Amicus Curiae Brief — United States v. Paradise
Supreme Court brief1986
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No. 85-999 |?
"TLED
IN THE SEP 86 naos
Supreme Court of the United F SPANIOL, J.
OCTOBER TERM, 1986
UNITED STATES OF AMBRICA,
Petitioner,
v.
PHittip Parapise, Jr., ef al,
Respondents.
On Wait or CeRTIORARI TO THE
Unrrep Statres Court oF APPEALS FoR THE ELeVENTH CIRCUIT
BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL
RIGHTS UNDER LAW, THE AMERICAN CIVIL
LIBERTIES UNION, THE AMERICAN JEWISH
CONGRESS, THE MEXICAN AMERICAN LEGAL
DEFENSE AND EDUCATIONAL FUND,
THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE,
THE NATIONAL WOMEN’S LAW CENTER,
THE PUERTO RICAN LEGAL DEFENSE AND
EDUCATION FUND, WOMEN EMPLOYED, AND THE
WOMEN’S LEGAL DEFENSE FUND
AS AMICI CURIAE IN SUPPORT OF RESPONDENTS
PHILLIP PARADISE, JR.. ET AL.
Crvum. Ricuts Unper Law
1400 Eye Street, N.W.
(Suite 400)
Washi , D.C. 20005
(202) 371-1212
September 30, 1986
Ropsert D. Jorre
Counsel of Record
Tuomas D. Barre
Ropert F. MULLEN
Dante. J. Lerreie.
ALDEN L. ATKINS
Mark A. Sirota
CRAVATH, Swaine & Moore
One Chase Manhattan Plaza
New York, New York 10005
(212) 422-3000
Attorneys for Amici Curiae
Counsel continued on inside cover
ie
Court, U.S,
Jacx D. Novi
AMPRICAN Civil
Liperties UNION
132 West 43rd Street
New York, New York 10036
(212) 944-9800
Theresa Fay Bustictos
ANTONIA HERNANDEZ
MEXICAN AMPRIC AN
LEGAL DPPENSE AND
EDUCATIONAL FuND, Inc
634 South Spring Street
( lith Floor)
Los Angeles, California 90014
(213) 629-2512
SUZANNE E. Meeker
Marcia D. Gareenpercer
NaTionaL Women’s Law
CENTER
1616 P Street. N.W
Washington, D.C. 20036
(202) 328-5160
Donna R. Lennorr
WOMEN EmpLoven
5 South Wabash
(Suste 415)
Chicago, Ilinows 60603
(312) 782-3902
Low WaLDMAN
Marc D. STERN
AMERICAN JEwtsH CONGRESS
1S Eas: 84th Street
New York, New York 10028
(21>) 879.4500
Grover HANKINS
NATIONAL ASSOCIATION
FOR THE ADVANCEMENT
or CoOLorep Peorie
4805 Mount Hope Drive
(Room S01)
Baltumore, Maryland 21215
( OL) 358-8900
LINDA FLORES
KENNETH K IMERLING
Puerto Rican Lecat Derense
AND EDUCATION FUND, INc
99 Hudson Street
New York, New York 10013
(212) 219-3360
Jupityw L. Licwirman
Craupia Wirwers
Women’s Lecat Derense Fund
2000 P Street, NW
(Sune 400)
Washington, D.C. 20036
(202) 887-0364
TABLE OF CONTENTS
PAGE
Xa ill
CONSENT OF THE PARTIES 000000000000. cocecccececeeeeeeeeeeeceeee l
INTEREST OF AMICI CURIAE 0200000... ccccccceccccceeececceeee--. 2
STATEMENT OF THE CASE... ooo cccecececcecececeecececeeseeeeee.... 4
SUMMARY OF ARGUMENT 200000 6
Se 9
I. THe CONTINUED EXCLUSION OF BLACKS FROM THE
Upper RANKS OF THE STATE Po ice Is AN EFFECT OF
Prior DISCRIMINATION AGAINST BLACKS. ERADICA-
TI~S SucH LINGERING EFFrects oF DISCRIMINATION
Is A COMPELLING GOVERNMENTAL INTEREST.......__ 9
A. The Governmental Interest Is Not Merely in
Stopping Discrimination, but Also in Eradicat-
ing the Lingering Effects of Past Discrimination. 11
B. The Record Demonstrates That the Depart-
ment Is Permeated with Discrimination....__ 13
1. Discrimination in hiring limits the promo-
tional opportunities of blacks, particularly
when the employer promotes solely from
Ea ea 14
2. The record contains findings of dis-
crimination in promotions............................. 15
3. The Department has a pervasive in-
Stitutional bias against blacks... 16
C. An Additional Effect of Discrimination Is a Less
Responsive and Less Effective Police Force... 18
Il. THe Decemper 1983 Orper Is a SUFFICIENTLY
NARROWLY TAILORED MEANS TO EFPECTUATE THE
COMPELLING GOVERNMENTAL INTEREST IN ERADICA-
TING THE LINGERING Errects or Past Dis-
A. The December 1983 Order Is More Efficacious
than a 25% Ratio in Eradicating the Effects of
oe NR 20
1. The December 1983 order is aimed at
eradicating the institutional bias................ 20
2. The December 1983 order is properly de-
signed to encourage the Department to
implement 4 lawful promotional procedure
B. The December 1983 Order Is Less Intrusive on
the Department and Less Burdensome on
Whites than the Alternatives Proffered by the
CI a ccsinscinsntinigcintctitinnitintapuninitiadtnnipeanss «
C. The December 1983 Order Does Not Unneces-
sarily Trammel the Legitimate Interests of
IP ecncsensrecesencesasvutestensenstbedatitinanmeasinctinnsasioectans
ECS ee ek we eae nn Sma E e-em
PAGE
TABLE OF AUTHORITIES
CASES PAGE
Albemarle Paper Co. v. Moody, 422 U.S. 405
Cee Pinateetsntnncnizectintinitinbinsiiaantetidalientipintaaeiangeen 17, 21
Association Against Discrimination in Employment,
Inc. v. City of Bridgeport, 647 F.2d 256 (2d Cir.
1981), cert. denied, 455 U.S. 988 (1982)............. 11
Berkman v. City af New York, 705 F.2d 584 (2d
eh eet ctibceceshtaiinatasiceitindastaiuiniaitiiattabnaiitiinttimmmpeatinas 11
Boston Chapter, NAACP v. Beecher, 504 F.2d 1017
(ist Cir. 1974), cert. denied, 421 U.S. 910
Gi ee aiinitisetieicuatetaciniesccamnrsininnialanitpnstiistanpeghiubeitatesinegees 23
Boston Chapter, NAACP v. Beecher, 679 F.2d 965
es Se riddichciietitinesintintitesiiins sitinlaeniaindiidaditiinnten 19, 28
Bratton v. City of Detroit, 704 F.2d 878 (6th Cir.
1983), cert. denied, 464 U.S. 1040 ( 1984)........... 23
Bridgeport Guard, Inc. v. Bridgeport Civil Serv.
Comm., 482 F.2d 1333 (2d Cir. 1973) .........0000.... 19
Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971)
(en banc), cert. denied, 406 U.S. 950 (1972)...... 23
Detroit Police Officers’ Ass’n v. Young, 608 F.2d
671 (6th Cir. 1979), cert. denied, 452 U.S. 938
© Rae ii edciesbvnncinascissnicrhicsianeaieeriadhaicieeneitanditelinainaseninee 14, 19,29
Ensley Branch, NAACP v. Seibels, 13 Empl. Prac.
Dec. (CCH) ¥ 11,504 (N.D. Ala. 1977), aff'd in
relevant part, 616 F.2d 812 (Sth Cir.), cert.
denied, 449 U.S. 1061 (1980) .0......cccccccccceeeeeeees 9
Franks v. Bowman Transp. Co., 424 US. 747
CGE aindticecenmenoibiniabeniesimaiiimnansennaee 22, 29
Green v. County School Bd., 391 U.S. 430 (1968)... 11
Griggs v. Duke Power Co., 401 U.S. 424 (1971)...... 15
Guardians Ass’n of the New York City Police 4,
Inc. v. Civil Serv. Comm., 630 F.2d 79 (2d Cir.
1980), cert. denied, 452 U.S. 940 (1981) ............. 11,24
Hazelwood School Dist. v. United States, 433 U.S.
