31 Fair empl.prac.cas. 465, 31 Empl. Prac. Dec. P 33,497 Hanson Bratton v. City of Detroit, and Guardians of Michigan, Intervening

JONES, Before MERRITT and Circuit CELEBREZZE, Judges, and Circuit Senior Judge. JONES, R.

NATHANIEL Judge. Circuit appeal This arises out of the controversy surrounding adoption and administra- voluntary of a action pro- gram Department. for the Detroit Police plaintiffs-appellants herein are a class sergeants police who claim to have been affected adversely operation program guidelines relates to the for the promotion officers from the rank sergeant of lieutenant.1 The appellants assert that the sergeant-to-lieu- tenant of plan element violates their rights (42 2000, VII et under Title U.S.C. § seq.), 42 U.S.C. the Fourteenth § Amendment United States Constitu- tion.

In a of judgments, series culminating with of a entry final order on Novem- 17, 1980,2 ber thoroughly district court addressed of the appellants’ each claims. That (1) the adoption concluded of an plan legiti- affirmative action awas mate response reality prior dis- (2) criminatory practices,3 the operation and proposed of this segment duration and, thus, permissible reasonable under VII and the Title Fourteenth Amend- ment,4 (3) plan, though voluntary, Oade, K. (argued), Ramsdell, Preston Jr. should be protected collateral attack Feldman, Southfield, Mich., Oade & decree,5 judicial (4) into a incorporation plaintiffs-appellants. plaintiffs to a jury were entitled 0. Peter Sherwood (argued), New York trial on issues disputed concerning of fact City, Andary, Detroit, Mich., James Warren plan,6 (5) the validity of the the defend- Bennia, J. New City, York for defendants- judgment ants were entitled to summary appellees. plaintiffs’ with regard to claims for Detroit, City F.Supp. Police Detroit Officers Association v. 3. Baker v. 930 483 (6th Cir.1979), 608 F.2d 671 (E.D.Mich.1979). cert. de nied, 452 U.S. 101 S.Ct. 69 L.Ed.2d (1981), validity 95 this Court addressed the Detroit, City supra, F.Supp. 4. Baker v. 483 at patrolman-to-sergeant stage plan. of this City Detroit, supra, and Baker The district court’s determination there F.Supp. at 844-46. showing had been no intentional dis therefore, plan, crimination and that the violat Detroit, F.Supp. City supra, Baker v. clearly ed Title VII was reversed as erroneous. 846-48. guidelines The case then remanded with for a consideration constitutional issues sim Detroit, F.Supp. 6. Baker ilar to those we reach here. (E.D.Mich.1978). Detroit, F.Supp. 2. Baker v. (E.D.Mich.1980). rating a numerical based on various pay.7 given back other than monetary judgments alia, their individual including, inter factors of each propriety contest the

The promotions exam.11 The score on a written Recognizing turn.8 rulings of these by beginning made then be would of the issues importance difficulty and the working candidate highest-ranking given appeal, this Court has raised positions until all available down the list appel- to each of careful consideration filled. lants’ contentions. not alter action does The affirmative We now hold that the affirmative determining promotion criteria for the basic Depart- Police plan adopted for the Detroit does it alter the minimum eligibility, nor remedy for permissible ment is a valid and for consideration necessary requirements past discriminatory identifiable clearly lieutenant.12 The man- for the rank of rea- practices department.9 in that For the promotion separate that two lists dates below, judg- sons detailed we affirm all the other for for black and compiled, one in this ments rendered the district court those lists rankings on white officers. matter. with the same are then made accordance em- system previously rating numerical I are made alter- ployed. promotions Department the Detroit Police so that white and nately from each list of affirmative ac- voluntarily adopted a set num- promoted equal black officers to eliminate discrimi- plans an effort plan is to remain effect bers. This 50/50 natory hiring and to increase the practices corps is fifty percent until of the lieutenant minority being pro- applicants number of black, to occur in 1990. an event estimated The existing promotion moted from lists. group are a of white offi- appellants The job department in the are three basic levels promotions whose department cers patrolman, sergeant lieutenant. An of delayed or denied because allegedly were goal staffing end of a 50/50 ratio was Their com- plan. the affirmative action all The adopted portion levels.10 is that had all candidates plaint essentially plan pertinent appeal to the instant is that roster, their rank- single been ranked on a affecting guidelines promotions or higher have been than some ings would sergeant to lieutenant. plan. promoted all of those blacks under 1974, con- promo- appellants Prior to all candidates for It is result which the this product illegal tend is the of discrimination. single tion were ranked on a list. Each Detroit, City Accordingly, 7. Baker v. of F.Supp. will not address them further 483 919 (E.D.Mich.1979). appeal. disposition of this in the course of our Accord, 448, Young, F.Supp. v. VanAken 541 objected appellants dis- 8. The have also (E.D.Mich.1982). 460 trict court’s treatment of several issues ad- liability dressed in its decision on the issues in v. Detroit Police Officers Association 9. See Detroit, City supra, F.Supp. Baker v. of 483 930 Young, supra 1, (addressing evidence of at note 994-95, (1) appellants at to wit: claim that discriminatory practices part prior on the of finding rights their un- court erred department). Michigan Employment Fair Practices der the Michigan Act and Art. 1 2 Sec. of Constitu- Id., 680-81, for a full de- 10. See 608 F.2d at violated; (2) tion not the court erred scription of the Board’s overall of the details applicable bargain- finding that the collective plan. ing agreement had not been violated since bargain” there had been no “refusal within service, length (other Id. 11. criteria included (3) agreement; the terms of that by superiors, ratings performance set or service finding court erred in there had been no credits, college degree veterans’ education or process city denial of due since the charter did interview). points, and an oral employ- property right public not create ment had not violated the the Board receiving Only of 70 a raw score candidates charter in event. qualified are on the written exam or better We have considered each of these claims and roster, they fare no matter how listed on the be for the reasons set forth in the district court’s on other items consideration. opinion, find that are all without merit.

883 argue whether, fact, enable us to ap do not determine seriously plaintiffs’ nor could it contended peal, rights have been violated given judicial numerous determinations operation particular plan. of this issue, plans on the that affirmative action illegal.13 See, se Fullilove v. per Klutz II nick, 448, 2758, 448 65 U.S. 100 S.Ct. (1980); 902 Regents University L.Ed.2d A. Title VII 265, Bakke, v. 438 California U.S. In United v. Steelworkers America 2733, (1978); S.Ct. L.Ed.2d 750 Williams Weber, supra, Supreme Court made Orleans, (5th v. New 694 F.2d 987 clear that Title does prohibit VII all Cir.1982); Boston Chapter, NAACP v. remedial, race-conscious affirmative action Beecher, Cir.1982); (1st F.2d 965 Stotts 209, plans. 443 at U.S. S.Ct. Memphis v. Fire 679 F.2d 541 Department, Weber, Court examined a vol- Cir.1982). (6th United See also States v. untary action program adopted Miami, Florida, (5th 614 F.2d 1322 aby private employer guaranteed Cir.1980) and cases cited therein. This is fifty percent openings in-plant challenge true whether the has been raised for black craft-training program employees. VII, under Title see United Steelworkers of Court considered terms and policies America, Weber, al., et AFL-CIO-CLC that, of Title although VII and concluded

