Alan A. Peightal v. Metropolitan Dade County, Metropolitan Fire Department of Dade County

1394 PEIGHTAL, A.

Alan

Plaintiff-Appellant, COUNTY,

METROPOLITAN DADE Met-

ropolitan Fire of Dade Defendants-Appellees.

No. 88-5496. Appeals,

United States Court of

Eleventh Circuit.

Sept. Kapetanakis, Miami,

Alexander Fla., for plaintiff-appellant. Mclnnis,

John Dade County Attorney’s Office, Miami, Fla., for defendants-appel- lees. TJOFLAT,

Before Judge, Chief JOHNSON, Judge, Circuit *, BROWN Judge. Senior Circuit BROWN, JOHN R. Senior Circuit Judge:

Foreword As the Court is divided on the question of whether requires Croson remand to the District Court to determine whether there is a violation of Equal Protection Clause, this opinion1 is sharply constructed to delineate the difference. together I, Court is on Parts II and IV, III. In Part parts company. Judge Brown, in what essentially his dissenting opinion, why articulates he is of opinion a remand Protec- necessary tion is not why, if Croson applies VII, to determination of Title Cro- * Brown, Honorable R. John Texas, Inc., Senior Circuit Marine Service 412 F.2d Circuit, Judge sitting Fifth by designa- (5th Cir.1969); abo, Usery 1023 see v. Tamiami tion. Tours, Inc., (5th Trail 531 F.2d 239 n. 33 precedent Cir.1976); For appellate House, historical Wallace F.2d opinion procedure Stanga (5th see 1975); v. McCormick Longshore Cir. EEOC v. Internat'l. Shipping 544, 546, (5th Corp., 268 F.2d Ass'n., Cir. (5th Cir.1975); men’s F.2d United 1959); DeWitt, United States v. 265 F.2d Register, (5th States v. 496 F.2d 1076 n. 1 (5th 1959); Cir. Canal Insurance Co. v. 1974); Cir. Shipping Nathaniel Inc. v. Gener 508, 509, Dougherty, (5th Cir.1957). 247 F.2d Electric, (5th Cir.1991). al F.2d FPC, Light Louisiana Power & Co. v. 483 F.2d Cf. (5th Cir.1973); Grigsby v. Coastal Department per- in and norities2 the and the Judge Tjoflat fully met. Chief is son IV, centage Part of general popula- not concur in minorities in the do Judge Johnson determining they do that The believing upheld tion. district court the Plan Dade Metro under against Peightal’s Croson whether claim that it Ti- violated Clause, Protection Equal plan violates the tle VII and the Protection Clause of the District remanded to should be the United States Constitution. We affirm of light in Croson. consideration for its part; in part. vacate and remand in Judge concurring Tjoflat, with Judge Chief additionally. Johnson, writes I. agree Judge Johnson and Brown Judge Proceedings Facts Below and plan is not under V that the invalid on Part sep- Judge Tjoflat dissents Title VII. Chief 18, 1983, Peightal, On October a white is that the arately part. on this result male, firefighter applied position for a as a on Title VII of the District Court judgment Department. Peightal with the Fire took question under is affirmed. The whether firefighter examination October of Equal Protec- plan violates the Croson 3,300 along Peightal’s others. is remanded. tion Clause earned him a score of 98.25 rank of 28 out 2,188 persons passed the test.3 who Introduction found, Peightal As the court when trial (Peightal) an indi- Peightal brings Alan applied Depart- the Fire October (non-class action) reverse discrimina- vidual hiring pursuant ment was to Metropolitan against appellee tion claim program that called for se- preference Dade) (Metro County Dade because female, Hispanic appli- black and lection (Fire Department De- County Fire Dade goals certain es- cants accordance with minorities Department) hired partment increasing purpose for the tablished Peightal ap- than who lower scored groups. these representation of Before exam, Peightal. did not hire plicant but Plan, adopting the Metro Dade4 conducted job as a fire- Peightal applied for a When Department’s analysis of the Fire an work hiring Department fighter, the Fire the De- revealed that force which an affirmative pursuant to firefighters, all but partment employed (Plan) sought to redress a statistical which males, compared white of mi- one of whom were percentage between the imbalance Florida, Constitution, State Home Rule Throughout opinion, "mi- we use term this VII, County, Relating Art. to include women. to Dade norities" Amendment 6, 1956) (adopted Nov. Sec. 11 appellant’s brief and the district 3. Both Metropolitan The Home Rule Charter Dade Peightal’s placed test score him court state that (Official p. County, Pub- Records Book percentile” applicants. This “28th Florida) (adopted County, Records Dade lic misleading misleading, ironically but it is disad- 21, 1957), May provides that "Board fact, vantageously Peightal. were there legislative County shall be the Commissioners Peigh- only persons higher who scored than county body governing and the shall under- the examination. The normal tal on metropoli- carry power on a central have the ranking standing “percentile” would of a 28th I, Id., This government.” Art. Sec. 1.01. tan people approximately did better have meant includes, list), (as power partial power (28% 2,188). Obviously, Peightal than police system provide for fire and a uniform significant difference. roads, regulate protection, (ii) provide and sovereign County Metropolitan is a enti- Dade facilities, (iii) pro- bridges, and related tunnels ty specific powers as to the 26 comprehending air, water, operate and bus rail termi- vide and unincorporated area municipalities and the facilities, nals, public transportation port the coun- geographical boundaries of within ty. (iv) regulate passenger ve- systems; license provides: Florida Constitution (v) levy county; operating in the hicles for hire Florida, County, Dade electors of The granted power assessments; special collect establish, and (vi) taxes revise, adopt, and amend special pur- merge and abolish a home charter of time to time rule from government may provided fire pose within which districts Florida, under for Dade among Id. protection, other services. the Board of Commissioners body. governing County shall be the white, general population only that was Male’s test score would be ranked to a 69% black, Hispanic and female. 52% against 15% 16% the score of another member of the grown By the Fire had taking class of Black Males the examina- firefighters, to 499 were whom 89% tion; applicant the score of a White Male white, black, Hispanic were were 8% 3% Peightal such as would not be ranked female, compared gener- a and none was against any the score of non-“White Male” white, al that was 52% 16% applicant. black, Hispanic and over female. 32% 50% although The district court found that Plan herein By when the at issue position firefighter firefighters is described as implemented, the number of had increased to “specialized protection work in the of life white, black, whom were were 74.9% 11.8% property,” position is nevertheless female, Hispanic were were 13.8% 1.3% one, “entry-level” an spe- as “there are no compared general population to a that was per pos- cialized skills se which must be white, black, Hispanic and 47% 17.3% 35.8% position.” sessed in order to obtain the over female.5 50% Accordingly, the trial court ruled that “a The district court found that once the comparison Department’s between the Fire examination, applicants took the their re- work appro- force and the labor market spective grouped scores were and ranked priate.” by applicants’ particular classification long-term goal Depart- stated Department pursu- as defined the Fire parity ment’s Plan was “to attain [between ant to the following catego- Plan. The six Department’s pop- work force and] Males, (ii) ries were used: Black Black ulation.” The Plan made a distinction be- Females, Females, (iii) (iv) Hispanic White tween employees pur- two kinds of for the Males, (v) Females, Hispanic (vi) and White pose determining hiring goals. pro- For applicants Males. All were scored and only against positions, ranked fessional and administrative those other members Met- category. example, For a Black sought per- ro Dade to achieve the same percentage Hispanics part dissenting 5. The has part), quoted increased with markedly percentage Co., 1965. As the approval City of His- since Richmond v. J.A. Croson risen, panics percentage 469, 508, 706, 729, has of whites has 488 U.S. fallen. (1989) (majority opinion); see Shurberg Broadcasting Hartford, also Inc. v. firefighter, 6. To become a candidates must: FCC, (D.C.Cir.1989) (Silber- 876 F.2d possess high diploma equiva- a school or its man, J., concurring) ("Governmentally-imposed lent minority preferences constitutionally per- possess ability a driver’s license and have the circumstances, missible under certain limited obtain chauffeur’s license they may desirability but not be based on the years be at least 18 pass old achieving per proportion- se of racial balance or physical capabilities test representation al of minorities in selected insti- pass a medical examination tutions"), nom., reversed sub Metro Broadcast- pass personal interview —FCC, -, ing, Inc. v. eyes have corrected vision in both of at least 111 L.Ed.2d 445 20/40 fully, infra, As will be discussed more volun- implicitly equates 7. The trial court the labor tary plans affirmative action must seek to reme- general population. force with the As will later dy past discrimination to survive constitutional clear, become Court allows this challenge under the strict standard. equivalency posi- to be assumed for unskilled Redressing significant underrepresentation tions. place employment of minorities in the is a legitimate goal plan, for an affirmative action as Phrasing goal of the Plan in terms of Thus, we shall parity” see. while the remedial action "racial treads on thin constitutional ice. department may, taken Metro Dade fire Local 28 the Sheet Metal Workers' Int’l EEOC, practical