Amicus Curiae Brief — United States v. Paradise

Ocroser Term, 1986 =.

UNITED STATES OF AMERICA,

Petitioner,

v.

PHILLIP PARADISE, JR., et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF OF THE STATES OF NEW YORK,

CALIFORNIA, ILLINOIS, LOUISIANA,

MARYLAND, MICHIGAN, MINNESOTA, WEST

VIRGINIA AND WISCONSIN AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

O. PETER SHERWOOD ROBERT ABRAMS

Solicitor General Attorney General of the

Counsel of Record State of New York

LAWRENCE S. KAHN Two World Trade Center

Deputy Solicitor General New York, New York 10047

SUZANNE M. LYNN

JON C. DUBIN

ELVIA ROSALES ARRIOLA

Assistant Attorneys General

[Additional List of Counsel on Inside Cover]

Attorney General of Louisiana

2-3-4 Loyola Building, 7th Floor

Stew Odems, Lathiene TO

Attorney General of Maryland

Munsey Building

Calvery and Fi Streets

Telephone: (301) 576-6300

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................--- ii

INTEREST OF AMICI ..............----0-55: l

SUMMARY OF ARGUMENT ..............----- 3

I. THE DISTRICT COURT’S IMPOSITION OF

AN INTERIM PROMOTION GOAL IN

ACCORDANCE WITH NEGOTIATED

CONSENT DECREES WAS FULLY

AUTHORIZED BY AND CONSISTENT WITH

THE EQUAL PROTECTION COMPONENTS

OF THE FIFTH AND FOURTEENTH

ADGTITIOGEENTS . www ccc cc cece cece ences 4

EEE 4

B. The Appropriate Constitutional Standard Of

Review Of Affirmative Action Remedies

Recognizes The Broad Discretion Accorded

Courts and Governmental Bodies To Choose

The Means Necessary To Accomplish

Compelling Governmental Purposes........ 5

C. The Interim Promotion Goal Is Justified By

Several Compelling Governmental Purposes . 7

D. The Interim Promotion Goal Fell Well

Within The Permissible Range Of The

District Court’s Discretion ..............-. 14

RIE vo wa one ccccccscccscscccccccses 24

es TABLE OF AUTHORITIES

Cases:

Adickes v. Kress & Co., 398 U.S. 144 (1970).....

Albemarle Paper Co. v. Moody, 422 U.S. 405

EEE PGA IE CONN ny 9 SCONE I

Baker v. City of Detroit, 483 F. Supp. 930 (E.D.

CE As. od dds Sumas bee eee e se

Boston Chapter NAACP v. Beecher, 679 F.2d 965

(1st Cir. 1982), vacated as moot sub nom.,

Boston Firefighters Union, Local 718 v. Boston

Chapter NAACP, 461 U.S. 477 (1983) ........

Bratton v. City of Detroit, 704 F.2d 876 (6th Cir.

1983), cert. denied, 464 U.S. 1040 (1984) .....

Bridgeport Guardians, Inc. v. Bridgeport Civil

Service Commission, 482 F.2d 1333 (2d Cir.

1973), cert. denied, 421 U.S. 991 (1975) ......

Chisholm v. United States Postal Service, 665

PS ED oe cove ccaeedssecpecs

Davis v. County of Los Angeles, 566 F.2d 1334

(9th Cir. 1977), vacated as moot, 440 U.S. 625

SE Sinn ocho £4 eee eee bss bbe kd dee wx

Detroit Police Officer’s Association v. Young, 608

F. 2d 671 (6th Cir. 1979), cert. denied, 452

as HEED 00 n.46-ud'v ceakdckinhokas Eee.

Doores v. McNamara, 476 F. Supp. 987 (W.D.

Bh a bien hks co ot VS ac edede asad eee

Page

10,12

10

10,23

9,10

15

15

Erie Human Relations Commission, v. Tullio, 493

ig SE I, ch doe wdcsccess coace 15

Franks v. Bowman Transportation Co. Inc., 424

i; CS Lads sauna bas ceeuk sere sac’ _ 8,20

Fullilove v. Klutznick, 448 U.S. 448 (1980) ...... passim

Green v. County School Board of New Kent

County, 391 U.S, 430 (1968) ................ 14

International Salt Co. v. United States, 332 U.S.

EE cca cDeks hase él onbaddeeves bods e< 7

Irvine v. California, 347 U.S. 128 (1954) ........ 22

Kahn ». Shevin, 416 U.S. 351 (1974) ........... 6

Keyes v. School Dist. No. 1, 413 U.S. 189 (1973) . 14

League of United Latin American Citizens v. City

of Santa Ana, 410 F. Supp. 873, (C.D. Cal.

LE TE AE SSS ee 2 10

Local 28 of the Sheet Metal Workers v.

E.E.O.C., 106 S. Ct. 3019 (1986) ............. passim

Local Number 93, International Association of

Firefighters v. City of Cleveland, 106 S. Ct.

EE od v2-5 5 5secha bebe a hed eked ese 6-0 ve 16,20

Louisiana v. United States, 380 U.S. 145 (1965) .. 14

Milliken v. Bradley, 433 U.S. 267 (1977) ........ 14,18

iv

Te es TT ETTUT TET ee passim

NAACP v. Allen, 493 F.2d 623 (5th Cir. 1971)... 8,9,17,22

NAACP v. Dothard, 373 F. Supp 504 (M.D. Ala.

et ee eid ea Cl Oe eee a a 8

North Carolina Board of Education v. Swann,

EE indi s 4a dhe dee ssn dese. 14

Paradise v. Prescott, 580 F. Supp 171 (M.D. Ala.

DEL si cian eb knee Gab eeeceneaees ts. 8

Paradise v. Prescott, 585 F. Supp. 72 (M.D. Ala.

GES 6b ih c-5's Mas UE cok bokebs tse ucc 8,17,21

23

CN ea et aaa .... 17,19,23

[| OAs oe a .

Regents of the University of sancti v. Bakke,

a a es a hoon eeees se 5,6,21

Rios v. Enterprise Ass'n Steamfitters Local 638 of

U.A., 501 F.2d 622 (2d Cir. 1974) ........... 15

Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1 (1971) ................ 14

Talbert v. City of Richmond, 648 F.2d 925 (4th

Cir. 1981), cert. denied, 454 U.S. 1145 (1982) . 10,12

United Steelworkers of America v. Weber, 443

ln é.'s Ssh eseere cue (iedeeee sc 20,23

Page

United States v. City of Buffalo, 633 F.2d 643 (2d

PS cis ctebbeens 660k eee estes 22,23

United States v. Frazer, 317 F. Supp. 1079 (M.D.

ies wen pies eee ened da eeeS ae chdet 8,13,17,

18

United States v. 1.T.T. Continental Baking Co.,

SP, SI S , GainweadadUectauaees i}. 17

Vulcan Society of New York City Fire Dept., Inc.

v. Civil Service Comm'n, 490 F.2d 387 (2d Cir.

