Quinn v. City of Boston

rеquire that does not all sentencing fac- of a laundry purported list of trial court tors jury be submitted to the proven errors with explanation: doubt, a reasonable beyond rather only necessity, Of claims under the cumula- those penalty increase the for a tive error doctrine generis. are sui A beyond prescribed crime statutory reviewing tribunal must consider each maximum. such claim against background of whole, this instance the combined effect case as paying particular 841(a)(1), 841(b)(1)(C) Sections weight and 846 to factors is such as the nature and adjudicated Villarman’s of a guilt committed; con- number of errors their in- spiracy to heroin distribute a maxi- terrelationship, sets if any, and combined ef- mum statutory penalty fect; of 20 years’ impris- how the district court dealt with (it onment will be recalled that the jury’s the errors they arose (including the special verdict him guilty found beyond a efficacy lack efficacy any re- —or —of reasonable drug doubt of a conspiracy in- efforts); medial strength volving heroin). more kilogram than one government’s case. Villarman’s actual custodial sentence of We have engaged just review, such a months more than years seven be- and it mandates the denial of Villarman’s 20-year low the statutory maximum that claim of cumulative error as well. apply jury

would if the had failed to identi- fy specific any Conclusion amount of heroin. Enough said. We AFFIRM Villarman’s conviction and

Villarman’s sentence. Apprendi-premised other argument is that his conviction should be

vacated because the statute under which (Section

he was convicted 846), when com-

bined with the sentencing factors under 841, is

Section light unconstitutional Apprendi. But here too this Circuit has Joseph QUINN, al., E. Plaintiffs, et found that argument same wanting, this Appellants, time in Collazo-Aponte, 281 F.3d at 325. v. We adhere of course to that decision. BOSTON, CITY al., OF et Defendants, Villarman concludes with the kitchen- Appellees, sink contention that the cumulative effect putative already errors discussed in National Association for the Advance this opinion operated to violate his consti- ment of People, Colored Interve tutional right to fair a trial. Wе have al- nor, Appellee. ready shown few of the matters to No. 02-1727. which Villarman points may fairly be la- United States Appeals, Court of beled as errors —even harmless ones. First those, And Circuit. even as to the familiar teaching Arsdall, Delaware v. 673, Van 475 U.S. 5, Heard Nov. 2002. (1986) S.Ct. 89 L.Ed.2d 674 Decided March is that “the Constitution entitles criminal trial, defendant to a fair not a perfect one.”

United States v. Sepulveda, F.3d (1st Cir.1993) concluded like review

against and Hispanics. African-Americans 11, 2001, April On five candidates for em- (the Candidates) ployment brought suit in the federal alleging district court that the City had discriminated against them on the basis of hiring race-when new firefight- ers the fall of City 2000. The defended hiring practices with, compliant compelled by, the terms of the consent granted decree. The district court sum- mary judgment in the defendants’ favor. Quinn Boston, See City v. (D.Mass.2002). F.Supp.2d 156 The Candi- appeal. follow, dates For the reasons that we judgment reverse the and remand to the district court for further proceedings consistent opinion. with this

I. BACKGROUND In considering appeal from a grant of summary court, judgment, like the court, trial normally will “view the entire light record hospitable most Lichten, Harold L. Pyle, with whom party opposing summary judgment, in- Rome, Lichten & Ehrenberg, P.C. was on dulging all reasonable inferences that brief, appellants. for Smith, party’s Griggs-Ryan favor.” v. (1st 112, Cir.1990). Here, 904 F.2d 115 Roach, Christine M. with whom Roach & however, upon the facts which our decision Carpenter, Hopkins, P.C. and Merita A. undisputed. turns are Counsel, brief, Corporation were on for defendants-appellees. 1970s, In early two suits were brought against municipalities a number of Wolfman, Foley

Toni G. with whom subject to the Massachusetts Civil Service LLP, Cohen, Hoag Nadine M. Marida (now law codified at Mass. Gen. Laws ch. Woodham, Lawyers and Committee for 1-77). 31, §§ alleged The suits that the brief, Rights Civil Under Law were on municipalities engaged discriminatory intervenor-appellee. hiring practices

recruitment and whilst SELYA, STAHL, Before Judge, Circuit staffing departments. their respective fire LIPEZ, Judge, Senior Circuit and Circuit entry These actions culminated in the Judge. an omnibus consent decree influenced in which manner the affected munici

SELYA, Judge. Circuit palities firefighters. could recruit and hire NAACP, Beecher, quarter century, For over a of a Chapter, the Boston Inc. v. (D.Mass.1974) 507, hiring firefighters City in the Boston 371 520-23 (the (Beecher I). City) place has taken albedo The decree was affirmed on NAACP, appeal. federal court consent decree designed Chapter, to Boston Inc. v. Beecher, (1st Cir.1974) remedy past 1017, the effects of discrimination 504 F.2d permeated that have denied, questions gauged, are (Beecher II), 421 U.S. cert. (1975). sur- from the outset. Not litigation It has S.Ct. L.Ed.2d central to questions are nearly thirty years. prisingly, those effect been in hand. the case at consistently decree —courts The Beecher origi to include phrase have used depart- forty-five other fire Unlike some entered subsequent orders and nal decree goals have met the ments that heretofore it, see, City v. e.g., Mackin to fine-tune from its gained and release of of the decree (1st Cir.1992), Boston, F.2d constraints, Department the Boston Fire example emulate and we (BFD) auspices of under the operated —circum has in much hiring firefighters scribed 1974. decade decree since A the Beecher ensuing years. over of Massachusetts men, non-minority aspiring ago, group chronicled up to 1992 is well history Its firefighters within appointments as to See, We e.g., id. at 1274-75. law. the case BFD, City out bring to endeavored com thirst for a more who urge readers of the decree. the umbrella from under and genesis understanding plete Mackin, Although at 1275. 969 F.2d See to consult of the decree operation rejection of court’s the district we affirmed we are present purposes, opinion. For that the was attempt, we noted decree decree to note that content To operate perpetuity. not meant in which rectify a situation was intended force as contrary, it would remain within Massachu many departments fire municipality only its any particular until so, nearly lily-white, remained setts had Id. at had been achieved. goal stated in the African- increases despite dramatic passed, despite A has decade but — Hispanic populations. and American diversity within the BFD —the increased accomplish goal sought to decree in accordance City firefighters hires still i.e., action, a hir by fostering affirmative the Beecher decree. with pref race-based that accorded ing regime giving rise us to the events brings That Spanish-surnamed erences to blacks case. the Candi- to the instant n. 2. Id. at 1274 Each individuals.1 O’Brien, Quinn, Rob- Joseph Sean dates— remain departments affected fire was Sullivan, Dillon, Roger Joseph ert (and, subject to the strictures of Kendrick, ap- firefighter aspired to Jr. — un thus, preferences) accord race-based BFD. All five are white pointments in the met a department til such time as males; required, they was identified as by the de established general benchmark non-minority applicants. as themselves least, (or, at parity attainment of cree: the exami- firefighter Each took entrance I, rough parity). See Beecher by the Massachusetts nation administered the de (providing at 523 for release from Administration of Personnel Division comple a city cree a or town achieves “[a]s (MDPA) ninety-nine scored out with the commensurate ment of points. possible one hundred the com percentage of minorities within criterion, scores satisfied The Candidates’ munity”). meaning The of this employment. criterion is to be threshold manner in which it and the "Spanish-surnamed individu- litigation, parties have cumbersome Throughout opposed "minority” as to "Afri- Finally, used the term "blacks” we use the words als.” coherence, For historical can-Americans.” and His- to refer to blacks and "minorities” usage. For we will adhere to that henceforth collectively, and the word "non-minor- panics reference, however, we elect to use ease in persons. encompass ity” to all other proxy "Hispanics” as a for more the term that, qualifying apрlicants, suggests with all other Along had the BFD followed a (without they placed eligibili- were on a civil service strict process rank-order selection ty ranking any list rank order. This made consideration of race or ethnicity), the (or prefer- them) statutory allowance for various Candidates likely some of would veterans, residents, (e.g., children of top fifty. ences have been firefighters killed or in the line of disabled (other Kendrick, The Candidates than duty), ceding pride place to the holders joined date) who the litigation at a later preferences of such in accordance with then City. They sued the argued that the (even persons state law if those had earned City impermissibly preferences had used qualified lower test scores than other can- based on race and ethnicity to rank minori- didates). See Mass. Gen. Laws ch. ties ahead of them eligibility on the list. prefer- §§ statutory 40. None of these view, In the Candidates’ this constituted ethnicity, race ences involve and none of discrimination in violation of the Four- challenged them are in this proceeding. teenth Amendment to the United States Preparing fifty (count firefighters, § hire new Constitution and 42 U.S.C. 1), (count BFD requested eligi- 151B, a certified list of § Mass. Gen. Laws ch. 2), (count applicants 3). ble from the § Massachusetts Hu- and 42 seq. U.S.C. 2000e et (HRD). man Resources Division The The Candidates also attacked another as- HRD in rank pect process; selected individuals order of the hiring they argued (based statutory preferences on and test that requiring them to submit to medical scores) and grouped putative them into a examinations without a conditional offer of “hiring screening employment class.” After out those violated both federal and (counts 4-6).3 variety individuals who stumbled over a state law The district court (such preconditions race-neutral drug granted the motion of the Chapter Boston examinations), physical tests the HRD of the party NAACP to intervene as a composed a “hiring pairs” by plac- slate of defendant. See Fed.R.Civ.P. 24. ing highest minority ranking member summary Cаndidates moved for highest non-minority and the ranking judgment on the first three counts of their a group member into of two and then or, alternative, complaint pre- for a repeating process hiring until the class liminary injunction forbidding City had been exhausted. filling from at least five firefighter posi- BFD, following November pending tions resolution of the action. order, maintained, this rank twenty-five pairs They among chose things, other eligibility appointed City from the list and applied those should not have fifty entry-level firefighters.2 individuals as Beecher decree to the November 2000 hir- because, time, among ing cycle The Candidates were not those se- City Although parity lected. each received a letter had in firefighter achieved force therefore, (and, from the BFD that the stating vacancies had met the benchmark by persons had been filled who outranked for release from the strictures of the de- cree). list, him on the certification the record The did not defendants controvert parties 2. skirmish over purposes both the construc- leave them unresolved for of this deviations, eligibility appeal. tion of the list and what any, Although if the BFD entertained from it. disputes ultimately may prove these material appeal, 3. These are counts not in issue on this addressing II, to relief which the Candi- any see Part and we therefore omit infra entitled, III(E), may dates be see Part we detailed discussion of them. infra 26 direction, a explicit rather, Despite this but, opposed facts,

