Amicus Curiae Brief — United States v. Paradise

Unrrep States or America,

Petitioner,

v.

Punum Parapise, Jr., ef al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF AM* US CURIAE FOR THE NAACP

LEGAL DEFENSE & EDUCATIONAL FUND, INC.

Jvuuvus L. Cuampers

Rowaup L. Extss

Perna Ham

Eric Scunaprer

Ciyvpe E. Murpny*

99 Hudson Street

16th Floor

New York, New York 10013

(212) 219-1900

Counsel for Amicus

*Counsel of Record

Whether the Fourteenth and Fifth

Amendments prohibit the use of a one for

one promotion ratio to remedy the

discriminatory effects of and prevent

future discriminatory actions by a

governmental employer.

QUESTIONS PRESENTED ....--seseee0s

INTEREST OF AMICUS ne eereeeeneneeneeeee

SUMMARY OF ARGUMENT ....--2eeeeeees

I.

Il.

Itt.

ing Racial Discrimin-

ation By A State Actor Is A

Sufficient State Interest To

Warrant Remedial Use Of Race

Conscious Remedies .........

The Role Of The Alabama

Highway Patrol In The

Oppression Of Black People

Is Important In Determining

The Scope Of The Remedy

Which, Though Narrowly

Tailored, Accomplishes Its

PUBMED ccccccccccecccccccecs

The Remedy Fashioned By The

District Court Took

priate Consideration Of

Critically Important Public

Safety COMCOrnS. .....sseeees

@ if «

13

17

33

VI. The One For One Promotion

Ratio Introduced Below, Was

Narrowly Tailored To

Eradicate The Disabling

Effects Of The Department's

Past Discrimination, And

To Prevent Future

DAGGRSMERECIER ccccccecececs

CONCLUSION oe eee eeeeeeeeeeeeeeeeeneee

- iii -

45

63

TABLE OF AUTHORITIES

Cases Page

Albemarle Paper Co., v. Moody, 422 U.S.

405 (1975) *eeeeeeeeeeneeneeeneeeneeee 3,13

Association Against Discrimination

v. City of Bridgeport, 594 F.2d

306 (2nd Cir. 1979) *enereeeneeee eeee 56

Berkman v. City of New York

705 F.2d 584 (2nd Cir. 1983) ..... 55

Boston Chapter, NAACP v. Beecher,

679 F.2d 965 (lst Cir.

1982) *eeeeeeeeeeeeeeeeeeeeneeneeeeeee 39

Bratton v. City of Detroit,

704 F.2d 878 *eeeseieeeeeeenreeneee#e e+ 41

Bridgeport Guard, Inc. v.

Bridgeport Civil Serv. Conm.,

482 F.2d 1333 cert.

denied, 454 U.S. 145 (1982) ..... 39

Carter v. Gallagher, 452

F.2d 315 (8th Cir. 1971)

(en banc), cert. denied, 406

U.S. 950 (1972) wevceeceeeeeeneees 39,56

Commonwealth of Pennsylvania v.

Rizzo, 13 FEP Cases 1475

(E.D. Pa. 1975) *enereoeeeeeneneeeeneeeee 57

- iv -

Cases

Detroit Police Officers Ass'n.

v. Young, 608 F.2d 671

(6th Cir. 1979) *eneneeeeeeeeeeee#ee#ee#e.

Fullilove v. Klutznick, 448 U.S.

Page

39,40

448 (1980) .ccccccccccccccccccccccsell ld

Gladestone Realtors v. Bellwood,

441 U.S. 91 (1979) *enerineneeneeeneeeee#ee

Green v. County School Board, 391

U.S. 430 (1968) *senereeneeeneneneneeneeneeee

Kirkland v. New York Dept. of

Corrections, 628 F.2d 796 (2d

Cir. 1980) seeeeeeeeeeeeeeeeeeeeee

Local 28, Sheet Metal Workers’

International Association v.

30

60

55

EEOC, 106 S.Ct. 3019 (1986).....13,14,15

16,46,61

Louisiana v. United States, 380 U.S.

145 (1965) eee eee eee eeeeeesee ee se 4,13,44

McKenzie v. Sawyer, 684 F.2d 62

(D.C. Cir. 1982) *eeeeeeeeeeeeeeee

Morgan v. Kerrigan, 530 F.2d

Gee €RGG Gale BOPOP cocceccosocece

Morrow v. Crisler, 491 F.2d 1053

1055 (5th Cir. 1974) (en banc)

cert. denied, 419 U.S. 895

C2976) ccccccccccccccsccccccccecces

- Veo

54

Cases Page

NAACP v. Allen, 340 F.Supp. 703,

705 (M.D. Ala. 1972), aff'd, 493 F.2d

614 (Sth Cir. 1974) ....eeee004++6,30,39

47,48,54

NAACP v. Beecher, 679 F.2d

965 (lst Cir. 1982) se eenerteneieeeseeeee#e 54

Ostapowicz v. Johnson Bronze

Co., 12 FEP Cases 1230

(W.D. Pa. 1974) eeeseeeoeeeoeoeo ee eeeee 57

Ostapowicz v. Johnson Bronze

Co., 541 F.2d 394 (3rd

1976) se eneeneeneneeneneeneeeneeneeee#eeee#ee#ee 57

Paradise v. Prescott, 585 F.Supp. 72,

74 (M.D. Ala. 1983) aff'd, 767 F.2d

1514 (llth Cir. 1985), cert. granted,

106 S.Ct. 3331 (1986) ..cceceecccess 8

Paradise v. Prescott, 767 F.2d

1514 (1985) ee eeeeeeersssesseseees + 8,15,50

52

Paradise v. Shoemaker, 470 F.Supp

439, 442 (M.D. Ala. 1979) ...2664++++8,32

Regents of the University of

California v. Bakke, 438 U.S.

SOS ccc c ccc cesecceesceseceeeeeeel4,15,45

Rogers v. Paul, 382 U.S. 98

(1965) wccccccccecs Terre er TEeTTTTT 30,32

Cases

Seagar v. Smith, 738 F.2d 1249

(D.C. Cir. 1984) e*enereoeneeenrtreeneneeeeee

Sosna v. Iowa, 419 U.S. 393,

(1975) *“eeeeeeeeeeeeeneeeeeeeeeneeee

Talbert v. City of Richmond, 648

F.2d 925 (4th Cir. 1981) .........

Taylor v. Jones, 653 F.2d 1193

(8th Cir. 1981) *eeeoeeneeeeeeeeneeeee 54,58

United States of America v.

The State of Alabama, Civil

Action No. 83-C-1676-S, p.2

(N.D. Ala. Southern Division

December 7, 1985) cscs eeeesecevcees

United States v. City of Chicago

663 F.2d 1354 (7th Cir.

1981) (en banc) e*eneneeseneeeeeeeeeeee#se

United States v. Montgomery County

Board of Education 395 U.S.

