# Amicus Curiae Brief — United States v. Paradise > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0437%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1986 - **Citation:** 478 U.S. 1019 ## Text 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) Washington, D.C. 20005 (202) 371-1212 Jack D. Novik AMERICAN CIVIL LIBERTIES UNION 132 West 43rd Street New York, New York 10036 (212) 944-9800 THERESA Fay BUSTILLOS ANTONIA HERNANDEZ MEXICAN AMERICAN LeGaL DEFENSE AND EDUCATIONAL FUND, INC. 634 South Spring Street ( 11th Floor) Los Angeles, California 9001 (213) 629-2512 SUZANNE E. MEEKER Maacia D. GREENBERGER NATIONAL WOMEN’S Law CENTER 1616 P Street, N.W. Washi D.C. 20036 (202) 328-5160 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 One Chase Manhattan Plaza New York, New York 10005 (212) 422-3000 Attorneys for Amici Curiae Lois WALDMAN Marc D. STERN AMERICAN JEWISH CONGRESS 15 East 84th Street New York, New York 10028 (212) 879-4500 Grover HANKINS NATIONAL ASSOCIATION FOR THE ADVANCEMENT or COLORED PEOPLE 4805 Mount Hope Drive (Room 501) Baltimore, Maryland 21215 a (301) 358-8900 LINDA FLORES KENNETH K IMERLING Puerto RIcaN LEGAL DEFENSE AND EDUCATION FUND, INC. 99 Hudson Street New York, New York 10013 (212) 219-3360 31 Donna R. LENHOFF JupiTH L. LICHTMAN WOMEN EMPLOYED CLAUDIA WITHERS 5 South Wabash WoMEN’S LEGAL Derense FUND (Su.te 415) 2000 P Street, N.W. Chicago, Illinois 60603 (Suite 400 ) . (312) 782-3902 Washington, D.C. 20036 (202 ) 887-0364 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0437%3A13. Public record. Not legal advice.