# Amicus Curiae Brief — United States v. Paradise

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0437%3A14

## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0437%3A14. Public record. Not legal advice.