SEIT TITTITET TD oiniciteetc cen dinaninpnigunttiiaiiimbemsnaianaseimantenians
Houser v. Hill, 278 F. Supp. 920 (M.D. Ala. 1968)
International Bhd. of Teamsters v. United States,
ee TE icicccterinttiiannnninepeninetionnesaen
Keyes v. School Dist. No. 1, 413 U.S. 189 (1973)...
Kirkland v. New York State Dep’t of Corrections,
711 F.2d 1117 (2d Cir. 1983), cert. denied, 465
Re ee EEE cecteestinciceiandibidehitntiecemmmentssaniestenrencece
Local 93, Int'l Ass'n of Fi ers v. City of
Cleveland, 106 S. Ct. 3063 (1986) ............c0cccc
Local 35, Int'l Bhd. of Elec. Workers v. City of
Hartford, 462 F. Supp. 1271 (D. Conn. 1978),
625 F.2d 416 (1980), cert. denied, 453
ON! ht ETE TCT CREE
Local 28, Sheet Metal Workers’ Int'l Ass'n v.
EEOC, 106 S. Ct. 3019 ( 1986) .0.......ccccccccceeeees
Louisiana v. United States, 380 U.S. 145 (1965)...
McDonnell Douglas Corp. v. Green, 411 U.S. 792
TTT iticnitethachas enedapencinnentensitatpedneetenpengenemen
Morgan v. Kerrigan, 530 F.2d 431 (Ist Cir.), cert.
denied, 426 U.S. 935 (1976) ........ccccccccccceeeeeeeeeenees
NAACP vy. Allen, 340 F. Supp. 703 (M.D. Ala.
1972), aff'd, 493 F.2d 614 (Sth Cir. 1974).........
NAACP vy. Allen, 493 F.2d 614 (Sth Cir. 1974).......
at) v. Prescott, 580 F. Supp. 171 (M.D. Ala.
Paradise v. Prescott, 585 F. Supp. 72 (M.D. Ala.
1983), aff'd, 767 F.2d 1514 (11th Cir. 1985),
cert. granted, 106 S. Ct. 3331 (1986) ...........0
Paradise v. Prescott, 767 F.2d 1514 (11th Cir.
1985), cert. granted, 106 S. Ct. 3331 (1986) .......
Paradise v. Shoemaker, 470 F. Supp. 439 (M.D.
Fy TiO e e ccsrencnsremanveeintattieanieneianninndenenmendsibiaees
PAGE
16, 17, 23
17
14
23
4,6, 14
13, 19,29
5, 15
5, 6, 12,
15,21, 24
6, 13, 17,
18, 23
Pennsylvania v. Rizzo, 13 Fair Empl. Prac. Cas.
(BNA) 1475 (E.D. Pa. 1975) ......ccccccccccccceeeeees
of the Univ. of California v. Bakke, 438
a
=, . M.N.C. Corp., 750 F.2d 867 (11th Cir.
ET
Rowe v. General Motors Corp., 457 F.2d 348 (5th
ee CI ciantisneriniestariesranstatitatidlastagiitl deniatentitiinsetinstins
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402
Sa a. _-_
Talbert v. City of Richmond, 648 F.2d 925 (4th
Cir. 1981), cert. denied, 454 U.S. 1145 (1982)...
United States v. Bethlehem Steel Corp., 446 F.2d
TS IRS Ca
United States v. City of Buffalo, 633 F.2d 643 (2d
CED BRI cncnscestncensstninintscyeiinteneenennbetepennsesemscaneee
United States v. City of Chicago, 549 F.2d 415 (7th
Cir.), cert. denied, 434 U.S. 875 (1977) 00.0.0...
United States v. City of Chicago, 663 F.2d 1354
(7th Cir. 1981) (em banc) 20... cceeeeeeeeee
United States v. Jefferson County, 28 Fair Empl.
Prac. Cas. (BNA) 1834 (N.D. Ala. 1981), aff'd,
720 F.2d 1511 (11th Cir. 1983)...
United States v. Louisiana, 225 F. Supp. 353 (E.D.
La. 1963), aff'd, 380 U.S. 145 (1965)
United States v. N.L. Indus., Inc., 479 F.2d 354
GD CUED ceterictncnntnnreanssnionitecestsneetmantentnen
United Steelworkers of America v. Weber, 443 US.
eee isiniasesbientnenes
~*~ v. Vukovich, 720 F.2d 909 (6th Cir.
eat hiiarieihatcieperitinataiaiaaiatinratainecatmnamiatintiniininicenialismnaenis
Williams v. Wallace, 240 F. Supp. 100 (M.D. Alla.
UT e vicresastanniaticntmeninenmbentimmainenidmstigemeiitiaen
Wygant v. Jackson Bd. of Educ., 106 S. Ct. 1842
eile lictaith iduestiliactpedisatatlantintiinine sate
17
8-11, 14, 18
19, 25, 27, 28
OTHER AUTHORITIES
ae eae
President’s Commission on Law Enforcement and
Administration of Justice, Task Force Report:
i
President’s Remarks to 1 Weekly Comp.
Pres. Doc. 52 ( Aug. 6, 1965 ) ..0.......cccccccceeeneeeeenees
Remarks of Wm. Bradford Reynolds before the
“Committee
the Labor and Employment Law Section of the
Schwarzschild, Public Law By Private Bargain:
Title VII Consent Decrees ana the Fairness of
oa Institutional Reform, 1984 Duke L_J.
S. Rep. No. 415, 92nd Cong., Ist Sess. (1971)........
U.S. Commission on Civil Rights, Whe is Guarding
The Guardians? ( 1981 )...........-ccccs-eeeecceeeeeeeeeeeeees
PAGE
IN THE
Supreme Court of the United States
OCTOBER TERM, 1986
UNITED STATES OF AMERICA,
Petitioner,
v.
Puitiip Parapise, Jr, ef ai.,
Respondents.
On Wart or CERTIORARI TO THE
strep STaTes COURT OF APPEALS POR THE ELEVENTH CIRCUIT
BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL
RIGHTS UNDER LAW, THE AMERICAN CIVIL
LIBERTIES UNION, THE AMERICAN JEWISH
CONGRESS, THE MEXICAN AMERICAN LEGAL
DEFENSE AND EDUCATIONAL FUND,
THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE,
THE NATIONAL WOMEN’S LAW CENTER,
THE PUERTO RICAN LEGAL DEFENSE AND
EDUCATION FUND, WOMEN EMPLOYED, AND THE
WOMEN’S LEGAL DEFENSE FUND
AS AMICI CURIAE IN SUPPORT OF RESPONDENTS
PHILLIP PARADISE, JR., ET AL.
CONSENT OF THE PARTIES
Petitioner the United States of America (the “Govern-
ment”) and Respondents Phillip Paradise, Jr. et al, the
Alabama Department of Public Safety (the “Department”)
and Intervenors-Respondents (“Intervenors”) have consented
to the filing of this brief. Their letters of consent are being filed
separately herewith.
2
INTEREST OF AMICI CURIAE
The Lawyers’ Committee for Civil Rights Under Law
(“Lawyers’ Committee”) is a nationwide civil nghts organiza-
tion that was formed in 1963 at the request of President
Kennedy to provide legal representation to blacks who were
offices of the Lawyers’ Committee have represented the inter-
ests of blacks, Hispanics and women in hundreds of class
actions relating to employment discrimination, votng mghts,
equalization of municipal services and school desegregation.
The Lawyers’ Committee participated in this case as an amicus
curiae below in the Court of Appeals.
The American Civil Liberties Union is a nationwide,
nonpartisan organization of over 250,000 members dedicated
to protecting the fundamental nghts of the people of the United
States.
The American Jewish Congress ts a national organization
of American Jews founded in 1918 and concerned with the
preservation of the constitutional mghts of all Americans. It has
vigorously opposed racial and religious discrimination in em-
has supported programs to increase opportunities for dis-
advantaged minorities to speed the day when all Americans
may enjoy full equality without regard to race.
Fund, Inc., is a national civil rights organization established in
1967. Its principal objective is to secure, through litigation and
education, the civil rights of Hispanics living in the United
States. Its attorneys have represented Hispanics in numerous
employment discrimination cases.
The National Association for the Advancement of Colored
People is a nonprofit corporation. Its principal objectives
include promoting equality of rights, eradicating racial prej-
udice among the citizens of the United States and securing for
them increased employment opportunities according to their
3
The National Women’s Law Center is a nonprofit lega!
ivi oll ledi \ on ie at and
protection of women’s rights and to the corresponding elimina-
tion of sexual discrimination from all facets of American life.