443 U.S. private employers were not required to im- (1979); v. City L.Ed.2d Williams plement programs affirmative remedial Orleans, supra; New La Riviere EEOC & imbalances, offset racial the Act does Patrol, 682 Highway California F.2d 1275 not prohibit voluntary ac- race-conscious (9th Cir.1982), Amendment, the Fourteenth tions which are consistent the antidis- Smith, see Valentine v. (8th F.2d 503 policy crimination statute. See De- Cir.1981), both, Chapter, see Boston troit Police Officers Association v. Beecher, fact, NAACP v. supra. 608 F.2d at 689. that, Court has previously found under the circumstances, appropriate affirmative ac proceeded The Court then to examine plans can challenge.14 withstand either whether particular affirmative action Detroit Police Officers Association v. program before it fell within the bounds Young, 608 (6th Cir.1979), F.2d 671 cert. what is permissible deemed under the ambit denied, 938, 3079, 452 U.S. 101 S.Ct. 69 of Title VII. The Court refused to draw 951 (1981). appellants L.Ed.2d The do con any limits bright defining line for the outer tend, however, particular that this affirma permissible of a plan. affirmative action It plan tive action overstepped the bounds of did, however, out single particular some statutory and validity.15 constitutional plan features of the before it which com- pelled the conclusion that that assessing claims, program of was merits these first “on the analyze guidelines permissible we will side the line.” under Unit- we are ed judge Weber, Steelworkers of America v. propriety any 443 given 208, affirmative U.S. at at 2730. program. plan action Review- 99 S.Ct. The ing particular facts of the case aimed at breaking prior patterns before down us principles in those will segregation then racial hierarchy, and it was concurring challenged As Justice 13. Brennan in his 15. noted have un- University Regents opinion VII, of California in der Title the Fourteenth Amendment and Bakke, 336, 265, 2733, v. that, 438 U.S. 98 S.Ct. 42 U.S.C. 1983. Because we find § with 2771, (1978), regard cases, 57 liability L.Ed.2d 750 no decision of the action affirmative Supreme adopted proposi- analysis Court has ever 1983 is under identical to that § Amendment, simply must Constitution be colorblind. under the Fourteenth we Memphis Department, See also Stotts v. Fire a § omit discussion of 1983 until we reach (6th Cir.1982). appellants’ 679 F.2d 553 consideration of the claim for dam- ages. 1, supra. 14. See note Weber, will be “unnecessarily gleaned employer trammel” the to not deemed liability. Williams insulated from Title VII employees and was interests of the Orleans, Riviere City supra; v. of New La measure, to end when merely temporary 1279; EEOC, Chapter, F.2d at Boston longer imbalance no the manifested racial Beecher, at 965. This NAACP v. 679 F.2d existed. lay significant portion behind a conclusion that, facts, no on its Web- There is doubt and analysis holding Young of our er dealt with whether and to what extent a not now deviate from that stance. do adopt could an affirma- private employer F.Supp. Cf. Van Aken v. remain tive action consistent (E.D.Mich.1982). Title VII. This does not the mandates of mean, however, analysis Weber Amendment B. Fourteenth public a case in which a inapposite public employer that a is not To hold charged with a violation employer has been liable under Title VII where its implementation of simi- Title VII for does not program satisfies Weber Title VII programs. contrary, lar On where, here, necessarily inquiry end the specifically public amended to include charged with a employer has also been purview its so that states employers within the Fourteenth Amendment. violation of agencies explicitly and their official analyzed scope Court VII In the subject to Title mandates.16 Weber; way VII it in no intent of Title complaints of minority traditional context that had the before been intimated VII, the analysis employed under Title subject to the strictures of the Fourteenth determining statutory whether a violation Amendment, permissibility the test of applied consistently, has occurred has been Instead, have the same. it is would been employer private is a public whether keep the clear that the Court has chosen to There is no entity.17 reason to alter the we cease analyses two distinct.19 When in the present reach of Title VII context.18 public employer of a analyzing the actions public employer adopts

Where a qua employer begin to examine action, voluntary affirmative action measure which as state validity of those actions Ac- permissibility inquiry appropriate.20 satisfies bounds of constitutional Equal Employment Opportunity significant not cited as 16. See The Act 19. It is that Bakke was 92-261, 2(1), (5), authority Pub.L. No. is- §§ for the ultimate resolution of the Stat. 103. court did not later sues Weber and that the rely again on Weber when it addressed e.g., Dept. Community Texas See Affairs permissible affirma- constitutional bounds of Burdine, 450 U.S. tive action FuIIilove. (1981); Dept. Develop L.Ed.2d 207 Grano v. Columbus, (6th ment of Cir.1980); 637 F.2d 1073 case, opinion In the in this lower Pontiac, Horace v. 624 F.2d recognized between Keith the distinction (6th Cir.1980); County, Calderon v. Martin analysis analysis VII and the full a Weber Title (5th Cir.1981); 639 F.2d 271 Dumas v. Town of governmental employer required a where Vernon, Ala., (5th Cir.1980). Mt. 612 F.2d 974 charged also with a violation of the Fourteenth circumstances, places 18. Under some Title VII however, on, con- Amendment. He went to employers, public private, all whether in a in Weber clude that the standards discussed position. discriminatory prior difficult Where sufficiently the bounds of reasona- delineated shown, practices have occurred and can be analysis as well. bleness in the constitutional employer subject liability to to those minori- NAACP, Similarly, Chapter, v. in Boston ties who have been the victims of that discrimi- 976, Beecher, First Circuit indi- 679 F.2d at attempting remedy past nation. In to acts and implicitly defines the cated a belief that Weber thereby liability, employer to avoid such permissible remedies in the 1983 context § being charged the risk of runs with a violation well as that under Title VII. by of Title VII those nonminorities who are no flexibility explicitly maintains Our discussion longer benefiting employer’s past from the dis- any affirmative in the determination of whether criminatory practices. We believe that it was requirement action meets a constitutional largely unique this burden which Title VII addition, In our review of of reasonableness. places employer qua employer on an particular plan has convinced us that this Weber court endeavored to reconcile.

885 Smith, v. supra, tine cord Detroit Police Officers Association 654 F.2d at 509 n. 11 Smith, supra; Valentine v. Young, supra; text, accompanying nor on the standard Miami, Florida, City United States the method employed under which supra. Id. achieve that interest is to be reviewed. n. 12.21 at Supreme provided Court has not guidance the kind of in the constitutional this found that Court that Weber affords under Title VII. context opinion Brennan-White-Marshall-Blackmun Instead, the Court has issued a series of in Bakke22 offered the most reasonable opinions significant in the course of two a guidance for resolution these constitu- University issue, Regents cases on Though Young tional issues.23 was decided Bakke, supra, California v. and Fullilove v. Fullilove, in the interim between Bakke Klutznick, supra. clear consensus only Fullilove appear requires it does not garnered to be from these various state Fullilove position. retreat from our earlier in any pro ments is that affirmative action plurality preceden- is a decision with little (1) must gram governmental some interest tial value.24 It also addressed the constitu- served, (2) program be must some affirmative action in a tionality of material- how be directed toward the achievement of addition, context.25 In ly distinguishable however, this, objective. Beyond there concurring authored Justice opinion by appears agreement to be no on the nature in Fullilove clearly Marshall reaffirms must be governmental interest which analysis generally upon relied in the initial stake, necessary on the to estab finding see Valen- interest, presence approach lish the of that formulation Circuit’s Smith, (8th permissible Valentine v. 654 F.2d 503 would be even under the strictest 23. Accord such, not, Miami, Fla., Cir.1980); As need nor do we United States v. standards. to, adopt supra choose the Weber standards as deter- at note 19. requiring minative in all cases a Fourteenth analysis. or § Amendment Hardison, 24. See Trans World Airlines v. 2264, 8, 73 n. 2271 n. U.S. attempting 21. After to discern a standard to be (1977) citing Biggers, L.Ed.2d 113 Neil v. applied plans, to affirmative action the Fifth 188, 192, 375, 378, U.S. 93 S.Ct. 34 L.Ed.2d 401 Circuit noted: (1972) (judgment by equally entered an divided frankly entirely not precedential weight); We admit that we are is not entitled to Publications, sure what to make of the various Bakke (2d 329 F.2d 541 Berlin v. F.C. fifty opinions. In over one hundred and (affirmance by Cir.1964) equally divided pages Reports, of United States the Justices is, parties, court mination, between the conclusive deter- mainly agreed have told us have involved, principles but the of law disagree. majority having gained of a the assent Miami, F.2d 1322 United States v. court, being prevents authori- the case (5th Cir.1980). We do not believe that cases); ty But see Marks v. United for other sig- subsequent court’s nificantly decision in Fullilove has States, 430 U.S. 97 S.Ct. L.Ed.2d stance clarified the Court’s may (1976) (holding fragmented court on this issue. position viewed as that taken those mem- judgment on the bers who concurred opinion in 22. Justice Powell wrote the Court’s grounds). narrowest though Bakke where he found plans may illegal, per not be se Fullilove, with deter- the Court was faced Regents competent body Board of was not a congressional mining decision to im- whether make the determination that discrimina- percent plement ten set-aside in favor of society justified tion in as a whole the use of public minority works contracts contractors operations affirmative action within the this issue is distinct was constitutional. That University. concurring part Justice Brennan employment is manifested from the context dissenting part, opinion joined and in in an court, by authored Chief the decision of the White, Blackmun, Justices Marshall and would Burger joined Justice White. Justice and University’s plan have found the respects. valid in all place the Fullilove situa- The Court refused The other four Justices never standards, the Bakke find- tion into one of issue, concurring reached the in constitutional particular ing simply Congress had the of Justice Powell’s conclusion that Regents the Board power 5 of the Fourteenth under Section competent body was not a to conclude plan. Amendment to institute such a appropriate. that such a to allev- prevent public designed opinion Absent an action. past the effects of discrimination Court, iate majority Supreme joined by a .... against grain moves Court, we are of this or an en banc decision Young in is the standard unpersuaded Bearing general at 697.28 608 F.2d of this Circuit.26 mind, stage the law in our longer no the first standard programs to affirmative action approach case, applied to be in this The standard the need for such analysis entails an of then, pages Judge in the clearly set out is i.e., presence with the remedial measures — outset, At Young.27 Lively’s opinion imple in their governmental interest the standard is one which does we note that mentation. It is uncontested that scrutiny”. The review under apply “strict significant interest government has a Amendment should be the Fourteenth disabling effects of identi ameliorating the fatal theory ‘strict in and “strict —not Klutznick, v. Fullilove fied discrimination. fact,’ stigma it is that causes fatali- because 497, 100 (opinion at 2784 at S.Ct. U.S. searching nonetheless.” ty strict —but Powell, “The existence concurring). Justice v. University of California Regents imposi justifies the illegal discrimination 361-62, Bakke, at 2784. 438 U.S. at 98 S.Ct. remedy persons that will make tion of a However, Young, noted in in cases in- injuries on account of whole for suffered against those not volving discrimination Albemarle unlawful ... discrimination. against, “strict traditionally discriminated Paper Moody, Co. v. U.S. [95 precise meaning: takes on a more scrutiny” 2362, 2372, (1975).” 45 L.Ed.2d S.Ct. 280] involving ease a claim of discrimina- [A] Id. major- the white against members of showing past A direct intentional simple image is not a mirror of a case ity to establish required discrimination is not against claims of involving discrimination interest, however. It the existence of this required is analysis minorities. One findings by body if are made is sufficient when those for whose benefit Consti- to act in this area29 competence with the enacted tution was amended or statute reveals “a findings a review of those analy- claim discrimination. A different concluding minority basis for sound sis must be máde when the claimants are under-representation substantial historically not members of a class sub- chronic, handicap past and that the dis jected claims to discrimination. When impeding promo crimination is access [and brought by group are members of a for- of minorities.” Detroit Police Officers tion] subjected to the case merly discrimination (quot 608 F.2d at 694 Association grain Bakke, moves with of the Constitution ing 438 U.S. at 2784). A policy. and national suit which seeks unique prece- analysis commanding consid-

