# Amicus Curiae Brief — United States v. Paradise

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1986
- **Citation:** 478 U.S. 1019

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0437%3A12. Public record. Not legal advice.