Since 1971, it has worked to secure equal employment opportu-
nity through full enforcement of the civil nghts laws and the
implementation of effective remedies for racial and sexual
etetnnl |
The Puerto Rican Legal Defense and Education Fund,
Inc., is a national organization dedicated to protecting and
Women Employed is a national organization of working
women. It assists working women facing sexual discrimination
and monitors the enforcement activities and policies of the
Equal Employment Opportunity Commission and the Office of
Federal Contract Compliance concerning a broad range of
employment discrimination issues.
The Women’s Legal Defense Fund is a nonprofit organiza-
tion founded in 1971 to advance women’s rights. It represents
lic education and represents women’s interests before the Equal
agencies. A major priority for the fund is its project on Women
of Color. In this pursuit of equality for both women and
minorities, the Fund is committed to the use of affirmative
action.
Amici conduct extensive litigation to eliminate employ-
ernmental and the private sectors. In some of these cases,
courts have eatered consent decrees or adjudicated decrees that
provide race- and sex-conscious hiring and promotional goals to
remedy employers’ pzst discrimination. The positio. argued by
the Government, if adopted in full, would severely undermine
the relief amici have obtained in these decrees. More impor-
tantly, such a result would straitjacket the courts and public
4
employers in their effi rts to eradicate the lingering effects of
prior discrimination. Although less drastic measures will in
many cases be sufficient, some cases, including egregious cases
of discrimination cannot always be eradicated without the very
sort of race-conscious relief approved below.
STATEMENT OF THE CASE'
This case arises from litigation commenced in 1972
challenging the discriminatory employment practices of the
Alabama Department of Public Safety (the “Department”™) in
the state police force. In 1972, the district court found that the
Department had engaged in a “blatant and continuous pattern
and practice of discrimination” which had “permeated | its]
employment policies”. NAACP v. Allen, 340 F. Supp. 703, 705
(M.D. Ala. 1972), aff'd, 493 F.2d 614 (Sth Cir. 1974). This
finding was based in part on the “unexplained and unexplain-
able” fact that the Department had never employed a black
state trooper in its 37-year history. 340 F. Supp. at 705. The
district court (1) enjoined the Department from discriminating
against blacks in the future, and (2) ordered that 50% of all
entry-level troopers hired be black until 25% of the state police
force was black (the “1972 order”). The race-conscious goals
in the 1972 order are not the subject of this proceeding. After
the 1972 order had been in effect for three years, the court
found that the Department, “for the purpose of frustrating or
delaying full relief to the plaintiff class, [had] artificially
restricted the size of the trooper force and the number of new
troopers hired”. Joint Appendix (“J.A.”) 34.
In 1979, the parties entered into, and the district court
approved, a consent decree (the “1979 decree”) in which the
Department promised to develop within one year a promo-
' Because of the procedural and factual complexity of this case,
amici summarize it here only briefly. Amici respectfully refer the
Court to the Statement of the Case of Respondents Phillip Paradise.
Jr., et al, and the opinion of the court below (767 F.2d 1514) fora
comprehensive review of the facts
5
tional procedure that had “little or no adverse impact on
blacks”. J.A. 37-48. Shortly thereafter, the court held that the
25% incumbency provision in the 1972 order applied to
positions” and that “past discrimination by the Department was
pervasive, that its effects persist, and that they are manifest”.
Paradise v. Shoemaker, 470 F. Supp. 439, 442 (M.D. Ala.
1979).
Until 1981, more than one year later than promised in the
1979 decree, the Department did not propose a selection
procedure for promotions to corporal. The parties entered into
a second consent decree (the “1981 decree”), which provided
that a proposed procedure would be administered and then the
parties would determine if the procedure had an adverse
impact. If the parties could not agree whether it did, they
agreed to submit the dispute to the district court. JA.
49-54.
The Department administered its proposed procedure in
198i, and, after the parties failed to agree, the district court
found that the Department still had not complied with the 1°79
decree. Paradise v. Prescott, 580 F. Supp. 171, 174-75 (M.D.
Ala. 1983). The court ordered the Department to submit a
plan without an adverse impact on blacks to promote 15
persons to corporal. Jd.
The Department then proposed to promote eleven whites
and four blacks. J.A. 125-27. The district court rejected this
proposal because the Department “operated under a regime of
racism” (J.A. 140), the effects of which “remain pervasive and
conspicuous at all ranks above the entry-level position”. Para-
dise v. Prescott, 585 F. Supp. 72, 74 (M.D. Ala. 1983), aff'd
767 F.2d 1514 (1 ith Cir. 1985), cert. granted, 106 S. Ct. 3331
(1986). The court found that:
“Of the 6 majors, there is still not one black. Of the 25
captains, there is still not one black. Of the 35 lieutenants,
there is still not one black. Of the 65 sergeants, there is still
qualified black applicants) until either (a) 25% of the rank is
black or (b) the Department develops a lawful promotional
procedure. J.A. 128-29.2 It is the constitutionality of the
December 1983 order that is at issue here. See United States v.
Paradise, 106 S. Ct. 3331 ( ° 986) (granting certiorari).
SUMMARY OF ARGUMENT
This case exemplifies why race-conscious promotional re-
lief is necessary and appropriate in certain circumstances.
Upon finding “blatant and continuous discrimination” in 1972,
the district court ordered (1) that the Department stop dis-
criminating against blacks in hiring and promotions, and (2)
that 50% of the entry-level troopers hired be black until 25% of
the trooper force was black. NAACP v. Allen, 340 F. Supp. at
705-06. The Department has continuously frustrated that
order. As of December 1983, nearly 12 years after the 1972
order, only 4 of 197 persons above entry level were black, none
of whom was higher than the rank of corporal, and all of whom
were promoted pursuant to an interim agreement pending
implementation of the 1979 decree. Paradise v. Prescott, 585 F.
Supp. at 74. The district court concluded that the effects of
prior discrimination “will not wither away of their own accord”
(id. at 75), and entered the provision presemly at issue
2? The Department finally proposed a lawful selecnon procedure
oan ee The distnct court approved this
Paradise v. Prescott, 767 F.2d 1514,
. granted, 106 S. Cr. 3331 (1986).
_-
~~
The second prong of Equal Protection analysis is likewise
met because the means are narrowly tailored two serve this
compelling governmental interest. When this interest is prop-
erly understood to include eradicating the Department's in-
sututional bias, a one-for-one promotional provision is clearly
designed to effectuate that interest. The courts have a duty “so
far as possible [to] eliminate the discriminatory effects of the
past as well as [to] bar like discrimination in the future”
( Louisiana v. United States, 380 U.S. 145, 154 (1965)), and
the courts must be given latitude in fashioning remedies
pursuant to this duty. The choice of an appropriate ratio, like
any remedy for discrimination, “necessarily involve[s| a degree
of approximation and imprecision”. International Bhd of
Teamsters v. United States, 431 U.S. 324, 372 (1977). The
district court's choice was based on its determination, after
observing the Department's recaicitrance for twelve years, that
lesser measures could not adequately and expeditiously dis-
mantle the Department's mstitutional bias. kt is no more
“extreme” than was the 50% ratio approved by this Court in
United Steelworkers of America v. Weber, 443 U.S. 193 ( 1979),
or by lower courts facing similarly egregious circumstances.
The alternatives proposed by the Government. compared with
the relief ordered, are more intrusive on the Department, are
more burdensome on whites and would not adequately address
the need to eradicate the Department's institutio: al bias.
Finally, the one-for-one promotional order does not unnec-
essary trammel "he legitimate interests of whites. The provi-
sion for promouons ts akin to the hiring goals discussed with
approval in Wyganr v. Jackson Bd of Educ. 106 S. Ct. 1842
(1986), Local 28 Sheet Metal Workers’ Intl Ass ¥. EEOC.
106 S. Ct. 3019 ( 1986) (“ Sheet Metal Workers”) and Local 93.
Int'l Ass of Firefighters v. City of Cleveland, 106 S. Cr. 3063
(1986) Affected whites lose only the incremental benefits of a
then the loss 1s often temporary.
In sum, the Department's history of continued dis-
crmuination far exceeds the level necessary to justify affirmative
action Although this Court unambiguously approved the use
of race-conscious relief last term, the Gevernment’s position
would render such relief pracucally unavailable. Indeed, the
ARGUMENT
I. THE CONTINUED EXCLUSION OF BLACKS FROM
THE UPPER RANKS OF THE STATE POLICE IS AN
EFFECT OF PRIOR DISCRIMINATION ACAINST
BLACKS. ERADICATING SUCH LINGERING EF-
FECTS OF DISCRIMINATION IS A COMPELLING
GOVERNMENTAL INTEREST.