purposes, initially Ass'n v. identical (1986) (“[I]t goal "seeking whether the is framed is com- racial discrimination,” pletely parity" "redressing prior unrealistic to assume that it individuals of gravitate employers drafting one race will would behoove those affirm- mathematical exact- employer itude plans language to each or union absent unlaw- ative action to use which mir- discrimination”), (O'Connor, J., concurring ful requirements. rors the constitutional centage Males, of female and employees (ii) 12 Females, (iii) White 18 Black as existed in the qualified available labor Males, (iv) Females, (v) 5 Black Hispanic force.9 category For other employ- Males, (vi) 4 Hispanic Females. The ees, which included Protective Services figure total hired was persons; and 51 (Firefighters), Para-Professionals, Office of these scored lower than Peightal on the Clerical, Skilled Craftsmen and Service 1983 examination. Nevertheless, Peightal Maintenance, the Plan usage called for the was not hired. of a rule.” According “70% to the Metro March of Peightal found out Policy “Affirmative Action and State- that he had been taken off the by” “stand ment: Goals and Timetables:” list of applicants and had not been hired [essentially what the says rule 70% due to the Peightal Plan. filed an that a significant disparity between mi- Employment Opportunity Commission nority representation popu- service (EEOC) Complaint alleging racial discrimi- lation, in our that is Metro Dade’s nation. August On the EEOC departments divisions, and may Peightal’s denied charge and found that deemed to exist if the percentage of a Metro Dade’s actions were done in accord- particular minority group in the de- ance with an affirmative action but partment/agency is not at least of 70% Peightal issued “right to sue” letter the percentage of that permitted which him to file present population. (Our service emphasis.) suit. Applying the rule to 70% Metro Dade 21, 1986, On population statistics, November Peightal Department the Fire filed a complaint determined hiring that its under goals for U.S.C. 198311 and § whites, should Title VII blacks, include of the Rights Civil 37 His- Act of 1964 panies, against and 23 females.10 County As a result of Dade and the Department. Department’s hiring Peightal sought from the 1983 ex- injunctive against relief amination, following recruits Dade County were preferential for its hiring hired from 1983 to 1985: minorities, White treatment wages back example, 65,935 9. For in 1983 (70% there were firefighters 47%). blacks, resi- white For County dents of profes- Dade comprised considered (280,434 who total), population, 17% of the managers sion to be or sought figure administrators. White Hispan- was 12.1%. 8,294 total, Females were for a up 14.6% population Black ics made 36% of Dade 1,399 Males (580,994 total), for a 2.4% total. Goals established Department so the Fire County for each department agency Hispanic firefighters. wanted to achieve 25% upon minority/female would be based Finally, rep- goal the Fire set a of 37.1% Thus, resentation in the labor fighters, force. the Metro female comprised because women 53% Policy Dade "Affirmative Action population. Statement: of the total Goals and Timetables” stated: brochure "14.6% females, provides 11.Section part: for White relevant 2.4% for Black males should representation be the groups of these two Every statute, person, any under who color of your department in the official administrative ordinance, custom, regulation, usage, or position. We do not address the constitutionali- any Territory State or or the District of Co- ty of the as it professional Plan relates to lumbia, subjects, subjected, or causes to be positions. administrative any per- citizen of the United States or other jurisdiction son dep- within the thereof to the detailing goals In figures, any rights, privileges, rivation of immuni- Department separates sometimes the Fire each laws, ties secured the Constitution and (blacks, categories of the three racial/ethnic party injured shall be liable to the in an ac- whites), Hispanics, gender categories, into two law, inequity tion at proper pro- or other suit * * * times, for a total of six. At other males and ceeding for redress. category females within a racial/ethnic (1988). Peightal 42 U.S.C. alleged § 1983 lumped together, and percentages then overall violation protec- of both Title VII and equal provided. males and females are predicate tion clause as the for his claim for following goals the Plan listed recovery under § 1983. Because secures § 1983 firefighter population. 754,443 its own, There were rights no substantive of its our affirmance persons white County in Dade Peightal’s Title VII and remand of his consti- represents population. Accordingly, 47% dispositive tutional claims are also his action Department sought the Fire to achieve 33% § under II. have he should period which the time from hiring prac- County’s had Dade hired been Constitutionality Government- in effect.12 tices not been Sponsored Minority Preference Programs 19, 1986, Metro Dade13 On December 23, 1989, January On dependence and alleging its filed its answer issued its landmark Croson decision spe- offered the upon the Plan and reliance Co., City Richmond J.A. Croson Peightal of the denial to cific defense 706, 102 L.Ed.2d 854 employment was due to its any position of (1989) constitutionality govern- on the program,” “legitimate affirmative minority preference pro- ment-sponsored exempt from that Dade court handed grams.14 Since the district adopted the liability ground it on judice in the case sub opinion down challenged for the Plan. regulations EEOC April obviously it was unable to that 42 U.S.C. give detailed consideration to Croson. On Dade also asserted Metro however, duty apply remedy appeal, it is our not a valid when the 1983 was § opin- it deliver our law as exists when we and that remedy Title was available VII ion, changed even if it has since the time un- Peightal timely filed his claim had Thorpe v. Hous- lower court decision.15 a discrimination. der Title VII for Durham, ing City Auth. 393 U.S. of of January in non-jury A trial was held 1988 268, 281, 518, 526, 474, 21 L.Ed.2d 89 S.Ct. damages issue of to be determined See also Co. with the (1969). 483 Gulf Offshore Corp., issues Mobil Oil 473, 16, 486 n. liability after 453 U.S. at a later date 784, 16, 2879 n. 69 L.Ed.2d 101 S.Ct. were determined. Croson, majori- Since, (1981). 796 before a 1988, Peightal appealed the April In joined had ty of the Court never in Metro judgment favor of Dade. constitutionality opinion16 on the of one Peightal initially thirty Reply sued under the scholars. Scholar’s 12. had also Professor Fried, (1989). Act” and “Vietnam Era Yale L.J. 163 "Vietnam Preference 99 1974,” Readjustment Assistance Act of Veterans’ There should be little doubt that Croson is dropped such claim for relief before trial but weighty indeed a decision. The most extensive solely the case on the issues of dis- and tried far, Rosenfeld, Decoding response to Croson so VII, 42 U.S.C. Title § crimination under and the Elusive Richmond: Action Affirmative United and the Fourteenth Amendment Meaning Equality, Mich.L. Constitutional of States Constitution. (1989), majority Rev. asserts that "a on the single for the first time has settled on a "Metropolitan Fire of Dade test,” scrutiny id. at standard —the strict answer, County,” although it was did not file an "turning point,” and concludes that the case is a defendant, originally le- an named because the id., importance.” considerable Id. at and "of gal entity responsible for fire service in the county County. Accordingly, appeal, is Dade appellee Dade. the sole in this case is Metro Croson, appellate predate 15. The briefs also appeal a since the case was heard on less than significance by the 14. The of Croson is revealed was issued. month after Croson gathering thirty promi- of the nation’s most shortly scholars after the nent constitutional Educ., public Wygant opinion 16. See 476 U.S. was made for a conference Jackson Bd. of (1986) (equal import of and Boston to discuss the the decision 90 L.Ed.2d 260 brought protection response. Constitu- to issue a statement in reverse discrimination claim seniority by greater Action tional Scholars’ Statement on white school teachers with Affirmative Co., City pursuant bar- Richmond v. J.A. Croson who were laid off to a collective After (1989). Challenging jobs gaining agreement protect of minori- Yale L.J. 1711 what he ty pre- regarded "spin seniority control” these scholars and in order teachers with less deans, Fried, recruitment); gains minority law school Charles then Solicitor serve teacher General, comments, Klutznick, parried 100 S.Ct. with his own Fullilove v. 2758, (constitutional (1980) “adopts chal- that their statement the tone at asserted L.Ed.2d 902 by Congress Pangloss: lenge Dr. enacted once of Chicken Little and thing Some- statute to a federal happened, authority pursuant clause, under the commerce terrible has but it’s not so bad to its Amendment, Fried, City after all.” Action Fourteenth § 5 of the Affirmative after spending power; Response Congress’s taxing the stat- Richmond v. J.A. Croson Co.: A Statement, (1989). minority business LJ. 10% of funds for Scholars' 99 Yale ute set aside analysis provoked Regents Cal. v. enterprises); a the Univ. Fried’s counterattack government-sponsored voluntary affirma- only recent—and majority Supreme — programs,17 tive the lower federal Court decision subject, on the it will be struggle18 courts have had to to extract helpful to discuss some detail the facts Croson,19 holding majority commanded a holdings each governing princi- case to arrive at the

ples and limitations. See Marks v. United III. States, 188, 193, 430 U.S. Richmond v. J.A.

