34 Fair empl.prac.cas. 1009, 34 Empl. Prac. Dec. P 34,311 Larry Williams v. The City of New Orleans, Etc.

reverse damages. We of contract retrial puni- the award of judgment and

the fraud may prove on damages; but Nissho

tive good injuries to its that it suffered

remand relationships

will, reputation, business Occi- of the contract breach. a result turn, dental, may concern- offer evidence set- of the Nereus

ing the reasonableness of the contractual effect

tlement consequential

limitation on indirect prove that may also

damages. Occidental agreed suspend the contract parties pursuant sections 10.1 terminate

or to

and 10.3.37

Finally, affirm the assessment we

costs. pro- for further

The case remanded opinion.

ceedings accordance with IN

AFFIRMED PART. IN

REVERSED PART. IN AND REMANDED

REVERSED

PART. al., WILLIAMS,

Larry et

Plaintiffs-Appellants, ORLEANS, etc., et OF NEW CITY al., Defendants-Appellees.

No. 82-3435. Appeals,

United States Court of

Fifth Circuit.

April supra note 29.

Sidney Bach, Orleans, La., New for Ve- nezia, et al. Wasserman,

Lynne Orleans, La., W. New Duke, Cindy for al. et William Reynolds, argued, Bradford Disler, Charles Cooper, Dept, J. Mark Div., Rights of Justice Civil Washington, D.C., for U.S.A. Whalen, Orleans,

Ralph La., S. New for Lombas, et al. Sherwood, City, Peter York

O. New Ron- Wilson, Orleans, La.,

ald L. New for Wil-

liams. Buras, City Atty., R. Gilbert Galen CLARK, BROWN, Before Judge, Chief Brown, Orleans, La., City Atty., Asst. New WISDOM, GEE, REAVLEY, POLITZ, City

for of New Orleans. RANDALL, TATE, JOHNSON, WIL LIAMS, GARWOOD, JOLLY and Ralph Jr., Orleans, La., HIGGIN- Dwyer, D. New BOTHAM, Judges *. Civil Service Circuit for Commission. Lichtman, Lenhoff, Elliott C. Donna R. WILLIAMS, Judge: JERRE S. Circuit Fund, Legal

Women’s Defense Wash- disposition The appeal grounded of this D.C., Equal ington, Rights for amicus Ad- in the amount vocates, properly of discretion given et al. a district in its court decision to enter Jackson, Frank W. Supervising Asst. proposed disallow a consent decree in a Cnsl., Detroit, Detroit, Mich., Corp. City of Title VII discrimination suit. We hold that City for amicus of Detroit. the district court did not abuse its discre- Leroy Clark, D. for Center National Poli- by refusing approve tion Review, University cy Catholic School of decree, holding and we affirm the Law, D.C., Washington, for amicus Center of the district court. Policy for National & Wm. Review O. plaintiffs a class appli- of black Douglas Inquiry. positions cants for with and members Jeffrey Martin, C. Richard M. Sharp, Department. the New Orleans Police Seymour, Lawyers’ Richard Talbot Com- suit is brought against New D.C., for Rights, Washington, mittee Civil Orleans, the Civil Service Commission and Lawyers’ for amicus Committee for Civil officials, claiming individual racial discrimi- Rights. nation under Title VII of the Rights Civil Schwartz, Herman American University, § Act seq. of 1964. 42 U.S.C. 2000e et Washington, D.C., amicus-Douglas for In- complained The class of discriminatory poli- quiry. selection, training cies promotion Wile, E. City, Kenneth York New for city police officers. amicus Mexican & American Puerto Rican day On October the trial Defense. Legal begin, parties scheduled to an- Rabinove, City, Samuel New York for nounced that they had settled the case and amicus-Am. Jewish Committee. submitted their proposed consent decree to Williams, Washington, D.C., E. Robert approval. court for amicus-Equal Emp. Advisory for Council. 33-page proposed governed decree “virtual- Wilks, ly Orleans, La., every phase employment argued, Dale C. New of an officer’s intervenors-Perez, Department” for Etc. New Orleans Police * Judge participate Rubin did Davis or decision of consideration this case. (E.D.La. require-

(NOPD). F.Supp. settlement streamlined 1982). provided significant applying fulfilled ments before The decree hiring, new, recruiting, implemented changes supervisory position, in the NOPD’s training, testing promotion standards non-discriminatory criteria. Fur- selection procedures. ther, complete if a officer failed black period promo- probationary pursuant the to were settlement defendants Under the tion, required the the va- settlement recruit- required black officers on to send cancy be filled another black officer. neighborhoods and ing to black missions any and Content-valid tests were mandated applicants would then be Black schools. “statistically item use of test with a through assigned guide them “buddies” to significant impact adverse blacks” process. The application defendants the was disallowed. application process agreed shorten the to expeditiously any prob- itself and address Finally, proposed provided for the decree process. New lems with associated $300,000 backpay plaintiff to fund adopted entry procedures would be level class, attorneys’ costs fees to awarded and to assure that under the settlement re- plaintiffs, imposed extensive graduated who proportion of blacks porting obligations on the defendants. academy police was no lower than submitted, When the consent was decree entry passed the proportion of blacks who objections were filed classes of female Training were level examination. sessions officers, officers, Hispanic and white offi- help applicants prepare planned to cers, granted to who were leave intervene examinations, as Police Recruit and black purpose challenging for the limited tutors well as white and instructors Objections were also decree.1 filed The be made available for consultation. eighteen plaintiff members of the black gen- proposed eliminated the decree use class. addition, it re- intelligence tests. eral four-day during After a hearing, fairness City “Academy to an quired the create testimony heard which the court Panel”, half to be Review members members, from individual class intervenors officers, any composed of black review experts, the district court decided Any recruit. officer decision to dismiss a approval withhold of the consent decree. subject repeated citizen who was the indicating approval every in- other complaints police While could not serve decree, Judge con- provision structor. Sear provision requiring cluded black portion settlement here promoted and white officers on promotions do with officer issue has to ratio one-to-one until blacks constituted City proposed under decree. The of all ranks within the NOPD exceeded 50% adopt procedures agreed to so objectives the court’s remedial and serious- appointed whites each sub- proportion of ly jeopardized the career interests of non- of officers would not exceed classification Thus, black officers. the court did eligible proportion actually of whites encouraged par- approve the decree but City agreed to cre- position. for that in a con- modify ties to the decree manner positions immedi- supervisory ate 44 new opinion it for sistent with its and resubmit ately positions fill all 44 with black deci- approval. appealed Plaintiffs this, supervi- After officers. whenever sion,2 by a divided panel and a of this court available, sory position the settle- became court had vote concluded provided black officer be ment that one ap- conditioning abused its discretion every until blacks con- promoted for white proposed proval of the consent decree of all ranks within the NOPD. stituted 50% approval approxi- of a objecting 2. The denial 1. These officers constituted appealable held order. police decree has been to be mately the New three-fourths of Orleans Inc., Brands, Carson v. American officers. n. 67 L.Ed.2d 59 998 and promotion quota. deletion panel fight against discrimination, it cannot be remanded the case directions seriously argued there insur sign decree. Sear Williams mountable barrier goals use of Orleans, (5th New 694 F.2d 987 quotas to eradicate the effects dis Cir.1982). Cir.1980), (5th crimination.” 614 F.2d part part vacated aff subsequently sought United States 'd and remanded grounds, on other 664 F.2d granted permission to intervene (5th 1981) banc). (en Cir. suggestion rehearing and file a en banc. 14, 1983, granted February peti- On we long upheld This Court has the use of rehearing, tion for an en banc affirmative action in consent decrees under required Title VII and has not that relief be I. Per Attack Se limited to actual victims of discrimination. Crisler, (5th See Morrow v. 491 F.2d 1053 respond We first to the intervenor Cir.) (en banc) denied, 895, cert. 419 U.S. government’s argument that affirmative 173, (1974); 95 S.Ct. 42 139 L.Ed.2d United remedies, disputed provi action such as Alexandria, v. City States 614 F.2d case, permissible sion in this are never un of (5th Cir.1980). Further, 1358 the use of plaintiffs object der Title VII. The to the quotas goals or under Title VII without impose trial quota court’s failure to a firm regard specific victims as one means to system police department on the remedy remedy past has upheld discrimination been past violations of Title VII. In marked regularly throughout the contrast, federal courts of government argues See, appeals. e.g., judge Chapter, Boston power had at all to no order NAACP, Beecher, any Inc. v. 504 employ quota NOPD to kind of F.2d 1017 (1st Cir.1974), denied, system 910, remedy past cert. 421 discrimination. Ac U.S. 95 1561, cording government’s argument, (1975); to the S.Ct. 43 775 L.Ed.2d Rios v. § 706(g) last sentence in of pro Enterprise Title VII Association Lo Steamfitters remedy scribes the use any 638, (2d of which is not Cir.1974); cal 501 F.2d 622 Con limited to actual victims discriminat tractors Association Eastern Pennsyl ion.3 quota system Since the one-to-one Labor, Secretary vania v. 442 F.2d 159 designed consent was decree (3d Cir.), denied, 854, cert. 404 U.S. 92 class, to benefit all plaintiff blacks in the 8, (1971); S.Ct. 39 L.Ed.2d 95 Patterson v. just and not actual victims of discrimina Co., 257, American 535 Tobacco F.2d 273- tion, government urges us to find that (4th Cir.), denied, 920, 74 cert. 429 U.S. 97 quota provision violated Title VII. 314, 315, (1976); S.Ct. 50 L.Ed.2d 286 Unit rule; ed States v. accept per We cannot International Brotherhood this se Workers, 38, statute Electrical require. does not so As we Local No. said in 428 F.2d (6th Miami, Cir.), denied, 943, United 144 City States 614 F.2d cert. 400 U.S. 91 1322, point “at history (1970); this in the of the S.Ct. 27 248 L.Ed.2d United VII, 706(g) prior Section 42 years filing of Title U.S.C. 2000c- more than § two of a 5(g): charge with the Commission. Interim earn- ings or amounts earnable reasonable dil- respondent If the court finds that has igence by persons person or discriminated intentionally engaged intentionally in or is operate pay shall to reduce the back engaging employment practice in an unlawful otherwise allowable. No order of the court charged complaint, may in the the court en- require shall the admission or join reinstatement respondent engaging in such union, of an individual as a member of a employment practice, or unlawful and order reinstatement, hiring, promotion or may appropri- an affirmative action as ate, include, to, employee, payment individual may as an or the which but is not limited any pay, him of if hiring employees, back such individual reinstatement or was with or admission, suspended, expelled, refused pay (payable by employer, or without back or employment employment agency, organization, was refused or labor advancement or or as be, suspended discharged may responsible any the case was or for the unlawful reason race, employment practice), any equitable or other than other account of color, sex, appropriate. religion, origin relief as the court national deems Back or in 2000e-3(a) pay liability shall not accrue from a violation of date section of this title. 1558 dustries, (5th Cir.), F.2d 850 cert. Chicago, 549 F.2d City

