Marvin K. Hammon United States of America v. Marion S. Barry, Jr., Mayor, D.C. (Two Cases). Kevin Michael Byrne United States of America v. Theodore R. Coleman, D.C. Fire ChiefMarvin K. Hammon United States of America v. Marion S. Barry, Jr., Mayor, D.C. (Two Cases). Kevin Michael Byrne United States of America v. Theodore R. Coleman, D.C. Fire Chief
Charles L. Reischel, Deputy Corporation Counsel, DC, with whom John H. Suda, Acting Corporation Counsel, DC was on the petition for rehearing or rehearing en banc for appellee, District of Columbia.
Joan Burt was on the petition for rehearing or rehearing en banc for appellees, Hammon, et al.
William Bradford Reynolds, Assistant Attorney General, Department of Justice, with whom Michael A. Carvin, Deputy Assistant Attorney General, David K. Flynn and Robert Delahunty, Attorneys, Department of Justice were on the memorandum in opposition to petitions for rehearing or rehearing en banc for appellant, United States of America.
Before MIKVA, STARR and SILBERMAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge STARR.
Concurring statement filed by Circuit Judge SILBERMAN.
Dissenting opinion filed by Circuit Judge MIKVA.
ON PETITION FOR REHEARING
STARR, Circuit Judge:
This petition for rehearing raises the issue whether the panel‘s opinion in Hammon v. Barry, 813 F.2d 412 (D.C.Cir.1987), has been undermined by the Supreme Court‘s recent decision in Johnson v. Transportation Agency, Santa Clara County, California, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987). After careful reflection, we conclude for the reasons that follow that Johnson does not alter the result in this case.
I
In Hammon, the panel, over dissent, struck down the hiring provisions of the District of Columbia‘s affirmative action plan (AAP) as violative of Title VII of the
Shortly after our opinion issued, the Supreme Court rendered its decision in Johnson. In that case, the Court upheld in the face of an attack under Title VII a county transportation agency‘s promotion of a female over a marginally better qualified male to a skilled position (a road dispatcher in the agency‘s Roads Division) pursuant to a voluntarily promulgated affirmative action plan. The plan at issue in that case authorized the agency to consider the sex of a qualified applicant as one factor in making promotions to positions within a traditionally segregated job classification in which women had been significantly underrepresented.
Guided by its decision in Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), the Johnson Court held that for an affirmative action plan to withstand scrutiny under Title VII, consideration of the race or sex of applicants must be “justified by the existence of a ‘manifest imbalance’ that reflect[s] underrepresentation of women [or minorities] in ‘traditionally segregated job categories.’ ” Johnson, 107 S.Ct. at 1452 (quoting Weber, 443 U.S. at 197, 99 S.Ct. at 2724). The Court explained:
The requirement that the “manifest imbalance” relate to a “traditionally segregated job category” provides assurance both that sex or race will be taken into account in a manner consistent with Title VII‘s purpose of eliminating the effects of employment discrimination, and that the interests of those employees not benefitting from the plan will not be unduly infringed.
Id.1 See also Ledoux v. District of Columbia, 820 F.2d 1293 (D.C.Cir.1987).
The Court was thus clear in relating the existence of employment discrimination (and goal of eliminating its effects) to the bedrock Congressional purposes informing Title VII. Johnson went on to provide guidance to lower courts in this sensitive and delicate area on the fact-specific task of determining whether the requisite “manifest imbalance” exists. In jobs that require no special expertise, the Court stated, “a comparison of the percentage of minorities or women in the employer‘s work force with the percentage in the area labor market or general population is appropriate.” Id. (citations omitted). For jobs that require special training, on the other hand, “the comparison should be with those in the labor force who possess the relevant qualifications.” Id. (citation omitted).
Applying those standards to the facts before it, the Johnson Court concluded that the “manifest imbalance” predicate was clearly shown in the job classification at issue. Specifically, in the job category in question, women were “egregiously underrepresented“; indeed, “none of the 238 positions was occupied by a woman.” Id. 107 S.Ct. at 1454 (emphasis in original).2 As Justice O‘Connor described it, “at the time the affirmative action plan was adopted, there were no women in the agency‘s skilled craft positions.” Id. at 1465 (O‘Connor, J. concurring) (emphasis in original). The inference of discrimination, as she graphically detailed the situation before the Court, arose from the “inexorable zero.” Id.3
II
Before we embark on our analysis of Johnson‘s effects, we pause to address a preliminary issue. Late in this process--indeed following oral argument on the rehearing petition--we directed the parties to brief the issue, raised by the court sua sponte, whether the United States has standing to challenge the constitutionality of the AAP‘s hiring provisions. In its response, the United States contends that
In addition to this common-sense argument, the United States draws an analogy to a line of cases in which the Supreme Court has held that
In light of (1) the manifest importance of this issue; (2) its novelty in this circuit; and (3) the venerable principle that courts should avoid ” ‘questions of a constitutional nature unless absolutely necessary to a decision of the case,’ ” Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (citation omitted), we decline, on reflection, to pass on the issue of the United States’ standing. We are buoyed in that conclusion by the fact that the question has been raised so late in the litigation‘s cycle. As a result, we would be called upon either to wrestle with this troublesome issue without the benefit of full argument or to delay this litigation even further by setting the case down yet a third time for oral argument. By virtue of this act of self-restraint, a posture that well becomes the least dangerous branch of our government, there should be no doubt whatever that our decision in this case is grounded solely on the law of Title VII. With this in mind, we return after this detour to the primary question raised in the petition for rehearing: whether Johnson has undermined the majority opinion in Hammon.