the material law is problem looms. The jurisdictional and cross- a matter of law motion this circuit that a rote firmly established this The dis- judgment. summary moved for 54(b)’s phrase is talismanic motion recital Rule Candidates’ denied trict court itself, trump the and of to enough, not judgment for summary granted and judgment final application of the This wonted through 1 3. counts on defendants (endors 42 843 F.2d at through Spiegel, 4 6 re- rule. See Counts appeal followed. policy prudential and “long-settled ing district court. pending main before litiga disposition the scattershot against JURISDICTION APPELLATE II. tion”). special To warrant recourse 54(b), the envisioned Rule procedure a proposition familiar It is too make an indi typically must district court that a federal authority citation require desirability assessment of vidualized scope of its beyond the act may not court appeal. Id. at an immediate and effect of corollary, parties logical a jurisdiction. As Thus, wishes to if a district court 42-43. jurisdiction subject matter cannot confer on the final partial enter a judgment consent. waiver or a federal court on just is no reason there ground States, 37, 42 F.3d 199 Prou v. United See explicit only make delay, it should not Horn, 29 (1st Cir.1999); v. States United specif make but should determination also Cir.1994). (1st Conse 754, 767-68 F.3d reasoning. See set forth its findings ic and potential a court senses when quently, id. ought it jurisdiction, subject matter lack of whether regardless of further inquire parties have that the We have warned BIW the issue. raised parties have requirement bring obligation an S6, 824, 828 132 F.3d Local v.

Deceived 44 id. at attention. See the district court’s Cir.1997). such an (1st must conduct We instance, not did parties n. 5. In this here. inquiry court neither obligation, fulfill this explicated findings nor made the requisite case, appeal must an In the usual 54(b) certi- underlying its Rule the reasons com judgment, final entry of a await fication. fully judgment aas monly regarded ac asserted of all claims disposes pre from Although this deviation Corp. v. Gen. Curtiss-Wright tion. See not neces troubling, it is practice ferred Co., 64 100 S.Ct. 446 U.S. Elec. are noted that there sarily fatal. haveWe (1980); v. Trustees Spiegel L.Ed.2d record, which “infrequent instances” Cir.1988); (1st Coll., 843 F.2d Tufts face, sufficiently apparent it on its makes are, § There see also U.S.C. appeal an support circumstances final the classic however, exceptions to n. 4. Id. partial judgment. from a exception, em One such judgment rule. case. This is such a 54(b) Rules of the Federal bodied Rule complaint deal through 3 of the Procedure, Counts immediate allows the Civil protections afford- obligations as to with judgment final partial entry of contrast, decree. by the Beechеr in a multi-claim ed the claims than all fewer to do very have little through counts express determination “upon action (and nothing to do with delay.” The with for just no reason there is Moreover, one of ethnicity). race a court made such determination district no parties NAACP—has principal and final separate a directed that here and —the (and, ap- aught knowledge 3. about through counts 1 as to judgment enter 27 in) pend- still pears, no interest claims if essence for no other reason than ‍‌‌​​‌‌​‌‌‌​​‌‌​​​​‌​​​‌​‌​‌​‌‌‌​​​‌‌‌‌​‌‌‌‌​​​‌​‍ing in the lower court. Given discrete preferences race-based hiring inevita claims, nature of the two sets of the sum- bly shift some of the burden of remedia mary judgment appears decision to be “fi- persons, tion to innocent Wygant v. Jack it nal the sense that is an ultimate 267, of Educ., 280-81, son Bd. 476 U.S. 106 ... disposition of individual en- 1842, (1986) claim[s] S.Ct. 90 L.Ed.2d 260 (plurality a multiple tered the course of claims op.), and thus should not place remain in action.” Curtiss-Wright, 446 U.S. at any longer than necessary to alleviate (internal quotation 100 S.Ct. 1460 marks past effects of discrimination. See Re omitted). gents Bakke, the Univ. v. Cal. 265, 308, U.S. 98 S.Ct. 57 L.Ed.2d Equally important, proof as needed (1978) (plurality op.) (cautioning that the allegations establish of counts 1 such “remedial action ... [must] work the through materially 3 is different from the possible”). least harm proof allegations needed to establish the token, through By counts 4 the same To sum up, the “findings” require legal separate issues are and distinct. ment that superimposed we have on Rule Moreover, prevail if the Candidates on one 54(b) important, is but it is not to be or more of the first three counts and ob applied woodenly. When the record and relief, satisfactory tain 4 through counts justice permit, interests of we have on may well be rendered moot. This concate See, occasion relaxed the requirement. that, nation of circumstances means in all Maldonado-Denis, e.g., 580-81; 23 F.3d at probability, significant there will be no du Feinstein, 942 F.2d at 40. Given the fac plication in litigating of effort one set of tors enumerated especiаlly the above— claims to a conclusion and then addressing public substantial interest that attaches to remaining set of claims. Such a lack expeditious resolution of whether the overlap supports strongly finding of Beecher decree should continue to con (and, just thus, no delay reason for practices strain the BFD’s hiring con —we entry partial of a judgment final under clude that this is one of the rare cases in 64(b)). See, Rule e.g., Maldonado-Denis which, despite the absence of detailed dis v. Castillo-Rodriguez, 23 F.3d findings, trict court the conditions for the (1st Cir.1994); Feinstein v. Resolution 54(b) effectively use of Rule have been (1st Cir.1991). Corp., Trust 942 F.2d met. Accordingly, jurisdiction we have appeal. over the Candidates’ important The most factor counsel ing in favor of allowing ap an immediate III. ANALYSIS peal in public this case is the interest. As matter, practical a final a resolution of the Having jurisdiction, assumed turn we issues raised counts 1 through appeal. 3 will the merits of the We divide our impact First, have broad on the future of all discussion into five segments. we applicants for firefighter positions in the frame the issue. We next describe how a City concern, of Boston. This is vital court point is to assess whether the release hiring ongoing. is The district court parity—has rec of the Beecher been decree— ognized achieved, this consideration when it agreed outlining required compari- expedited to render an decision on counts delineating son and how to arrive at its Quinn, through F.Supp.2d Then, 3. See component parts. we do the mathe- short, 157 n. In3. the nature Finally, of the issue matics. question we address the calls out for immediate resolution: time relief.

28 at Quinn, F.Supp.2d 204 population. Framing all the Issue.

A. a “us[ing] of the Candidates (accusing the least, parity) is (or, rough Parity the one method than different statistical the of the restrictions key that unlocks decree”). this Since in used the Beecher communi- particular a as to decree parity had did not show calculation in- appeal in this issue The central ty. of minоri- percentage been attained —the calculated for be should parity how volves ranks, BFD, including all ties within the that the agree parties The purpose. mi- 31.5%, percentage the of whereas was of 2000. frame is November relevant time was population in overall norities the of data what sources as to They agree also the granted court over 38%—the slightly context; all use this appropriate are Id. summary judgment. City’s motion for the of City’s breakdown accept the parties at 163. the relevant as of complement BFD’s from the derived and cite data dates two the nature of the We address labor appropriate establish census to of this two next sections variables around what however, revolves dispute so, pool. Their we doing opinion. Before mea- govern the this data legal princi categories two sets of pause to mention algor- controlling parity. First, chal litigation surement because ples. (which we components. One race- affording judicial ithm has two a lenges variable) how relates to relief, first of the de any interpretation call shall based within penetration minority practice of it in any application one measures cree or The other Adarand department. scrutiny. See particular fire strict a must survive variable) (which Pena, Constructors, call the second Inc. v. 515 U.S. we shall (1995) rep- minority 2097, 132 L.Ed.2d 158 one measures relates to how 115 S.Ct. (“Federal classifications, a community as whole. like those in the racial resentation State, compelling gov a serve must argue points, the Candidates As to these narrowly interest, be and must ernmental decree, the first that, the Beecher under interest.”); Stuart tailored to further percent- be limited variable should Cir.1991) (1st Roache, F.2d v. (not includ- BFD firefighters age of all race-based classifica (concluding that officers). compared This should be ing scrutiny). This must strict pass tions variable, they envision as which the second court obliges inquiring standard City’s in the of minorities percentage that the race-based finding binary make a population. On employment-eligible compelling justified by a not relief is the intervenor hand, City and other narrowly but purpose also governmental rep- should first variable contend that purpose. to fit contours drawn in the percentage of minorities resent the Stuart, 1275; Mackin, F.2d at officers) and (including BFD as a whole F.2d at 449. comprise variable should that the second in Boston’s of minorities Second, ruled court the district population. overall stage. The role summary judgment at the pierce the boil summary judgment is concluded court The district provide erplate pleadings the com- decisis dictated doctrine of stare disposition of cases prompt court’s means both variables. position of trial-worthy exists. See no issue measuring which view, required that doctrine Int’l, Inc., 229 F.3d Pueblo mi- v. percentage of Suarez comparing the parity by Cir.2000). (1st be This should device BFD to the ranks within norities all depo- “pleadings, when employed only City’s over- percentage of sitions, interrogatories, answers to and ad minuscule number of minorities in the af- file, together missions on with the affida fected departments fire at the time of the vits, if any, genuine show that there is no original Beecher decree negated any need any issue as to material fact and that the precise definition of how to measure moving party is entitled to a judgment anticipated as a minority penetration.4 56(c). matter of law.” Fed.R.Civ.P. We This court’s initial affirmance of the granting summary judg review an order Beecher decree is unhelpful point. on this Suarez, ment de novo. at 53. F.3d resolving that appeal, we stated that particularly This non-deferential review is the Beecher decree would in “remain[] where, here, appropriate the district force, for each local department, fire until grant court’s of summary judgment department minority attains sufficient application princi based on its of abstract fighters fire percentage have a on the ples essentially of law to uncontradicted force approximately equal percent- Container, Inc., Plumley facts. See v. S. age of in locality,” Beecher (1st Cir.2002). 303 F.3d II, 504 at F.2d 1027. This begs statement question of who is a “firefighter.” B. The First Variable. Our subsequent opinion in Mackin like- The district court concluded that wise left open the issue of how to measure measuring first variable to be used for parity. rejected That case argument an parity under the Beecher decree was the second variable was the racial minority firefighters composition City of the as it in existed BFD aas whole. The court did not reach (when the Beecher decree was first this through independent analy conclusion entered). Mackin, 969 F.2d at 1276. We sis, but, rather, premised it on assump disposed argument of that ruling without tion that fully this issue had been litigated on the significance figures presented proceedings. settled earlier See composition vis-a-vis the varia- first Quinn, 204 F.Supp.2d Although at 162. ble. See id. opinion, Elsewhere appreciate we the district court’s sensitivi we addressed an challenge overbreadth ty precedent, to the role of an examination and held that the decree continued to sur- prior upon decisions touching scrutiny. vive strict Id. at 1278. In the Beecher decree refutes the assump court’s process, language we cited the of the de- tion. cree itself as indicium of its limited life. To the extent that the Beecher I court (acknowledging See id. the decree compared representation relative racial us- would only “remain[] force until data, ing quantitative it did so met”). requirements have been Seen proper placement determine of the burden light, any elliptical references Mac- proof as to discriminatory what effects kin as to how parity might be measured could be attributed to the defendants’ cannot holding. be deemed a preexisting prac- recruitment and hiring tices. See 371 518-20. Our determination that Thus, I particu- Beecher did not mandate a district court erred in concluding that lar parity-mеasuring formula supplies for future stare decisis an answer to the use. That omission is understandable: question of how the first variable should be illustration, By way I, the BFD had a mi- approximately 23%. nority complement at the time of less than F.Supp. at 514. 1%, minority population while Boston had said, Candi- As “firefighter.” the term square one. back to us brings