255 (1969) *enerineieeneneeneeneneneneeeeneeeee*«#

United States v. Operating

Engineers, 4 FEP Cases 1088

(N.D. Cal. 1972) se eneeneneneeneee eeeee

United States v. U.S. Klans,

194 F.Supp. 897 (M.D. Ala.

1961) *eeeeeeneneeeneteeneneneneneneneneneeeeneeeee

- vii -

26

39

61

57

24

Whitehead v. Oliver, 339 F.Supp.

348 (M.D. Ala. 1975) «cee eeeeeeees 27

Williams v. City of New Orleans,

543 F.Supp. 662 (E.D. La.

1982), aff'd 729 F.2d 1554

(Sth Cir. 1984) (en banc) ........ 57

Williams v. Wallace, 240

F.Supp. 100 (M.D. Ala. 1965) ...19,21,23

Williams v. Vukovich, 720

F.2d 909 (6th Cir. 1983) ........- 54

Wygant v. Jackson Board of Education,

106 S.Ct. 1842 TTUTTTITITITLITTTLitt Pt St.

32,33,38

Other Authorities

Title VII, Civil Rights Act

of 1964 *e @weweeeeneeneneeeneeeeeeeee passim

United States Commission on

Civil Rights, Law Enforcement:

A_ Report on Equal Protection

in the South (1965) ....cseeeeeees 9,25

New York Times, Wednesday, June

12, 1963 se ep eeweerrrenerieneeneneneeeneteeee ee © 26

2 G Myrdal, An American Dilemma

(Pantheon Paperback 1964) ........ 27,28

- viii -

N. Bartley,

The Rise of Massive

Resistance (Louisiana State

University Press 1969) ........... 27

Hawey, “Negro Employment in the

Birmingham Metropolitan Area",

Selected Studies of Negro

Emmployment in the South

(National Planning Associa-

Ge Gs EE Geaedbboececccecccce 27

Birmingham Area Chamber of

Commerce, Century Plus (1976) .... 27

“Law Enforcement", Birmingham

Es EE 656606606 s66ee6e0ccecce 27

S. Report No. 94-415 (1971) ........ 35

United States Commission on Civil

Rights, For all the People...

By All the People--A Report on

Equal Opportunity in State and

Local Government Employment

[tt pote ee ieee beeeseeecece ccc 36

Report of the National Advisory

Commission on Civil Disorders

(Bantam Books ed., 1968) ......... 37

- ix -

Unitei States Commission on

Civil Rights, Who is Guarding

the Guardians?: A Report on

Police Practices (1981) .

President's Commission on Law

Enforcement and Adzinistra-

tion of Justice,

No. 85-999

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

UNITED STATES OF AMERICA,

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eleventh Circuit

BRIEF AMICUS CURIAE FOR THE NAACP

LEGAL DEFENSE & EDUCATIONAL FUND, INC.

INTEREST OF AMICUS

The NAACP Legal Defense and

Educational Fund, Inc., is a non-profit

Ps

2

corporation formed to assist Blacks to

secure their constitutional and civil

rights by means of litigation. Since 1965

the Fund's attorneys have represented

plaintiffs in several hundred employment

discrimination actions under Title VII and

the Fourteenth Amendment, including many

of the employment discrimination cases

decided by this Court. In attempting to

frame remedies to redress, prevent and

deter discrimination, we have repeatedly

found, as have the courts hearing those

cases, that race conscious numerical

remedies are for a variety of pragmatic

reasons a practical necessity. In some

instances, numerical remedies are

essential to ending ongoing intentional

discrimination. In other circumstances,

such remedies are a practical necessity in

3

resolving by settlement, disputes as to

the identities of direct or indirect

victims of discrimination. We believe

that effective enforcement of Title VII

would at times be impossible unless

numerical orders remain among the arsenal

of remedial devices available to the

federal courts. The parties have

consented to the filing of this brief, and

letters of consent have been filed with

the Clerk.

SUMMARY OF ARGUMENT

This case raises important questions

regarding the power and resolve of the

Federal courts to eliminate the last

vestiges of discrimination in our society.

In Albemarle Paper Co., v. Moody, 422 U.S.

405, 418 (1975), this Court held that the

4

critical objective of Title VII is "to

eliminate so far as possible, the last

vestiges" of discrimination.} The

Solicitor General, however, would impose a

parsimonious interpretation on that

mandate, and exclude from its reach one of

the harsh results of such discrimination:

the virtual exclusion of blacks from all

but entry level positions with the Alabama

Highway Patrol.

In answering the constitutional

1 A number of the cases described

herein involve Title VII as well as

constitutional claims. In a Title VII

case the practical remedial problems are

similar to those in a Fourteenth Amendment

case. See, Louisiana vy. United States,

380 U.S. 145. 154 (1965):

»++-the court has not merely the

power but the duty to render a

decree which will so far as

possible eliminate the

discriminatory effects of the

past as well as bar like

discrimination in the future.

5

question addressed by the parties to this

action, the Court must necessarily

consider the power of the federal court

to order comprehensive race conscious

relief, particularly where, as here, the

defendant has made extraordinary efforts

to defeat prior orders from the court.

That inquiry is emblazoned by the position

of the ghehene Highway Patrol eas a

veritable icon of racial bigotry and

oppression of blacks throughout the south.

Few defendants come to this court

with so rich a history of discrimination,

or so clear a mantle of discriminatory

oppression, as does the Alabama Highway

Patrol. The actions of this defendant in

excluding blacks from their ranks; evading

court orders and consent ecrees requiring

the integration of their workforce; and

6

its participation in some of the most

infamous abuses of the rights of black

people during the struggle for civil

rights, exemplifies the reasons race

conscious promotional relief is a

necessary and appropriate tool in

eliminating the effects of entrenched

racial discrimination.

In 1972 Chief District Judge Frank M.

Johnson found that the Alabama Department

of Public Safety (the parent agency of

the Alabama Highway Patrol) “engaged in a

blatant and continuous pattern and

practice of discrimination" against

blacks, and noted that "[I)n the thirty-

seven year history of the patrol there has

never been a black trooper”. NAACP vy.

Allen, 340 F.Supp. 703, 705 (M.D. Ala.

1972), aff'd, 493 F.2d 614 (Sth Cir.

7

1974). In order to eliminate the effects

of that record of discrimination, the

court ordered that 50% of the entry level

troopers hired by the department be black

until 25% of the trooper force was black.

Notwithstanding this clear mandate,

the Department continuously tried to

frustrate the order. In 1975 the district

court found that the defendant, for the

purpose of frustrating or delaying full

relief to the plaintiff class,

artificially restricted the size of the

trooper force and the number of troopers

hired.*? In 1979 the district court found

that the effects of the defendant's

Giscrimination pervaded all levels of the

Department, and noted that the hiring

2 See Order of August 5, 1975, Joint

Appendix 34.