B
On its face, the present case stands in stark contrast to the situation in Johnson. Here, the District of Columbia Fire Department has been hiring blacks for entry-level positions at an average rate of almost 50 percent per year since 1969. By Title VII‘s hourglass, eighteen years is a long time. But the news of late is even cheerier from Johnson‘s perspective. Since 1981, an average of over 75 percent of those hired each year as entering firefighters have been black.4 Not surprisingly, the result of these hiring patterns is light years away from the situation that prevailed in Johnson. Indeed, as of April 1984, 37 percent of the District‘s firefighting force was black.
The District Court nonetheless asserted, in conclusory fashion, that vestiges of discrimination remain in the Fire Department. In arriving at this determination, the trial court arguably made two “factual findings.” First, the court “found” the undisputed fact that the Fire Department was officially segregated in the early 1950‘s. Hammon v. Barry, 606 F.Supp. 1082, 1086-87 (D.D.C.1985). See Hammon, 813 F.2d at 428 n. 32. The relevance of that “finding” to a modern-day hiring remedy is not at all clear.5 But even accepting arguendo the relevance of the point, it should go without saying that we fully accept that which is undisputed and thus consider it a “given” that officially sanctioned discrimination prevailed in the Fire Department in the 1950‘s. The rather obvious and substantial temporal gap between the time of the Korean Conflict (at the conclusion of Harry Truman‘s Presidency and General Eisenhower‘s ascension to power) and the present day, however, suggests that something more recent should serve as a predicate for remedial action right now. However, notwithstanding the dissent‘s fervent assertion that insidious discriminatory practices at the Fire Department continued into the 1970‘s, see Dissent at 91, 92-93, the District Court made no findings to that effect. As the dissent takes pains to remind us time and again, fact-finding is the province of the trial court, and it is to that court that we explicitly allowed the parties to return for litigation of whether invidious discrimination infects the Fire Department. Hammon, 813 F.2d at 432 n. 37; see infra note 9. And thus we are brought, more relevantly, to the District Court‘s determination that “there still exist some vestiges of the aforementioned past discrimination.” Hammon, 606 F.Supp. at 1087.
Under Johnson‘s teaching, the percentage of blacks in the District‘s Fire Department is to be compared with the percentage of blacks in the area labor force. There should be no mistaking the correct benchmark in this case: the relevant labor force consists of persons 20 to 28 years of age in the Washington metropolitan area, not just within the confines of the Nation‘s capital. The reason is that it is undisputed that approximately half of the District‘s entry-level firefighters have hailed from the suburbs. According to the 1980 Census, only 29.3 percent of the statistically relevant metropolitan area population is black. In view of the fact that the Fire Department work force has a greater percentage of blacks than the black percentage in the area labor force, the District Court‘s conclusion that vestiges of discrimination remain in the Fire Department is plainly in error.6 See
Indeed, even if we employ the applicant pool as a surrogate for the area labor force, as the District Court did, the District Court‘s “finding” nonetheless remains entirely without foundation. As we elaborated previously, see Hammon, 813 F.2d at 427-28, the average percentage of black hires each year since 1981 (over 75.5 percent) is greater than the percentage of blacks in either of the two applicant pools referred to by the District Court (74.53 percent in 1980 and 64.6 percent in 1984).7
As a result, only if the percentage of blacks in the Fire Department is compared to the percentage in the District of Columbia‘s population--without regard to the fact that approximately half of the new firefighters are hired from the suburbs--is there even arguably an “imbalance.” However, as there is no suggestion that the District acted in a discriminatory fashion by hiring from the entire metropolitan area, we decline to engage in an entirely artificial comparison between the percentage of blacks in the District‘s Fire Department and its population.8 See generally Hammon, 813 F.2d at 426-28 & 432 n. 1.
In sum, there is no manifest imbalance in the District‘s Fire Department; indeed, there is manifestly no imbalance at all. It could hardly be plainer that the District‘s Fire Department is not burdened with the clogged channels of opportunity that characterized the employment situation in Johnson (and in Weber).9
There is more. The operation of Santa Clara‘s affirmative action plan differed in a critical respect from that of the District. In Johnson, the Court repeatedly stressed that the plan set aside no specific number of positions for minorities or women; instead, the Santa Clara plan authorized consideration of ethnicity or sex as one factor for evaluating qualified candidates. Id. 107 S.Ct. at 1447 & 1454-57. Indeed, the plan at issue in that case expressly stated that ” ‘[t]he “goals” established for each Division should not be construed as “quotas” that must be met.’ ” Id. at 1455 (quoting Appendix 64). The Court thus likened Santa Clara‘s plan to the “Harvard Plan,” noted with approbation by Justice Powell in University of California Regents v. Bakke, 438 U.S. 265, 316-19, 98 S.Ct. 2733, 2761-63, 57 L.Ed.2d 750 (1978). As Justice Powell emphasized in Bakke, that plan allowed race to be deemed a “plus” in the college admissions process, but it emphatically did not insulate the individual from comparison with all other candidates. Id. Above all, the Harvard Plan did not embody a strict racial (or other) quota.
The District‘s plan, on the other hand, employs precisely that which neither Harvard nor Santa Clara County embraced--the tell-tale, single-factor, rigid quota. Under the District‘s approach, each entering class of firefighters must be composed of at least 60 percent blacks. Here, we have a hard-core, cold-on-the-docks quota, nothing less. This is certainly nothing remotely akin to either the Harvard Plan or the Santa Clara plan. Indeed, setting the passing score of its unvalidated entry-level test (administered in 1980 and 1984) at a very humble level, see Hammon, 813 F.2d at 429, and utilizing no other screening criteria (beyond a medical examination and background check), the District‘s hiring decisions are based almost entirely on a mandatory racial quota.10 This regime stands in complete contrast to the plan at issue in Johnson, in which “supervisors were to consider a host of practical factors” in hiring decisions and where the hiring goal for women in the job category at issue was set at the modest level of approximately six percent for the plan‘s initial year. 107 S.Ct. at 1454.