constructed encompassing term as view that dates courts that “district recognize we While rank, is, mem- entry-level have, lowest the decrees law consent public enforcing contradistinction, the the BFD.6 bers of determining in discretion broad general, encompassing the term as view defendants objectives of whether as matters such including personnel, BFD all uniformed substantially been have decree abstract, may it seem In the officers. Navarro-Ayala v. Hernandez achieved,” to “firefighter” the term to stretch possible Cir.1991), (1st -Colon, 1337 F.2d 951 this case vision—but the defendants’ fit any such exercise did not below the court Terms with abstractions. not deal does interpre Instead, it offered discretion. ain be construed decree cannot a consent dealing with judicial precedents of tation in the vacuum; be read they must instead found that Having decree. Beecher a whole. See the decree as of context particu no we owe wanting, interpretation Attleboro Assocs. v. Newport Plaza Durfee conclu court’s to district lar deference Cir.1993); (1st Bank, see F.2d Gittens, F.3d v. See Wessmann sion. Corbin, on L. Corbin Arthur generally 5 Cir.1998). (1st 790, 795 24.21, M. Peril- (Joseph § Contracts adjudica court’s If a district ed.1998). coign of van- rev. From lo decree does sector consent public of a tion is much the Candidates’ definition tage, deference, “[ojrdinary con warrant not compelling. more extent to the same principles apply” tract underlying the Beecher litigation decrees. other consent they apply to as discriminatory prac- out of decree arose This is F.2d at 1339. Navarro-Ayala, 951 entry- hiring and into in recruitment tices when, now, the question as true especially I, 371 Beecher See pоsitions. level original determining parties’ involves point the focal (describing F.Supp. at 509 scope of the and, concomitantly, the intent municipalities’ “overall as the of the case they initially cons to which arrangement position firefight- of for the hiring policies a consent decree to Id. “Parties ented.5 focus, er”). the dis- with this Consistent not ... will [it] entitled to know are findings of dis- specific made trict court which entering wedge treated as mere be and in recruitment criminatory practices dis court untrammeled gives ... a district was tailored hiring, and the decree breadth depth cretion to increase” discrimina- of that the effects counteract n. 17. Id. at 1339 supervision. judicial perspec- at 520. This historical tion. Id. on the mean- light considerable backdrop, we turn tive sheds Against as used “firefighter” term ing interpretations competing parties’ "entry-level” Throughout, 6. all references us for dissenting colleague chastises 5. Our post- to mean positions much credit. He be giving too should understood the Candidates argue says positions. do not This probationary that the Candidates non-officer only the encompassed original parties’ explicit language intent compelled by qualification is true, literally it but entry-level That is rank. enjoining "further certi- decree in the Beecher place that the Candidates the fact overlooks ... permanent appointments fications squarely at issue scope of the re- firefighter" until certain position require principles argue that constitutional I, of the decree are met. quirements argu- interpretation. address To such an ment, supplied). (emphasis F.Supp. at 521 begins necessarily with analysis our language is reinforced That reference parties’ intent when "determination of perma- between that differentiates the decree stipulation.” Navarro- they entered into appointments. Id. provisional nent and Ayala, 951 F.2d at Logically, parties Beecher decree. by specific the various ranks title. These intended that term must have to refer to consistently records referred to the entry- jobs open hiring: (sometimes class external level rank “Firefighter” entry-level firefighter positions. Fleet See written Fighter” as “Fire or “Fire fight- Entm’t, Inc., er”). Nat’l Bank v. H & D 96 F.3d Corresponding term, to that the evi- (1st Cir.1996) (interpreting terms dence persons showed number of serv- agreement of a settlement light ing rank, the entry-level broken down aim of litigants at the time of settle by race and ethnicity. That re- evidence ment); generally Corbin, see supra ferred to the other ranks —the officers— 24.20, § at Only by 193. interpreting the Lieutenant,” such titles as “Fire “Fire term “firefighter” is it pos manner Captain,” Chief,” and “District Fire giving sible to wording harmonize the of the de the racial composition and ethnic of each purpose. cree with its evident that, such rank. This indicates within the BFD, the “firefighter” term carries itwith language Other supports duties, specific responsibilities, pay, and reading. The decree’s paragraph first privileges. zeroes in on entry-level positions: it en- joins against activities “discriminat[e] Lexigraphic insights are frequent any potential or applicant applicant for ly helpful in determining meaning I, employment.” Beecher at specific See, in consent words decrees. purports The decree to regulate the Dubois, e.g., Gilday v. F.3d 285- recruiting, certifying, appointing and of en- (1st Cir.1997). Here, mine-run try-level personnel and specifically refers dictionary definitions tends support three-part to this process “hiring as the disputed Candidates’ version of the term. procedure.” See id. at 522. Subsequent A firefighter is said to fights be “one who amendments, such as the interim consent fires as a municipal member of a fire de 17, 1975, April decrees entered on and partment,” Third New Int’l Webster’s Dic 25,1975, emphasis November continue this (1993) (internal tionary 855 dictionary on recruitment and hiring entry-level omitted), symbols person or “a who fights positions. fires,” destructive Random House Dictio Custom usage within an af (2d nary the English Language 722 industry fected workplace or can impor be ed.1987), or, simply, person “a fights who tant aids construction of contract fires,” MerriarfWWebster Ortr-Line See, e.g., consent decree. Boston Police (2002), Dictionary http://www.mw.com/

Superior Boston, Fed’n v. City Officers home.htm. uniformly These definitions em (1st Cir.1998) (inter 147 F.3d 17-18 phasize activity the principal firefight preting terms with usage otherwise broad perform. They quite ers clearly show narrowly according usage within the term “firefighter,” in its ordinary profession); relevant Smart v. Gillette Co. sense, applies more naturally to those Plan, Long-Term Disab. 70 F.3d province whose exclusive is attempting to (1st Cir.1995) (noting that “usages of extinguish conflagrations opposed trade” are relevant to interpreting terms (who higher those echelons must contract). Here, of a usage handle a broader more diversified supports BFD the Candidates’ definition activities, range of including administra “firefighter.” term tion and supervision). While the dictio below,

In the court showing evidence nary of “firefighter” definitions do not composition of the BFD necessarily differentiated exclude those whom the defen- include, they argue persua- dants seek cogent argument rejecting the defen- sively against their inclusion. expansive dants’ view of the term “fire- Schlecht, fighter.” v. Walsh 429 U.S. against

Our case law also militates in- Cf. 401, 408, 97 S.Ct. 50 L.Ed.2d 641 cluding higher appellation ranks under the (1977) (“[C]ontraets “firefighter.” example, For in Boston Po- should not be inter- 17-18, Superior Officers, lice F.3d at preted to render them illegal and unen- “police we held that the term officers” forceable where wording lends itself to used a consent decree governing pro- a logically acceptable construction that motions within the Boston Depart- Police enforceable.”). renders them legal and officers, police ment did not include all opposite pan of the scale contains but, rather, encompassed only patrolmen. nothing of weight sufficient to counterba- case, one, That like this illustrates the powerful lance this importance array. asseverational honoring contextual con- discern, may placed straints that Insofar as we can be on a word or interpreting the phrase within the four a corners of consent word “firefighter” to higher include ranks decree. has no basis in the record. The decree is utterly silent as to affecting high- activities Last —but far from least—includ ranks, er and the remainder of the rec- ing higher ranks within compass of the ord—both current and historical —is de- term “firefighter” would mean that any void of allegation or finding that the Beecher decree was not narrowly tailored BFD has ever discriminated against mi- to purpose. serve its stated Such an inter promotions norities in or in person- other pretation effectively would transform an practices (or nel involving aspiring those carefully instrument crafted to eliminate reach) higher Indeed, discrimination in ranks. hiring recruitment and general leverage original into favoring plaintiffs would not have in a much wider variety of matters. had standing allege discrimination in most promotion of those good is a respects.7 such Taking these facts into areas — example justification systematic account, it unfairly —no belittles the Beecher preferential treatment of minorities has court “firefighter” to read as that term is Thus, been established. the transforma used in the decree to include all ranks necessarily tion that accompany would (and, thus, to impute to the court acceptance interpretive defendants’ injudicious crafting of remedy gloss present would an insurmountable beyond reaches scope of the surround- Bakke, constitutional obstacle. See litigation). ing U.S. at 98 S.Ct. 2733. Because courts defendants, ably represented, should none- construing avoid a consent decree in a theless constitutionally plethora advance a way offensive if of counter-ar- a feas exists, ible alternative guments. Only construction this four of require them dis- looming quandary constitutional is itself a cussion. I, Beecher was a consolidated set of ac- class ments.” Beecher 371 F.Supp. at 510. The tions in which the district court certified two other class Spanish- included ‘‘[a]ll black or classes. The first class persons consisted of "[a]ll surnamed applied who have never Spanish-surnamed black or persons position who have firefighter they because have applied position for the firefighter any allegedly deprived been of information con- department subject fire ... cerning firefighter to Massachusetts employment opportunities law, Civil eligi- Service but have not become as a result allegedly discriminatory appointment ble for existing require- under practices recruitment of the defendants.” Id.