51 L.Ed.2d Croson Co. separate There are six majority opinions a of the Court final- in Cro- agreed ly son. Justice constitutionality of a O’Connor plural- authored the public ity opinion, state or minority preference joined local and was to form a major- program I, B, satisfy ity must in Parts strict and IV of her opinion. III— Stevens, standard. Because complexity Justices Kennedy, and Scalia involved, uncertainty issues separate sur- wrote concurring opinions, and rounding precedential some of the authori- Marshall and Blackmun dissenting filed ty, relatively and the untested opinions.20 nature of I, Because Parts III-B and IV Bakke, prevent 438 U.S. layoff recently hired (1978) (equal protection firefighters; reverse discrimina- minority firefighters origi were challenge tion to a state medical nally school’s admis- hired to alleging settle Title VII action policy sions that reserved 16 out of 100 seats discriminatory hiring promotion practices); exclusively members). minority group Weber, United Steelworkers Am. v. produced These three decisions 17 different (1979) (Title 61 L.Ed.2d 480 opinions. against VII reverse pri discrimination claim employer challenging vate the establishment of decisions, 16, 17.In addition to these three training program a that limited its enrollment supra, constitutionality voluntary af of trainees, percent to 50 reserving per white 50 programs, firmative action trainees). cent of its enrollment for black major legitimacy had issued six decisions on the plans of affirmative involving in cases opinions 18. One commentator described the programs. Title VII or court-ordered For ease cases, 17, these nine nn. 16 and as follows: reference, fully of each of these six cases is cited below, opinions [Supreme in these nine by description Court] followed a brief of its incohesive, lengthy, contradictory, cases are Transportation Agency, facts. Johnson v. Santa Cal, ambiguous. 616, 1442, They County, occupy and Clara over five 480 U.S. hun- 107 S.Ct. fifty-four pages (1987) (Title dred reporters 94 L.Ed.2d 615 official VII reverse discrim forty-six majority, brought plurality, and consist of concurring, by ination claim a male who was dissenting opinions. passed promotion and dispatch over a Even to a road single job impossible within a it is often arguably qualified er’s in favor to of an less woman); Paradise, holding 149, every discern the Court’s because not United States v. U.S. 480 1053, majority (1987) Justice in the will 107 S.Ct. endorse the entire (equal 94 L.Ed.2d 203 majority opinion. protection majority Often there is no brought reverse discrimination claim opinion, only by plurality opinion. a troopers challenging judicially- white state a Runs, Hits, Daly, imposed Some Some promotion plan Some Errors— implemented 50/50 Keeping following Ballpark Score in the finding Action egre the district court’s of Affirmative Johnson, discrimination; gious College Weber to 30 Boston quota actually Law was from once); only Review 5 used Local Number Int'l Ass'n of Firefighters Cleveland, City 478 U.S. of good principles gov- 19. For a discussion of the (1986) (Title 92 L.Ed.2d 405 VII erning constitutionality voluntary affirm- by reverse firefight discrimination claim white programs, Shurberg ative action see Broadcast- challenging judgment ers a consent entered into (Silberman, J., ing, 876 F.2d at 910-12 concur- by city firefighter and a black association ring), gleans "general which propositions” some promotion quotas); which called for Sheet Met cases, Croson, Bakke, from the four relevant EEOC, (Title al supra, Workers’Inti Ass’n v. VII Fullilove, Wygant. brought reverse discrimination claim a un objecting judicially-imposed ion to a 29% mem bership goal, following the exceptionally thorough district court’s find 20. An discussion of the ing discrimination); persistent, egregious opinion appears Corp. Croson borough in Cone v. Hills- Firefighters Stotts, (M.D.Fla. Local County, Union No. 1784 v. 467 F.Supp. (1984) 1989), rev’d, (11th Cir.), U.S. 81 L.Ed.2d 483 908 F.2d cert. de - (challenge by department nied, -, firefighters’ a fire 112 L.Ed.2d (1990), modifying, union to a opinion district court order over which breaks the down into objection, judgment their a analysis. consent in order to its various sections for The careful provisions included Plan The Richmond form the opinion O’Connor’s of Justice Di- set-aside. The of the for waiver 30% we core

binding precedential Department of Gener- of Richmond’s rector portion of to that attention our will devote allowing rules promulgated al Services not Technically, we are decision. contrac- prime a in situations where waiver (or portions of opinions by those bound of the Di- satisfaction proved to the tor that do Supreme Court of the opinions) requirements Rich- that the rector Justices, although such majority carry a not be achieved. Id. mond Plan could persuasive quali obviously of opinions Dep’t Alabama citi- ty. hearing Powers five public which After a (11th Plan, n. 11 Educ., F.2d spoke against the Richmond zens denied, Cir.1988), support, the Richmond cert. two voiced (1989); Pro- Coral Plan. adopted the Richmond Council provision relied on F.Supp. the set-aside ponents King Co. v. Const. indicated study following: (W.D.Wash.1989). 734, 738 Rich- general that while Richmond, 1983, the spring In the black, only 0.67% mond was 50% adopted Minority City Council Virginia, had contracts city’s prime construction (the Richmond Utilization Plan Business minority businesses in been awarded required prime Plan Plan). Richmond (ii) 1983; period 1978 to 5-year from city con- awarded to whom contractors vir- associations had variety of contractors’ at least subcontract struction contracts within their tually no businesses the contract to the dollar amount 30% (iii) of the Richmond membership; one Enterprises Minority Business or more one advocating the Richmond councilpersons apply did not (MBEs). The set-aside 30% “race discrimination Plan asserted that minority-owned city awarded contracts of race wide- exclusion on the basis contractors. prime spread” in the local and national construc- Plan, MBE an Richmond Under the addition, the district tion industries. fifty-one “at least (iv) as a business defined ordi- court in Croson found con- remedial, (v) is owned and (51) of which percent declares to be nance itself minority group members.” Congress made a determination trolled ... at had Croson, past at effects discrimination that the of in the con- minority participation (O’Connor, opinion). stifled L.Ed.2d at 871 nationally. There was industry by struction were defined group members Minority by race discrimination no direct evidence of of the United “[cjitizens as City Council letting in of con- City of Richmond Blacks, Spanish-speaking, who States city’s prime any that the tracts or evidence Indians, Eskimos, Orientals, or Aleuts.” against mi- had discriminated contractors limit to the geographic There was no Id. Id. nority-owned subcontractors. minority-owned busi- A Plan. Richmond anywhere the United States from plumbing and ness was a mechanical Croson set-aside. only use of could make 30% that submitted heating contractor itself “remedial” Plan declared urinals and water for the Richmond bid installation nature, purpose of city “for the After Croson failed jail. and was closets in the minority requirement, participation by satisfy the set-aside promoting wider 30% request, the city its waiver the construction of and the denied enterprises in business project. Croson to rebid city decided public projects.” Id. White, Kennedy. however, Stevens and reader, quist Justices mis- will the unfortunate note Garner, Legal Usage describing Dictionary Justices Modern A made in Cone takes 1985) (a opinions opin- and sections. (Oxford "plurality joined in the various Univ. Press: of the example, that “Part III-B Cone asserts appellate opinion For plurality without as ion” is defined "an by O’Con- opinion, Justice also written majority, enough judges' a to constitute votes nor, Rehnquist joined Justice Chief was greatest having number of but received Kennedy.” F.Supp. White Justices Croson, filed”); any opinions see votes of however, fact, (significant) point In S.Ct. at 488 U.S. at majority, opinion part forms joined by Rehn- Chief Justice plurality, and is under 42 brought phous an action U.S.C. claim that then there has past been District Court for the in the Federal particular discrimination in a industry § Virginia, arguing District of Eastern justify cannot the use of unyielding an the Richmond ordinance unconstitu- quota. racial applied on its face and in this tional 488 U.S. at 109 S.Ct. at 723- upheld court the Rich- case.21 The district 24, 102 L.Ed.2d at 885. The Court went on panel divided Plan and a mond predicate to discuss the five “facts” relied Appeals Fourth Circuit Court affirmed. upon by court, (see the district five facts I, City Richmond Croson Croson supra), listed and determined that: Cir.1985). (4th Supreme F.2d 181 None of “findings,” singly these or to- opinion of vacated the the Fourth gether, provide city of Richmond Circuit, the ease for and remanded further “strong with a basis evidence for its light Wygant. consideration in On re- conclusion that remedial action was nec- mand, panel of the Ap- a divided Court of essary.” Wygant, 476 U.S. 277 [106 peals struck down the Richmond Plan as (plurality opinion). 1849] violating prongs of strict both un- nothing There approaching prima der the Protection Clause of the facie case of a constitutional statutory Amendment,22 Fourteenth J.A. Croson Co. violation anyone the Richmond con- Richmond, (4th Cir.1987) F.2d 1355 industry. struction Id. at 274-75 [106 (Croson II), and the Court af- 1847]; S.Ct. at see also id. at 293 [106 firmed. 488 U.S. at S.Ct. at (O’Connor,J., S.Ct. at concurring.) 1857] 102 L.Ed.2d at 877. Id. The separately Court discussed (Parts I, Majority The Croson “facts,” defects in each of the five IV) III-B and quota concluded that the could not “in 30% any realistic any injury sense be tied to I, opinion, III-B Parts and IV of her by anyone.” suffered Id. at joined by Justice O’Connor was the Chief pur- 102 L.Ed.2d at 885. For our Justice, White, Stevens, and Justices poses, the Court’s discussion of the statisti- Kennedy. The Court found that the factu- disparity cal prime between the number of predicate al of the Richmond Plan suffered minority contracts awarded to firms and from the same defects as those found fatal minority population of Rich- plan Wygant: (fact (i), supra), particularly mond rele- Appellant argues that attempting it is vant: remedy past various forms of discrimina- alleged responsible disparity tion that are to be Reliance on between the the small prime number contracts businesses number awarded contracting the local industry.... minority popula- firms and the sorry city similarly While there is no doubt that the tion of the of Richmond is history private public of both is no misplaced. dis- There doubt that country crimination in disparities this has contribut- can gross statistical “[w]here opportunities ed to a lack of shown, they proper for black alone in a case observation, entrepreneurs, this standing prima proof facie of a may constitute alone, justify cannot pattern the use of an un- un- practice of discrimination” yielding quota.... racial amor- der Hazelwood School Dist. v. Title VII. [A]n states, explication part: pertinent See Croson for a fuller “No state Amendment pieces facts of that and of the various any shall law which shall ... make or enforce opposition evidence offered in Plan. to the Richmond deny jurisdiction any person to its within Const, equal protection laws.” U.S. XIV, amend. Court has held 1. The § private employers implement 22. When volun- process that the the fifth amend- due clause of tary plans, they subject affirmative action are to applies to the fed- ment manner an identical requirements of Title VII. Where the em- government. Bolling Sharpe, eral See however, ployer public body, is a it must also 497, 693, (1954). 98 L.Ed. requirements adhere to the of the Constitution. Protection Clause of the Fourteenth 1402- Span- Plan, included 299, the Richmond 307-308 States, 433 U.S. [97 United Indian, Eskimo, Oriental, 2741, ish-speaking, 2736, L.Ed.2d 768] S.Ct. spe- qualified for minorities clear that persons Aleut is equally “[w]hen But it par- fill required ab- are to The total preference. MBE qualifications cial the 30% general to the comparisons past dis- jobs, ticular presented sence evidence smaller (rather than population groups any of these against crimination the nec- possess who group of individuals burning in the the flames of doubt fanned pro- little may have essary qualifications) was not city’s purpose “the Court that 308, S.Ct. n. Id. at [97 bative value.” past discrimination.” remedy fact to v. Edu- Mayor also 2742, See at 13]. Richmond whether the questioned 415 U.S. League, Equality cational compen- “narrowly tailored” to Plan was 39 L.Ed.2d 630] S.Ct. 620 [94 past for discrimina- contractors sate black it a case in which (“[T]his is not (1974) tion, forced to share they are since are fun- all citizens be assumed can citizen Aleut relief” with “an “remedial determining wheth- gible purposes Id. at Richmond tomorrow.” who moves have particular class aof er members 102 L.Ed.2d at excluded”). unlawfully been addition, found that the Court context, rec- we have employment In the narrowly tailored Richmond Plan was posi- entry certain level ognized that for because remedy prior discrimination statisti- training, minimal requiring