States denied, 1684, 48 denied, U.S. Cir.), (7th cert. (1977); (1975). expressed Despite our United L.Ed.2d 187 L.Ed.2d 155 review, Industries, Inc., preference standard v. N.L. States however, Cir.1973); urge case us (8th appellants v. Iron in this States United Cir.), (9th novo engage a de review Local instead workers 447, 30 denied, They base court’s decision. City L.Ed.2d 367 contention on our decision their Alexandria, supra, 614 F.2d which complains about only The Government' of discretion we did not use abuse requirement promotion the one-to-one reviewing a consent decree. standard case, was not the actually that but case, however, opinion in that makes proposed consent decree provision recognizing the circum clear that it was who individuals relief to which afforded creating excep case as stances of that actually from the discrimi- suffered had general rule of “abuse of discre tion to the fact, vir- In natory policies of the NOPD. tion” review. designed provisions were tually all of the event, applicants. In Alexandria, parties benefit future had in its decision view district court did not agreement early pretrial reached an controlling the fact process. When the settlement we. Nor do non-victims. decree benefited trial had approval, the court presented for action question of affirmative whether inall the case. heard evidence at not permissible general as a provisions Thus, knowledge special the had no in remedy Title is not an issue VII made under It had no credibil- as evidence. Instead, in this case the issue choices; this case.4 opportunity had had the ity to dis- available the measure of discretion weigh thoroughly upon a based evidence approval disapproval judges trict As noted presentation full the case. we regard that nar- then, consent decrees. With Alexandria, degree “the issue, judge we that the trial row hold scrutiny depend on a varie- appellate must affording acted well within his discretion factors, familiarity ty of such they plaintiffs lawsuit, less than all relief stage court with the trial requested. had proceeding at which the settlement types of in- approved, and the issues Appellate II. Review Standard F.2d at volved.” 614 held litigation, this Court has In Title VII present contrasting presents case a sub court is entitled to that the district surrounding district circumstances dealing of discretion in stantial measure consideration of the consent decree. result, court’s decrees, that as a with consent present trial In the case the court wheth appeal, duty our is to ascertain “on pretrial proceed- in the completely involved clearly his judge trial abused er or not the pretrial con- Hinton, ings. There were numerous 559 v. discretion ...”5 Cotton Further, Cir.1977). held a (5th ferences. the district court 1326, also 1331 F.2d four-day evidentiary hearing, In- fairness Allegheny-Ludlum v. United States analysis employed regarding has also the abuse of legislative 5. This Court For a detailed 706(g) validity types of that scope where in review of other § discretion standard T, issue, See, Katz, v. 556 e.g., Young EEOC AT & section was at see F.2d 447 settlements. denied, 167, (3d Cir.) U.S. cert. 438 (5th Cir.1971) (settlement 175-7 F.2d in shareholder 3145, 915, (1977). In L.Ed.2d 1161 action); Equipment & Co. class Florida Trailer case, opposed a consent that three labor unions Deal, (bank (5th Cir.1960) 284 F.2d approved district in the decree which had been settlement); Corrugated ruptcy In Re Container 706(g) argued They under § court. (5th Litigation, Antitrust provisions in decree action affirmative Cir.1981), denied, cert. impermissible. The unions contended were (anti-trust (1982) 73 L.Ed.2d 1294 706(g) proscribed remedies in favor § settlement). past discrimination. victims of non-identifiable argument. rejected court presentation testimony which included tion that settlements be encouraged. See intervenors, parties, experts. from the Dent v. Co., St. Louis San Ry. Francisco case, therefore, (5th In this we have considera- Cir.), denied, proposed tion of a consent decree after a 29 L.Ed.2d 689 thorough airing Further, facts.' We here as we noted in City of recognize play Alexandria, that a district court does can be said without fear “[i]t significant in exercising that, role discretion of contradiction practice, district fully cognizant when it is of the facts and generally approved courts have surrounding circumstances the case. settlements ...” 614 F.2d at 1361. While settlement is encouraged and agree panel opinion carefully this case enforced, generally however, ments are appellants considered the contention of judge summarily cannot approve subject this Court should the decision of settlement, Title VII but must make an the district court to de novo review. Al- independent decision in each case concern merits, though panel divided on the ing every provision the fairness of panel concluding was unanimous in decree. the standard of review a case where the thorough district court has had oppor- In a case, Title VII consent decree we tunity to consider the require contentions of all the district court to become more persons involved should be reviewed on the process involved the settlement than it basis of whether the district court has would in an ordinary case. present When abused its discretion in its decision. settlement, As the ed with an ordinary the court panel opinion said: “The approve agreement circumstances will “fair, if it is particularly upon rely which we include adequate and reasonable.” Cotton v. Hin ton, district court’s consideration and careful supra, 559 F.2d at 1330. In a Title weighing, after evidentiary case, a substantial VII however, consent decree even showing prolonged familiarity and its though nature, decree is contractual in case, the circumstances of the of the inter- “the court ... merely sign must not on the plaintiff ests of the black officer provided by class as line parties.” City Mi opposed white, ami, intervening those of the supra, 664 F.2d at 440. As female, Hispanic and officer classes.” 694 emphasized Miami, Rubin in City since of at F.2d a consent decree reaches into the future effect, continuing and has the district court We conclude that under the circum must take an implementat active role its case, opposed stances of this as to the ion.6 parties agree Even where all the exceptional circumstances of City the decree, a consent the court should case, Alexandria the district court’s denial carefully only examine it to ascertain not present proposed decree is to be that it is a fair settlement but also that it reviewed under the abuse of discretion put does not the court’s sanction on and standard. And we make no distinction power behind a decree that violates Con- upon ap based whether the district court stitution, jurisprudence. statute or This proved approve or refused to the requires propos- a determination that the settlement. represents al a reasonable factual and legal determination based on the facts of Approval III. Trial Proposed Court record, the whether established evi- Consent Decrees dence, stipulation. affidavit or (cid:127) repeatedly prefer- We have stressed our Id. at 441. voluntary ence for settlement of Title VII suits, employment discrimination where The properly goes through district court Congress expressed specific has inten- this examination even when the consent Although upon agreement par- simply agreement parties founded an between the and ties, judica- a consent decree has the force of only res subsequent can be enforced suit. judgment. ta because it is a can Miami, It be enforced City United States v. 664 F.2d sanctions, by judicial including citation for con- (5th Cir.1981) (en banc). 439-40 tempt, if the decree is violated. A settlement past, Allegheny-Lud who drafted see United States v. parties affects the

decree case, Inc., (5th where, Industries, But in this F.2d 826 as lum the decree. par- potential Crisler, to affect third Cir.1975); has the decree Morrow v. F.2d ties, make additional (5th Cir.1974); the court must v. City United States involved, parties are finding. When third (5th Alexandria, 614 Cir. carefully scrutinize the must also the court 1980), in every their use is not mandated respect con- with to their and decree Further, firm rules have instance. not parties third on the clude that effect quotas as to been established when must proscribed.” nor “neither unreasonable Instead, we left the be used. have Ibid. responsible courts with difficult case, determining task of the outer particular the need for boundaries In this play an active role was remedial In district court of affirmative relief. contrast City it was in more essential than authority describing even when lack City In those used, Alexandria. leading Miami quotas must the two Title cases, discrimination consent as most quota VII cases—United Steelworkers of cases, Department States decree United Weber, America v. instigated the lawsuit. As this of Justice (1979); L.Ed.2d 480 Fullilove Miami, pres City remarked in Klutznick, Department the suit ence of Justice (1980) provide guidance 65 L.Ed.2d 902 do “safely the Court assume that allowed [to] respect analysis a district court interests of affected had been con all making should follow this decision. sidered,” respon since the Government voluntary Weber involved collective representing “the all interests of sible bargaining agreement between United black, citizens, white well as males as and Kaiser Alumi- Steelworkers America well as females.” United States v. Corporation. num and Chemical Miami, supra, at n. agreement, which terms and condi- covered banc). (1981)(en aff'd, 664 F.2d 435 employment plants, tions con- Kaiser case, however, present litigation hiring goal equal tained numerical were instigated class of settlement percentage of blacks in the local labor plaintiffs private which did have plan, on-the-job-training forces. Under responsibility parties third who toward programs help plants were established might by their actions. The be affected openings goal, meet 50% of only, pursued of blacks suit on behalf programs reserved training were contained remedies workers, production white blacks. Several designed decree were to benefit blacks training pro- rejected who were any gov only. Because of the absence instituted protect gram quota, of the agency nonrepresent ernmental to because discrimination, subject groups ed to such action secured an in- Title VII class women, non-Hispanic Hispanics, of the junction against implementation the whites, there was no adversative constraint Supreme reversed the program. The Court upon possible tendency of affirmative specif- program the but enjoining decision Thus, go the action to too far. the ically to “define in detail de- refused in responsibility full court had bear the imper- permissible and marcation between safeguard the interests of this case plans.” The action missible affirmative affected those individuals who were holding finding that its court limited in represented decree but were not permissible side of the quota fell “on thrust of the district negotiations. Despite their re- at 2730. line.” 99 S.Ct. responsi in this court decision was rooted limits precise to dictate the luctance bility. relief, however, Court in affirmative Approval of the IV. Discretion to a certain illuminate the field did Weber Quota Particular Provision disclosing analysis fol- degree by approve reaching the decision lowed in frequently ap- Although has Court issuing its quota in that case. Before hiring in the preferential ratios proved quota. carefully emphasized He approval, the Court reviewed the after consider- plan, of the purpose factors, and duration as well as “[a],race-con- ation of all the other plan's parties. third effect on remedy approved scious should not with- opinion shows there must be Court’s out consideration of an additional crucial context analysis careful of the. of each indi- factor—the effect upon of the set-aside in- imposition of numerical vidual case before parties.” nocent third Id. at 2793. quota “permis- relief. fell on the While Following guidelines set out in these Weber, on the sible side of the line” facts cases, two adopted has also Court case is far holding short of cautious, approach imple- methodical to the giving quota to all similar carte blanche percentage goals. mentation of In City of systems. Alexandria, supra, for ex- Klutznick, Supreme Fullilove v. ample, we guidelines used the to review the again Court focused attention on the settlement between the United States De- analysis surrounding need for careful all partment of Justice and the implementation circumstances before of nu- pro- Alexandria. The decree that case case, up- merical relief. In that the Court hiring vided affirmative relief for women power Congress held the to approve and blacks in police depart- fire provision Employment of the Works Public though everyone ments. Even involved required Act of which that at least agreed quota, we still assessed its grants public federal local 10% purpose, par- duration and effect on third procure projects works be used to services ties.7 provided by groups. minority While the quota, approved Burger Justice present case, In the of the 75% members “[a]ny preference cautioned that based police department objec- had filed upon racial criteria or ethnic must neces- tions to the terms of the decree. The court sarily searching receive a most examina- obviously obligated give careful con- tion.” 100 S.Ct. at 2781. persons sideration to the of all interests agreed Justice Powell with this strict affected. properly The court followed the concurring opinion standard. In his he list- above, guidelines set out and evaluated the ed various factors should be con- settlement, giv- elements of entering sidered before a race-conscious ing every provision. a detailed review remedy, defining scope and in of such a days hearings, After four the court con- remedy. Although this case involved Con- exception, cluded that with all one gressional approval judicial rather than a aspects affirmative action of the settlement decree, Justice Powell relied on the factors were valid. The court found traditionally judicial used decisions re- provision requiring promotion a one-to-one garding numerical relief. He noted that ratio was overbroad unreasonable option when faced with the numerical light longlasting of the severe and ef- relief, courts have considered factors women, Hispanics, fect on the remedies; efficacy as: the of alternate non-Hispanic The record whites. built planned remedy; duration of the rela- give it to court enabled full tionship percentage between the of minori- relationship consideration to the between ty employed percent- workers to be and the specified targets pro- the numerical age minority group members in the rele- posed proportion decree and the of blacks workforce; population vant and the the extent population, relevant provisions. availability of waiver Id. at parties’ infringed, which were third affirmatively rejected The Justice remedy, efficacy the duration of the the the the suggestion placed burden on measures, remedy’s and the alternative legally nonminorities was irrelevant to the implement flexibility. decision whether to a numerical Therefore, typically appeal, on we re-

7. This examination reserved this examination. novo, court, earlier, quota propriety p. viewed the de see district but as mentioned the dis- Alexandria, supra. City trict court in did not make general include the Parish to quota’s Orleans first found The court Area Metropolitan Statistical was un- in all ranks Standard target of blacks 50% reaching substantially this low- (SMSA), In contains by the record. which supported plain- on conclusion, particular court relied the district of blacks. This percentage er Bendick, economist, Dr. Mark tiff’s labor the district court finding statistical promo- and hiring if that even appellants who testified upon which cornerstone conducted had been the NOPD tions on Appellants contend their attack. launch considerations, by 1980blacks free of racial misinterpreted the court the district all comprised 40.7% would have geo- wrong relied on the statistics lieutenants, of all 37.4% sergeants, 39.4% result, appellants pool. As a graphical majors. all captains, all 30% finding against court’s argue, the district clearly errone- target quota was Furthermore, found 50% district court court disagree. The district We must ous. overstated estimates were that even these hearing testimo- decision after in Dr. Ben reached its shortcomings to certain due expert8 First, witnesses. One calculating ny these from several analysis. dick’s (33:2411) appli and a relied on a state statute Dr. Bendick testified that percentages, 5240, MCS) data, (No. require indicates the racial which city cant flow ordinance police applicants all unless the city breakdown of hire residents City to applicant flow data is department. While could not be fulfilled needs NOPD’s determining the rel hand, proper But, consideration this the other market. this market, Markey v. Tenneco Oil evant labor appli- that even if also testified witness Cir.1981), (5th type this Co., 635 F.2d 497 City of New Or- resided outside cants face value. always be taken at data cannot leans, they if they still be hired could Pickard, See Castaneda dur- within Orleans Parish agreed to move (5th Cir.1981) data in (applicant flow period. In ing one-year probationary their practices infected discriminatory valid since cases, requirement was even this some Hispan Experts called recruiting). addition, questioning by In after waived. white, ic, female interve non-Hispanic court, plaintiff’s own witnesses9 one in this case such data testified that nors actively engaged that the NOPD testified statistically distorted because was areas recruit officers from in efforts to in extensive black re engaged had NOPD Parish. There also was of Orleans outside As a re throughout the 1970’s. cruitment contrary. testimony to the applicants to sult,' percentage of black clearly court power of the district deceptively inflated. Sever was the NOPD weigh- the exercise of discretion includes employees testi and CSC al NOPD officers amply supports testimony. The record ing special recruit existence of fied about the It reached the court. conclusion testimony ing efforts for blacks testimony of witnesses upon the was based plaintiffs. The by the not refuted re- by both sides presented basis had a substantial court thus court Parish. The outside Orleans cruited plain analysis of deciding that the witness, expert on intervenor’s also relied flow applicant utilized expert, which tiff’s Morris, psychologist, who industrial Dr. of blacks data, percentages overstated City’s practices, that based on testified market. labor in the relevant gen- area was the geographical correct Dr. Bendick’s felt court also The district Parish. just Orleans eral SMSA of rele- in its choice flawed analysis was case, place undue appellants confined Dr. Bendick labor market. vant portion of the district emphasis on Parish, which is study to his Orleans They have not shown reasoning. court’s con- court The district black. present 55% approve decision to judge’s extends labor market the true cluded that Jr., Taylor, the recruit- head of Arnesta Acouin, 9. Officer Officer Leroy Chief Administrative investigation for the division ing applicant City Orleans. of New Department. Police Orleans New disapprove proposed belonged this consent decree to minority groups. other Of percent- solely upon turn the exact importance should recognition critical that pool. ages geographical of minorities in the may properly court take into account is, fact, prop- if in Even Orleans Parish possibility that fixed quota may well geographical unit in this case and even if er deny application of a standard requir- hiring pool there is a black 50% ing qualification positions. for the While (both Parish assertions of which were heav- this consent decree states no that court) ily debated in the district the district unqualified person need promot- be hired or disapprove still to court had discretion ed, can proper there be a concern that the nevertheless, that, the decree if it felt requirement fixed promotion 50% could provisions “seriously decree were place pressure upon qualification undue re- jeopardizing the career interests non- quirement. party qualified “If a is not F.Supp. black officers.” instance, position in the first affirmative