8

relief ordered in 1972 was designed to

provide an impetus to promote blacks into

positions above the rank of entry-level

trooper. Paradise v. Prescott, 767 F.2d

1514 (1985), quoting Paradise v.

Shoemaker, 470 F.Supp. 439, 442 (M.D. Ala.

1979).

By December 1983, nearly 12 years

after the 1972 order, only 4 of 197

persons above entry level were black, and

none of them were above the rank of

corporal. Paradise v. Prescott, 585

F.Supp. 72, 74 (M.D. Ala. 1983), aff'd,

767 F.2d 1514 (llth Cir. 1985), cert.

granted, 106 S.Ct. 3331 (1986).

This specific record of intentional

and continuous frustration of the

employment opportunities of blacks is best

evaluated when overlaid with the societal

9

discrimination prevalent in Alabama, and

the role played by the Alabama Highway

Patrol as the protector of the status quo.

The efforts of the Department to exclude

blacks from its ranks and then to prevent

their advancement within those ranks is in

keeping with the role of the department as

a bastion of the Jim Crow era.

Particularly vivid in the minds of blacks

through out this nation are images of

Alabama State Troopers driving black civil

rights demonstrators from the Courthouse

lawn in Gadsden, Alabama using cattle

prods and nightsticks.?

This Court cannot afford to ignore

this history, and the special position of

public safety agencies, in determining

3 United States Commission on Civil

Rights,

Protection in the South (1965) p. 63.

10

whether the one for one promotion ratio is

permissible under the Equal Protection

Clause. While this Court remains divided

on the question of whether strict scrutiny

or an intermediate standard applies when

evaluating an affirmative action plan, on

the facts of this case the government

plainly has both an =important'§ and

compelling interest in rectifying this

situation. These concerns are no less

important in determining the scope of the

remedy which, though narrowly defined,

must be designed to completely eradicate

the effects of this history of

discrimination.

Both Courts below conscientiously

applied these standards and held that, in

the light of the history of this case, the

district court's enforcement of the

11

consent decree was “eminently reasonable"

and moreover that “without promotional

quotas the continuing effects of this

(long-term, open and pervasive racial}

discrimination cannot be eliminated".

Paradise v. Prescott, 767 F.2d 1514, 1533

(1985).

The 1983 order imposing one for one

promotion is reasonably desigred to insure

that the last vestiges of the long and

brutal history of discrimination by the

Department are eradicated. Moreover, in

fashioning a remedy that is both flexible

and temporary, the court below avoided

imposing unnecessary burdens on the white

troopers, while insuring that blacks would

no longer be unfairly denied opportunities

which had been withheld for almost half a

century. Plainly the court below

12

considered the availability and efficacy

of other remedies, Fullilove v. Klutznick,

448 U.S. 448 (1980). However such avenues

of redress were ineffective because the

Department actively sought to frustrate

compliance with the court's order.

Notwithstanding that history the court did

not permanently impose a one for one

promotion ratio; rather, once a

nondiscriainatory promotion system was

developed, the one for one ratio ceased to

apply. '

The efforts undertaker by the

experienced Federal judges who considered

this case are necessary tools in the

elimination of the lingering effects of

the history, and, as here, current

discrimination suffered by blacks in this

country. If the methods used here, under

13

circumstances as egregious and significant

as here portrayed are ruled wunconsti-

tutional, than there will be little means

available to seriousiy address the mandate

of Albemarle, and Louisiana v. U.S., 380

U.S. 145, 154 (1965).

I. REMEDYING RACIAL DISCRIMINATION

BY A STATE ACTOR IS A SUFFICIENT

STATE INTEREST TO WARRANT

REMEDIAL USE OF RACE CONSCIOUS

REMEDIES.

While the members of this Court “have

not yet agreed ... on the proper test to

be applied in analyzing the

constitutionality of race-conscious

remedial measures", Local 28, Sheet Metal

Workers’ International Association v.

14

EEOC, 106 S.Ct. 3019, 3052 (1986) (Opinion

of Brennan, J.),* two principles are

certain. One, that "..whatever the

formulation employed, remedying past or

present racial discrimination by a state

actor is a sufficiently weighty state

interest to warrant the remedial use of a

carefully constructed affirmative action

program", Wygant v. Jackson Board of

Education, 106 S. Ct. 1842, 1853 (Opinion

of O'Connor, J., slip p.3); and, two, that

race-conscious remedies designed to

eliminate the vestiges of discrimination

can be used consistent with the Equal

4 See, Regents of the University of

California v. Bakke, 438 U.S. 265, (four

justices favoring strict scrutiny and four .

favoring intermediate scrutiny); Fullilove |

v. Klutznick, 448 U.S. 448 (1980) (three |

justices favoring strict scrutiny three

favoring intermediate scrutiny and three

declining to decide the issue.

lia eacamailiiaeion

LS

Protection guarantees of the Fifth and

Fourteenth Amendments. Wygant v. Jackson

Board of Education, 106 S. Ct. 1842, 1848

(1986) (Opinion of Powell, J., joined by

Burger, C.J., and Rehnquist and O'Connor,

J.J.) id, at 1853 (Opinion of O'Connor,

J.)i id, at 1861 (Opinion of Marshall, J.,

joined by Brennan and Blackmun, J.J.); id.

1867-1868 (Opinion of Stevens, J.)?

Regents of the University of California v.

Bakke, 438 U.S. 265, 320 (1978) (Opinion

of Poweli , J.); id, at 325 (Opinion of

Brennan, J., joined by White, Marshall and

Blackmum, J.J); Local 28, Sheet Metal

Workers' International Association vy,

ESOC, 106 S.Ct. 3019, 3052 (1986) (Opinion

of Brennan, Jee joined by Marshali,

Blackmun and Stevens, J.J.); id. at 39%54-

35 (Opinion of Powell, J.).

16

This Court has likewise made plain

that race-conscious affirmative relief

need not be limited to victims of prior

discrimination, Wygant v. Jackson Board of

Education, 106 S. Ct. at 1853 (Opinion of

O'Connor, J.); id. at 1863 (Opinion of

Marshall, J.); id. at 1867-68 (Opinion of

Stevens, J.); cf. id. at 1850 (Opinion of

Powell, J.); see also Local 28, Sheet

Metal Workers' International Association

v. EEOC, 106 S.Ct. at 3052-53 (Opinion of

Brennan, J.); id. at 3054-57 (Opinion of

Powell, J.); and that “innocent persons

may be called upon to bear some of the

burden of the remedy" Wygant v. Jackson

Board of Education, 106 S. Ct. at 1850

(Opinion of Powell, J.).