tions consider the did not Richmond Council composition of the racial comparisons cal increase mi- of “race-neutral means use to the racial employer’s workforce of an city con- participation nority business the relevant composition of Paradise, 480 U.S. at (citing Id. tracting.” discrimi- pattern of probative of a may be L.Ed.2d at States, v. United Teamsters nation. See determining race-conscious (“In whether S.Ct. 337-38 [97 look to sever- appropriate, are we remedies (statisti- (1977) 1855-56, 52 L.Ed.2d 396] factors, efficacy of alterna- including the al minority truck comparison between cal Rich- remedies”)). City of Since the tive population probative relevant drivers and alleged race-neutral bar- upon relied mond exclusion). But where discriminatory in the con- minority participation riers to necessary, the qualifications special e.g., they claimed that industry, struction purposes of pool for relevant statistical capital and disproportionately lacked discriminatory exclusion MBEs demonstrating then bonding quali- requirements, meet of minorities could not number must be the city financing particular program task. “a race-neutral fied undertake would, Hazelwood, at 308 lead to supra, fortiori, firms U.S.] small [433 Transpor- 2742]; minority participation.”23 Johnson greater S.Ct. [97 616, 651-652 Agency, 480 U.S. tation 615] [107 IV. (O’Connor, (1987) concurring.) Application discussing the weaknesses After Judge separate opinion of is the “facts,” part This on to the Court predicate five went support of his conviction Brown in “gross overinclusiveness” impugn the scrutiny stan the Croson that strict Eleventh Circuit af concludes cases of the 23. Pre-Croson Broadcasting, by v. Albany, Metro Inc. help. dard lessened Mann v. ford little of — U.S. -, 2997, Cir.1989); (11th FCC, 111 L.Ed.2d Georgia, Howard 999 883 F.2d McLucas, (11th Cir.), (1990). Corp. cert. de De F.2d 1000 Cone v. Florida 871 See also 445 — 560, U.S. -, nied, (11th L.Ed.2d 107 Cir. Highways, partment 921 F.2d 1190 of Co., (1989); Metropolitan determinative, Inc. v. 1991) (Croson Porter 555 H.K. not dismissed Cir.1987), (11th County, va 825 F.2d 324 standing). lack of 1062, 1333, cated, 103 County, F.2d Corp. Hillsborough 908 Cone Johnson, J., 804 Cir.1990), highly signif- (11th 908 icant, reversing declaration the district court's & few. S.J. Groves cases are Post-Croson finding unconstitu- required of Croson a that Sons Co. v. Fulton of (11th Cir.1991) tionality, e.g., 916. see 908 F.2d at Transportation, 920 F.2d required appli- ing remand is not to determine the use of racial classifications in order Croson, equal protection remedy discrimination”) (Powell, such cation whether, (ii) applicable, assaying joined by C.J., if Title Burger, Rehnquist and VII, O’Connor, JJ.). Judge Tjoflat is met. Chief plurality opinion Croson adds Judge join in this Johnson do sec- that “Hazelwood demonstrates this Court’s they prior tion because believe that the claim focus on discrimination as justifi- for, on, Dade affirmative action that Metro violates cation and the limitation a State's Equal adoption Protection Clause of the Four- of race-based remedies.” Id. at teenth Amendment should remanded to 106 S.Ct. at 90 L.Ed.2d at 269. in light majority the District Court for consideration of the Croson held Judge Tjoflat public employers, Croson. Chief concurs that County, like Dade additionally concurring/dissenting identify discrimination, in his “must ... public or opinion. private, with some specificity they before may use race-conscious relief.” made clear that a scrutiny Croson strict 488 U.S. at 109 S.Ct. at applied by majority standard now be a will (opinion Court). L.Ed.2d at 889 Court to race-based affirm- allegations Generalized plans public employment ative action discrimination However, subject industry, inor education context.24 the determination training, probative hold little judicial scrutiny value in iden- appropri- that strict is the tifying discrimination in the relevant indus- only ate standard review serves as the try. See id. 109 S.Ct. at step. first The more difficult determina- L.Ed.2d at 888.25 Evidence of discrimina- proper application tion is the of that stan- jurisdictions tion other or on a nation- Wygant, plurality dard. In established probative wide basis also have little or no prongs scrutiny analysis: two to the strict by public value. Id. Statements officials “First, any racial classification ‘must be assigning benign objectives or remedial justified by compelling governmental in- program an affirmative action also remains Second, terest’ .... the means chosen inadequate proof. without additional Id. purpose the State to effectuate its must be it, As Justice foregoing O’Connor sees ‘narrowly tailored to the achievement of ” types generalized evidence are too goal.’ that Wygant, 476 U.S. at “amorphous” justify race-based relief. (Powell, J., S.Ct. at 275 They adequately identify do not actionable C.J., joined by Burger, Rehnquist they permit tailoring discrimination nor do O’Connor, JJ.). My analysis demonstrates appropriately of an remedy. narrow Id. the Plan satisfies both of these prongs. above, points As the Court out Croson compari- reaffirmed the use of statistical Compelling Purpose employer’s sons between the work force requires showing

