## 480 U.S. 149

Case Year: 1987

Case Ruling: 5-4, Affirmed

Opinion Justice: Brennan

### Dissenting Opinions

Court Opinion Joiner(s):

Blackmun, Marshall, Powell, Stevens

1st Concurring Opinion

Author: Powell

Joiner(s):

1st Dissenting Opinion

Author: O'Connor

Joiner(s): Rehnquist, Scalia

2nd Concurring Opinion

Author: Stevens

Joiner(s):

2nd Dissenting Opinion

Author: White

Joiner(s):

3rd Concurring Opinion

Author:

Joiner(s):

3rd Dissenting Opinion

Author:

Joiner(s):

Other Concurring Opinions:

## FACTS

This appeal involves racial discrimination in the hiring and promotion activities of the Alabama Public Safety Department. It follows a long and complex history of legal battles in the lower courts.

In 1972, the district court found that over an almost forty-year period, no black had ever been hired as an Alabama state trooper. In fact, the state patrol had only employed blacks in a laborer capacity. The district judge found this practice to be in violation of the Equal Protection Clause of the Fourteenth Amendment and ordered that the state patrol must hire one black trooper for every white trooper hired until the proportion of black troopers reached 25 percent of the force. He also enjoined the state patrol from further discrimination in its employment policies.

Two years later, the district court found the state patrol guilty of unreasonably restricting the number of new troopers hired in order to avoid adding significant numbers of blacks to the force. In 1979, in response to a court finding that no black state trooper occupied a rank at corporal or above, the state patrol agreed to develop fair and nondiscriminatory promotion procedures. Little progress had been made to promote blacks in the higher ranks of the force by 1981, and the Department once again pledged to the district court that it would follow nondiscriminatory promotion procedures.

At the end of 1983, there were still no black majors, no black captains, no black lieutenants, no black sergeants, and only four black corporals. The district court imposed a temporary quota of one black promoted to corporal for every white promoted to that rank. A similar 50 percent quota was imposed at the higher ranks, whenever qualified blacks were available. This "one-for-one" quota would only last until 25 percent of the occupants of each rank were black or until the Alabama state patrol developed truly nondiscriminatory promotion procedures.

The federal government challenged this ruling on the grounds that the race-based quota imposed violated the Constitution's equal protection guarantees. Phillip Paradise and other black plaintiffs supported the district court's quota plan.

## JUSTICE BRENNAN ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED AN OPINION IN WHICH JUSTICE MARSHALL, JUSTICE BLACKMUN, AND JUSTICE POWELL JOIN.

... The United States maintains that the race-conscious relief ordered in this case violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.

It is now well established that government bodies, including courts, may constitutionally employ racial classifications essential to remedy unlawful treatment of racial or ethnic groups subject to discrimination.... The Government unquestionably has a compelling interest in remedying past and present discrimination by a state actor.... In 1972 the District Court found, and the Court of Appeals affirmed, that for almost four decades the Department had excluded blacks from all positions, including jobs in the upper ranks. Such egregious discriminatory conduct was "unquestionably a violation of the Fourteenth Amendment."... As the United States concedes, the pervasive, systematic, and obstinate discriminatory conduct of the Department created a profound need and a firm justification for the race-conscious relief ordered by the District Court.

The Department ... , however, maintain[s] that the Department was found guilty only of discrimination in hiring, and not in its promotional practices. They argue that no remedial relief is justified in the promotion context because the intentional discrimination 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 nonminorities. The lower courts determined that this situation was explicable only by reference to the Department's past discriminatory conduct. In 1972 the Department was "not just found guilty of discriminating against blacks in hiring to entry-level positions. The court found that in 37 years there had never been a black trooper at any rank."... In 1979 the District Judge stated that one continuing effect of the Department's historical discrimination was that, "as of November 1, 1978, out of 232 state troopers at the rank of corporal or above, there is still not one black." The court explained that the hiring quota it had fashioned was intended to provide "an impetus to promote blacks into those positions" and that "[t]o focus only on the entry-level positions would be to ignore that past discrimination by the Department was pervasive, that its effects persist, and that they are manifest."... The District Court crafted the relief it did due to "the department's failure after almost twelve years to eradicate the continuing effects of its own discrimination."... It is too late for the Department to attempt to segregate the results achieved by its hiring practices and those achieved by its promotional practices.

The argument that the Department's promotion procedure was not discriminatory is belied by the record. In 1979, faced with additional allegations of discrimination, the Department agreed to adopt promotion procedures without an adverse impact on black candidates within one year.... By 1983 the Department had promoted only four blacks, and these promotions had been made pursuant to the 1979 Decree, and "not the voluntary action of the Department."... In December 1983, the District Court found, despite the commitments made in the consent decrees, that the Department's proposed promotion plan would have an adverse impact upon blacks, ... and that "the department still operate[d] an upper rank structure in which almost every trooper obtained his position through procedures that totally excluded black persons."...