17

Il. THE ROLE OF THE ALABAMA HIGHWAY

PATROL IN THE OPPRESSION OF

BLACK PEOPLE IS IMPORTANT IN

DETERMINING THE SCOPE OF THE

REMEDY WFICH, THOUGH NARROWLY

TAILORED, ACCOMPLISHES ITS

PURPOSE

There can be no doubt, as the

Solicitor General concedes, that

government has a "compelling interest" in

remedying racial discrimination practiced

by a public employer. (Brief For The

United States at 21). Equally important

however, is the fashioning of a remedy to

eradicate the effects of that

discrimination. In determining the scope

of that remedy it is important to assess

the scope of the effects of the

discrimination that is to be remedied.

Here, the history of the Alabama Highway

18

Patrol, as an instrument of oppression of

black people, is critical to that

assessment.

The current effects of that history

and the fact that their are still no

blacks above the rank of corporal,

demonstrates that the effects of that

awful history continue to linger. The

effects linger in the form of an all-white

supervisory force; they linger in the form

of intransigence by that supervisory force

to the promotion of qualified blacks; and

they linger in the form of social and

official discrimination which led to an

unusually high attrition rate for blacks

who were hired.°>

The .refusal of the department to

5 order of August 5, 1975, Joint

Appendix 34.

EF

19

incorporate blacks into any but the lowest

level of the department, reenforce

attitudes formed by the pernicious

behavior of the Alabama Highway Patrol

during the struggle for Civil Rights in

the South.

In Williams v. Wallace, 240 F.Supp.

100 (M.D. Ala. 1965), the District Court,

Johnson, J., issued an injunction

enjoining the Governor of the State of

Alabama, George C. Wallace, the Director

of Public Safety for the State of Alabama,

Albert J. Lingo, and others, "from

intimidating, threatening, coercing or

interfering with the proposed march" from

Selma, Alabama, to Montgomery, Alabama, in

March of 1965. 240 F.Supp. at 109.

The court's order was precipitated by

the continuous brutal conduct of the all-

20

white Alabama State Troopers, and their

constant efforts to harass, intimidate,

coerce, threaten and brutalize blacks

engaged in demonstrations for the purpose

of encouraging blacks in their attempt to

register to vote, and to protest

discriminatory voter registration

practices in Alabama.

For example, the district court made

the following findings with respect to the

State Troopers' efforts to disrupt the

voter registration demonstrations in Perry

County, Alabama:

[Oj]n February 18, 1965, when

approximately 300 Negroes were

engaged in a peaceful demon-

stration by marching from a

Negro church to the Perry County

Courthouse for the purpose of

publicly protesting racially

discriminatory voter registra-

tion practices in Perry County,

Alabama, the Negro demonstra-

tors were stopped by the State

troopers under the command of

— ©

21

the defendant Lingo, and the

Negro demonstrators were at

that time pushed, prodded,

struck, beaten and knocked down.

This action resulted in the

injury of several Negrces, one

of whom was shot by an Alabama

State Trooper and subsequently

died.

Williams v. Wallace, 240 F.Supp. at 104.

These efforts of the Alabama State

Troopers and others came to a dramatic

climax on Sunday, March 7, 1965.

Approximately 650 black demonstrators left

the church in Selma, Alabama, for the

purpose of walking to Montgomery, Alabama.

There the demonstrators planned to present

to the Governor their grievances concern-

ing the discriminatory voter registration

practices in several central Alabama

counties, and, the restrictions that had

been imposed on their public demonstra-

tion in opposition to these practices.

22

As the demonstrators proceeded to the

Edmund Pettus bridge near the south edge

of the City of Selma, they were

"confronted by a detachment of 60 to 70

State troopers headed by the defendant

Colonel Lingo". Id. at 105. As detailed

by the District Court, the troopers then

proceed to implement their plan _ to

disperse the demonstrators, using tactics

"similar to those recommended for use by

the United States Army to quell armed

rioters in occupied countries." Id. at

105.

The troopers, equipped with tear

gas, nausea gas and canisters of

smoke, as well as billy clubs,

advanced on the Negroes.

Approximately 20 canisters of

tear gas, nausea gas, and

canisters of smoke were rolled

into the Negroes by these State

officers. The Negroes were then

prodded, struck, beaten and

knocked down by members of the

Alabama State Troopers. The

23

mounted "possemen," supposedly

acting as an auxiliary law

enforcement unit of the Dallas

County sheriff's office, then,

on their horses, moved in and

chased and beat the fleeing

Negroes. Approximately 75 to 80

of the Negroes were injured,

with a large number being

hospitalized.

Williams v. Wallace, 240 F.Supp. at 105.

These events not only obliged the

court to grant the injunction restraining

the brutal activities of the Alabama State

Troopers, but also played a significant

role in the subsequent passage of the

Voting Rights Act of 1965.

The activities of the Alabama Highway

Patrol were not however limited to

disrupting the efforts of blacks to obtain

access to the ballot box. Indeed Alabama

State Troopers have been commonly used to

enforce the racial status quo. In 1965

the United States Commission on Civil

24

Rights documented several incidents in

which local government agencies’ used

violence and suppression to preserve the

subservient position of blacks, by

suppressing the attempts of local blacks

to assert their constitutional rights. In

each of the events cited by the

Commission, local law enforcement agencies

either refused to protect black

demonstrators from violence, see, United

States v. U.S. Klans, 194 F. Supp. 897

(M.D. Ala. 1961), or were in fact the

perpetrators of violence against’ the

demonstrators.

The report makes specific mention of

the Alabama State Troopers during a

demonstration in Gadsden, Alabama, on June

1, 1963.

A few days after the first

sit-in, city officials obtained

25

a State Court injunction that

prohibited demonstrators from

blocking sidewalks, entrances to

stores, and traffic, but

expressly permitted certain

types of peaceful demonstra-

tions. The next afternoon...

235 persons were arrested for

violating the injunction. That

evening a large group of Negroes

assembled on the courthouse lawn

to protest the arrests; they

were driven from the lawn by

Alabama State troopers using

cattle prods and nightsticks.

U.S. Commission on Civil Rights, Law

Enforcement: A Report on Equal Protection

in_the South (1965), p.63.

Such actions by the Alabama Highway

Patrol put them in the forefront of the

brutal struggle to maintain the rigid

pattern of racial segregation that existed

in Alabama. Indeed when Governor George

C. Wallace made his infamous "stand in the

schoolhouse door" in defiance of a Federal

Court Order to desegregate the University

26

of Alabama, he was "flanked by state

troopers". ® The backbone of this rigid

policy of segregation was a series of laws

requiring segregation, which the apparatus

of the state was fully prepared to

enforce. ’

6 See New York Times, Wednesday,

June 12, 1963, page l.

7 See, e.g-, United States of

America v. The State of Alabama, Civil

Action Number 83-C-1676-S, p.2. (Northern

District of Alabama, Southern Division,

December 7, 1985), wherein the court makes

exhaustive findings regarding segregation

in higher education in Alabama, and

concludes that:

eee the State of

Alabama has indeed

operated a dual system.

of higher education;

that in certain

respects, the dual

system yet exists; and

that in other

respects, the “root

and branches" of the

dual system have not

been eliminated.