The Constitution some composition popula- and the of the relevant prior public discrimination probative pattern em- tion as discrimina- ployer justify successfully the remedial use of race- tion. To meet the factual preferential Wygant, predicate prong measures. See under the first of the strict U.S. at scrutiny by employing 90 L.Ed.2d at standard indirect ev- statistics, (Equal requires Protection Clause idence the form of Dade Coun- showing prior by ty producing “some discrimination has the evidence burden government disparity unit involved before allow- statistical between dissent, Krupa F.Supp. In his Croson Justice Marshall con- v. New Castle time, major- (D.C.Del.1990). ceded that in Croson “for the first ity adopted of this Court has strict as its standard of Protection Clause review of generally, Taylor, Protection Croson, race-conscious remedial measures.” Voluntary Dilemma State and Local Set-Aside 551, 752, U.S. at 488 109 S.Ct. at 102 L.Ed.2d at Women, Programs Minorities and 27 for J., (Marshall, dissenting.) majority 919 This 45, (1990). Hous.Law Rev. 60-61 Rehnquist, includes Chief Justice and Justices White, O’Connor, Kennedy. Scalia and See abo 1404 are, fact, they in or because “de- popula- force abilities and work employee

relevant Johnson, prima provide expertise.” facie 480 “approaching signed least is at tions 632,107 1452, statutory or viola- at 94 at U.S. at S.Ct. L.Ed.2d of a constitutional case 724, hand, 500, at 102 public 109 S.Ct. the other school at 631. On tion.” Id. 886; Hazelwood, 476 U.S. Wygant, according at see also teachers at issue 1847, at 274-75, Court, 90 L.Ed.2d profession 106 S.Ct. at in a re- at did work 293, at 106 (plurality opinion), and id. special expertise.27 quiring (O’Connor, 1857, at 281 at 90 L.Ed.2d S.Ct. firefighter for selection as a Candidates following issues need concurring). The certain basic County for Dade have to meet (i) the Dade Does addressed: be However, (see 6, requirements supra). n. “require special firefighter position at issue found, district court none of these as the Croson, at 488 U.S. qualifications”? see “special requirements reach the level of 887; L.Ed.2d at at rejecting expertise.” There is no basis for figures (ii) general population May erroneous, 52(a), the clearly F.R.Civ.P. (iii) proper geographic Has the used? finding firefighter appli- trial court’s that (iv) degree scope employed? and What been purposes of com- cants are “unskilled” “approaching a constitutes of imbalance analysis. parative statistical of a violation? prima facie case” County Firefighter (ii) Population Does the Dade May General When Require “Special Position Figures Be Used? Qualifications ”? Supreme has faced an When the Court Croson, O’Connor reaffirmed In Justice position employment, it has unskilled significance places Court employer’s compared the work force both job receiving the nature of the race-based general population, Team- area’s Id.; and discussion of preferences. see sters, generalized supra, and to the area’s Croson, supra. To determine discrimina- market, Weber, Johnson, supra. In labor exclusion, tory positions unskilled are com- comparisons reaffirmed the Court both pool than for pared to a different statistical appropri- suggested that either would be Id., requiring special training. jobs ate, expressing preference no between 337-38, Teamsters, 431 U.S. at see Johnson, pools. at alternative 480 U.S. 1855-56, at 52 L.Ed.2d at 416-17. 1451-52, 631-32, 107 94 L.Ed.2d at S.Ct. (“In given only determining whether an imba- has limit- 630-31 justify taking sex guidance distinguishing posi- skilled lance exists that would ed Hazelwood, account, comparison tions from unskilled. In 433 or race into percentage of minorities or women U.S. at 308 n. percentage example, employer’s the Court stat- work force with L.Ed.2d at general popula- position issue in in market or ed that the truck driver the area labor jobs qualifica- analyzing required special appropriate no tion is Teamsters training expertise or job require special “the skill there involved no ... tions because provide expertise.”) many persons possess programs designed or ... is one that Weber, Likewise, Teamsters, supra, and su- readily acquire.”26 (citing can the Court seemed to entry-level spots pra). ruled that Court has by referring to require special pri- lump together job training program no both choices (1988); 100 L.Ed.2d 610 at issue in Teamsters were S.Ct. 26. The truck drivers Bend, Corporate City South drivers.” 431 U.S. at 329 n. 97 S.Ct. at Janowiak v. "line drivers, Cir.1987), denied, (7th cert. South 52 L.Ed.2d at 412 n. 3. Line F.2d drivers, Janowiak, engage as over-the-road 489 U.S. "also known long-distance hauling Bend v. However, company between termi- because employment position whether a nals.” Id. issue as to highly specific, fact skilled or unskilled the status of determinations in these cases about Lower courts have differed over the status binding firefighters persuasive ef firefighter Barry, has little recruits. See Hammon v. denied, (D.C.Cir.1987), cert. fect. F.2d 73 popula- gender racial and “composition relevant imbalances in the D.C. force), vacated, police (D.C. 841 F.2d 400 488 U.S. at tion.” Cir.1988). L.Ed.2d at 887. In our County use of the Dade simply The district court in this case geographical gone boundaries has unchal- percentages of minorities in looked at the lenged, good (geographical) and for rea- compared County, Dade that with the However, Peightal sons. claims that the percentages employed minorities as fire- issue to be considered is the effect of sev- fighters Department, to decide departmental mergers. eral testimony disparities justified an affirma- whether 1970’s, trial during reveals that program.28 tive action Because there is mergers there were “several nothing showing in this that the use record brought in a number of all white small genera] population figures improper, is departments County into Dade Fire [the any way and no attack has in been leveled However, Department].” very there is lim- use, at its or assertion been made that a regarding ited evidence the record these employed pool different labor should be mergers. Fire Chief Edward Donaldson general population determine than the to mergers recalled “three small ... Home- prior or not there was discrimina- whether stead, Opa-Locka Springs, and Miami none I Department, ap- tion in the Fire would having minority employees, of them usage gen- prove the district court’s probably, just so—which from that alone comparative eral statistical increasing, department size also purposes. forty increased sixty majority some employees.” (Hi) Proper Geographic Scope Has the Although disparity the overall between Employed? Been percentages of minorities and nonmi- yet give Court has defin throughout County norities the Dade Fire guidance precisely itive about how to iden Department may slightly have altered been tify appropriate geographic limits to a (which mergers apparently these oc- pool.29 Accordingly, labor lower courts many years curred before the Plan was sharply have differed over how to define that, adopted), there is no record evidence geographic boundaries for the relevant mergers, disparity great absent a Hammon, labor market. See 826 F.2d at enough justify not have the Plan would (looking only to the labor force proper geo- I that the existed.31 conclude provided District of Columbia itself “an graphic comparative pur- boundaries for entirely comparison,” County. artificial because the poses those of Dade were department Maryland fire recruited (iv) Degree Imbalance is What (Starr, Virginia) concurring); Ledoux v. “Approaching a Prima Facie Columbia, (D.C. District 820 F.2d 1293 Case” a Violation? Cir.1987) (relying primarily upon a labor pool geographic confined to the borders of imbalance between minori- The statistical the District of to find and nonminorities the relevant work Columbia manifest ties any thought applied pre-Croson nothing 28. The district court to do with of extra-territo- Title Plan, i.e., designed is application VII criteria to the it of the Plan. rial alleviate a “manifest imbalance” in representation, “unnecessarily and does it tram- above, testimony quoted than the there 31.Other stated, rights mel” the As I non-minorities. absolutely the total num- no evidence about supra, probably that standard been has elevated mergers, (although ber of the fire chief testified scrutiny” to the constitutional "strict standard. mergers”), such that "we have had number of firefighters the numbers of in these all-white Note, Finding 29. See Imbalance": “Manifest merger departments, effect of the or the The Case Test Statistical Volun- for Unified minority percentages within the Dade overall VII, tary Action Under Title 87 Mi- Affirmative Mergers existing Department. Fire chigan Law Rev. districts, including departments, special fire Metropolitan departments one of the charter functions Since these three small fire County. supra. physically were within Dade this has 1406 “ap Telegraph-Cable Tonopah v. & T.R. pool labor must be Co. available force and 471, 475, 162, 164, Co., 248 U.S. 39 S.Ct. 63 case of a constitu prima facie proaching a 365, (1919); L.Ed. 371 see also Watson v. pub before a statutory violation” tional or Trust, Bank and 487 U.S. 977 Fort Worth adopt or may voluntarily racial employer lic 2789, 995, 108 2777 at 101 L.Ed.2d at S.Ct. Croson, 488 U.S. at gender preferences. (“we (1988) empha- at 846 n. 3 have 827 886; 724, 500, 102 L.Ed.2d at 109 at S.Ct. sized the useful role that statistical meth- 274-75, 106 476 U.S. at Wygant, see also cases, ods can have in Title VII but we 1847, (plurality 269 90 L.Ed.2d at S.Ct. at any particular suggested that have 1857, 293, 106 S.Ct. at opinion), and id. of “standard deviations” can deter- number (O’Connor, concur L.Ed.2d at 280 90 plaintiff mine whether a has made out a rulings what indicate ring). Prior Court prima complex in the facie case area required disparity is sort of statistical employment discrimination.... Nor has a case of direct dis prima make facie out developed any alterna- consensus around employer. The against an crimination However, standard”). mathematical tive disparity must be “general rule” is that the number of standard deviations in the “greater or three standard devia than two approxi- case the Court exceeds the before it can be inferred that the tions” before degree minimum to a sufficient to mate illegal employer engaged has discrimina rigid avoid the risks associated with the