Indeed, the District‘s plan flies in the teeth of Johnson‘s express caveat that “had the [agency‘s plan] simply calculated imbalances in all categories according to the proportion of women in the area labor pool, and then directed that hiring be governed solely by those figures, its validity fairly could be called into question.” Id. In the absence of additional screening considerations, the District‘s plan dictates “mere blind hiring by the numbers.”11 It thus bears no resemblance to the “moderate, flexible, case-by-case approach” embodied in the plan at issue in Johnson. Id. at 1424, 1457.
Quite apart from its very different facts, Johnson also squares with our analysis of the law of Title VII. Indeed, our earlier opinion was expressly informed by Weber, which broods omnipresently over the Court‘s decision in Johnson. See Hammon, 813 F.2d at 423-24; Johnson, 107 S.Ct. at 1449. Johnson fully shares with Weber, Bakke, and Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), what we described in our earlier opinion as “the salient characteristic of impaired access by certain (but by no means all) minorities to specific, identifiable educational, commercial, or job opportunities.” Hammon, 813 F.2d at 423 (emphasis in original). See also supra note 9. In our view, this reality of impaired access (or predicate of discrimination) animated the Court‘s approval of the affirmative action drawn into question in those cases. The need to remedy discrimination figured prominently in Johnson, just as the “race-preference plan in Weber was ‘remedial’ in the broad sense of opening up to minorities theretofore closed channels of employment opportunities.” Id. at 424-25. Indeed, the Court in Johnson emphasized that the Santa Clara plan “directed that sex or race be taken into account for the purpose of remedying underrepresentation.” 107 S.Ct. at 1453 (emphasis added).
Therefore, while it provides further definition to the “predicate of discrimination” requirement, Johnson does not, as the District would have it, drastically alter the legal landscape so as to eliminate this long-standing requirement. Far from it, Johnson says not a word to suggest that it was working such a radical revolution in the law of Title VII. As co-laborers in the non-political branch, with its ancient culture of stability and predictability, we are loathe to assume that the Supreme Court was suddenly turning its back on all that it had said and done for so many years and in so many different cases, some of which were written in the rather fresh ink of the prior Term. Courts are reluctant, wisely so, to discern in Congressional activity an implied repeal of statutes, and we are similarly well-advised not to discover sub silentio overrulings in the more cloistered environs of the Article III branch, especially in matters of such moment to the law and to the Nation. Our institutional reluctance to swallow the District‘s “here today, gone tomorrow” reading of Johnson is reinforced by the clarity with which the Johnson Court indicated that it was not sanctioning an “anything goes” approach to race-conscious action; a manifest imbalance in a traditionally segregated job category, we are told repeatedly by the Court, is the condition precedent to this sort of race-conscious action. In short, it is our view that our earlier holding--that a predicate of discrimination is required before an employer may lawfully employ a race-conscious remedial device--is fully in keeping with Johnson‘s clear holding that a “manifest imbalance” in a “traditionally segregated job category” must exist before an employer may engage in preferential hiring (or promotions).
Finally, Johnson does nothing to disturb the longstanding requirement that the remedy crafted to cure a violation be tailored to fit the violation.12 Just last Term, the Court in Local 28, Sheet Metal Workers v. EEOC, 478 U.S. 421, 106 S.Ct. 3019, 3050, 92 L.Ed.2d 344 (1986), reaffirmed the truism that the “tailoring” requirement fully obtains in the Title VII context. The Court in that case expressly warned that a lower court “should also take care to tailor its orders to fit the nature of the violation it seeks to correct.” Id.
To be sure, the Johnson Court articulated the tailoring requirement in different terms than those employed in Sheet Metal Workers, but it also made quite clear that an affirmative action plan must not “unnecessarily trammel[ ] the rights of male [or nonminority] employees.” 107 S.Ct. at 1455 (emphasis added). The Johnson Court drew this requirement directly from Weber, in which the affirmative action plan‘s validity rested on the fact that it did not “unnecessarily trammel the interests of the white employees” or “create an absolute bar to the advancement of white employees,” and was “not intended to maintain a racial balance,” but instead was a temporary measure designed to “eliminate a manifest racial imbalance.” 443 U.S. at 208, 99 S.Ct. at 2730. This, it seems to us, spells out the very “tailoring” requirement embodied in a plethora of Title VII law that we elaborated in our earlier opinion. See Hammon, 813 F.2d at 425-26. That long-standing requirement, in our view, remains firmly entrenched in the law of Title VII.
For the foregoing reasons, the petition for rehearing is
Denied.
SILBERMAN, Circuit Judge, concurring:
I concur in Judge Starr‘s statement but write separately because I admit I am uncertain as to the meaning of “manifest imbalance,” the imprecise term used by the Supreme Court interpreting Title VII of the Civil Rights Act in Johnson v. Transportation Agency, Santa Clara County, California, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987).1
Certainly we should ordinarily avoid constitutional issues if we can resolve a case on statutory grounds, but our first obligation as judges, I suppose, is to be as confident as we can that we are correct in our reasoning, and I believe the constitutional limits on the use of racial preferences by government employers are--in the aftermath of Johnson--more easily applied than is Title VII. Moreover, the dissent correctly observes that our initial opinion treated the constitutional and statutory cases interchangeably, see Hammon v. Barry, 813 F.2d 412, 420 (D.C.Cir.1987), and squarely relied on the Constitution to hold illegal the District‘s purpose (compliance with a D.C. proportional representation law) in adopting its affirmative action plan. See id., at 430-31. I think then, our proper course is to continue to rely, as I do, on both Title VII and the Constitution.