GC cob adeuntnkndd ok name eetS nts za « 23

Williams v. Vukovich, 720 F.2d 909 (6th Cir.

DP Dihtedbhs Gil orien sie tever se aesedhs & 10,12

Wygant v. Jackson Board of Education, 106 S.

Gl ans och pbessutcovecdec passim

United States Constitution:

Sie asd ede v aliens wanches he 4

I, Peers ade sha du bons bakes passim

Federal Statutes and Regulations:

Title VII of the Civil Rights Act of 1964, 42

ee te icc cwccstccss 11,18,19

28 C.F.R. § 42.203(i)(1) (1982) .............. 12

eee eee 12

State Statutes, Regulations and Executive Orders:

Cal. Gov't Code §§ 19400-19406, 19790 (West

Ss sal IS IR ae een a

Cal. Gov't Code § 12900 et seq. (West 1980) ....

Cal. Exec. Orders Nos. B-85-81 and D-20-83.....

Illinois Ann. Stat. ch. 68, §§ 2-105 and 7-105

(Smith Hurd Supp. 1985) ...................

Illinois Rev. Stat. ch. 68, 44 7-101, 8-010 et seq.

ils schon Op Shere sdudeNdabatys oo

MD. Exec. Order dated December 9, 1970 (Code

of Maryland Register 01.01.1976.05)..........

Mich Comp. Laws Ann. § 37.2210 {West Supp.

REE OSES AIS ©) SER Re Pe

NCS uningheeed 6dan Voce see és device

Mich Exec. Order 1985-2......................

Minn. Stat. Ann. §§ 43A.19, 43A.191 (West

ES aera )

Minn. Rules Part 5000.340 et seq. (1985) ........

N.Y. Exec. Law § 290 et seg. (McKinney 1985) ..

N.Y. Exec. Law § 296(12) (McKinney 1985) .....

N.Y. Exec. Orders Nos. 6 and 21...............

W. Va. Code § 5-11-1 et seg. (1985)............

ee I oe

PME eV inne stinedhs Kieboes cose

GUD) vocceéec ta weleuswusuih s6 ebdks one ce

Wisc. Exec. Orders Nos. 9, 26 and 28 ..........

OTHER AUTHORITIES:

Brief of the Lawyers’ Committee for Civil Rights

Under Law filed in No. 84-1999, Local 93,

International Association of Firefighters, AFL-

CIO, C.L.C. v. City of Cleveland, 106 S. Ct.

EN 2.6 konccnubareudh CAGORUUinus £6 .o0

( Pabaa AN E As Ae cages ORES A

National Advisory Commission on Criminal

Justice Standards and Goals: Police (1973)... ..

National Commission on the Causes and

Prevention of Violence, Final Report: To

Establish Justice To Insure Domestic

CO

National Commission on Law Observance and

Enforcement: Report on the Causes of Crime

ss (a ey <tr, OOP

Note, The Constitutionality of Affirmative Action

in Public Employment: Judicial Deference to

Certain Politically Responsible Bodies 67 Va. uw.

Rov. 1995 (1081) ...... 22. cece cece c cee ceeee

President’s Commission on Law Enforcement and

Administration of Justice, Task Force Report:

I arcs, fas ccadthidhenks se.

, +

Rep. 92-415, 92nd Cong., Ist Sess. 10 (1971) ....

10

12

hae

4

INTEREST OF AMICI CURIAE

Amici States respectfully submit this brief in support of the

respondent. Amici urge this court to affirm the judgment of the

court below and thus affirm the district courts’ broad discretion

to fashion or approve necessary and appropriate race-conscious

affirmative relief — such as the interim promotion goal challeng-

ed herein — in order to redress racial discrimination.

ty to enforce the Fourteenth Amendment, have played a critical

role in bringing about the substantial progress the Nation has

made over the last two decades toward overcoming the legacy

of slavery. That progress cannot continue unless both courts and

governmental bodies retain substantial latitude in devising the

means necessary “to eliminate so far as possible the last vestiges

of an unfortunate and ignominious page in this country’s history”

Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975). Amici

have an interest in this case both because of their interest in preser-

ving the ability of public employers to develop effective volun-

tary measures to eliminate the effects of past discrimination on

their work forces and their interest in ensuring that federal and

state laws forbidding employment discrimination are effective-

ly enforced.

However, while it is essential that courts and other govern-

mental bodies have authority to take strong measures to achieve

full compliance with the !aws and constitution, remedial measures

that adversely affect third parties to a significant extent should

not be employed routinely. The court-imposed use of such

measures should be reserved for cases involving egregious or

longstanding discrimination and even then only where necessary

to effect full compliance.

All of the Amici have initiated voluntary affirmative action

programs to eliminate the effects of past discrimination and

ensure equal opportunity of public employment: More specifical-

ly, all of the Amici possess state trooper or other state public safety

forces and recognize the particularly compelling need for a signifi-

cant representation of minorities at all levels of public safety

employment. Amici believe that integrated state public safety

forces are necessary in order to curtail racially-motivated im-

proprieties, lessen racial tension, and greatly increase respect for

the law and cooperation with law enforcement officials.

Many of the Amici have state enforcement agencies charged

with the responsibility of enforcing state anti-discrimination laws.’

Amici also have a strong interest in preserving these agencies’

latitude to fashion appropriate race-conscious affirmative relief

for the redress of discriminatory violations under state law.

The State of New York, by Robert Abrains, Attorney General

of the State of New York, and other Amici submit this brief pur-

suant to Supreme Court Rule 36.4.

' See, N.Y. Exec. Law § 296(12) (McKinney 1985), N.Y. Exec. Orders Nos. 6

and 21, reported in 8A Fair Emp. Prac. Man. (BNA) 455:3071-72; Cal. Gov't

Code §§ 19400-19406, 19790-19798 (West 1980), Cal. Exec. Orders Nos. B-85-81

and D-20-83, reported in 8A Fair Emp. Prac. Man (BNA) 453:853; Ill. Ann.

43A.191 (West Supp. 1986); W. Va. Exec. Order 16-78, reported in 8A Fair Emp.

Prac. Man. (BNA) 457:3026; Wis. Stat. Ann. §§ 16.765 and 230.01 et seq. (West

Supp. 1985), Wis. Exec. Orders Nos. 9, 26 and 28, reported in 8A Fair Emp.

Prac. Man. (BNA) 457:3217-3218.