tion under Title VIL Casteneda v. Parti application of an inflexible mathematical 1272, 482, 17, da, n. 497 formula. 1281, 498, (1977); 512 see also 51 L.Ed.2d Hazelwood, 433 97 S.Ct. at U.S. Narrowly Tailored has L.Ed.2d at 777. The Court 53 prong The second of the strict “gross of imbalance a also called that sort requires standard action whether the Plan Hazelwood, 433 disparit[y].” statistical narrowly compel tailored to achieve the 2741, 53 L.Ed.2d at U.S. at 97 S.Ct. at essence, ling state interest. this re 488 approval cited with quirement demands that an affirmative ac 725, 102 501,109 L.Ed.2d at U.S. at S.Ct. “ greater precision tion ‘fit’ with than 887.32 means,” any alternative Associated Gener percentages I of minorities find that the Francisco, 813 al Contractors Inc. San County Fire De- Metropolitan in the (9th Cir.1987) {quoting Wy F.2d 935 partment, compared percent- gant, 476 at 280 n. 106 at 1866 U.S. ages reveals of minorities Dade 279), thereby assuring L.Ed.2d at disparity far in excess of two statistical possibility or that “that there is little no or three standard deviations.33 illegit the motive for the classification was warning stereotype.” I prejudice would heed Justice Holmes’ imate racial or Cro son, passion equality that sometimes 488 U.S. at 109 S.Ct. at “[t]he formula” L.Ed.2d at 882. To determine whether the leads hollow Postal examples disparities there evidence of 32. For of numerical 33. To determine whether Depart- against Hispanics out discrimination in the the Court has held sufficient make cases, Rawlinson, ment, example, compare expected prima I facie see Dothard v. (which 321, 329-30, Hispanics number of U.S. = 330), (1977) (state number of policy only hiring is 35.8% 921 to the actual 797-98 x force, 6'10", 5'2", Hispanics firefighter which is 127. prison guards between lbs. lbs., the actual number and The difference between excluding of the female thus 41.13% the observed number is 203. popula- than of the male but less 1% 303-05, tion); Hazelwood, equal S.Ct. at 433 U.S. at case is The standard deviation in this 2739-40, (blacks .642, 92] compris- approx- square 53 L.Ed.2d at 774-76 the imately root of .358 x X Castaneda, ing supra. in St. Louis To derive 1.8% teachers in rural district 14.5. See present in contrasted to in all districts com- the number of standard deviations 15.4% then, 14.5, bined). obtain Friday, we divide 203 to. See abo our Bazemore 385, 399-401, 3000, 3008-09, Since 14 standard devi- 14 standard deviations. (1986) rough markedly surpasses limit of 2 (salary disparity ations 330-32 be- deviations, standard I would hold $331 tween blacks and whites of or 3 1975). prior discrimination exists. $395 in evidence fit, requisite capable must passing Plan achieves focus physical capability following general four on the considera- test, they apparently very had “a targeted (i) efficacy the of alternative reme- tions: program identify get females and them dies; (ii) flexibility the and duration of the position interested in the firefighter.” Plan; (iii)the over-or-under-inclusiveness of (Testimony Jacquelyn Rowe-Dottin, Hu- (iv) Plan; remedy the and the effect of the Coordinator.) man Resources upon parties.34 innocent third Moreover, Department’s the “Affirma- Program” tive Action for 1983-83 included (i) Efficacy The Alternative Remedies “Summary Agreement” (Agreement) a minority prefer- To determine whether a planned the detailed recruitment efforts of program, ence like the one struck down in Department. Fire the Agreement pro- The Croson, narrowly tailored to serve a vided for a specialist” “recruitment to or- interest, compelling inquire state one must ganize implement and “special recruit- legislature whether the local considered program.” ment The duties of the recruit- “the use of race-neutral means to increase specialist ment presentations included at minority” participation. at Id. schools, colleges, high local (majority job fairs and opinion). Supreme presentations. In the day addition, career In the absolutely observed that there was no evi- specialist recruitment was to coordinate dence the record that the Richmond minority organizations and female any Council considered alternatives to the order to “inform the entire County Dade quota adopted. racial Id. The Court com- community opportuni- of fire service career pared this absence of evidence to the situa- Agreement ties.” provided The also Fullilove, Congress tion in in which “care- special programs minority directed towards fully rejected examined and race-neutral youth, such as a Employ- “Summer Youth enacting alternatives before the MBE set- Program,” ment employed minority aside,” id. at 109 S.Ct. at 102 youths educating while them about fire program L.Ed.2d at and the therein prevention. Additionally, group of black was found constitutional. firefighters Department, from the the There is evidence in the record that Met- “Progressive Firefighters,” was to contin- pursued ro Dade without success other program ue an outreach to the black com- representation means the to increase of munity, according to the terms of the Department. minorities in the Chief Ed- Agreement. ward Donaldson testified at trial that the Department’s programs The Fire to in- Department Fire had a pro- recruitment crease the in the De- number minorities gram aimed at minorities. He stated partment through special outreach and re- high

recruiters were sent to schools and programs impressive. cruitment are Ac- college campuses encourage to inform and cordingly, Depart- I am satisfied that the minority sign up students to Fire the Department’s sufficiently imple- test. ment has and Because it was diffi- considered cult for the to find women mented additional remedial alternatives. id., parties); 34. The elements chosen for consideration under see also 480 U.S. at 107 S.Ct. at prong (plurality), Taylor, scrutiny analysis the 94 L.Ed.2d at and second of the strict Programs, (listing vary supra, particular Set Aside at 63 the will with the circumstances of (i) Paradise, following efficacy four factors: the of alter- the case. See 480 U.S. at remedies; (ii) flexibility native and (Powell, the duration L.Ed.2d at concur- (iii) program provisions; and waiver its ring) (listing following five factors: preference relationship and remedies; between (ii) efficacy of alternative market; (iv) program’s relevant labor impact upon case; (iii) planned duration of the the relation- rights parties). of third ship minority percentage between the work- employed percentage ers to be and the of minor- determining legitimacy In of an affirma- ity group members in the relevant narrowly tive action under the tailored force; (iv) availability provi- work prong, any waiver of the above elements that is out- met; hiring plan sions if the could not be should included in the come-determinative (v) remedy upon analysis. the effect innocent third exist, they If don’t then under-utilization. (ii) Flexibility and Duration goal.”36 need to set a More- the Plan there is no over, hiring provisions appro- the Plan’s Dade determining the Metro whether priately sensitive Court’s tailoring require- narrow meets the Plan “goals” “quotas.” distinction between flexibility ment, consideration “Affirmative Action Poli- given. program must be duration of Timetables,” cy and Statement: Goals considering whether Courts (AAPS), states: precision re- preference plan meets the therefore, government the quirement emphasize system goals, Under program for limit- entity adopt should required person is never to hire a periodic duration to facilitate a re-evalu- qualifications ed who does not have needed Fullilove, See, program. e.g., ation of perform job successfully; and the 513, 100 S.Ct. at 448 U.S. at required department is never to hire an (Powell, concurring) L.Ed.2d at 947 unqualified person preference of an- (“The remedy en- temporary nature of this applicant qualified. who is other program that a race-conscious will sures Department guide- The Fire followed the longer discriminatory than the ef- not last AAPS, lines outlined in the because al- eliminate”); designed to fects it is accord Hispanics, though sought it to hire 37 it Mattson, Inc. v. Multnomah L.D. only Department to hire 28. The was able (D.Or.1988). F.Supp. In addi- unwilling unqualified was to hire minorities tion, by very rigid quotas are their because goals. just quota to meet its Had a strict flexibility man- nature antithetical to the hand, place, been in on the other the De- tailoring requirement, dated the narrow required to fill partment would have been quotas normal- unyielding preferential will positions Hispanics. these 37 Because plan. ly doom an affirmative action perpetuity, the Plan does endure in 488 U.S. at S.Ct. impose rigid quo- it does not because (highly rigid L.Ed.2d at 891 critical of tas, I find that Metro Dade has satisfied Paradise, quotas); 480 U.S. at narrowly this second criterion of the tai- (O’Connor, S.Ct. at 94 L.Ed.2d at 240 prong. lored J., dissenting) (rigid quota for affirmative plan impermissible).35 is The Su- (Hi) Under-Inclusiveness Over-and- specifically approved preme Court has the Plan hand, “hiring goals,” on the other use rigidly required which do not dictate a Peightal’s argument ap- The crux of See, e.g., number of minorities to be hired. peal is that the Plan is both over-and-under- Johnson, Wygant, Weber. preferential in its treatment of inclusive Hispanics. Peightal maintains that The Metro Dade Plan does not continue program County minority preference indefinitely, upon terminates the satis- but is over-inclusive because it favors white goals. faction of its affirmative action Ms. significant European Spaniards with no cul- plan Rowe-Dottin testified that “[t]he discernability from non- annually linguistic is reme- tural or reviewed ... [T]he addition, nature, problems Hispanic persons.37 it dial and addresses white Taylor, Programs, again. supra, I do not address whether 35. See Set Aside at 65. Plan once cir- re-implementation of the Plan in such achieved, goals legitimate, Plan’s have been since the issue 36. After the cumstances would be terminates, Department and the Plan the Fire is not before us. probably problem. will face another Without Plan, in Croson found the Richmond almost no minorities would have been 37.The Court relatively hired in of their test Plan See 488 U.S. at 1983 because (Of low over-inclusive. (“The gross top persons hiring scores. list, on the 102 L.Ed.2d at 890 Black, prefer- only Hispanic, racial six were none was overinclusiveness of Richmond’s one, female.) strongly impugns city’s claim of reme- number Unless ence motivation”). Wygant, percentages improve, dial The Court here cited these scores of minori- obviously 106 S.Ct. at ties in the will decrease 476 U.S. at 284 n. withdrawn, creating (haphazard of racial inclusion after the Plan is a need for

