Appendix — City of Flint v. Middleton

\ Suprens Court, U.B.

| FILED

“96121 1 JAN 27 1997

OFFICE OF THE CLERK

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

THE CITY OF FLINT, MICHIGAN, Petitioner,

V.

CHARLES MIDDLETON; W. OSMUND KELLY, III;

BRIAN SEPANAK; BRUCE SEPANAK; STEPHEN HILL;

GREGORY DOERR; BARRY SAUNDERS; ROBERT LOREY;

MAYNARD NEWMAN; JAMES MCLELLAN;

THOMAS HILGENDORF, Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals For The Sixth Circuit

APPENDIX

TO

PETITION FOR A WRIT OF CERTIORARI

TERRENCE J. MIGLIO* DIANE M. SOUBLY

* (Counsel of Record) VERCRUYSSE METZ & MURRAY

PATRICIA B. KENNY 31780 Telegraph Road, Suite 200

KARIN M. YOUNG Bingham Farms, MI 48025

KELLER, THOMA, SCHWARZE, Co-Counsel for Petitioner

SCHWARZE, DuBay & Katz, P.C. Wiiiam H. CRAWFORD, II

440 E. Congress, 5th Floor Chief Legal Officer

Detroit, MI 48226 City oF FLINT

Attorneys for Petitioner 1101 South Saginaw

Flint, MI 48502

Co-Counsel for Petitioner

BOWNE OF DETROIT

610 W. CONGRESS - DETROIT, MICHIGAN 48226 - (313) 964-1330

7 OO

an

INDEX TO APPENDIX

Opinion of United States Court of Appeals of the Sixth

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Opinion of United States District Court for the Eastern

District of Michigan of January 7, 1993................

Opinion of United States District Court for the Eastern

District of Michigan of July 29, 1992 ..................

Opinion Denying Petition for Rehearing and Suggestion

ge ge PR RA yt Pe cen es

Fourteenth Amendment to the United States Constitution

hop ities ng, MEO E EE PE PET re Vans

42 USC §1983 ...... pike bas die Sak Medea eee baka kes

Addendum to the July 1, 1983 to June 30, 1984 Collective

UN

Testimony of Miles White, Chief of Police, City of Flint,

Michigan before Human Rights Commission............

A Report of Public Hearings Held on April 4th, 10th and

11th, 1984, Human Rights Commission ................

Minority Hiring and Promotion in the Flint Police

Department: A Labor Market Analysis, Marc Bendick, Jr.,

SUE RIS koe bcos 4b ork ew bck bck hs

The Representation of Minorities at the Rank of Sergeant

in the Flint Police Department: An Updated Labor Market

Analysis, Marc Bendick, Jr., Ph.D., February, 1992 .......

Opinion and Recommendation, of March 5, 1980,

Waldron, et al. v Flint Police Patrolmen’s Association, et

i; HU. Ole, Ci, POG; FOI wo kkk vce kc kccse

Order of December 2, 1974, Flint Police Patrolmen’s

Association (FPPA) v City of Flint....................

Opinion and Order of May 18, 1977, Alfaro, et al. v

me, BOOT Tea WOR A: GID os oie oo vn vnc veces

Deposition excerpt of Dr. Frank.......................

Comparison of the Proportions of Black Sergeants and

Black Patrol Officers 1980-1989, Harry Frank, Ph.D. .....

Letter regarding Contract Ratification and Summary of

I TN i a eS a te

Deposition excerpt of Maynard Newman ...............

Brief in Support of Defendant City of Flint’s Motion for

Ne IID Sos oc vc vrwed chest byes eRekeies

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Appendix A

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

ELECTRONIC CITATION: 1996 FED

App. 0255P (6th Cir.)

File Name: 96a0255p.06

Nos. 93-1367/1368

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CHARLES MIDDLETON; 7

W. OSMUND KELLY, III;

BRIAN SEPANAK; BRUCE

SEPANAK; STEPHEN HILL;

GREGORY DOERR; BARRY

SAUNDERS; ROBERT LOREY;

MAYNARD NEWMAN; JAMES

MCLELLAN; THOMAS ON APPEAL from the

HILGENDORF, United States District

Plaintiffs-Appellants, Court for the Eastern

Cross-Appellees, District of Michigan

y,

THE CITy OF FLINT, MICHIGAN,

Defendant-Appellee

Cross-A ppellant,

THE FLINT POLICE OFFICERS

ASSOCIATION,

Defendant. |

Decided and Filed August 6, 1996

Before: KRUPANSKY, BOGGS, and SUHRHEINRICH,

Circuit Judges.

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Appendix A

BOGGS, Circuit Judge. The city of Flint, Michigan, adopted

a plan in 1985 requiring that 50% of all police officers who are

promoted to the rank of sergeant be members of specified “minor-

ity” groups. This action under 42 U.S.C. §§ 1983 and 1981 was

brought by white police officers who have been passed over at

least once’ for promotion because the plan required that minori-

ties be promoted ahead of them to maintain the designated

numerical balance. The district court granted summary judgment

to the city, and the plaintiffs timely appealed. We hold that the

city has not met its heavy burden of proving that a compelling

State interest necessitates its racial quota system, nor has it shown

that the quota system is narrowly tailored to serve such an

interest. We reverse the district court’s decision and remand the

matter for further proceedings consistent with this opinion.

I

A. The 1973 Holliman v. Price Decision

For more than twenty years, federal courts in the Eastern

District of Michigan have considered charges that the hiring and

promotion policies and practices of the Flint police department

have been tainted by discrimination. In Holliman v. Price, 1973

WL 280 (E.D. Mich. Jan. 3, 1973), minority plaintiffs challenged

two elements of the police department’s entry-level hiring poli-

cies. These requirements were that successful applicants (1) have

sixty hours of college credit in the field of police administration or

a directly related field, or have equivalent law-enforcement

experience; and (2) satisfactorily complete a twenty-nine-item

written test. The Holliman court, agreeing with the plaintiffs that

' Five of the plaintiffs have been passed over twice.

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Appendix A

the two challenged requirements were invalid, found that a

validation study that the city had conducted “was totally insuffi-

cient by any professional standards” because it had been based on

too small a sampling population. Jd. at *8. Consequently, “in view

of the well documented, historical underemployment of blacks in

Flint’s Department of Police,” id. at *10, the court granted

plaintiffs’ request for a preliminary injunction that compelled the

city to proceed with plans to hire twenty new patrol officers. In

addition, it ordered the city to reconsider previously rejected

applicants for entry-level police positions, this time without as-

sessing their qualifications based on the invalidated hiring criteria.

Despite the relief granted, the court also stated that ‘/w/e decline

at this time, however, to order any particular quota in [the]

hiring of blacks vis-a-vis whites or other non-black minorities.”

Ibid. (emphasis added).

B. The 1977 Alfaro v. Suber Decision

Four years later, in Alfaro v. Suber, Civ. Action No. 613

(E.D. Mich. May 18, 1977), minority applicants again challenged

the police department’s hiring policies and practices. The court

found that, prior to 1973, “in the entire history of Flint, a total of

only twenty-four Blacks had ever been hired” to serve as police

officers. Slip op. at 5. On the other hand, 15 of 29 new hires

(52%) during the 1972-73 year were minority members; 2 of 8

new hires the following year were minorities; and 56 of 105 (53%)

newly hired officers in 1974-75 were minorities. [bid.

In addition to considering the plaintiffs’ suit over the police

department’s hiring policies and practices, the district court also

ruled on their challenge to the department’s promotion policies

and practices. The court found that, in 1973, 229 applicants had

taken the department’s written examination for promotion to

sergeant; 87% of the white applicants achieved the passing score

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Appendix A

of 70 or higher, and all 7 of the Black applicants passed.

Moreover, the two racial groups’ average scores had been virtually

identical, though the court noted that “the minority sampling was

too small to be predictive.” Slip op. at 10.

In response to an earlier lawsuit in state court, there had

been a stipulation and agreement between the city and the groups

representing minority police officers in which the city had com-

mitted itself to promoting one minority member to sergeant for

every four “non-minority” members that it promoted. It made its

promotions by creating two separate promotion-eligible lists, one

for minorities and one for non-minorities, each based on a

composite score that aggregated the test results and a maximum

of fifteen seniority points for up to fifteen years’ service on the

force. In addition, the city required that promotion-eligible candi-

dates have either four years’ prior experience as a Flint police

officer, or three years’ experience as an officer and one year of

college. In 1975, a new promotion test was administered to 180

applicants, and 138 white officers passed. Of the 4 Black officers

who took the test, 3 passed. All 3 of the Blacks who passed were

promoted, pursuant to the stipulation.

In reviewing the record before it, the Alfaro court held that

there had been a “gross disparity between employment levels of

Black and White persons prior to 1973,” providing “compelling

evidence that the employment practices in the Police department

have had a discriminatory impact.” Slip op. at 15. However, the

court found insufficient evidence to sustain plaintiffs’ claims that

the department’s minority-recruitment efforts were discrimina-

tory. Similarly, “[t}he 1973 and 1975 sergeants examination

[sic] were not shown to have a statistically significant disparity.”

Id. at 17. The court concluded that, although the police depart-

ment had clearly discriminated in its hiring policies and practices

prior to 1973,

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Appendix A

[s]ince that time, it is also apparent that the City has

attempted to remedy many of the practices which

caused the disparate impact and has since increased

minority representation in the Police Department.

Whether these gains have been the result of court action

or pressures from federal funding agencies is not entirely

certain.

Because of the general improvement in minority

representation in the last three and one-half years, the

Court does not believe that imposition of a quota for

hiring is necessary. However, to assure that improve-

ment continues, the Court will retain jurisdiction of the

case for five years.

Id. at 20 (emphasis added). The court also prevented the police

department from considering more than five years of seniority in

applications for promotion. Jd. at 18.

C. The 1983 Election and the 1984 HRC Hearings

In 1983, the voters of Flint elected a new city government.

Mayor James Sharp ran on a platform that included pledges to

implement “affirmative action plans” that would increase the

city’s minority hiring and promotion efforts.

In 1984, public hearings were conducted by the Flint Human

Relations Commission (“HRC”). The HRC took testimony from

several witnesses. Richard Dicks, a fourteen-year police veteran

who had been an unsuccessful plaintiff in A/faro and who had

been named Flint’s Deputy Administrator for Public Safety by

Mayor Sharp, testified. Flint City Council President Melvin

McCree reported the results of the City Council’s 1981 and 1983

investigations into police hiring and promotion policies, and he

conveyed a Council committee recommendation that the city

6a

Appendix A

adopt a plan for minorities to be 65% of new police officers.

Furthermore, the city’s new police chief, Miles White, who had

been appointed by Mayor Sharp, and other political figures

provided anecdotal testimony confirming contentions of past dis-

crimination in police hiring and promotions. However, Chief

White also stated at the hearing that the police department had

undertaken an expensive effort in the 1960s to recruit at Black

colleges across the nation; the effort “failed to produce significant

numbers of recruits.”

I. Dr. Bendick’s Testimony

'mportant testimony came from Dr. Marc Bendick, a labor-

force analyst employed by the city, who reported that minorities

comprised 46.3% of Flint’s 1980 population and 45% of Flint’s

general labor force in 1984. After allowing for demographic, age,

and education factors, for the tendency of census-takers to un-

dercount minority members, for the city’s tendency to employ a

certain proportion of its entry-level officers from neighboring

communities outside Flint where minority groups are not as

populous, and for “the propensity of minorities to apply for civil

service jobs at a somewhat higher rate than for jobs in the private

business sector,” Dr. Bendick determined, in a 1984 report, that

minority persons should have comprised 39.6% of Flint’s police

officers in 1984; however, only 19.1% of the force was actually

comprised of minorities at the time. Dr. M. Bendick, Minority

Hiring and Promotion in the Flint Police Dept. 2, 7 (Apr. 1984).

He noted that most Flint police officers had been hired in 1978 or

earlier. Jd. at 4.

Dr. Bendick also opined that 31.1% of Flint’s police sergeants

in 1984 should have been minorities, although only 10.8% actually

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Appendix A

were.? However, in finding that minorities comprised 39.1% of the

city’s 1968 labor pool, 42.0% of the 1969 pool, and 44.5% of the

1970 pool, Bendick at 6, Dr. Bendick’s statistics differed sharply

from those of other statisticians. See, e.g., Statistical Abstract of

the United States: 1986 16 (106th ed. 1985) (reporting that

Blacks comprised 28.1% of Flint’s 193,000 population in 1970).

Ultimately, Dr. Bendick found that “/t/he appropriate end goal

for proportionate minority representation at all ranks in the police

department is the 45 percent which minorities constitute of the

entry-level labor pool for the department.” Bendick at 8.

2. The HRC Report and the Adoption of the “Flint Plan”

After the hearings, the HRC issued a report in August 1984,

buttressing its findings of discrimination in the Flint police de-

partment by citing the district court decisions in Holliman and

Alfaro. The HRC report included its “find[ing] that 45% is a

J “ ;

2 Because African-Am-ricans comprise approximately 93% of Flint’s “mi-

nority” population, which is actually now the majority population of 52%, the

discussion in this opinion uses the terms “minority members,” “Blacks,” and

“A frican-Americans” somewhat interchangeably, depending upon context. Sim-

ilarly, although whites are in the minority of Flint’s population, the discussion in

the opinion uses the convention adopted by the district court and the city,

referring to that population as the “non-minority.”

Further complicating the matter, we note that section VI-D of the plan,

which establishes “individual minority group goals” (allocating Blacks 87% of

the “Minority Standard,” Hispanics 8%, American Indians/ Alaskan Natives

3%, and Asians/Pacific Islanders 2%), states:

Once any minority group exceeds 5% of its individual minority

group goal in a classification and/or EEOC category by depart-

ment, and if there are other underutilized minority groups eligible

for appointment, the persons from the group that exceeds the

standard will be excluded from future affirmative treatment for that

classification and affected department.

Affirmative Action Plan 16 (July 1985). Thus, some minorities may be

transformed into “non-minorities” by their success.

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Appendix A

reasonable end-goal for minority representation in each rank of

the classified service of the police department,” HRC Hearings

Report (“HRC”) at 5, and its further “find[ing] that

implementation of a 1-to-l promotional ratio until parity is

achieved will not unnecessarily trammel the interests of non-

minority officers.” Jbid. The HRC acknowledged that the Flint

police department had undertaken prior “initiatives. . . including

improvement in validation of exams; modifications of certification

procedure; dissemination of information regarding employment

opportunities to protected classes; pre-employment inquiries in

compliance with state and federal laws; and in-service training

and retraining programs for all personnel.” HRC at 13. However,

the HRC still emerged with a “find[ing] that the achievement of

a 45% minority representation within all ranks in the Flint police

department would satisfy the operational efficiencies that are

associated with having a police department which more nearly

reflects the population that it serves.” HRC at 5.

A year after the HRC hearings, in July 1985, the Mayor

presented to the Michigan Civil Rights Commission (“the Com-

mission”) “the City of Flint’s Affirmative Action Plan” (herein-

after “the Flint Plan” or “the plan”), based on the HRC’s

findings. This plan covered the entire city workforce and declared

an intent to “[{s]earch for selection procedures that minimize

adverse impact on minority [sic], females and handicappers.”

Plan at 21. The Commission approved the Flint Plan in January

1986, and the collective bargaining agreement between the city

and the Flint Police Officers Association was amended to incorpo-

rate the plan. Promotions of entry-level police officers to the next

rank of sergeant were to be made according to a 1:1 ratio,

alternating between minority and non-minority candidates.

As of the early 1990s, the city’s minority population is

approximately 52%, and Blacks comprise 93% of all minorities in

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Appendix A

the city. Thus, Blacks constitute slightly less than 50% of the

city’s population.’ At the time that plaintiffs brought their suit, in

May 1990, minorities comprised a higher percentage of the city’s

police sergeants than they did of entry-level officers. The city

continued to administer its system of tests and seniority weighting

to rank the non-minority applicants for sergeant, in order of their

eligibility for the 50% of promotions to sergeant that were desig-

nated for them. At the same time, the city began ranking minority

applicants separately, using the same criteria, for the 50% of

promotions that were reserved for them.

Under this new arrangement, certain non-minority persons,

like the plaintiffs, have been denied promotions to sergeant that

they would otherwise have received in the absence of separate

promotion lists. Therefore, they have not received the increased

salaries and benefits that they would presumably have obtained if

the Flint Plan had not modified the previous promotion system.

Furthermore, they cannot begin accruing the seniority as ser-

geants that they would need in order to become eligible for future

promotions. Plaintiffs therefore brought this action against the

city for unlawful race discrimination under 42 U.S.C. §§ 1983 and

1981.

il

The district court considered plaintiffs’ arguments that the

HRC hearings, which the city used as a basis for implementing its

promotion plan, were invalid because witnesses were not cross-

examined and the Federal Rules of Evidence were not followed.