It is now established beyond peradventure that a public
employer is not constitutionally barred from considering race
pursuant to an affirmative action plan, even though minority
persons who are not identified victims of past discrimination
may benefit from such consideration. See Wygant, 106 S. Ct. at
1850 (plurality opinion); id. at 1852 (O’Connor, J., con-
curring); id. at 1863 (Marshall, J., dissenting); cf. id. at 1867-
68 (Stevens, J., dissenting ); Sheet Metal Workers, 106 S. Ct. at
3052-53 (plurality opinion); id. at 3054 (Powell, J., con-
curring). In an ideal society, race-conscious relief would be
unneeded, but we have yet to achieve the ideal. Lesser relief,
such as an injunction, is often adequate to remedy dis-
crimination. Amici’s experience has proven, however, that in
some instances relief such as the December 1983 order must be
used to move closer to the ideal. This is just such a case.
The issue presented is whether the December 1983 order
violates the Equal Protection Clause. The first prong of Equal
4 Here, it would be impossible to grant meaningful relief if it
were limited to identified victims of discrimination. Where, as here,
there has been pervasive discrimination over a long period of time, it
is impossible to prove who would have applied for a state trooper job
but for the discrimination (see United States v. Louisiana, 225 F.
Supp. 353, 397 (ED. La. 1963), afd, 380 US. 145 (1965)), or
which blacks would have received jobs but for a discriminatory
examination procedure (see Ensley Branch, NAACP v. Seibels, 13
Empl. Prac. Dec. (CCH) ¥ 11,504 (N.D. Ala. 1977), aff'd in relevant
part, 616 F.2d 812 ( Sth Cir. ), cert. denied, 449 U.S. 1061 (1980)). In
addition, those who suffered discrimination many years ago have
probably obtained employment elsewhere, moved or otherwise are no
longer in a position to embark upon a new career with the Depart-
ment. Nonetheless, a court that has made such findings of dis-
crimination has the duty to ensure effective integration of the Depart-
ment.
10
Protection analysis is an inquiry into the governmental interests
being vindicated.5 Eradicating the lingering effects of prior
discrimination is a sufficiently compelling governmental interest
to justify race-conscious relief. See Wygant, 106 S. Ct. at 1848
(plurality opinion ); id. at 1853 (O’Connor, J., concurring); id.
at 1861-62 ( Marsaail, J., dissenting); id. at 1867-68 (Stevens,
J., dissenting ); Sheet Metal Workers, 106 S. Ct. at 3034, 3050
(plurality opin:on); id. at 3055 ( Powell, J., concurring ).
Although the Government pays lip service to the govern-
mental interest in remedying the effects of prior discrimination
(Gov't Br. at 19, 21-22, 31-33),® it defines this interest so
narrowly as practically never to justify the race-conscious relief
that this Court unambiguously held last term may be necessary.
Having redefined the governmental interest, the Government
argues that the December 1983 order is supported only by
notions of racial balancing, an inadequate governmental inter-
est. Gov't Br. at 30-35. The governmental interest in eradicat-
ing the lingering effects of discrimination cannot, however, be
so narrowly construed. This interest at times may include
altering the institutional patterns that created and have perpet-
uated bias against blacks.
5 Although a majority of the Court has not agreed upon the level
of scrutiny to be applied to affirmative action cases ( see Sheet Metal
Workers, 106 S. Ct. at 3052 ( plurality opinion); Wygant, 106 S. Ct. at
1852-53 (O’Connor, J., concurring) ), the members of the Court agree
that some level of heightened scrutiny (whether “strict” or “inter-
mediate”) is appropriate ( Wygant, 106 S. Ct. at 1852). Although all!
amici do not concede that affirmative action should be subjected to
strict scrutiny (see Regents of the Univ. of California v. Bakke, 438
US. 265, 357-63 (1978) (Brennan, J., concurring in part and
dissenting in part)), this case does not raise the issue because the
December 1983 order survives the strictest of scrutiny. See, e.g., Sheet
Metal Workers, 106 S. Ct. at 3053 (plurality opinion ).
6 Citations to briefs ate as follows: “Gov't Br.” is to the Brief for
the United States; “Dep't Br.” s to the Brief of Respondents Alabama
Department of Public Safety and Colonei Byron Prescott In Support
of Petitioner; and “Intervenors’ Br.” is to the Brief of Intervenors-
Respondents Supporting the Petitioner.
A. The Governmental Interest Is Not Merely in Stopping
Discrimination, but Also in Eradicating the Lingering Effects
of Past Discrimination.
The governmental interest here is not merely “to prevent
discrimination in the future” but also “to dismantle prior
patterns of employment discrimination”. Sheet Meta! Workers,
106 S. Ct. at 3049 ( plurality opinion). There is a governmental
interest in eradicating “the lingering effects of pervasive dis-
crimination.” Sheet Metal Workers, 106 S. Ct. at 3050 ( plural-
ity opinion). As the plurality in Sheet Metal Workers noted.
“even where the employer or union formally ceases to engage
in discrimination, informal mechanisms may obstruct equal
employment opportunities”. /d. at 3036.
The Constitution requires affirmative relief which goes
beyond merely ensuring future compliance with the law.” As
Justice Brennan observed in Bakke:
“At least since Green v. County School Board, 391 U.S. 430
(1968), it has been clear that a public body which has
itself been adjudged to have engaged in racial dis-
crimination cannot bring itself into compliance with the
Equal Protection Clause simply by ending its unlawful acts
and adopting a neutral stance. Three years later, Swann v.
Charlotte-Mecklenburg Board of Education, 402 US. |
(1971), and its companion cases . . . reiterated that racially
neutral remedies for past discrimination were inadequate
where consequences of past discriminatory acts influence or
conirol present decisions.” 438 U.S. at 362 (emphasis
added; citations omitted ).
Accord Wygant, 106 S. Ct. at 1856 (O’Connor, J., concurring ).
In cases where discrimination permeates the employer’s
organization, eradicating the lingering effects of discrimination
7? The lower courts have distinguished between, on the one hand,
“compliance” and “compensatory” relief, and, on the other, “affirma-
tive relief”. See, e.g., Guardians Ass'n of the New York City Police
Dep't, Inc. v. Civil Serv. Comm., 630 F.2d 79, 108-09 (2d Cir. 1980),
cert. denied, 452 U.S. 940 (1981); Association Against Discrimination
in Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 280-82 (2d
Cir. 1981), cert. denied, 455 U.S. 988 (1982); Berkman v. City of New
York, 705 F.2d 584, 595-96 (2d Cir. 1983).
12
extends to dismantling the barriers “which have fostered
racially stratified job environments”. Sheet Metal Workers, 106
S. Ct. at 3037 (plurality opinion) (quoting McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 800 (1973)). The Department's
discriminatory policies were born of persons to whom dis-
crimination was the status quo, and those practices have been
perpetuated because the supervisory and policymaking posi-
tions are still almost uniformly occupied by whites who have
benefitted from—indeed, many of whom may have imple-
mented—those policies. When the discriminatory policies
have so permeated the institution, the governmental interest in
eradicating discrimination includes eliminating this self-
perpetuating institutional bias.
The district court recognized this governmental interest
when it entered the December 1983 order. The court found
that the Department had “operated under a regime of racism”
(J.A. 140), and it said that the order was justified because of
“the department’s failure after almost twelve years to eradicate
the continuing effects of its own discrimination”. Paradise v.
Prescott, 585 F. Supp. at 75 n.1. The court recounted the
history of the case and pointed out that the Department had
stubbornly avoided hiring and promoting blacks for as long as
possible, frustrating the spirit of the 1972 order and the letter of
1979 and 1981 decrees. The court found that there were
virtually no blacks in the upper ranks (id at 74), clearly
recognizing that the “regime of racism” would not cease until
supervisory and policymaking positions were in part filled with
blacks and court-approved nondiscriminatory policies were in
effect.®
® The district court found that “the [D]epartment still operates
an upper ranks structure in which almost every trooper obtained his
position through procedures that totally excluded black persons.”
Paradise vy. Prescott, 585 F. Supp. at 74 (emphasis in original).