First, City point and the “[g]roup eligible intervenor of all Spanish- blacks and paragraph of the interim consent persons”). view, surnamed In our this provi- decree of November 1975. That proclivity undermines the inference that requires municipality seeking so (and be dissent) the defendants seek to petition released from the decree to phrase draw from the “post-probationary MDPA, informing agency “that personnel.” uniformed post-probationary minority Before leaving point, this we note that personnel equals percent- uniformed our dissenting colleague sees “no basis for age of municipality. minorities” concluding ‘firefighter’ opera- is the (and We do not believe casual tive word” in the Beecher decree and the wholly unexplained) linguistic switch from two interim decrees that followed. Yet “firefighter” personnel” to “uniformed can that word appears no twenty- fewer than decretory significance. be accorded This decrees, six times those while the term especially in light so of two facts. personnel” appears “uniformed only once. First, proviso incorporates by that same repeated emphasis, This especially when paragraph April reference 7 of the coupled with the fact that the litigation (which interim opens consent decree revolved around position of firefighter way for release from the decree ranks, did not concern оther it makes particular “whenever a city or town has perfectly clear that “firefighter” is indeed complement Span- achieved a of Black or operative term. firefighters ish-surnamed commensurate with the of minorities within Next, the defendants strive to convince Second, community”). preamble us we should defer ato 1987 memo- to the November 25 decree—the decree MDPA, randum by issued which indi- which introduced the term “uniformed that, purposes, cates for Beecher the first personnel” into the litigation unequivo- — variable should consist of “the actual per- cally parties declared thát “the consent to centage of the authorized per- uniformed entry of Agreement permit ... the manent full-time up force which is made eligibility establishment of an list for the Hispanic tenured Black or any officers of ” position firefighter (Emphasis .... persuaded. rank.” are not We supplied). then, analysis, the final phrase upon which the rely defendants typically deference owed starting point. leads us back to our by a court to an agency administrative agency derives from the fact that the has add, moreover, phraseolo- We that if the been legislative body entrusted a gy employed 25, in the November 1975 administer a statute enacted under that decree was clarify intended to separate branch’s authority. constitutional earlier decrees affected more than the fire- Chevron, See U.S.A. Inc. v. Natural Res. rank, fighter it seems highly likely that the Council, Inc., 837, 842-44, 467 Beecher court U.S. pre- would have used more Def. 2778, (1984); 104 S.Ct. 81 L.Ed.2d language cise such “of 694 see all ranks” or “of Nissan, any rank.” But also Fireside Inc. v. Fanning, the Beecher court 30 es- (1st Cir.1994) more, chewed F.3d 212 language. (reasoning such What is court interpretation demonstrated an state officials’ inclination to use of state stat deference). general descriptors specific subject ute is entitled to If legis I, matter. See Beecher at lative gap agency branch has “left a for the (using general fill, phrase “complement express there is an delegation of specific Chevron, minorities” to refer to the minority authority.” 843-44, U.S. Thus, a 2778. court must defer by judicial S.Ct. decree’s reach fiat. See Boston agency’s reasonable construction of Superior Officers, Police 147 F.3d at 17- Id. at provision a the statute. Furthermore, alleging unconsti S.Ct. 2778. practices tutional hiring within the BFD disparate have caused a impact on the Here, however, a agency state number of minorities in higher eche compliance not helping is to administer heavy lons a charge. is an allegation Such legislative enactment but with a with abstract, should not be addressed in the A judicial appel federal decree. federal but, rather, should squarely propound be late court owes no deference to such an injured ed party with standing to agency endeavoring when to discern the just sue and litigated to a conclusion. Be meaning and constitutional limits of such a litigation cause the giving rise to the all, judiciary decree. After if the is the Beecher decree is of a different nature final questions statutory arbiter as to justification than the that the defendants accept construction and must refuse to offer, now the decree a constitutionally interpretations administrative that contra insufficient vehicle intent, addressing jus clearly dict legislative ascertainable 18; tification. See id. at see id. at see also 843 n. 104 S.Ct. courts Wess mann, (“The certainly power indeed, 160 F.3d at have the mere fact — duty reject that an an administrative construc institution once was found to have —to contrary practiced insufficient, tion that runs to the manifest discrimination is judicial intent of a itself, decree. and of to satisfy a state actor’s bur den of producing the reliable evidence re Third, posit defendants variation action.”). quired uphold race-based See, up” on theory. e.g., the “trickle (“One Stuart, 951 F.2d at 452 obvious rea- Finally, the City and the intervenor ... why may son there have been few make an argument ‍‌‌​​‌‌​‌‌‌​​‌‌​​​​‌​​​‌​‌​‌​‌‌‌​​​‌‌‌‌​‌‌‌‌​​​‌​‍of They last resort. black sergeants the Boston Police Force contend that interpretation their in 1978 is that the Department had not term “firefighter” proper they is because many police hired black officers before have assumed all along that the term em- unjustified 1970. Since ac- discrimination braced more than entry-level personnel. fact, counted for the latter [it] cannot ex- In case, the circumstances of this such a former.”). They cuse the assert that not contention get very does not them far. including higher ranks within the term “firefighter” would efficacy diminish the of In pressing point, this the defendants appointing decree and reward authori- heavily lean upon past practice of the ties keeping minorities in firefight- attempt MDPA and apply to language de- (thus er rank perpetuating underrepresen- rived from Mackin practice. to that echelons). tation in higher For that There, rejected we argument that stat- reason, they argue, it makes sense to re- population ic 1974 figures controlled the quire parity department-wide before allow- measurement of parity. In so doing, we ing a community escape to from the con- wrote that things “[f]ew evidence a de- imposed by straints the Beecher decree. meaning cree’s persuasively more than an immutable,

This argument specious. pattern is decade-old past We have determined, concede, practice decree, and the defendants under the consensually en- parties that the gaged never intended the decree all underlying sides promotions. address litigation produced On that basis that the decree.” 969 alone, it improper would be to extend the F.2d at 1276.

35 language inapposite That is here. In C. The Second Variable. Mackin, using uniformly accept- we were comparison As for the that Beecher de- past practice facially plau- ed to validate a mands —the second variable —the Candi- interpretation sible of the Beecher decree dates, citing cases decided after the entry (i.e., population figures that current would decree, original of the assert that control). id. deemed that past See We employment affirmative action cases mi- practice confirmatory appeared of what nority representation must be measured reading be a commonsense of the verbiage against specific population adult parties approved by chosen and comprises qualified labor pool. See contrast, district court. the defendants City Co., Richmond v. J.A. Croson attempt here use administrative 469, 501-02, U.S. 109 S.Ct. (thirteen practice inaugurated first in 1987 (1989); L.Ed.2d 854 Local 28 Sheet years after the entry of the Beecher de- EEOC, Metal Workers’ Int’l Ass’n v. cree), directly and never challenged, 421, 479, U.S. 106 S.Ct. 92 L.Ed.2d change plain the meaning language (1986); Stuart, 951 F.2d at 453- thus to validate an unlikely interpretation They that any insist other focus would implausible in the context of the that, therefore, be unconstitutional and (and underlying litigation which, in one comparison relevant in this case necessari- bargain, open would the decree to constitu- ly must be to Boston’s over-19 black and attack). tional To the extent Hispanic population. See Mass. Gen. past practice points MDPA’s toward that 31, § ch. Laws 58 (requiring firefighters to suggested interpretation, it lacks record be over years age).8 support and therefore cannot dominate the Wessmann, decisional calculus. See The district court held that 802; Stuart, F.3d 951 F.2d at 454-55. point previously had been resolved. Quinn, To dwell on this point- issue would be F.Supp.2d at 163. agree We less. It suffices to say history governs. stare decisis The last time purpose around, litigation, the language we aspect addressed this decree, usage and the of the BFD standard for measuring compliance head- make manifest that term “firefighter,” on and held that the proper data are the decree, as used the Beecher “contemporaneous population was intend- figures [for] ed to persons include those ... serving ‘the of minоrities within ” the entry-level Mackin, rank. Interpreting “fire- the community.’ 969 F.2d at fighter” decree). broadly rip more would (quoting the decree the Beecher At time, from its moorings, constitutional twist its that very we considered the authori language into something upon alien to its evi- ties which the rely Candidates now purpose, dent principles and violate settled specifically repudiated the notion that of contract law. Accordingly, proper pertinent the the language of the decree was parity-measuring device—what Thus, we have princi overbroad. Id. at 1277-78. called the first comprises ples the required of stare decisis the district variable-— percentage of entry-level minorities -reject court to the Candidates’ version of rank of the BFD as of the relevant how date the second variable should be con (November 2000). of structed. See Planned Parenthood v. Ca- currently imposes 8. This statute upper age age applied hiring cy- to the November 2000 (32) firefighters. cle, limit new for See Mass. Gen. we do not dwell on this feature. 31, § Laws ch. 58. Because no maximum 833, 854, 2791, sey, 505 U.S. S.Ct. certain types parameters of in public insti- (1992) (recognizing and, thus, L.Ed.2d 674 that tutional reform litigation is owed doctrine of stare decisis scope “[t]he embodies deference when the parties’ issue). obligation precedent”). original bargain to follow is at not If more were needed—and we do not reaffirm, therefore, We that think that it is—we note that the Beecher appropriate standard for measuring com decree unambiguously requires the use of pliance with the Beecher decree-—what we percentage general minorities have termed the second variable —consists population as the second variable for gaug contemporaneous population statistics ing discriminatory patterns in entry-level depicting percentage of minorities I, hiring. 523; See 371 F.Supp. Beecher at within the overall community. It follows Mackin, (enu see also 969 F.2d at department that a fire subject merating portions of the Beecher Beecher decree decree will remain so until that require, plainly department or contemplate, refer succeeds demonstrating ence to percentage it has minorities in the “the achieved decree’s actual objective: general population). Mackin, That requirement rough parity,” 969 F.2d fully consistent with the at authorities measured by establishing per cited Croson, centage among entry-level Candidates. See 488 U.S. (“In at firefighters 109 S.Ct. 706 employment the particular department context, we have recognized comparing that for cer ratio entry positions tain level of minorities requiring general within the population minimal training, comparisons statistical of the local community. ra When this com parison cial composition (or, population relevant that parity demonstrates at least, may probative pattern rough attained, be parity) of discrimi been has then nation.”). the Beecher Whether not some other has outlived its useful might precise, standard be more ness as to community’s firefighting fact remains that the firefighter position force. is of type contemplated the Croson Reworking Algorithm. D. Thus, the parties’ original Court. bargain a community-wide pool and the district analysis, From this it is evident