26. Given the existence of an established somewhat Circuit, erations, dent in this we find it ill advised to it is a constitutional issue nonetheless attempt positions to dissect taken in this given and careful con- and must be extensive and similar contexts the various Justices on sideration. predict exactly and to then Court analysis may form of constitutional win the recognize that this element was not a 29. We approval majority. of a Since the part guidelines action laid for affirmative standard, binding Court has failed to set out a opinion in Bakke. Brennan’s out Justice the dissent’s formulation of its own version of Rather, requirement arises out of Justice requirements unnecessary the constitutional Though Judge opinion in that Powell’s case. light Young. inappropriate Lively’s opinion specifically to fol- does choose ap- low the Brennan-White-Marshall-Blackmun concurring opinion 27. See Celebrezze require finding proach, appears herein, some it also infra at 901. appropriate body, competent one Smith, supra In Valentine at note such, similarly addressed the area. As we have simply Eighth appropriate Circuit defined the findings adopting appropriate while issue of degree scrutiny “searching analysis.” as a guidelines purposes of all Brennan’s Justice appropriate 654 F.2d at 509. Whatever analysis. subsequent semantics, recognize though we dealing unique with a form of constitutional governmental ly Once the interest in subsumed into that made here under the established,30 Amendment; some remedial action is thus Fourteenth what is valid un- proceed we must to determine whether the der the latter will certainly pass muster employed remedial measures are reasona under Title VII.32 ble. This includes an examination of any group whether discrete or individual is Ill stigmatized by program and whether Though appellants acknowledge that racial classifications have been reasonably31 the guidelines we detail here are control- program’s objectives. used of the ling, they particular attack this plan’s abili- Regents University of the of California v. ty to fit within They them. claim that the Bakke, 372-76, 438 U.S. at at 2790- S.Ct. promotion program adopted 50/50 was 92; Klutznick, Fullilove v. at 518- U.S. despite the fact there was no 19, 100 at 2795. If the S.Ct. concluding basis for that minority under- criteria, action satisfies these it does representation at the lieutenant level was equal protection violate the clause of or, substantial more importantly, that mi- the Fourteenth Amendment. Detroit Po nority access to that rank was in any way lice Officers Association v. Young, 608 F.2d impeded the effects discrimina- at 694. Accord United States v. fact, that, tion. alleged post-1973, Miami, Florida, 614 F.2d at 1338. the written examinations and promo- other proceeding Before to analyze the facts actually tional criteria minority favored light-of before us in the standards detailed candidates. Essentially, appellants above, that, although note we have claim that the need for redress at this level drawn the distinction between a Title VII and time was simply nonexistent. Absent a analysis and that to be employed when re- justification, redress and in the face of viewing light of the Fourteenth Amend- what the specious deem to be a ment, and have present indicated our un- operational argument, needs contend willingness to employ only the Weber stan- simply significant there is no govern- context, dards the constitutional we are mental interest to be imposi- served still able to analyses combine the two for any sergeant-to-lieutenant affirma- purposes of a resolution of this case. We tive plan. action find that to the extent the constitu- tional may standard be more exacting Additionally, appellants argue that, than that employed Weber, the Title assuming arguendo VII chal- that some affirmative lenge to the Detroit Police plan is necessari- required, promotion quota Young, Judge Lively specifi We note that in 31. What is or is not a “reasonable” use of race cally city’s vary observed that the assertion that the surrounding will with the circumstances program necessary affirmative action for, urgency operation given the need of a satisfy operational improved its need plan. law weighed making The factors to be justification enforcement was a substantial fully determination are addressed more below adoption plan. Accordingly, of such a validity in our discussion of the of the Detroit case was remanded for a determination plan. governmental whether interest justified could be on either the basis of the stage, 32. At this we note that were we to find depart need for redress or on the basis of the other, stricter, some standard were re- operational ment’s needs. Given our resolution quired appropriate, reason, for whatever of the redress issue and our consideration of that we would still find this constitutional- department’s against discrimination Fullilove, ly program valid. As in is ac- general population of Detroit within ceptable analysis under of the “formulas of redress, the context of the need for we find it University articulated in such cases as of Cali- unnecessary validity oper to address the Bakke, Regents fornia Board of 438 U.S. 265 ational needs defense to affirmative action in (1978).” 57 L.Ed.2d [98 750] Chapter, this context. See also Boston NAACP U.S. at 100 S.Ct. at 2781. Beecher, supra at note and VanAken v. supra at note for further discussions regarding validity operational of an needs argument. have practices 693. Where consistent achieve- at tailored to the sufficiently not was impact significant disparate a remedy the to fall resulted in objective of

ment of the races, may intent discriminatory Ti- the among bounds of either permissible within the logi- which evidence by any Amendment. established the Fourteenth tle VII or ac- inference that state supports the cally Affirma- Interest A. Governmental for invidious policies adopted or tive Action evidence in- “logical” purposes. Id. Such the impact,34 of racial cludes the statistics that the Board held Young, this Court the of decisions background historical was in Detroit of Police Commissioners contemporaneous the impact, led to such an findings regarding the make competent to of the decision- of the members statements prior of discrimination and effect existence of actions presence making body, and Department. We of the Police part on the foreseea- impact is disparate which a decision, noting that reaffirm that Id.; Board of Education cf. Columbus ble. findings encompasses body’s competence 2941, 449, Penick, 99 S.Ct. 443 U.S. practices, interde- hiring which relate (1979). L.Ed. depart- and the promotions partmental affect the operations ment’s overall with evidence replete record is of Detroit.33 populace conclusion court’s support district conducting After formal administrative was Police the Board of Commissioners Police hearings, the Board of Commission- Detroit Police finding that correct past consistent, racial discrimina- ers found extensive employed had Department above. three of the areas detailed tion in all intentional discrimination policy overt of findings supported Those administrative opera of its phases in all against blacks Young, findings both our earlier lengthy Keith conducted tions. 686-94, findings of and the de novo F.2d at comprehensive made trial in this case and at Baker court in the case bar. the district discrimination dat findings past written 930, Detroit, 940-958 City F.Supp. riot in first race ing city’s as far back as the (E.D.Mich.1979). historical data stands 1943. Most of this undisputed. Young, we discussed the nature population In 1950 when the Detroit necessary justify of the evidence find black, percent than 2.5 percent F.2d less ing prior overt discrimination. 608 simply university. It was of Police in De- discrimination 33. The Board Commissioners extremely authority society generally, assessing performance troit broad over the has operation police department. performance. Detroit held Justice Powell not its own City adopt- Detroit authority Under the Charter of the regents’ did not educational 1974, ed in the Board of Police Commissioners findings qualify about discrimi- them to make Mayor appointed by with the consent theory society generally. His nation in power to: Council. The Board has the greater Regents had no the Board (1) policies, regulations establish rules and knowledge and no of societal discrimination (2) police; consultation with the chief of review interest, ac- greater need to make incentive or approve departmental budget; (3) re- and objective findings on discrimination curate and opera- complaints about ceive and resolve agency group, general or than other (4) police department; final tion of the act as record, as there was such individual. reviewing authority employee discipline; over Bakke, acknowledgement did not contain oaths, witnesses, (5) subpoena administer in medical ad- of discrimination the existence testimony require production of take past present. policies, The record missions annually reports evidence. The Board acknowledgements replete with here public regard- Mayor, Council and findings and within the of discrimination during ing department’s activities police department itself. plans. year and its future Regents may have had similar The Board of e.g., Brotherhood of Team International 34. See operation authority regard to the States, 337 n. sters v. United 431 U.S. University But there is neverthe- of California. 52 L.Ed.2d 396 n. 97 S.Ct. 339 — 40 distinguishing The uni- less a characteristic. (1977). versity’s program was aimed affirmative action discrimination, redressing past at societal levels, (96 under-representation force was black black and of blacks at all police 3,565 officers) systematic than other than this manifest exclu- per- and less one sion, has proffered. been Detroit Police sergeants cent and lieutenants were See Officers Association v. one 608 F.2d (3 sergeants black black out of At the time total). black lieutenant of city in was the severe race riot The is cor- history of discrimination force that forty percent police black by independent roborated numerous studies black, only a percent was from four to six in response perceived problems made minor which were members of fraction of within, police by and caused the Detroit By the command structure. 1974 when include, alia, reports force. These inter challenged affirmative action was ini- Commission, Michigan Rights Civil tiated, in- again the black had population report Advisory National Com- significantly, yet department creased Disorders, on and mission Civil percent 17.2 black and less remained overall report the President’s Crime Commission. percent than the lieutenants were five in analyzed These and others are full lieutenants).35 (11 black black and white analysis. district court’s historical There no doubt that the inference justifies The record the district court’s discrimination which arises from intentional finding department the police while disparity severe statistical an accu- discriminating against was blacks in em- itemized