Geographical percentage comparisons action considerations do not come into relevant, certainly are United Steelwork- play.” Detroit, Bratton v. Weber, supra, ers America 99 S.Ct. at (6th Cir.1983). quota represent and a that seeks to The opinion court based its on the fact proportion among employ- the same racial quota separate would pro- create exists in the actual labor ees as force ordi- motional tracks for blacks and whites narily though is reasonable. But even NOPD, forcing non-blacks to compete quota acceptable, often this does positions for fewer even though group this quota guarantee particular not comprised a larger percentage total offi- appropriate case this is the or reasonable cers in the force. The partic- district court remedy. validity quota is in ularly emphasized difficulty under doubt this record. presented to minority non-black officers. emphasized This Court v. Al NAACP quota for example, repre- assures len, 493 F.2d the Constitution sentation white and Hispanic females Quo only “equality demands access.” will continue to be disproportionate, since tas are one means strive reach decree, under the women be would forced (5th result. Cir. compete against men for reduced num- 1974). Quotas preferred are often because ber of reasoning ap- vacancies. This also they proved have abe swift means of plies Hispanic Although they men. are creating “an environment where merit can adequately represented time, at this under prevail.” Unfortunately, quota Ibid. re quota, representation continued vacuum, operate lief does not in a and the not be insured. aspects quotas most effective for the panel decision this case target group most create the harmful re complaints reason, dismissed female officers’ quota sults for others. For this noting if “drastic,” simply the women felt relief is sometimes as viewed damaged promotional we have that the decree warned that “traditional con their cepts comity judicial opportunities, they pursue restraint must re- could similar guide the which ... discretion chooses to lief independent recog- in an action. We remedy.” gen use Ibid. ... These though nize [this] women have the same concerning eral views care use of others as discrimination un- quotas Supreme reflected VII, der respon- Title and the trial court Court’s 1980 decision in Fullilove v. Klutz protecting rights. sible for those previously. nick discussed women'were intervenors. It would proper put imprimatur court to Independently of regarding the decision upon a decree district, that violates those proper geographical minimum, rights, very or at the it was objected hiring court also to the one-to-one properly within the court’s quota grounds on the have discretion that would purpose do inordinately impact on refuse to so. The exam- harsh non-black offi- behind cers, specifically ining proposed non-black officers who consent decree’s effect Naturally, remedying past the burden of protect the of is to parties

third by someone. must be borne eliminate the as well and to parties those Nevertheless, court is the when the district subsequent lawsuits. need remedy, is tailoring partic- the process of court’s the district dismiss Appellants the ularly appropriate for it to consider discriminatory decree’s about the concerns long-term effect of the decree. The ideal by claim that They parties. impact on third provide case is to a suit- goal type in this rejecting the concerns in relying on such remedy group for the who has suf- able discre- decree, court abused its district the fered, expense to at the least others. but argue appellants that since tion. holding emphasize that in that the dis- We disparity the NOPD was due within racial its trict court did not abuse discretion own discriminato- Department’s to the case, modify previously this we do not our preferential treatment ry practices, temporary hiring expressed goals view that acceptable. of such discrimination victims ordinarily reasonable. is ac- preferential treatment fact Alexandria, This supra, 614 F.2d at 1366. however, point this ceptable, from the Su- principle, which was drawn preferential treatment extent case. The Weber, supra, preme Court decision great bulk is at issue. is what on at is still the standard which S.Ct. by approved decree was analysis. district courts should base their involving provisions It is full court. case, court did district of blacks because of preferential treatment analyze quota’s duration Weber prior departmental racial discrimination. mind,11but concluded that on these facts expressed concern about The court also disabling remedy general was too duration, no estimated at less the decree’s aggravated and that the decree’s duration span al years,10 which would than twelve did this effect. The district court not hold many non-black career of the entire most quota impermissible only be that the was careers noted that the officers. The court duration, but dura cause of considered officers, many especially those totality part proposal of a tion as hired, significantly hin recently would be in which other defects also were found. remedy though even those dered respect the district court’s considered We benefitted from the ef officers had never recognizes judgment. implicitly “Title VII course, the past discrimination. Of fect of calling may there be cases for one asserting that it appellants another, are correct owing remedy and not and— plan permissible for an affirmative action judiciary structure federal —these minority group’s are, course, ex at another aid one in the first in choices left limited, effectuating prop pense. “When to the district courts.” Franks v. stance remedy Co., erly Transportation supra, tailored to cure effects Bowman discrimination, ‘sharing of (1976), Pa prior citing at 1271 Albermarle S.Ct. imper parties Moody, is not per burden’ innocent Co. Klutznick, 2362, 2370, (1975). supra, In the Fullilove v. 45 L.Ed.2d

missible.” con light expressed court’s citing Franks Bow Co., regarding par one 96 cerns the effect Transportation man light 1251, 1270, quota, approv- and in the of its ticular 47 L.Ed.2d high. might expert statistics be somewhat Although appointed estimat- lurnovcr the court Further, expert's questioned years, as- goal the court in twelve could be achieved ed sumption 125 recruits would enter the force actually court felt that this average annually, when the .recruit class pace projection. decree doubtful All conclusions numbered 90. of these depend the number of vacancies on clearly scope discre- within of its court were rank and number of vacancies would each tion. depend the number of retirements and other separations within each rank. Since the NOPD Williams, F.Supp. supra, at 679 for policy discouraging recently implemented a 11. had early retirement, expert’s of Weber. trial court’s discussion the court felt specific sweeping al of affirmative ac- have ever been the victims discrimina favoring plaintiffs throughout tion the rest tion injured or those practiced have either decree, we find that or benefited from it. Certainly I do not court has not abused in re- its discretion believe that decision of the United fusing to promotion- enforce the one-to-one Supreme States Court blesses a meas in quota contrary, al the decree. On the Writing ure. Weber,1 for the Court in Jus the record shows conscientious well tice Brennan way, went out of his on at thought by out effort the district court to occasions, least eleven different point parties cooperate with to this in action out that what was there before Court eliminating in the New Or- private affirmative action. He also Department leans Police while at the same specifically stated that the in Court Weber respecting time valid concerns of the nu- was not concerned with “what a court intervening parties merous whose interests might remedy past proved order to viola by also be affected decree. 2 (and tion of the Act” I note that here affirming emphasize the district court we finding past violation, there is no merely parties are not foreclosed from case). prima likelihood of a facie presenting proposals other both quotas desperate measures, Such in- particular or in modifying por- issue other herently invidious as calculated denials of proposal tions because refusal of one citizen in order enhance accept pro- court to the 50% those of another—both done the frank quota requirement. motion ground they of race. If appropri- are ever AFFIRMED. ate, view, my in that can be as a last resort, when it is clear nothing else GEE, Judge, Circuit with whom GAR- will suffice. Crisler, See Morrow v. WOOD, Judge, joins, specially Circuit con- (5th Cir.1974). F.2d 1053 employ- Their curring: tinkering ment in casual social Judge thorough opinion Williams’ unwise; dangerous courts is I would judge establishes that the district did not lend it no unnecessary credence. Since refusing his approve abuse discretion Judge so, opinion Williams’ I does concur among many provisions one of a consent only. the result designed decree to eradicate discrimination against black officers in the New Orleans HIGGINBOTHAM, E. PATRICK Circuit Department promo Police one-for-one —a Judge, with whom GARWOOD and JOL- quota lengthy tion duration that is un LY, Judges, join, Circuit specially concur- supported even the evidence of com ring: plainants’ labor economist. See 729 F.2d at I concur in the result reached (Williams’ op.). My 1561-1562 views are Williams, Judge agree do but generally in expressed accord with those difficult issues now before can be Judge us avoid Reavley pan the dissent of from the by deciding ed opinion, el whether the district court be found at required more enjoy 997-998. No to affirm abused its discretion. We cannot judgment, the district court’s and I would that comfort of non-decision. Discretion no more. write implies a choice of courses. proposed decree illegal racial discrimination opinion’s join general I cannot only permissible and the course was to approbation quotas govern of racial refuse the settlement. I