This Court has already held that courts may employ race-

conscious measures in order to remedy unconstitutional racial

discrimination in employment. The Court has closely scrutiniz-

ed the use of remedial race-conscious measures and has recognized

that the need to remedy uuconstitutional discrimination is a suf-

ficiently compelling governmental purpose to justify such

measures. Similarly, under certain circumstances, a state's interest

in establishing a representative workforce which can better pro-

vide effective law enforcement or other critical governmental ser-

vices may constitute a compelling government interest that is suf-

ficient to justify use of race-conscious measures in employment.

Nevertheless, the Court has cautioned that while the district

court is not required to order the least restrictive remedy, care

should be taken to avoid unnecessarily trammelling the rights

of third persons who might be adversely affected.

In this case the district court was presented with a longstan-

ding pattern of racial exclusion and a conspicuous failure of the

defendant to take needed steps to end its unconstitutional prac-

tices and cure their effects. Under these circumstances, the district

court acted well within the scope of its authority when it ordered

the defendants to promote blacks on a one-to-one basis until they

impact. Its action was appropriate because it was necessary to

effect compliance, was flexible in that it did not require promo-

tion of unnecessary or unqualified officers, was of limited dura-

tion for it remained in effect for only one round of promotions,

did not unduly burden non-minorities — only eight (8) corporal

positions were filled by blacks as a result of the court’s order —

and the long term goal established by the order was related to

the representation of blacks in the appropriate labor market.

(establishing authority of the Michigan Civil Rights Commission); Minn. Rules

Part 5000.340 et seq. (1985) (establishing authority of the Minnesota Depart-

ment of Human Rights ); W. Va. Code §§ 5-Ll-1 et seq. (1985) (establishing

authority of the West Virginia Human Rights Commission); Wisc. Stat. Ann.

§§ 111.31-111.395 (West Supp. 1985) (establishing authority of the Wisconsin State

Equal Rights Division and Labor Industry Review Commission).

ARGUMENT

I. THE DISTRICT COURTS IMPOSITION OF AN ,

WITH NEGOTIATED CONSENT DECREES WAS

FULLY AUTHORIZED BY AND CONSISTENT

WITH THE EQUAL PROTECTION COM.

PONENTS OF THE FIFTH AND FOURTEENTH

AMENDMENTS

A. Introduction

This case must be viewed against the background of the

longstanding and pervasive history of purposeful racial

discrimination practiced by the Alabama Department of Public

Safety (herein “DPS”) since its creation. Until ordered in 1972

* J.A. denotes reference to the Joint Appendix of the parties filed with the Court.

B. The Appropriate Constitutional Standard Of

Review Of Affirmative Action Remedies

The Broad Discretion Accorded Courts

and Governmental Bodies To Choose The Means

Necessary To Accomplish Compelling Govern-

mental Purposes.

This Court has already held that the constitution permits

government, including the courts, to use race-conscious affir-

mative measures as one means for achieving the paramount na-

tional objective of eradicating racial discrimination and its

vestiges. Local 28 of the Sheet Metal Workers v. E.E.O.C.,

U.S.___, 106 S. Ct. 3019 (1986); Wygant v. Jackson Board

of Education, ___U.S.___, 106 S. Ct. 1842 (1986); Fullilove v.

Klutznick, 448 U.S. 448 (1980); Regents of the University of

California v. Bakke, 438 U.S. 265 (1978). This Court has sub-

jected the affirmative action plans it has reviewed to searching

inquiry, reccgnizing both the importance of the rights involved

and the potential for misuse of racial classifications.

Four members of the Court apply a flexible standard for

evaluating the remedial use of race and would uphold the plan -

if it serves “ ‘important government objectives’ and is ‘substan-

tially related to achievement of those objectives.’ ” Id.; Regents

of the University of California v. Bakke, 438 U.S. 265, 359 (1978)

(Brennan, J. joined by White, Marshall anc “lackmun, JJ.); id.

at 387 (White, J.).* These Justices reason that because no fun-

damental right is involved end because whites have none of the

immutable characteristics of a suspect class, “conventional” strict

scrutiny is inapplicable. Wygant, 106 S.Ct. at 1861 (Citing Bakke,

438 U.S. at 357.).

Nevertheless, these Justices eschew the least rigorous “rational

basis” standard of review recognizing that “any racial classifica-

tion is subject to misuse”, Wygant, 106 S.Ct. at 1861, since such

* Justice Stevens also declines to apply conventional strict scrutiny in reviewing

affirmative action remedies, instead focusing on the validity of the race-

consciousness, the fairness of the procedures used to adopt and implement the

race-conscious action and the nature of the harm to non-minorities. Wygant,

106 S.Ct. at 1869 (Stevens, J., dissenting).

—

classifications can be “inexcusably utilized to stereotype and

stigmatize politically powerless segments of society.” Bakke, 438

US. at 359 (citing Kahn v. Shevin, 416 U.S. 351, 357 (1974) (dissen-

ting opinion)). Thus, review under the Fourteenth Amendment,

should be “strict and searching” but not “strict in theory and fatal

in fact.” Wygant, 106 S.Ct. at 1861 (citing Bakke, 438 U.S. at 362).

Four members of the Court apply strict scrutiny in this con-

text, reasoning that “[a]ny preference based on racial or ethnic

criteria must necessarily receive a most searching examination

to make sure that it does not conflict with constitutional

guarantees.” Wygant, 106 S.Ct. at 1846 (Powell J., joined by

Burger C. J. and Rehnquist J.); id. at 1853 (O’Connor, J. con-

curring) (adopting Justice Powell’s formulation); see also Fullilove

v. Klutznick, 448 U.S. 448, 496 (1980) (Powell, J. concurring);

Bakke, 438 U.S. at 287-307 (Powell, J.). These members of the

Court apply a more restrictive formulation of the standards than

Justices Brennan, White, Marshall and Blackmun. “There are two

prongs to this examination. First, any racial classification ‘must

be justified by a compelling governmental interest.’ Second, the

means chosen by the State to effectuate its purpose must be ‘nars

rowly tailored to the achievement of that goal.’ ” Jd. (Citations

omitted). _

As Justice O’Connor has observed, the disparities among the

tests “do not preclude a fair measure of consensus.” Wygant, 106

S.Ct. at 1853 (O’Connor, J.). “In particular, as regards certain

state interests commonly relied upon in formulating affirmative

action programs, the distinction between a ‘compelling’ and an

‘important’ government purpose may be a negligible one.” /d.