rate one. district has police department a white ployment, detail the evidence intentional discrimi- against citizens on the discriminating black 1960’s, nation. For example, Two one in 1943 uprisings, street. massive squad clearly and patrol cars beats 1967, resulted directly and another in segregated. and whites were not Blacks discriminatory treatment black citizens together, assigned ride nor were blacks Thurgood police officers. Justice assigned ever white areas. When patrol report on the 1943 Detroit Marshall his initial tentative were made to inte- efforts uprising, nationally written while a known cars, grate squad some the white officers rights lawyer (quoted by civil the district prior policy struck and the was reinstituted court, 940-41), F.Supp. indicates that full force. Numerous instances dis- “anti-Negro many attitude of members criminatory hiring, practices promotion, of the force to make riot inevita- helped ability position from a patrol transfer other ble.” This and Justice Marshall’s to a one plain day-to-day clothes and the evi- findings are manifest in the mass of officers, treatment of black evidences the of this case. dence adduced at trial systematic exclusion of blacks from of the uprising, large city the 1967 sections deaths, police role meaningful many injuries on Detroit force. were burned and affecting No the severe blacks explanation reported sufficient arrests were —all (submitted Updated representa- disparity order of between relative statistics marked court) composition blacks whites between on the racial city police percentage of blacks in the and the department various ranks of the still show ranks. recruit- dispropor- corps, post-1971 tenant and that the significantly in a and black areas any significant The record before this ing policies tionate manner. had not worked the conclusion of John supports also We also have no change reality. Court in that entitled, Algiers study in his Hershey underrepresentation doubt Incident, (1968) the 1967 p. Motel solely by lower-level discrimina- caused occurred, “unequal jus- part, because riot discrimination in tory practices, but populace the Black experienced by tice is for lieu- process designed specific promotion in the street.” We find cop ... with the We will not reiterate the tenants as well. findings conclusions Keith’s model thorough analysis promotional reviewing findings of the Police which the district court undertook. See regarding past Board discrimination Detroit, F.Supp. Baker respects. correct in all material we are simply 965-979. We note that satis- finding that court’s that evidence, fied district appel- In of this the face illegally denied access to that affirmative blacks had been lants continue to maintain action, necessary promotions working at some level in though by these force, unjustifiable in the police promotion system itself is correct.36 stage. sergeant-to-lieutenant promotion find, therefore, that contention We after argument centers on the fact that was nonexistent the need for redress up litiga- and until the time of this stage at the at which tion, department upon did embark a merit. adversely by affected it is without affirmative action. program concentrated recruiting contend that the efforts in They Program B. Reasonableness of the 1970s, early impact imposi- step must now to the second proceed We tion in the post-1974 of a 1976 increase analysis: constitutional whether the of our the effect of the hiring quota promo- and per- in remedy adopted response quota sergeants for have eliminated interest was suffi- governmental ceived any under-representation minorities objec- ciently reasonable in of those which as “substantial can be classified this entails a previously, tives. As noted argu- element of chronic.” The second police determination of whether the white claim that the appellants’ ment is based on stigmatized by the unduly officers were potential rise in black candidates for lieu- pro- whether the program particular (due tenant the increases in the lower to gram applies the use of racial classifications levels) changes promotion and the reasonably. guidelines virtually given equal, have blacks merit-based access to lieutenant ranks. Stigma a 1. Attachment of