court’s endorsement of that concept are that the district court erred in construct entitled great weight.9 See Navarro- ing the first Beecher variable. order Ayala, 951 F.2d (reasoning at 1339 determine whether that error affected the the district court is best able to decide Candidates’ substantial rights, see Fed. 9. We note judge that the district actually who parties volve leverage without such vis-a-vis Freedman) entered (Judge the Beecher decree remedy; the reach of the leverage where such that, specific made mention the BFD exists, however, measuring parity against gen- required applicants age range to be within an population eral prevents public statistics I, years. оf 19-35 employer enjoined discriminatory prac- that, 512. He prior also observed tices in violation manipu- of federal law from age the minimum been had 21. Id. Mindful lating remedy fancy. the to suit So shift, of this he community concluded that the viewed, Judge shaping Freedman’s of the sec- population as a appropri- whole would be an good ond example why variable is a of “broad ate measure compliance. of sup- This seems judicial discretion [is crucial for the often] portable light Judge recog- of Freedman's judge complex district legal goals.” to secure enjoined nition that party the power had the Navarro-Ayala, (citations 951 F.2d at 1338 reconfigure the pool. contours of the labor omitted). quotation and internal marks authorities cited the Candidates in-

37 61, R.Civ.P. we the algorithm using rework tification for it 309, has abated. See id. at proper If algorithm the variables. 98 S.Ct. 2733. From point forward, yield (or, does not ratios show parity the employer has no pre basis to continue least, rough parity) at per- between the ferring id.; minorities. See see also Mac centage of entry-level the minorities kin, (“An 969 F.2d at 1276 intrusion a rank of the BFD and federal court into the affairs of local gov City whole, Boston as a ernment kept should be to a bare mini entry then the of summary judgment in mum not be and allowed to continue after City’s favor must stand. See Houlton the violation has abated pernicious and its Houlton, Citizens’ Coalition v. Town cured.”). effects have been (1st Cir.1999) 175 F.3d (holding conclude, therefore, We that the City’s grant that a of summary judgment may be continued resort to preferences race-based affirmed any independent on ground re- from and after the time when parity was record). by the vealed achieved fails the second prong of the issue, parties On this urging strict scrutiny analysis. Bakke, See parity (here, has been achieved U.S. at Thus, 98 S.Ct. 2733. Candidates) proof. bear the burden of See City’s adherence to the Beecher decree Co., C.K. Smith & Inc. v. Motiva Enter. during the 2000 hiring cycle was unconsti- (1st LLC, Cir.2001). 269 F.3d That tutional. Consistent with the foregoing, we purely is of interest academic this case reverse the district entry court’s of sum- pertinent for the are facts uncontradicted. mary judgment in favor City and developed The court below the factual rec direct the court to enter judgment in the ord sufficiently that, to demonstrate when Candidates’ favor. City class, recruited the 2000 hiring Hispanics comprised blacks and approxi E. Relief. mately 40% of the firefighters within holding does not end the mat Our time, At BFD. the same blacks and His ter: there remains question of what panics constituted slightly over 38% of remedy appropriate under the circum Quinn, population. Boston’s overall stances. That is a highly ramified ques Hence, F.Supp.2d at 162. parity had been tion, the subject answer to which is to the achieved, and the City had become eligible push pull competing centrifugal for release from the strictures centripetal forces. II, Beecher decree. See Beecher 504 F.2d at 1026-27. hand, On the one public a em facts,

Given these ployer’s good district faith reliance on a consent all, court’s error was not harmless. After remedy entered to the effects of public employer who consents to use past discrimination not lightly should be palliate race as factor order See, e.g., disturbed. Superi Boston Police lingering past effects of discrimination Officers, 147 F.3d at 25. proposi That maintain must oversight continuous or tion has particular bite firefight as to the der to ensure that the decree ers who appointed works BFD were during possible least harm to other per innocent hiring cycle, for the Beecher de competing Bakke, sons employment. cree not directly does hiring dictate deci sions, U.S. but, rather, S.Ct. 2733. Once pari simply directs munici ty achieved, has been palities decree has take action affirmative concerns legitimate served its purpose, jus- and the into in choosing among qualified account Mackin, complicit 969 F.2d at 1278 in applicants. See some scheme or somеhow un- “only qualified minority (explaining deserving appointments. their Conse- specially advantaged; no candidates are quently, there is no principled basis for placed on the minority eligibil candidate turning back the clock revoking those ity appointments. list unless he or she has attained a passing score on the entrance examina mean, however, That does not that the tion”) (emphasis original). in the Constitu Candidates are entitled to no more than a ever, rarely, justify violations if tional tip handshake or a of the hat. The fact employment specific reversal of decisions they remains that have succeeded in show- previously by government employers made ing City applied decree, a consent insofar as decisions affect innocent those previously constitutional, held to be for too See, parties. e.g., Boston Superior Police long. The result was that City infring- 25; Officers, Wygant, 147 F.3d at cf. ed the Candidates’ rights constitutional (“Denial 282-83, 106 U.S. at S.Ct. 1842 of a upon when it acted applications their for employment future opportunity is not as appointment to They the BFD. should at job.”). intrusive as loss of an existing least have had the opportunity compete history of this case a striking offers exam positions for the they coveted free ple court, of this truism: the Beecher de imposed the constraints by the Beecher spite finding pervasive past its discrimi Bakke, decree. See 438 U.S. at nation, did not disturb the livelihood of Balancing S.Ct. 2733. competing these firefighters those who were on the force considerations, we hold that the BFD’s I, See Beecher at 520 appoint specific decisions to individuals (noting “preserv[ej the need to morale during the hiring cycle were valid within departments”). the fire exercises responsibility provide of its hand, On the other we have acknowl- the citizens of comple- Boston with a full edged job applicants when have been ment of qualified firefighters. See Beecher equal protection denied by I, the laws 371 F.Supp. Nevertheless, at 520. public result, employer, spe- “[t]he not the application of the decree to the 2000 hiring intent, II, cific is what matters.” Beecher cycle violated the Candidates’ constitution- (citation 504 F.2d at 1021 and internal al rights by depriving them of an equal omitted). quotation spirit, marks In that ‍‌‌​​‌‌​‌‌‌​​‌‌​​​​‌​​​‌​‌​‌​‌‌‌​​​‌‌‌‌​‌‌‌‌​​​‌​‍opportunity to compete positions on the original Beecher court invoked equi- Bakke, BFD. See 438 U.S. at 98 S.Ct. powers table to fashion affirmative relief remand, 2733. On the district court must perceived injury explicitly even after through determine, sort this tangle and disavowing any finding that the “exclusion- discretion, its sound appropriate reme- ary policy [giving litigation] rise dy for the injury (excluding, Candidates’ been intentionally ha[d] followed however, de- any form of relief would I, sign.” Beecher 371 F.Supp. at 519. require any dismissal of provisionally or permanently appointed firefighter current- Here, the Candidates have neither of- BFD). ly serving in the any fered City evidence that the acted in faith bad nor plausi- otherwise set forth a IV. CONCLUSION ble basis that would justify a court second-guessing specific decisions The goal of the Beecher decree was to made City hiring cycle. the 2000 discriminatory practices eliminate vein, In a they similar have not established hiring recruitment and firefighters persons that the actually subject hired were either communities to the Massachusetts laws, and, relatedly, judgment The of the district court is Civil Service to reme- discrimination in reversed and the case is remanded for dy past the effects of and hiring. proceedings further recruitment Remediation has consistent with this At opinion. Costs are to be taxed in favor quarter-century. taken more than a last, however, long objective appellants. of the has been BFD; respect achieved with to parity

has been reached between the percentage LIPEZ, Circuit Judge, dissenting. minority firefighters in the BFD and majority frames the critical issue as of minorities in City as involving one “competing interpretations of a whole.10 the term firefighter.” I respectfully dis agree that this is the centrаl issue in Although significant this is a land dispute. Indeed, mark along equality, majority the road to we add a attributes argument to the word of Candidates that they caution. We are not Pollyannas, have not made this recognize litigation and we that achieving parity at —that court parties and the firefighter to the Beecher level is not tantamount to a understood as matter saying original that all is regard well to racial intent minority presence depart ethnic issues within BFD the fire as a subject ments to the whole. decree would To the extent that be cal inequalities re main, however, culated considering only they entry-level are not within the firefighter compass rank. The of either the Candidates Beecher decree or acknowl edge that “[w]hen the litigation. Nor Beecher decree will we reach out was conceived, originally apparent them —issues of magnitude goal constitutional was generate subject parity should not racial speculation, be the the Fire De but, rather, whole, partment a opposed should be as litigated fully merely parties Instead, with standing represent firefighter ranks.” various the Candi pertinent points argue of view. For dates today, we we should focus on fulfill our responsibility by holding entry-level that the changed ranks because cir City’s appointment firefighters 1992, ought no cumstances since 1974 and when we longer subject be to the last strictures reviewed the Beecher decree in Mac Beecher decree. go Boston, (1st We need no City further. kin v. 969 F.2d 1273 dissenting 10. Our squarely brother application. never ad- tutional Viewed in either fash- argument ion, dresses the Candidates’ that "even question scrutiny. warrants strict See assuming general population statistics Jail, County v. Inmates Rufo of Suffolk considered, minority composi- are be 367, 384, U.S. 112 S.Ct. 116 L.Ed.2d 867 (39.9%) Department’s firefighters tion of the (1992); Adarand, see also 515 U.S. at minority composition gen- exceeded the brother, however, S.Ct. dissenting 2097. Our (38.3%). population eral of Boston The ex- says only imagine that he "cannot that the parity minority aminatiоn of should focus on plaintiffs litigation in the Beecher would have representation firefighter position alone upon remedy decided provides incen- preferences .... apply The racial at issue keep entry-level tives [to minorities in the solely firefighter position.” Appellants’ This scrutiny rank].” is the stuff not of strict (internal Brief at 23 cross-references and See, e.g., but of rational basis review. FCC v. omitted). paragraph structure This is Comm'ns, Inc., 307, 315, Beach 508 U.S. changed requiring circumstance an examina- (1993) (uphold- S.Ct. 124 L.Ed.2d 211 goals tion litigation into “whether the ing law under rational basis review “based on achieved,” Mackin, completely ... have been speculation unsupported by rational evidence question 969 F.2d at posed as well as a data”). empirical involving for the first time the decree's consti- Cir.1992), original phrase “complement render the intent of the of minorities” in the decree unconstitutional. operative explaining city’s sentence when a department exempt fire could receive an