I
First, however, I need confront the issue that we raised sua sponte at oral argument on petitioner‘s request for rehearing and to which supplemental briefs were directed: Does the United States have standing to challenge the constitutionality of the District of Columbia‘s affirmative action plan?2
The Attorney General‘s lawsuit alleged that the District of Columbia Fire Department‘s affirmative action plan (the “plan“) violates both the substantive provisions of Title VII and, at the same time, violates the equal protection component of the due process clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). The government‘s theory--that the plan is designed to achieve an impermissible goal and excessively infringes upon the rights of innocent whites--arguably makes out both a Title VII violation and a constitutional violation. Indeed, when the Attorney General brought his suit, it might have been thought that Title VII and the Constitution imposed identical tests for evaluating the legality of race-conscious hiring plans; it was not until Johnson that this view was called into question.
As authority for this suit, the Attorney General relied on
Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by [Title VII], and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action ... requesting such relief ... as he deems necessary to insure the full enjoyment of the rights herein described.
[The proposal] would extend to claimed violations of constitutional rights in State criminal proceedings or in book or movie censorship; disputes involving church-state relations; economic questions such as allegedly confiscatory ratemaking or the constitutional requirement of just compensation in land acquisition cases; the propriety of incarceration in a mental hospital; searches and seizures; and controversies involving freedom of worship, or speech, or of the press.
Obviously, the proposal injects Federal executive authority into some areas which are not its legitimate concern....
Id. at 82 (Minority Report). In an effort to narrow the Attorney General‘s litigating authority to those matters specifically addressed by the 1964 Act, this expansive proposal was dropped from the bill. The Attorney General was instead given a more limited authority; specific sections of the Act now permit him to bring suits to protect only those rights specifically guaranteed by the Act. One of these provisions, section 2000e-6, allows the Attorney General to bring suit to protect those employment rights ensured by Title VII.
The question, then, is whether this authority permits the Attorney General to challenge a discrete employment practice of the District of Columbia on both Title VII and constitutional grounds. The answer turns on congressional intent--what kind of rights did Congress intend section 2000e-6 to protect? Between 1964 and 1972, the answer to this question was fairly clear. The 1964 version of Title VII “was enacted pursuant to the commerce power to regulate purely private decisionmaking and was not intended to incorporate and particularize the commands of the Fifth and Fourteenth Amendments.” United Steel Workers of America v. Weber, 443 U.S. 193, 206 n. 6, 99 S.Ct. 2721, 2729 n. 6, 61 L.Ed.2d 480 (1979). But when Congress passed the
The Constitution is imperative in its prohibition of discrimination by State and local governments. The Fourteenth Amendment guarantees equal treatment of all citizens by States and their political subdivisions.... It is clear that the guarantee of equal protection must also extend to such direct action as discriminatory employment practices.
The Committee believes that it is an injustice to provide employees in the private sector with the assistance of an agency of the Federal Government in redressing their grievances while at the same time denying [similar assistance] to State and local government employees. The last sentence of the Fourteenth Amendment, enabling Congress to enforce the Amendment‘s guarantees by appropriate legislation is frequently overlooked, and the plain meaning of the Constitution allowed to lapse. The inclusion of State and local government employees within the jurisdiction of Title VII guarantees and protections will fulfill the Congressional duty to enact the “appropriate legislation” to insure that all citizens are treated equally in this country.
S. REP. NO. 415, 92d Cong., 1st Sess. 10-11 (1971) (emphasis added). The House of Representatives expressed the same view in similar language:
The expansion of Title VII coverage to State and local government employment is firmly embodied in the principles of the Constitution of the United States.
Legislation to implement this aspect of the Fourteenth Amendment is long overdue, and the committee believes that an appropriate remedy has been fashioned in the bill.
H.R. REP. NO. 238, 92d Cong., 1st Sess. 19 (1971) (emphasis added). Whatever the purpose of Title VII in 1964, the legislative history of the 1972 Act makes plain that Congress intended Title VII as a vehicle to attack employment discrimination allegedly violating either Title VII alone or both Title VII and the Constitution. I think it follows that Congress intended the Attorney General to use his section 2000e-6 litigating authority to assert that the same governmental conduct arguably violating Title VII also violates the Constitution.
The Supreme Court had little difficulty recognizing the Attorney General‘s standing on three occasions in the early 1960s when he invoked statutory authority under the
Whenever any person has engaged ... in any act or practice which would deprive any other person of any right or privilege secured by subsection (a) or (b) of this section, the Attorney General may institute ... in the name of the United States, a civil action....
The Supreme Court has recently warned us, to be sure, not to equate for all purposes the statutory prohibitions of Title VII with the constitutional prohibitions against racial discrimination. See Johnson, 107 S.Ct. at 1449-50 n. 6. Indeed, the Court suggested, as I discuss below, that Title VII may permit certain affirmative action practices that the Constitution forbids. Id. But although the standards for determining if an employment practice violates Title VII of the Constitution seem now to differ, nothing the Court has said suggests that the Attorney General‘s section 2000e-6 litigating authority may not be used to challenge an employment practice that arguably violates both standards.
Thus, although it is doubtful whether the Attorney General would have standing, absent statutory authority, to bring a naked constitutional action against the District of Columbia, see United States v. City of Philadelphia, 644 F.2d 187, 199-201 (3d Cir.1980), reh‘g denied, 644 F.2d 206 (3d Cir.1981); United States v. Solomon, 563 F.2d 1121, 1126-29 (4th Cir.1977),3 I think it clear the Attorney General‘s authority under section 2000e-6 to bring Title VII “pattern or practice” claims permits him to argue in the same suit that the District of Columbia‘s hiring practices also violate related constitutional provisions.