27

Gunnar Myrdal, in his classic work An

American Dilemma, uses Alabama as an

evyample of the particularly egregious

operation, administration and enforcement

of discriminatory practices or laws.

Noting that of all the black policemen,

detectives, marshals, sheriffs,

As one district court observed, the

"march of history" in Alabama was an

"extensive and extended history of

exclusion of blacks from the Alabama

political and governmental system," which

included discriminatory exclusion from

jury service and from voting employment

and educational opportunities. Whitehead

v. Oliver, 339 F. Supp. 348, 355-57 (M.D.

Ala. 1975) (Three-Judge Court).

See also, Gunnar Myrdal, American

Dilemma, 543, 635-36, 638-39, 952-53

(Pantheon Paperback 1964); N. Bartley, The

sta 87-88, 200-201

(Louisiana State University Press 1969);

Hawley, "Negro Employment in the

Birmingham Metropolitan Area", in Selected

the South

265 (National Planning Association ed.

1951); Birmingham Area Chamber of

Commerce, Century Plus 23 (1976); “Law

Enforcement", Birmingham 19-20 (Nov. 1969).

28

constables, probation and truant officers

in 1930, only 7% were employed in the

South, Myrdal observes:

The geographic distribution of

Negro policemen is in inverse

relation to the percentage of

Negroes in the total population.

Mississippi, South Carolina,

Louisiana, Georgia and Alabama-

-- the only states with more

than 1/3 Negro population --have

not one Negro policeman in then,

though they have nearly 2/5 of

the total Negro populations of

the nation.

2 G. Myrdal, An American Dilemma 635-36

(Pantheon Paperback 1964).

The discriminatory employment

practices of the Alabama Highway Patrol,

combined with its specific history of

brutality, served to reinforce a

reputation in the black community which

fostered mistrust and eppechension. In

circumstances such as these the courts

have often found that mandatory injunctive

29

relief is necessary to restore faith in

these institutions. In WV isler,

491 F.2d 1053, 1055 (5th Cir. 1974) (en

banc ), cert. denied, 419 U.S. 895 (1974),

following intransigence on the part of the

Mississippi Highway Patrol similar to that

encountered by the court here, the Fifth

Circuit noted that some form of mandatory

injunctive relie= would be essential if

the Patrol was to obtain the confidence of

the’ black community:

The reputation of the Patrol in

the black community as a

discriminatory employer has

posed a formidable obstacle to

the achievement of .a Patrol

which has eradicated all of the

effects of past discriminatory

practices. . . . Since we are

not sanguine enough to be of the

view that benign recruitment

programs can purge in two years

a reputation which

discriminatory practices of

approximately 30 years. have

entrenched in the minds of

blacks in Mississippi .. .

30

additional . . . measures [must]

be taken.

The experience of this Court and the

lower courts has repeatedly demonstrated

that as a practical matter there are

secondary and indirect effects of racial

discrimination which may often cause

severe and enduring injuries. Rogers v.

Paul, 382 U.S. 98, 200 (1965) (effect on

students of faculty segregation) ;

Gladestone Realtors v. Bellwood, 441 U.S.

91 (1979) (effect on whites of housing

discrimination against blacks). That the

lower courts were aware of these effects

is indicated by the following language

from the Fifth Circuit's opinion in NAACP

v. Allen, 493 F.2d at 621, which, while it

is directed at a hiring ratio, is no less

applicable to the promotion ratio

currently under consideration.

31

The use of quota relief in

employment discrimination cases

is bottomed on the chancellor's

duty to eradicate the continuing

effects of past unlawful

practices. By mandating the

hiring of those who have been

the object of discrimination,

quota relief promptly operates

to change the outward and

visible signs of yesterday's

racial distinctions and thus, to

provide an impetus to the

process of dismantling the

barriers, psychological or

otherwise, erected by past

practices.

The Department's discriminatory policies

permeated the entire agency, affecting

both its employment policy and its

treatment of black citizens. The profound

impact of the Department's policies and

history is not likely to be remedied by

the simple inclusion of a few blacks at

the lowest levels of employment with the

agency. Indeed, failing to address the

problem of promotion would be similar to

32

integrating a school system by having

black students but no black teachers; or

black teachers but no black principals.

See e.g., Rogers v. Paul, 382 U.S. at 200.

The one for one promotion ratio

ordered in 1972 was designed to provide an

impetus to promote blacks into positions

above the rank of entry level trooper

Paradise v. Shoemaker, 470 F. Supp. 439,

442 (M.D. Ala. 1979). In order to obtain

real change and to give the community a

sense of that change, the district court

recognized the necessity of insuring that

blacks became part of the entire structure

of the department. Such action is

necessary to prevent discrimination

against subordinate minority employees and

the public.

33

III. THE REMEDY FASHIONED BY THE DISTRICT

COURT TOOK APPROPRIATE CONSIDERATION

OF CRITICALLY IMPORTANT PUBLIC SAFETY

CONCERNS

The special function of government

and the responsibility of those empowered

to enforce the law makes particularly

compelling this Court's suggestion that

promoting racial diversity in the

workforce is a sufficiently compelling

government interest to support

implementation of an affirmative action

plan. See Wygant v. Jackson Board of

Education, 106 S.Ct. at 1863 (Opinion of

Marshall, J., joined by Brennan and

Blackmun, J.J.); id. at 1868 (Opinion of

Stevens, J.). See also id. at 106 S.Ct.

at 1853 (Opinion of O'Connor, J.).

Moreover it is precisely the evil of

racial exclusion and other discriminatory

34

practices on the part of governmental

employers that Congress sought to address

when it made Title VII applicable to state

and local governmental employers.

Similarly in support of her contention

that "the remediation of governmental

discrimination is of unique importance", ®

Justice O'Connor specifically cited the

legislative history of the 1972 Amendment

to Title VII.

Th(e}] failure of State and local

governmental agencies to accord

equal employment opportunities

is particularly distressing in

light of the importance that

these agencies play in the daily

lives of the average citizen.

From local law enforcement to

social services, each citizen is

in constant contact with many

local agencies. The importance

of equal opportunity in these

agencies is, therefore, self-

evident. .. . Discrimination

c v. _Jackson Board _of

Education, 106 S.Ct. at 1855.

35

by government . . . serves a

doubly destructive purpose. The

exclusion of minorities from

effective participation in the

bureaucracy not only promotes

ignorance of minority problems

in that particular community,

but also creates mistrust,

alienation, and all too often

hostility toward the entire

process of government.

S. Rep. No. 92-415 at 1060 (92nd Cong., lst

Sess. 1971)?