Similarly, in evaluating the means chosen to accomplish the

compelling governmental purpose, Justice Powell, author of each

of the Court’s strict scrutiny affirmative action opinions, has

echoed the concern of Justices Brennan, White, Marshall and

Blackmun that the Court’s review not be “strict in theory but

fatal in fact.” Fullilove, 448 U.S. at 507 (Powell, J.). Rather, he

has recognized the particularly proximate position of the trial

courts and hence the necessity of according them broad

discretion to fashion or approve appropriate affirmative relief

for the redress of racial discrimination. See below at 15.*

Thus as a practical matter the differences between the various

“means” tests are not substantial. A majority of the Court ac-

cords broad discretion to the district court or governmental body

to develop a remédy once a compelling purpose is identified sub-

ject only to a limiting “core principle” that such a remedy “not

impose disproportionate harm on the interests, or unnecessarily

trammel the rights of innocent individuals directly and adverse-

ly affected by a plan’s racial preference.” Wygant, 106 S.Ct. at

1853-54 (O’Connor, J.). Because selection of an interim promo-

tion goal here is justified by several compelling governmental pur-

poses and falls well within the permissible range of the district

court’s discretion, the decision below should be affirmed.

C. The Interim Goal Is Justified By Several Com-

pelling Governmental Interests

1. Remedying Prior Discrimination And

Barring Like Discrimination In The

Future

It is undisputed that the need to prevent racial discrimination

and remedy its effects — a national policy of the “highest priority’,

* This Court has long observed this principle in other contexts. As stated by

Justice Jackson:

The framing of decrees should take place in the District rather than

in Appellate Courts. They are invested with large discretion to

model their judgments to the exigencies of the particular case.

International Salt Co. v. United States, 332 U.S. 392, 400 (1947) (footnote and

citations omitted).

* In Fullilove, Justice Powell also observed that as with the latitude accorded

the trial courts, “Congress possesses a similar degree of discretion to choose a

suitable remedy for the redress of racial discrimination.” 448 U.S. at 508 (Powell,

].); see generally, Note, The Constitutionality of Affirmative Action in Public

Employment: Judicial Deference to Certain Politically Responsible Bodies, 67

Va. L. Rev. 1235 (1981).

Franks v. Bowman Trcnsportation Co., 424 U.S. 747, 763

(1976) — is a constitutionally sufficient predicate for both court-

imposed and voluntary affirmative action measures. See Local

28 Sheet Metal Workers, 106 S.Ct. at 3053 (Brennan, J., joined

by Marshall, Blackmun and Stevens, JJ.); id. at 3055 (Powell, J.);

Wygant, 106 S.Ct. at 1847 (Powell, J., joined by Burger, C.J., and

Rehnquist, J.); id. at 1854 (O’Connor); id. at 1866 (Marshall, J.

joined by Brennan and Blackmun J]J.).

The numerous opinions in this case reveal a pattern of longstan-

ding and eggegious discrimination affecting all levels of the

department and creating barriers to black entry, retention and

advancement.’ As a result in late 1983, nearly twelve years after

the DPS had been ordered to cease its unconstitutional

discriminatory practices and to take remedial actijgp, it had no

blacks in the ranks of major, captain, lieutenant or sergeant but

had an aggregate of 131 whites in those ranks. Only four of the

66 corporal positions were occupied by blacks. Paradise v.

Prescott, 585 F. Supp. 72, 74 (M.D. Ala. 1983). The district court

also found that the department sought to frustrate or delay full

compliance with its remedial orders. Its non-compliance included

a failure to develop job related promotion procedures which did

not adversely impact on black candidates. Paradise v. Prescott

580 F. Supp. 171, 173 (M.D. Ala. 1983). Under these cir-

cumstances, the district court’s selection of an interim promo-

tion goal pursuant to negotiated consent decrees was unques-

tionably justified by a compelling purpose.

2. State Governments’ Operational Need

For Integrated Public Safety Services

In 1974, the court of appeals recognized in this case the govern-

mental need for an integrated public safety force as an additional

” See e.g., United States v. Frazer, 317 F. Supp. 1079 (M.D. Ala. 1970); NAACP

v. Allen, 340 F. Supp. 703 (M.D. Ala. 1972), affd, NAACP v. Allen, 493 F.2d

623 (Sth Cir. 1974); NAACP tv. Dothard, 373 F. Supp. 504 (M.D. Ala. 1974);

Paradise v. Shoemaker, 470 F. Supp. 439 (M.D. Ala. 1979); Paradise v. Prescott,

580 F. Supp. 171 (M.D. Ala. 1983); Paradise v. Prescott, 585 F. Supp 72 (M.D.

Ala. 1983), affd, Paradise v. Prescott, 767 F.2d 1514 (llth Cir. 1985).

purpose served through the imposition of race-conscious goals. |

It held:

Finally, but perhaps the most crucial consideration in

our view is that this is not a private emplover and not

simply an exercise in providing minorities with equal

opportunity employment. This is a police department

and the visibility of the Black patrolman in the com-

munity is a decided advantage for all segments of the

public at a time when racial divisiveness is plaguing

law enforcement. .

NAACP v. Allen, 493 P.2d 614, 621 (Sth Cir. 1974) (quoting

Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commis-

sion, 482 F.2d 1333, 1341 (2d Cir. 1973)). Thus, just as the “state

interest in the promotion of racial diversity has been found suf-

ficiently ‘compelling’ at least in the context of higher education,

to support the use of racial considerations in furthering that in-

terest” Wygant, 106 S.Ct. at 1853 (O’Connor, J.), “sound govern-

mental decision making” might in certain circumstances, man-

date the conclusion that “an integrated police force could develop

a better relationship with the community and thereby do a more

effective job of maintaining law and order than a force compos-

ed only of white officers.” Id. at 1867-68 (Stevens, J.).

The compelling operational need for representative minority

employment by state and local public safety departments “is not

simply that blacks communicate better with blacks” but:

Rather, it is that effective crime prevention and solu-

tion depend heavily on the public support and coopera-

tion which result only from public respect and con-

fidence in the police. In short, the focus is not on the

superior performance of minority officers but on the

public’s perception of law enforcement officials and

institutions. |

Detroit Police Officer's Ass’n v. Young, 608 F.2d 671, 696 (6th

Cir. 1979), cert. denied, 452 U.S. 938 (1981) (quoted with

10

approval by the First Circuit in Boston Chapter NAACP v.

Beecher, 679 F.2d 965, 977 (Ist Cir. 1981), vacated as moot sub

nom., Boston Firefighters Union, Local 718 v. Boston Chapter

NAACP, 461 U.S. 477 (1983) and the Fourth Circuit in Talbert

v. Richmond, 648 F.2d 925, 931 (4th Cir. 1981), cert. denied, 454

U.S. 145 (1982)).