The constitutional issue--presented, in my view, quite starkly in this case--is whether the District of Columbia may insist on proportional representation of blacks in government employment without violating the equal protection component of the Fifth Amendment‘s due process clause.4 The answer, if drawn from recent Supreme Court constitutional decisions, seems clearly “no.” Race-conscious employment policies on the part of government are permissible to remedy discrimination, see United States v. Paradise, 480 U.S. 149, 107 S.Ct. 1053, 1064, 94 L.Ed.2d 203 (1987) (Brennan, J.); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 106 S.Ct. 1842, 1847, 90 L.Ed.2d 260 (1986) (Powell, J.), or, at least, the existing direct effects of past discrimination. Cf. Fullilove v. Klutznick, 448 U.S. 448, 477-78, 100 S.Ct. 2758, 2774-75, 65 L.Ed.2d 902 (1980). But Judge Starr‘s opinion seems to me to demolish the notion that black firefighters in the District have faced discrimination for any period of time relevant to a present remedial policy. See supra at 76-77. Indeed, if anything, it might be said that it is white firefighters, rather than black, who have faced recent racial discrimination. See Bishopp v. District of Columbia, 788 F.2d 781, 786-89 (D.C.Cir.1986); Dougherty v. Barry, 607 F.Supp. 1271 (D.D.C.1983);5 cf. Dougherty v. Barry, 604 F.Supp. 1424, 1428-30 (D.D.C.1985). In truth, the only evidence the District advances to support its claim that the District discriminates against blacks is a test which, if used as an applicant ra device, apparently has a disparate negative impact on blacks. Putting aside the point that the very test in question passed constitutional scrutiny in the Supreme Court, see Washington v. Davis, 426 U.S. 229, 245-46, 96 S.Ct. 2040, 2050-51, 48 L.Ed.2d 597 (1976),6 the District does not so use its test. Rather, its only purpose today apparently is to provide the District with a legal justification for hiring in accordance with a quota. The Fire Department administers the exam, but since it believes that rank order hiring based on the exam‘s results would be discriminatory, it does not do so.7 Instead it hires pursuant to a quota to “remedy” the discriminatory effect of that which, as best I can determine, it does not do. This seems to me quite artificial, if not Orwellian.
Nor can the District‘s affirmative action plan be constitutionally defended as seeking racial diversity among firefighters for its own sake. Although the Court has recognized a legitimate, compelling governmental concern in state universities’ seeking racial diversity in their student bodies for educational purposes, see Regents of the University of California v. Bakke, 438 U.S. 265, 311-15, 98 S.Ct. 2733, 2759-61, 57 L.Ed.2d 750 (1978) (Powell, J.), it has never extended this approach beyond the academic setting. Pursuing racial balance or proportional representation simpliciter is not a permissible goal of racial classifications under the equal protection clause. See Wygant, 106 S.Ct. at 1847-48 (Powell, J.); Bakke, 438 U.S. at 307, 98 S.Ct. at 2757 (Powell, J.).
I think it did not. That the Court in Johnson so carefully limited its opinion to an interpretation of Title VII, see Johnson, 107 S.Ct. at 1446 n. 2, suggests to me that the majority was unwilling to disturb its recently expressed equal protection limitations on racial or gender preferences for government employment--in particular its disapproval of proportional representation as a governmental goal. Justice Stevens quite clearly would proceed separately from the rest of the Court. By quoting at length in his concurring opinion from an article that justifies seeking racial diversity in employment based on a broad range of grounds, Justice Stevens seems to have abandoned constitutional objections to racial proportional representation. See Johnson, 107 S.Ct. at 1460 (Stevens, J., concurring). The majority of the Court, however--indeed by vivid contrast with Justice Stevens’ opinion--has not accepted that position. Although I readily concede that interpreting Title VII to permit personnel practices that the Constitution prohibits seems anomalous, the Court has nevertheless concluded that Congress intended just that state of affairs. See Johnson, 107 S.Ct. at 1449-50 n. 6.
The dissent seems to assume that the Constitution (as well as Title VII) permits local, state, and federal governments to provide employment preferences to blacks, and perhaps other minorities, until proportional representation is reached--presumably in all job categories. That cannot be so. It is manifestly inappropriate for us to take judicial notice of the unlikely proposition that all ethnic or racial groups in our society have the same relative interests in or capability for performing the various jobs in our economy. Cf. Local 28, Sheet Metal Workers, Int‘l Ass‘n v. EEOC, 106 S.Ct. 3019, 3060, 92 L.Ed.2d 344 (1986) (O‘Connor, J., concurring in part and dissenting in part). But see Hammon, 813 F.2d at 442 (Mikva, J., dissenting).10 Furthermore, the dissent‘s position would make the legality--and even the constitutionality--of the District‘s plan turn on whether it was designed to obtain or maintain racial balance. That distinction, it seems to me, cannot hold. It is bizarre to suggest that the District legitimately could provide preferences for blacks until the Fire Department mirrors exactly, or to some arbitrary point short of exactly, the proportion of blacks in whatever is the relevant population, but thereafter no preference would be permitted even if the preference were necessary to maintain that proportion. In any case, the District‘s objectives are not so transitory; the city ordinance pursuant to which the affirmative action plan is adopted, although phrased in terms of a “goal,” appears to call for permanent proportional representation.