The court correctly noted that legislative hearings are inherently

> The American Almanac: 1992-1993, at 35 (112th ed.). See also Middle-

ton v. Flint, 810 F. Supp. 874, 876 n.2, 878 n.4 (E.D. Mich. 1993) (setting the

minority population at 53.2% of the city, and noting a 1980 census finding that

Blacks comprise 93% of all Flint minority residents).

10a

Appendix A

political and contribute to the public weal in ways different from

evidentiary proceedings conducted by judges. The court also

observed that it was not familiar with any legislative body that

conducts public hearings governed by court rules. Middleton v.

Flint, 810 F. Supp. 874, 879 (E. D. Mich. 1993).

Plaintiffs criticized the HRC findings on other grounds as

well. Recognizing that the city may have discriminated in the past

in hiring entry-level minority police officers, they argued that the

police department’s promotion policies and practices privr to the

adoption of the Flint Plan were not discriminatory. Since ser-

geants can only be promoted from within the ranks of lower-level

officers, and not directly from the greater municipal labor force,

the plaintiffs maintained that a proper analysis of promotion

policies should focus on the pace at which minority police officers

are promoted. Plaintiffs’ labor-force expert determined that minori-

ties comprise a higher percentage of police sergeants than of lower-

ranking police officers. The plaintiffs thus contended that promo-

tions must have been awarded fairly. Therefore, plaintiffs claimed

the city’s decision to extend its affirmative action plan to promotions

violates a long line of Supreme Court caselaw rejecting such plans in

fields of endeavor not marked by past discrimination.

The district court, however, adopting Dr. Bendick’s findings

and statistical analysis, upheld the 1:1 ratio for promotions and

granted the city’s motion for summary judgment on the plaintiff's

claims under 42 U.S.C. § 1983 and 1981. The plaintiffs brought

this timely appeal from that decision.‘

* The plaintiffs also claim that the court erred when it dismissed their state

claim under Michigan's Elliott-Larsen Civil Rights Act, noting that the Flint

Plan had been approved by the Michigan Civil Rights Commission. Memoran-

dum, July 29, 1992, at 5. The court cited Michigan law, which grants Flint a

complete defense to an Elliott-Larsen action when the city shows that it has

properly filed its Plan with the Commission and that the Commission has

approved it. Mich. Comp. Laws § 37.2210; Kulek v. City of Mt. Clemens, 164

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Appendix A

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As a preliminary matter, we note that this appeal is from a

plan that a municipality has voluntarily adopted on its own

initiative. This, this plan differs from those that are crafted under

the direction of a court order, resulting from a judicial factfinding

process, as happened in United States v. Paradise, 480 U.S. 149

(1987) (plurality opinion). Nor was this plan presented to a court

by the participating parties as part of a motion for a judicially

approved consent decree, as was the case in Vanguards of

Cleveland v. City of Cleveland, 753 F.2d 479 (6th Cir. 1985),

Mich. App. 51, 416 N.W.2d 321. (1987); Ruppal v. Department of Treasury,

163 Mich. App. 219, 413 N.W.2d 751 (1987). There is no dispute that the

Commission approved the Flint plan, albeit after the plan went into effect, so the

district court did not err on this point.

The city brings a cross-appeal, claiming that plaintiffs have no right to bring

their underlying action because the three-year limitations statute rendered such

claims stale. We affirm the district court's decision, rejecting the city’s claim, on

the grounds that the statute began to run only after the plaintiffs were denied

promotion and thereby received notice of the allegedly discriminatory conduct.

We reject the city’s argument that the statute began to run on the day that the

Flint Plan was enacted. As the district court found:

Implementation of the AAP [Affirmative Action Plan} did not affect

plaintiffs. Unlike the adoption of a seniority system, by which an

employee's rights and interests are immediately altered, the adoption

of an affirmative action plan for hiring and promotions does not alter

an employee's status. The AAP only told plaintiffs that the City would,

in the future, use certain criteria for making its employment decisions.

Only when they were denied promotion pursuant to the AAP did

plaintiffs incur a diminution in employment.

Memorandum Opinion and Order, July 29, 1992, slip op. at 9; accord Kuem-

merlein v. Board of Educ. of Madison Metro. Sch. Dist., 894 F.2d 257 (7th Cir.

1990) (accrual date is day that notice of termination is received, not day that

law is enacted nor later day of actual termination). Furthermore, we uphold the

district court’s application of Roberts v. North American Rockwell Corp., 650

F.2d 823 (6th Cir. 1981), holding that a continuing violation occurs each

subsequent time an applicant is wrongly subjected to an adverse employment

aetcee

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Appendix A

affd sub nom. Local 93, Int'l Ass'n of Firefighters v. City of

Cleveland, 478 U.S. 501 (1986). Rather, this plan, much like the

one adopted in City of Richmond v. J. A. Croson Co., 488 U.S.

469 (1989), for awarding city contracts to minority business

enterprises, has been voluntarily conceived in the course of a local

government’s political process.

A

In its Croson decision, the Court rejected a city’s plan to set

aside 30% of its construction contracts for “minority business

enterprises” (MBEs). The Court noted that the city had not

endeavored to show that minorities were actually facing discrimi-

nation in the local construction industry. Even though the city’s

population was 50% Black, and notwithstanding that only 0.67%

of the city’s prime construction contracts had been awarded to

MBEs in recent years, the Court held that the city had to show

that the numbers resulted from discrimination, not merely that

such numbers existed:

While there is no doubt that the sorry history of

both private and public discrimination in this country

has contributed to a lack of opportunities for black

entrepreneurs, this observation, standing alone, cannot

justify a rigid racial quota in the awarding of public

contracts ....

... There is no doubt that “[w]here gross statisti-

cal disparities can be shown, they alone in a proper case

may constitute prima facie proof of a pattern or practice

of discrimination” under Title VII. But it is equally

clear that “[w]hen special qualifications are required to

fill particular jobs, comparisons to the general popula-

tion (rather than to the smaller group of individuals who

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Appendix A

possess the necessary qualifications) may have little

probative value.”

488 U.S. at 499-501 (quotations omitted). Furthermore, the

Court saw no logic in some of the expansive features of the

Richmond plan:

There is absolutely no evidence of past discrimination

against [certain other minorities that had been included

in the plan’s 30% set-aside category, such as] Spanish-

speaking, Oriental, Indian, Eskimo, or Aleut persons in

any aspect of the Richmond construction industry.

... It may well be that Richmond never has had an

Aleut or Eskimo citizen. The random inclusion of racial

groups that, as a practical matter, may never have

suffered from discrimination in the construction indus-

try in Richmond suggests that perhaps the city’s pur-

pose was not in fact to remedy past discrimination.

Id. at 506.

Similarly, three years earlier, the Court struck down a school

board’s affirmative action plan that extended preferential protec-

tion from layoffs to certain minorities, holding that such racially

based plans may not be imposed to the disadvantage of non-

minority workers in government units when those agencies have

not been shown to discriminate.

Societal discrimination, without more, is too amorphous

a basis for imposing a racially classified remedy. ...

[A]s the basis for imposing discriminatory /ega/l reme-

dies that work against innocent people, societal discrim-

ination is insufficient and over expansive. In the absence

of particularized findings, a court could uphold remedies

that are ageless in their reach into the past, and timeless

in their ability to affect the future.

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Appendix A

Wygant v. Jackson Bd. of Educ. 476 U.S. 267, 276 (1986)

(plurality opinion).

By contrast, where specific findings do evidence unequivocal

and egregious manifestations of long-standing discrimination, the

Court has upheld affirmative action plans and even extremely

limited quota plans on a brief, finite basis. For example, under the

extraordinary circumstances presented in Paradise, the Court

upheld a one-time quota, requiring the promotion of eight minor-

ity state troopers to the rank of corporal, in order to remedy the

unyielding record of bigotry in the Alabama Department of

Public Safety (“the Alabama department”). The Court re-

counted the legal battles, court orders, and consent decrees that

had been pursued for four decades in a futile effort to pry open the

door for reasonable employment and promotion opportunities for

minorities. It related a 1972 finding by the district court that the

Alabama department had not merely discriminated against

Blacks who sought entry-level positions, but had also not accepted

a Black trooper at any rank during the prior thirty-seven years. Id.

at 168. By 1978, of 232 Alabama state troopers at the rank of

corporal or higher, there was still not one who was Black. Id. at

169. Despite court orders and two consent decrees, the Alabama

department had not implemented “acceptable procedures for

[the] advancement of black troopers into [their] structure.” Jd.

at 163. To make matters worse, “for the purpose of frustrating or

delaying full relief to [minorities, the Alabama department]

artificially restricted the size of the trooper force and the number

of new troopers hired.” Jd. at 156-57. In fact, to keep minority

troopers at a minimum, the Alabama department, when com-

pelled to hire minorities, selected individuals who were “other

than the best qualified blacks from the eligibility rosters,” id. at

157 (emphasis added), in order to stimulate higher rates of

subsequent minority attrition. During the same time period that

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Appendix A

the people of Flint were electing Mayor Sharp, the district court,

as quoted by the Supreme Court, summed up the very different

situation in Alabama:

On February 10, 1984, less than two months from

today, twelve years will have passed since this court

condemned the racially discriminatory policies and

practices of the Alabama Department of Public Safety.

Nevertheless, the effects of these policies and practices

remain pervasive and conspicuous at all ranks above the

entry-level position. Of the 6 majors, there is still not

one black. Of the 25 captains, there is still not one

black. Of the 35 lieutenants, there is still not one black.

Of the 65 sergeants, there is still not one black. Of the

66 corporals, only four are black. Thus, the department

still operates an upper rank structure ... that totally

exclude[s] black persons. Moreover, the department is

still without acceptable procedures for advancement of

black troopers into this structure, and it does not appear

that any procedures will be in place within the near

future. The preceding scenario is intolerable and must

not continue.

Id. at 162-63. Under those extraordinary circumstances of “per-

vasive, systematic, and obstinate discriminatory conduct,” id. at

190 n.1 (Stevens, J., concurring), the Court approved an ex-

tremely circumscribed 1:1 hiring quota, limited to requiring that

eight minority members be promoted in tandem with eight non-

minority members to the rank of state trooper corporal. Further-

more, even under those appalling circumstances, the divided

Court stated that the quota would not continue to be valid if the

Alabama department were to take other less drastic measures to

mitigate its ongoing discriminatory practices. Thus, as the district

court noted, “the Department had ‘the prerogative to end the

l6a

Appendix A

promotional quotas at any time, simply by developing acceptable

promotion procedures.’ Jd. at 164. When the Alabama depart-

ment, in 1984, finally presented to the court an acceptable

procedure for promotions to corporal, the court suspended the

quota. Jd. at 165. Thus, the quota was “temporary and extremely

limited” and “was used only once at the rank of corporal and may

not be utilized at all in the upper ranks.” Jd. at 182; see also id. at

188 (stressing that the quota had been used “only on one

occasion”) (Powell, J., concurring). While the Court observed

that the district court’s “firsthand experience with the parties” left

it “best qualified to deal with the ‘flinty, intractable realities of

day-to-day implementation of constitutional commands,’ ”’ id. at

184 (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 1, 6 (1971)), our review clearly indicates that the fact

pattern in Paradise does not prevail in this case.

In this appeal, the Flint city government cites the HRC

hearings and the early 1970s court battles, along with statistical

comparisons of the composition of the city’s police sergeants to

the general Flint labor force, to argue that the city’s 1:1 promotion

plan is as justified as the one upheld in Paradise. By contrast, the

plaintiffs point to a clear turning point in 1973 that was recog-

nized by the district courts in both Holliman and Alfaro. After

1973, the Flint police department’s hiring policies and practices

changed dramatically, albeit under the pressure of litigation.

Therefore, the Holliman and Alfaro courts refused to impose

quotas, or even to establish formal goals and timetables, that

would interfere with the improved hiring and promotion process

being developed within the police department.

Plaintiffs also point to the police department’s higher per-

centage of minority police sergeants than of minority entry-level

officers as evidence that the promotion policies were not marred

by discrimination. It is therefore the plaintiffs’ contention that

17a

Appendix A

their city, like the Richmond of Croson, has implemented an

“affirmative action plan” that can no longer be justified, if indeed

it ever could have been.

In considering race-based quota’ plans, or even less drastic

variations of “affirmative action,”® the courts employ a “strict

scrutiny” analysis. Wygant, 476 U.S. at 273-74; United Black

> There is a rich literature as to the vital, though subtle, distinction between

“goals” and “quotas.” See e.g., Richard L. Barnes, Quotas as Satin-Lined Traps,

29 New Eng. L. Rev. 865 (1995); Andrew M. Dansicker, A Sheep in Wolf's

Clothing: Affirmative Action, Disparate Impact, Quotas and the Civil Rights Act,

25 Colum. J.L. & Soc. Probs. 1, 34-38 (1991); Deval Patrick; Confronting the

Question of Conscience, 46 Hastings L.J. 1339, 1344, 1347 (1995); Ronald

Walters, Affirmative Action and the Politics of Concept Appropriation,

38 How. L.J. 587, 603 (1995). In this case, we use “quota” not as a pejorative,

but as a simple recognition of the reality of this particular case. It is the term

employed throughout by the district court (810 F. Supp. at 876, 881, 883), and

by the Supreme Court in Paradise, the firmest support for the defendants’

position (480 U.S. at 156 & n.5, 163). See also Croson, 488 U.S. at 471, 499,

507.

*The term “affirmative action” was first used by President John F.

Kennedy in the context of federal contractors’ responsibilities to promote equal

employment opportunities:

The contractor will not discriminate against any employee or applicant

for employment because of race, creed, color, or national origin. The

contractor will take affirmative action to ensure that applicants are

employed, and that employees are treated during employment, without

regard to their race, creed, color, or national origin. Such action shall

include, but not be limited to, the following: employment, upgrading,

demotion or transfer, recruitment or recruitment advertising; layoff or

termination; rates of pay or other forms of compensation; and selection

for training, including apprenticeship.

Exec. Order No. 10,925, pt. III, subpt. A, § 301(1), reprinted in 1961

U.S.C.C.A.N. 1274, 1276. We note the transformation of “affirmative action”

from a term specifically meaning that a person “will not discriminate ...

because of race” in President Kennedy’s Executive Order to the situation where,

18a

Appendix A

Firefighters Ass'n v. City of Akron, 976 F.2d 999, 1006 (6th Cir.

1992). “The Court has recognized that the level of scrutiny does

not chonge merely because the challenged classification operates

against « group that historically has not been subject to govern-

mental discrimination.” Wygant, 476 U.S. at 273. Under that

standard, Flint must prove that it had a compelling state interest

when it enacted its plan, and that the plan is narrowly tailored to

further that compelling state interest. Croson, 488 U.S. at 505-07;

Long v. City of Saginaw, 911 F.2d 1192, 1195 (6th Cir. 1990).

This position was strongly reemphasized by the Supreme Court in

Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2113

(1995). “[WJe hold today that all racial classifications, imposed

by whatever ... governmental actor, must be analyzed by a

reviewing court under strict scrutiny.”

In conducting a strict scrutiny review, we first consider

whether the Flint Plan is justified by a “compelling state inter-

est.” Thus, we inquire whether the city “had a strong basis in

evidence for its conclusion that remedial action was necessary.”

Wygant, 476 U.S. at 277 (emphasis added); Vogel v. City of

Cincinnati, 959 F.2d 594, 601 (6th Cir.), cert. denied, 506 U.S.

827 (1992); Long, 911 F.2d at 1196. “[T]he purpose of strict

scrutiny is to ‘smoke out’ illegitimate uses of race by assuring that

the legislative body is pursuing a goal important enough to

warrant use of a highly suspect tool.” Croson, 488 U.S. at 493

(emphasis added). In considering the city’s claim that its plan is

compelled by a history of past discrimination, the district court

was presented with three kinds of evidence; prior judicial findings,

anecdotal evidence, and competing statistical analyses that sought

to compare minority hiring and promotions with purportedly

if used to apply in this case, it means nothing but actions that are taken on

account of race.

19a

Appendix A

relevant demographic pools. We review, in turn, each of these

three evidentiary presentations.

1

As the record before us makes clear, the federal courts have

been invited by litigants for more than twenty years to order hiring

and promotion quotas in the Flint police department, and the

courts have refused to do so. Those courts were presented with

the pre-1973 history, just as the HRC was during its public

hearings. Similarly, those courts were offered statistical analyses.

They found that discrimination existed before 1973, but they also

found that the police department was taking steps to rectify past

wrongs. Since the time of Holliman and Alfaro, minority repre-

sentation on the police force continued to increase, in some

measure because of the litigation that brought the police depart-

ment’s practices under the watchful eyes of the courts. Minority

promotions to sergeant increased at an even sharper pace, again in

an atmosphere marked by the awareness that the courts were

watching, but without the imposition of quotas by the court.

Notwithstanding their findings of past discrimination in the years

before 1973, those pre-Croson courts consistently found a quota

on hiring or promotion to be an unnecessarily drastic remedy, in

light of the circumstances before them.