These misconstrue nature arguments stigma Whether an undue results inquiry. of this element of our The district from an affirmative action is a diffi judge was with a faced determination Even once the need for some cult issue. whether decision to adopt the Board’s case, given in a redress is established voluntary affirmative action in 1974 that due care Court has cautioned permissible. There is constitutionally those who must be taken to insure no doubt that as of 1974 there was severe its disadvantaged by plan, in underrepresentation of blacks the lieu- claim be support that some of those adduced at trial indicated There is extensive the record findings. years, department administering had “no doubt” that the these For em- the tests had, times, ployed aptitude long promotional been discrim- tests which have exams IQ addition, recognized having impermissible inatory. officers also been an In certain black fact, impact subjectively expressed adverse the tests their on minorities. a conviction discriminatory by department early specifi- ratings used on were reflected the set service cally prohibited by Finally, supervisors. the Uniform Guidelines on the statisti- bent of their by Employee adopted support Selection Procedures raises an inference cal data itself EEOC, 1607.14c(l) regard. selec- § C.F.R. in this conclusions the district court’s job Testimony tion which is to be related. beneficiaries, both, are unduly stig- not the kind of program affirmative action imple- implemented. Detroit Police Board improperly matized drawn or self-esteem a group of whites as is not program. mented affirmative action While generally endangered true, however, by attempting this is remedial race-con- remedy past militating favor, in their acts programs under scious action only situation arises in first plans hostage must not held instance be those because their social dominance.38 The adversely impacted who claim to be unless program blacks, purpose aid they im- constitutionally can demonstrate is not aimed at fact excluding whites —the permissible stigma. Unless this is required, equal whites have access to the lieuten- the legacy of racial discrimination would tempo- ant ranks and that the is only never remedied. Racial classifications support rary clearly this conclusion. per which favor minorities do not se result instances, the simply such majority a stigma. such As Justice Blackmun being subjected to a what amounts observed his Bakke opinion, order to “[i]n constitutionally stigma. invidious get we beyond racism must first take race into account ... Second, order to treat some believe where those hired persons equally we must first treat them or promoted operation of affirmative differently. We dare cannot —we not —let are qualified position for the the Equal Protection perpetuate placed, Clause ra- constitutionally no cial supremacy.” impermissible stigma U.S. at attaches. Valentine Smith, at Smith, 2807. the context v. today, supra. Eighth the Cir- address differential cuit a complaint by treatment is neither considered a constitu- instituted tionally applicant teaching position offensive nor a at unduly stigmatizing Arkansas University. and we refuse to State The record invalidate the Board pro- gram specifically despite on that established that receiv- basis. ing the highest many the recommenda- First, though stigma undue be must committee, screening tions the Ms. cautiously guarded against, plan a designed Valentine the by University. was not hired remedy to the effects of past discrimination The decision made a was to hire black edu- is merely not invalid because some individu cator in her stead. There is no doubt that als not in any culpable way respect to that decision “substantially was motivated past discriminatory acts must bear the by by imple- a race-conscious choice ASU to preference. brunt the racial v. Valentine plan.” ment its affirmative action 654 F.2d Smith, 654 F.2d at 511. “When effectuat long at 507. The court that as concluded ing a limited and properly-tailored remedy qualified black candidate was to fill to prior discrimination, cure effects of position, as the facts in the record estab- such a ‘sharing by the burden’ innocent was, lished she be no stigma there would parties is not impermissible.” Fullilove v. parties involved. The court not- Klutznick, 484, 100 atU.S. S.Ct. at 2778 ever, majority group rarely, ed that the is if (opinion of Chief Burger). Justice stigmatized. partic- This deemed be This is simple case “not a mirror true or oth- ularly party parties where a image involving of case claims of discrimi filling position qualified, erwise were against nation minorities.” Detroit Police guaranteeing negative thus that no infer- Officers Association v. Young, 608 F.2d at quality ence could regarding arise 697.37 We are dealing with majori a white passed credentials of those over. Simi- ty which has traditionally benefited from is larly, beneficiary where the the prior systematic discriminatory prac qualified, stigma there be can no caused tices which have given rise perception they need for a would somehow be text, supra page 37. Treatment, Cohen, See at Nagel, Preferential Eds. (1977) pp. Scanlon 3-16. Thomas, Nagel, “Equal 38. See Treatment and Discrimination,” Compensatory Equality and party quali- If a is not reasoning, the affirmative action. on this undeserving. Based instance, position in the first fied for court concluded: do not action considerations is the risk qualified, applicant Where the play. into comé pre- considerably less because stigma perform the task can sumably person Propriety of the 50/50 Racial Classifi- case evidence adequately. The cation Georgia Mitchell only shows not [the fully qualified applicant] black promotional of the 50/50 The use performed very well job but also she a “test of judged against is to be preference We cannot invalidate as a teacher. Detroit Police Officers reasonableness.” ap- its plan, affirmative action or ASU’s v. 608 F.2d at 694. See Association here, supposi- to the facts on the plication Beecher, Chapter, also Boston NAACP might stigmatized. tion that someone 977; Miami, 679 F.2d at U.S. Florida, This test encom 614 F.2d at 1338. Id. at 511. of considerations which passes variety reasoning apposite We find this prefer given the nature of may vary trial, plaintiffs us. At situation before and the circum plan to be considered ence argued they department surrounding implementation. its stances promotion guidelines. harmed the new Court, we do not now Like the passed had been They contended guarantee what will attempt to define manifestly over candidates who were purposes. for all of reasonableness finding qualified less for the rank of lieutenant. lead Rather, those factors which we address implication arguments The clear of their that this is reasonable us to conclude that, quality after of the officers record reveals about the light of what the level than could was somehow less We find that Department. Police Detroit should have been. The district is “substan (1) affirmative action large portion opinion dedicated a of its objective of remedia-' tially related” to the merits of this Keith argument. discrimination, Detroit Police of prior determined that the black officers who at Young, Association v. 608 F.2d Officers promoted were out of were as sequence of racial classifications re (2) the use substantially the equally qualified as method for only legitimate the flects promoted officers in strict rank order. light in achieving objectives those There is support extensive in the record for practical the urgent remedy need for a and minimum, this conclusion.39 At we are con- the effective use of placed limitations on that, vinced the record evidence from means, id., (3) plan temporary the other date, 1974 to were only well-qualified blacks nature, long only to endure so in scheduled promoted corps.40 to the lieutenant In such legitimate necessary to achieve its as is stigma instances we find that no of a con- Smith, 654 F.2d at goals, Valentine magnitude stitutional attaches to either “unnec (4) the does not otherwise claiming adversely impacted by those to be the interests of white trammel” essarily or its beneficiaries. Detroit Police promotion. candidates been, recognize We that there has F.2d at Young, Officers Association be, continues to misperception regarding one of these characteristics Though no operation of affirmative action. We determinative, they a whole taken as .is times, that, have persons no doubt at some particular a conclusion that this justify may placed have been in for which positions of what is constitution is within the bounds unqualified were in effort dis- reasonable. ally credit affirmative action. Whether these in Police fact, The Board of Commissioners hirings promotions have occurred in present in the case the district court they have never been and would not now be justifiable Young, found three identi- the law it Court in under as relates to and this Detroit, F.Supp. 39. Baker v. at Id at 979. 970-79. injury

fiable forms black citizens city from within the and that the city was arising past of Detroit employment approximately fifty percent now black. police department. discrimination in the findings In order rebut the Board’s First, in 1974 there not many were as black discrimination, and show reverse plain- positions officers various in the depart- tiffs contended at trial that there was no as ment there would have been in the ab- need for redress because there was dis- no Second, sence of discrimination. during crimination in employment police de- period major roughly a discrimination — partment. In order to posi- establish this twenty-year period from the end of World tion, plaintiffs also contended that the War II to the mid-1960s—there were fewer figures relevant market fig- labor black officers than there otherwise would area, metropolitan ures for the Detroit fig- Third, have been. a consequence of em- ures justify which would a much per- lower discrimination, ployment black citizens suf- centage of the police department blacks in fered indignities harassment and at than the for the figures City of Detroit. police hands a white force. city’s evidence concerning 'the dis- crimination, the statistical con- evidence legislative the chief body of De- cerning percentages city population adopted troit for the the require- first time and the department’s source of the labor city ment that employees, including police pool, opinion and our 1979 officers, city live within the limits. The plaintiffs grounds appeal. shifted on Board of Police Commissioners estimated longer no contend that there had in 1974-75 population city discrimination, been no prior nor approximately fifty percent black.41 It metropolitan area controlling. statistics are did find 1974 that the lieutenant Instead, they contend that as of 1974 there corps fifty would be exactly percent black was no need redress at the lieutenant Rather, in the absence of discrimination. it that, were, level and even if there fifty discrimination, found that in the absence percent was, reality, designed ratio to do proportion of black lieutenants would more than wrong, redress an identifiable considerably higher than impermissibly it was aimed achiev- time approaching would be fifty per- ing a racial balance. cent mark. The Board concluded hiring promotion 50/50 pro- ratio would argument The first has dealt been with in vide reasonable and remedy even-handed detail ap- above. The second rests on the in view of injuries all suffered pellants’ contention that promo- the 50/50 Detroit, black citizens of the fact that at policy necessary exceeds that to offset (1973-74) time only percent five discrimination. They identifiable black, lieutenants were and the fact claim that fifty percent a 50/50 ratio and a the black population of was goal Detroit to end not likely justifiable is since their data increase as a percentage the whole. argu- reveals that there no to is merit ment that the lieutenant ranks would have The Board did not employ an economic or been fifty percent past black 1974 absent expert statistical in 1974-75 to determine discriminatory practices.42 The data to the relevant labor during peri- markets which the refer of their od of discrimination. It did de- try not to expert, own statistical Mr. Alan Feehter. precise termine the number of lieutenants who would have been hired in the Taking absence account the particular quali- into of discrimination. simply It concluded necessary entry fications for into the police police most the past officers in had department, come Mr. Feehter rel- calculated the Although impossible argument respect to determine Plaintiffs is as fol- popula- exact racial characteristics of Detroit’s lows: 1974-75, the 1980 census shows that quota purport- That far the 50/50 exceeds its population percent. Detroit’s black was 63 The ed also com- remedial nature is confirmed figure approximately percent. for paring fifty goal 1970 was 43 percent quota Thus the Board’s estimate of Detroit’s black .... relevant labor market data population in 1974 was unreasonable. Mr. Feehter determined that the relevant la- 894 compared of that market new hires between share market for

evant labor depart- population black-white following table summa- 1945 and 1973. concerning the black- ment: testimony rizes his Pool, Composition and Labor

Comparison, of Hires Racial 1945-1978 Difference Black Hires Pool Pool Labor Labor Year Actual) (Estimated (Percent (Total / Hires) Nonwhite) 5 37* 42 13.8 301 37* 44 7 304 14.4 70* 17 87 577 15.1 36* 45 9 15.7 288 7 60* 67 414 16.3 3 50* 53 313 17.0 28 19* 47 258 17.7 33* 27 60 18.3 328 10 26* 36 18.9 189 7 65* 72 19.6 369 11 55* 66 20.2 327 11 28* 39 20.9 187 25* 9 34 21.5 158 0 3 3 22.2 14 19* 7 22.8 26 116 21 18* 3 23.5 90 41* 7 48 25.1 192 64* 74 10 25.7 278 36* 9 51 28.8 179 36* 29.9 36* 31.5 quota percent again Police recommended that the black. This bor market was 38.4 represents point ranks were twelve difference from until lieutenants continued fifty percent fifty percent Notwithstanding quota imposed the rec- black. contrary, following year in- in 1974. to the the Chief ord evidence Moreover, percent 38.4 non-white labor Police Commissioners formed the Board of pool pool fifty percent end-goal appropri- is not the relevant labor for 1973 that the shows for rank of lieutenant. record labor the relevant market ate because every promoted virtually person fifty approximately percent black in six rank a minimum of of lieutenant had Therefore, Department. years one interpolation linear Mr. Fechter’s method of years go six in time pool must back least labor ... the non-white shows market order to determine the relevant labor fifty percent at least black until would not be Accordingly, as of 1974 even lieutenants. again, labor is the relevant 1980. But of the relevant labor the most liberal estimate entry pool for lieutenants. level—not lieutenants would be the market for years Adding six it takes minimum of thirty percent. [App. pool non-white labor lieutenant, relevant non-white become words, given In other the minimum 1760]. pool reach would not labor for lieutenants progress period one it takes for time fifty percent until 1986. lieutenant, entry level the rank of to the no merit clear that there is It is therefore totally at relevant it is inaccurate to look the argument lieuten- the that the to whatsoever entry figure for blacks at the labor market fifty percent been would have ants ranks level .... past As absent discrimination. black in 1974 consistently ignored dis- has these demonstrated, equity achieved has been lieu- insist that the tinctions and continues to April at the ranks lieutenants fifty percent black tenants ranks would quota excessive therefore 50/50 past the Dis- discrimination. When absent unreasonable. case to Board trict Court remanded this pp. Reply March Brief filed Plaintiffs’ to of Police Commissioners directions 8-10. date, the Chief formulate a termination