Moreovei, absent discrimination, some blacks should have been hired
and promoted instead of some whites, and all! of the whites continue
to benefit from the institutional bias agains: blacks.
® The district court enunciated a second interest furthered by its
order: remedying the Department's failure, in violation of the consent
decrees, “to develop acceptable promotion procedures”. Paradise v.
Prescott, 585 F. Supp. at 75 n.1. The Government characterizes the
13
B. The Record Demonstrates That the Department Is
Permeated with Discrimination.
The evidence of discrimination in the present case is
overwhelming. This Court kas already recognized this as a case
where the employer's organization is permeated with dis-
crimination. In Sheet Metal Workers, Justice Brennan quoted
NAACP vy. Alien for the proposition that “[a)]ffirmative
action .. . ‘provide[s] an impetus to the process of dismantling
the barriers, peychological or otherwise, erected by past prac-
tices.” ”” 106 S. Ct. at 3037 ( quoting 493 F.2d 614, 621 (Sth Cir.
1974)).
The Government is seemingly unable to decide the extent
to which this discrimination needs to be eradicated. On the one
hand, it admits that “the Department's hiring discrimination for
almost four decades had excluded blacks from any jobs at all,
including jobs in the upper ranks” (Gov't Br. at 21), and it
concedes that it argued below that the Department’s continued
refusal to implement lawful promotional procedures “suggests
that a pattern of discrimination against blacks in the Depart-
ment. . . may be continuing” (Gov't Br. at 9; see also Paradise
v. Prescott, 767 F.2d at 1522 n.10.). On the other hand, it
argues that the 1972 order is “designed to cure the effects of the
Department's prior discrimination in hiring” (Gov't Br. at 22
(emphases added ) ), suggesting that the discrimination is over
and was limited to hiring.'° The Department and Intervenors
means used to effectuate this interest as “in terrorem”. See Gov't Br.
at 23-26. As Justice Powell noted in Sheet Metal Workers, however,
there is a “societal interest in compliance with the judgments of
federal courts.” 106 S. Ct. at 3055. More importantly, the alleged “in
terrorem” effect arises only because the Department wants to avoid
promoting blacks, a desire which is itself an effect of discrimination
that must be eliminated. See p. 24, infra.
1© The Government also argues that Sheet Metal Workers estab-
lishes that there must be “flagrant and egregious discrimination”
before race-conscious relief cen be ordered. See Gov't Br. at 28-29,
see also Intervenors’ Br. at 14. The Government completely ignores,
however, that the plurality in Sheet Metal Workers went on to say,
“[o]r, such relief may be necessary to dissipate the lingering effects of
pervasive discrimination” (106 S. Ct. at 3050 (emphasis added) ),
which is certainly true here. Moreover, the cited portion of Sheet
Metal Workers applies only to the lawfulness of nonconsensual race-
14
now adopt the latter view, simply denying that the record of
discrimination demonstrates discrimination in promotions. The
record of discrimination here, however, is limited neither to
hiring nor to discrete employment decisions in the past.
|. Discrimination in hiring limits the promotional
opportunities of blacks, particularly when the employer pro-
motes solely from within. Although the Government concedes
that the Department’s hiring discrimination has necessarily
excluded blacks from the upper ranks (Gov't Br. at 21), the
Department argues (as do Intervenors) that there has never
been “a judicial determination that the racial disparity among
the ranks were [sic] related in any way to the findings of
discrimination in Airing in 1972” (Dep't Br. at 25 (emphasis in
original ); see also Intervenors’ Br. at 11-12). Where, as here,
the employer promotes only from within, the argument that
“blatant and continuous” discrimination that has “permeated
the [Department's] employment policies” (NAACP v. Allen,
340 F. Supp. at 705) can be so compartmentalized is untenable.
This Court has previously rejected the view that findings of
discrimination “can be viewed in isolation” in the context of
school desegregation ( Keyes v. School Dist. No. 1, 413 U.S. 189,
200 ( 1973)), and severalcourts have recognized that a “natu-
ral consequence of discriminating against blacks at entry-level
positions ... would be to limit their opportunities for promotion
to higher levels”. United States v. Jefferson County, 28 Fair
Empl. Prac. Cas. (BNA) 1834, 1838 (N.D. Ala. 1981)
(Pointer, J.), aff'd, 720 F.2d 151i (1ith Cir. 1983).'' The
exclusion of blacks is reinforced by a policy of promoting only
from within the Department.
conscious relief under Title VII (see id at 3050), which is not
presently at msue. Wygant makes clear that the constitutional
standard for affirmative action ts not “flagrant and egregious” dis-
crimination. 106 S. Ct. at 1848 (plurality opinion) (“sufficient
evidence to justify the conclusion that there has been prior dis-
crimination”); see @lso id at 1856 (O'Connor, J., concurring).
Finally, the blatant and continuous discrimination here would meet
any standard, even “flagrant and egregious”.
"! See also Detroit Police Officers’ Ass'n v. Young, 608 F.2d 671,
696 (6th Cir. 1979), cert denied, 452 US. 938 (1981); Williams v.
Vukovich, 720 F.2d 909, 924 (6th Cir. 1983).
15
2. The record contains findings of discrimination in
promotions. This is not, however, a case in which the dis-
crimination was limited to hiring, a fact that the Department
found that the Department's proposed procedure for promo-
tions (see J.A. 55-57) had an adverse impact against blacks
( Paradise v. Prescott, 580 F. Supp. at 174), which would have
established a prima facie case of discrimination if the Depart-
ment had used that procedure. See Griggs v. Duke Power Co.,
401 U.S. 424 (1971). Second, when the district court held that
the 25% provision of the 1972 order applied to the Depart-
ment’s upper ranks, it said that “[i]n 1972, defendants were
not just found guilty of discriminating against blacks in hiring
to entry-level positions”, that “[o}ne continuing effect of that
discrimination is that . . . there is still not one black’ above the
rank of wooper and “that pest discrimination by the Depan-
ment was pervasive, that its effects persist, and that they are
manifest”. Paradise v. Shoemaker, 470 F. Supp. at 442
(emphasis in original). Third, before entering the December
1983 order, the district court 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 b!ack. Of the 25 captains,
there is still not one black. 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
procedures that totally excluded black persons. Moreover,
the department is still without acceptable procedures for
advancement of black troopers into this structure, and
does not appear that any procedures will be in place within
the near future.” Paradise v. Prescott, 585 F. Supp. at 74
(emphases in onginal ).
See also JA. 139-40. These findings reveal that of the
persons above the rank of trooper, only 4 (2.0%) were black
(id), which itself gives rise to an inference of discrimination in
promotions. See Teamsters, 431 US. at 340 2.20; Hazelwood
School Dist. v. United States, 433 US. 299, W7 (1977);
Wygant, 106 S. Ct. at 1847 (plurality opinion); id at 1856
(O'Connor, J., concurri,). In short, the findings of dis-
crimination from 1972 to the present, and the governmental
interest in eradicating the effects of that discrimination, are not
limited to hiri
3. The Department has a pervasive institutional bias
against blacks. When an employer has been found guilty of
discrimination, compensatory relief and an order requiring
future compliance will often sufficiently remedy past dis-
crimination. Sheet Metal Workers, 106 S. Ct. at 3036 ( plurality
optmon). In cases where the employer's discriminatory policies
policymakers who implemented those policies continue to make
decisions that perpetuate the bias, affirmative relief may be
necessary. This is such a case.
Before the 1972 order, the Department did more than close
its ranks to blacks; it actively sought to prevent black citizens
from exercising their constitutional rights. For example, in
1965, when blacks marched in Montgomery, Alabama, to
secure the right to vote, the marchers were brutally “prodded,
struck, beaten and knocked down by members of the Alabama
State Troopers”. Williams v. Wallace, 240 F. Supp. 100, 105
(M.D. Ala. 1965) (Johnson, }.). The Department attacked the
marchers even though they “had observed ail traffic laws and
regulations” and “had proceeded im an orderly and peaceful
manner”. jd The Department's actions, which had “not been
directed toward enforcing any vaid law of the State of
Alabama” (id), were taken by troopers “acting upon specific
instructions from [their] superior officers”, including the
Department's director. Jd The Depariment’s brutality pre-
cipitated the Voting Rights Act of 1965. D. Bell, Race, Racism
17
and American Law 147-48 (24 ed. 1980); President's Remarks
to Congress, | Weekly Comp. Pres. Doc. 52 ( Aug. 6, 1965). '?
probationary period, during which all of the new troopers’
© supervisors were white, the attrition rate for blacks was unusu-
ally high: only 27 of the 40 blacks (67.5%) remained, while all
29 whites did. Paradise v. Prescott, 767 F.2d at 1519. This
disparity is sufficient to create a prima facie case of dis-
crimination.'? In addition, the Department's decision to weigh
supervisors’ evaluations as 20% of the promotional score (J.A.