In the 1970s, as part of a state court consent decree, the Flint

Police Department instituted a temporary 1:4 quota system that

was directly aimed at its sergeant-promotion program. Flint Police

Patrolmens [sic] Ass'n v. City of Flint, No. 74-33234-CL (Gene-

see County Cir. Ct. Dec. 2, 1974) (unpublished). This system

was a temporary plan that expired by its own terms when fifteen

percent of the city’s sergeants were minority members or, in any

event, after five years. Today, that minority percentage has more

than doubled. Therefore, the prior judicial findings that repeatedly

20a

Appendix A

and explicitly rejected invitations to impose hiring and promotion

quotas weigh heavily against the present Flint Plan.

The district judge in this case observed that the prior court

decisions in the 1970s “did not consider ... the type of statistical

analysis for a disparate impact analysis that [Flint] put forward in

1984 or in the case at bar, in which discrimination at the entry

level is taken into account in determining the need for affirmative

action at the promotion level.” Middleton, 810 F. Supp. at 880.

Nevertheless, the district court concluded that the prior cases “do

not constitute sufficient evidence to indicate the need for a 1:1

quota in the hiring of police sergeants.” Jbid. The factual record

before us sustains the district court’s finding.

2

Next, the district court observed that “the anecdotal testi-

mony [before the HRC] serves to show a culture on the police

force that is discriminatory,” see id. at 881, and it regarded that.

material to be “considerable and worthy of weight.” Jd. at 880.

Nevertheless, the court once more concluded that such evidence

could not, on its own, provide the necessary legal support to justify

the quota. Jd. at 881.

“While anecdotal evidence may suffice to prove individual

claims of discrimination, rarely, if ever, can such evidence show a

systemic pattern of discrimination.” O'Donnell Constr. Co. v.

District of Columbia, 963 F.2d 420, 427 (D.C. Cir. 1992)

(emphasis added) (quoting Coral Constr. Co. v. King County,

941 F.2d 910, 919 (9th Cir. 1991)). “Anecdotal evidence is most

useful as a supplement to strong statistical evidence ....”

O'Donnell, 963 F.2d at 427 (emphasis added). The record before

us on appeal supports the district court’s finding that the anecdo-

tal evidence did not justify the city’s decision to implement a

2la

Appendix A_

compulsory ratio for promoting police officers of different groups

to sergeant.

3

In upholding the Flint Plan, the district court based its

justification on the statistical evidence developed by Dr. Bendick,

the city’s labor-force analyst. The district court noted that the

Paradise Court expressed concern over whether a department's

promotion procedures can be considered fair if entry-level hiring

at that department is marred by discriminatory practices:

[Defendants] argue that no remedial relief is justified in

the promotion context because the intentional discrimi-

nation in hiring was without effect in the upper ranks,

and because the Department’s promotional procedure

was not discriminatory. There is no merit in either

premise.

Discrimination at the entry level necessarily pre-

cluded blacks from competing for promotions, and re-

sulted in a departmental hierarchy dominated

exclusively by nonminorities.

480 U.S. at 168 (emphasis added). When Flint introduced its

plan in 1984, the percentage of police sergeants who were minor-

ity-group members was 10.8%. Bendick at 7. According to the

city’s expert, basing his numbers primarily on the percentage of

minority members in the general workforce of Flint,’ the

7 As noted above, supra at 6, Dr. Bendick made slight modifications to the

general labor force numbers. He stated that he adjusted his projections down-

ward to allow for lower average age and level of education of the minority

population, and for the city’s tendency to hire some of its officers from nearby

communities where minorities comprise a smaller proportion of the labor force.

He modified the projections upward to account for census-takers’ tendencies to

undercount minorities, and for “the propensity of minorities to apply for civil

22a

Appendix A

percentage of minority sergeants should have been 31.1% at that

time. In the decade since 1984, as the percentage of minorities in

the general labor pool increased, so did Bendick’s estimation of

the proper representation of minority sergeants on the police

force. Consequently, in a 1992 update, he ultimately determined

that, in light of a general Flint labor pool whose minority

composition had grown to 45% by 1984, the percentage of

minority sergeants in the Flint police force should have reached

41.5% by 1987. Dr. M. Bendick, Representation of Minorities 8

(Feb. 1992). Although the minority proportion of sergeants

reached 36% in 1992, the discrepancy at the time that the city

adopted its plan was more pronounced, with minorities compris-

ing 10.8% of the city’s sergeants rather than the 31.1% that

Dr. Bendick believed should have been in place in 1984. These

numbers, when combined with the anecdotal accounts of continu-

ing racism in the Flint police department, persuaded the district

court that there was a “sufficient basis in evidence” to find that

Flint had a compelling state interest to adopt its plan.

We hold that, as a matter of law, the district court erred by

adopting, without deeper analysis, Dr. Bendick’s raw statistics

concerning the city’s general labor pool as the relevant population

against which to gauge the City of Flint’s police promotion

policies and practices. Furthermore, we hold that a disparity

between the percentage of a protected class employed in a

particular workforce or occupation and the raw percentage of

class members in a regional labor pool, standing alone, cannot be

“a strong basis in evidence” sufficient to justify hiring or

service jobs at a higher rate than for jobs in the private sector.” This last factor is

quite arbitrary and is therefore especially troubling. Interestingly, he did not

discuss whether modifications should be made to account for different attrition

rates among groups. See infra at 26.

23a

Appendix A

promotion quotas.® That is, it is permissible to remedy discrimina-

tion. It is not permissible to remedy disparity, without more.

Cc

In Croson, the Court confronted statistics showing that

“minority businesses received 0.67% of prime contracts from the

city [of Richmond] while minorities constituted 50% of the city’s

population.” 488 U.S. at 499. The Court acknowledged:

There is no doubt that “[w]here gross statistical dispar-

ities can be shown, they alone in a proper case may

constitute prima facie proof of a pattern or practice of

discrimination” under Title VII. But it is equally clear

that “/w/hen special qualifications are required to fill

particular jobs, comparisons to the general population

(rather than to the smaller group of individuals who

® Dr. Bendick’s numbers also are quite misleading in other ways. For

example, he reported in his 1992 labor-market analysis that there was a

“minority shortfall” in the “Number of Jan. 1992 Officers [who had been]

Hired” in 1974. Eleven “Jan. 1992 Officers” had been hired in 1974; only two

were minority members. Similarly, eight “Jan. 1992 Officers” had been hired in

1975; only one was a minority-group member. Such numbers imply that fewer

than 16% of the Flint police officers who were hired during 1974-75 were

minority members. However, Police Chief Miles White, who testified before the

Flint Human Rights Commission in favor of the Flint Plan, reported that 105

police officers had been hired by the Flint police department in 1974-75, and

fully 56 of them were “minority hires.” These “minority hires” comprised 53.5%

of the police officers hired in 1974-75. Police Chief White apparently based his

statistics on the findings of the Alfaro court. See Alfaro, slip op. at 5.

Because we hold that Dr. Bendick’s statistical labor-force analysis was

incomplete and therefore irrelevant to the question before the district court, we

need not decide at this time whether the district court erred by choosing to use

the city’s general labor force as its relevant population sample, rather than

limiting its analysis, as plaintiffs urge, to the population of already-hired Flint

police officers, of whom Blacks comprised 17.3% in 1984.

24a

Appendix A

possess the necessary qualifications) may have little

probative value.”

Id. at 501 (emphasis added) (quoting Hazelwood Sch. Dist. v.

United States, 433 U.S. 299, 307-08 & n.13). Therefore, the

Croson Court concluded, “where special qualifications are neces-

sary, the relevant statistical pool for purposes of demonstrating

discriminatory exclusion must be the number of minorities quali-

fied to undertake the particular task.” Croson, 488 U.S. at 501-02

(emphasis added). Although presented with a gross numerical

disparity between the proportion of minorities living in Richmond

and the proportion of minority business that had received city

construction contracts, the Croson Court held that:

standing alone this evidence is not probative of any

discrimination in the local construction industry. There

are numerous explanations for this dearth of minority

participation, including past societal discrimination in

education and economic opportunities as well as both

black and white career and entrepreneurial choices.

Blacks may be disproportionately attracted to industries

other than construction.

Id. at 503 (citing 1986 Presidential report that “black-owned

businesses aye more than proportionately represented in the

transportation industry, but considerably less than proportionately

represented im the wholesale trade, manufacturing, and finance

industries”). The Court decried the “‘completely unrealistic’

assumption that minorities will choose a particular trade in

lockstep proportion to their representation in the local popula-

tion.” Id. at 507.

By way of comparison, we note abundant evidence that

persons whose origin is the Indian subcontinent are very heavily

represented in the lodging and motel business. Edwin McDowell,

25a

Appendix A

Hospitality Is Their Business, N.Y. Times, Mar. 21, 1996, at Di

(46% of America’s economy hotels and 26% of total lodgings

owned by Indian-Americans); Greg Johnson, Column One, L.A.

Times, Apr. 1, 1996, at A-1 (12,500 lodging properties owned by

Indian-Americans surnamed Patel). This by a population that

represents less than .5% of the United States population. 1996

World Almanac 386. Is this a sign of discrimination, whether in

favor of or against this particular group? Hardly. Yet, any such

“disproportion” necessarily must create a corresponding dispro-

portion for Indian-Americans in other lines of endeavor. Thus, as

implied by the Supreme Court’s holdings in Croson and Adarand,

a plan is constitutionally unsupportable when it is driven, at

bottom, by nothing but the bare assumption that representation of

various groups in specific employment categories should be de-

rived from general proportions, even with whatever “adjustments”

the experts, litigants, or courts may think appropriate.

In this case, there is only one population group that is eligible

for promotion to the rank of Flint police sergeant. That relevant

statistical pool is the population of previously hired Flint police

officers. Plaintiffs argue that 30% of those officers in 1992 were

minorities, while 36% of the sergeants were minorities at that

time, seemingly indicating that the police department’s promotion

policies and practices have been free of discrimination against

minorities. However, the city maintains that the entry-level police

population has itself been tainted because of past discrimination

against minorities seeking to join. Thus, if Dr. Bendick’s supposi-

tion is correct, there should have been more entry-level minority

officers, and consequently more promoted sergeants.

We have carefully reviewed Dr. Bendick’s report and deposi-

tion testimony, and, while some of his statistics may be described

as somewhat useful, we find his interpretive statistics, projections,

and analyses to be misleading because they are based on

26a

Appendix A

conclusory assumptions that have no basis in the law. See supra at

6-7. While he adjusts his numbers carefully to allow for age and

education differentials, for inefficiencies in census-taking, for

lower minority presence in the populations outside Flint that have

supplied some of the city’s officers, and for an assumed “propen-

sity of minorities to apply for civil service jobs at a higher rate

than for jobs in the private sector,” he assumes without any

substantiation whatsoever that minority men and women as a

group are exactly as inclined as are non-minority men and women

as a group — neither more so nor less so — to seek employment

in the police department, and that they are exactly as qualified

under non-discriminatory conditions. Thus, he assumes that their

45% presence in the 1984 general labor force should have resulted

in their 39.6% presence as police officers and 31.1% as sergeants.

Bendick at 7.

This court has observed in the past that statistical compari-

sons with the general workforce of a city are not reliable indica-

tors of discrimination because such a population sample is too

general to constitute a relevant statistical pool. See Vogel, 959

F.2d at 600; Long, 911 F.2d at 1202. Furthermore, in Long, when

we were presented a record for review that included statistics

showing a limited minority presence in a Michigan city’s police

force, we noted that “this court should be ever mindful that there

could have been and generally were numerous explanations for

disparities between the percentage of minority and nonminority

police officers on the Saginaw police force, many of them unre-

lated to discrimination of any kind.” Jd. at 1198-99. We also

noted that the City of Saginaw had experienced a significant

exodus of white residents during the prior decade. The population

shift resulted in minorities comprising a higher percentage of the

city’s general labor force after 1980 than they had constituted in

previous years, when many police officers had been hired. Jd. at

27a

Appendix A

12002 In addition, “the city ... failed to consider the high

noncoercive turnover (voluntary terminations, retirements, ill-

nesses, etc.) rate among minorities (27.5% of the total turnover

rate within the Police Department) as compared to the lesser rate

among nonminorities that would, within the context of th[e] case,

obviously result in significant statistical distortions ... ” Ibid.

Just as “[t]here is no iron law of human behavior that every

racial or ethnic group will perform equally well on nonbiased

examinations in all fields of human endeavor,” Billish v. City of

Chicago, 989 F.2d 890, 896 (7th Cir.) (en banc) (quoting United

States v. City of Chicago, 870 F.2d 1256, 1261 (7th Cir. 1989)),

cert. denied, 114 S. Ct. 290 (1993), “it is common for different

groups to rely on different mobility ladders.” Thomas Sowell,

Preferential Policies: An International Perspective 132 (1990)

(quoting Cynthia H. Enloe, Police, Military and Ethnicity: Foun-

dations of State Power 143 (1980)). If the Black population of

Flint has inclined to rely on police service as an important

mobility ladder, then it could well be that even 45% minority

representation would be inadequate to withstand subsequent

claims by individual Black applicants that they have faced dis-

criminatory barriers to employment or promotion within the

department. On the other hand, as seemed to be the case with the

construction-related entrepreneurship discussed in Croson, it may

be that the police department of Flint is not the mobility ladder of

choice for the city’s minorities. Indeed, during the course of his

° In a trend comparable to that which we noted in Long when discussing the

demographics of Saginaw, Flint has experienced significant population shifts in

the years since 1970. In that year, Blacks comprised 28.1% of the city’s 193,000

population. Ten years later, the city’s population had dropped to 160,000, and

the Black proportion had risen to 41.43%. Those trends continued into 1990,

when the population had fallen to 141,000, while the Black percentage had

reached 47.9%. The American Almanac: 1992-1993 35 (112th ed. 1992);

Statistical Abstract of the United States: 1986 16 (106th ed. 1985).

28a

Appendix A

deposition in this case, Thomas Bugbee, who had been City

Personnel Director under Mayor Sharp and others, revealed that,

for many years during the 1970s and 1980s, “we had a lot of white

males coming down [applying for police department positions]

who had baccalaureate degrees out of Ferris and Michigan State.

And we were not getting college degreed blacks, for example,

coming down. Generally, you know, they were recruited heavily

for other kinds of positions.” Deposition at 36.

Therefore, standing alone without a more serious inquiry

along the lines that we have discussed, Dr. Bendick’s assumption

that the Black population of a race-neutral city police department

will virtually mirror the Black population of the general workforce

at large is merely conclusory.

Furthermore, as this court has noted previously, evidence of

past discrimination that is remote in time will not support a claim

of compelling governmental interest when other evidence is ad-

duced to show that the governmental body has taken serious steps

in subsequent years to reverse the effects of past discrimination

and to implement appropriate new standards. Thus, in Brunet v.

City of Columbus, | F.3d 390 (6th Cir. 1993), we held that strong

evidence proffered in 1989 that a city fire department had

discriminated prior to 1975 “is too remote to support a compelling

governmental interest to justify the affirmative action plan,”

especially in light of evidence that the city had subsequently taken

steps to improve its recruitment efforts. Jd. at 409. Similarly, in

our case, as the HRC’s 1984 report grudgingly acknowledged, the

Flint police department had undertaken “‘initiatives . . . including

improvement in validation of exams; modifications of certification

- procedure; dissemination of information regarding employment

opportunities to protected classes; pre-employment inquiries in

compliance with state and federal laws; and in-service training

and retraining programs for all personnel.” HRC at 13.

29a

Appendix A

D

Even if the city had presented statistics evidencing a compel-

ling state interest in imposing its plan, the plan would need to pass

a second measure of strict scrutiny to ensure that it is narrowly

tailored to achieve that compelling state interest. In Paradise, the

Supreme Court identified several factors to consider “[i]n deter-

mining whether race-conscious remedies are appropriate [i.c.,

narrowly tailored].” 480 U.S. at 171. These include: (1) the

necessity for the relief; (2) the efficacy of alternative remedies;

(3) the flexibility and duration of the relief, including the

availability of waiver provisions; (4) the relationship of the

numerical goals to the relevant labor market; and (5) the impact

of the relief on the rights of third parties. Ibid.

This opinion is not intended to deny that racial discrimina-

tion and disadvantage exists at many levels of our society and in

many ways. Our colleague, Judge Keith, has eloquently stated:

I know this to be true, because as a black man in these

United States, J face racism daily. There is not a day

that passes when I am not reminded of the color of my

skin. ... Every aspect of American life — even the

judicial system —is tainted by racism.

Jim Fitzgerald, Wrong Questions, Right Answers, Detroit Free

Press, Dec. 28, 1990, at 8-F.

Judge Keith has been further quoted, in a speech by former

United States District Judge Robert M. Duncan, as stating,

“Every day of my life I am in some fashion personally troubled by

racial matters in America. ...” Judge Duncan went on to say, of

himself, that despite “42 years of Bar membership, [1] have yet

to feel one day of true equity in America.” Cincinnati Bar Ass’n

Rep. at 5 (Sept. 1994).