More specifically, both the Congress

and the United States Commission on Civil

Rights recognized the particular

importance of removing racial barriers to

employment with police agencies.

- + + Barriers to equal employ-

ment are greater in police and

fire departments than in any

other area of State and local

government... . . State police

forces employ very few Negro

9 Reprinted in Legislative History

°

i

t ct of

1972 (1972) at 419.

36

policemen. o « « Bebios and

fire departments have

discouraged minority persons

from joining their ranks by

failure to recruit effectively

and by permitting unequul

treatment on the job including

unequal promotional

opportunities, discriminatory

job assignments, and harassment

by fellow workers.. . . Unless

special precautions are taken, a

past history of overt

discrimination may continue to

deter minority applications for

employment or advancement,

particularly with respect to

positions which have not

traditionally been held by

minority persons.

United States Commission on Civil Rights,

For all the People eee? 1 th

People--A Report on Equal Opportunity in

State and _ Local Government _ Employment

(1969), reprinted as exhibit ativ

History 2 8 the m ent

Opportunity Act of 1972 (92nd Cong. 1972)

p.1118-1119.

Almost twenty years ago the Report of

37

the National Advisory Commission on Civil

Disorders (Bantam Books — 1968),

pointedly noted circumstances which surely

apply to the Alabama Highway Patrol.

[Fjor police in a Negro

community to be predominantly

white can serve as a dangerous

irritant; a feeling may develop

that the community is not being

policed to maintain civil peace

but to maintain the status quo.

Id. at 315.

The United States Civil Rights

Commission in its pub¥ication, Who is

Guarding the Guardians?: A Report on

Police Practices (1981), made a similar

observation while quoting a report of the

National Minority Advisory Council on

Criminal Justice, October 1980.19 the

10 The National Minority Advisory

Council on Criminal Justice was

established in June 1976 by the Law

Enforcement Assistanse Administration of

the U.S. Department of Justice.

38

Advisory Council's report noted that the

nation's first police force was developed

in the South to prevent disruptions by

slaves, and that typically the police

share the society's views of minorities

and those views are reflected in the

police agencies dealings with minorities.

These and similar observations have

led to the conclusion, noted by Justice

Stevens, that it might reasonably be

concluded that a racially diverse police

force “could develop a better relationship

with the community and thereby do a more

effective job of maintaining law and order

than a force composed only of white

officers", Wygant v. Jackson Board of

*

Education, 106 S.Ct. at 1868, a view

similarly expressed by the First, Second,

Fourth, Fifth, Sixth, Seventh and Eighth

J

~

BEST AVAILABLE COPY

39

Circuits.11 These opinions share an

awareness of the deleterious effect on the

community of maintenance of segregated

employment , patterns in law enforcement

agencies, which is not limited to lower

level positions.

This need extends to the higher

ranks in police departments,

such as the rank of sergeant

involved in this case:

If minority groups are

11 see Boston Chapter, NAACP v.

, 679 F.2d 965, 977 (1st Cir.

1982); Bridgeport _ Guard, _Inc. v.

Bridgeport Civil Serv. Com.

1333, 1340-41 (2d Cir. 1973); Talbert v.

City of Richmond, 648 F.2d 925, 931-32

(4th Cir. 1981), cert. denied, 454 U.S.

145 (1982); NAACP v. Allen, 493 F.2d 614,

621 (5th Cir. 1974);

'n. v. Young, 608 F.2d 671,

695-96 (6th Cir. 1979); United States v.

City of Chicago, 663 F. 2d 1354, 1364 (7th

Cir. 1981) (en banc); Carter v. Gallagher,

452 F.2d 315, 331 (8th Cir. 1971) (en

banc), cert. denied, 406 U.S. 950 (1972).

See also President's Commission on Law

“énforcement and Administration of Justice,

Task Force Report: The Police 167 (1969).

40

to feel that they are

not policed entirely

by a white police

force, they must see

that Negro or other

minority officers

participate in policy-

making and other

crucial decisions.

Detroit Police Officers’ Ass'n. v. Young,

608 F.2d 671, 995 (6th Cir. 1979) (quoting

President's Commission on Law Enforcement

and the Administration of Justice, Task

Force Report: The Police 167). See also,

Talbert v. City of Richmond, 648 F.2d 925,

932 (4th Cir. 1981).

As graphically reported by the Sixth

Circuit, the effects of black senior

officers can markedly change the tenor and

outcome of interactions between the police

and minority citizens.

The record established a pattern

of mistreatment in the form of

outright discrimination by white

officers against black citizens

41

as well as more subtle

discrimination in the handling

of complaints and

investigations. A number of

witnesses testified to the fact

that many such incidents could

have been avoided had black

lieutenants been overseeing the

interaction of police officers

and black citizens.12

Given the brutal history of the

Alabama Highway Patrol and its active role

in the suppression of blacks, the view

taken by the Sixth Circuit in Bratton v.

City of Detroit, 704 F.2d 878, 897 n.44 is

particularly pertinent:

We have chosen to deal with the

situation with regard to the

Detroit citizenry as an element

of our redress analysis. This

is so because in Detroit the

issue cannot be neatly

categorized within the bounds of

“operational needs." We are

faced with far more than a

generalized need for a police

force which reflects the racial

12 Bratton v. City of Detroit, 704

F.2d 878,895-96 (6th Cir. 1983).

meee BEST AVA

\

\ 42

composition of e city. We are |

faced, rather, with a population

that has been subjected to

constitutional wee a as a

direct reshl the

discriminato ay ces which

have creat intained a

white donirfe police force.

Whatever ppropriate

semantics t ~ situation,

we are convinced a the facts

present a constituBionally valid

justification (a substantial

governmental interest) for the

implementation of this

particular remedy. .

Certainly no less than the police in

the City of Detroit, Alabama State

troopers subjected black people to a

myriad of constitutional indignities.

Indeed the symbolic nature of many of

those abuses, such as the actions of the

Alabama State Troopers during the March

from Selma to Montgomery, are indelible

symbols of racial intolerance. As the

record in this case indicates, those

actions were combined with a deliberate

ABLE COPY

43

policy of excluding blacks from their

ranks, and once the most heinous of those

abuses were no longer in the public eye,

the Alabama Highway Patrol continued to

obstruct the integration of its ranks.

The brutal practices of the Alabama

Highway Patrol and their discriminatory

employment history, as documented in the

proceedings below, make plain that the

state has an important and compelling

interest in fully rectifying this

situation.

Here, societal discrimination

crystallized in an organization that

symbolized the oppression of black people.