56) would have provided a ready mechanism for racial dis-
crimination by the white supervisors. See Albemarle Paper Co.
v. Moody, 422 U.S. 405, 432-33 (1975); Riles v. M.N.C. Corp.
750 F.2d 867, 871 (Lith Cir. 1985); Rowe v. General Motors
Corp., 457 F.2d 348, 358-59 ( Sth Cir. 1972).
The Department has perpetuated this atmosphere of dis-
crimination by limiting blacks to the lower ranks It agreed in
the 1979 decree w create a nondiscriminatory promotional
procedure by 1980, but it failed to do so until 1984 despite
repeated court orders. By 1983, the Department had promoted
only 4 blacks, and then it did so only pursuant to the court-
ordered 1979 decree. Paradise v. Prescott, 767 F.2d at 1533
n \& we aloo} A at 47 The Department's continued attempts
to avoid promoung blacks led even the Government to recog-
nize below “that a pattern of discrimination against blacks in
the Department .. . may be continuing” Gov't Br at 9%
'¢ [he Department's brutality toward black cuzens described
above is not an isolated instance. See, ¢g., Houser v. Hill, 278 F
Supp. 920 (M.D. Ala. 1968)
9 The disparity in the attrition rates is, using a simple chi square
analysis, significant at the 0! level, which exceeds the 0° level of
significance sufficient to establish a prima facie case See Hazelwood.
453 US. at W809 o 14
Paradise v. Prescott, 767 F.2d at 1522 0.10. The Department's
recalcitrance demonstrates that institutional bias against blacks
perpetuates itself by limiting the upper ranks to persons to
whom discrimination is the status quo. This is a case where the
institutional bias will begin to crumble only by ordering
affirmative relief to ensure that minority persons occupy some
supervisory and policymaking positions.
C. An Additional Effect of Discrimination Is a Less
Responsive and Less Effective Police Force.
The governmental interest in eradicating the effects of
discrimination is not limited to eliminating discriminatory em-
ployment practices. A public employer's discriminatory em-
ployment policies also affect the community 1 serves.
It is more important for a governmental employer than for
a private employer to be free from even the appearance of
excluding minorities. See ¢.g., Williams v. Vukovich, 720 F.2d
at 923-24. In making Title VII applicable to the states,
Congress recognized that 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. 415,
92nd Cong., ist sess. 10 (1971); see also Wygant, 106 S. Ct. at
1855 (O'Connor, J., concurring ).
This mistrust undermines the effectiveness of the police
force, because “[i}n order to gain the general confidence and
acceptance of a community, personnel within a police depart-
ment should be representative of the community as a wiole ”
President's Commission on Law Enforcement and Adminis-
tration of Justice, Task Force Report: The Police 167 (1967)
(“Task Force Report’), see also US. Commission on Civil
Rights, Who Is Guarding the Guardians? (1981). Justice
Stevens recognized in Wygani that an integrated police force is
mure likely to be publicly accepted and therefore more effective
(106 S. Ct. at 1868), a proposition with which the First,
Second, Fourth, Fifth, Sixth and Seventh Circuits have
agreed.‘
Il. THE DECEMBER 1983 ORDER IS A SUFFICIENTLY
NARROWLY TAILORED MEANS TO EFFECTUATE
THE COMPELLING GOVERNMENTAL INTEREST
IN ERADICATING THE LINGERING EFFECTS OF
PAST DISCRIMINATION.
The second prong of Equal Protection analysis is to
determine whether the means chosen is sufficiently related to
effectuating the governmental interest. Wygant, 106 S. Ci. at
1846 (plurality opinion). The December 1983 order is well
suited to eradicating the lingering effects of past discrimination,
and it therefore satisfies the heightened scrutiny — be it charac-
terized as strict or intermediate ( see n.5, supra )— applicable to
affirmative action.
This Court held unambiguously last term that race-
conscious means may sometimes be used to remedy past
discrimination. The Government pays lip service to the Court's
approval of the use of race-conscious relief, but its analysis
'* See Boston Chapter, NAACP v. Beecher, 679 F 2d 965, 977-78
(ist Cir, 1982); Bridgeport Guard, Inc. v. Bridgeport Civil Serv.
Comm., 482 F.2d 1333, 1341 (2d Cir, 1973); Talbert ». Cin of
Richmond, 648 F 24 925, 931 (4th Cir, 1981), cert. denied, 454 US.
1145 (1982); NAACP v. Allen, 493 F.2d 614, 621 (Sth Cir, 1974);
Detroit Police Officers’ Ass'n v. Young, 608 F.2d 671, 695-96 ( 6th Cir
1979), cert. denied, 452 US. 938 (1981); United States v. City of
Chicago, 663 F.2d 1354, 1364 (7th Cir, 1981) (en banc). For
example, the Sixth Circuit said:
“[E | fective crime prevention and solution depend heavily on the
public support and cooperation which result only from public
respect and confidence in the police. In short, the focus is not on
the supenor performance of minornty officers, but on the public's
perception of law enforcement officials and institutions " Derror
Police Officers’ Ass ¥. Young, GOR F.2d at 696.
Moreover, the Fourth Circuit has found “the attainment of racial
diversity in the top ranks of the police department” to be a legitimate
mierest. Talbert v. City of Richmond, 648 F.2d at 931 (emphasis
added ), accord Detroit Police Officers’ Assn v. Young, GOR Fld at
695, Williams v. Vukovich, 720 F 2d at 923, Task Force Report at \72
reveals that it seeks to so restrict the use of such relief as
practically to remove it from the courts’ arsenal of weapons to
combat the effects of discrimination. The flaw in the Govern-
ment’s analysis is its overly restrictive view of the governmental!
interest in remedying past discrimination. Once this govern-
mental interest is properly understood to include eradicating the
lingering effects of discrimination, the means necessary to
effectuate that interest can be seen to include sufficient
promotional rehef to eliminate the self-perpetuating bias of the
institunon The December 1983 order is well suited to effec-
tuate this interest because it ensures that blacks will finally
occupy some positions in the Department's upper ranks from
suggested by the Government are less efficacious than the
December 1983 order, would be even more intrusive on the
Department and more burdensome on whites. Finally, the
December 1983 order does not unnecessarily tammel the
interests of whites because it does not interfere with their
Lesiai ‘
A. The December 1983 Order Is More Efficacious than a
25% Ratio in Eradicating the Effects of Past Discrimination.
The governmental interest in remedying past dis-
crimination, as shown above (see pp. 11-12, supra), goes
beyond ensuring compliance with the law and extends to
eradicating the “informal mechanisms [that] may obstruct
equal employment opportunities” Sheet Metal Workers, \06S
Ct. at 3036 (plurality opinion). When the governmental
interest is thus understood, the means may reach beyond
ensuring mere comphance with the law to include affirmative
rehef
|. The December 1983 order is aimed at eradicating the
institutional bias Clearly eradicaung che imstitutional bias
against blacks that permeates the Department requires more
than hiring blacks into entry-level positions It requires promot.
mg qualified blacks into supervisory and polcymaking pos-
tions. The December 1983 order accomplishes exactly this
purpose
The remaiing question concerns the distnct court's choice
of a one-for-one ratio rather than a lower ratio. The Govern-
ment describes the rauo as a “catch up quota” aimed to create a
racial balance for its own sake. Gov't Br. at 30-31. In fact,
however, the choice of a one-for-one rano assures that more
than a token few blacks will soon be promoted into the upper
ranks. The district court's choice of this ratio evinces a
problem-solving approach based on its conclusion that in-
stitutional bias persists, it does not stem from an abstract. ngid
conception of desired racial balance See p12, supra.