mental entities. do not believe that the imposition Constitution authorizes the of a I requires govern decree a unit state course, Of our ment discriminate on the basis race Constitution has as objective society, without reference whether those favored color-blind but its Weber, United Steelworkers America v. U.S. S.Ct. at 2725. 61 L.Ed.2d 480 vestiges.” Id. at nation of such and Fif- the Fourteenth include means doing so ma- at 2727. In the Weber to the Constitution S.Ct. Amendments teenth to, part conceded, proscriptions it was forced jority as indeed measures each require “racially Wisdom of race. Title would not VII by considerations contending correct indisputably preferential integration efforts.” Id. at then sense, are forever 205-06, we normative em- at 2728. spe- is a Racial race bound. state phasized that Section does not “[t]he worth of the recognize the to interpret- cific failure ‘nothing in Title VII shall be individual, constitution- prime ideal our a permit’ voluntary affirmative efforts ed to vision, argue, I will is The al structure. imbalances.” Id. at to correct racial persons, not are a nation we original). (emphasis in In 99 S.Ct. at 2728 Thirteenth, Indeed, Four- groups. sum, only “that Court decided Weber are con- Amendments and Fifteenth teenth to limit traditional Congress did not intend persons value indi- to of failures fessions degree as to such a to business freedom power of But whatever vidually. prohibit voluntary, af- all race-conscious adopt remedial Congress courts to to allow 99 S.Ct. at firmative action.” Id. in explication, framed in their decrees proved group response in to group terms to extent left That the Weber Court treatment, is whether the question our first management prerogatives open traditional Congress has so. done hiring in to allowed the free market question. not our function does answer II requiring question is instead whether Our history makes legislative of Title VII The promote one City of New Orleans to that, Humphrey put it: plain as Senator white, every whether or not the black for nothing in is [the Bill] [T]here a of discrimi- favored was ever victim black any give power to the Commis- that will nation, specific quota a is achieved is until hiring, require to court to sion or judicially-imposed remedy. permissible employees in promotion of or- firing, or legislative history of Title VII answers “quota” or achieve meet a racial to der to prac- question in clear terms. Such a buga- That racial balance---- a certain required.1 be tice cannot times; brought up a dozen boo has been not matter that the case was not It does it is nonexistent. but proved to conclusion. If the class had tried (1964). Cong.Rec, But see E.E. that the had discriminat- its contention Co., Tel. American Tel. & O. C. v. permissi- promotion practices, in its ed (3d Cir.1977), denied 438 U.S. back-pay included remedies would have ble 3145, L.Ed.2d 1161 rightful place for all class members history Jus was summarized legislative Nothing history promotions. denied Rehnquist Steelworkers tice United VII, otherwise, justifies the Title Weber, America permissible relief to that of jump from such (1979) 2721, 2735, 61 L.Ed.2d fairly obliga- as an what can described J., dissenting). that dis (Rehnquist, While remedy proportionally employ. tion Weber, carry not the Court did sent wrong. simply address the does not emphasis past it majority walked Wrong bywed can- remedy are best Congress question was whether the sole wrong. surfacing targeted A didly prohibition “an absolute intended injures persons participat- not quota which private, voluntary, race-conscious af- all segregation patterns to the ing in accused to hasten the elimi- action efforts firmative impose Congress lo on slates and Equal Employment Op intended argument 1. The quotas 92-261, exposure government employers No. local portunity Pub.L. Act of eight rejected private employers (1972) adopted judicial which construction Stat. 103 First, congres- respects. years marked shift in earlier. Such a Act In several the 1964 suffers surely spoken, purpose asscrtcdly adopted have been sional judicial construction Second, find if intended. plain. it is difficult not so persons who were not its victims what are doing ought give benefit we pause responsive wrong is defined terms over whether we have legisla- undertaken a judicially failed of a social order —of envi tive than judicial rather ques- role —also a races, jobs among sioned distribution tion magnitude. of constitutional groups ethnic and sexes. Such social or sum, provision rejected by the dering judicial power peculiar use court respond does power judicial because use of to resolve claims of the class members. The commit- disputes traditionally has and constitution wrong ted is not employ- the failure of the disputes main ally been confined er to maintain a work force in proportion to whose dimensions are drawn adverse percentage. some illegality SMSA parties.2 ordering Social is a horse once in discriminating against persons black eli- mounted from which it difficult to dis gible defined, promotion. So if after changes makeup mount because each given class member was his rightful any job populations, by qualifica overlaid place resulting employee work force by changing industry deficits posed tion should remain less than the propor- SMSA areas, given will confound to con efforts tion, it remedy is difficult to see how difficulty in Surely attempting clude. our inadequate. could be called when a “unitary” to decide school district is Relatedly, cutting is instructive. back the Ill permissible size of classes under Fed.R. of Re- The sometimes trilogy inscrutable 23, tolerating while Civ.P. decrees that af gents Bakke, University v. persons parties, of relief of Calif ford who were not 265, 2733, 438 U.S. 98 S.Ct. 57 L.Ed.2d 750 injury persons of who were never (1978); United Steelworkers America See General wrongdoers, paradoxical. is of Weber, 193, Telephone Company 2721, the Southwest v. 61 Falcon, (1979), Fullilove Klutz- 2364, L.Ed.2d 480 and 457 102 U.S. S.Ct. 72 nick, point U.S. 100 L.Ed.2d 740 not 448 is that S.Ct. (1980), ought duty require courts to shrink from L.Ed.2d 902 at the because least that discharge a its difficult or state’s use of a wrong controversial. race correct very uniqueness is, It is instead that wrong; tailored that plan "polycentric" dispute sorely may is a point It classic be. A more fundamental is that judicial taxes the role: might each of the various forms that award [Sjuppose regime (say, per a pound, socialist were de- take a three-cent increase a wages prices increase, increase, etc.) cided to have all and set four-cent a five-cent proceed courts which would after usual repercussions a have different set of is, assume, adjudication. forms of It I obvi- might require and in each instance a redefini- that here is a task could ous not success- “parties tion of affected.” fully adjudicative be undertaken meth- may We visualize this kind of situation point od. that comes first to mind is that spider thinking pull of a web. A on one slowly keep up move too courts with a compli- strand will distribute a tensions after rapidly changing economic scene. The more pattern throughout cated the web as a whole. point adjudi- fundamental is that the forms of will, Doubling pull original in all likeli- encompass and cation cannot take into ac- hood, simply resulting double each complex repercussions may count but will rather a tensions create different prices change wages. result from A complicated pattern of tensions. This would price may rise in the of aluminum affect in occur, certainly example, if the doubled for, varying degrees the demand and there- pull caused one or more weaker of, steel, proper price thirty fore kinds of snap. "polycentric" is a strands This situa- twenty plastics, kinds of an infinitude of "many tion because it centered" —each woods, metals, sepa- other etc. Each of these crossing of strands is a distinct center for distributing tensions. may reper- complex effects have own rate economy. cussions in the In such a case it is Here, again, dealing ... we with a situa simply impossible par- each to afford affected points interacting tion of of influence and ty meaningful participation through proofs a polycentric beyond problem with a therefore arguments. capital It is a matter of im- Fuller, adjudication. proper limits portance merely ques- to note that it is not a Adjudication, Forms and Limits 92 Harv.L. huge possibly tion number affected 353, 394-5; (1978). Rev. significant aspect parties, thing as that wrong, including responses to the properly tailored medial “limited a must be and as- affirmative recruitment blacks n. at S.Ct. remedy.” U.S. during the recruitment sistance to them Though establish n. 12. Bakke at at scrutiny of for adverse process; all tests into account as may be taken “race es that blacks, including plan impact; training of better of a remedial in the creation a factor” discrimination, tutors; “Advisory creation of Re- previous to counteract black, Panel,” of whom must be (opinion view half at 2751 n. at 296 U.S. whether dismiss review all decisions Powell, J.), S.Ct. at 2766 to at id. recruit; pro- Marshall, White, “recycle” the immediate Brennan, and or (opinion of that, newly officers to creat- black Blackmun, JJ.), even motion of Fullilove holds supervisory responsibili- only positions ed adopted after the plan when such supervisors; prohibition layoffs ty; thorough congressional searching most $300,000 fund. back-pay culminating legislative finding inquiry, discrimination, it must still be sub question we must address by the re examination” jected to “close quota whether the is so neces- this case is 472, 100 at viewing court. past discriminato- sary to the correction of C.J.). Burger, Jus (opinion of Chief the New employment practices within ry Fullilove, opinion Burger’s plurality tice Department Police that its adverse Orleans White, to make sure searching examination most unpleasant taste that process medial —the conflict with constitutional it does not In mak- accompanies necessary medicine. at at 100 S.Ct. guarantees.” Id. assessment, ing we must consider this concurring opinion Powell wrote a Justice fairly expected when effect beneficial of a adhering to his endorsement Bakke other, of this unchallenged elements for all standard of review scrutiny strict implemented. are It cannot consent decree 495, 100 S.Ct. racially-based plans. Id. at quota that a which plausibly be contended Stewart, Dissenting, Justice at 2783. not vic- advantages blacks who have been Rehnquist, urged that by Justice joined discriminatory practices at the prior tims of person treats a “any action official may who expense of non-black officers ethnic differently of his race or on account perpetrated or benefited those have inherently suspect presump origin of effective practices qua is the sine non at tively Id. at invalid.” compli- bring department into relief to this (Stewart, J., dissenting). of Title VII and ance with commands ap- Fourteenth Amendment. opinions From multitude in Fullilove would pears that five Justices past con- Black individuals have in “a proposition to the most subscribe discriminatory employment against tended searching minimum examination” function of the practices, and it is the plan remedial scrutiny standard appropriate relief for courts to fashion employs race as an em- forthrightly prop- courts must these individuals. The adds no further criterion. Weber ployment necessary to abol- er cases also take action question because the ab- insight into this black practices that additional ish these so pretermit- any action there sence of state them the will not confront individuals challenged plan for any review of the ted attempt to deal But future. when courts of the Four- compliance with the dictates though they uni- races as were with entire Amendment. teenth betray dictate of the groups, we fied not, Fifteenth Amendments not, ought Fourteenth We need and therefore used to classi- should not be in that race alone question quotas of whether reach the members of the individual assertedly responsive fy and delimit employment public by the rights created group. “The constitutionally can prior discrimination Amendment section of the Fourteenth first ever include non-victims. individ- are, terms, guaranteed other re- decree included numerous personal prosecute established are ual. now their group basis; case on a rights____ Equal protection of the laws is application traditional of the through imposi- not achieved indiscriminate class relief doctrine embodied Fed.R. Kraemer, inequalities.” Shelley v. ultimately specific tion of Civ.P. 23 and affirma 1, 22, 836, 846, 92 L.Ed. tive relief will focus on individual class omitted). (1948) (footnote members. What I accept cannot is the notion that black race” is indepen “.the sight When we lose of the need to tie legal entity dent past that relief for remedy wrong, very we confound against persons black should vindicate, principles striving we are be special take the form of advantages grant impose we cause burdens confer bene ed in the future to “the black race.” along fits racial lines with no assurance Races, se, per are not proper parties to a thereby undoing injustices that we court action. rather, past; by regarding races— and not their individual members—as A substantial consideration impelling the court, though they parties Supreme were before the uphold Court to racially non- perpetrate injustices derogation we new contracting neutral scheme challenged in right of those benefited and bur presence Fullilove was the legisla- dened alike to be treated as individuals. tive scheme of administrative safeguards addition, thereby impair we our ability designed own imposition to minimize the of ben- express in coherent and cohesive fashion efits justifiable and burdens not as reme- our commitment to the doctrines of individ dies discrimination. 448 U.S. at 486-89, ual worth central to our modern constitu (opinion 2778-2780 jurisprudence. C.J.). Here, “If it is Burger, tional the individu by contrast, pro- judicial protection al who is posed promoting quota entitled to made no effort to upon classifications based his prior racial correlate victim status to future ad- background vantage; or ethnic because such distinc ipso to be black would be to facto impinge upon personal rights, tions plan. rather benefit under this than the individual because of his But, class3 replies, Wis membership particular group, then writes, dom desegregation school cases may applied constitutional standards infrequently employed have not group re Bakke, consistently.” at 438 U.S. Judge medial devices. Wisdom's assertion Powell, J.). (opinion hardly can be denied. Under our school principal failing proposed quo- desegregation jurisprudence, the school dis regards ta is it all members of the tricts are either within or without a state of class, single legal black race as a rather than grace, unitary. definition, termed By recognizing group composed every system in such specific child is a individuals, some of have any illegality. whom suffered victim of group Such reme past the invidious effects of discrimination quotas dies never involve the use of and some of have not. I whom have no sense that sole entitlement to relief is a course, objection, grouping those indi- independent matter of race of whether the wrong who person viduals have suffered some awas victim.4 virtually learning 3. The class was abandoned in the bar- 4. Wc arc that much of our school liti gation proceeded gained quota, why. large has for with no hint as to with ill-defined and Indeed, ly ignored litigants. classes of in sonic certified class included victims: long years cases we learn after as ten as that no persons applied 1. All black who have for plaintiffs class of was ever certified and the employment patrol- but were denied originally proffered representatives, class Depart- men in the New Orleans Police counsel, long depart sometimes have their since ment. Attempting high ed. to terminate such cases persons presently police 2. All black who arc lights estrangement party-ori their from classic officers, formerly police officers or were disputes. contemplate ented Our rules that a subject racially who have been discrim- parties. history desegre suit has of school inatory practices assignments, promo- Parish, gation in Caddo Louisiana is illustrative. tions, discipline general by treatment Board, See Jones v. Caddo Parish School supervisors employees. their and other denied, (5th Cir.), F.2d 801 of nourish proposed ly insoluble “social conundrum court confronted The district it.” ing ethnicity in an effort to starve decree, many elements of which consent Republic Bank Vuyanich v. National desir- presumably are unchallenged and (N.D.Tex. Dallas, F.Supp. countering effects of able means (5th Cir.1984). 1980), rev’d, 723 F.2d 1195 presence, their With past discrimination. Nevertheless, defy do not ra isolation, these issues if viewed be the case whatever exposition. tional inartfully was unlawful quota no effort drawn; first it was drawn Though ultimately agree with the re- I by mem- class injury suffered remedy Williams, Judge I by cannot sult reached sum, awkward and cumber- bers. suggestion proposed his accept remedy cannot withstand some quota would have been constitution- hiring must, it “searching examination” by permitted Title al and would have been presented least, when encounter at the approved the district VII had been re- The court’s decision judicial review. objection prevents me same court. This proper. approve the decree fuse to Judge scholarly and joining Wisdom’s my set dissent. While views are masterful IV greater they parallel forth in detail those expressed to allow rea- nothing by Judge the refusal Gee. For these There impedes join settle- affirm the promotions which sons I the decision to quota rejection pro- court of the VII class suits. Had of Title ment return case posed mechanism consent decree and a reasonable decree articulated putative victims for trial. for the identification promotion in an imme- for their

and called WISDOM, Judge, with whom Circuit time, it would way period or over a diate BROWN, RANDALL, POLITZ, TATE and The end result unassailable. have been JOHNSON, concurring Judges, join, Circuit requirement that might have been a well dissenting part part: promote more had to would have persons, but that persons than white black a proposed involves This case similarity a fundamental in result masks institutional, providing color-con- decree in a remedial the use of race difference in scious, to undo the ef- affirmative action is defined That difference generations scheme. fects of judiciary of our party oriented character group as a in the New Or- blacks Congress in com- by the Department. and was drawn Police leans passage of Title which allowed promise holding expressed I concur in the VII. for the Court that opinion Williams' hiring, rein- require court order can No bar affirmative action Title VII does not statement, membership, or admission to to permissible and remedies does not limit anyone back-pay for who payment of actual victims of discrimination. fired, employment or not refused Weber, v. America United Steelworkers of by a union or admission to advancement 2721, 193, 1979, 443 61 U.S. by forbidden an act discrimination 480, Supreme the United States L.Ed.2d Title. that Title conclusively determined 62, prohibit affirm VII does not race-conscious 914, Cong., 2d Sess H.R.Rep. No. 88th 201-03, 99 S.Ct. plans. action Id. at ative Ad. Cong. reprinted 1964 U.S.Code & private involved affirm at 2726-27. Weber News 2391. action, is the same ative but the issue here V with Is it consistent as the issue Weber: employer voluntarily today extraordi- VII for an before us are Title The issues goals to seeming- adopt prospective race-conscious They present the narily difficult. 218, nearly twenty years (1969); no certified class 180 421 F.2d 313 24 L.Ed.2d S.Ct. Cir.1974); (5th Cir.1970); (5th being challenged, 704 F.2d 914 its dismissal is now 499 Cir.1983), (5th notice). reh’g granted proper 206 en banc part, F.2d for lack of (case (5th Cir.1983) proceeded has F.2d 120 718