SeeThe dissent further argues strenuously that, if on no other grounds, the many years of the District‘s (as well as the country‘s) application of a “separate but equal” discriminatory policy justifies the District‘s affirmative action plan. See at 92-93 (Mikva, J., dissenting); Hammon, 813 F.2d at 435-36, 446-47 (Mikva, J., dissenting). That sounds like a general theory of reparations. As Justice Powell has cautioned, however, racial preferences for blacks cannot constitutionally be predicated on the general societal discrimination that blacks suffered for much of the nation‘s history. See, e.g., Wygant, 106 S.Ct. at 1847-48; Bakke, 438 U.S. at 307, 98 S.Ct. at 2757. If they were to be, that rationale would lead ineluctably to approval of proportional representation. Ironically, the District‘s policy can itself be described as embracing the notion of separate but equal--separate treatment of different races to achieve equal (proportionate) results. In the infamous case of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), Justice Harlan exposed the majority‘s claim that separate but equal was not a “badge of inferiority,” see 163 U.S. at 551, 16 S.Ct. at 1143, by asserting that the separate accommodation laws at issue in that case were predicated on a governmentally sanctioned belief in white superiority. Id. at 560, 16 S.Ct. at 1147 (Harlan, J., dissenting). The District, of course, wishes to help its black citizens--not to degrade them with a badge of inferiority. But does not its hiring plan--which does not really attack discrimination or barriers to equal opportunity--suggest the very evil that infected the Plessy doctrine? And might it ultimately be even more harmful as an affront to black self-esteem because it was done with their interests paramount?11-1
I think this case has very little, if anything, to do with remedies for past discrimination--whether general or proximate, recent or long ago. Instead, it has a great deal to do with old-fashioned American politics, which has always had a strong ethnic flavor. As is well known, government employment in American cities was, for many years, parceled out to various ethnic groups in accordance with their political clout. Blacks, as the political majority in the District, are understandably claiming that which their predecessor groups in American cities once enjoyed. However, those very constitutional protections that may frustrate the political majority in the District also serve to protect nationwide minorities.
MIKVA, Circuit Judge, dissenting:
I would grant the petition for rehearing; the original decision of the majority was wrong, and the majority‘s instant defense of it is more so. The Supreme Court‘s recent decision in Johnson v. Transportation Agency, Santa Clara County, California, --- U.S. ----, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), has ravaged the majority‘s original opinion beyond repair.
The Johnson Court‘s endorsement of the voluntary affirmative action plan of a public employer vindicates my earlier conviction that the District of Columbia‘s affirmative action hiring plan for its Fire Department (the Plan) does not violate Title VII of the Civil Rights Act of 1964,
A. Constitutional Aspects of the Original Majority Opinion
Rattled by the realization of the United States’ dubious authority to pursue its constitutional challenge to the Plan, and wisely hesitant to enter that legal thicket, the majority recants any notion that its prior opinion was constitutionally-based. See Majority Opinion (Maj.Op.) at 76. This forswearing should not go unnoted. In employing constitutional principles to inform its prior Title VII analysis, the majority strongly suggested that the Plan violates the equal protection component of the Due Process Clause. In fact, the United States has argued that there is no need to rehear this case because whether or not the Plan can survive Title VII scrutiny after Johnson, it is still invalid for the constitutional reasons which this court delineated in its original opinion. Regardless of whether the majority meant to do so earlier, the court is now explicitly not holding the Plan unconstitutional.
It must be remembered that the majority did not confine its prior decision to the Plan before the court; the majority also heaped aspersions on the Affirmative Action in District Government Employment Act (
Of course, once the constitutional underpinnings are removed and Johnson confutes the Title VII analysis, the question remains whether there is anything left to salvage of the majority‘s original reasoning. In my view, the majority has inherited the wind.
B. Title VII Analysis Under Johnson
In its earlier decision, the majority also concluded that the statutory goal of a racially balanced workforce, as a ground upon which to support an affirmative action plan, “stands condemned by Title VII.” Hammon, 813 F.2d at 431. The majority‘s pronouncement itself stands condemned by Johnson. The affirmative action plan upheld by the Court in Johnson was based explicitly on “the long-term goal of a workforce that mirrored in its major job classifications the percentage of women in the area labor market.” Johnson, 107 S.Ct. at 1453-54. The Court endorsed the public employer‘s use of this aspiration as a “benchmark for measuring progress in eliminating underrepresentation” in its workforce. Id. at 1453. Thus, long-term goals of attaining racial parity with the “area labor market or general population,” id. at 1452, such as is expressed in
The majority‘s insupportable assertion that
In attempting further to distinguish this case from Johnson, the majority distorts not only the facts of this case but also the law as enunciated by the Supreme Court. The majority implies that unless an affirmative action plan uses race only as one of numerous factors when evaluating qualified candidates--as a “plus” factor--the plan offends Title VII. See Maj.Op. at 79. Of course, this is clearly not true; contrary to the majority‘s intimations, Title VII does not forbid “quota” plans. In Weber, the seminal Title VII affirmative action case which informed and guided the Court‘s decision in Johnson, the Court sustained a quota plan. See Weber, supra (upholding plan requiring that blacks constitute 50% of new trainees). Indeed, the quota plan at issue in Weber established a minority set aside which far exceeded the percentage of blacks in the local labor force (39%). See Weber, 443 U.S. at 208, 99 S.Ct. at 2729-30. Not only did the Johnson Court not outlaw quota plans, but it explained that use of a quota system would only affect whether the plan needed an explicit end date. See Johnson, 107 S.Ct. at 1456 (“Express assurance that a program is only temporary may be necessary if the program actually sets aside positions according to specific numbers.“). See also Ledoux, supra, at 1302. The Plan at issue in this case was indeed temporary; it was to last for 18 months, a factor which the District Court correctly interpreted as supporting the Plan‘s lawfulness. See Hammon v. Barry, 606 F.Supp. 1082, 1093 (D.D.C.1985).