Moreover, even if the Candidates had NAACP, original us to determine the intent Chapter, asked ion.11 Boston Inc. v. parties parity, of the on the calculation of Beecher, 507, (D.Mass.), it is a mistake to frame the issue as a (1st Cir.1974). 504 F.2d 1017 In its aff'd meaning search for the of the term “fire- April Interim Consent Decree of detail, explain As I will in more fighter.” (signed by parties), the the court for the there no consistent of the is use word first time “firefighter” used the term “firefighter” operative as the term in the explaining process the obtaining Instead, parity. calculation there are a exemption: “The Director [of Personnel used, variety only of terms one of which is notify plaintiffs Administration] shall “firefighter.” the word The relevant ques- supply plaintiffs to the evidence when tion, then, which early of the formula- particular ever a city or town has achieved parity cap- tions of the measurement of a complement Black Spanish-sur- parties tures the intent of the and the firefighters named commensurаte with the court. percentage of minorities within the com proceeds parts. This dissent in three In ” NAACP, munity .... Chapter, Boston I, part I address majority’s conclusion Beecher, 72-3060-F, Inc. v. slip op. No. always the Beecher decree contem- (D.Mass. 1975) variable, Apr. plated (emphasis that the first to use the add majority’s ed). language, would consider thereafter, though, Soon parties percentage entry- signed “Agreement to Effectuate In II, firefighter level ranks. In I Part ad- Decree,” terim Consent which again dis majority’s dress the assertion that narrow exemptions. cusses Paragraph 11 of that tailoring requires interpretation of the Agreement department states: “No fire decree to avoid problems. constitutional ... may exempted be ... ap unless the III, In Part I evaluate the Candidates’ pointing authority petitioned has first argument changed circumstances Division that percentage of post-proba entry since the of the Beecher re- tionary minority personnel uniformed quire that the decree now be read to mea- equals percentage of minorities in the parity by sure focusing only on the fire- city or by town served said department fighter ranks. ” NAACP, .... Chapter, Boston Inc. v. Interpreting

I. the Decree Beecher, 72-3060-F, No. slip op. at 6 (D.Mass. 1975) Nov. (emphasis original adde decree issued on 8, 1974, d).12 February the court used the decree, decree,

11. In our first review para of the we certainly of the it supplant should not decree, phrased language parity paragraph original of the decree. force, saying that "[t]he decree remains in majority 12. The city's dismisses the reliance department, each local fire depart until that terminology on the of the November 1975 minority fighters ment attains sufficient fire Agreement Agreement "incorpo- because that percentage have a approximately on the force paragraph rates April reference 7” of the equal of minorities in the decree, "firefight- which uses the term NAACP, locality.” Chapter, Boston Inc. v. ers,” and therefore "leads us back to our Beecher, (1st 504 F.2d 1026-27 Cir. starting point.” majority The assumes that 1974). While the fight use of the term "fire April 1975 decree should be the court’s may ers” have been a description shorthand "starting point.” starting point formulations, Instead, Presented with these three question.13 we must acknowledge majority chooses to focus on the word competing formulations of the “firefighter” April 1975 Interim first variable create an inescapable ambi- Consent Decree as the critical word and guity which must be resolved resort to dismisses the formulation in the final extrinsic evidence. (“the agreement parties of the percentage We have already opined in litigation this of post-probationary minority uniformed on the persuasive kind of evidence that (and personnel”) as a “casual wholly unex- helps resolve such ambiguities. “Few plained) linguistic switch.” This dismissive things evidence a meaning decree’s more odd, characterization seems especially persuasively than pattern ... past [a] phrase since “post-probationary the minor- ” practice under the Mackin, decree .... ity personnel” uniformed in the November 969 F.2d at 1276. The City and the Agreement is far closer to the gener- produced NAACP evidence that Massa- al language original of the Beecher decree chusetts required has minorities”) municipalities seek- (“complement of than the ing exemptions from the “firefighter” word decree to com- April used the Inter- pare im the “complement percentage Decree. The of minori- the population ties” and “post-probationary minority city uni- of their or town to the personnel” formed formulations also seem of minority personnel among capture to purpose the that the Beecher departments’ their entire 'per- uniformed court attributed to its own decree—to rem- Using formula, sonnel. forty-five mu- edy “exclusion of minorities from the nicipalities originally subject to the decree fire department” does the word have exemptions. received An —than affidavit in Beecher, “firefighter.” F.Supp. explains the record department’s that no 519-20. appointing authority objected has to this formula it

However, since has been in place. support there This is for competing understanding of the decree shifting views word has been me- choices of these morialized in a three language decrees. The memorandum circulat- itself does by not ed definitively Department tell us Massachusetts what the court parties Personnel outlining intended for the Administration measure of the “the process first variable. and the But the use criteria for seeking ap- of the word proval “firefighter” part exemption” is for ambiguity from the Beecher —not memorandum, the answer it. In sequence to decree. This of lan- using the guage decrees, in the three terminology there is no same as the November 1975 for concluding basis that “firefighter” Agreement, is states that a municipality operative word and that determining must consider the “full-time uniformed plain will meaning answer the intent force” and calculate the percentage of analysis original should be the point. example, Beecher de- "firefighter” For the term phrase "complement cree—which uses the used no fewer simply than ten times to de- Beecher, minorities.” at 523. candidates, given scribe the examination example firefighter "valid entrance exami- support argument “firefight- of its fighter nation” and "fire examination.” As I operative er” is the decree, interpreting term indicated, operative one must focus on the majority notes that the term "fire- decrees, term language i.e. the which fighter” is used "no twenty-six fewer than explains meaning parity. In that con- decrees, times in the while the term 'uni- text, "firefighter” word is one of personnel' appears only formed once.” three formulations. true, likely While this statement is beside the designates (tenured) per- Agreement November full-time “post-probationary munici to which agency “Division” as Hispanic members Black manent for ex apply departments determine whether should pal fire force” uniformed The November achieved. from the decree. parity emptions been has by coun signed also was Agreement importance majority dismisses Adminis of Personnel the “Director sel for “a memorandum, concluding that of this question, The memorandum tration.” owes no court deference appellate federal that was then, agency was not issued helping to administer agency state [a In underlying litigation. stranger judicial decree] awith federal compliance party meaning stead, it was crafted to discern endeavoring when a decree.” limits of such the court-ordered litigation with constitutional and Beecher a one. point is fair of petitions this the generality a responsibility As review from the Massachu- exemption But memorandum departments fire municipal Adminis- of Personnel Department setts these circum Under the decree. from a more than much demonstrates tration the stances, in Machín on insistence the ambiguous of interpretation reasonable past prac pattern a of value of persuasive helpful a in a federal decree language apt. particularly is the decree tice under de- memorandum This agency. state v. Hernandez Navarro-Ayala also See of the past practice” “pattern a scribes Cir.1991) (1st -Colon, F.2d in the language November application dissenting J., part and (Cyr, concurring parties the by one of Agreement to a a consent decree part) (analogizing litigation. original the rule well-established “Under a contract: of the Massachu- may The Commissioners look the court interpretation, contract were some of Civil Service Division setts con course of post-contract parties’ to the in the consolidated named defendants the the to ascertain performance and duct point, At the De- some litigation. Beecher application’ and interpretatiоn ‘practical be- Administration of Personnel partment to the attached parties themselves the Division of Civil the came the successor (emphasis language.”) ambiguous contract carrying out responsible for and Services in original). of the decree. provisions the remedial di- says that Machín’s majority The de- April 1975 decree 1 of the Paragraph practice post-execution to consider rective Service of Civil the “Director scribes how “inap- meaning is interpret the decree’s Di- mean the Director shall [hereinafter the in this case because evidence posite” 1,1975, successors, rector, July after his “to used being question practice the im- should Administrator]” the Personnel plain language meaning of the change Beecher decree.14 original plement interpretation” unlikely thus to validate Agree- 1 of the November Paragraph However, there is Beecher decree. of Person- to “The Division15 ment refers on the in the plain language decrees no (formerly known as nel Administration variable, “unlikely first hereinafter, issue of the Service, and Civil Division of adopted by one of one ‘Division’) interpretation” was Paragraph ....” agen- I assume that April nel Administration. are in words 14. bracketed There question one and same. are cies decree. agen- currently exist a Massachusetts not does to the Although court referred the Beecher of Person- cy name Division the official with Administration, Division of Personnel Administration. nel Department of Person- agency itself the calls parties underlying to the litigation and cannot imagine that plaintiffs complied with many municipali- other Beecher and the litigation district court subject Therefore, ties to the decree. the would have upon decided remedy majority’s interpretation of the decree provides incentives so at odds with the contrary runs both to Massachusetts’s purpose of the litigation and the relief understanding demonstrated of it and to ordered.16 lengthy history appliсation of its granting many exemptions from the decree II. Tailoring Narrow (that over a of at period least sixteen years support To interpretation its is, 1987). since decree, the majority contends that It majori- is also difficult to reconcile interpretation advanced by the city ty’s interpretation of the decree with in- and the NAACP “would mean that centives would have seemed sensible Beecher decree was not narrowly tailored parties If, to the decree. at the to serve purpose.” its stated In elaborat- entered,

time the decree city was fire ing on this point, the majority an- raises department knew that it needed to show argument other that was not raised by the parity only in entry-level class to re- Candidates: exemption decree, ceive an from the it an interpretation Such would effectively could goals achieve its more quickly by transform an instrument carefully craft- all the keeping minority firefighters it ed to eliminate discrimination in recruit- is, hired at entry the level—that by select- ment hiring and general into leverage promotion ing for non-minority fire- favoring minorities in a much wider vari- fighters. majority’s interpretation ety of matters. most of ar- those provided would have for incentive fire promotion is a good example departments promote not to eas— the black and —no justification systematic for preferential Hispanic firefighters it hired under the treatment of minorities has been estab- terms Every of the decree. minority fire- lished. fighter promoted to an position officer

would have been Hispanic another black or it, As I understand majority the reasons department member of the did that not interpretation the of the Beecher de- count towards the parity. calculation of by cree advocated the NAACP and city the would