1571 remedy past exclusion of blacks from the Detroit Police v. Young, 6 Cir. Officers denied, 1981, Weber did make 1979, 671, cert. workplace?1 thing 690, One 608 F.2d 938, To the effects of 101 clear: undo historical race S.Ct. 69 L.Ed.2d Any position 951. by employer, prohibit an there need such rejected.3 action is anomalous and must showing be a of identifiable be not victims. This Court reached the same conclusion a development At this late date Local See Asbestos decade earlier. remedial relief for longstanding race dis Vogler, Cir.1969, v. Workers 5 407 F.2d crimination, government intervenors departed We have never from our 1047. and my Higgin esteemed brothers Gee and interpretation Congress of Title VII that botham the authority contest of this Court intended that affirmative action be taken to prospective order affirmative race-con vestiges remove the of racial discrimina Judge questions scious remedies. Gee Miami, City tion. United States authority of in existence constitutional to or part Cir.1980, F.2d prospective der by aff'd affirmative action “a part vacated and remanded on other unit of state government” that benefits a (en banc), 5 grounds Cir.1981, F.2d group class “without reference principal purpose passage 435. A for the whether those favored have ever been the voluntary of Title VII was to induce solu victims of injured discrimination or those tions, remedies, including race-conscious practiced have either or benefitted workplace.2 Judge racial discrimination in the it”.4 Higginbotham end expands Judge Weber, 2726; exposition 443 U.S. at argument S.Ct. at Gee’s of this and also Council, Fiss, Equal Advisory Employment Rights Injunction (1978), 1. 3. See O. The Civil organized promote (among staling association other interests) employers, interest filed brief beneficiary typical "The civil argues as amicus curiae. brief that this individual, injunction is not an or even a employers "Court should reaffirm that who vol- individuals; collection of identifiable rather it untarily agreements enter or have into entered group is a social blacks. The contours —the group consistent with standards set out benefitted arc determined not Supreme Court in Weber ... remain free to personal person characteristics of the who agreements as a use defense to 'reverse happens plaintiff to be the named but rather general discrimination’ suits.” The counsel for considerations who should—as a matter Equal Employment Opportunity Commis- fairness, efficacy, equal protection the- (EEOC) sion submitted a brief to the Justice ory [Tjhis the benefit.... is due ... —receive Department adopted position, similar stal- group underlying character sub- ing authority that "a court’s remedial under stantive claim." solely making Title VII is not limited whole Id. at 14-15. discrimination, prop- individual victims of erly may encompass relief in the form of race- prohibit It is clear that Title VII does not goals hiring promotion conscious for the by governmental employers. affirmative action Although minorities.” the EEOC did submit upheld plans This Court has affirmative action Court, the brief to its contents were incor- by governmental employers. United States porated by in an reference amicus curiae brief. Alexandria, Cir.1980, 1358; City note 5. infra Miami, Cir.1980, City United States v. Detroit, F.2d 1322. In Bratton v. 8 Cir. Skelly Wright, discussing J. the Civil — 878, 884, denied, Rights Act of stated that -, 79 L.Ed.2d the Court purpose legislation “The cannot de- specifically noted that "Title VII was amended help nied: to blacks and members of other public employees purview to include within its groups minority prejudice the that overcome agencies so that states and their official are oppresses special give them. Its effect is to explicitly subject to VII Title mandates". See advantage minority groups. to those To call 1972, 2(1), (5), Equal Employment The Act of § legislation meaningless such is a 'color-blind' 92-261, Pub.L. No. 86 Stat. 103. The Legislation abstraction. dis- invidious Department Detroit’s Police used a ratio 50-50 helps crimination one race and not the other percent goal and the establishment of a 50 end one because race and not the other needs by to 1990. be achieved In Weber Bren Justice help." such emphasized private the nan nature of the af Wright, and Color-Blind Theories Color-Con only firmative action to make clear that there Remedies, 47 U.Chi.L.Rev. 220-21 scious stale was no action issue in the case. identifying provision for the legislative makes no on the cree based a contention adds discrimination or actual victims of unlawful government in The VII.5 history of Title limiting victims.6 relief to those Sec- for power that this Court’s tervenors contend ond, allegedly one-for-one ratio does the by the relief is limited to affirmative order compelling a state interest. not serve measures to those fourteenth amendment necessary to make whole the actu opinion the Judge that Williams’ al, discrimi of unlawful I victims the constitutional issues. identifiable does not reach is race-conscious. intervenors main government The do. Constitution nation. amendment, promo challenged one-for-one Under the thirteenth Con- tain that the contemplates, equal pro- constitutionally for two is infirm stitution plan tion of the fourteenth amendment First, de- tection clause proposed reasons. jor Senator Times, Higginbotham’s Justice to the Commission into the State of two amici C.F.R. arguments on cy racial Report, eradicate agency coordinate tive cording (sic) brief as Appeals [the Says ing, 67: Stand ative action ... no filed istration Prods ington made in the brief prepared From Justice 7, 1983). supporting (1978) pressured ministration history in Vote to Withdraw Judge Higginbotham contends that The Under meet Review internal legal EEOC, reasoning, A6 (1978), firing, proposed history (West Supp.1979), and in episode appear in its It Won't File Commission balance”. brief on New Orleans Suite Department, attempting disputes relating Post, p. of (April Humphrey “EEOC Bows to White a Court brief that Reorganization Plan No. 1 of merit short employment D15 Title entirety racial curiae, (1970), and the William their or Executive Order careful dispute all federal of Tille carefully stands on racial Department, p. promotion of 6, 1983). Equal Employment legislative Bill] authorities, primary answer, (April VII and all of the relevant and was a threat EEOC on and the A1 press, interpretations or to 'quota' Individual Freedom. reprinted The Center New successfully brief to be filed prepared put over civil (April said an VII "makes answer 8, 1983); discrimination.” examined the agencies “The White Orleans in this it: agency Brief to Department or appendix will history. Wall sharply Justice’s consent decree. Ac Title [T]hcrc Quotas court to to in 5 U.S.C.A. employees in No. O. also, give any power quotas BNA to 1983). achieve opinion, St.J., Due to Pressure language Douglas Brief, of Tille House VII. his arc EEOC Reverses National squelch to the brief of Pressure Seen criticized settling plain Opportunitite Quotas, withdraw an is Brief, to efforts to position Daily argument policy, require hir- in this case and affirm House and p. required of Justice's EEOC, nothing Stat. 3781 The EEOC Details 1983 DLR legislative a certain Pressure, to VII 3 C.F.R. Inquiry I Admin App. legisla- of that Wash Labor (April adopt order inter- deci- have Poli- with N.Y. ma had but Ad as to to judicial proceeding department that title. The EEOC concluded that: sions Title there chance of slimmer chance would victims ble victims” the EEOC’sconclusions. & the individual L.Ed.2d 1161. appropriate uals additional strain would denied, 1979, 438 ignore hiring victims. have from blacks Every ment of the district leans Police Ignoring "[1] ^[2] favor Tel. department's discriminatory practices. would be entitled addition, applied for a arc VII touching upon solutely prohibited by Title VII cither race-conscious tion ment.” [Tjhcre simply contravene and in guage of prospective ed because discrimination. history [T]hcre not restricted to Co., would voluntary practical decision impossible being Justice’s suits. to evidentiary problem component who are deterred from approach vehicle to 3rd case. Department in fact preclude courts. victims. Some blacks would not to promoting impede voluntary restricting accepted, simply legal Section suit on the Cir.1977, A indicate directly problems the clear intent of settlement and suggestion race-conscious being promoted. position benefits perceived consent decree would employment goals determine issues for the advocated is not to relief. This already-strained identify government law for the identify courts is 706(g) origin EEOC American Tel. actual victims of or if because relief to identifiable inhibits nothing in the require with the "identifia- point agrees accepted, Congress as anti-black or these individual sufficient basis actual victims. which individ- Fifth Amend settlement equal of their slim the New Or- relief applications Department applying meaning intervenors prospective identifying approving legislative relief are approach Congress moment, A phase dockets govern- intend- arc ab protec simply police place their with lan- It II

1573 race-conscious, prohibit, torically does class- not there has been discrimination not based, against prospective relief a unit of state an individual black as an individual government appropriate against Thus, case. but blacks as blacks. when systemic faced with our appropriate society’s case is one which discrimina- racial dis- against governmental system- class, crimination tion in a state unit blacks as a wide, institutional, remedy effective must be product and the of a color conscious. Writing separately long history in University of discrimination Cali- Bakke, 1978, Regents v. 438 group blacks as continue what U.S. fornia 265, 2733, 750, S.Ct. 57 L.Ed.2d system.7 to a I amounts caste would hold Justice Blackmun stated: requested relief is within the dis- grant. power trict court’s I respectfully get beyond racism, “In order to we ____ part opinion from the of the dissent Court’s must first take account of race holding judge did in order to treat persons some [a]nd rejecting the pro- abuse his discretion equally, we must differently. treat them posed consent decree. We Equal cannot ... let the Protection perpetrate supremacy.” Clause racial I. 407, Id. at 98 S.Ct. at 2807. The Constitu dogm is not Color-blindness constitutional equal tion calls for treatment under the system, a.8 When a vice is inherent in law, light pervasive past of the only by can be vice eradicated restruc discriminatory practices present and the ef turing system. preeminently This was practices, fects in many of these cases this public systems true school goal active, can by taking be achieved principle of South. The institutional relief steps affirmative to remove the effects of ” applicable apportionment cases, is also prior inequality.10 ordering Neither af cases, eighth prison amendment condition permit firmative action the courts nor cases, hospital ting mental and other eases.9 It by employers action in the area state, applicable in especially many coun employment discrimination breaks new ty, municipal departments legal ground.11 in which his- Dimond, 385, denied, 840, 67, Principle 7. See The Anti-Caste Toward S.Ct. 103, stating a Constitutional Standard Review Race L.Ed.2d [or Cases, (1983): Wayne L.Rev. 1 "The Constitution color is both blind and col- or To conscious. avoid conflict depict liberals conservatives] "[Both clause, equal protection a classification that primary wrong of official racial discrimina- benefit, harm, imposes denies a causes people tion ... as a failure treat black burden must not be based on In that race. regard individuals without to race.... This sense, the Constitution is color But blind. understanding personal rights and the indi- prevent Constitution is color conscious to dis- wrong ignores vidual of racial discrimination being perpetuated crimination and to undo problem: potential group fundamental effects discrimination.” injury. Longstanding nature caste dis- F.2d at society’s crimination can build bias into general impose institutions harm on most Fletcher, Discretionary 9. See Constitution: disadvantaged members racial Legitimacy, Institutional Remedies and Judicial group.... wrongdoing beyond extends (1982). 91 Yale L.J. 635 discriminatory particular specific acts of officials, public and the harm is not limited to Wright, 10. See Color-Blind Theories and Color- particular persons directly affected those Remedies, Conscious 47 U.Chi.L.Rev. 213 acts....” prospective removal racial barriers and (footnotes omitted). Id. at 1-2 remedying present effects of these through promo barriers affirmative action and Bakke, University Regents 8. See California goals workplace necessary tional arc 2733, U.S. 57 L.Ed.2d 750 steps. Charlotte-Mecklenburg See also Swann v. J., Brennan, White, joined (opinion Black- Educ., 1971, Bd. mun, Marshall, JJ.), stating that "no deci 554, finding plans L.Ed.2d that affirmative adopted proposi sion of this Court has ever constitutionally required to eliminate state-im tion must be Constitution color-blind”. posed segregation. Id. at See also United Educ., County Johnny-come-latelys States Bd. 11. "We 5 Cir. are not in the eradi- Jefferson banc, through en 380 F.2d cation of racial discrimination race aff’d 1574 permissible Nor am I inclined to retreat from the is action That affirmative by City in position taken the Court Mi cases, required does not mean and, in some of strict-scrutiny of review A standard ami. by the escape scrutiny remedies such required constitutionally not in so-called is in intervenors government The courts. discrimination,12 “benign” or affirmative scrutiny” of all urge “strict this case action, required scrutiny cases. Strict required by Su classifications racial group when that suffers harm because position is Their precedent. preme Court possesses the classification the “tradi of unsound, This in Title VII cases. at least is, suspectness”, tional indicia of that when the use of the strict- rejected has target historically class has been sub in the context of affirma scrutiny standard singled jected or out for un to disabilities VII Title plans actions embodied tive majority. equal treatment Univer City decrees. United States v. of Bakke, 438 sity Regents v. of California 1322, 1337-38, Cir.1980,