30a

Appendix A

However, even the enduring and reprehensible fact of racism

does not justify every type and degree of government action based

upon race. Rather, the Supreme Court has laid down, in Adarand,

Croson, and the other cases set forth above, particular standards

as to when and to what extent race may be used by government as

a factor to disadvantage some Americans at the expense of others.

In resolving the case before us, we are bound to apply those

standards.

E

In this case, the district court proceeded to analyze the Flint

Plan under each of the factors identified in Paradise. First, it

found that the plan provided necessary relief, especially in light of

the history of discrimination on the police force, as shown through

the statistical and anecdotal evidence. Second, the court found

that the alternative strategies that had been suggested by the

plaintiffs were inadequate and that, in the absence of a quota,

under-representation would continue until an entire generation of

police sergeants retired. Third, the court found the plan flexible

enough to satisfy strict scrutiny. In the court’s words:

There has been no suggestion that the minorities ap-

pointed to sergeant are not qualified. This plan is not of

indefinite duration. The Paradise Court also upheld a

plan with a long duration. Judge Gadola, in Detroit

Police Officers Ass'n v. Young, 765 F.Supp. 393, 396

(E.D. Mich. 1991) upheld a 1:1 Plan with a sixteen

year duration as reasonable. This Plan will probably

expire this year or next year, eight to nine years after

inception.

810 F. Supp. at 882 (citation and footnote omitted).

3la

Appendix A

Fourth, the court, adopting the city’s definition of the rele-

vant labor market, found that the plan’s 41.5% goal set a proper

target, and that Paradise “provides authority for the statistical

analysis that removes the effect of prior discrimination to deter-

mine the relevant qualified pool.”

Finally, the district court held that the plan was compatible

with the Supreme Court’s views on minimizing the adverse

impact on third parties:

The Supreme Court has said that unlike the dis-

charge of workers, the granting of promotions is a less

painful way to effect affirmative action. Thus, in the

Paradise case, the Supreme Court upheld a rigid hiring

quota on a police force; whereas, the Court struck down

race-based layoffs in Wygant, 476 US. at 282-83

(“Though hiring goals may burden some innocent indi-

viduals, they simply do not impose the same kind of

injury that layoffs impose. Denial of a future employ-

ment opportunity is not as intrusive as loss of an existing

job.”). Thus, the case at bar may be distinguished from

Long v. City of Saginaw, 911 F.2d 1192 (6th Cir. 1990),

in which the Sixth Circuit struck down Saginaw’s deci-

sion to lay off police officers to conform to affirmative

action goals.

810 F. Supp. at 883."°

10 The district court also stated that the city would have to discontinue the

plan once its goal of 41.5% minority sergeants is met:

The City’s expert has suggested that “operational needs” and “opera-

tional efficiency and effectiveness” would be enhanced by increasing

the percentage of minority representation at the sergeant’s level until

53.2 percent of the sergeants are minority. This number reflects the

Flint minority population.

32a

Appendix A

In reviewing the district court’s decision on this appeal, we

have already questioned whether the city proved that relief was

necessary at any time during the duration of the Flint Plan. Thus,

we hold that the first element of the Court’s five-step inquiry into

“narrow tailoring,” the “necessity element,” was not met. Neither

was the second element, which gauges the efficacy of less drastic,

alternate possibilities. For two decades, the district courts have

rejected invitations to impose hiring and promotion quotas on

Flint’s police department, and the evidence of discrimination in

the 1970s was more compelling than it is in the 1990s. Neverthe-

less, the courts, supported by all available statistics, found that the

city had taken significant alternative steps since 1973 to amelio-

rate past wrongs. Even in the egregious case of Paradise, where a

quota was upheld, the quota merely required the Alabama depart-

ment to promote eight Black troopers to corporal in tandem with

eight such white promotions. 480 U.S. at 172. Even then, the

quota was “ephemeral,” and it would “evaporate[]” as soon as

This goal is plainly insupportable under current law. Goals other

than remediation of prior discrimination of a particularized group

cannot serve as the basis for an affirmative action program by a state

entity. The City cannot now amend the Plan to choose the general

population as the basis for comparison.

Therefore, the City must cease the operation of the Plan as it

relates to the hiring or promotion of police sergeants as of the date that

minority representation of police sergeants reaches 41.5 percent.

The Plan shall cease to operate in connection with the hiring of

sergeants on the date that the percentage of police sergeants that are

minority reaches 41.5 percent. On that date, a new promotion or hiring

policy shall be placed into effect in which sergeants shall be hired on a

color-blind basis. After that date, the City may not institute any race-

based hiring of sergeants absent the establishment of a new affirmative

action plan in accordance with constitutional requirements.

810 F. Supp. at 883-84 (citation omitted).

33a

Appendix A

the Alabama department implemented reasonable alternative

promotion procedures without an adverse impact. Jd. at 178. As

the Paradise Court observed:

Thus, the [district] court imposed a 50% promotional

quota in the upper ranks, but only if there were qualified

black candidates, if the rank were less than 25% black,

and if the Department had not developed and imple-

mented a promotion plan without adverse impact for the

relevant rank. ...The court highlighted the temporary

nature and flexible design of the relief ordered. ...

Id. at 163-64.

By contrast, the Flint Plan has lasted for nearly nine years,

perhaps more,'! continuing even after the percentage of minority

sergeants in the force was higher than the percentage of minority

entry-level officers. The nine-year plan was imposed even though

the city was already being successfully prodded, in less drastic,

alternate ways, in the years after 1973: prodded partly by the

courts, partly by the city’s desire to win federal grants, partly by

the electorate, partly by the positive role played by pioneering

minority officers who worked for change from within, partly by a

sincere desire to hire the best officers, and partly by the con-

sciences of those faced with calls to ameliorate the injustices of

the past. Complete reform may not have come overnight, but the

message of both Croson and Paradise is that the complete

'! Shortly after oral argument, the city submitted to this court an affidavit

that attested to the plan’s termination, claiming that its goal had been reached,

and asking us to take judicial notice of the fact that the plan was no longer being

implemented. However, plaintiffs responded with documentation that suggested

that the plan was still being applied in full force, using the guise of a single,

racially neutral, unified list of candidates. Upon our remand of this case to the

district court, this factual dispute may require resolution.

34a

Appendix A

implementation of such reform is not a prerequisite to avoiding a

quota remedy.

Third, in terms of its flexibility and duration, the Flint Plan

was not sufficiently flexible to meet the requirements of strict

scrutiny. In judging “flexibility,” courts often consider whether

such a plan provides a waiver in a case when sufficient numbers of

qualified minorities are not available for hire or promotion. See,

e.g., Local 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478

U.S. 501, 512 (1986); Vogel, 959 F.2d at 599. On the surface, the

Flint Plan seems to “pay lip service” to this concern, stating that

“[{t]hese goals are flexible targets; they are not quotas or rigid

standards. Furthermore, these goals shall not result in unqualified

persons being appointed to positions.” However, these words are

merely conclusory assertions. The operational terms of the plan

are different. In Flint, for a police officer to qualify for promotion

to sergeant, an applicant must take an examination and emerge,

in conjunction with other factors, with a minimum score of 70.

That grade is stated as the dividing line that distinguishes the

“qualified” candidate from the “unqualified” candidate. However,

Flint has, in fact, created a free-floating passing standard, at one

time awarding as many as ten bonus points to all test-takers,

thereby altering otherwise failing grades as low as 60 into “quali-

fying” scores. On one list before us in the record, it appears that

four of ten “passing” scores of “qualified” minority candidates for

sergeant were boosted into the 70s by the 10-point bonus. This

inference was confirmed by counsel at oral argument. We also

note that an upward alteration of only an additional five points

would have turned another six “unqualified” candidates into

“qualified” ones. This “flexibility” with grading destroys the city’s

claim that its plan flexibly waives the 1:1 requirement so that it

“shall not result in unqualified persons being appointed to

positions.”

35a

Appendix A

Moreover, as the record before us shows, the Flint Plan was

imposed for a duration of nearly nine years and remained in force

at least until the strict percentage of 41.5% was reached. Al-

though the district court stated, 810 F. Supp. at 882, that the

Paradise Court upheld a plan with “a long duration,” we can find

nothing in the Paradise opinion that justifies the district court’s

undocumented statement. Indeed, the Paradise Court specifically

noted that the plan was “temporary,” 480 U.S. at 163; it was

“ephemeral,” and it “evaporated” at the ranks of corporal and

sergeant upon “implementation of promotion procedures without

an adverse impact.” Jd. at 178. Thus, it had been implemented

“only on one occasion, when [the district court] ordered the

promotion of eight blacks and eight whites to the rank of corporal

in February 1984,” as a “one-time occurrence.” Id. at 188

(Powell, J., concurring).

Similarly, in Local 93, the Court affirmed this court's opinion

upholding a consent decree that created promotional goals. As the

parties emphasized in their application to the district court, and as

the district judge reemphasized when he granted the request, the

parties shortened the life of the proposed decree from nine years

to four years. Thus, the court found that “the amended proposal is

more reasonable and less burdensome than the nine-year plan

that had been proposed originally.” 478 U.S. at 512. By contrast,

Flint’s plan was not flexible; it lasted about a decade, perhaps

more, and it has compromised the integrity of its qualification

process by boosting previously failing grades of 60-69 into the

passing range.

Fourth, as we have noted above, the record does not reflect

any relationship between the numerical goal of 41.5% and the

relevant labor market. Rather, the city’s statistical expert pro-

vided a conclusory and somewhat misleading numerical analysis

that does not justify the constitutional violation here.

36a

Appendix A

Another way of looking at the third and fourth factors

together considers whether “the degree of remedial preference is

tied to the effects of past disadvantages or discrimination.”

Peightal v. Metropolitan Dade County, 26 F.3d 1545, 1558 (11th

Cir. 1994) (citation omitted). It seems obvious that a plan’s

tailoring is less “narrow” if it results in a very large degree of

preference for minority group members (and corresponding dis-

advantage for non-minority group members) than if the degree of

preference is smaller. This is certainly the situation if the degree

of preference chosen is not in some way related to evidence

bearing on the degree of discrimination to be remedied. See

Shurberg Broadcasting of Hartford, Inc. v. FCC, 876 F.2d 902,

912-16 (Silberman, J., concurring).

In a situation, such as Paradise, where the exclusion had

been total, it was far more plausible to enforce a draconian

remedy, as the information necessary to any type of narrow

tailoring was absent. In our case, we have ample information. We

know that Black police officers had been hired at least as far back

as the 1950s (5 on the force in 1957, 5 hired between 1952 and

1961); that at the 1973 and 1975 sergeant exams, those Blacks

that applied passed the exam and were hired at roughly the same

rate as whites; that over 10% of sergeants were Black by 1984; and

that throughout the period between 1985 and 1991, Black repre-

sentation at the sergeant leve! was roughly equal to or greater than

such representation at the lowest officer level. Under these cir-

cumstances, it is impossible to find that a plan justifying a

virtually unlimited degree of preference is narrowly tailored.

In order for the city to procure the necessary numbers of

Black sergeants to meet the quota, the record shows that the

degree of preference had to be very great. Based on ihe 1987

exam, twenty-one white officers were passed over to reach the first

of the “preferred” Black officers, and an additional twenty-nine

37a

Appendix A

had to be passed over before the process was complete. The

differences in scores were considerable. Among white officers, the

spread passed over was roughly from the 90th percentile to the

50th percentile of the test takers. In contrast, some Black appli-

cants below the 50th percentile were taken. If race were not a

factor at all, few observers would say that taking candidates from

the bottom half of any ranking was equivalent to taking candi-

dates from the top tenth, whether the job in question was

electrician, baseball player, or symphony musician.

Further, we note that quotas and preferences are easily

transformed from one into the other. Certainly, where the ranking

criteria are already known, the correspondence is exact. In our

case, if it were deemed objectionable to admit that there was a 1:1

quota, exactly the same result could have been reached by adding

20 points to the score of each minority applicant at the 1987

exam. A pre-existing commitment to a fixed amount of prefer-

ence (as with a veterans’ preference) has the result, in any given

case, of determining exactly the proportion of the favored group

that will be selected.

Even when the degree of preference is established in ad-

vance, knowledge of the general characteristics of the selection

criteria and the applicant pool may well allow a close approxima-

tion, for each round of selection, of the desired quota outcomes.

Thus, a 15-point preference might be known with confidence to

produce approximately a 25% quota, a 20-point preference a 50%

quota, and so on. Even though these figures will be more approxi-

mate and contingent than when the degree of preference is

assigned after the fact, the general result and correlation will be

the same. Justice Brennan noted this point in his opinion in

Bakke v. Regents of the University of California, 438 U.S. 265,

378 (1978) (Brennan, J., concurring in part and dissenting in

part).

38a

Appendix A

Turning now to the fifth factor, the Flint Plan has drasticaliy

affected the rights of certain third parties. By denying certain

otherwise eligible white candidates their earned opportunity to be

promoted, an opportunity that has been denied for possibly as

long as nine years, the plan denied to the plaintiffs salary in-

creases, increased pensions, and related benefits, as well as the

opportunity to accrue seniority to gain subsequent promotions to

such higher ranks as lieutenant. While the Supreme Court has

held that the denial of promotion opportunities is not as grievous

an infringement of personal! rights as are other sanctions like

demotions, layoffs, or outright discharges, see, e.g, Wygant, 476

U.S. at 282-83, the denial of these opportunities for nearly a

decade does constitute a very significant, and legally cognizable,

adverse impact on the rights of third parties.

In sum, based on the five factors by which the courts have

evaluated “affirmative action plans” for “narrow tailoring,” we

hold that the Flint Plan was not “narrowly tailored,” as required

to make its racial discrimination constitutional.

Iv

Because the record of prior judicial findings, anecdotal testi-

mony, and general iabor-force statistics does not provide “a strong

basis in evidence” that the Flint Plan serves a “compelling state

interest” and because, in any event, it was not “narrowly tailored” to

achieve the claimed interest, we REVERSE the district court’s grant

of summary judgment to the City of Flint, and hold that the Flint

Plan’s 1:1 quota for promotions is unconstitutional We REMAND

the matter for further proceedings consistent with this opinion,

including determining whether any of the plaintiffs were actually

injured by the application of the plan, and a determination of whether

the city is continuing to practice a de facto quota-driven scheme

under the guise of hiring and promoting from one unified list.

39a

Appendix B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION — FLINT

CHARLES MIDDLETON, W. OSMUND

KELLY, II], BRIAN SEPANAK,

BRUCE SEPANAK, STEPHEN HILL,

GREGORY DOERR, BARRY SAUNDERS,

ROBERT LOREY, MAYNARD NEWMAN,

JAMES MCCLELLAN, MARK CAMPBELL,

AND THOMAS HILGENDORF,

Plaintiffs, Civil Action

No. 90-CV-40148-FL

¥,

THE CITy OF FLINT, A MUNICIPAL

CORPORATION, AND THE FLINT

POLICE OFFICERS ASSOCIATION,

Defendants.

MEMORANDUM OPINION AND ORDER

Facts and Procedural History

This is a fourteenth amendment challenge to the City of

Flint’s affirmative action plan (“Plan”) for promoting police

officers to sergeant. The Plan established hiring requirements that

may fairly be characterized as a 1:1 hiring quota. When the Flint

Police Department requires additional police sergeants, it hires

alternately a minority applicant and a caucasian applicant from

the list of eligible applicants. Eligibility is determined by a test

score, weighted for seniority of the applicant. See Defendants’

Brief, Exhibit 4, in Support of Motion for Summary Judgment

(1992). As a result of the quota, the eleven plaintiffs, who are

white, male police officers, were passed over for promotion to

40a

Appendix B

sergeant at least once and five plaintiffs were passed over twice.

See Plaintiffs’ Brief in Opposition to First Motion For Summary

Disposition 2-3 (1991), and supporting affidavits.

The City established the Plan following hearings before the

Flint Human Relations Commission (“HRC”) in 1984.' The

Commission took testimony from several witnesses regarding

discrimination on the police force and considered prior judicial

findings of discrimination on the police force and a statistical

analysis of the police hiring and promotion record.

In August, 1984, the Commission issued its report making

findings of past discrimination on the police force and recom-

mended the implementation of the affirmative action plan.

The findings were supported by uncontroverted statistical

evidence of under-representation of minorities in the Department.

The Commission was provided with a labor force analysis of the

Police Department prepared by a labor market economist. This

report concluded that the Pclice Department had discriminated

against minority applicants’ both at the entry level and for

promotion to sergeant. The former conclusion was based upon a

comparison of the percentage of the minority qualified labor pool

with the percentage of minority police officers. The latter conclu-

sion was based upon a comparison of the percentage of minorities

at the police sergeant level with the percentage of minorities that

there would have veen on the police force absent any discrimina-

tion in the hiring or promotion of entry level police officers.