895 Year Labor Pool Labor Pool Difference Black Hires (Percent (Total (Estimated Actual) / white) Hires) Non 1966 33.1 205 68 38 30* 1967 34.8 323 112 71 51* 1968 46.1 519 239 180 59* 1969 42.9 561 241 127 114* 1970 39.5 495 101 196 85* 1971 40.5 656 266 170 96* 1972 47.9 72* 43.0 62* * Statistically significant from zero at .05 level of probability. data, upon therefore,

Based that ar- appellants that the 50/50 ration is improper gue that in hiring a race-free environment that such if a ratio were nevertheless proportion black lieutenants would employed it should be discontinued at have been significantly fifty per- less than point i.e., when redress has completed, been argue cent 1973 and 1974. They that point at no later than when thirty per- an increasingly black labor for pool new cent figure has been attained.43 Since hires, it takes time for the percentage thirty percent figure was reached blacks in the police department equal to 1978-79, appellants time of trial in ar- percentages current in the blacks labor gue program terminated should be addition, market. they contend that Mr. then, now. Their complaint, centers on pool promotion Fechter’s labor to lieu- validity of the top twenty percent tenant would be considerably less than that affirmative action program, both in in- for new hires because there is further application terim in the determination delay of years recently- several before a of its stopping point. argu- We find their hired officer eligible promotion becomes ments unpersuasive. Thus, to lieutenant. argue this data and these additional factors First, assuming that we were for consideration establish the error in bas- accept appellants’ justifi claim that the ing this affirmative goal on the sta- goal able end should fall somewhere short tistical data for city’s overall popula- percent of the fifty figure, that would tion. invalidate the implementation of a 50/50 appeal, On the appellants agree now promotional ratio as guideline in 1974. the lieutenant corps should been have more Even guideline the use which exceeds percent than five actually black as was the percentage of minorities the popula but, case in reassessing 1973-74 after their justifiable tion would be a temporary case, the appellants now argue attaining measure for an appropriate end past absence of discrimination the 1973 ra- goal. e.g., Allen, tio been, of black lieutenants See NAACP v. 493 F.2d would have at most, assert, (5th about thirty percent. They Cir.1974) (approving 50/50 black- argument, level, necessary In the course of oral Cele- no redress was at this such a plaintiffs they brezze appears judicious asked the whether stance been have contending thirty percent However, goal stage. that a given disposition end our Despite disclosing argument appellants’ regarding reasonable. the data the need for thirty percent figure, plaintiffs redress, proceed refused will their rea- consider they degree arguments admit that considered even that sonableness of the data light point. affirmative action to supplied be “reasonable”. In have on this argument, i.e., of the first branch of their depart- that the of the fact action. percent until 25 of state hiring ratio white were far corps and the lieutenant black). The 1974 affirmative ment troopers were of black nondiscriminatory level imme- not and did not below could program action 25-year period for the police effects of discrimi- officers diately rectify the margin- During lag we do not believe department. 1945 to nation in black lieu- of the affirmative adoption increasing percentage ally time after exist began force that would police figure above the action tenants is an un- nondiscriminatory the desired approximate been closely hiring to more had redressing composition but al- nondiscriminatory remedy racial reasonable The alterna- goal. wrong. of that ways fell short replacement in 1974 en mass

tive —the in the De- Third, hiring discrimination with new black lieutenants existing white injured only has not department police troit have avoided the con- lieutenants —would who black citizens finite number of obviously would discrimination but tinuing po- to become the opportunity were denied lieutenants. the white unduly have harmed rank to the promoted officers or to be lice continuing discriminato- The redress of the court found that lieutenant. The district hiring promotion prac- past effect of ry subject city was of the population the black use of at least a 50/50 justifies tices predominantly to discrimination a ratio. pat- a The record establishes force. police of out- in the form Second, tern of mistreatment purporting rep while by white officers discrimination right lieutenants percentage black resent well as more subtle black citizens as against in a discrimination- have existed that would handling complaints environment, discrimination plaintiffs’ thirty percent free number of witnesses investigations. A the full extent of fails to reflect figure end many such inci- to the fact that pre-1974 discrimina testified department’s the police avoided had black could have been figure only refers dents tory practices. The the interaction who, overseeing been ac lieutenants of black lieutenants the number black citizens. There police officers with promot should cording plaintiffs, to the depri- of unconstitutional pattern to the is a clear bring up the force ed in order identifia- specific, of a rights bench vation of the figure. proposed This appropriate population by of the Detroit segment for those blacks ble mark thus fails to account de- segregated police have white members of the who—absent discrimination —would a injury was itself direct partment. have left the This and would become lieutenants interdepartmental discrimina- we cannot result of the force 1973. While or retired fully documented. of this tion which is so precise size presume to establish dedicated its existence. 1974 affirmative convinced of group, we are redressing all deleterious effects intangible stigmatizing addition The redress treatment, prior practices. department’s the members effects of invidious population as injury to the black deprived higher group of this beyond goes which justifies benefits commensu whole salaries and retirement force limitation thirty percent work lieutenancy. The Fourteenth rate with ap- been imply may have Amendment does not forbid consideration injury by propriate.44 and redress of this opera- problem recognize couched in terms have ad- 44. We that others who precise needs: have done so in the tional dressed these issues operational context of a needs. discussion in, important these cases is An factor prob- recognized unique The First Circuit departments police fire involve specifically desig- those lem which arises when city metropolitan has a large that now of a public protect nated to work with and percent minority population of at least wholly composition to reflect the racial fail noted, public Wyzanski .... As population. That court’s consideration police racially requires balanced interest Beecher, F.Supp. [655] force. Castro

897 Finally, the “unnecessarily the broad-based attack on use cause it somehow trammels” city-wide is population figures simply the interests of the white officers. While a unsupportable. ap The has preference system requires Court which the out- proved composition the of racial com right discharge employees use of white or cre- parisons employers’ between work forces ates an absolute bar to all advancement and the area-wide general population may regarded as be as an undue burden on probative of in employment employees, discrimination those white we have neither of cases, e.g., discrimination see Hazelwood those situations the instant case. We States, v. already School District United U.S. have indicated the mere that fact 299, 308, 2736, 2741, L.Ed.2d that non-minorities bear burden in some (1977); Int’l. Brotherhood of v. effectuating goals Teamsters state’s does not com- States, 324, 337-43, 97 United conclusion plan U.S. S.Ct. mand a that is unrea- 1843, 1855-58, 52 Concern (1977), L.Ed.2d 396 sonable. for the interests of white is specifically employees operate this Court has held in the not meant to as a bar achievement challenges action, legitimate context to of those goals. Detroit goal “a See Police Officers Associa- propor which seeks same racial Young, Where, tion v. 608 F.2d at 696. among tion as in force employees the labor here, plan does not the promo- mandate will ordinarily be reasonable.” Detroit Po candidates, unqualified tion a significant lice Officers 608 F.2d Association of white have employees pro- number been at the presumption 696. In addition to the plan, operation moted under of the ordinarily be reasonableness would plan rights does otherwise hinder data, of such district accorded the use employees merely these and the is a specifically prerequi considered the nature, we temporary find inter- police sites for employment force ests of the white officers have not been any, those impact, if considerations “unnecessarily trammeled.”46 appropriate should have in an calculation of the relevant labor market. Keith We affirm the court’s district de accepted city-wide figures use a the use of 50/50 termination ratio light of the prerequisites employment, fifty percent and the establishment of a end not in contravention of them.45 goal achieved 1990 is reasonable in be Therefore,