The plain reality of this important public purpose in state and

local public safety départments has been identified repeated]y

by the federal courts as a compelling justification fot the use Bi

eo, / race-conscious employment remedies.* However, recognitierof

the close correlation between the effective Wélivery of public safety

__ services and the employment of appfopriate numbers of minority

ye

udicial observation nor a

as @#™marized by the Sixth

public safety officers is not

recognition of recent vintage. i

Circuit: |

It is based on law enforcement experience and a

number of studies conducted at the highest levels. E.g.,

National Advisory Commissicn on Criminal Justice

Standards and Goals, Police (1973); National Commis-

sion on the Causes and ?revention of Violence, Final

Report: To Establish Justice, To Insure Domestic Tran-

quility (1969); Report of the National Advisory Com-

mission on Civil Disorders (1968); President’s Commis-

sion on Law Enforcement and Administration of

Justice, Task Force Report: The Police (1967). As these

a

* See e.g. Williams v. Vukovich, 720 F.2d 909, 923-24 (6th Cir. 1983); Baker

v. City of Detroit, 483 F. Supp. 930, 996-1000 (E.D. Mich. 1979), aff'd sub nom.,

Bratton v. City of Detroit, 704 F.2d 876 (6th Cir. 1983), cert. denied, 464 U.S.

1040 (1984); Boston Chapter, NAACP v. Beecher, 679 F.2d 965, 977-78 (Ist Cir.

1982). vacated as moot syb nom., Boston Firefighters Up’ Local 718 v. Boston

Cr&ipter, NAACP, 461 U.S. 477 (1983); Talbert v. City of nd, 648 F.2d

pe Bl (ath Cir. 19814 cert. denied, 454 US. 145 (1982); Detrags Police Of-

.

ficers Ass'n v. Young, 6u8 F.2d 671, 695-96 (6th Cir. 1979), cert. denied, 452

U.S. 938 (1981); Bridgeport Guardians, Inc. v. Bridgeport Civil Service Comm'n,

482 F.2d 1333, 1341 (2d Cir. 1973), cert. denied, 421 U.S. 991 (1975); Doores v.

McNamara, 476 F. Supp. 887, 995 (W.D. Mo. 1979); League of United Latin

American Citizens v. City of Santa Ana, 410 F. Supp. 873, 896-97 (C.D. Cal. 1976).

2.

- ee | eee

»*

11

reports emphasize, the relationship between govern-

ment and citizens is seldom more visible, personal and

important than in police-citizen contact. See, To

Establish Justice, supra at 145; Report on Civil

Disorders, supra at 145; Report on Civil Disorders,

supra at 300 (New York Times edition). It is critical

to effective law enforcement that police receive public

cooperation and support. Report on Civil Disorders,

supra at 30i; Task Force Report: The Police, supra at

144-45, 467; Myfice, supra at 630.

These national commissions recommended the recruit-

ment of additional numbersf minority police officers

as a means of improving community support and law

enforcement effectiveness. In fact, the benefits of Negro

officers were recogMized as early as 1931 by the

“Wickers:am Commission.” Report on the Causes of

Crime 24‘, National Commission on Law Observance

and Enforcement (Vol. I, 1931).

Detroit Police Officers’ Ass'n, 608 F.2d at 695.

VII coverage to state and local governments the Senate Report

In addition to these empirical studies, both the Congress and

observed that:

S. Rep. 92-415, 92nd Cong., Ist Sess. 10 (1971) (cited with ap-

proval in Wygant, 106 S.Ct. at 1855 (O’Connor, J.)). The House

Report specifically noted that:

The exclusion of minorities from effective participa-

tion in the bureaucracy not only promotes ignorance

of minority problems in the particular community but

also creates mistrust, alienation and all too often hostili-

ty towards the entire process of government.

The problem of empioyment discrimination is par-

ticularly acute and has the most deleterious effect in

those government activities which are most visible to

the minority communities (notably education, law en-

forcement and the administration of justice) with the

result that the credibility of the government's claim to

represent all the people is negated.

H.R. Rep. No. 92-238, 92nd Cong,, Ist Sess. 17 (1971).

The LEAA has similarly concluded “that the full and equal

participation of ... minority individuals in employment oppor-

tunities in the criminal justice system is a necessary component

to the Safe Streets Act’s program to reduce crime and delinquency

in the United States.” 28 C.F.R. § 42.301 (1982). LEAA regula-

tions require that where a “recipient has previously disc.iminated

against persons on the ground of race ... [or] color ..., the reci-

pient must take affirmative action to overcome the effects of prior

discrimination.” 28 C.F.R. § 42.203(i)(1) (1982).

Finally, this critical state public safety concern is not limited

to a need for integrated entry-level personnel. As the Sixth Cir-

cuit also explained:

This need extends to the higher ranks in police depart-

ments, such as the rank of sergeant involved in this case:

If minority groups are to feel that they are

not policed entirely by a white police force,

they must see that Negro or other minority

officers participate in policy-making and

other crucial decisions.

Deiroit Police Officers’ Ass'n, 608 F.2d at 695. (Citing President's

Commission on Law Enforcement and Administration of Justice,

Task Force Report: The Police (1967) at 172). See also Williams

v. Vukovich, 720 F.2d at 923 (finding a “particularly” great need

for integration of the “supervisory ranks”); Talbert v. Richmond,

648 F.2d at 923 (finding a “legitimate interest” in the integra-

tion of the “top ranks”); Baker v. City of Detroit, 483 F. Supp.

at 998-1000 (rejecting the ciaim that the City’s operational needs

extended only to black patrolmen and concluding that “(t}he im-

of black lieutenants in discriminatory prac-

tices cannot be overstated.”) (Emphasis added). Aaseniinaie, the

district court’s employment of an interim promotion goal pur-

suant to the negotiated consent decrees served the compelling

operational need for integrated state public safety services.

3. Compliance With Federal Court Decrees

In Local 28 Sheet Metal Workers, Justice Powell found that

in addition to serving the governmental interest in eradicating

racial discrimination, some remedial measures there were in-

dependently justified by a compelling “societal interest in com-

pliance with the judgments of federal courts.” 106 S.Ct. at 3055

(Powell, J.). This interest is implicated here as well.

From the early 1970’s onward the defendants have engaged

in a pattern of recalcitrance or complacency in the face of the

district court’s orders and decrees necessitating several separate

requests for supplemental relief by the plaintiffs. In 1975 the

district court made an explicit finding that the defendants pur-

posefully flouted the district court’s 1972 order’ by artificially

restricting the size of the trooper force, using selection methods

that arbitrarily excluded large numbers of black applicants and

using racially discriminatory practices to create high black at-

trition from the force.

Mote specifically, the court fashioned the interim promotion

goal challenged here in response to the defendants’ complete

failure to comply with the 1979 and 1981 consent decrees requir-

ing the development of a promotion procedure which did not

adversely impact on black candidates.