‘The Commission’s hearings followed a series of special meetings by the

Flint City Council concerning representation of minorities at the level of

sergeant.

? According to the 1980 census, 93 percent of all Flint minority residents

were African-Americans. Defendant’s Brief, Exhibit 6 at 4.

‘ . ne Sa

4la

Appendix B

In addition to this statistical evidence, the Commission took

anecdotal testimony about discrimination on the police force from

a variety of sources, including police officials and political figures,

such as the Flint City Council President, Melvin McCree.

Mr. McCree testified that the City Council had investigated the

Police Department in 1981 and 1983 resulting in a finding that

there was “a dramatic under-representation of minority persons in

all ranks of the police department...” Defendant’s Brief in

Support of Motion for Summary Judgment (1992), Exhibit 5.

Police Chief Miles White testified and presented documen-

tation that the police department had engaged in unlawful dis-

crimination against minority persons in its hiring, promotion and

assignment policies and practices. Flint Police Sergeant Evans

and Flint Police Officer Dorris Roberts, President of the Afro-

American Police League of Flint, testified about historical and

current employment discrimination against minority persons in

the police department in hiring, promotions, training and assign-

ments. See Defendants’ Brief, Exhibit 5, at A132. (findings of fact

by the HRC).

Several relevant HRC findings are reprinted:

25. Fourteen persons were promoted off the current

eligible list for police sergeants. All fourteen were white

including one white female.

26. The current eligible list for police sergeant expires

March 23, 1985. Without affirmative action initiatives the

next twenty-one persons to be promoted to police sergeant

from the current eligible list will be white.

** &

30. Having examined the submission of the chief of

police, along with all of the other evidence presented, the

42a

Appendix B

Commission finds that the statistical and anecdotal evidence

of discrimination against minorities which was presented

established a broad pattern of prior discrimination.

31. The Commission concludes that the currently ap-

propriate labor market for police officer in the Flint police

department is approximately 45% minority.

sss

34. The Commission finds that reform of the police

department’s selection procedures is inadequate to remedy

the present effects of prior discrimination and to provide for

the operational needs of the department.

38. The Commission finds that implementation of a

1-to-1 promotional ratio until parity is achieved will not

unnecessarily trammel the interests of non-minority officers.

39. The Commission finds that the objective of remedy-

ing the effects of past and present discrimination against

minority persons in a timely fashion requires adoption of

implementation ratios which serve to accelerate the effectua-

tion of that remedy.

Id., at A134-35.

The Commission also considered that the hiring and promo-

tional practices of the City have been subject to judicial scrutiny

since the early 1970's. The City of Flint’s minority population

increased from approximately seventeen percent in 1960 to

twenty-eight percent in 1970 and thirty-four percent in 1974.

Alfaro v. Suber, Civil Action No. 613, May 18, 1977 (E.D.

43a

Appendix B

Mich.) (unpublished op.). The HRC also cited several other

court opinions as prior judicial findings of discrimination.’

On July 19, 1985, the Mayor presented to the Michigan Civil

Rights Commission an affirmative action plan based upon the

HRC’s hearings that covered the entire city’s workforce. The

Commission approved the plan on January 27, 1986. In the

meantime, the collective bargaining agreement between the City

and the Flint Police Officers Patrolmen’s Association was

amended to accommodate the City’s new plan. See Defendant's

Brief, Exhibits 2-4.

The City’s expert, Dr. Bendick, has provided a new study

that buttresses the City’s findings from 1984. The study takes the

number of actual African-Americans on the police force as of

January 1992 and adjusts it upward to reflect what the number

would have been absent discrimination. He arrives at the adjusted

percentage of 41.5 percent. That is absent past discrimination, the

Flint Police Department would currently be composed of 41.5

percent minority police officers.’ Therefore, Defendants contend

the percentage of minorities among Flint Police Department

police sergeants should also be 41.5 percent.* As of January 1,

> Many of these cases concerned discrimination that is not at issue in this

lawsuit, ¢.g., on the Flint Fire Department.

‘This figure is substantially less than Flint’s minority population, which is

53.2 percent. It takes into account minimum educational requirements required

for the police officer position, a high school diploma, and also discounts the

numbers to reflect the applicant pool for police officers that comes from the

largely white communities that are in the greater Flint area. See Defendant's

Brief, Exhibit 7 at 17, 22-23.

‘The City’s expert has also suggested that the minority representation on

the police force should ideally exceed the 41.5 percent figure. Defendant's

Exhibit 7 at 21. However, his basis for this position is not that it would undo

prior discrimination but rather that it would provide other benefits, such as

advancing the operational needs of the Department.

44a

Appendix B

1992, the Police Department was 4.4 minority sergeants, or 5.6

percent short of meeting the Plan’s goal.

Plaintiffs contend that there is no proof of any past discrimi-

nation in the hiring of police sergeants, but only of entry level

police officers. Plaintiffs’ expert has determined that the correct

comparison group is simply the number of minority police officers

currently on the force, which is approximately 30 percent. As of

January 1, 1992 the percentage of sergeants that were minority

was 36 percent. In fact, plaintiffs claim that black sergeants are

over-represented on the police force relative to the number of

black policemen. Plaintiff's Brief at 14, Exhibit 6; testimony of

Dr. Frank at 32-47, 55, 63-64.

According to plaintiffs, the City has simply misread the prior

judicial decisions. These cases do not find discrimination at the

promotional level, but only at the entry level. Moreover, the

findings of entry level discrimination were quickly eradicated:

It is clear from a review of the cases above that while

there were judicial decisions finding that there was

discrimination in the hiring at entry level positions, that

those decisions also found that this discrimination was

being eradicated as early as 1973 and that the imple-

- mentation of a quota at the hiring level was inappropri-

ate. Moreover these decisions make it clear that there

was absolutely no judicial determination that the City of

Flint had engaged in racial discrimination in promotion

to the position of sergeant before the City of Flint

decided to implement it’s [sic] Affirmative Action

Program for the position of sergeant in 1984.

Plaintiff's Brief at 6.

Plaintiffs present evidence from depositions that the Mayor

of Flint ran on a campaign to institute affirmative action, and

a. |

Ba a A a i Se

45a

Appendix B

therefore, speculate that he was prepared to institute the affirma-

tive action policy regardless of the commission hearings. Thus,

Plaintiffs contend, the City’s motivation in implementing the Plan

was an illegal one. See e.g., Plaintiffs’ Brief at 7, citing deposition

of James Sharp, Mayor of Flint.

Plaintiffs also contend that because the hearings were not

adversarial in nature, i.e., there was no cross-examination, they

“were not hearings at all.” Plaintiff's Brief at 9.

Plaintiffs also suggest that the City had less restrictive means

than a quota available to it when it implemented the affirmative

action plan. Plaintiffs’ expert suggests that the test could have

been validated as nondiscriminatory through an “assessment

center.”

LEGAL ANALYSIS

I. Standard of Review

To obtain summary judgment, Defendant must show there

exists no genuine issue of material fact, and that it is entitled to

judgment as a matter of law. Bender v. Southland, 759 F.2d 1205,

1210 (6th Cir. 1984). The evidence and all reasonable inference

which may be drawn from the evidence is required to be viewed in

a light most favorable to the party opposing summary judgment.

Id., at 1210-11.

Under City of Richmond v. J. A. Croson Co., 488 U.S. 469

(1989) and Wygant v. Jackson Bd. of Educ., 476 U.S. 267

(1986), this Court must subject the Flint police sergeant affirma-

tive action program to a strict scrutiny review. Long v. City of

Saginaw, 911 F.2d 1192 (6th Cir. 1989).

Under this exacting standard, the City must have had a

compelling state interest when it enacted that Plan, and the Plan

46a

Appendix B

must be narrowly tailored to further the compeiiing state interest.

Under the stipulated facts, these are questions of law for the

Court. Bratton v. City of Detroit, 704 F.2d 878, 898-899 (6th Cir.

1983), modified on other grounds, 712 F.2d 222 (6th Cir. 1983),

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

II. Did the City have a Compelling State Interest When It

Adopted the Plan?

The major issue in the “compelling state interest” prong of

strict scrutiny review is whether the City “had a strong basis in

evidence for its conclusion that remedial action was necessary.”

Wygant, 476 U.S. at 277; Vogel v. City of Cincinnati, 959 F.2d

594, 601 (6th Cir. 1992).

This Court bears in mind that under the dictates of Croson it

must “smoke out illegitimate uses of race by assuring that the

legislative body is pursuing a goal important enough to warrant

use of a highly suspect tool.” 488 U.S. at 493.

A. Procedures of the HRC

At the outset, the Court must dismiss Plaintiff's argument

that the HRC’s lack of adversarial proceedings or failure to adopt

court rules invalidates its findings. This Commission performed a

legislative and not a judicial function. The Court takes judicial

notice of the absence of cross-examination in Congressional

hearings. Nor is the Court familiar with any legislative body that

adopts court rules. Legislative hearings are inherently more politi-

cal than court proceedings, but that does not invalidate their

findings.

Rather, the question is whether the HRC considered the

proper type of evidence that could reasonably justify its findings of

discrimination. A prior judicial finding of discrimination constitutes

the strongest evidence that the Court could consider. However,

47a

Appendix B

such a finding is not necessary. Other types of evidence that a

legislative body may use are statistical evidence and anecdotal

evidence: “Evidence of wide statistical disparity, however, may

justify an affirmative action policy adopted by a public employer.”

Vogel v. Cincinnati, 959 F.2d 594, 599 (6th Cir. 1992) quoting

Wygant, 476 U.S. at 274-75 (citing Hazelwood School District v.

United States, 433 U.S. 299, 307-08 (1977)). See also, Croson,

“(‘w]here gross statistical disparities can be shown, they alone in

a proper case may constitute prima facie proof of a pattern of

discrimination.’ ” 488 U.S. at 501. (quoting Hazelwood School

Dist., 433 U.S. at 307-08).

B. The HRC’s Reliance on Prior Judicial Findings

In 1973, this Court issued a preliminary injunction sus-

pending the use of a written examination and of college credits as

a requirement to become a patrol officer. Holliman v. Price, 9 Fair

Empl. Prac. Cas. (BNA) 1363, 1372 (1973). That order held

that the City had failed to comply with the requirements of a

federal law® requiring the elimination of barriers to hiring minori-

ties when it accepted federal funds to hire patrolmen. /d.

Holliman did not address the issue of promotion.

In the 1970s, the Flint Police Department instituted a 1:4

quota system as part of a consent decree in Flint Police Patrol-

men’s Association v. City of Flint, no. 74-33234-CL, December 2,

1974. (E.D. Mich. unpublished op.) This system was only to stay

in effect until fifteen percent of sergeants were minority.

® Section 6(a) of the Emergency Employment Act of 1971, 42 U.S.C.

§§ 4871 et seq. and regulations codified at 29 C.F.R. § 55.3, 55.6. This law was

superseded by the Comprehensive Employment and Training Act of 1973,

Pub. L. 93-203, 87 Stat. 839, codified at 29 U.S.C. § 841 et sea..

48a

Appendix B

Minority police officers challenged the sufficiency of that

system in Alfaro v. Suber, Civil Action no. 613, May 18, 1977

(E.D. Mich. 1977) (Harvey, J.) (unpublished op.). Judge

Harvey, while finding discrimination at the entry level in the

police force, found that the 1970, 1973 and 1975 sergeants’

examination did not result in a sufficient disparity between black

and white applicants to hold that the examination was discrimina-

tory. Judge Harvey did not consider, however, the type of statisti-

cal analysis for a disparate impact analysis that Defendants put

forward in 1984 or in the case at bar, in which discrimination at

the entry level is taken into account in determining the need for

affirmative action at the promotion level.

The consent order was again challenged, this time by white

police officers, in Waldron v. Flint Police Patrolmen’s Associa-

tion, no. 75-40084, appended as Exhibit 10 to Defendants’ Brief.

In an order dated September 28, 1981, Magistrate Harvey D.

Walker’s Opinion and Recommendation of March 4, 1980 was

adopted as the Court opinion. That opinion found for Defendants

and against the white police officers. It noted:

In the case at hand no Plaintiff has been terminated.

The Plaintiffs have at the most suffered some delay in

expected promotion.

Memorandum Opinion and Recommendation at 7.

The opinion then held the following regarding the 42 U.S.C.

§ 1983 claim:

Therefore, inasmuch as this Court has heretofore made

a finding that the Plaintiffs have not proven a depriva-

tion of any of their Constitutional rights by the terms of

the Consent Judgment, there is no remedy which the

Plaintiffs may avail themselves of under this Section of

the U.S. Code.”

49a

Appendix B

Id., at 10.

The Waldron opinion therefore explicitly upheid a quota in

the hiring of police sergeants under the Fourteenth Amendment.

These opinions comprise the judicial backdrop of race dis-

crimination at the Flint Police Department that the HRC consid-

ered in determining that that there was a history of discrimination

on the police force.’ While the cases demonstrate the existence of

racial discrimination in the Police Department, they do not

constitute sufficient evidence to indicate the need for a 1:1 quota

in the hiring of police sergeants.

The clearest case providing evidence of discrimination at the

promotional level is Waldron, to which no specific reference was

made. While the HRC’s findings of prior judicial determinations

of discrimination in promotions can reasonably be attributed to a

familiarity with Waldron, even that case does no more than to

uphold the prior quota of 1:4 up to fifteen percent. The HRC

must, therefore, have relied upon other findings to “constitute a

sufficient basis in evidence” of the need to establish the Plan.

C. Anecdotal Evidence

The anecdotal evidence of discrimination is considerable and

worthy of weight. The HRC took testimony from several insiders

on the police force as well as from members of the community.

Indeed, the chief of police testified to continuing discrimination

on the police force. Testimony from such a well-placed source

that supports the creation of an affirmative action plan with an

admission of continuing discrimination is not routinely found in

the record in affirmative action cases.*

’ Waldron, supra is not specifically cited in the HRC’s findings.

® Undoubtedly, one reason is that such comments could be admissible in a

civil rights lawsuit against the City by a minority plaintiff.

50a

Appendix B

While the anecdotal testimony serves to show a culture on

the police force that is discriminatory, it does not, by itself,

provide the necessary support for the establishment of a quota in

the hiring of police sergeants. Indeed, the testimony of the police

chief provided de facto evidence that the new leadership of the

police department had a sensitive attitude towards minority hiring

and promotion.

Thus, for the HRC to have found a “sufficient basis in

evidence” to recommend the establishment of a promotion quota,

statistical evidence must support that decision.

D. The Choice of Statistics: Which Comparison Group

Matters?

In Croson, the Court held that it would only find a compel-

ling state interest for a city’s affirmative action program if the city

had previously discriminated against the group of people benefit-

ted by the Plan. A result of Croson is a continuation of the battle

to define the relevant groups for purposes of comparison. This is

an issue that continues to bedevil Title VII litigation as well. See

e.g., David D. Meyer, Note, Finding a “Manifest Imbalance”:

The Case for a Unified Statistical Test for Voluntary Affirmative

Action Under Title VII, 87 Mich. L. Rev. 1986 (1989).

There is, for instance, the general population of minority and

non-minority individuals within a given area. After Croson, that is

never the relevant group for comparison. Vogel, 959 F.2d at 600.

The parties dispute exactly who is the group with which the

percentage of minority police sergeants should be compared. The

City claims that the basis for comparison is the number of

minorities that would serve on the police force absent discrimina-

tion at the entry level or promotional level in the Police

Department.

Sla

Appendix B

The City’s labor market economist has demonstrated that

absent past discrimination at both the entry level and at promotion

to sergeant, the percentage of minority sergeants would be 41.5

percent.” Plaintiff's expert suggests that the City’s expert chose an

incorrect figure by considering the effect of the discrimination at the

entry level as influencing the discrimination at the promotion level.

However, the Supreme Court has specifically determined that the

City’s approach is proper.

In United States v. Paradise, 480 U.S. 149, 107 S.Ct. 1053,

94 L.Ed. 2d 203 (1987), the Court upheld a 1:1 quota for

promotions to corporal in an Alabama public safety department.

The Court clearly rejected the defendants’ argument that the

quota could not be applied to promotions:

[Defendants] argue that no remedial relief is justified in

the promotion context because the intentional discrimi-

nation in hiring was without effect in the upper ranks,

and because the Department’s promotional procedure

was not discriminatory. There is no merit in either

premise.

Discrimination at the entry level necessarily precluded

blacks from competing for promotions, and resulted in a

departmental hierarchy dominated exclusively by non-

minorities.

480 US. at 168.

When the City commenced the Plan in 1984, the percentage

of sergeants that were minority was 10.8 percent; whereas the

* Plaintiffs charge that the City’s expert and the City relied upon general

population statistics in establishing the plan. A review of the HRC report and

the City expert’s report from 1984 shows this plainly not to be the case. While

the general population figures are mentioned, the key discussion looks to the

relevant labor market, exactly what the Supreme Court has instructed is

appropriate.