The district court was faced with the Department's re-
peated failure to establish “acceptabie procedures for advance-
ment of black troopers into this [upper rank] structure”
( Paradise v. Prescott, S85 F. Supp. at 74) and the Depart.
ment's continued refusal to hire or promote blacks until it could
avoid doing so no longer In 1979. the distnct court concluded
that “there is no ambiguity” that the 25% provision of the 197)
order, roughly akin to a long term incumbency goal. apphed two
promotional posiions. Paradise v Shoemaker, 470 F Supp at
440. Even so, although blacks had been hired wo entry-level!
positions for seven years, none had then been promoted, and
the four who were promoted subsequently were promoted only
pursuant to the court-ordered 1979 decree. The court legitima-
tely concluded that more than a token number of blacks were
needed in the upper ranks to make the institubon’s atutudes
race-neutral. As in Sheer Metal Workers, “in light of | the
Department's} long record of resistance to offical efforts to end
[ its} discriminatory practices, stronger measures were neces
sary”. 10658. Cr at 3053 (plurality opimion)
The courts have “not merely the power but the duty to
render decree|s| which will so far as possble elominate the
discriminatory effects of the past as well as bar like du
crumination im the future” Lowistana v. United Shares, 180 US
at 154; see also Albemarle Paper Co. 422 US a 418 To do w
they must be given wide discretion “to fashion ‘the most
complete rehef possble wo remedy past ducnminanon” Sheer
Metal Workers, (06S. Ct at 30% ( plurality opmmion ) ( quonng
Franks ». Bowman Transp. Co. 424 US. 747, 770 (1976)).
The selecnon of an appropnate remedy for discnminanoa ~ ell
necessanly involve a degree of approwmmaton and mmprec-
sion”. Teamsters, 431 US. at 372; see alse Schwarzschild,
Public Law By Private Bargain: Tithe V11 Consent Decrees and
the Faurmess of Negonated Instiitunonal keform \984 Duke L-
J}. 887, 893 (“Public Law By Private Bargain”).
The distnct court's chowe of a one-for-one rano s within
this broad remedial discretion The alternatives of an im-
junchon agaist promovonal discnminanon and of the 1972
order's 25% ucumbency provison as apphed to promotions
had proven ineffective l ader swmilar orcumstances, ths Court
sand
“{I}e & dowbefel, given [the employer's} history im this
lmgaton, that the Distnct Court had available to « any
other effective remedy That court. having had the parnes
before « over a penod of ame, was im the best positon to
judge whether an alernatwe remedy, such as a ample
injunction, would have been effective im ending [the
employer's} discrmmatory pracnoes ~ Sheer Metal © ort -
ers, 106 S. Ct at 3056 ( Powell, J. concurnng).
Indeed. the Sheer Metal Workers plurality ated NAACP +.
Allen whech involved the SO} henng order as an example of a
case in whoch “alternatve remedies” were unavashng because
of the employer's “long record of rewstance to offic al efforts to
end | its! discriminatory practices™ /d¢ at 3053
The Government calls the one-for-one rato “extreme”.
arguing that a )S‘% rane “represented the extreme outer hmut of
any appropriate remedy” See Gow? Br at 27-28. Far from
eureme however the one-for-one rano s comparable two the
SOT provmon approved in Weber, which Jusuce Blackmun
described as “moderate™ 443 US at 216 The lower courts,
faced eth the difficult task of fashsonng effective remedies for
Past dmcnminahon in varying crcumstances, have on occasion
found ranos of W'S to be necessary **
‘* The pturalty = Sheer Mera! Workers cred enh approval
several cases that approwed ramos of “PS. unctuding the Eleventh
Cwowt’s decmoe below @ the case See 1065 Ci at O37 2 2R we,
23
Moreover, the Government's argument would restrict the
courts to using the ratio which the employer would be expected
> ditt at S Gentes diemteinedt iy aes
See Teamsters, 431 U.S. at 340 n.20; Hazelwood, 433 US. at
307. In short, the Government seeks to restrict courts to
remedy for past discrimination. The plurality in Sheet Metal
Workers made clear, however, that some cases may require
more than mere compliance relief:
“In most cases, the court need only order the employer or
union to cease engaging in discrimina.ory practices, and
award make-whole relief to the individuals victimized by
those practices. In some instances, however, it may be
necessary to require the employer or union to take affirma-
tive steps to end discrimination effectively to enforce Title
VIL” 106 S. Ct at 3036.
Similarly, lower courts have distinguished “compliance relief”
from “affirmative relief”, the latter of which may entail the use
of higher short term goals designed to effectuate a long term
goal approximating the racial composition of the available
labor force. See n.7, supra.*®
Affirmative action plans, including those embodied in
consent decrees, typically contain both long term goals and
higher short term goals designed to effectuate expeditiously the
long term goals. Public Law By Private Bargain, 1984 Duke
¢.g.. Bos:on Chapter, NAACP v. Beecher, S04 F.2d 1017, 1026-28 ( ist
Cir. 1974), cert. denied, 421 US. 910 (1975); Morgan v. Kerrigan,
530 F.2d 431, 434-35 ( ist Cir), cert. denied, 426 US. 935 (1976);
United States v. N.L. Indus., Inc., 479 F 24 354, 377 (Sh Cir. 1973);
see also United States v. City of Buffalo, 633 F 2d 643, 646-47 (2d Cir
1980); Bratton v. City of Detroit, 704 F.2d 878, 892-98 (6th Cir
1983), cert. denied, 464 US. 1040 (1984).
‘6 Many of the cases cited with approval by the plurality in Sheer
Metal Workers approved the use of higher short term goals to meet
long term goals. See 106 S. Ct. at 3037 0.28; see, eg. Paradise v
Prescott, 767 F.2d at 1530-33; United States v. City of Chicago, 549
F.2d 415, 436-37 (7th Cir), cert demied, 434 US. 875 (1977),
modified on other grounds, 663 F 2d 1354, 1362 (7th Cir 1981) (en
banc); Carter v. Gallagher, 452 F.2d 315, 331 (8th Cir 1971) (en
banc), cert. denied, 406 US. 950 (1972)
24
L. J. at 896. If short term goals could not exceed the expected
racial composition of the employer's work force, then employ-
ers who had previously excluded minorities would be unable to
enee the ft Soets of Geasiesination ustil dha ,
force had completely turned over, a period which could take as
long as 40 years. See alsv p. 26 & n.18, infra.
2. The December 1983 order is properly designed to
encourage the Department to implement a lawful promotional
procedure. The district court designed the December 1983
order both to eradicate the effects of discrimination and to
encourage the Department to create a lawful promotional
procedure. Paradise v. Prescott, 585 F. Supp. at 76. The
Department’s continued failure to develop a lawful procedure
violated the spirit of the orders dating back to the 1972 order
and the letter of the 1979 and 1981 decrees, whereas the
December 1983 order successfully encouraged the Department
to comply with the prior orders.
The Government describes the December 1983 order as an
“in terrorem” enforcement device, suggesting that the order
goes beyond the governmental interests giving rise to it. Gov't
Br. at 23-26. The Government is wrong. The order resulted
from the Department's repeated failure to implement a lawful
promotional procedure, which in turn resulted from the Depart-
ment’s institutional bias. The order is narrowly tailored to
eliminating this bias because it gives the Department the
opportunity to begin dismantling the bias itself—by developing
lawful promotional procedures—and, if the Department fails,
the order reduces the bias directly by requiring the promotion
of qualified blacks. The lower courts have characterized
comparable orders as “modest” “interim relief”.'7
'? Eg, Guardians Ass'n of New York City Police Dep't, Inc. v.
Civil Serv. Comra., 690 F.2d at 109.
25
B. The December 1983 Order Is Less Intrusive on the
Department and Less Burdensome on Whites than the
Alternatives Proffered by the Government.
The Government asserts that the courts below did not
consider “whether lawful alternative and less restrictive means
could have been used” to achieve the compelling governmental
interest in remedying pervasive and egregious discrimination.
Gov't Br. at 23 (quoting Wygant, 106 S. Ct. at 1850 n6
(plurality opinion)). The Government then proffers “plentiful
alternatives” that supposedly would be “less intrusive”. Jd. at
25-26. The Government's alternatives, however, actually
would be more intrusive on the Department's employment
practices and would be more burdensome on whites than ts the
December 1983 order.
First, the Government suggests that “[t]he court could
have imposed stringent contempt sanctions, including heavy
fines and attorneys’ fees”. Gov't Br. at 25. There is no reason
to believe that such sanctions would have worked because the
Department had repeatedly disobeyed prior court orders. In-
deed, the December 1983 order achieved in only seven months
what prior court orders had failed to do after four years—to
compel the Department to implement a lawful, nondiscrimina-
tory promotional procedure. Money sanctions would harm only
Alabama's taxpayers and would not address the true prob-
lem —the Department's entrenched insiitutional bias.