* The 1972 order, in turn, as it pertained to supporting personnel, was required

due to the defendants’ inability to comply with the 1970 order in United States

o. Frazer. See NAACP v. Allen, 340 F. Supp. 703 (M.D. Ala. 1972).

14

D. The Interim Promotion Goal Fell Well Within

The Permissible Range of the District Court's

Discretion.

The proper constitutional standard of review of race-conscious

remedies recognizes the broad discretion accarded district courts

purposes.

ing racial discrimination this Court has long recognized that the

district court “has not merely the power but the duty to render

a decree which will so far as possible eliminate the discriminatory

effects of the past as well as bar like discrimination in the future.”

Louisiana v. United States, 380 U.S. 145, 154 (1965).

Similarly, this Court has observed that where unconstitutional

race discrimination is involved, the district court must remedy

both “the condition that offends the constitution,” Swann v.

Charlotte-Mecklenburg Board of Education (Swann I), 402 US.

1, 15-16 (1971), as well as the conditions found to “flow for such

a violation.” Milliken v. Bradley, 433 U.S. 267, 282 (1977). The

court must take steps to eliminate “all vestiges” of the discrimina-

tion “root and branch.” Keyes v. School Dist. No. 1, 413 U.S. 189,

200 and n.11 (1973). The remedy must be “feasible”, “workable”

and “effective”, Swann I, 402 U.S. at 32, and “promise realistically

to work” and “to work now.” Green v. County School Board, 391

U.S. 430, 439 (1968).

Moreover, “once a right and a violation have been shown, the

scope of a district court's equitable powers to remedy past wrongs

is broad, for breadth and flexibility are inherent in equitable

remedies.” Swann I, 402 U.S. at 15. In addition, “all reasonable

methods [must] be available to formulate a decree.” North

Carolina State Board of Education v. Swann (Swann II), 402

U.S. 43, 46 (1971).

Thus, the courts of appeals have often deferred to the district

courts’ broad remedial discretion in sustaining the propriety of

race-conscious measures. As explained by the Third Circuit in

upholding an interim hiring goal:

[P}reservation of the court’s flexibility in the framing

of remedies would seem to be particularly important

in racial discrimination cases since they often require

the district court to tailor its order to meet the needs

of a highly complex and emotionally charged factual

situation.

. Erie Human Relations Commission v. Tullio, 493 F.2d 371, 374

(3d Cir. 1974). Similarly, the Fourth Circuit noted that “this broad

discretion is mandated by the highly individual nature of the relief

needed to remedy discrimination in each particular case.”

Chisholm v. United States Postal Service, 665 F.2d 482, 498-99

(4th Cir. 1981). Thus, the Ninth and Second Circuits have con-

cluded that remedial goals are not “limited to any specific or

prescribed form” and can include “specific numbers or ratios”

because “[t ]he precise method of remedying past discrimination

is largely left to the broad discretion of the district judge.” Davis

v. County of Los Angeles, 566 F.2d 1334, 1343 (9th Cir. 1977),

vacated as moot, 440 U.S. 625 (1979) (quoting Rios v. Enterprise

Ass'n. Steamfitters Local 638 of U.A., 501 F.2d 622, 631 (2d Cir.

1974)).

Furthermore, contrary to the petitioner's suggestion, the district

court need not experiment with a shopping list of alternative

measures before resorting to remedial goals. See Sol. Gen. br.

at 18-21. As Justice Powell explained, when reviewing district court

use of race-conscious measures “this court has not required

remedial plans to be limited to the least restrictive means of im-

plementation.” Fullilove, 448 U.S. at 508. (Powell, J.) Moreover,

Justice Powell has observed that the district court “having had the

parties before it over a period of time [is] in the best position to

judge whether an alternative remedy ... would have been effec-

tive.” Local 28 Sheet Metal Workers, 106 S. Ct. at 3056 (Powell, J.).

The district court must have an array of tools available to it

to enable it to provide effective remedies that are suitable to the

circumstances with which it is presented. Authority to order in-

terim promotion goals is one such tool. Surely it is not appropriate

to use that tool in every case. In fact, the lower courts have ordered

the use of hiring and promotion goals or ratios sparingly. See Brief

16

of The Lawyers’ Committee for Civil Rights Under Law filed

in No. 84-1999, Local Number 93, International Association of

Firefighters, AFL-CIO, C.L.C. v. City of Cleveland, at p. 7. To

assess whether or not a particular race-conscious remedy is ap-

propriate for use in a given case, the Court has examined a variety

of factors. Those include: 0 nee Se

tion; (4) burden on non-minorities and (5) relationship to the

relevant minority labor market or population. See Local 28 Sheet

Metal Workers, 106 S. Ct. at 3051-3053 (Brennan, J. joined by

Marshall, Blackmun and Stevens JJ.); id at 3055 (Powell, j-); ia.

at 3060-3062 (O’Connor, J.); id at 3062 (White, J.); Wygant, 106

S. Ct. at 1850-52 (Powell, J. joined by Burger C.J. and Rehn-

quist, J.); id. at 1857 (O’Connor).

As we show below, the interim promotion goal ordered here

falls well within the permissible range of the district court's

authority under the facts of this case, and the judgment below

must therefore be affirmed.

I. Necessity

Evaluation of the necessity of race-conscious relief requires con-

sideration of the purpose served by the remedy, the scope and

extent of the defendants’ discriminatory practices and their ef-

fects and the efficacy of alternative remedies and their relative

burdens.” See Local 28 Sheet Metal Workers, 106 S. Ct. at 3051;

id. at 3055 (Powell, J.). All of these considerations support the

propriety of the interim promotion goal.

The district court charged with the responsibility of deveiop-

ing a promotion procedure pursuant to the consent decrees was

well aware of the defendants’ “long term, open and pervasive”

discrimination, the resulting virtual exclusion of blacks from the

DPS’s upper ranks and the failure of all remedies other than in-

terim and long term hiring goals in providing any significant

degree of progress in remedying this discrimination at the lower

* Consideration of the efficacy of alternative remedies does not require the

district court to impose the least restrictive remedy. Compare Local 28 Sheet

Metal Workers, at 3055 (Powell, |.) with Fullilove, 448 U.S. at 508 (Powell, J.).

17

levels of the force. Paradise v. Prescott, 585 F. Supp. at 75-76."

Indeed, in drafting the promotion goal, the district court

specifically relied on an earlier order in which its review of this

case's history “demonstrated dramatically” the efficacy of race-

conscious measures over other relief. Jd. at n.3. (citing NAACP

v. Dothard, 373 F. Supp. 504 (M.D. Ala. 1974)).