Although impermissibly there is no benefit minority evidence in fire- the fighters by giving record that the Boston Department prefer- Fire somehow them (“BFD”) has ever ences for against promotions discriminated еven though the black Hispanic firefighters and Beecher previ- findings in its court made no regarding promotion decisions, ous the the majority’s constitutionality ‍‌‌​​‌‌​‌‌‌​​‌‌​​​​‌​​​‌​‌​‌​‌‌‌​​​‌‌‌‌​‌‌‌‌​​​‌​‍promotion in- of the poli- terpretation of the departments decree an in- cies of the subject creates fire the discriminatory centive for decree. decree, behavior for effect of This the Beecher municipalities those subject still concludes, the de- majority would it render cree after the resolution of case. I this unconstitutional. opinion,

16. In a majority footnote to its proffer the dates. I do not it as a constitutional point cites this as evidence I do not upholding My basis for the decree. conclu- understand the difference original between strict scru- interpretation sion that this tiny constitutional, Self-evidently, and rational basis review. decree is specifically, or more point only support I make this origi- narrowly that it is compelling tailored to a interest, meaning nal by government of the decree advanced presented is in the sec- acknowledged by defendants and the Candi- tion that follows. of those that some possibility creases because conclusion with disagree I to officers promoted will be the effect minorities have in fact not does the decree makeup of the racial change treat- thereby preferential granting has is, see decree I fail to because the That ranks. Just promotions. officer ment taking racial changing the calculating parity consequence merely how eligible into consideration pool of those department composition the entire treat- uncon- preferential that it is mean “systematic does not promotions leads to pro- promotion in the minorities” ment of stitutional. evidence First, is no there

cess. hired firefighters Changed Circumstances minority III. record have with accordance that, noted, concede As Candidates promotions. preferences received оriginally decree was the Beecher “[w]hen about conclusion Therefore, majority’s conceived, gener- apparent goal was Sec- entirely speculative. is an effect such as Department the Fire parity racial ate “preferen- majority’s ond, logic of the fire- merely whole, opposed to problematic. argument treatment” tial However, they argue ranks.” fighter not terms, Beecher decree does By its anal- years, “a different twenty-eight after policies of promotion address explicitly to be if the decree is used ysis must be department fire any other BFD or constitutionally accept- in a implemented is calculated parity way. Whether any Candi- Specifically, manner.” able entry-lev- merely into consideration taking changed circum- three point dates including by also lieuten- firefighters, el revised require a they claim stances chiefs, does the decree ants, captains, First, they decree. interpretation department’s the changes in mandate not time evident over it has say that become the criteria Because practices. promotion pur- the for ineffective that the decree is they firefighters, whatever promoting diversity in the racial pose generating of hiring be, from the independent may are Second, the Can- BFD. ranks of upper the to criteria, alterations Beecher court’s the years twenty-eight remind that us didates no on have effect hiring criteria the BFD’s Beech- entry the the of elapsed have since Therefore, whether criteria. promotion its simply too decree, that this is argue er to continues not the rough of the realization to wait for long depart- by which the method direct the in- Third, scope the when parity. only we firefighters, new can ment hires of to consideration restricted quiry is con- assume, any evidence the without that statistics show firefighters, entry-level will continue department the trary, that firefighters ex- minority of the percentage it al- way in same the promotions decide in the of percentage ceeds ways has. pari- in an “excess of community, resulting results in an True, the decree by design, entry ty” level. from of the class diversity increase in to understand at a loss Frankly, I am firefighters selects the the BFD which as a dis- circumstance” “changed this third However, of consequence this promotion. two offer Candidates argument. The crete leverage “general cannot be the decree In the parity.” of of “excess variations any organization favoring minorities.” computation of use a first, the Candidates within, application from promotes reject- majority has rightly that the parity in em- that results hiring decree of a the differ- computation reflects That ed. that otherwise ployment of minorities minority of percentage in- ence between the necessarily hired not have been would (39.9%) minority and the A. firefighters popu- Ineffectiveness Decree. (32.6%). aged lation of Boston 18 and older The Candidates assert that although agree majority I with the that stare decisis entry-level 39.9% of firefighters requires the use of the of mi- (22 minorities, 350) BFD are only 6.2% of population, general norities rather personnel of uniformed above the rank of population, than the adult as the second firefighter They are minorities. assert gauging parity. variable for In the alter- years, “after 28 tempo- this is not a native, the Candidates assert that “even status,” rary and that continuation of the assuming general population statistics decree will only disparity increase in favor considered, minority compo- are to be entry minorities at the level. Claimants Department’s firefighters sition of the argue changed that this circumstance im- (39.9%) minority composition exceeded the plicates narrow tailoring because the general population of Boston proven Beecher decree has ineffective (38.3%).” However, conceding after achieving words, goals. its In other originally “[w]hen Beecher decree was unexpectеd barrier entry-lev- between the conceived, apparent goal gener- was to ranks, upper el and the experienced by parity Department ate racial the Fire as BFD, minorities within the demonstrates whole, opposed merely the fire- process race-conscious hiring ranks,” fighter the Candidates do not use narrowly not tailored to serve the decree’s this formulation of parity” “excess of goals parity within the BFD. articulate a distinct argu- constitutional Instead, they ment. use the statistics as Interestingly, majority’s narrow tai- evidence that the decree is not effective for loring argument and the Candidates’s nar- purposes of achieving “apparent tailoring argument row are based on con- goal” of racial diversity upper ranks tradictory premises. factual majority Hence, the BFD. because “excess rejects the higher inclusion of ranks in the parity” in firefighter inescapa- rank is computation because, parity part, bly tied to the first “changed circum- such inclusion unconstitutionally trans- argument stance” relating to the ineffec- forms the decree into an instrument of decree, tiveness of the I will not address “general leverage favoring minorities” in this “excess of parity” argument indepen- contrast, promotions. By the Candidates Instead, dently. I incorporate my will dis- assert that the decree is unconstitutional parity cussion of excess in the ineffective- because it is in furthering ineffective the argument. ness promotion upper of minorities to the ranks. While modification of a consent decree is

warranted if “a significant change there is ways There are two to understand the law,” in either factual conditions or in argument. Candidates’ ineffectiveness Rufo Jail, v. Inmates County may The Candidates arguing be that the of Suffolk 367, 384, decree, U.S. conceived, S.Ct. 116 L.Ed.2d originally Beecher re- (1992), party “a seeking quires parity modification of at entry-level both the and a consent decree bears among upper the burden of es- the ranks. Becаuse of the tablishing significant that a in change alleged promotion cir- barrier to of the minori- cumstances warrants revision of ty firefighters, the de- the Candidates contend cree.” Id. at 112 S.Ct. 748. The that the achieving decree is ineffective in Candidates have carry goal. failed to this bur- this Alternatively, they may be ar- den. guing purpose that the of the decree is to Es- towns.17 of other in “total force” the department as the in parity achieve pro- minorities were few sentially, there of of distribution

whole, the irrespective towns, and the any in of the cities mote department. the all levels of minorities Beecher why the explain never Candidates they as- promotions, barrier the Given assumptions any made court would have can be way parity only sert the Therefore, it practices. promotion about is, imper- indirectly achieved is —that Beecher to the attribute unpersuasive to is at the minorities “overloading” missible in the Can- assumption the described court diversity lack of the to “offset” entry-level discriminatory “once the brief that didates’ that this effect ranks —and upper re- hurdles were the entrance effects of I will tailoring. address narrow fatal to through trickle moved, would minorities of the ineffec- variations these separately evenly.” somewhat department the fire argument. tiveness to attribute Instead, it is more reasonable in reflected goal Entry in Beecher court Level and Parity at the “a of the decree: explicit language Upper Ranks commensurate of minorities complement ar- ineffectiveness first The Candidates’s minorities” within percentage with characteriza- on their premised gument is Beecher, municipality. each decree, purpose original tion party to the City, original an The at 523. is, they That assumption. an described as the decree decree, purpose of states the court Beecher attribute the district “increasing gross the total brief: well the discrimina- assumption that “once minority fire personnеl proportion were hurdles of the entrance tory effects appointing authority.” each through removed, trickle would minorities earlier, Indeed, the Beecher as noted evenly.” somewhat department the fire of the decree purpose At court discusses premise. flaw in this a basic There is ordering remedial entered, original opinion in its was Beecher time the decree establishing the and framework in action minority firefighters percentage it There consent decree. subsequent It percent. one less than BFD was Spanish- and 1974 “blacks states pointless for Beecher would have been insig- persons represent such pro- surnamed assumptions about any court to make force,” of nificant total when the number practices motion past discrimina- “present effects negligible. was these in the BFD I, be remedied.” de- tion must Moreover, not enter its the court did noth- says F.Supp. at 519-20. remedy discrimination cree proportionali- racial anticipating ing department. The Beecher about fire Boston upper entry-level municipalities ty in both fifty-five other court made inef- argument of The ranks. Candidates’ subject to the Beecher in Massachusetts proportionali- achieving in such dispro- the fectiveness decree, noted specifically and goal premised on because it is ty fails of minorities percentage low portionately approximately of total the popu- represent 2% City Springfield of has black 17. "The force. ap- population of a black New Bedford has Of fire- approximately lation of 13%. ap- represent proximately Minorities and are 3.5%. fighters city, black none in that one is Worcester the fire represents proximately force. of black 1% Spanish-surnamed. The one approximately population of 2%. a black City Cam- has of total the 0.2% force. 6.1%, force represent fire the and a Minorities 1% bridge population of a black has Beecher, (empha- men, at оf whom there." fighting four force of 305 fire added). black; They sis Spanish-surnamed. are one is that is nowhere in priate discernible the Beecher alleged to address disparity in the upper decree or decision. indirectly ranks using pref- racial ranks, erences to fill 'the lower when Parity Department in the as a promoted minorities are not being in Whole proportionate numbers. purpose