The refusal of state authorities to

integrate the organization was an

indication of the reluctance of the State

to yield this last bastion of white

44

supremacy to the demands of _ simple

justice. This stance and the very nature

of the State Troopers demanded

comprehensive action on the part of the

court, lest it neglect its "duty to render

a decree which will so far as possible

eliminate the discriminatory effects of

the past as well as bar like

discrimination in the future". Louisiana

-— United States, 380 U.S. 145, 154

(1965). Thus the operational need was

both practical (an investigative and law

enforcement agency needs the support of

the people it protects, and must be seen

as fair and even handed) and symbolic

(ending the history of the Alabama Highway

Patrol as an all-white tormentor of the

black community). The one for one

promotion remedy appropriately reflects

LABLE COPY

45

the need to eradicate the effects of

centuries of exclusion of black people

from the power or ability to obtain

personal security in Alabama.

IV. THE ONE FOR ONE PROMOTION RATIO

INTRODUCED BELOW, WAS NARROWLY

TAILORED TO ERADICATE THE

DISABLING EFFECTS OF THE DEPART-

MENT'S PAST DISCRIMINATION, AND

TO PREVENT FUTURE DISCRIMINATION

In Regents of the University of

California v. Bakke, 438 U.S. at 307,

Justice Powell asserted that the states

have "a legitimate and substantial

interest in ameliorating, or eliminating

where feasible, the disabling effects of

identified discrimination." However the

formulation of the Solicitor General would

define those effects sb narrowly as to

leave many of the most pernicious results

BEST AVAIL

46

of the Alabama Highway Patrol's actions

untouched. Similarly by restricting the

available remedies to dismantling specific

procedures used to discriminate, the

government essentially resurrects the

arguments rejected by this Court last

term.

The state's interest in eradicating

the effects of past discrimination

encompasses not only the dismantling of

the apparatus of discrimination, but also

securing measures that will prevent future

discrimination. Local 28, Sheet Metal

Workers' International Association v.

EEOC, 106 S.Ct. at 3049.

In the case of this defendant it is

clear that the lower courts were

confronted with a situation in which the

entire structure of the Department was

BLE COPY

47

permeated with intentional and persistent

discrimination. Beginning with NAACP v.

Allen, 340 F.Supp. 703, 705-6 (M.D. Ala.

1972), aff'd, 493 F.2d 614 (5th Cir.

1974), the district court found

unequivocally that the Department “engaged

in a blatant and continuous pattern and

practice of discrimination in hiring", and

that:

The racial discrimination in

this instance has so permeated

the Department of Public

Safety's employment policies

that both mandatory and

prohibitory injunctive relief

are necessary to end these

discriminatory practices and to

make some substantial progress

toward eliminating their

effects.

In 1975 the Court of Appeals

observed:

As in Morrow, [v. Crisler, 491

F.2d 1053 (5th Cir. 1974)], the

district court was confronted

with (1) clear evidence of a

48

long history of intentional

racial discrimination, oo

paucity, if not a total absence

of any positive efforts by the

patrol to recruit minority *

personnel and (3) utilization of

unvalidated employment criteria

and selection procedures and

other discriminatory practices.

NAACP v. Allen, 493 F.2d 614, 629-1 (5th

Cir. 1974).

Based on this record the Fifth

Circuit upheld the district court's

conclusion that numerical relief was

essential toward making any “meaningful

progress towards eliminating the

unconstitutional practices and to overcome

the patrol's thirty-seven year reputation

as an all-white organization". Id.

Even after the Court of Appeals

upheld the original hiring Order in this

case, the district court found the

Defendants, for the purpose of

ABLE COPY

49

“frustrating or delaying full relief to

the plaintiff class", to have

“artificially restricted the size of the

trooper force and the number of troopers

hired". Order of August 5, 1975 J.A.

3413,

Moreover the district court made the

following findings with respect to the

unusually high attrition rate for blacks

hired since 1977:

([Tjhe high attrition rate among

blacks resulted from the

selection of other than the best

qualified blacks from the

eligibility rosters, some social

and . ofticial discrimination

against blacks at the trooper

training academy, preferential

treatment of whites in some

aspects of training and testing,

and discipline of blacks harsher

than that given whites for

similar misconduct while on the

force.

13 Citations to "J.A." are to the

Joint Appendix.

50

Shortly before the imposition of the

challenged order, the district court

rejected the promotion proposal of the

Patrol, finding that it failed to comply

with the requirements of the 1981 consent

decree that it be free of adverse impact.

After applying the Uniform Guidelines of

Selection Procedures, and noting that zero

blacks would be promoted under the

Patrol's plan, the court held:

Short of outright exclusion

based on race, it is hard to

conceive of a selection

procedure which would have a

greater discriminatory impact.

Paradise v. Prescott, 580 F. Supp.

171, 173 (M.D. Ala. 1983).

This. pattern of resistance on the

part of the Department continued. Less

than three years ago the district court

51

found:

On February 10, 1984, less than

two months from today, twelve

years will have passed since

this court condemned the

racially discriminatory policies

and practices of the Alabama

Department of Public Safety.

Nevertheless, the effects of

these policies and practices

remain pervasive and conspicuous

at all ranks above the entry-

level position. Of the 6

majors, there is still not one

black. Of the 25 captains,

Of the 35 lieutenants, there is

still not one black. Of the 65

sergeants, there is still not

one black. And of the 66

corporals, only four are black.

Thus, the department still

operates an upper rank structure

in which almost every trooper

obtained his position through

procedures that totally excluded

black persons. Moreover, the

department is still without

acceptable procedures for

advancement of black troopers

into this structure, and it does

not appear that any procedures

will be in place within the near

future. The preceding scenario

is intolerable and must not

continue. The time has now

arrived for the department to

52

7

take substantial steps to open

the upper ranks to black

troopers. (emphasis in

original)

Paradise v. Prescott, 585 F.Supp. 72, 74

(M.D. Ala. 1983).

Another clear example of the court's

concern with the Patrol's intention to

carry out the decree in good faith was its

response to the Department's contention

that it “is without legal authority and

sufficiently trained personnel to design

any promotional procedures", pursuant to

its Consent Decree obligation to provide

for the advancement of black troopers into

the upper ranks of the Patrol. Order of

January 13, 1984 J.A. 138.

Thé Public Safety Department's

contention that it is without

legal authority is not only

meritless, it is frivolous.

Moreover, that the Department of

Public Safety would even advance

53

this argument dramatically

demonstrates the need for the

relief imposed by this court.

Such frivolous arguments serve

no purpose other than to prolong

the discriminatory effects of

the department's 37-year history

of racial discrimination.

Id. at 139.

Confronted with actions such as

these the lower courts have frequently

determined that positive action in the

form of mandatory injunctive relief is

necessary to overcome the effects of past

discrimination and to prevent future

discrimination. In a variety of

circumstances where district courts have

concluded that an employer would not obey

a general injunction against employment

discrimination, numerical hiring or

promotion orders have been required simply

to end continued intentional violations of

54

the law.14 Race conscious orders

regarding the selection of supervisory

personnel!5 or public employees!® have

been utilized where district courts

regarded them. as necessary to prevent

discrimination against subordinate workers

or against the public. Where an employer

has been found guilty of using a non-job

related employment test, and no new test

14 See, e.g. NAACP v. Allen, 493

F.2d 614 (5th Cir. 1974); Morrow v.