Miami, 614 F.2d 5 Brennan, J.). (opinion atU.S. 356 of Classi part vacated part and aff'd remanded oppressed group that harm an are fications (en banc), grounds other discrimi likely to be the result of invidious 1981, 435. Under standard 664 F.2d prejudice. Such classifications nation or Miami, an affirmative adopted City of stigmatize group pro warrant requirements: meet plan must two action scrutiny. tections afforded strict necessary remedy reasonably It be must 1954, Education, Brown Board 347 v. discriminatory practice, and it must 483, 686, 98 L.Ed. 873. S.Ct. Con ending substantially goal to the related required versely, scrutiny is not strict at 614 F.2d pattern discrimination. majority minority when the favors at the in this case reveals 1339. record cases, majority’s expense; in own per disparity gross statistical between is diminish risk invidious discrimination police in all centage of blacks ranks Ely, Constitutionality Re ed. See of blacks percentage force and the Discrimination, 41 U.Chi.L. verse Racial community and in work force. On 723, Rev. 727-35 Because affirma record, it, I I find that the as read would plans catego tive fall into the latter action plan scrutiny required; an challenged promotional ry, one-to-one strict not inter scrutiny mediate level of is sufficient to removing is both disparity aimed at requirements. meet constitutional necessary reasonably eliminate the ef fects of substantial accepting government Even interve- important governmental ly related however, position, assuming nors’ removing racial barriers in em interest requires scrutiny the Constitution strict passes plan ployment. race, constitutional I all based on classifications review properly muster based on standard of affirm- conclude that formulated plan13 achieving ra- Miami. ative action aimed at adopted this Court Crisler, plans required v. Cir. tive to eliminate state-im- means." Morrow conscious J., 1053, (en (Brown, 12, banc), posed segregation." at Id. at S.Ct. 1274. concurring). af For a detailed discussion of circuit, see & L. firmative action in F. Read Organizations Carey, 12. United Jewish McGough, Judged: Be The Judicial Let Them 1977, 144, 996, 169, 430 U.S. 51 L.Ed.2d (1978), Deep Integration Wilkinson, and J. South J., (Brennan, concurring), characteriz- (1979), espe From Brown to Bakke ing plans purposeful that use race in a manner cially chapter Supreme ex Court has 5. "benign” they racial when contain no slur or affirmative, pressly upheld relief race-conscious stigma. desegrega voting cases and in school See, e.g., Organiza Jewish tion cases. United properly plan A is one that ad- formulated Carey, 450 U.S. tions VII, purposes vances Title that does not 229, stating L.Ed.2d that "the Constitution “unnecessarily trammel” the interests other deliberately prevent a state ... does employees, and that does not create absolute majorities”, creating preserving at black Id. by non-minority employees. bar advancement 161, 97 S.Ct. at and Swann v. Charlotte- Weber, Am. v. 443 U.S. at United Steelworkers Educ., Mecklenburg Bd. of 208, 99 S.Ct. 554, stating that "affirma- L.Ed.2d employment police equality enforcement, cial of or anee to effective law the department scrutiny. government fire survives strict has an interest in a police de- review, strict-scrutiny Under a standard of partment in which the blacks have fair a compelling a classification must serve policing responsibilities. share of governmental closely and must be interest Despite importance the of govern- plan purpose. tailored to that A such as mental interests served by affirmative ac- challenged at one this case serves tion, government intervenors in this interests, least two such both of which assert case that a prospective race-con- promote tranquility domestic within the plan scious cannot scrutiny withstand strict First, a compelling state. the state has not “closely because is tailored” to the in curing interest effects racial state’s They interest. maintain that relief en workplace discrimination in the and in “closely only tailored” when it is limited suring integrated work force. & Kurst to make-whole remedies awarded to identi- Horowitz, Equal Action and Affirmative prior victims racial discrimination. fiable Protection, (1974). 60 Va.L.Rev. I reject this contention. In some circum- group representa This interest focuses on stances, class-based required relief both employment tion in and is distinct from “closely By tailored”. failing recog- right that focused on the be individual’s nize this principle, government interve- free discrimination. EEOC v. AT T& ignore thirty years nors of jurisprudence Co., Cir.1977, 167, 179-80, 556 F.2d cert. and strike a severe blow the cause of denied, 1978, 438 U.S. S.Ct. protection. equal Thus, 57 L.Ed.2d 1161. the state’s interest Supreme When the Court decided Brown be adequately remedy cannot served Education, v. Board it showed little only rights addresses identifia interest plaintiffs. individual If the ble victims. plaintiffs discrimination the suffered indi- Second, urged as is in this case vidually primary had been a concern of the (amicus curiae) City of Detroit and as has Court, the Court required would have in- recognized by been States United stant admission of the children Circuit, Appeals for the Sixth the im they to which applied. schools had In- proved law enforcement that results from stead, postponed argument the Court on greater minority participation is a suffi Term, following relief because its ciently compelling reason for affirmative undoing interests focused on the effects of action.14 Detroit Police Associa Officers’ longstanding blacks Cir.1979, Young, tion v. group, as an ethnic provid- rather than on denied, ing relief to the “identifiable” individuals. 69 L.Ed.2d 951. This interest remedy desegregation “with de- all “operational has been labled the needs” speed” recognition liberate was a clear upon findings defense. Id. It is based involving in a case restructuring in- of an public law enforcement studies that co stitution the group relief must oriented. be operation support police with and by minority representa Unfortunately, highly force are enhanced on remand a re- community.15 garded judge tion that reflective of the took narrow view public importance Supreme Because of the assist- Court’s decision Brown. Kaplan, Equal Unequal Young, 14. See Justice in an 15. Detroit Police Ass'n v. Officers’ (citing Equality Negro Advisory National World: Problem Comm’n —The Goals, Treatment, on Criminal Justice Standards Police Special 61 Nw.U.L.Rev. 363 (1973); National Comm’n Causes Although Kaplan suggests ju- Professor Violence, Report: Prevention of Final To Estab- diciary policy respect maintain a hands-off Justice, Tranquility lish To Insure Domestic remedies, recognizes he affirmative (1969); Report Advisory the National police may urban work a black officer more (1968); Comm’n on Civil Disorders President's job simply effective in his because his race. on Law Comm’n Enforcement Administra- Id. at 388. Justice, Report: tion Task Force The Police (1967)). system is in the language group. When the vice upon seized John Parker institution, system or institution segregationists and die-hard appealing to to eliminate the on must be restructured judges schooled lawyers and to those created vice.17 notion that rights per- amendment the fourteenth argued persuasively that Nor can it be Elliott, Briggs v. individual. sonal to the right appropriate only in group such a curiam), F.Supp. 1955, (per 132 E.D.S.C. desegregation.18 the area of school Educa 776: and purpose little small motive tion serves ... [equal protection education, does “The if clause] to blacks exists obtain It not for- integration. does require not to their educa opportunity denied the use as the as occurs segregation through employment opportuni equal bid tion merely voluntary It for- Crisler, action. result in ty. Accordingly, Morrow v. 5 governmental power to 1053, banc), denied, the use (en bids F.2d Cir. 491 cert. segregation.” 895, 173, 1974, enforce 42 419 95 S.Ct. L.Ed.2d U.S. 139, fashioning of an af we ordered overcome labored to at 777. This Court Id. Mississip for the hiring program firmative dictum, I view as identical Briggs which pi Highway Patrol that would “work[ ] Attorney meaning in effect with the in discriminato now ... [to eliminate] work[ ] in this Relief is shibboleth ease: General’s ry hiring policies ... [to eradicate] victims. This Court to identifiable limited Id. at 1056. And evils of their existence”. Briggs v. finally overcame the Elliott 1960s, rights this voting cases v. thinking in United States Jefferson designed adopted remedies to ensure Court Education, Cir.1966, 5 County Board of vestiges all of discrimination would be that 836, Jefferson, n. this 372 F.2d 846 5. so, had to doing removed.19 In we deal Supreme de Court’s Court stated blacks, individually with blacks as not but a fashioning relief Brown was lay in “closely group. as a This relief was tai present’ ‘personal “the recognition that meaning lored” within the of the constitu yield must plaintiffs the individual right of requirement. tional overriding Negroes as a right completely integrated public a edu class to made in progress remedying No can be an af imposed at 868. We cation”. Id. until, discriminatory practices appro- in an to duty firmative on the school boards priate case this one such as before system the dual educational Court, eradicate oppressed we relief for the fashion “lock, stock, and Without this wholly concept barrel”.16 group reject discrimination, relief, such as deter some I Parenthetically, victims”. “identifiable applicants rence of unidentifiable black ask: Who were “identifiable victims” they jobs, go apply segregated drinking wading before fountains or even Thus, pools public parks? folly aimed unremedied. relief requirement government position intervenors’ should be group meets the constitutional systemic If “closely when relief had been limited identi- tailored” relief evident: discrimination, desegrega- perpetrated victims of has been fiable (footnote added) (emphasis Supreme duty tions." Id. at 287 Court described 16. omitted). requiring discrim- the elimination school one County v. and branch". Green ination "root 1968, Directors, County, Armstrong 7 Bd. New v. School School Kent 18. See Board of 716, 437, 1980, 317, finding 20 L.Ed.2d F.2d that “it is Cir. employment clear that the involved Laws, scope, origin, Fiss, desegregation similar in Theory cases are Employment 17. See A Fair significance" in school those involved Fiss and desegregation U.Chi.L.Rev. 235 Professor principle cases. is a well-established to every color, all citizens of race and present eliminating aimed at effects of regard and without previous to servi- against blacks as tude, those fundamental which are Wholly class. aside from the fourteenth freedom, the essence of civil namely, the amendment, the thirteenth amendment20 is right same make to and enforce con- grant power an affirmative to eliminate tracts, sue, parties, to evidence, give be slavery “badges its and inci along inherit, lease, purchase, sell, and to and dents” and to establish universal civil free convey property enjoyed by as is white 1883, Cases, Rights dom. The Civil citizens; that under the Thirteenth 3, 18, 3 S.Ct. L.Ed. U.S. 835. The s Amendment, Congress has to do with amendment envision affirmative action slavery incidents; and its legis- and that aimed at blacks as a race.21 When a lation, so far necessary as or proper to present effect discriminatory upon blacks eradicate all forms and incidents of slav- class as a can linked with a discriminato ery involuntary servitude, and may be ry practice blacks as a race under primary, operating upon direct and slavery system, present may effect individuals, acts of whether sanctioned auspices be eradicated under the by legislation State or not.” thirteenth amendment. As the first Justice 109 U.S. at 35. pointed opinion out in dissenting Harlan his Rights in The Civil Cases: VII, enacting Congress Title expressly “That there are burdens and disabili- upon power relied its under the commerce badges slavery ties which constitute legislation clause. The supportable, servitude, power however, and to under enabling clause of the by appropriate legislation enforce thirteenth amendment to the same extent that, may Thirteenth Amendment said, be exerted as the first Justice Harlan by legislation of a primary direct and Civil Rights Act of 1866is supported by the character, eradication, simply for the thirteenth amendment. At the time of the institution, badges of its passage Rights 1964, but Civil ofAct incidents, propositions ought which thirteenth amendment was in a state that-is, slavery power, extirpate "Section 1. Neither nor involun- ment—the to the ves- servitude, tary except punishment tiges slavery.... Congress per- should be party duly shall crime whereof have been predomi- to mitted seek the fulfillment convicted, States, exist shall within United promise nant of the three War Civil amend- any place subject jurisdiction. to their promise That ments. henceforth Congress power Section 2. shall have to authority Nation's would so be exercised as to appropriate legisla- enforce this article inhumanity subdue law’s to man.... [I]t tion.” power takes no stretch to of constitutional Const. U.S. amend. XIII. authority exercise the Nation's over acts Howe, racial terror and violence in Rights, communities that See Federalism Civil supreme (1966), rejected Proc.Mass.Hist.Soc’y stating have law of the land encouraged go large.” hatred "Congress power with the is ... vested con- Id. at 27. upon it Amend- ferred the Thirteenth Congress drafted the thirteenth Supreme Court’s de- until Not disuse. Co., 1968, recognized scope, its broad but Mayer amendment v. cision Jones Alfred 2186, 20 409, L.Ed.2d judicial artificially S.Ct. nar- early interpretation 392 U.S. to its 1189, restored amendment was the Rights its reach. In The rowed Civil scheme. in the constitutional rightful place 1883, 3, 18, Cases, 27 L.Ed. 109 U.S. 3 S.Ct. constitutionality action taken Supreme thir- held that the however, depend on “does not Congress, give Congress amendment did not teenth power which undertakes recitals authority providing to enact law Miller, Woods exercise”. right access to persons equal have all 138, 144, L.Ed. inns, convey- public accommodations 1983,460 Wyoming, 602; see also EEOC ance, Writing public amusements. L.Ed.2d 18. majority, Bradley reasoned Justice for the amendment lends con- Thus, the thirteenth slavery running the would be that “[i]t action to affirmative support stitutional apply to make it argument ground, into the Title VII.22 auspices of under the taken per- which a every act of discrimination thir- debates on the congressional fit to make”. Id. at may see son op- its reveal that both teenth amendment Bradley adopted a narrow at 30. Justice recognized its proponents ponents and badge of slav- of what constituted view Bu- far-reaching potential. generally limiting legal ca- ery, the definition Quest chanan, Legal Freedom: A rights.25 pacity enjoy fundamental Id. Amendment, 12 History Thirteenth of 24-25, 3 at 30-31. at S.Ct. tenBroek, (1974); Thir- 1 Hous.L.Rev. Harlan, in his famous The first Justice to the Constitution Amendment teenth of dissent, rejected interpreta- the restrictive States, 171 39 Calif.L.Rev. the United by majority. He reasoned adopted tion slavery mandated (1951).23The abolition of slavery badges encompassed of all that to the not confined by the amendment continued to label blacks as practices that is, block”, that of the “auction elimination 39-40, at inferior of their race. Id. because legally servi- institution of enforceable 41-42; Plessy Fergu- v. 3 S.Ct. at see also badges It tude. also extends 537, 552, son, 163 U.S. 16 S.Ct. slavery system that were a incidents of J., (Harlan, dissenting). L.Ed. 256 imposed as a race. The aboli- upon blacks Accordingly, the amendment’s thirteenth to leave slavery was intended tion of necessi- mandate of universal civil freedom grant- freedom.24 In wake universal civil against of a protection tated blacks as class carry Congress power to out ing regard to their racial discrimination with mandate, necessarily amendment 36, 3 at 24. rights. civil 109 U.S. at S.Ct. practices to power eliminate grants the their new- enjoyment of The burdens badges to blacks with that continue burden classified as rights found thus should be inferiority to hinder the achievement slavery. badges of universal freedom. Tribe, totally gress] outlawry make the effective". Law L. American Constitutional 22. See Amendment, 5-13, (1978), stating "Congress pointed Harlan at "The Thirteenth out, § reason, free, recog- right’ the 'national of slavehold- the broad limits abolished within wishes, rights it the in- new define nation- nize whatever ers to hold slaves and substituted rights fringement right as a of domina- of those form status of an ‘inferi- al to freedom from the slavery, proscribe race,’ aspect Negro tion and thus been forced into a status the had or infringement as a violation of the thir- Kinoy, by slavery." Con- institution of Freedom, Negro Rutgers teenth amendment”. Right stitutional L.Rev. discussion, complete see ten- 23. For more (Rev. Ed.1965). Broek, Equal 1st Under Law right to included the contract 25. These testify property, and in court. Funda- hold Howe, Rights, and Civil Federalism 24. See distinguished legal rights were from so- mental (1966), stating Proc.Mass.Hist.Soc’y Cases, Rights 109 U.S. at rights. Civil cial was "a constitutional the thirteenth amendment 22-24. "empowered outlawry” slavery [Con- Although interpretation Harlan’s Justice Orleans the CivilWar in 1862. There is testimony in the record that there were closely reflected intent of drafters no in Department black officers until 1950. amendment, that interpre- of the thirteenth historically This is incorrect. Federal years. tation unheeded for 85 Even- went troops occupied New Orleans from 1862 tually Supreme vindicated policed it, until assisted Co., 1968, Mayer Court in Jones Alfred municipal officers, small force of police al- 409, 88 L.Ed.2d most all black. In 1868 Governor Henry Mayer, Supreme Jones Clay put legislation Warmouth through power Congress, Court affirmed the creating Metropolitan Police for Or- amendment, pro- based on thirteenth leans, Jefferson, and parishes. St. Bernard hibit all in the sale racial discrimination and Using black) Republican (mostly mem- 437-44, rental at property. Id. city bers of police nucleus, the old aas “Congress 2202-05. The Court held that military Warmouth it into organiza- made power has under the Thirteenth tion expanded that was later into what rationally Amendment to determine what amounted state to a gov- militia under the badges slavery, are the and incidents of ernor's control. The Metropolitan Police authority and the translate determi- came military to be the arm of the Radical legislation.”26 nation into effective Id. at Republicans through at 2203. say, Under Jones v. Needless to most Louisiana whites bit- rationale, terly police. Mayer September current resented the forms racial On 14, 1874, a still annually date celebrated badges slavery are Orleans, certain citizens of New the White may proscribed under the thirteenth League (Knights of the White Cam- they historically amendment if linked ellia/First City Regiment) Crescent fought slavery involuntary servitude.27 pitched Metropolitan battle slavery One the cornerstones of was Police at foot of Canal Street New denial equal race-based economic Orleans. Leaguers, The White among opportunities, especially governmental White, Douglas whom was Edward later jobs requiring the of authority. exercise Court, Chief the Supreme Justice of routed Historically, linkage there is a close be- police- sides, with loss of both life on tween the discrimination blacks in and although troops federal under General Department the New Police Orleans and Philip order, Sheridan later restored Crowism, the Black and Codes Jim which Metropolitan longer Police was no effec- slavery. were, were There substituted .Leaguers patrolled tive. Armed White course, of black no law enforcement offi- polling precincts in the election of 1876. troops occupied cers before federal Hayes-Tilden New After the “deal” Codes, 26. "Just as the Black enacted after and that "discrimination in the sit-in cases Note, Civil War to restrict slavery". exercise of those is a relic of See [therefore] also rights, sys- were substitutes for slave The "New” Thirteenth A Amendment: Prelimi tem, negroes exclusion of so the from white nary Analysis, 82 Harv.L.Rev. 1308-09 became (1969); Howe, communities a substitute for the Rights, Federalism and Civil And Black Codes. when racial discrimination Proc.Mass.Hist.Soc’y 15 ghettos herds men into and makes their abili- ty buy property turn on the color of their In the national election of 1876 Samuel J. skin, slavery." too is a relic then it of Tilden and the Democratic Ticket received a Co., 441-43, Mayer Jones v. 392 U.S. at Alfred quarter popular aof million more votes than S.Ct. at 2204-05. Hayes Rutherford B. received and 184 uncon- votes, just tested electoral or one short of the Douglas, concurring May- 27. Justice in Jones v. required Hayes number to elect. trailed with er, persisting prejudices maintained that racial only 166 uncontesled votes. The 19 electoral slavery. are themselves relics of 392 U.S. at Louisiana, were doubtful votes olina, South Car- Similarly, Maryland, 448-49. in Bell v. governments competed 226, 247-48, and Florida. Two 378 U.S. 822, 12 L.Ed.2d both control in South Carolina Louisi- Douglas argued Justice that "the Black Congress ana. created an slavery, Electoral Commis- segre- Codes were a substitute for Codes”, question. gation Joseph sion to decide the Justice P. substitute Black was a for the five, re- prospective remedial action is adopted Constitution and until Louisiana Note, quired. The “New” Thirteenth unquestionably some 1898, there were of Analysis, A Preliminary Amendment: in New Orleans. officers police brave black (1969). According- Harv.L.Rev. deluge. That constitution After 1898—the organization ly, of an that not the structure There were not blacks. disenfranchised necessarily only reflects but continues of; speak there no black voters discrimination must be effects And there no black officeholders. were changed eliminate the effects dynamics policemen. were no black amendment discrimination. thirteenth “Redemption" then Reconstruction rights people, a on the Dred focuses relegated blacks to the bot- the state had incapable inferior and Scott declared especially in terms system, tom the caste participating as citizens. Dred Scott in the serving police officers as (19 How.) Sandford, therefore, Historically, New Orleans.29 right L.Ed. 691. Their of national citizen- opportunity for blacks employment lack of through the first sen- ship made effective closely police force is amendment,31 with the New Orleans tence of the fourteenth slavery system of to the former amendment to be linked their thirteenth slavery, badges can liberated from unwilling after Re- whites reaction of only through be vindicated affirmative accept any Redemption to construction race-conscious relief. under-rep- police force. The blacks on the the force since blacks on resentation of II. 1874-77, badge is a perhaps since I dissent from the Court’s conclusion readily sign, slavery: it is a visible did his judge not abuse stigma community, upon that attaches rejecting discretion race. black approach I from the decree. also dissent seeks the thirteenth amendment Because used to reach conclusion. freedom for blacks “universal civil attain agree I Williams’ that race”,30 action must address remedial duty to determine whether the trial our Remedies the needs of blacks as race. judge rejecting his abused discretion carry victims will limited identifiable See, e.g., consent decree. Cotton Hin to elimi- of the amendment out the mandate Cir.1977, ton, 1331-32. In slavery. and incidents” of “badges nate the determination, however, making prohibition present practices Nor will pro must consider the effect of the slavery; vestiges posi- posed alone remove consent decree as whole.32 Id. 176-82, Reconstructed, 1863-1877, majority at Bradley, opinion the in The 503-08 author of Cases, (1974). Rights deciding cast the vote in the Civil recog- eight-to-seven decision to Commission’s Hayes. Republican delegates for After nize the Cases, Rights 20. 30. The Civil 109 U.S. at delay Hayes removed federal brief President Louisiana, troops from the statehouses South persons “All born naturalized in the Unit- 31. or Carolina, Florida, Carpet- the the and last of and States, thereof, subject jurisdiction to the ed and regimes collapsed. Subsequent presidential bag the United States and of the State are citizens of legislation congressional appointments XIV, U.S.Const., they amend. wherein reside.” compromise the inference that the extend- raise L§ support beyond removal of federal ed Republican the regimes Louisiana and South Among the the factors to be considered are pro quo blessing quid the as a for Carolina litiga complexity, expense, the and duration of given Hayes. B. C. Vann President Rutherford tion, strength plaintiff's the case on the the Woodward, Origins the New South 23-74 merits, proposed the the reaction of class Woodward, (1951). generally C. Vann Re- settlement, stage proceedings the at the which union Reaction liability proposed, the likelihood of the decree is stake, ability damages the the amount seg- this detailed discussion of 29. For more probable the to withstand of the defendants history, v. of Louisiana see United States ment 353, range Louisiana, E.D.La.1963, judgment, and the of reasonableness F.Supp. 225 363- 145, Armstrong 1965, 817, v. 76, Board School aff’d, the settlement. Directors, S.Ct. 13 85 305; Cir.1980, 709, F.2d Lowen 7 616 and the authorities there cited. L.Ed.2d Benkdorn, Cir.1980, discussion, cert. 2 613 F.2d Taylor, see J. Louisiana schuss For a recent