Promotion, like hiring, has been a central concern of the District Court since the commencement of this action; since 1972, the relief crafted has included strictures against promotion procedures that have a discriminatory purpose or effect. The race-conscious relief at issue here is justified by a compelling interest in remedying the discrimination that permeated entry-level hiring practices and the promotional process alike.

Finally, in this case ... the District Court's enforcement order is "supported not only by the governmental interest in eradicating [the Department's] discriminatory practices, it is also supported by the societal interest in compliance with the judgments of federal courts." The relief at issue was imposed upon a defendant with a consistent history of resistance to the District Court's orders, and only after the Department failed to live up to its court-approved commitments.

While conceding that the District Court's order serves a compelling interest, the Government insists that it was not narrowly tailored to accomplish its purposes--to remedy past discrimination and eliminate its lingering effects, to enforce compliance with the 1979 and 1981 Decrees by bringing about the speedy implementation of a promotion procedure that would not have an adverse impact on blacks, and to eradicate the ill effects of the Department's delay in producing such a procedure. We cannot agree.

In determining whether race-conscious remedies are appropriate, we look to several factors, including the necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties.... When considered in light of these factors, it was amply established, and we find that the one-for-one promotion requirement was narrowly tailored to serve its several purposes, both as applied to the initial set of promotions to the rank of corporal and as a continuing contingent order with respect to the upper ranks.

To evaluate the District Court's determination that [a race-based quota was] necessary ... , we must examine the purposes the order was intended to serve. First, the court sought to eliminate the effects of the Department's "long term, open, and pervasive" discrimination, including the absolute exclusion of blacks from its upper ranks. Second, the judge sought to ensure expeditious compliance with the 1979 and 1981 Decrees by inducing the Department to implement a promotion procedure that would not have an adverse impact on blacks. Finally, the court needed to eliminate so far as possible the effects of the Department's delay in producing such a procedure....

The options proffered by the Government and the Department would not have served the court's purposes.... By 1984 the District Court was plainly justified in imposing the remedy chosen. Any order allowing further delay by the Department was entirely unacceptable.... Not only was the immediate promotion of blacks to the rank of corporal essential, but, if the need for continuing judicial oversight was to end, it was also essential that the Department be required to develop a procedure without adverse impact on blacks, and that the effect of past delays be eliminated.

We conclude that in 1983, when the District Judge entered his order, "it is doubtful, given [the Department's] history in this litigation, that the District Court had available to it any other effective remedy."... The features of the one-for-one requirement and its actual operation indicate that it is flexible in application at all ranks. The requirement may be waived if no qualified black candidates are available. The Department has, for example, been permitted to promote only white troopers to the ranks of lieutenant and captain since no black troopers have qualified for those positions. Further, it applies only when the Department needs to make promotions. Thus, if external forces, such as budget cuts, necessitate a promotion freeze, the Department will not be required to make gratuitous promotions to remain in compliance with the court's order.

Most significantly, the one-for-one requirement is ephemeral; the term of its application is contingent upon the Department's own conduct. The requirement endures only until the Department comes up with a procedure that does not have a discriminatory impact on blacks--something the Department was enjoined to do in 1972 and expressly promised to do by 1980. ... [T]he court has taken into account the difficulty of validating a test and does not require validation as a prerequisite for suspension of the promotional requirement. The one-for-one requirement evaporated at the ranks of corporal and sergeant upon implementation of promotion procedures without an adverse impact, demonstrating that it is not a disguised means to achieve racial balance....

Finally, the record reveals that this requirement was flexible, waivable, and temporary in application. When the District Court imposed the provision, the judge expressed the hope that its use would be "a one-time occurrence."... The Department has since timely submitted procedures for promotions to corporal and sergeant, and the court has consequently suspended application of the promotional order with respect to those ranks. In the higher ranks, the Department has been permitted to promote only white troopers. It now appears that the effect of the order enforcing the decrees will be "the development of acceptable promotion procedures for all ranks and the nullification of the promotion quota."... The remedy chosen has proved both effective and flexible.

We must also examine the relationship between the numerical relief ordered and the percentage of nonwhites in the relevant work force. The original hiring order of the District Court required the Department to hire 50% black applicants until 25% of the state trooper force was composed of blacks; the latter figure reflects the percentage of blacks in the relevant labor market. The enforcement order at issue here is less restrictive: it requires the Department to promote 50% black candidates until 25% of the rank in question is black, but only until a promotion procedure without an adverse impact on blacks is in place. Thus, had the promotion order remained in effect for the rank of corporal, it would have survived only until 25% of the Department's corporals were black.

The Government suggests that the one-for-one requirement is arbitrary because it bears no relationship to the 25% minority labor pool relevant here. This argument ignores that the 50% figure is not itself the goal; rather it represents the speed at which the goal of 25% will be achieved.... The one-for-one requirement did not impose an unacceptable burden on innocent third parties. ... [T]he temporary and extremely limited nature of the requirement substantially limits any potential burden on white applicants for promotion....