Even if the of the Beecher de- The Candidates’s tailoring narrow argu- diversify department, cree is to the entire ment asserts that only there are possi- two without to regard the even distribution of ble causes for the discrepancy between the in entry upper minorities the level and percentage of minorities at the entry-level ranks, that, the Candidates argue given and the percentage of in minorities the minority promotion the barrier to (a) upper ranks: the low percentage department, continuation of the decree will in upper minorities the ranks is an accu- only in disparity increase favor of minori- rate reflection of qualified applicant the at entry ties the level. From this changed (b) pool, or the low percentage of minori- circumstance, the offer a Candidates com- ties reflects pro- discrimination in the plicated tailoring argument narrow process. motion They say if the bar- not easy summary. does lend itself to promotion rier to is due to the lack of Hence, I quote length: it at qualified minority applicants, then the de- promotion

If the method of cree is not appropri- narrowly is tailored because it ate, requires is not the discriminatory, overloading and neverthe- of minorities at entry-level less to the disparity top leads racial at the to offset this dearth of mi- levels, inappropriate qualified upper then it is norities for the try to ranks. Al- if legitimate promotions ternately, “offset” promotion with an barrier discrimination, due to minority presence increased at the bot- decree is ineffec- words, In tive in parity may addressing problem tom. other this cur- because it rently focuses upper only hiring practices. exist on levels of the Since Department, Fire there are may possible that it two reflect causes of the appropriate proportion discrepancy between of minorities of mi- qualified pool entry-level percent- labor norities pro- for such and the so, age ranks, upper motions .... If this parity can not be and justify used to each cause demonstrates that hiring quotas further the decree is narrowly the lower not ranks. tailored serve the decree’s within goals parity the entire Fire De- alternative, In the if lack of minorities at partment, the Candidates argue top levels is the result of a discrimi- “conundrum,” it, they describe conclu- (of natory promotional procedure which sively proves that the decree fails nar- proof), there is no requirement tailoring row test. “narrowly preferences tailor” racial re- quires specific promotional logic This prem- reveals another flawed problem directly, be addressed and not (a) (b) ise. represent Causes do not indirectly through affirmative action at possible explanations universe Indeed, the lowest level. more minori- fact, discrepancy. City offers a in a position ties lower does not remedy plausible third constitutionally sound problem the “discriminatory” pro- of a explanation. experience Based on its with process. motional public employment pro- affirmative action comply scrutiny, To with strict grams, a racial City posits may just the that it remedy must be inappro- It is take a long time for affirmative action effective. 48 of grudging prog- a view to take too BFD dates entry level of the the at

measures in the representation minority ress. influence of being evidence of Instead higher ranks. argument, the conundrum With their only the fact that promotion, to a barrier argument an have constructed Candidates depart- ranks of the higher the 6.2% of logic the basis of to succeed on designed inesca- may evidence an minority is

ment pos- proof: both of because instead diversity growing of process pably slow discrepancy be- for the explanations sible time At the department. the throughout in minorities the percentages the of tween in implemented was the Beecher a ranks indicate entry-levels upper and only of 0.9% represented tailoring, they assert narrow lack of I, F.Supp. at 371 BFD. Beecher the total reality prove the of they not have to do the representative of far from 514. While However, noted, as explanation. either community, the the minority population it to faulty fails ac- is because logic upper in the minority representation 6.2% constitution- plausible and other count for indicating increase significant ranks is a discrepan- explanations for ally sound decree, slowly, foster- however is that the Therefore, assumption on the cy. even Indeed, upper ranks. ing diversity tailoring narrow might be a there increase a demonstrable there has been if the Beecher decree either problem with recently. minority officers number of explanations of the dis- in- of the Candidates’ response to the Candidates’ City’s applicants summary crepancy (unqualified in the were real terrogatories, included were record, discriminatory promotion indicates there judgment promotion 18 in proof minority officers must offer the Candidates practices), years, span a of two in 2000. They Over have explanations. of one of these in- minority officers failed do so. to 6.2%. from 4.8% creased out, point As Candidates themselves Moreover, change rate of the slow discriminatory pro- there no evidence of is organi- in an surprising ranks is not officer alternative “un- practices. The motion the BFD. While zation the size explanation18 is ob- applicants” qualified firefighting employs over department grounds. on a number jectionable hold officer only of those personnel, First, court found the Beecher Although percent. positions than —less firefighters was examination for entrance uncommon that it is not the record reveals had job performance and not indicative a firefighters in 50 new Boston to hire impact on discriminatory minorities. unlikely that highly particular year, it is Second, 517-18. at only positions 350 officer department with Mackin, 969 F.2d at we made clear as time many over the same promote will specifically Beecher court de- promotion the annual period. Because hiring signed require the decree much lower than be generally rate will Third, the Can- applicants. only qualified rate, that minorities hiring evidence annual entry- that the themselves assert didates upper levels of the penetrating are not have positions promotional level is entry as the level quickly department skill, experience and “markedly different concluding that there predictable. making perfor- requirements,” knowledge minority promotion intractable barrier examination of lit- on the entrance mance there merely department because promotional officers, success. tle relevance minority the Candi- are competing promotions, they are explana- seek on this scorers Candidates elaborate 18. The action affirmative against as follows: have scored ”[B]ecause tion non-minorities who on that score lower benefits minorities top very of the entrance examination.” ... lower [w]hen these entrance examinations in simply proof There is no this record ties within the community”). Limitations represents “ap- that the statistic of 6.2% this sort are crucial in evaluating factors in propriate proportion of minorities overbreadth challenges. See Stuart v. Roache, pool promotions.” (1st Cir.1991). labor for such qualified 951 F.2d Nothing about the appoint- race-conscious The Candidates bear burden of process ment of the Beecher decree resеm- proving changed the existence of circum- bles ageless “remedies that are in their constitutionality undermining stances reach past, into the and timeless in their Rufo, of a decree. consent 502 U.S. ability to affect the future.” Wygant v. 383, 112 S.Ct. 748. Mere recitation of the Educ., 267, 276, Jackson Bd. 476 U.S. describing current statistics the racial of (1986); S.Ct. 90 L.Ed.2d 260 see composition entry-level upper of the and City Co., also Richmond v. J.A. Croson Thus, ranks is insufficient. the Candidates 469, 498, 488 U.S. 109 S.Ct. carry prov- have failed to their burden of (1989). L.Ed.2d 854 With so much compli- ing changed substantial circumstances af- elsewhere, ance and with so much progress fecting validity the constitutional of the in Boston rough towards parity, the mere decree. passage of time not does demonstrate the B. Duration of the Decree decree’s ineffectiveness. rejected Although argument we this' IV. Conclusion Mackin, when we decided the Candidates At least since our (now decision in Mackin argue that the passage of time years ten ago, the Beecher decree has had twenty eight years) changed is itself a cir- a settled meaning. Pursuant to that set- cumstance that demonstrates the ineffec- meaning, departments tled the fire tiveness of the Beecher decree. That ar- eighty percent municipalities subject gument unpersuasive is as now as it was to the Beecher decree have achieved com- when we decided Mackin. Then we said: Now, pliance with it. faced with a re- limited, remaining [T]he decree’s life is newed challenge by to the decree Candi- in force until requirements have dates unfairly who feel themselves barred Indeed, proof been met.... from employment opportunities that, present pudding is since BFD, majority meaning finds new percent more than fifty of the communi- I disagree old decree. with conclu- originally by ties affected the decree sion. It cannot be reconciled with our already have been freed from further Mackin, precedent principles sound oversight. interpretation applicable to a consent de- Mackin, (citations 969 F.2d at 1278 omit- cree, history or the Taking of this case. ted). tack, different challenge Candidates Today, fifty percent figure cited by Beecher decree constructing years ago Mackin ten eighty has reached changed arguments circumstances that are percent, forty-five with out fifty-six com- unpersuasive of faulty logic, because originally munities affected the decree proof, prior rejection absence of and having parity now achieved and thus exclu- Mackin. oversight. sion from further The Beecher just The Beecher decree is not about the decree remains limited in duration because BFD. It extinguished upon applica- it is was remains a decree the achievement of demonstrably ble to other cities towns in rough parity. attainable Massachu- Beecher, Although regrettable See setts. it (providing at 523 that the appointment process progress ending release from man- substantial of the BFD dated city discriminatory hiring practices decree “as a or town its has not complement yet achieves a goal rough parity minorities com- reached the re- decree, mensurate with the percentage quired by of minori- that remaining gap altering for justification is no doctrine to a race-conscious remedial de- a formula requires, long which with now cree. “present

accepted, past that the effects of

discrimination must be remedied.” Beech-

er, gap at 520. Until that

closed, purpose the remedial of the decree stay remains unfulfilled. We should STATES, Appellant, UNITED course, not it. I respectfully abandon dis- sent. v. BOUDIN, STAHL, Before Chief Judge, WEIDUL, Defendant, Ernest B. TORRUELLA, Judge, Senior Circuit Appellee. SELYA, LYNCH*, LIPEZ, No. 02-2135.

HOWARD, Judges. Circuit United States Court of Appeals, panel judges that rendered the First Circuit. decision in this having deny case voted to petitions rehearing ‍‌‌​​‌‌​‌‌‌​​‌‌​​​​‌​​​‌​‌​‌​‌‌‌​​​‌‌‌‌​‌‌‌‌​​​‌​‍with judge one Heard March 2003. dissenting suggestions and the for rehear- Decided March ing having en banc been carefully consid- judges ered in regular Court

active majority service and a judges said having

not voted to order that appeal banc,

be reheard the Court en petitions

It is ordered that the for re-

hearing and the suggestions rehearing

enc banc be denied. Boundin, Judge

Chief Judge Torruella

and Judge Lipez would grant petitions

for rehearing en banc. A separate state- by Judge Lipez, joined

ment by Judge

Torruella, is attached to this order.

LIPEZ, Judge, Circuit with whom

TORRUELLA, joins, Circuit Judge,

dissenting from the denial of petitions

for rehearing en banc.

I have already explained in a my dissent

disagreement with panel majority. I

will repeat not those reasons here. Howev-

er, without suggesting any disrespect for views,

the majority’s I wish to my record

vote for rehearing en banc my and state

concern any possible about implications of

the majority’s reliance on the narrow tai-

loring doctrine. That reliance does not

seem central majority’s holding.

Moreover, given the close vote on the en petitions,

banc may reliance lim- have

ited any value for litigation future involv-

ing application tailoring narrow

* Judge Lynch is participate recused and did not in the consideration of this matter.

Case Details

Case Name: Quinn v. City of Boston

Court Name: Court of Appeals for the First Circuit

Date Published: Mar 27, 2003

Citation: 325 F.3d 18

Docket Number: 02-1727

Court Abbreviation: 1st Cir.