1581 lengthy period stands or in its en- of trial and after a nego- settlement falls compromise, parties tiation the Neither this Court nor the reached tirety. Id. agreement. a settlement In this agree- is free to rewrite the district court agreement in jeopardy. is Members of this by by deleting, parties ment reached the study Court have had to the case carefully, modifying, substituting provi- individual consuming more time. If the consent de- proposed sions of settlement. the See Offi- rejected, parties cree the will have to cers v. Civil Service Justice Commis- begin anew with negotiations. settlement sion, Cir.1982, 615, 630, 688 F.2d If the delicate by balance par- reached the — denied, 1983, U.S.-, upset ties and district court cannot 456; Armstrong L.Ed.2d v. Board of reconstructed, a trial on the merits will Cir.1980, Directors, School follow, causing expense additional to 315; Hinton, Cir.1977, Cotton litigants delay and further remedying F.2d 1331-32. the unlawful discrimination that almost un- judge rejected The district de- entire questionably will be found. allWith defer- cree, by affirming judgment, my colleagues, ence I suggest that if rejects Court entirety. they also the decree its had considered carefully more Thus, abuse of saying is incorrect in discretion issue in the Court the context of decree, the entire I am certain that a differ- great proposed bulk of the decree “[t]he ent result would have been reached. approved by A the court”. decree is a series of provi- severable Even under the narrow focus used opinion sions.33 upheld, If Court’s opinion Court, Williams in his for the however, parties renegotiate must and the case I would find that court abused Accordingly, question rejecting must be retried. its discretion in Voluntary consent decree. settlement before this is not whether the Court district preferred by the method Congress for re court in rejecting abused discretion solving Title VII eliminating suits and em single provision upon which district ployment discrimination. Alexander v. focus, court majority and the but whether Co., 1974, Gardner-Denver rejecting court abused its discretion in public 39 L.Ed.2d 147. The entire decree when it found one interest is by voluntary served settlements: provision If objectionable. ac- settlement minimizes the par costs cepts the district court’s conclusion that the judicial ties and strain on scarce re promotion plan one-to-one is unreason- Armstrong sources. v. Board School I proposition reject able—a for the reasons Directors, Cir.1980, 616 opinion stated in this should ask wheth- —it Hinton, 1331). (citing Cotton v. 559 F.2d at provision er objectionable is so parties Remedial decrees drafted outweighs gain the total that would be engender community support themselves realized from the consent decree. voluntary for the effort to eliminate dis formulating question, answer to this criminatory practices and effects. Such probable the Court ef- should consider support is achieving objec beneficial to rejection fect of total the consent tives of Act. F.2d at Armstrong, 616 case, decree. In this the first EEOC judge giving erred in not charge was filed in 1972. This suit was sufficient to the policy favoring attention later, Eight years filed 1973. on the eve voluntary settlement of Title suits.34 VII 117, denied, 1981, 840, decree, provisions proposed 449 U.S. 101 Cir.1975, 66 S.Ct. the of a the 46; Jepson, v. 3 F.2d policy L.Ed.2d Girsh 521 encouraging voluntary clear in favor of 153. account, settlement should also be taken into particularly voluntary compliance by when the 33. See v. Civil 615, Justice Service for Officers parties required period will be over an extended Cir.1982, denied, Comm'n, 9 688 F.2d cert. statutory goals. Newspa to achieve v. Patterson 1217, 1219, 1983, 103 S.Ct. 75 L.Ed.2d 459 U.S. Union, Cir.1975, per Mail & Deliverers’ 2 514 456, holding a settlement must stand fall that or 767, 771, denied, 911, 1976, F.2d cert. 427 U.S. Id. as a whole. at 630. 3198, 96 49 L.Ed.2d 1203. Although public objectives 34. the embodied Rights the Act a careful of Civil warrant review 1582 is proportion presump of the labor force strong policy favor of of the Because presump 18;