The one-for-one requirement does not require the layoff and discharge of white employees.... Because the one-for-one requirement is so limited in scope and duration, it only postpones the promotions of qualified whites....

Finally, the basic limitation, that black troopers promoted must be qualified, remains. Qualified white candidates simply have to compete with qualified black candidates. To be sure, should the District Court's promotion requirement be applied, black applicants would receive some advantage. But this situation is only temporary, and is subject to amelioration by the action of the Department itself.

Accordingly, the one-for-one promotion requirement imposed in this case does not disproportionately harm the interests, or unnecessarily trammel the rights, of innocent individuals.

In determining whether this order was "narrowly tailored," we must acknowledge the respect owed a district judge's judgment that specified relief is essential to cure a violation of the Fourteenth Amendment. A district court has "not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Louisiana v. United States, (1965). "Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Swann v. Charlotte-Mecklenburg Bd. of Education (1971).

Nor have we in all situations "required remedial plans to be limited to the least restrictive means of implementation. We have recognized that the choice of remedies to redress racial discrimination is a balancing process left, within appropriate constitutional or statutory limits, to the sound discretion of the trial court.'" Fullilove v. Klutznick (1980)(POWELL, J., concurring)....

The district court has firsthand experience with the parties and is best qualified to deal with the "flinty, intractable realities of day-to-day implementation of constitutional commands." Swann.... The District Judge determined that the record demonstrated that "without promotional quotas the continuing effects of [the Department's] discrimination cannot be eliminated."... His proximate position and broad equitable powers mandate substantial respect for this judgment.

Plainly the District Court's discretion in remedying the deeply rooted Fourteenth Amendment violations here was limited by the rights and interests of the white troopers seeking promotion to corporal. But we conclude that the District Judge properly balanced the individual and collective interests at stake, including the interests of the white troopers eligible for promotion, in shaping this remedy....

The race-conscious relief imposed here was amply justified and narrowly tailored to serve the legitimate and laudable purposes of the District Court. The judgment of the Court of Appeals, upholding the order of the District Court, is

Affirmed.

## JUSTICE O'CONNOR, WITH WHOM THE CHIEF JUSTICE AND JUSTICE SCALIA JOIN, DISSENTING.

... There is simply no justification for the use of racial preferences if the purpose of the order could be achieved without their use because "[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification." Fullilove v. Klutznick (1980) (STEVENS, J., dissenting). Thus, to survive strict scrutiny, the District Court order must fit with greater precision than any alternative remedy.... The District Court had available several alternatives that would have achieved full compliance with the consent decrees without trammeling on the rights of nonminority troopers. The court, for example, could have appointed a trustee to develop a promotion procedure that would satisfy the terms of the consent decrees. By imposing the trustee's promotion procedure on the Department until the Department developed an alternative promotion procedure that complied with the consent decrees, the District Court could have enforced the decrees without the use of racial preferences. Alternatively, the District Court could have found the recalcitrant Department in contempt of court, and imposed stiff fines or other penalties for the contempt. Surely, some combination of penalties could have been designed that would have compelled compliance with the consent decrees.

The District Court, however, did not discuss these options or any other alternatives to the use of a racial quota. Not a single alternative method of achieving compliance with the consent decrees is even mentioned in the District Court's opinion--with the exception of an even more objectionable 100% racial quota.... What is most disturbing about the District Court's order, therefore, is not merely that it implicitly or explicitly rejected two particular options, but that the District Court imposed the promotion quota without consideration of any of the available alternatives. Even in Sheet Metal Workers v. EEOC (1986), the District Court had "considered the efficacy of alternative remedies" before imposing a racial quota.... Thus, the Court was able to evaluate the claim that the racial quota was "necessary." Without any exploration of the available alternatives in the instant case, no such evaluation is possible. Remarkably, however, the plurality--purporting to apply "strict scrutiny"--concludes that the order in this case was narrowly tailored for a remedial purpose. Although the plurality states that it is merely "respect[ing]" the "balancing process" of the District Court, ... it wholly ignores the fact that no such "balancing process" took place in this case. For even if, as the plurality insists, the District Court "was in the best position to judge whether an alternative remedy, such as a simple injunction, would have been effective in ending [the] discriminatory practices,'"... the least that strict scrutiny requires is that the District Court expressly evaluate the available alternative remedies. If a District Court order that is imposed after no evident consideration of the available alternatives can survive strict scrutiny as narrowly tailored, the requirement that a racial classification be "narrowly tailored" for a compelling governmental purpose has lost most of its meaning.

I have no quarrel with the plurality's conclusion that the recalcitrance of the Department of Public Safety in complying with the consent decrees was reprehensible. In its understandable frustration over the Department's conduct, however, the District Court imposed a racial quota without first considering the effectiveness of alternatives that would have a lesser effect on the rights of nonminority troopers. Because the District Court did not even consider the available alternatives to a one-for-one promotion quota, and because these alternatives would have successfully compelled the Department to comply with the consent decrees, I must respectfully dissent.