Despite the majority‘s attempt to limit Johnson‘s damage to the Title VII affirmative action jurisprudence espoused in its prior opinion, the majority‘s construction of the law falls like a house of cards under the weight of the Supreme Court‘s holding. The majority contends that Johnson squares with its previous declaration that Title VII requires a “predicate of discrimination” before an employer may adopt an affirmative action plan. See Maj.Op. at 80-81. Indeed, the majority asserts that the Johnson Court agreed that “evidence of the effects of [an employer‘s] past or current discrimination is a prerequisite to lawful race-conscious employment decisions.” Id. supra at 75 n.1. This statement totally misapprehends the factual setting of Johnson. There was absolutely no evidence of past or current discrimination by the employer in Johnson; in fact, the district court made an express finding that the employer had not discriminated in the past, and was not presently discriminating against women in regard to employment opportunities. See Johnson v. Transportation Agency, Santa Clara County, California, 770 F.2d 752, 758 & n. 4 (9th Cir.1984). For Title VII purposes, there need be no showing at all regarding the employer‘s past or current discrimination, although such a showing certainly strengthens the employer‘s justification for adopting an affirmative action plan. See Johnson, 107 S.Ct. at 1453 & n.11. The Court held in Johnson that it is sufficient for a public employer to show manifest statistical imbalance in its workforce to meet Title VII‘s requirement that the employer‘s affirmative action plan be remedial.
C. Application of Johnson to the Instant Case
Realizing that it can no longer censure the Plan based on its previous conclusion that there is no predicate of discrimination, the majority changes tacks and assails the statistics. The majority now concludes that no “manifest imbalance” exists in the racial composition of the District Fire Department. See Maj.Op. at 76-79. The court reaches this conclusion by the most incredible obliviousness to the essential facts and a wholly improper overriding of the District Court‘s findings. There is a manifest imbalance in the racial composition of the Fire Department‘s uniformed fireforce; there is a history of overt discrimination in the Department; there is evidence of recent discrimination, particularly regarding the disparate impact of the Department‘s entry level exam. I recounted this evidence in detail in my previous dissent and will not reiterate it here. See Hammon, 813 F.2d at 441-44. I am constrained, however, to respond to several of the majority‘s most recent fact-findings.
The majority‘s “finding” of no manifest imbalance in this case hinges on its assertion that the percentage of blacks in the District‘s fireforce should be compared to the racial composition of the “Washington metropolitan area,” contrary to the District Court‘s explicit conclusion that this was not the appropriate benchmark for assessing minority representation in the Fire Department. Compare Maj.Op. at 77 with Hammon, 606 F.Supp. at 1091-92. It is obvious why the majority must hang its hat on this reference point: if any other figure is used, there is clearly a manifest racial imbalance in the Department‘s workforce. The majority‘s new position is illgotten.
Use of the Washington metropolitan area as the statistical basis for measuring minority representation in the Fire Department is improper, and the District Court wisely rejected it. As the majority notes, this area, which includes the suburbs surrounding Washington, is less than 30 percent black. Presumably the same suburbanites that are free to seek jobs with the Fire Department are free to seek jobs with other departments of the District government. Yet, curiously, the percentage of blacks in the District government generally has always closely approximated the percentage of blacks in the District workforce. Not so with the Fire Department (or, for that matter, the Police Department); there, blacks have always been grossly underrepresented. From 1964 to 1969, for example, the percentage of blacks among the District‘s total employees ranged from 50.3 to 60.7 percent respectively. Over the same time period, the percentage of blacks among uniformed firemen ranged from 14 to 19.2 percent respectively. More recently, in 1977, when
The history of black representation in the District government generally and the distortion between those historical figures and the history of minority representation in the Fire Department suggest that the District workforce would serve as a more appropriate benchmark for assessing whether there is a manifest imbalance in the racial composition of the Department. The majority off-handedly rejects this benchmark without discussing the compelling evidence that something was very much amiss in the Fire Department‘s hiring practices. See Maj.Op. at 78. Nor does the majority acknowledge that use of the local labor force as a reference appears to comport with the Supreme Court‘s analysis in Johnson. See 107 S.Ct. at 1446, 1447 n. 4 (comparing the percentage of women in the county agency‘s employ with the percentage of women in the general labor force of the county without inquiring whence the agency‘s employees actually hail). As I observed in my dissent from the majority‘s prior opinion, the imbalance is striking from this perspective: although blacks comprise over 65 percent of the local labor force, they comprise only 38 percent of the Department‘s uniformed force. See Hammon, 813 F.2d at 441-42.