In the Dothard opinion, the district court had compared, as

to the hiring of clerical personnel, the virtual “non-existent” pro-

gress of non-goal measures in Frazer with the significant pro-

gress achieved through the hiring goals in Allen and concluded

that without goals “effective relief will not be achieved.” Id. at

507. These observations spurred the Fifth Circuit's commenda-

tion of the “unusual confirmation of the feasibility, wisdom and

efficacy of the decree.” NAACP v. Allen, 493 F.2d at 621. Accor-

dingly, the district court’s conclusion that the “egregious” im-

balances in the DPS’s upper ranks would not “dissipate within

the near future” without race-conscious action, 585 F. Supp. at

75, cannot seriously be questioned.

Apart from its stated remedial purpose, the district court also

sought to encourage the DPS’s prompt development of a non-

discriminatory promotion procedure to avert the disparate con-

sequences of other selection methods. See id. Under these cir-

cumstances, the use of interim promotion goals is plainly ap-

propriate. As explained by the plurality in Local 28 Sheet Metal

[A] district court may find it necessary to order interim

“ In construing a consent order for enforcement purposes, this Court has re-

quired that the district court look to “the circumstances surrounding the order

and the context in which the parties were operating.” United States v. 1.T-T.

Continental Baking Co., 420 U.S. 223, 243 (1975).

between two unacceptable alternatives: an outright

ban on hiring or promotions or continued use of a

discriminatory selection procedure.

106 S. Ct. at 3037 (Brennan J., joined by Marshall, Blackmun

and Stevens, JJ.).

Finally, the petitioner viewing the interim promotion goal sole-

ly as an “in terrorem” enforcement device and ignoring its other

purposes, suggests that the district court should have chose1. other

remedies. Sol. Gen. br. at 19-21. For example, petitioner asserts

that the court could have made promotion decisions itself, ap-

pointed a trustee to supervise the DPS’s progress or imposed heavy

fines and fees. Sol. Gen. br. at 21.

Even viewing the interim promotion goal in the limited man-

ner suggested by petitioner, the alternative remedies offered are

neither equally effective nor less burdensome. Since use of the

interim promotion goal compelled within seven months, see J.A.

at 142-145, what the DPS had been unwilling to do in close to

five years, it is difficult to imagine how the other suggested ap-

proaches could have been as effective. Moreover, the petitioner's

suggested remedies fail to take into account the burdens on the

“interests of state and local authorities in managing their own

affairs”, Milliken v. Bradley, 433 U.S. 267, 281 (1977), and the

express congressional recognition in section 706(g) of Title VII

of the propriety of leaving the details of individual employment

decisions to employers notwithstanding the use of class-based race-

conscious measures. See Local 28 Sheet Metal Workers, 106 S.

Ct. at 3035, (Brennan, J. joined by Marshall, Blackmun and

Stevens, JJ.); id. at 3059-60 (O'Connor, J.) (“[A]s to any racial

goal ordered by a court as a remedy for past discrimination, the

employer always has a potential defense by virtue of § 706(g)

against a claim that it was required to hire an employee that the

employee was not hired for reasons unrelated to discrimination.”)

(Emphasis in original) * _

* Attorneys fees and costs have been awarded on numerous occasions in this

case and have not produced amy noticeable effect on the DPS’s black super-

visory composition. See ¢.g., 317 F. Supp. at 1093; 340 F. Supp. at 708-10.

19

2. Flexibility

The interim promotion goal is flexible. It neither requires nor

permits the promotion of unqualified persons. Moreover, the goal

does not require hiring unneeded *mployees or displacing existing

employees. Local 28 Sheet Metal Warkers, 106 S. Ct. at 3061

(O’Connor, J.); id. at 3062-63 (White, J.).

Thus, it accommodates legitimate reasons for non-compliance,

such as the lack of qualified applicants or declining economic

conditions, and it does not impose sanctions on the employer

despite good faith efforts to comply. Compare id. at 3051 (Bren-

nan, J. joined by Marshall, Blackmun and Stevens, JJ.) and id.

at 3056 (Powell, J.) with id. at 3061-62 (O’Connor, J) and id. at

3062-63 (White, J.). Accordingly, even evaluated under the

strictest standards of flexibility utilized by some members of the

Court in the more limited context of a court’s Title VII remedial

authority, the goal has none of the attributes of a rigid quota.

See id. at 3060-62 (O’Connor, J), id. 3062-63 (White, J.).

3: Duration

The interim promotion goal is temporary both in letter and

application. As drafted, the interim goal applied only until either

a non-discriminatory promotion procedure was developed or until

25% of each of the higher ranks were comprised of black officers.

In application, it was only used once — at the corporal level —

and it resulted in the promotions of only eight black troopers.

See Paradise v. Prescott, 767 F.2d at 1524. Accordingly, the in-

terim goal has operated as a limited and “temporary tool for reme-

dying past discrimination without attempting to ‘maintain’ a

previously achieved balance.” Local 28 Sheet Metal Workers, 106

S. Ct. at 3052 (Brennan, J., joined by Marshall, Blackmun and

Stevens, JJ.); see also, id. at 3056 (Powell, J.).

4. Burden on Non-Minorities

“[A]s part of this nation’s dedication to eradicating racial

discrimination, innocent persons may be called upon to bear some

20

of the burden of the remedy.” Wygant, 106 S. Ct. at 1852 (Powell,

J., joined by Burger, C.J. and Rehnquist, J.). Members of this

Court have repeatedly recognized that “such a sharing of the

burden is not impermissible.” Id.; Fullilove, 448 U.S. at 484

(Burger C.J., joined by White and Powell, JJ.); Franks v. Bowman

Transportation Co., 424 U.S. 747, 777 (1976). Because the “ac-

tual burden [if any] shouldered by non-minoriti[es] ... is relatively

light”, Fullilove, 448 U.S. at 484, and “will have only a marginal

impact on the interests of white workers” Local 28 Sheet Metal

Workers, 106 S. Ct. at 3054, the interim promotion goal is plainly

appropriate.

First, as discussed above, the temporary and extremely limited

nature of the goal substantially restricts its potential burden. It

has been used only once, only for corporal promotions and only

eight black officers received promotions as a result of its

operation.”

Second, the interim goal is not an “absolute bar to white ad-

vancement.” See Local 28 Sheet Metal Workers, 106 S. Ct. at 3052;

United Steelworkers of America v. Weber, 443 U.S. 193, 208

(1979). Even in the one instance where the interim goal was

employed, half of those promoted were white.