14Q9 argues Peightal that the Plan under-in- As for the Plan’s alleged under-inclusive- persons quali- because the class of ness, clusive Peightal argues excludes, that it fying preferential treatment as “His- therefore against, discriminates members panics” fails to include other national and European origin, national Middle East- groups susceptible ethnic that are to sim- ern origin, national and Slavic/Russian na- ilar discrimination. origin, tional while benefitting those of Spanish origin. Peightal claims that definition of “Hispanic,” EEOC Greeks, Italians, Portuguese, Jews, Israel- Dade, applied by Metro includes: “All per- is, Iranians, others, are all culturally Mexican, Rican, Cuban, sons of Puerto Cen- and linguistically subject discernable and American, tral Spanish or South or other place discrimination the work as a result origin, regardless culture or of race.” of their ethnic However, characteristics. Peightal asserts that this definition is over- since groups these are not benefited inclusive because persons it includes who Department’s minority preference pro- can their ancestry Spain, trace irrespec- gram, Peightal argues that the Plan is culture, language tive of or pre- but would therefore unconstitutionally under-inclu- clude persons favorable treatment to with sive. Portuguese heritage, example. Accord- ing Peightal, to since Span- white European However, it is well established that the visibly iards no “Hispanic” with discernable Equal Protection Clause require does not subjected characteristics have not been to public employers to institute affirmative past discrimination, present or it violates goals for each and every ethnic narrowly prong tailored of the strict group may that exist a community.39 In scrutiny prong to include them in the fa- adopting an plan affirmative action an em- group “Hispanies.” vored called ployer may rationally application limit its to minority those groups in the local work may it grant While seem anomalous force that are most in need of remedial preferences employment light-skinned to a Bakke, efforts. 438 U.S. at 359 n. Spanish descendant of Cf. grandparents who 98 S.Ct. at 57 L.Ed.2d at 774. speaks Spanish no and has no individual Protection Clause does not re- ties Spanish cultural to an American com- quire a grant preference state actor to (while Spain, or to munity denying such groups solely all ethnic grants because it preferences Portuguese-speaking preference groups. to one or more A state offspring Portuguese parents), such a actor does not violate the Fourteenth situation would not arise under the Metro long Amendment as “it Plan, so rational Dade ... because the Plan adopts [is] groups to conclude that the state ac- requirement EEOC person’s that a claim [the preferred greater had a claim identification with a certain to com- tor] racial or ethnic pensation group “should accompany strong groups than it visible in- excluded.” person that dication Id. In Dade culturally preva- the two most lin- guistically identifies group with the he lent groups or are blacks and His- she (emphasis claims.” original).38 panics. We hold that an affirmative action groups "further Peightal successfully illustrates the undifferentiated If had revealed that a plan”), ("Such Days, nature of the and cited Castillian, light-skinned example, no programs leave one with the sense by linguistic Hispanic discernable acteristics, char- cultural groups racial and ethnic favored the set-aside firefighter his had been hired as added without were attention to whether their stead, then his claim of over-inclusiveness justified by past inclusion was evidence of dis- would have more force. crimination”). Croson, 488 U.S. at (majority opin- S.Ct. ion). L.Ed.2d at 890 Peightal’s standing bring this issue is dubi- ous, nothing since in the record there show- However, the over-inclusiveness at issue in ing Peightal any is a member of of these present is not Croson in our since Metro unprotected groups. offering hiring preference any Dade is not Eskimos,

groups, e.g., against Aleuts or no has been discrimination found. court’s justify the trial enough to great against addressing past discrimination by Metro previous discrimination finding of rational, and therefore groups is two these remedial Dade, for the kind of need under-inclusive. not sought by the Plan. efforts Upon Remedy

(iv) The the strict prong Effect The second Third Parties Innocent Dade, by Metro also satisfied was standard narrowly tailored to was the Plan harmed because Peightal was Unquestionably, specifi- objectives. More its Metro meet remedial dictated hiring preferences considered adequately Plan cally, the However, or local a state Plan. to a remedies implemented alternative require constitutionally may government (ii) flexi- program; minority-preference the burden to share nonminorities innocent duration; (iii) was not and of limited identified ble past the effects remedying over-or-under-inclusive; unconstitutionally 448 U.S. at Fullilove discrimination. trammel on (iv) unnecessarily did L.Ed.2d at 928. and rights of nonminorities. Wygant: explained plurality theAs goals, the involving hiring valid In cases individu- innocent be borne V.

burden to extent to a considerable als diffused Not Title VII Violated hiring Though society generally. among Judge join in Judge Johnson Brown individ- innocent may some goals burden Judge Tjoflat dissents. part. Chief impose the same uals, simply do not they Dade Plan challenges the Metro Peightal Deni- layoffs impose. injury that kind of can, with confi- The Court under Title VII. is opportunity employment of a future al valid un- dence, that the determine Plan existing job. loss of an as as not intrusive der Title VII. at 476 U.S. Wygant, C.J., Powell, (Burger, and L.Ed.2d at first, in is, gross disparity There O’Connor,J.J.) (emphasis in Rehnquist and going back of minorities employment original). in the size of increase By with of white percentage the department Wy- the for no layoffs, calls Plan 1983, when the By employees was absolute 89%. impose an and it does gant, then department adopted, the Plan was non-minorities. See hiring of bar to the comprised 74% numbering the whites Paradise, 480 U.S. black, Hispanic and only with 13.8% Accordingly, I 11.8% at 231. in contrast This was women Plan did not have an 1.3%. that the would hold (the population general make-up effect on non-minorities. unconstitutional white, pool) which was 47% available labor fe black, Hispanic and 50% 35.8% Up To It 17.3% Sum Moreover, dispari I.) the (See Part male. complied with the re- has satis enough to do more than great ty was prong of the strict of the first quirements test40 of deviation fy standard the by showing compelling scrutiny standard Hazelwood, constitute and Castaneda par- In Plan. government purpose the nn. 32 and disparity”, see “gross statistical ticular, firefighter the I conclude unskilled; (ii) gen- the position at issue was virtually uncontradicted In view of the pool to proper labor eral was discrimination, princi (iii) gross evidence of purposes; comparative use for Bakke,41 ples Wygant, Fullilove geographic appropriate County was the up Supreme Court decisions42 and the six area; (iv) disparity between constitutionality affirmative holding De- in the Fire of minorities percentages and the strict programs, general population partment and 17, supra. n. 42. Set forth in supra, text. 40. See n. 32 related 16, supra. 41.