We all of our respects. con reject appellants’ also contention there a gov- clusions substantial constitutionally infirm be- [1973], expert plementation particular at 660 We do not need testi- of this affirmative ac- mony that, point pub- remedy. to make unless safety city departments lic growing minority population, of a reflect its Detroit, F.Supp. 45. Baker at there bound hostility antagonism, to be and strife between 958-62. citizenry departments. and those The poor police pro- inevitable result is fire argued plaintiffs have that the un- tection for who need it those most. because, necessarily employees burdens white We regard have chosen deal with the with situation level, promotion particular white em- citizenry to the Detroit as an element of ployees directly impact must feel the of its analysis. our redress This is so because They expectations operation. claim that the neatly categorized Detroit cannot the issue destroyed white officers are when identifiable they “operational within the bounds needs.” We take, receive, qualifying score on a generalized are faced with far more than a need promotions. written exams and still are denied police for a force which reflects the com- racial appellants draw between a distinction position city. faced, rather, We hiring and that at the level where the situation population subjected a that has been consti- impact is diffused and it is whether a unclear indignities tutional as a direct result minority applicant place given of a was hired discriminatory practices which have created given white. For the reasons detailed police and maintained white-dominated force. opinion, reject this contention district court appropriate Whatever the such semantics in jaundiced and choose not “take a view” situation, we are convinced that the facts promotions. affirmative action in Bak- toward present constitutionally justification (a valid Detroit, F.Supp. at 985. er v. governmental interest) substantial for the im- clearly Court decision establishing intervening Supreme interest served in ernmental unduly not Keith’s deci- plan that the does undercuts the basis of plan we find group, judgment individual or on these stigmatize any grant summary sion to constitutionally per- not, however, plan require that the Detroit .issues. It does give effect to an ultimate Court to refuse to missible.47 on their 1983 ruling against plaintiffs § IV claims. damage at- appellants’ In addition to the central immuni- qualified good faith issue of itself, a action tack on the affirmative only as it ty is relevant in this case insofar of error have assignments number of other right recover plaintiffs’ affect may regard to the various rul- been raised injuries on for which the damages based the district in this mat- ings made have, however, upheld is liable. We city appellants ter. The contend dis-. action conclud- plan, Detroit’s affirmative (1) dismissing plain- erred in trict court liability no ing city has other complaint money damages tiffs’ are entitled to no relief. As plaintiffs (2) request their pay, denying than back in such, plaintiffs would whether or not relat- jury for a trial on the various issues longer from relief is no otherwise be barred validity the affirmative action ing to the Accordingly, this case. we de- an issue in (3) voluntary plan, incorporating in im- question qualified cline to reach the plan into its final decree. here. munity presented Complaints Money Dismissal of For A. Trial Right Jury B. to a Damages under 1983 § 31, 1978, the district court July On 5, 1979, September an order dated plaintiffs’ de denying entered an order granted district court the defendants’ mo- City trial. Baker v. jury mand for a partial summary judgment tion for and dis- Detroit, (E.D.Mich.1978). 379 F.Supp. 458 42 plaintiffs’ missed the claims under U.S.C. ruling now claim that appellants monetary damages 1983 for all other § the effect of violat was erroneous and had Detroit, pay. than back Baker v. right jury to a trial ing their constitutional F.Supp. (E.D.Mich.1979). In that find, under the Amendment.48 We Seventh order, the court concluded that the defend- however, validity of an that the issue of ants faith possessed qualified good immuni- law, question action is a and, therefore, ty could not be liable held to be the court and not the determined damages under 1983. The § Co., v. Novack Investment jury. Setser light now contend that in 962, (8th Cir.1981) (en banc). F.2d 969-70 subsequent Court’s decision in Owen of this variety A of factors militate favor 622, Independence, 100 S.Ct. U.S. conclusion. (1980), 63 L.Ed.2d 673 the district court’s decision was erroneous as a matter First, discrimina the fact of law. factual circumstances sur tion and the of this rounding operation Owen, specifically held that Court previously determined either uncontested has no municipality immunity for its con- Young. The task before our decision may stitutional violations and that it whether, Judge Keith was determine good assert faith of its officers or record, justifiable redress was agents liability defense to under for that redress 1983. Id. at This the method chosen and/or § noted, by jury preserved, right shall be 47. As the conclusion is also of a trial determina- appellants’ complaint. by jury, otherwise reex- tive of the Title VII tried shall be no fact States, of the United amined in Court provides: according 48. The Seventh Amendment the common to the rules of than law, law. In suits at common where the value in dollars, controversy twenty shall exceed do determined, was valid. Determinations which no Had district court trial,49 liability phase than of this significance more attach constitutional that the Board wrongfully against had discriminated to historical facts are conclusions law. Williams, adopting officers the affirmative Downing v. See 624 F.2d plan, may have then been (5th Cir.1980); appropriate to v. City cf. Glasson of Louis impanel jury disputed determine ville, ques (6th Cir.1975). 518 F.2d tions of fact on the issue of whether the Second, in order to assess the valid city engaged had in the discrimination of ity plan, an affirmative action a variety against as part white officers a of a “cus of must factors be considered and evaluated tom policy” or under Monell v. New York of past the nature of the discrimina 690-95, City, 658, 2018, 436 98 S.Ct. U.S. tion and relating all factors to the particu 2035-38, (1978), 56 L.Ed.2d 611 and whether lar method chosen. The Court’s the good individual defendants acted in refusal adopt bright to line standards to faith under of Independence, Owens guide the lower courts the and consensus , 622, 1398, 1418, 445 U.S. 100 S.Ct. 63 657 among the application Circuits of case, (1980). however, The L.Ed.2d 673 strict inappropriate, standards is therefore stage never the reached since district the emphasizes degree to which this evalua found, agree, court and the Board tion is to be a flexible one. See Setser did not act wrongfully the first instance. Co., Novack Investment 657 F.2d at 696. Finally, noted, as the district court “the uncertainty The inherent in the law this gravamen injunctive of this action is relief area, when magnitude combined with the of pay and back for alleged employment dis- resolved, the be places issues to the neces crimination.” City Detroit, Baker v. sary peculiar determinations these cases question F.Supp. 383. The of whether ly practical outside the abilities and limita city the and its officials committed a consti- Id.; jury. Bernard, tions the cf. Ross v. jus- tutional tort under 1983 which would § 531, 396 U.S. L.Ed.2d 729 tify damages, arises in this only case inci- (1970). dentally only after the district court Third, questions in this case regarding enjoin has determined whether it should past the Board’s findings discrimination plan as invalid under Title VII and the analogous to cases in which the court Fourteenth Amendment. The fact reviews the decision of an administrative parties stipulated to a bifurcation of the body order to insure that its actions are emphasizes trial this result. order to within constitutional and statutory limits. right damages establish the to arising under Although the district court under § plaintiffs would be to required § gave de novo review to the Police Board’s go beyond showing unconstitutional reverse action, it was still essentially reviewing the discrimination; faith bad individ- findings and conclusions of an administra- uals question city whether the tive taken agency upon notice and due de- according had acted policy” to “custom or liberation hearings after formal were con- yet to be would need resolved. The district ducted. Neither federal nor state courts adjudication equitable court’s issues have traditionally juries used to review and relating statutory to the and constitutional resolve disputed questions of fact this plan must validity logically come Jaffee, context. Judicial See Control of prior damages In such § .issue. (1965); Administrative Action 546-49 instances, law heritage our common does Stern, Findings Review of of Administra- suggest jury that a have should been tors, Juries, Judges and 58 Harv.L.Rev. wholly equitable to with the employed deal (1944). phase court’s determination.50 parties, by agreed stipulation, plans may objected ato bifur- Affirmative to trial, VII, liability cation of this issues of Title Four- § § under 1983 and the reaching damage unique be determined before nature teenth Amendment. questions. determining validity questions involved in plan jurisdiction operation Final Decree over the District Court’s