settlement, a at 1336 n. tively accords reasonable. F.2d Court de validity proposed consent tion of America see also United Steelworkers of City v. 193, 2721, States Weber, 1979, crees. United v. of Cir.1980, 1358, Alexandria, goal percent 61 L.Ed.2d 480. The 50 con only is overcome presumption This is proposed tained consent decree pro contains showing the decree on a that showing the that 55 based on 1980 census unreasonable, illegal, un visions percent population the New Orleans is public constitutional, policy. Id. black.3 proposed “the judge found that The district rejected the use the judge The district readily passes constitutional consent decree population City of of the New Orleans as fair, adequate and reasonable” muster as base, population maintaining the data oppressed class. Wil of the members Metropolitan of the Standard Statistical Orleans, E.D. City New liams v. (SMSA) A signifi should be used. Area La., 665. He found also F.Supp. cantly percentage lower of the suburban settlement, that, parties at the time New Orleans is black. The district area of contested, and facing lengthy, hotly were rejecting court abused its discretion A trial complex merits. would trial City population figures: thousand parties several hundred use of the cost the fashioning delay cause clearly appropriate dollars and would City an labor market. Despite relief. implementing Id. A statute directs officer-candi state decree, the proposed of the benefits among qualified be selected from dates it, finding targeted rejected that the court If, diligent city. of the “after ef voters percent minority representation was un fort”, a sufficient number candidates evidence,35 im supported by population, be found from this cannot pact promotion ratio of the one-to-one department then may select candidates on non- impermissibly harsh would be areas. La.Rev.Stat.Ann. other blacks, impact be exacer that this would § (West Supp.1982). On similar 33:2411 probable duration of the dec bated facts, Appeals States United ree,36 promotion plan was and that city held that the Sixth Circuit “unnecessary” plain afford relief Detroit, SMSA, population of not the these tiffs. at 684-85. None of find Id. used appropriate population base ings justifies rejection of the formulating plan. an affirmative action consent decree. Detroit Police Association Officers’ First, rejection court’s Cir.1979, Young, percent goal an constitutes abuse denied, certainty is not discretion. Mathematical police force New 69 L.Ed.2d 951. decree; required in the context a consent City’s popula also serves Orleans only be I figure need reasonable. circumstances, the City pop In these tion. original opinion panel stand on proper formulating basis ulation is percent regarding the of the 50 correctness decree. duplicate panel’s goal, I shall not agree I if were to SMSA Even analysis here. Williams See comparison, I appropriate would find one Orleans, 5 694 F.2d 987. I New Cir. judge for the district however, abuse discretion note, in City Alexandria appropriate labor markets. reject the racial other goal we held that a based on not, however, suggest percentage accounted for an intensifi- an alter- court did 35. The record, figure. how- native effort to recruit blacks. ed ever, who reflect the number blacks cannot plan be in effect until racial 36. The Department applying to the deterred from were achieved; required period has balance was discriminatory policies. of its known because years. be twelve been estimated to supra note percent applicants the than 67 of the 37. More black; police part department in 1980 were

1583 hired, for every at 688. The court’s role evaluat percentage id. white until the consent limited to determin ing employed by decree is minorities the company re- reasonable, fair, ing the terms are percentage whether flected the of minorities in the parties’ Certainly, lawful. the choice metropolitan area. fair, City is as a labor market of the This Court the adopts district court’s court is not free not unlawful. The district finding proposed consent decree impose parties, on the perspective its but would adversely affect women. posi- This accept their if it is within a should decision tion is certainly difficult to understand and “range of Stotts v. Mem reasonableness”. untenable: black women would be aided Cir.1982, Department, Fire 6 phis men, they, the decree because like black 541, 559, 6, 1983, June granted, would be promo- included one-to-one case, 51 U.S.L.W. 3871. In this plan. tion Non-black women are in the judge improperly imposed perspective his position men, same as non-black and thus parties, doing on the so abused his “impermissibly”. not be burdened discretion. Hispanic officers contend Second, the erred in holding district court decree will impermissibly have an harsh promotion one-to-one ratio would impact time, however, on them. At this harsh impermissibly have effect on they are adequately represented. point- As women, Hispanics, and non-minorities. Un- opinion, ed out in panel Hispanics white der standards enunciated United percent constitute 3.4 population Weber, 1979, Steelworkers America rank, New Orleans. In the supervisory 2721, 443 U.S. L.Ed.2d Hispanics percent constitute 3.5 ser- of the permissible. proposed one-to-oneratio is geants, lieutenants, percent per- 12.7 decree, voluntary plan This like captains, cent of percent and 16.78 Weber, breaking pat- is down aimed at majors in the department. opening segregation opportu- terns traditionally segregated nities blacks promotion Because the one-to-one plan fields. Id. at 99 S.Ct. at 2730. A proposed contained in the consent decree “sharing remedying past of the burden” of complies with provided the standards employees other is not Weber, I must conclude that impermissible. Franks v. Bowman Trans- court rejecting abused its discretion in Co., 1976, portation aspect decree on the of that basis 1251, 47 L.Ed.2d 444. Some burden is ac- decree. Jose, ceptable. See Moore v. San Court, opinion In Judge his for the Wil- Cir.1980, 1265, 1272, stating attempts escape liams con- inevitable the district court should consider the effect provision clusion that this is fair and rea- employees, of the settlement on incumbent sonable by stating that issue is justified that some harm but achieve preferential “extent of treatment” goals of Title VII. The con- appropriate, preferential and not whether “unnecessarily decree does not sent tram- per treatment se is reasonable. do- so non-black employ- mel” interests of however, ing, ignores the Court the cardi- discharge It neither ees. calls for principle nal of district court review of nor absolute worker creates an bar to consent decrees: The district court Weber, advancement non-blacks. judgment free to substitute for that 2729; U.S. 99 S.Ct. at see also parties. un- provision was lawful International Brotherhood Teamsters definition, der By Weber and cases. States, 1977, other v. United therefore, unreasonably it could not “tram- in which L.Ed.2d employees, mel the other Supreme implicitly approved interests” of con- accepted. decree should requiring company sent have been Nor was extent, person question hire black or Spanish-surnamed one one of Williams Weber, 443 U.S. at 208. on totally rejected bar advancement court than does total district implies. district court plan years. for exist- promotion period fewer preferential weigh another the settlement properly not find that not It did did ing positions. reject- litigation on appropriate, but against probable be more result ratio would merits, incor- contain- any consent decree therefore reached ed out-of-hand existing posi- plan for preferential result. ing a rect

tions.39 objection final judge’s The district —that Third, plan the district court found was not promotion the one-to-one non-minority officers impact complete on relief to the alleged “necessary” to afford probable length by the be increased at be dis- F.Supp. would 685—can plaintiffs, 543 promotion plan that the one-to-one holding, time briefly. In so posed percentage in effect before scope would be of his discretion exceeded the judge reached supervisory ranks blacks substituting judgment his impermissibly period conserva- goal. This was percent agreed parties parties. that of the years, neces- at twelve tively estimated provision plan. They considered this on the elimina- sarily long complete in view of the “necessary” agreement. to their It should department blacks in the after tion of rejected, finding not be absent a of unlaw- twelve-year plan A is still a until 1950. public policy. fulness adverseness to one, required by temporary Weber. Because the district court abused dis- considering the reasonableness in rejecting cretion compared be with the should provision, decree, the judgment of the district court would, ordered remedy that probable should be and the vacated case remanded Stotts, 679 a trial on the merits. after instructions institute the consent 552-53; Armstrong, 616 F.2d at decree. If, trial, a found after a district court unlawfully police department had blacks, order it could discriminated place remedy. rightful Under promotions

remedy, go all period of discrimination for a

victims record.

years, undeterminable in this light, promotion one-to-one

Viewed period years less for a of twelve has a

plan impact non-minority employees

harsh provi- judge did not find that the reasonable. positions creating supervisory un- new sion notes by Justices Powell joined of- impact present and future non-black on racial or based “[a]ny preference side- justifiable as an unavoidable ficers is necessarily receive a must ethnic criteria constitutionally-required re- effect of

Notes

notes "[i]t may who has that a decree hold defendant See, Mississippi, e.g., v. 5 Cir. higher States legal prohibition United standard violated 679; Duke, by United States prohibition required of conduct than Cir.1964, 759; Lynd, United only prevent F.2d States dis- The decree itself. should denied, 1963, Cir.1962, criminatory employment from occur- decisions L.Ed. 125. ring eradicate the those deci- but also effects of litigable many would still be a issue indisputable. tion be deemed They lie at areas which is now dead issue. I Rights foundation of the Civil Act of 1866____ posi- retreat [My admit, loathe see as I have brethren] overcome, said, long ago and I tion therefore that the Thirteenth Amendment es- prospective freedom; reject contention that race- tablished there are bur- employers steps government disabilities, conscious dens and necessary inci- proscribed either Title VII or slavery, dents of which constitute its sub- equal protection form; clause the fourteenth stance and Congress, visible amendment. passed the act of in view of the Amendment, Thirteenth before the Four- proposition, implied also reject I adopted, teenth was undertook to remove opinion, Gee’s Constitution disabilities, certain burdens and the nec- grant power does not to the federal essary slavery, incidents of and to secure provide government to for remedial action

Case Details

Case Name: 34 Fair empl.prac.cas. 1009, 34 Empl. Prac. Dec. P 34,311 Larry Williams v. The City of New Orleans, Etc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 23, 1984

Citation: 729 F.2d 1554

Docket Number: 82-3435

Court Abbreviation: 5th Cir.