14H Croson, imperative of the Metro Dade Plan den plaintiff shifts to the prove that the keeping is valid and full with Title VII. employer’s justification pretextual plan is invalid.” Johnson v. Transpor- judgment The District Court on Title VII tation Agency, 616, 626, 480 U.S. is correct and affirmed. (1987). 94 L.Ed.2d 615 This case boils Conclusion down to whether the appellee’s plan affirmative action is valid. sum, the Court affirms the lower upholding legality court’s decision VII, Under Title employer an voluntarily against the Metro Dade Plan Title VII chal may adopt an affirmative action lenges. toAs whether the Plan is a denial overcome the existence of a “manifest im- light Protection in balance” in a traditionally segregated job case is remanded to the District Court for category. Id. at 107 S.Ct. at 1451-52. light consideration in the of Croson. “In determining whether an imbalance ex- ists that would justify taking sex or race part; AFFIRMED in VACATED and RE- account, into comparison percent- part. MANDED in age of minorities or women in employ- TJOFLAT, Judge, concurring Chief er’s work force with percentage part dissenting part: area general labor market or population is appropriate analyzing jobs require agree I Judge Johnson’s conclusion special expertise.” no 631-32, Id. at that we should appellant’s equal remand S.Ct. at 1452. If job requires at issue protection claim to the district court for special qualifications, however, “the com- light reconsideration in of City Rich- parison should be with those in the labor Co., mond v. J.A. Croson possess force who qualifica- relevant 102 L.Ed.2d 854 As Cro- 632,107 tions.” Id. at S.Ct. at 1452. Addi- clear, equal protection son makes chal- tionally, a court must consider whether the lenges plans to affirmative action turn on plan, in its effort to overcome a manifest We, detailed factual evaluations. as an imbalance, “unnecessarily court, appellate the are ill equipped to make trammel[s]” rights (i.e., of those not benefitted it initial Therefore, factual determinations. I men). 637-38, nonminorities and Id. at think it best 107 appellant’s that we remand 1455; Weber, S.Ct. at equal Steelworkers v. protection 443 claim to the district court 193, 208, 2721, 2730, U.S. 99 may so that it S.Ct. 61 decide the merits of this remand, test, L.Ed.2d 480 court, Applying claim. On this the the district which district court previously appellee’s concluded that the resolved this case without the Croson, plan affirmative action benefit of will was valid. Accord- analyze be able to ingly, rejected it appellant’s the Title extensively. relevant facts In VII claim. way, we ensure that appellant’s claim receives In my opinion, the district court used a adjudication. full and fair methodology flawed to conclude that there however,

I disagree, with the court’s de- is a manifest per- imbalance between the cision to affirm the judg- district court’s centage of minorities employed by appellee ment appellee for the on the Title VII percentage the of minorities in the appellant claim. The prima established a pool. relevant reaching labor this con- facie showing appellee clusion, case that the took district simply court ... “[t]he deciding race into account in not to hire percentages looked at the of minorities of him. generally See Douglas McDonnell Dade compared that with the Green, Corp. v. 411 93 percentages U.S. employed minorities as fire- (1973) 36 (discussing prima L.Ed.2d 668 fighters Department, the to decide showing). facie appellee responded by The disparities whether the justified an affirma- demonstrating that it made program.” this decision in tive action Maj. op. at Ante compliance plan. with its (opinion Brown, J.). affirmative action 1405 The court When “such a is general articulated as the relied on population figures be- decision, employer’s basis for the the bur- cause it found firefighters pos- do not entry- force, ineligible for an doubt population no expertise. General special sess firefighter. position as a level however, only proxy as a serve figures, which the pool from applicant qualified the compared should have court district evidence exists hiring. Where employer is segment force to that appellee’s work the general the figures for “showing that the population of Dade general of the accurately reflect the might not entry-level fire- for work as qualify who the value applicants,” qualified job pool of difficulty, the appreciate While I fighters. legality evaluating the figures for of such mar- obtaining labor impossibility, if not greatly plan is an affirmative precisely identify the racial figures that ket Team Bhd. International diminished. pool, qualified applicant composition of the n. States, v. United least, sters court, very at the could the district 1843, 1857 L.Ed.2d 396 force to compared appellee’s work have U.S. (1977); see also general population of the those members case). In protection (equal at 725 qualified County who fall within Dade search the court should such a (for readily group figures are age closely approximate that more figures available). Corporate Janowiak of assum pool, qualified applicant instead Bend, 836 F.2d 1039- South popu of the composition that the racial ing Cir.1987); (7th Berry, Hammon compo the racial reflects (denial as a whole (D.C.Cir.1987) lation of rehear- F.2d pool. qualified labor (“There sition be no mistak- ing by panel) should Cf. Antonio, 490 Packing Co. v. Cove Wards in this benchmark case: ing the correct 2115, 2121, persons consists of force relevant labor case). (1989) (disparate impact Washington met- years age to 28 area.”).1 ropolitan case, the district court present In the course, then, for us to proper County Fire ignored evidence of claim so remand Title VII requirements for minimum Department’s may correctly decide whether age district particularly re- court entry-level firefighters, manifest imbalance between restric- there is a By failing to take these strictions. appellee’s work force composition of account, proba- racial the district court into tions composition qualified imba- racial or under—the misstated —over bly course, By failing to take this pool. lance, labor any, percentage if between today the district the court validates appellee employed minorities clearly methodology, erroneous court's in the relevant of minorities percentage affirming an unlawful affirma- large segment the risk of (i.e., pool. A qualified) labor ap- expense the plan action and at to which tive County population, of the Dade of racial discrimination.2 pellant’s claim compared work appellee’s district court the zero”; rather, appellee adopted Indeed, recognized at the time the the the Teamsters Teamsters, employer plan, was action its work force its affirmative point I make here. African-Americans, figures 13.8% general population comprised argued of 11.8% that Thus, minority judge the portion Hispanics, women. what and 1.3% "failed to show of health, correctly, by age, legality or other action suited this affirmative population was job question compare employer’s imperative to hold the that we qualifications” it is —line- Teamsters, pool trucking jobs. qualified U.S. at 342 rather labor work driver force population. Court noted general S.Ct. at 1858 n. 23. The than accuracy may undermine "the this attack ap- subjected appears also to have composition 2. The court comparison between the of the the company’s VII claim to the standard reserved general popu- pellant’s Title work force ... protection brought equal under the surrounding Id. In for claims communities.” lation (relying Maj. op. case, however, on ante clause. See value of the the diminished Fullilove, Bakke, Wygant, principles employer "the of no moment: still statistics scrutiny imperative Cro- strict why qualified ... and the explain minorities could ”); Maj. op. at 1405 n. 28 ante overwhelmingly see also exclud- son it did hire were whom Brown, J.). writing on a (opinion Were we jobs; higher paying "fine line-driver ed from slate, agree approach might with this clean analyzing I tuning not have obscured the statistics could ” involving VII claims affirma- Title line driv- ‘inexorable zero' of the ... employers. public Su- plans tive "inexorable there is no Id. In our ers. Therefore, I from the respectfully dissent affirm the district

court’s decision to judgment concerning appellee’s

court’s

Title claim. VII

JOHNSON, Judge, concurring Circuit part dissenting part: agree Judge

I Brown’s conclusion judgment

that the district court’s for the

defendant, Metropolitan plaintiff’s Title VII claim should be However, my opinion,

affirmed.

plaintiff’s claim that the affirmative action

program violates the Protection

Clause of the Fourteenth Amendment

should be remanded to district court for light

consideration decision in Court’s Richmond v. Company, 488 U.S.

J.A. Croson 102 L.Ed.2d 854 America,

UNITED STATES

Plaintiff-Appellee, GONZALEZ,

Juan Carlos Carlos a/k/a Gonzalez, Garcia, Tomas Mo- J. a/k/a rales, Tomasito, Garcia, Israel a/k/a Flaco, Rodriguez, Raciel a/k/a a/k/a Sanchez, Ray Rodriguez, Luis Eliodoro

Santos, Lolo, Defendants-Appel- a/k/a

lants.

No. 89-5401. Appeals,

United States Court of

Eleventh Circuit.

Sept. Court, however, preme explicitly rejected has Pueblo School Dist. No. also Cunico v. Thus, (10th Cir.1990). argument obligations public that "the of a F.2d 437-38 employer under appears Title VII must be identical to its to have relied on an erroneous court legal obligations resolving appellant’s under the Title VII Constitution.” Johnson v. standard Transportation Agency, does not affect the 627 n. While this error claim. ap- court holds that here—because the outcome Instead, passes pellee’s its strict the Court has held that affirmative action subject legal approach clearly at odds Title VII claims are to a different court’s —the Id.; equal protection precedent. than standard claims. see

Case Details

Case Name: Alan A. Peightal v. Metropolitan Dade County, Metropolitan Fire Department of Dade County

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Sep 4, 1991

Citation: 940 F.2d 1394

Docket Number: 88-5496

Court Abbreviation: 11th Cir.