification for writing the plan into federal law by judicial decree. To extend constitutionally mandatory status to the City’s plan distorts the nature of the proceedings below. This action was brought by white police officers who believed that they have been victimized by an illegal affirmative action pilot program. The City defended by demonstrating the history of departmental discrimination against blacks, a history that provided the justification for the plan. The issue at trial was never whether this history required the City to adopt precisely this plan. Rather, the Court had to decide whether — in light of the past — the City was justified in pursuing the new policy. The District Court resolved this issue in favor of the City. For the City, having devised the plan, now to surrender further responsibility to the Court is anomalous. The City is the responsible front line actor and should remain the institution politically accountable for its policies.

I would vacate the order of the District Court in this respect and remand the case to the District Court with instructions to consider what should now be done with the affirmative action plan in light of 1980 census figures indicating that the plan discriminates against blacks.

II. THE COURT DOES NOT STATE THE CORRECT TEST OF CONSTITUTIONALITY UNDER THE FOURTEENTH AMENDMENT IN SECTION II.B OF ITS OPINION ALTHOUGH IT APPLIES THE CORRECT TEST IN SECTION III OF THE OPINION

In assessing the validity of the voluntary governmental affirmative action plan in question, the Fourteenth Amendment requires a more exacting standard than the open-ended, mere “reasonableness” standard stated by the Court. In order to be valid, a non-Congressional, governmental, affirmative action plan must meet the following exacting procedural and substantive standards under the Bakke and Fullilove cases:

1. Procedural standard. — After rational and deliberative consideration, a governmental agency competent to make findings concerning racial discrimination by the governmental institution in question must make valid and supportable findings of prior discrimination, and it must make valid findings concerning the percentage of minority members who would have been employed by the governmental institution in question in the absence of discrimination.

2. Substantive standard. — These findings by a competent governmental agency must fully justify the percentage of minority members to be given preference under the affirmative action plan and the duration of the program, and the remedy incorporated in the affirmative action plan must not unduly burden or harm innocent parties in light of other available remedies.

*903 Although the Court states the standard under the Fourteenth Amendment in far less exacting language than this, the Court in fact applies this very set of standards in Section III of its opinion. I, therefore, concur in the Court’s conclusion that — in light of the information available in 1974 — the Detroit Board of Police Commissioners’ findings justified the remedy it adopted.