In any event, the majority is unjustified in overturning the benchmark employed by the district court--the applicant pool--to which appellant, the Department of Justice, did not object below. See Hammon, 606 F.Supp. at 1091. The Supreme Court has explicitly endorsed the use of such an applicant pool as evidence of the relevant labor market. See Hazelwood School District v. United States, 433 U.S. 299, 308 n. 13, 97 S.Ct. 2736, 2742 n. 13, 53 L.Ed.2d 768 (1977). See also United States v. County of Fairfax, 629 F.2d 932, 940 (4th Cir.1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed.2d 801 (1981). Since the early 1970‘s, the applicant pool has consistently been well over 55 percent black. In 1980, it rose to 74.53 percent; in 1984, 64.6 percent of the applicants were black. Yet, as late as 1984, only 37 percent of the District‘s fireforce was black. (In the 1970‘s the percentage averaged about 25. See Hammon, 813 F.2d at 435 (Mikva, J., dissenting).) It is ridiculous for the majority to herald the number of blacks hired by the Department between 1981 and 1984. See Maj.Op. at 76. The District was doing what the majority now forbids it from doing. The District‘s hiring during those years was directed by the District‘s Office of Human Rights, which had found that the 1981 test discriminated against blacks and had ordered the District to hire all of the applicants who passed the test; obviously, the percentage of blacks hired would mirror the percentage of black applicants. In adopting the Plan, the District is trying to do the exact same thing with regard to the 1984 test--avoid discriminating against minorities. The majority commends the District for the results of its most recent hiring practices and then condemns it for the practice. That is as absurd as it sounds. A fair comparison of either the applicant pool (the benchmark used by the district court and accepted by the parties) or of the area workforce to the Department‘s workforce reveals a manifest imbalance in the Fire Department‘s uniform fireforce. While Judge Silberman‘s statement mixes up the sources of the confusion, it matters not. Under either his “stock” or “flow” category, the imbalance is obvious. Both Judge Starr and Judge Silberman insist on using the one set of figures that does mix up the issue, namely, the percentage of new hires in 1984. That percentage is very high and very appropriate; it comes from the very plan that the majority strikes down. If Judge Starr and Judge Silberman think that percentage was such an admirable rate of hiring, I cannot understand why they want to keep the District from maintaining that level of hiring.
Under Johnson, such a manifest imbalance is a sufficient factual predicate to justify use of race-conscious employment practices. See Johnson, 107 S.Ct. at 1452; Ledoux, at 1302-03. But there is more evidence to support the District‘s adoption of the Plan. Thus, the remedial predicate in this case is far stronger than that evidenced in Johnson. Although the majority protests that it will not bury its head in the sand, ostrich-like, see Maj.Op. at 78 & n. 8, it has buried its whole corpus in ignoring, if not trivializing, the evidence of unlawful discrimination in the Fire Department, with which the District Court was, in its own words, “intimately familiar.” Hammon, 813 F.2d at 435 (Mikva, J., dissenting) (citation omitted). The majority pretends that there have been happy times in the District‘s Fire Department since the time of the Korean Conflict. Those black firefighters subjected to the Department‘s humiliating overt discriminatory practices, such as separate beds and eating utensils, during the 1950‘s, ‘60‘s, and ‘70‘s; those black firefighters who instituted and won their discrimination charges against the Department in 1972; those black firefighters who during the 1970‘s, despite the fact that they had passed the entry-level exam, had to wait years later than nonminorities before being hired; those black applicants who experienced the District‘s unlawful use of an unvalidated exam in 1981; and those black firefighters who brought suit in 1984 in order to ensure that the Department would hire its fireforce in a manner that did not discriminate against minorities--all those black firefighters might understandably not recognize the pretty picture the majority paints. They weren‘t happy with the plantation, no matter how good the separate but equal food, no matter how comfortable the separate but equal sleeping facilities, no matter how seemingly well-intentioned the unequal hiring practices.
As a final point, I observe that the majority has wholly abandoned the second prong of Johnson‘s two-part test. After intoning the inquiry it must make--whether the employer‘s plan unnecessarily trammels the legitimate interests of nonminority employees, see Ledoux, at 1301--the majority simply states that because the District failed to consider available race-neutral alternatives, it cannot pass this second hurdle. See Maj.Op. at 81. The district court specifically found that there were no such alternatives available. See Hammon, 606 F.Supp. at 1093-94. We, as an appellate court, are in no position to engage in the fact-finding that would be necessary to overturn the lower court‘s finding. The majority‘s conclusion to the contrary is based primarily on an unsupported assertion made at oral argument. To the extent the majority located tests employed by fire departments that have been found valid for other jurisdictions, see Hammon, 813 F.2d at 429 n. 35, it cannot casually be presumed that the examinations are “portable” to the District. In any event, the majority‘s reasoning is irrelevant to the inquiry the Supreme Court has directed it to conduct. The Johnson Court did not require that there be no race-neutral alternatives available before an employer may voluntarily adopt an affirmative action plan; in fact, there was no discussion whatever in Johnson of possible alternatives to the Santa Clara plan. The Court did list several factors that are relevant to the court‘s inquiry, such as whether the plan creates an absolute bar to the advancement of nonminorities, is designed to attain (as opposed to maintain) racial balance, or deprives nonminorities of “legitimate firmly rooted expectation[s].” 107 S.Ct. at 1451, 1455. See also Ledoux, at 1301 (noting that, among other things, “the type of preferential remedy chosen by the employer is critical in determining whether the plan is unduly burdensome“). The majority fails to consider any of these factors, all of which support the Plan‘s lawfulness. See Hammon, 813 F.2d at 444-46 (Mikva, J., dissenting). Instead, the majority clings to a consideration which is not only unsound as a matter of fact, but, more importantly, totally irrelevant as a matter of law.
CONCLUSION
The Supreme Court‘s opinion in Johnson makes it plain for almost all to see that the United States has failed to carry its burden in seeking to strike down the Fire Department‘s Plan. The Plan is designed to rectify past patterns of discrimination and to remove artificial and unnecessary barriers to employment; it goes but a small way toward remedying the underrepresentation of minorities in the District‘s uniformed fireforce by preventing the use of the 1984 entry level exam in a way that would discriminate against blacks. Despite the legitimate remedial purposes of the Plan‘s short-term goals, and without a mention of the burden of the Plan might or might not place on the legitimate interests of nonminority firefighters, the majority sees fit to strike down the District‘s attempts to rid its Fire Department of the vestiges of discrimination. The “cheery” times the majority trumpets have not arrived; indeed, the majority‘s opinion pushes them farther beyond the horizon. I dissent from the denial of the petition for rehearing.