52a

Appendix B

percentage of sergeants who would have been minority absent

past discrimination in 1984 was 31.1 percent. Defendant’s Brief in

Support of (first) Motion for Summary Judgment, (filed Octo-

ber 11, 1991), Exhibit B, at A119 (Table Three). Since 1984,

however, as the percentage of minorities in the applicable labor

pool has increased, so has the degree of expected representation of

minority sergeants on the police force. That is why, by 1992,

Defendant's expert has stated that one would expect the percent-

age of minority sergeants to be 45.1%.

The discrepancy between the expected number of minority

sergeants and the actual number of minority sergeants was, at the

time of the adoption of the Plan, considerable: 10.1% v. 31.1%.

When combined with the powerful anecdotal accounts of continu-

ing racism in the Department, the statistical evidence provides the

“sufficient basis in evidence” for this Court to find a compelling

state interest to adopt the plan

Plaintiffs’ allegations of a predisposed city administration do

not undermine the fact finding that the City performed to justify

its adoption of the Plan.

Ill. Is the plan narrowly tailored?

The Supreme Court has identified several factors in deter-

mining whether an affirmative action plan is narrowly tailored:

* the necessity of relief;

* efficacy of alternative remedies;

* flexibility and duration of the plan including the availabil-

ity of a waiver

* relationship of the numerical goals to the relevant labor

market;

* impact of the relief on the rights of third parties.

53a

Appendix B

United States v. Paradise, 480 U.S. 149, 171, 107 S.Ct. 1053,

1066, 94 L.Ed.2d 203 (1987).

A. Necessity of Relief

The history of discrimination on the police force, as shown

through the statistical and anecdotal evidence, when combined

with prior judicial intervention that had been unable to end the

lack of representation of minorities on the police force made it

plain in 1984 that relief was necessary.

B. Efficacy of Alternative Remedies.

Plaintiffs argue that alternative selection criteria could have

been employed in choosing sergeants. However, they ignore the

fact that several other remedies, including a 1:4 quota system, see

Waldron, supra, had been previously attempted. In spite of efforts

dating back to the early 1970s to increase the number of black

police sergeants, the numbers were still quite low. It therefore

seems highly unlikely that a mere adoption of an assessment

center’s evaluation of the selection criteria would result in racial

representation at the sergeant’s level.

Indeed, in the absence of a quota, underrepresentation would

continue until an entire generation of police sergeants retired.

This result would occur because no proposed change in selection

criteria would yield greaier numbers of minorities than their

proportion in the population. Thus, even assuming a racially

unbiased selection criteria were put into place in 1984, so long as

the police sergeants who served up until that time remained on

the force, minority representation would be low relative to the

number of qualified minority applicants. The result would be the

continuation of the effects of prior discrimination for many years

in the future.

S4a

Appendix B

Therefore, it was reasonable for the Plan to adopt a 1:1

quota.

C. Flexibility and Duration of Plan

There has been no suggestion that the minorities appointed

to sergeant are not qualified. Cf Paradise, 480 U.S. at 177-178.

This plan is not of indefinite duration. The Paradise Court also

upheld a plan with a long duration. Judge Gadola, in Detroit

Police Officers Ass'n. v. Young, 765 F. Supp. 393, 396 (E.D.

Mich. 1991) upheld a 1:1 Plan with a sixteen year duration as

reasonable. This Plan will probably expire this year or next year,

eight to nine years after inception.’ Moreover, as in Young, the

Plan has been flexible in allowing the positions to be filled as

needed, and not requiring minorities to be hired regardless of the

need for sergeants. Therefore, this plan is sufficiently flexible and

of reasonable duration.

D. Relevant Labor Market

This issue has been adequately addressed in the analysis

under the “compelling state interest” prong. The same analysis

demonstrates that the Plan is narrowly tailored. The Plan em-

ployed the 41.5% figure because it reflects the percentage of

qualified minorities that would be on the police force absent

discrimination. Compare Young, 765 F. Supp. at 397, in which

the Court found that fifty percent black police officers and

investigators was “sufficiently related” to the Department’s end

goal of fifty percent in promotions. For the reasons discussed

supra, the Court finds Paradise provides authority for the statisti-

cal analysis that removes the effect of prior discrimination to

determine the relevant qualified pool.

That is, the part of the Plan at issue in this case, concerning the

promotion to sergeant will soon meet its stated goal.

55a

Appendix B

E. Impact on Third Parties

The Supreme Court has said that unlike the discharge of

workers, the granting of promotions is a less painful way to effect

affirmative action. Thus, in the Paradise case, the Supreme Court

upheld a rigid hiring quota on a police force; whereas, the Court

struck down race-based layoffs in Wygant, 476 U.S. at 282-83

(“Though hiring goals may burden some innocent individuals,

they simply do not impose the same kind of injury that layoffs

impose. Denial of a future employment opportunity is not as

intrusive as loss of an existing job.”). Thus, the case at bar may be

distinguished from Long v. City of Saginaw, 911 F.2d 1192 (6th

Cir. 1990), in which the Sixth Circuit struck down Saginaw’s

decision to lay off police officers to conform to affirmative action

goals.

As to Plaintiffs’ argument that less restrictive means were

available in this case, considerable evidence remains that this

simply was not the case. For instance, regarding the sergeants

examination results from 1976-1979, Plaintiff's expert has noted,

“the proportion of white candidates passing is roughly double the

proportion of black candidates passing the examination.” Defen-

dant’s Reply Brief, Exhibit A. This troubling result occurred after

Judge Harvey’s Alfaro decision finding no bias in the selection

process for sergeant.

Plaintiff's suggestion that alternate tests be used has been

implemented as part of the plan. Plaintiffs are unable to demon-

strate how their proposed changes acting alone would have

overcome the rather drastic effects of prior discrimination on

minority representation on the force. After a thirteen year history

of government efforts to integrate the police force through moder-

ate means, the City acted reasonably to impose the 1:1 quota.

56a

Appendix B

This Court is unable to find that any other measures would have

eliminated the effects of prior discrimination.

V. Continuation of the Plan?

Does the City have a compelling state interest to continue

the Plan once the 41.5 percent goal is attained?'’ The City’s

expert has suggested that “operational needs” and “operational

efficiency and effectiveness” would be enhanced by increasing the

percentage of minority representation at the sergeant’s level until

53.2 percent of the sergeants are minority. Defendant's Brief,

exhibit 7 at 20-21. This number reflects the Flint minority

population.

This goal is plainly insupportable under current law. Goals

other than remediation of prior discrimination of a particularized

group cannot serve as the basis for an affirmative action program

by a state entity. Croson, 488 U.S. at 493. The City cannot now

amend the Plan to choose the general population as the basis for

comparison.

Therefore, the City must cease the operation of the Plan as it

relates to the hiring or promotion of police sergeants as of the date

that minority representation of police sergeants reaches 41.5

percent.

V. Conclusion

A. There is no material issue of genuine fact as to

whether the Human Rights Commission found sufficient

evidence of prior discrimination to find a compelling state

interest in the adoption of the affirmative action plan.

B. The Plan is narrowly tailored.

'' This question is ripe for review since the City is on the verge of meeting

its goal of 41.5 percent minority police sergeants.

57a

Appendix B

C. Summary judgment is therefore granted for the City

of Flint on all remaining counts.

D. The Plan shall cease to operate in connection with

the hiring of sergeants on the date that the percentage of

police sergeants that are minority reaches 41.5 percent. On

that date, a new promotion or hiring policy shall be placed

into effect in which sergeants shall be hired on a color-blind

basis. After that date, the City may not institute any race-

based hiring of sergeants absent the establishment of a new

affirmative action plan in accordance with constitutional

requirements.

In addition, all previously imposed limits on the City’s ability

to establish criteria to hire sergeants, such as education and

testing requirements, that were ordered by the federal district

court in Flint are hereby revoked as of the date that the Plan no

longer applies to the selection of sergeants.

SO ORDERED.

/s/ STEWART A. NEWBLATT

: STEWART A. NEWBLATT

UNITED STATES DISTRICT JUDGE

Date: 1/7/93

58a

Appendix C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION — FLINT

CHARLES MIDDLETON, W. OSMUND KELLY, III,

BRIAN SEPANAK, BRUCE SEPANAK, STEPHEN HILL,

GREGORY DOERR, BARRY SAUNDERS,

ROBERT LOREY, MAYNARD NEWMAN,

JAMES MCCLELLAN, MARK CAMPBELL,

AND THOMAS HILGENDORF,

Plaintiff, Civil Action

No: 90-CV-40148-FL

¥

THE CITY OF FLINT, A MUNICIPAL

CORPORATION, AND THE FLINT

POLICE OFFICERS ASSOCIATION,

Defendants.

MEMORANDUM OPINION AND ORDER

Before the Court is defendant City of Flint’s Motion to

Dismiss and for Summary Judgment, and plaintiffs’ Response. A

hearing regarding this matter was held on November 18, 1991.

The issues raised by defendant’s motion are: (1) whether plain-

tiffs’ claims are barred by the statute of limitations; (2) whether

plaintiffs’ 42 U.S.C. § 1981 claim must be dismissed for failure to

plead, and provide facts supporting the position, that plaintiffs’

promotion to sergeant would create a new contractual relationship

between the parties; and (3) whether plaintiffs’ claim under the

Elliott-Larsen Act must be dismissed because the City’s Affirma-

tive Action Plan was approved by the Michigan Department of

Civil Rights. For the reasons that follow, as stated on the record,

defendant’s motion is GRANTED IN PART and DENIED IN

59a

Appendix C

PART. With regard to defendant’s arguments that plaintiffs’

claims are barred by the statute of limitations, and that plaintiffs’

§ 1981 claim must be dismissed, the motion is DENIED. To the

extent that defendant seeks dismissal of plaintiffs’ Elliott-Larsen

claim, defendant’s motion is GRANTED.

This action arises out of defendant’s promotion of minorities

to the rank of police sergeant over plaintiffs, pursuant to the City

of Flint’s (“City”) Affirmative Action Plan (“AAP”) which was

adopted by the City in 1984. Since August, 1984, the City has

used two promotional lists when making promotions from the

rank of police officer to the level of sergeant, one list comprised of

non-minorities, the other comprised of minorities (defendant’s

Motion at 2). On May 16, 1990, plaintiffs filed a three count

Complaint alleging that the City’s promotional practices, which

are embodied in a collective bargaining agreement and which

arise from the City’s AAP, violate their equal protection rights in

violation of 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the

Michigan Elliott Larsen Civil Rights Act, M.C.L. § 37.2101, ef

seq. (defendant’s Motion at 1). The plaintiffs claim that they

were denied promotions based upon their race (defendant’s Mo-

tion at 2).

At pages one and two of its brief, defendant provides a

factual history of the implementation of the AAP. Upon the

request of then Mayor James Sharp, Jr., in April 1984 the Civil

Rights Committee of the Flint Human Resources Commission

(“HRC”) conducted public hearings on the need for affirmative

action in the City’s police and fire departments. Numerous

individuals and groups attended the hearings and provided statis-

tical evidence regarding the need for an AAP. The information

gathered was studied by the HRC throughout the summer of

1984, resulting in the HRC’s issuing of a “Resolution Concerning

Affirmative Action — Promotions in Flint Police Department”

60a

Appendix C

(defendant’s Motion at exh. C). “In this resolution, the HRC

concluded that the prior discrimination against minoritics in

promotions within the police department justified the implemen-

tation of an affirmative action policy to overcome the past and

present effects of discrimination” (defendant’s Motion at 2). The

HRC also approved the AAP (see AAP, defendants Motion at

exh. D). The City’s AAP was submitted to the Michigan Depart-

ment of Civil Rights, pursuant to § 210 of the Elliott-Larsen Act,

and was formally approved on January 27, 1986 (defendant’s

Motion at exh. G).

There are eleven plaintiffs in this lawsuit, all white male

police officers of the City of Flint. Nine plaintiffs claim they were

passed over for promotion to sergeant within three years from

May 16, 1990 (plaintiffs’ Response at 2).' Two plaintiffs claim

they were denied promotion shortly after this suit was filed in

October 1990 (plaintiffs’ Response at 2).? Of those plaintiffs who

were passed over for promotion in 1987, who did not specify a

month or date upon which the alleged discriminatory denial took

place, plaintiffs argue that the record establishes that applications

were taken on May 21, 1987, the exam was given on June 23,

1987, and the plaintiffs were notified of eligibility on July 15, 1987

(plaintiffs’ Response at 3), see “Eligible List,” plaintiffs’ Re-

sponse at exh. 9).? Moreover, five plaintiffs allege that they have

been victims of a continuing pattern of discrimination and thereby

have been denied promotion on the basis of Race on occasions

' These nine plaintiffs are Maynard Newman, Barry Saunders, James

McLellan, Thomas Hilgendorf, Charles Middleton, Robert Lorey, Stephen Hill,

Brian Sepanak, and Bruce Sepanak.

? These two plaintiffs are Gregory Doerr and W. Osmund Kelly, III.

> The Court notes that all three of these dates are within three years of the

filing of plaintiffs’ Complaint.

oO

6la

Appendix C

which occurred more than three years prior to initiation of this

lawsuit (plaintiffs’ Response at 3).‘

I

The Court first will address the third issue raised by defen-

dant’s motion: that plaintiffs’ Elliott-Larsen claim must be dis-

missed because the AAP was approved bv the Michigan Civil

Rights Commission in 1986. Section 210 of the Elliott-Larsen

Act provides that: .

A person subject to this article may adopt and carry out

a plan to eliminate present effects of past discriminatory

practices or assure equal opportunity with respect to

religion, race, color, national origin, or sex if the plan is

filed with the commission under rules of the commission

and the commission approves the plan.

M.C.L. § 37.2210. Moreover, section 705(2) of the Act states

that:

This act shall not be interpreted as restricting the

implementation of approved plans, programs, or services

to eliminate discrimination and the effects thereof when

appropriate.

M.C.L. § 37.2705(2). The Michigan Court of Appeals has held

that if a voluntary affirmative action plan is submitted to, and

approved by, the Civil Rights Commission, protection from legal

action is guaranteed; compliance with section 210 is a complete

defense. Kulek v. City of Mt. Clemens, 164 Mich. App. 51, 415

N.W.2d 321 (1987); Ruppal v. Dep't of Treasury, 163 Mich.

App. 219, 413 N.W.2d 751, 758 (1987); see also Victorson v.

* These five plaintiffs are Middleton, Newman, McLellan, Hilgendorf, and

Lorey.

62a

Appendix C

Dep't Of Treasury, 183 Mich. App. 318, 321-22, 454 N.W.2d 256,

259 (1990).

The City’s AAP was submitted to ihe Civil Rights Commis-

sion on July 19, 1985, and on February 13, 1986, the Commission

notified the City that the Plan had been approved on January 27,

1986. This Plan is the basis of the allegedly discriminatory

promotion denials. Therefore, plaintiff's claims that the City

violated the Elliott-Larsen Act by making hiring and promotional

decisions pursuant to the approved AAP must be DISMISSED.

Plaintiffs’ Supremacy Clause argument misses the point. It is

true that if defendant’s AAP violates plaintiffs’ federai constitu-

tional rights, state approval of the Plan would be ineffective

against such constitutional claims. Nevertheless, the fact that

plaintiffs have a federal constitutional claim does not affect their

ability to sue under a state civil rights statute. The Elliott-Larsen

Act does not purport to insulate absolutely defendant’s AAP from

attack. Sections 210 and 705(2) of the Act, however, sanction

such approved plans, protecting them from action taken pursuant

to the Act itself. Even if the Plan violates the federal constitution,

that does not provide a cause of action under the Elliott-Larsen

Act, since the Act is inapplicable by its own terms.

HI

The parties do not dispute that the three year statute of

limitations period contained in the Elliott-Larsen Act governs

plaintiffs’ claims of discrimination in violation of 42 U.S.C.

§ 1981 and § 1983. See Gomez v. Great Lakes Steel Div. Nat.

Steel Corp., 803 F.2d 250, 253 (6th Cir. 1986) (§ 1981);

Carroll v. Wilkerson, 782 F.2d 44, 45 (6th Cir. 1986) (§ 1983).

The parties do not agree, however, as to the time at which the

statute of limitations began to run. Defendant argues that in a

63a

Appendix C

discrimination in employment case, the statute begins to run at

the time the plaintiff becomes aware of the alleged discriminatory

practice at issue (defendant’s Motion at 4). In this case, argues

defendant, the statute began to run when plaintiffs became aware

of the City’s AAP in 1986 (id.). Plaintiffs, on the other hand,

argue that in an action under the Elliott-Larsen Act claiming a

discriminatory promotion decision the cause of action accrues

after the actual deuial of the promotion sought, regardless of

when notice of the Plan or notice of the denial is given (plaintiffs’

Response at 5). Evidently, plaintiffs would have the Court apply

this time of accrual to the federal claims as well.

According to the Sixth Circuit, although state law provides

the statute of limitations for an action under § 1981 or § 1983,

federal law determines when that limitations period begins to run.

Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). In their

briefs and at oral argument, the parties have cited several federal

cases which they claim are dispositive on the statute of limitations

issue (see defendant’s Motion at 4-6). See Conlin v. Blanchard,

890 F.2d 811 (6th Cir. 1989); Janikowski v. Bendix Corp., 823

F.2d 945 (6th Cir. 1987); Roberts v. North American Rockwell

Corp., 650 F.2d 823 (6th Cir. 1981); Chambers v. Parco Foods,

Inc., 935 F.2d 902 (7th Cir. 1991); Kuemmerlein v. Madison

Metro. School Dist., 894 F.2d 257 (7th Cir. 1990).

A. Claims of separate violations

In Chambers v. Parco Foods, Inc., the plaintiff brought a

Title VII action alleging that the defendant’s departmental se-

niority system, where employees in one department were not

allowed to bid for jobs in other departments, discriminated against

her on the basis of sex. 935 F.2d at 903. The specific provision

precluding inter-departmental bidding was negotiated by the

union and implemented into the collective bargaining agreement

64a

Appendix C

in 1979, Jd. Plaintiff filed her complaint in 1988 after she was

refused the opportunity to bid outside her department in 1987. Jd.

at 904. In holding that the complaint was time-barred, the

Seventh Circuit focused on when the plaintiff experienced a

“diminution in employment status.” Jd. at 905. The Court held

that the plaintiffs diminution in employment, her inability to

make a transfer bid, “occurred in 1979 when the agreement’s

terms were changed from previous agreements.” Jd. The discrimi-

natory act which triggered the statute of limitations, therefore,

was the time of adoption of the objectionable bidding policy. Jd.

at 906.

In Kuemmerlein v. Madison Metro. School Dist., the plain-

tiffs were two white male teachers who had been laid off in 1982

while several minority teachers with less seniority were retained,

pursuant to a collectively bargained affirmative action program.

894 F.2d at 258. The plaintiffs brought an action under § 1983,

alleging racial discrimination in defendants’ layoff decisions. Jd.

The plaintiffs received layoff notices on March 2, 1982 and were

terminated on August 23, 1982 (the first day classes were held

without plaintiffs’ employ). Jd. at 259. The plaintiffs did not file

their complaint until May 11, 1988. Jd. Applying Chardon v.

Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981), and

Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66

L.Ed.2d 431 (1980), the Seventh Circuit heid that “the statute of

limitations runs from the date of notice, not from the date of

actual termination.” Kuemmerlein, 894 F.2d at 259. Therefore,

Wisconsin’s six year statute of limitations had run out on

March 2, 1988, two months before plaintiffs filed their complaint.

The statute of limitations begins to run at the occurrence of

the “discriminatory act, not the point at which the consequences

of the act become painful.” Jd. citing Chardon, 454 U.S. at 8; 102

S.Ct. at 29; Ricks, 449 U.S. at 258, 101 S.Ct. at 504; and

65a

Appendix C

Lorance v. AT&T Technologies, 490 U.S. 900, 109 S.Ct. 2261,

2266 n.3, 104 L.Ed.2d 961 (1989). In Kuemmerlein, the Court of

Appeals found that “[p]laintiffs’ actual termination only made

painful the consequences of the discriminatory act: the allegedly

illegal act was the layoff decision itself.” 894 F.2d at 260.

Applying the Kuemmerlein decision to the instant action, the

discriminatory act would have been the actual denial of promo-

tion to plaintiffs: the allegedly illegal act. Defendant argues that,

in this case, implementation of the AAP in 1984 is the alleged

discriminatory act which started the statute of limitations running

(defendant’s Motion at 6). Defendant argues that “[a]ll of the

Plaintiffs were thus on notice that the City had adopted a Plan

which may affect their employment status” (defendant’s Motion

at 6 (emphasis added) ). That an employer’s action may affect an

employee’s status, however, is not sufficient. Implementation of

the AAP did not affect plaintiffs. Unlike the adoption of a

seniority system, by which an employee’s rights and interests are

immediately altered, the adoption of an affirmative action plan for

hiring and promotions does not alter an employee’s status. The

AAP only told plaintiffs that the City would, in the future, use

certain criteria for making its employment decisions. Only when

they were denied promotion pursuant to the AAP did plaintifis

incur a diminution in employment.

The statute of limitation began to run when plaintiffs

received notice of the allegedly discriminatory conduct.

Kuemmerlein, 894 F.2d at 259. To the extent, and for those

claims, that plaintiffs were denied promotion to sergeant and

received notice thereof after May 16, 1987, plaintiffs’ claims

are not barred by the statute of limitations. With regard to

these claims, defendant’s motion is DENIED.

66a

Appendix C

B. Claims of continuing violation

In Conlin, similar to the present action, the dispute involved

plaintiffs being passed over for promotion in favor of others,

pursuant to the State of Michigan’s Affirmative Action Plan. In

that case, the plaintiff Ruppal challenged the refusal to promote

him in September 1984, and the plaintiff Victorson challenged

the denial of a promotion in July 1983. 890 F.2d at 815. The

plaintiffs did not file their lawsuit until April 1988, well outside

the three year statute of limitations period. Among other claims,

Ruppal and Victorson contended that there was a pattern of

continuing violations that continued well within the limitations

period. Jd. In examining this claim, the Sixth Circuit stated that,

“Ti]n order to allege a continuing violation with regard to employ-

ment decisions, a court is to look at what event “ ‘should have

alerted the average lay person to protect his rights.’”” Jd. quoting

Dumas v. Town of Mount Vernon, Ala., 612 F.2d 974 (Sth Cir.

1980). In Conlin, the Court of Appeals found that the plaintiffs

“were certainly aware of the general affirmative action policies at

the time of their promotion denials.” Jd. Therefore, the district

court correctly dismissed the plaintiffs’ “continuing violations”

claim under the appropriate statute of limitations. Jd.

In Roberts, 650 F.2d 823, a Title VII action, the Sixth

Circuit directly addressed the continuing violation doctrine. Upon

applying for a position with defendant North American Rockwell

Corp., the plaintiff in Roberts was denied a job at Rockwell

because she was a woman. Jd. at 824. The plaintiff periodically

returned to Rockwell’s employment office to inquire as to the

status of her application and was repeatedly told that she would

not be hired because she is a woman. Jd. at 824-25. The plaintiff

brought suit against Rockwell on January 6, 1978.

ee et ee ee ee

67a

Appendix C

In determining whether the plaintiff's action was barred by

the statute of limitations, the court noted that “[t]his case

illustrates the continuing violation doctrine well.” Jd. at 827.

Because she was challenging Rockwell's discriminatory policy,

and because she was continually applying for a position of

employment — each time being rejected — the court determined

that the violation was an ongoing one. Jd. Moreover, the court

cited important policy reasons why the plaintiff's action should

not be barred:

Title VII advances important federal goals. To require

that suit be filed at the first instance of discrimination or

not at all would frustrate Title VII. Broad, remedial acts

such as Title VII should be liberally construed to

encourage the eradication of discrimination.

Id. The court held that because part of the continuing violation

occurred within the statute of limitations period, the entire

continuing violation was still actionable.

Application of Conlin and Roberts to this case is difficult.

The Court notes that in Roberts, a Title VII action, the plaintiff

was permitted to bring suit over incidences that occurred beyond

the statute of limitations period because there was an over-

arching discriminatory hiring policy which continued into a period

of time within limitations period and adversely affected the

plaintiff during that actionable time. In Conlin, however, a suit

brought pursuant to § 1983, the plaintiffs were barred from

bringing suit challenging a policy that too continued into the

statute of limitations period, but during which time there was not

an adverse employment action taken against them. Defendant

herein contends that in Conlin the Court of Appeals limited their

holding in Roberts to Title VII actions, and that in § 1983 actions

the statute of limitations period begins to run on the very first

68a

Appendix C

occasion that the plaintiffs knew or should have known of the

discriminatory policy that would adversely affect their rights. This

interpretation of Conlin is possible, based upon the court’s reason-

ing that a court must look at what event should have alerted the

average lay person to protect his rights. As in Conlin, the plaintiffs

in this case “were certainly aware of the general affirmative action

policies at the time of their promotion denials.” 890 F.2d at 815.

This Court, however, does not read Conlin to have such a

limiting effect upon the Roberts court’s adoption of the continuing

violations doctrine. Specifically, the Court notes that in Conlin,

the plaintiffs did not plead that there were any other deprivations

of their constitutional rights which affected them within the

limitations period. Moreover, where you have a discrete act of

discrimination — a particular person is not promoted by her

superior for some prohibited reason — that is a different situation

from when an employer has an overall policy which will continue

over a period of time. The cases cited by the parties all talk about

a continuing violation where there is a policy affecting a particular

classification of people defined by some prohibited discriminatory

characteristic. In this case it is alleged that discrimination is

against every white male on the basis of race. Whether numerous

separate denials of promotion, some within and some beyond the

statute of limitations period, are actionable because they are all

based upon a single, continuous, discriminatory policy is a legal

question that must be clarified by the Sixth Circuit. Based upon

the current state of the law, however, I cannot deprive these

plaintiffs from having their cause of action resolved on the merits.

Therefore, to the extent that defendant seeks to dismiss plaintiffs’

§ 1983 claim upon statute of limitations grounds, defendant’s

motion is DENIED.

69a

Appendix C

Ii

The final issue raised by defendant’s motion is whether

plaintiffs’ claim under 42 U.S.C. § 1981 should be dismissed for

failure to show that the denial of promotion prevented plaintiffs

from entering into a new contractual relationship. Count II of

plaintiffs’ Complaint alleges a violation of section 1981 in their

promotion denial. Section 1981 guarantees to “[a]ll persons...

the same right in every State... to make and enforce contracts,

to sue, be parties, give evidence, and to the full and equal benefit

of all laws and proceedings for the security of persons and

property as is enjoyed by white citizens...” 42 U.S.C. § 1981.

The protection offered by this statute applies equally to whites as

well as blacks. McDonald v. Santa Fe Transportation, 427 U.S.

273, 286-87, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). Section 1981

only provides relief, however, for discriminatory “conduct at the

initial formation of the contract and conduct which impairs the

right to enforce contract obligations through legal process.” Pat-

terson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363,

2374, 105 L.Ed.2d 132 (1989).

[T]he question whether a promotion claim is actionable

under § 1981 depends upon whether the nature of the

change in position was such that it involved the opportu-

nity to enter into a new contract with the employer. If

so, then the employer’s refusal to enter the new contract

is actionable under § 1981. In making this determina-

tion, a lower court should give a fair and natural reading

to the statutory phrase “the same right ... to make ...

contracts,” and should not strain in an undue manner

the language of § 1981. Only where the promotion rises

to the level of an opportunity for a new and distinct

relation between the employee and the employer is such

a claim actionable under § 1981.

70a

Appendix C

Patterson, 491 U.S. at 185, 109 S.Ct. at 2377. The question here,

assuming for this motion that defendant’s actions were discrimi-

natory, is whether the promotion to sergeant would have provided

a new and distinct contractual relationship between plaintiffs and

defendants.

This final determination is a close one. Plaintiffs have pro-

vided evidence, mostly by way of affidavit of plaintiff Middleton,

that the promotion to sergeant does alter the employment rela-

tionship in a significant way (plaintiffs’ Response at exh. 1).

Furthermore, plaintiffs provide the first few pages of the different

contracts that have been negotiated on behalf of police officers

and sergeants (plaintiffs’ Response at exh. 2). I cannot determine

from what is provided whether the terms of the contracts are

significantly different. Because they are apparently separately

bargained for contracts, however, and given the significantly

greater responsibility alleged in Middleton’s affidavit, if there is

not enough evidence presented to create a jury question on

plaintiff's § 1981 claim, there is at least enough of a material

dispute of fact to preclude summary judgment for defendant at

this time, Therefore, with regard to this issue, defendant’s motion

is DENIED.

Tla

Appendix C

DISPOSITION

For the foregoing reasons, and for the reasons stated on the

record, defendant’s Motion to Dismiss or for Summary Judgment

is HEREBY GRANTED IN PART and DENIED IN PART.

Plaintiffs’ claim under the Elliott-Larsen Civil Rights Act is

DISMISSED. With regard to the remainder of plaintiffs claims,

defendant’s motion is DENIED.

SO ORDERED.

/s/ STEWART A. NEWBLATT

STEWART A. NEWBLATT

UNITED STATES DISTRICT JUDGE

Date: 7/29/92

72a

Appendix D

Nos. 93-1367/1368

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

)

CHARLES MIDDLETON, ET AL.,

Plaintiffs-Appellants/

Cross-Appellees,

v.

THE CITY OF FLINT, te:

Defendant-Appellee/ er

Cross-Appellant,

FLINT POLICE OFFICERS

ASSOCIATION,

Defendant. ;

Before: KRUPANSKY, BOGGS, and SUHRHEINRICH,

Circuit Judges.

The court having received a petition for rehearing en banc,

and the petition having been circulated not only to the original

panel members but also to all other active judges of this court,

and no judge of this court having requested a vote on the

suggestion for rehearing en banc, the petition for rehearing has

been referred to the original panel.

The panel has further reviewed the petition for rehearing and

concludes that the issues raised in the petition were fully consid-

ered upon the original submission and decision of the case.

Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

/s/ LEONARD GREEN

LEONARD GREEN, CLERK

73a

Appendix E

UNITED STATES CONSTITUTION

AMENDMENT 14

Section 1. Citizens of the United States.

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall make

or enforce any law which shall abridge the privileges or immuni-

ties of citizens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal protection

of the laws.

74a

Appendix F

42 U.S.C.A. § 1981

§ 1981. Equal rights under the law

(a) All persons within the jurisdiction of the United States

shall have the same right in every State and Territory to make and

enforce contracts, to sue, be parties, given evidence, and to the

full and equal benefit of all laws and proceedings for the security

of persons and property as is enjoyed by white citizens, and shall

be subject to like punishment, pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.

(b) For purposes of this section, the term “make and

enforce contracts” includes the making, performance, modifica-

tion, and termination of contracts, and the enjoyment of all

benefits, privileges, terms, and conditions of the contractual

relationship.

(c) The rights protected by this section are protected

against impairment by nongovernmental discrimination and im-

pairment under color of State law.

(As amended Nov. 21, 1991, P. L. 102-166, Title I, § 101

105 Stat. 1071.)

SE ee ee Se

75a

Appendix G

42 U.S.C.A. § 1983

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress. For the purposes of this section, any Act of

Congress applicable exclusively to the District of Columbia shall

be considered to be a statute of the District of Columbia.

(R. S. § 1979; Dec. 29, 1979, P. L. 96-170, §1. 93

Stat. 1284.)

76a

Appendix H

ADDENDUM TO THE JULY 1, 1983 TO JUNE 30, 1984

COLLECTIVE BARGAINING AGREEMENT

77a

Appendix H

ADDENDUM TO THE

JULY 1, 1983 TO JUNE 30, 1984

COLLECTIVE BARGAINING AGREEMENT

BETWEEN THE CITY OF FLINT

AND

THE FLINT POLICE OFFICER ASSOCIATION

FOR THE PERIOD

JULY 1, 1983 TO JUNE 30, 1985

The parties hereby agree that their July 1, 1983 through

June 30, 1984 Collective Bargaining Agreement shall remain in

full force and effect except as specifically modified by this

agreement. This agreement was negotiated pursuant to the Af-

firmative Action Letter and Article 66 of the Collective Bargain-

ing Agreement.

1. Article 69, the first paragraph shall be amended to read as

follows:

“This agreement shall be effective for the period July 1,

1983, through June 30, 1985 (except for the amended

provisions of Article 38, which shall remain in full force and

effect for a period of five (5) years from the date of

ratification of this agreement), and shall continue thereafter

for successive periods of one (1) year unless either party

shall, at least ninety (90) days prior to June 30, 1985, serve

written notice on the other party of a desire to terminate,

modify, alter, renegotiate, change or amend this agreement.

-2. Article 38: Promotions shall be amended by adding the

phrase “other than those hereinafter set forth” after the word

78a

Appendix H

“Sergeant” in the first sentence and adding the following

provisions:

Section 1. In making promotions to the rank of Sergeant,

should the City find it appropriate, ii shall have the right to

maintain two separate promotional! lists, one consisting of

eligible minorities and one of eligible non-minorities — both

lists to be made up of those police officers who have

successfully passed the promotional examination for Ser-

geant. Under such circumstances, promotions may be made

on the basis of a ratio not to exceed one eligible minority for

every eligible non-minority promoted.

Section 2. It is further agreed that future promotional lists

shall only last for a period of eighteen (18) months.

Section 3. The City agrees that before the expiration of the

current promotional list (March 23, 1985), and thereafter

during the life of this amended Article 38, (i.e. five year

period) subject to existing millage and Mott Foundation

grant connected with the Foot Patrol Program, as long as the

City maintains a one to one promotional policy, it shall

maintain a minimum of eighty two (82) Sergeant positions.