Third, the interim goal does not require the discharge of white

employees. See Local 28 Sheet Metal Workers, 106 S. Ct. at 3057

(Powell, J.); Weber, 443 U.S. at 208. It merely delays promotions

to persons who otherwise would have received them if the DPS’s

discriminatory selection process had been followed strictly. As

explained by Justice Powell, “[dJjenial of a future employment

opportunity is not as intrusive as loss of an existing job.” Wygant,

106 S. Ct. at 1851. Whereas layoffs might in certain circumstances

“impose the entire burden of achieving racial equality on par-

ticular individuals resulting in serious disruption of their lives”

id., promotion goals, like hiring goals, “impose only a diffuse

® Because of its narrow scope and limited application, the interim goal does

not present the prospect of widespread “leap frogging [of] minorities over senior

and better qualified whites.” See Local 93 International Firefighters, 106 S. Ct.

at 3082 (White , J]., dissenting).

21

burden, often foreclosing only one of several opportunities.” See

id. Thus, unlike the permanent debilitating disruption of a layoff,

white candidates denied promotion by the extremely limited ap-

plication of the interim goal, may simply reapply for future

positions.

Fourth, any actual burden on non-minority expectations must

be tempered by recognition that such expectations have been ar-

tificially inflated by the blatant discriminatory practices which

the lower courts here have condemned. Thus, just as “some non-

minority business may have reaped competitive benefit over the

years from the virtual exclusion of minority firms from these con-

tracting opportunities”, Fullilove, 448 U.S. at 484-85 (Burger, C_J.

joined by White and Powell, JJ.), “where an employer has violated

an anti-discrimination law, the expectations of non-mjnority

workers are themselves products of discrimination and hence

‘tainted’ and therefore more easily upset.” Bekke, 438 U.S. at 365

(Brennan, J., joined by White, Marshall and Blackmun, JJ.).

Presumably, many white promotional candidates have reaped

some competitive benefits from the DPS’s pre and post 1972

discriminatory practices, and the continuing frustration of the **

district court’s order leading to the 1975 order, the 1979 and 1981

consent decrees and the 1983 enforcement proceedings. Indeed,

at the time of the enforcement proceedings leading to the 1983

order at issue here, virtually all promotions to the rank of cor-

poral had been awarded to white officers and no white officers

had ever had to compete with a black candidate for a promo-

tion. As observed by the district court “the department still

operute{d] an upper rank structure in which almost every trooper

obtained his position through procedures that totally excluded

black persons.” 585 F. Supp. at 74. (Emphasis in original).

Finally, the intervenors’ individual claims of entitlement bas-

ed on higher standing on the eligibility ranking J.A. at 67-85 —

as with the identical claims of white trooper applicants rejected

12 years ago — are neither novel nor persuasive. As the Fifth

Circuit explained in 1974: =

[N]o applicant for public employment can base any

claim of right under the Fourteenth Amendment's

22

equal protection or due process clauses upon an eligibili-

ty ranking which results from unvalidated selection pro-

cedures that have been shown to disqualify blacks at

a disproportionate rate. This is so because by definition

such criteria have not been shown to be predictive of

successful job performance. Hence there is no reliable

way to know that any accepted applicant is truly bet-

ter qualified than others who have been rejected.

493 F.2d at 618.

Accordingly, in light of its minimal burden on non-minority

interests and expectations, the interim promotion goal neither

“impose[d] disproportionate harm on the interests, [njor un-

necessarily trammel[led] the rights of innocent individuals”

Wygant, 106 S. Ct. at 1853-54 (O’Connor, J.), and thus withstands

constitutional scrutiny.

5. Relationship to Relevant Minority Labor Market

The remedy selected by the district court pursuant to the con-

sent decrees contains both a long term or end goal and an en-

trance or interim goal. See generally United States v. City of Buf-

falo, 633 F.2d 643, 647 (2d Cir. 1980). The long term or end goal

is 25% and reflects the relevant black population.” The interim

goal of promoting one black for each white promoted merely

measures the speed of progress towards the end geal, much in

the manner of an end date. Cf. Local 28 Sheet Metal Workers,

106 S. Ct. at 3056 (Powell, J.).* Plainly, regulation of the speed

“ Although the intervenors now question the propriety and correctness of the

25% labor market end goal, IV Br. at 13-14, this issue was neither raised below

nor in the petition for certiorari and is thus not properly before this Court.

See Adickes v. Kress, 398 U.S. 144, 147 n.2 (1969) (The Court will “not ordinarily

consider” issues neither raised nor considered before the court of appeals); /r-

vine v. California, 347 U.S. 128, 129-30 (1953) (The Court should not consider

additional questions not raised in the petition for certiorari).

* As with the end date in Local 28 Sheet Metal Workers, there is no reason

to assume that the interim goal will be applied inflexibly if invoked in the future.

See 106 S. Ct. at 3051 (Brennan, J. joined by Marshall, Blackmun and Stevens,

JJ.); id at 3056 (Powell, J.). Moreover, as discussed above at 19, the interim goal

is crafted in a particularly flexible manner.

23

of remedial measures is a matter appropriately committed to the

sound discretion of the district court which is best aware of the

surrounding circumstances and the parties’ history. Indeed, this

Court as well as numerous courts of appeals have recognized the

discretionary nature of the choice of interim or entrance goals

and have approved interim goals which exceed the labor market

end goal or percentage, see e.g. Weber, 443 U.S. at 199 (50% in-

terim goal, 39% labor market end goal); United States v. City

of Buffalo, 633 F.2d at 646-47 (50% interim goal, 22% labor

market percentage), those which equal the end goal, see e.g. Brat-

ton, 704 F.2d at 893-97 (50% interim goal, 50% labor market

end goal) and those which are exceeded by labor market percen-

tages, see e.g. Vulcan Society of New York City Fire Dept. Inc.

v. Civil Service Comm'n, 490 F.2d 387, 398-99 (2d Cir. 1973)

(25% interim goal, 32% labor market percentage).”

* Here, the district court exercised its discretion wisely as to the first fifteen

corporal openings, considering both a lesser one-shot proposal to promote four

blacks and eleven whites, J.A. at 125-26, and the possibility of greater measures

such as promoting blacks to all fifteen positions followed by the one-to-one pro-

motion goal “{i)n light of the department's failure after almost twelve years

to eradicate the continuing effects of its own discrimination and to develop ac-

ceptable promotion procedures and in light of the severity of the existing racial

imbalances” 585 F. Supp. at 75 n.1. The court wisely arrived at an intermediate

figure directing the promotion of eight blacks and eight whites pursuant to the

interim procedure. See 767 F.2d at 1524.

24

CONCLUSION

For the reasons set forth above, the judgment of the court of

appeals should be affirmed.

Dated: New York, New York

September 30, 1986

Respectfully submitted,

O. PETER SHERWOOD #£ROBERT ABRAMS

Solicitor General Attorney General of the

Counsel of Record State of New York

LAWRENCE S. KAHN Two World Trade Center

Deputy Solicitor General § New York, New York 10047

SUZANNE M. LYNN

JON C. DUBIN

ELVIA ROSALES ARRIOLA

Assistant Attorneys General