Crisler, 491 F.2d 1053 (5th Cir. 1974).

15 See, e.g. McKenzie v. Sawyer, 684

F.2d 62 (D.C. Cir. 1982) (3 of 5 members

eof selection panel to be black); cf.

Taylor v. Jones, 653 F.2d 1193 (8th Cir.

1981) (quota hiring necessary to end

racist environment of virtually all white

workforce).

16 See, e.g., Williams v. Vukovich,

720 F.2d 909 (6th Cir. 1983) (police);

NAACP v. Beecher, 679 F.2d 965 (lst Cir.

1982) (police and fire); Morgan v.

9 530 F.2d 431 (lst Cir.

1976) (teachers).

> .

55

has yet been framed, courts have directed

that, as an interim measure, the old test

may be utilized in combination with a

race-conscious adjustment to eliminate the

discriminatory effect of that test.1’

Even in providing relief for victims of

past discrimination, judges have at times

found it impracticable to frame decrees

affecting thousands of potential victims

of classwide discrimination with the same

precision that might be possible in a

single tort action.2® ~

17 See, e.g., Berkman v. City of New

York, 705 F.2d 584 (2d Cir. 1983) (interim

numerical hiring order necessary as

“compliance relief") ;

, 628 F.2d 796 (2d

Cir. 1980) (Interim order adding 250

points to scores of minority applications

on non-job related test).

18 Segar _v. Smith, 738 F.2d 1249,

1289 n. 36 (D.C. Cir. 1984) (individual-

ized hearings not required where

impracticable) ; Association _ Against

56

Several circuits have concluded that

in some situations the unlawful deterrent

effect of an employer's well deserved

reputation for discrimination could only

be dissipated by a court ordered increase

in the number of minority or female

employees. 9

Similarly, when lower courts have

concluded that eradication of continuing

discrimination required an alteration of

the group of individuals involved in

making critical personnel decisions, they

have issued orders directing that

Discrimination v. City of Bridgeport, 20

FEP Cases 985 (D.Conn. 1979) (where number

but not identities of victim known,

beneficiaries of decree to be chosen by

lot among probable victims).

19 association

, 594

Discrimination v. City of Bridgeport

F.2d 306, 311 n.13 (2nd Cir. 197/79); Carter

v. Gallagher, 452 F.2d 315, (8th Cir. 1971).

57

specified numbers of minorities or females

be included among officials responsible

for recruiting new applicants, 2°

considering appeals of rejected

applicants,*+ training newly hired

workers,*2 and, more broadly, evaluating

all hiring and promotions.23 such orders

were upheld as “an effective method to

prevent future discrimination". 24

20

Commonwealth of Pennsylvania v.

Rizzo, 13 FEP Cases 1475, 1483 (E.D. Pa.

1975).

21 Id.

22

’

543 F.Supp. 662, 682 (E.D. La. 1982),

aff'd 729 F.2d 1554 (5th Cir. 1984) (en

banc) ; Vv;

Engineers, 4 FEP Cases 1088, 1097 (N.D.

Cal. 1972).

23

12 FEP Cases 1230, 1232 (W.D. Pa. 1974).

24

541 F.2d 394, 404 (3rd 1976).

’

58

Absent the requirement that the

Department be forced to include blacks

among the upper ranks of the Patrol -- as

envisioned by the original hiring order

and subsequent consent decree -- the

likelihood of substantial change in the

Department was virtually nil. In effect,

the situation was not unlike that

confronted by the court in Taylor v.

Jones, 495 F.Supp. 1285 (E.D. Ark. 1980),

aff'd, 653 F.2d 1193 (8th Cir. 1981),

where a black plaintiff had been driven

from her position as one of the Arkansas

National Guard's few minority workers

after a long period of harassment. The

trial court held that full relief required

more than an order reinstating Taylor in

the job involving the same “appalling

conditions." 495 F.Supp. at 1294. The

59

judge found that, at the offices of the

Guard,

as the environment approaches a

fairer racial representation,

the degree of racism tends to

Giminish. ... ([(Plaintiff) has

standing not only to seek

reinstatement, but to seek

reinstatement in a work place

where all people are treated

with decency and respect. The

Court finds that this goal will

be materially impeded unless the

Arkansas National Guard is

required to step up its

employment of qualified black

persons. .. . There simply is

no other way to ensure that the

law will be complied with in the

future.

495 F.Supp. at 1294.25

The lower courts' choice of a one for

one ratio was clearly based on its

experience with the Department over a 12

year period: a period during which the

defendant Clearly demonstrated its

25 see also, Sosna v. Iowa, 419 U.S.

393, 414n.1 (1975) (White, J., dissenting).

60

willingness to exhibit exceptional

intransigence. The one for one promotion

ratio ordered by the court addresses this

intransigence as well as the government's

broad interest in eradicating the

lingering effects of discrimination and

preventing the continuation of that

discrimination into the future.

After almost half a century of

existence and 12 years of litigation, with

no real progress toward integrating the

upper rank structure, the district court

adopted a remedy that "promises

realistically to work, and promises

realistically to work now." (emphasis in

original) Green v. County School Board,

391 U.S. 430, 439 (1968).

As this Court noted last term

it is doubtful, given [the

employer's} history in this

61

litigation, that the District

Court had available to it any

other effective remedy. That

court, having had the parties

before it over a period of time,

was in the best position to

judge whether an alternative

remedy, would have been

effective in ending petitioner's

discriminatory practices.

Local 28, Sheet Metal Workers v. EEOC, 106

S.Ct. at 3056 (Opinion of Powell, J.).

The actions of the Patrol would have

required a permanent one for one ratio in

order to fully remedy, within this

generation, the effects of the Patrol's

adamant refusal to promote . blacks.

However, in the exercise of its equitable

discretion, the district court's order,

abandoning the one for one ratio as soon

as a non-discriminatory promotion

procedure was developed, proved a

practical solution which reconciled both

public and private needs. United States

62

v. Montgomery County Board of Education,

395 U.S. 225 (1969).

In framing remedial decrees, the

federal courts act in a complex world in

which it is at times impossible to

reconstruct the past. If they are to be

successful in meeting the demands for

justice in the face of intransigent

opposition, they must have the tools to

implement remedies that are feasible and

promising in their effectiveness.

63

CONCLUSION

For the above reasons the decision of

the court of appeals should be affirmed.

Respectfully submitted,

JULIUS L. CHAMBERS

RONALD L. ELLIS

PENDA HAIR

ERIC SCHNAPPER

CLYDE E. MURPHY*

99 Hudson Street

16th Floor

New York, New York 10013

(212) 219-1900

Counsel for Amicus

*Counsel of Record