In the event said existing millage and/or Mott Foundation

grant connected with the Foot Patrol Program are discontin-

ued or reduced, there shall be a corresponding reduction in

the minimum number of Sergeants required under this

Section 3. For example, if said sources of revenue are

reduced by 50%, the 82 minimum shall be reduced by 50% of

the number of Sergeants connected with said Foot Patrol

Program. The City shall fill vacant Sergeant positions as they

occur in order to maintain the eighty two (82) minimum.

Section 4. The amended provisions of this Article shall

remain in effect from January 31, 1984, to and including

79a

Appendix H

January 31, 1989, at which time said amended provisions

i.e. Section 1, 2, and 3 shall automatically expire on said date

unless otherwise agreed, and the former provisions of Arti-

cle 38 shall be reinstated and the promotional lists shall be

combined on the basis of the test scores, said list to remain in

effect for the remainder of the 18 month period.

3. Effective retroactive to July 1, 1983, for all hours paid, the

7/1/82 compensation schedule shall be increased by four per-

cent (4%) plus $400. This increase shall be incorporated into the

base wage, as shown in the attached Appendix A, page |.

Effective 7/1/84, the compensation schedule placed into effect on

7/1/83 as provided above shall be increased by five percent (5%)

plus $400 as shown in the attached schedule; and shall be

incorporated in the base wage, as shown in the attached Appen-

dix A, page 2.

4. New article to read as follows:

Effective during the first full non pay week in December

of each year, and retroactive to December of 1983, each

employee who meets the present mandatory weapons profi-

ciency levels established by the department, and is in the

City’s employ on the date of payment, will be paid a yearly

proficiency allowance of four hundred dollars ($400). Said

allowance shall be paid in a lump sum as a separate check

(and shall not be considered compensation under the retire-

ment ordinance).

5. The attached letter of understanding on negotiations for

the successor collective bargaining agreement shall be sent from

the City to the Association.

80a

Appendix H

6. The retroactive pay benefits set forth above shall be paid

promptly by the City as soon as possible following ratification of

this agreement.

7. The letter of understanding on affirmative action dated

6/27/83 shall be deleted from the contract, along with the second

sentence of the first paragraph of Article 14.

/s/ THOMAS BUGBEE /s/ ALAN DICKENSON

February 23, 1984

8la

Appendix I

TESTIMONY OF MILES WHITE,

CHIEF OF POLICE, CITY OF FLINT, MICHIGAN

82a

Appendix I

PRESENTATION OF MILES WHITE,

CHIEF OF POLICE, CITY OF FLINT, MICHIGAN

History of Discrimination. In May of 1977 the Federal District

Court found the City and the Police Department guilty of

unlawful racial discrimination in the employment and promotion

of police officers. The decision of the court was not a surprise.

Flint, like most American cities, has a long tradition of racial

exclusion in its Police Department.

In Exhibit “A”, I have reproduced the relative percentages

of minority* and non-minority residents of the City of Flint as is

reported in the 1970 and 1980 census.

In 1965, there were only 2 black police officers among the

approximately 240 uniformed service. In 1957, there were 5.

Despite a recognition in the middle 1960’s — during the era of

civil unrest which engulfed many of our cities — of the need to

bring the racial composition of the Flint Police Department into

closer conformity with the racial make-up of the City, virtually no

effective action was taken. However, the city did recruit at black

colleges across the nation. This was an expensive effort and it

failed to produce significant numbers of recruits. In 1971, only 10

of 367 (2.7%) uniformed police officers were black. Indeed, prior

to 1973, the City had managed to hire only 24 blacks in its entire

history.

This longstanding under-utilization of minorities is not a

result of an unavailability of interested, qualified, non-white

individuals in our Cit Apart from the obvious impact of this

tradition on non-white applicants and employees, it has had

severe adverse effects on the Police Department’s ability to

* As used throughout this presentation the term “minority” refers to

individuals identified as black, white Hispanic, American Indian, and Asian.

83a

Appendix I

properly serve all of our citizens. I shall return to this important

subject later in this presentation.

That the City’s prior failure to hire significant numbers of

minority persons as police officers was not accidental is under-

scored by the experience of the City when the Federal Depart-

ment of Housing and Urban Development threatened in 1971 to

cut off certain funding unless the City reformed its hiring prac-

tices. It resulted in an immediate, albeit temporary, jump in the

hiring of minority individuals into the uniformed service in the

Police Department. I have set forth the hiring statistics for the

period 1952 - 1984 below.

Total Minority Percent

Year Hires Hires Minority

1952 - 61 170 5 2.9%

1962 - 70 244 8 3.3%

1971 - 72 20 7 35.0%

1972 - 73 29 15 51.7%

1973 - 74 8 2 25.0%

1974 - 75 105 56 53.5%

1975 - 77 0 0 as

1977 - 78 28 5 17.9%

1978 - 79 23 l 4.3%

1979 - 82 0 0 =

1982 - 83 21 11 47.6%

Despite the misgivings expressed by minority high school

students on the possibility of getting fair treatment in the Flint

Police Department, large numbers of minorities regularly submit

applications for employment as police officers. However, fewer

minority applicants were appointed compared to non-minority

84a

Appendix I

applicants. In Alfaro, the Federal Court summarized our recruit-

ment experience as follows:

Prior to the EEA recruitment which resulted in the

1973 hirings, the police department had little success in

recruiting minority applicants. Plaintiffs’ exhibit #26

describes in brief the recruitment efforts in 1960, 1965,

1969, 1970, 1981 and 1973. With the exception of the

recruitment in 1973, none of these efforts produced any

substantial hiring of Blacks. Various factors were identi-

fied through testimony as contributing to the poor re-

sults in recruiting from the minority community. The

major factors were the lack of distribution of informa-

tion relating to job openings in the Police Department in

the minority community, the low esteem of police

officers by Blacks following the rioting in the 1960's; the

lack of prospects for promotion of Blacks in the depart-

ment and the stringent entrance requirements. Most of

these difficulties were overcome in the EEA recruit-

ment, by liberalizing the entrance requirements, by the

active use of Black police officers in recruiting, and by

the wider distribution of information directed toward

minority recruitment.

In 1973, in Holliman, the court enjoined, as unlawfully

discriminatory, use of the entry level examination, requiring

college credits or experience as hiring criteria for persons to be

hired under federally funded programs. Also, the college credit

minimum education requirement in the police department was

found to be unlawful in Alfaro. The court also noted the standard-

less discretion exercised by police officers assigned to investigate

the background of applicants for police employment. Prior to

1973, all background investigators were white.

85a

Appendix I

The following are the percentage minority applicants and

hiring rates for all years for which we have statistics.*

Minorities As Minorities As

Examination Percent of All Percent of All

Month/Year Accepted Applicants Test Takers Appointments

1/73 52.8% N/A 60.0%

9/74 61.2% N/A 57.1%

1/77 61.7% 57.9% 17.9%

7/78 50.4% 47.0% 4.3%

8/82 39.6% 35.1% 47.7%

You may note that the proportion of minority persons appointed

approximated the level of minority applications only during the

period of active litigation and in the current round of

appointments.

The poor performance of the City at the entry level looks

impressive when compared to our record in promotions. Prior to

September 25, 1974, no minority had ever been promoted above

the entry level rank. The promotion selection process operated

successfully to exclude minorities. As a result of litigation, five

minority officers were promoted on September 25, 1974. Under

the provisions of a court settlement signed in November, 1974 the

City agreed to award every fifth promotion to sergeant to a

minority officer over the next five years or until minority represen-

tation in that rank reached 15%. A review of the actual number of

police officers promoted subsequent to November, 1974 reveals

that the City failed to promote and has never achieved 15%

minority representation in the rank of police sergeant.*

*In Exhibit “B”, I have set forth these percentages as well as the actual

total and minority numbers. See also Exhibit “C”.

* But for the making of out-of-sequence promotions pursuant to the

litigation, the City’s promotional selection procedures would show a consistent

pattern of adverse impact against minorities. Details are set forth in Exhibit aa

86a

Appendix I

PROMOTIONS TO SERGEANT

SUBSEQUENT TO NOVEMBER 22, 1974

Total No. Minority %

Examination Promoted Promoted Minority

7/73 20 2 10.0%

6/75 18 3 16.7%

6/77 11 3 27.3%

6/79 l 0 0 %

1/83 14 0 0 %

As you can see from the figures I’ve just presented, minority

officers have done less well over the last five years than they had

done during the period when the litigation was active. Minorities

constitute 19.3% of all officers who took the 1983 examination for

promotion to sergeant. They represent 21.2% of those who passed

and 0% of those promoted. At the lieutenant level the numbers

are not encouraging as is immediately apparent from the following

chart.

Lieutenant Promotions 1975 to Present

Exam Tested Promoted

Year Total Minority Total Minority

1975 54 6 2 0

1980 83 ll 6 0

1983 _56 i] 4 1

189 26 12 l

Clearly our selection procedures require attention.

87a

Appendix I

As of February 9, 1982, the racial make-up of the Police

Department

Total Minority % Minority

eee. ee 230 44 19.1%

on) cap od BEE RATER TE eee 74 8 10.8%

LAN Sis SHS SRR 12 l 8.3%

Dep. Chief & Chief sisi. ccc isi 4 0 0

Shortfall Analysis. In order to put all of the above in quantitative

terms, I have obtained the assistance of a labor market economist,

Dr. Marc Bendick, who has reconstructed the probable racial

composition of all ranks within the Police Department as of 1984,

assuming that the City had hired and promoted minorities in

proportion to their representation in a properly defined labor

market. His report is attached hereto as Exhibit “D”.

Dr. Bendick’s study shows that minorities continue to be substan-

tially under-represented in all ranks. I have reproduced

Table Three of his report immediately below.

Expected 1984 Actual 1984 Minority

Minority Minority Representation

Rank Representation Representation Shortfall

Police Officer....... 39.6% 11.1% 20.4%

SR ic cicdsorwicinss 31.1% 10.8% 20.3%

Lieutenant ......... 33.3% 8.3% 25.0%

Dep. Chief & above . . 25.0% 0.0% 25.0%

If we take no action other than to assure that minorities are

promoted in relation to their representation in the rank immedi-

ately below, it will be a very long time before we approach the

percentage representation minority officers should have today had

the City hired and promoted in a non-discriminatory fashion in

the past.

Operational Need. Apart from the need to remedy prior employ-

ment discrimination, there is the related and critically important

88a

Appendix I

need to regain the trust and confidence of the minority segment of

the population of this City. A direct consequence of the years of

exclusion of minorities from our Police Department has been a

notable absence of sensitivity and concern for the interests of

minority citizens. This lack of sensitivity and concern sometimes

has resulted in racially discriminatory conduct by some police

officers. The Department’s prior slow response to minority citizen

complaints of inadequate or unfair treatment by the police has,

over the years, resulted in deep distrust and suspicion of the

Department on the part of large segments of the minority com-

munity. Of course, this problem is not unique in the City of Flint.

In 1967, this problem led to five days of rioting in the City of

Detroit. Similar tensions were sufficiently high here in Flint that

our Department was placed on maximum alert, expecting a racial

rebellion. Fortunately, the explosion did not materialize.

While police community relations in Flint have improved

substantially since the middle 1960's, there remains that same

undercurrent of suspicion and distrust. The affirmative action

policy which I urge the Commission to adopt will serve to

improve police community relations. It goes without saying that

in order for this or any other police department to operate

effectively within the community, it needs to have the confidence

of its citizens. Our long term failure to more closely reflect the

racial make-up of the population we serve has made it impossible

for us to establish good police community relations. If all seg-

ments of the community see their friends and neighbors repre-

sented throughout the rank structure of their Police Department,

we will be able to establish the good police community relations

that we need. Studies of incidents of police brutality and discrimi-

nation by police officers toward minority citizens have shown

repeatedly that improving minority representation within the

89a

Appendix I

structure of the Police Department has operated to reduce the

number of such incidents and change the perception held by

many members in the minority community that brutality and

discrimination is the routine or ordinary means of operation of the

Police Department. The presence of large numbers of minorities

in our Police Department will result in the realization by citizens

that they will be treated fairly and it will serve to encourage

greater citizen acceptance and cooperation with the department.

Proposal. Because of the lingering effects of prior racial discrimi-

nation, the fact that our selection procedures require reform to

climinate adverse racial impact and to achieve greater job-

relatedness, and the Department's existing operational need to

have a workforce which more closely reflects the population it is

duty-bound to serve, I have determined that the City should

adopt an affirmative action policy for the Police Department.

Accordingly, I am urging that this body review the facts, consider

the applicable law, weigh the many considerations that ought to

bear on the decision to adopt or not adopt such a policy, and make

appropriation recommendations to the Director of Personnel re-

garding the adoption and implementation of an affirmative action

policy. Accompanying my statement is a proposed resolution

which sets forth the course of action I have proposed.

Let me now review some additional considerations which |

believe bear on the resolution I have proposed.

The End Goal. | have proposed that this committee recommend

the adoption of an affirmative action policy which, when imple-

mented, would result in the promotion of minority and non-

minority officers on an accelerated 1:1 basis until each supervisory

rank, separately considered, is 45% minority. I shall refer to the

1:1 sequence of promotion as an “implementation ratio”. The

90a

Appendix I

45% number represents the benchmark at which point the use of

an implementation ratio would be discontinued.

The 45% “end-goal” is the figure which should be the focus

of our attention. Because the Federal Courts have said in the

context of challenges to affirmative action promotion policies that

‘a goal which seeks the same racial proportion among employees

as in the labor force will ordinarily be reasonable” [ Detroit Police

Officers Assn v Young, 608 F.2d 671, 696 (6th Cir. 1979) ],

particular care has been taken to find the proper proportion of

minority persons in the labor force from which police officers are

drawn. This end-goal was selected because Dr. Bendick’s analysis

reveals that 44.9% is the appropriate proportion. In addition, I

have concluded that a 45% end-goal will further the other

important purpose of an affirmative action policy, i.e., the Police

Department’s operational needs.

Duration of Affirmative Action Policy. 1 think it is also important

to have estimates of the time it is likely to take to achieve 45%

minority representation in the supervisory ranks of the Police

Department. On this subject, Dr. Bendick’s examination reveals

the following:

An Estimate of Time When 45% Minority Representation

Will Be Achieved With and Without Application of 1:1

Implementation Ratios

Without With

Rank Ratio 1:1 Ratio Difference

GR INS Fea tre eee a 2001 1992 9 years faster

FO en ae ree 2010 1999 11 years faster

Deputy Chief & above ..... 2011 2004 7 years faster

Application of Affirmative Action in Promotional Policy to

Female Officers. Let me now address the question of whether or

not the affirmative action policy should extend to include female

9la

Appendix I

Officers. There are several reasons for the determination to not

extend the program in this manner at this time.

First, it is unclear that there is a present need for affirmative

action for female officers in our supervisory ranks. The purpose of

the plan being proposed today is to remedy the effects of present

and past discrimination and to provide for the operational needs of

the police department. It is unclear that there exists discrimina-

tion against women in the Department’s promotional policies or

that there is an operational need for more female supervisors

which is founded upon a history of prior discrimination and which

would call for adoption of strong remedial measures.

Women probably are underrepresented in this Police Depart-

ment. However, that underrepresentation may not have been the

result of prior unlawful discrimination. Prior to 1971, women

were appointed to the separate classification of “policewoman”

and, until 1973, application of a minimum height and weight

requirement to all applicants for the classification of police officer

operated to disadvantage female applicants. However, these em-

ployment conditions were not considered to be unlawfully dis-

criminatory until after 1972 when Title VII of the Civil Rights

Act of 1964 was amended to cover public sector employment. The

policies which operated to exclude minorities has been viewed as

unlawfully discriminatory both before and since 1972.

I am not aware of any present practices in the Department

which could be construed as unlawfully discriminatory against

women. The Department has few female supervisors in uniform

positions. It is too soon to assess whether or not our promotional

seleciicn procedures operate to disproportionately exclude female

officers. We know that our selection procedures for promotion

have operated to adversely affect minorities and I doubt seriously

that we could show those procedures to be job related.

92a

Appendix I

Second, the serious police community relations problems

that have existed between the Department and the minority

community simply does not exist among our female residents.

Thus, the need to convince the minority community that the era

of discrimination has ended simply doesn’t exist in regard to

female citizens.

Third, the status of women as possible beneficiaries of

affirmative action promotions under our collective bargaining

agreements is unclear. Certainly, minority women will get a

substantial share of the promotions that will be accorded all

minorities. We lack facts to determined how white female officers

are likely to perform on the written promotional examinations. If

it turns out that there is a need to afford additional vpportunities

to white female officers, we are prepared to discuss that item in

further detail with the union involved.

Finally, there is a need to act now to establish an affirmative

action policy with respect to minorities. I am advised by the City

Attorney that the law does not require us to handle all potential

discrimination pro

This text is long and has been trimmed here. Open the source document for the complete record.