In addition, the December 1983 order more effectively
accommodates the immediate interests of all interested parties
than would contempt sanctions. The Department needs new
corporals; black troopers are interested in being promoted and
in seeing the effects of discrimination eliminated; and white
troopers are interested in being promoted. Because the 1981
decree bars promotions until the Department implements a
lawful selection procedure (J.A. 53), all of these interests would
have been frustrated by contempt sanctions. In contrast, the
December 1983 order encourages the Department to develop a
lawful selection procedure and it accommodates all of these
interests by allowing promotions to proceed.
26
Second, the Government submits that “[t]he court could
have considered appointing a trustee or administrator to super-
vise the Department's progress or even to make the promotions
himself by the proper standard”. Gov't Br. at 25. However,
this alternative would be even more intrusive on the Depart-
ment’s employment practices than the on .or-one ratio be-
cause the district court would become embroiled in the merits of
each promotional decision. :
Moreover, the December 1983 order is both a temporary
measure ard allows for waiver of its requirements if there are
not enough qualified black candidates or if the Department
does not need more promotions. It thus accommodates “/egiti-
mate explanations for the |Department’s] failure to comply
with the court’s orders”. Sheet Metal Workers, i0S S. Ct. at
3051 (plurality opinion) (emphasis in original); id. at 3055-56
( Powell, J., concurring); id. at 3061-62 (O'Connor, J., con-
curring in part and dissenting in part).
Third, the Government proposes a 25% ratio. Gov't Bi. at
28. As shown above, a lower ratio would not as effectively
further the compelling governmental interest. See, pp. 20-24,
supra. In addition, a lower ratio would be more burdensome on
whites in the sense that affirmative action plans would have to
be in effect much longer to achieve the long term objective of
25%. Cf. Sheet Metal Workers, 106 S. Ct. at 3053 (plurality
opinion ) (affirmative action must be temporary); Weber, 443
U.S. at 208-09.'8
Fourth, the Government suggests that “| p ]rogress toward
raciai balance in the [Department's] upper levels” would be
“substantially expedited” by (1) reducing time-in-grade
eligibility requirements or (2) allowing lateral hiring of blacks
and whites to upper-level positions. Gov't Br. at 35 0.17. Like
_ the appointment of a trustee, these alternatives would be more
—— o—
'® The Department recently submitted to the district court an
estimate of the number of vacancies in its upper ranks for the next
decade. In the lieutenant position, for example, the Department's
figures indicate that affirmative action would end in 1991 with a 50%
ratio but not until 1997 with a 25% ratio.
that under appropriate circumstances race-conscious hiring is
permissible. See Wygant, 106 S. Ct. at 1851-52 (plurality
opinion); id. at 1864 (Marshall, J., dissenting); id at 1870
n.14 (Stevens, J., dissenting ); Sheet Metal Workers, 106 S. Ct.
at 3052-53 (plurality opinion); id. at 3057 ( Powell, J., con-
curring). In contrast, four members of the Court in Wygant
found that layoffs, under the circumstances presented, were
unconstitutional. Wygant, 106 S. Ct. at 1851-52 (plurality
opinion ); id. at 1857-58 ( White, J., concurring ).'® The Govern-
ment tries to equate the promotional provision at issue here
with the layoff provision in Wygant (Gov't Brief at 32-35), but
the often temporary denial of a promotion is far less bur-
densome than the loss of employment.
In Wygant, the plurality found the layoffs too burdensome
because (1) employees “are typically heavily dependent on
wages for their day-to-day living”, (2) the layoffs disrupted
“settled expectations in a way that general hiring goals do not”,
and (3) the burdens were borne by identifiable individuals.
106 S. Ct. at 1851-52. Each of these factors distinguishes race-
conscious promotional provisions from layoffs.
The denial of a promotion does not interfere with an
employee's day-to-day living in the way that a layoff does. The
white employees keep their jobs and their sources of income.
'® Justice O'Connor said that it was not necessary “to resolve the
troubling questions of whether any layoff provision could survive strict
scrutiny”. 1068S. Ct. at 1857; see also id at 1867 n.7 (Marshall, J.
dissenting )
28
Although some whites may not receive the pay increase from a
promotion, this incremental difference is very smai! compared
to a complete loss of income. As with hiring provisions, the
effect on whites of promotional provisions is the “| d Jenial of a
future employment opportunity [that] is not as intrusive as
[the] loss of an existing job.” Wygant, 106 S. Ct. at 1851
(plurality opinion). Moreover, because the whites who are
denied promotions remain free to compete for later vacancies,
the loss of promotional pay ts often of short duration.
Nor do employees’ expectatic ns favor equating promotions
and layoffs. Certainly the expectation of keeping one’s job is
much greater than the expectation of receiving a promotion. As
the First Circuit recently said:
“There is no blinking the fact that there is a significant
difference between hiring and promoting in accord with a
race-conscious ratio and insulating from discharge a per-
centage of employees because they are members of a
minority group. In the former situation, there is only a
postponement of expectations; in the layoff situation, em-
ployees with greater seniority lose their jobs.” Boston
Chapter, NAACP v. Beecher, 679 F.2d at 976
Moreover, the expectation of a promotion is comparable to that
of being hired because generally the candidate is merely one of
a pool of applicants competing against others for a job or
promotion. 2°
No individual white trooper has a settled expectation of
promotion. When a selection procedure has an adverse impact
i 20 Both hinng and promotional procedures typically include
3% (see LA. 50-51). Thus, greater seniority far from creates an
expectation of promouon
against blacks, as the Department's proposed promotional
procedure here did, whites have no legitimate expectation of
promotion based on that procedure.?' As Justice Brennan wrote
in Bakke, “the expectations of non-minority workers are them-
selves products of discrimination and hence ‘tainted’™. 438
US. at 365 ( quoting Franks, 424 U.S. at 776). In addition, any
white trooper’s expectation of promotion should have been
reduced by the existence of affirmative action since the 1972
order setting forth a 25% incumbency provision. See Detroit
Police Officers’ Ass" v. Young, 608 F.2d at 696 n.12.
Finally, the Government's argument that the burden of the
December 1983 order falls “on a finite and often small number
of identifiable individuals” (Gov't Br. at 33) ignores that in
making promotional decisions, Alabama uses a “rule of three”
whereby the Department may select any one of the three
candidates who scores highest. See JA. 126. The white
action thus cannot be identified; rather, the burden is in this
sense “diffused” among the three highest-ranking candidates.
Furthermore, there was in place no lawful selection procedure
that could identify a burdened individual. In any event, the
basic inquiry ts not whether the procedure allows affected white
persons to be identified but whether their legitimate interests
are unduly trammelled. See Local 35, Int? Bhd of Elec.
Workers v. City of Hartford, 462 F. Supp. 1271 (D. Conn.
1978), aff'd, 625 F.2d 416 (1980), cert. denied, 453 US. 913
(1981). Here they are not.
2' See NAACP v. Allen, 493 F.2d at 618, Kirkland v. New York
State Dep’ of Corrections, 711 F.2d 1117, 1126 (2d Cir. 1983), cert.
denied, 465 U.S. 1005 ( 1984); Williams v. Vukovich, 720 F_2d at 924-
25; United States v. Bethlehem Steel Corp., 446 F 2d 652, 663 (2d Cir.
1971); Pennsylvania v. Rizzo, 13 Fair Empl. Prac. Cas. (BNA) 1475,
1481 (E.D. Pa. 1975).
30
CONCLUSION
For the foregoing reasons,
that the decision of the Cou
Circuit be affirmed.
September 30, 1986
Haron R. Ty er, Jr.
JAMES ROBERTSON
Co-Chairmen
NorMAN REDLICH
Trustee
WILuiaM L. RoBINSON
RICHARD T. SEYMOUR
STEPHEN L. Sprrz
LAWYERS’ COMMITTEE FOR
Crvi Ricuts UNper Law
1400 Eye Street, N.W.
(Suite 400)
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Jack D. Novik
AMERICAN CIVIL
LIBERTIES UNION
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THERESA Fay BUSTILLOS
ANTONIA HERNANDEZ
MEXICAN AMERICAN
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amici curiae respectfully request
rt of Appeals for the Eleventh
Respectfully submitted,
Rosert D. Jorre
Counsel of Record
Tuomas D. Barr
Rosert F. MULLEN
Dante. J. LEFPELL
ALDEN L. ATKINS
Mark A. SIROTA
CRAVATH, SWAINE & Moore
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