C. (1) the have a parties in order to assure that 17, 1980, the district court On November object in which to to actions forum of law” which had the “adopted a rule decree, the terms of the appear violate plan, the Board’s incorporating effect of (2) changes no will be operation, into the final it was then in determines implemented unless Detroit, Baker v. judgment. changes those are consistent with the (E.D.Mich.1980). 846-48 For F.Supp. order of that decree. The court’s purpose below, enumerated we find that the reasons merely operates protect in this case protect court’s decision to the district inappropriate changes Board’s appropriate. which would vitiate its collateral attacks “rule examining propriety of this discourage voluntary effect. Rather than law,” carefully we must define what we action, then, incorporate decision effect of that to be interpret ruling judicial likely to en- plan into decree particular circumstances which we find Board, Those, faced it. like the courage justify such result in this case. adopt whether or not to with the decision of began This case with a consideration of may readily action more do any affirmative governmental employer may what a volun- efforts, their they so if can be assured that tarily remedy prior in an effort to dis- do court, proper a federal will by once deemed we do not crimination. Since now hold that protected changing from a mere be constitutionally permissible bounds future attacks which guard or from with what a govern- action are coexistent required Retaining would be to fend off. may constitutionally mental be employer jurisdiction provide protection will this do, required appear it would freez- completely tying while not Board’s ing voluntary plan into an immutable appropriate with future regard hands bemay inappropriate. decree Such a result alterations. may effectively remove some of the discre- The facts this case indicate that such implementation tion over the of affirmative jurisdiction particularly ap- retention of is plans action is to be afforded those propriate. making findings After extensive dealing the realities problems with the existence of discrimina- regarding context, employment even gov- where by Depart- tion in and the Detroit Police ernmental employers concerned. See ment, only the district court that not found Weber, United Steel Workers of America v. constitutionally was the plan Board’s itself supra; EEOC, supra. LaRiviere v. There is affirmative ac- permissible, but that some danger also removing some of the remedy actually constitutionally tion incentive to adopt plans broad because of a required. Continuing jurisdiction is the being fear of locked into more than an only logical to such a case. approach involuntary judicial decree would otherwise way, degree some of discretion over the require. The district court’s final order in voluntary plan adopting this case does not is retained those operate to “freeze” this however, and, while, time, plan, hence, allowing it give does not rise same will, plan to such court to insure at mini- concerns. mum, satisfy what the Constitution re- The district court likened its deci quires. sion in this case to approximates one which judicial approach promote situation which exists when a This will also enters a consent approving jointly economy. factfinding decree Further and court agreed to plans. action proceedings necessary would otherwise be if cases, those the court effectively retains were abandoned and black officers any given program requires unique way upon plaintiffs right jury forms of reflects to a analysis contexts; in each of these areas. Our decision do now trial other we § today upholding beyond put go the district court’s denial of a before us. the issue jury trial in the affirmative action context in no to sue for some or fur- tion case was compelled remedy, addressed this court made, ther attacks on be Detroit Police Officers Assoc. v. against, and defended in state court. (6th Cir.1979). F.2d I believe that this clearly hostility record reflects toward opinion Young controlling court’s is the pursue any Board’s and a desire to precedent in and that con this instance or colorable state federal claims in opposi- analysis Young stitutional contained in is thereto, tion even in the face of extensive consistent with the judgment the district judicial present- considerations of all issues Therefore, I agree judg court. ed. We blink at reality. cannot ment of the district court should af Accordingly, affirm district firmed. operates court’s final order insofar jurisdiction of, operation retain over the MERRITT, concurring Circuit Judge, changes in, the Board’s affirmative ac- program promotion part dissenting in part. for to the rank of lieutenant.51 II.A, I, III, I concur in Sections IV.A and IV.B of the opinion filed Jones V reasoning the Court. I not concur in the do Challenges plans to affirmative or the of Sections II.B result the reason- present a number difficult and sensitive ing Section IV.C. It struggle. issues which courts must one, however, cases like this where so clearly presence facts establish the I. THE COURT NO TO HAS POWER calculated, prior discriminatory practices, MAKE THE AFFIRMATIVE AC- that the need such programs remedial TION PLAN MANDATORY most acute. Upon careful examination Court, In Section of the opinion, IV.C the Board, the plan adopted by the Police we Court, affirming opinion District of the valid, are legitimate convinced that it is a City has ordered the re- plan to enforce response to this identifiable discrimination quiring the or Department Police to hire implemented and it falls within the VII, permissible bounds Title 1983 and promote every job a white officer for other § the Fourteenth Amendment. We therefore plan all opening. governs The and hiring affirm district court’s order upholding promotion Department. in the Police If the plan and approve protect decision to of Detroit has two vacancies in the City plan by continuing jurisdiction its over Department, pro- Police it not hire may or operation. depending mote two blacks or two whites Since also find that the determination availability on and The qualifications. validity plan of an affirmative action Court has ordered that al- City must question is a of law for the court and not fill the black ways two vacancies one jury, appellants’ for the claim order, one white. Our Court’s like damages for has our been mooted § effect, District Court’s order to this irra- is issues, resolution of liability all of the illegal tional constitutes an exercise relating district court’s orders to this mat- judicial power. ter hereby Affirmed. Today, according to the latest decennial CELEBREZZE, Judge, Circuit Senior census, population Detroit’s is more than concurring in result. census, According black. to the De- 63% 1,203,339 population people, troit has a regarding appropriate issue con- benign 758,939 413,730 stitutional in a analysis discrimina- of whom are black and against justifica- purpose guarding impermissi- 51. Given our characterization for changes plan, plan for this element of the district or- the notion that the court’s ble der, appears discriminatory clearly simply against blacks dissent miscon- is itself is portion opinion. strues Additional- without merit. ly, jurisdiction merely since the retention the District the order of I would vacate Population white. See General whom are Census, the case to Michigan, 1980 and remand respect in this Characteristics Court PC80-1-B24, Bureau of Cen- con- States with instructions to United the District Court A court-or- sus, 24-418. page with the Table now be done what should sider hiring that forbids plan dered of 1980 cen- plan action affirmative proportion promoting blacks plan that the discrim- indicating figures sus pool appears patently labor population and against inates blacks. the black citizens discriminatory against black, is 68% but Detroit. NOT STATE II. THE COURT DOES Department the Police order federal court OF TEST CONSTI- THE CORRECT black. than 50% may not be more THE UNDER TUTIONALITY itself into this got The District Court IN AMENDMENT FOURTEENTH it held that if because strange situation II.B ITS OPINION OF SECTION then plan upheld,” “affirmative action THE IT APPLIES ALTHOUGH be treated as a plan should approved “the III IN TEST SECTION CORRECT is. just as a consent decree judgment, OF THE OPINION will this court rule of law which It is this validity voluntary assessing the added.) The District adopt.” (Emphasis plan governmental say that “affirmative went on to Court Amendment re- Fourteenth question, merely permitted” required, action is exacting standard than a more quires effect of an have the force and and “must stan- mere “reasonableness” open-ended, (Final opinion, Nov. this Court.” order of to be In order dard stated Court. V, Record, 17, 1980, Vol. Docu- Technical valid, governmental, non-Congressional, 6-8.) Where such a “rule of pp. ment must meet the fol- affirmative action from, neither this Court nor law” comes and substantive lowing exacting procedural I of no tries to tell us. know District Court Fullilove the Bakke and standards under justification for such a “rule of law.” None cases: Even if the does not now is cited. citi- against black appear discriminate rational 1. Procedural standard. —After Detroit, justification there is no

zens consideration, gov- and deliberative by judicial federal law writing into make competent to agency ernmental constitutionally decree. To extend manda- concerning racial discrimina- findings City’s plan distorts the tory status institution governmental tion ac- proceedings nature of the below. This sup- make valid and must question brought by police tion was officers discrimina- findings portable who believed that have been victimiz- tion, findings make valid and it must illegal pilot affirmative action ed of minori- concerning percentage defended demon- program. City The have been who would ty members dis- strating history departmental governmental insti- employed by blacks, against history crimination in the absence of question tution in The provided justification plan. discrimination. history never whether this issue at trial was find- 2. Substantive standard. —These required City adopt precisely competent governmental ings by a Rather, had to decide plan. Court fully justify percent- must agency light past whether —in —the given members to be minority age justified pursuing policy. the new ac- the affirmative preference under resolved this issue in favor of District Court pro- the duration of City, having For the devised City. remedy incorporated gram, and plan, responsibili- now to surrender further must not the affirmative ty to the Court is anomalous. par- or harm innocent unduly burden line actor and should responsible front reme- other available light ties in politically remain the institution accounta- dies. policies. ble for its Although the Court states the standard

under the Fourteenth Amendment in far this,

less exacting language than the Court

in fact applies very set of standards in I, therefore, opinion.

Section III of its con-

cur in the Court’s conclusion that —in available information in 1974—the

Detroit of Police Board Commissioners’

findings justified remedy adopted. CORPORATION,

CHATTANOOGA

Plaintiff-Appellant, KLINGLER, Jensen,

Dale H. Harten B. Church, Wilkins,

Thomas H. Richard Duncan, M.D.,

Lewis C. W. James

Sauder, Defendants-Appellees.

No. 82-5017.

United Court of Appeals, States Circuit.

Sixth

Argued Jan. April

Decided

Case Details

Case Name: 31 Fair empl.prac.cas. 465, 31 Empl. Prac. Dec. P 33,497 Hanson Bratton v. City of Detroit, and Guardians of Michigan, Intervening

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 29, 1983

Citation: 704 F.2d 878

Docket Number: 80-1837

Court Abbreviation: 6th Cir.