UNITED STATES v. PARADISE ET AL.
No. 85-999
SUPREME COURT OF THE UNITED STATES
Argued November 12, 1986-Decided February 25, 1987
480 U.S. 149
Solicitor General Fried argued the cause for the United States. With him on the briefs were Assistant Attorney General Reynolds, Deputy Solicitor General Lauber, Deputy Assistant Attorney General Carvin, Roger Clegg, Walter W. Barnett, David K. Flynn, and Clint Bolick.
J. Richard Cohen argued the cause for respondents. With him on the brief for respondents Paradise et al. were Morris S. Dees, Jr., and Arthur Z. Lazarus, Jr. Edward L. Hardin, Jr., filed a brief for respondents Alabama Department of Public Safety et al. under this Court‘s Rule 19.6. James S. Ward filed a brief for respondents McClellan et al. under this Court‘s Rule 19.6.*
*Ronald A. Zumbrun, John H. Findley, and Anthony T. Caso filed a brief for the Pacific Legal Foundation as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of New York et al. by Robert Abrams, Attorney General, O. Peter Sherwood, Solicitor General, Lawrence S. Kahn, Deputy Solicitor General, and Suzanne M. Lynn, Jon C. Dubin, and Elvia Rosales Arriola, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: John K. Van de Kamp of California, Neil F. Hartigan of Illinois, William J. Guste, Jr., of Louisiana, Stephen H. Sachs of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Charles G. Brown of West Virginia, and Bronson C. La Follette of Wisconsin; for the
Daniel B. Edelman, James R. Murphy, Charles L. Reischel, Frederick N. Merkin, and Robert Cramer filed a brief for the city of Detroit et al. as amici curiae.
JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion in which JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE POWELL join.
The question we must decide is whether relief awarded in this case, in the form of a one-black-for-one-white promotion requirement to be applied as an interim measure to state trooper promotions in the Alabama Department of Public Safety (Department), is permissible under the equal protection guarantee of the
In 1972 the United States District Court for the Middle District of Alabama held that the Department had systematically excluded blacks from employment in violation of the
I
Because the Department‘s prior employment practices and conduct during this lawsuit bear directly on the constitution-
A
In 1972 the National Association for the Advancement of Colored People (NAACP) brought this action challenging the Department‘s longstanding practice of excluding blacks from employment. The United States was joined as a party plaintiff, and Phillip Paradise, Jr., intervened on behalf of a class of black plaintiffs. District Judge Frank M. Johnson, Jr., determined:
“Plaintiffs have shown without contradiction that the defendants have engaged in a blatant and continuous pattern and practice of discrimination in hiring in the Alabama Department of Public Safety, both as to troopers and supporting personnel. In the thirty-seven year history of the patrol there has never been a black trooper and the only Negroes ever employed by the department have been nonmerit system laborers. This unexplained and unexplainable discriminatory conduct by state officials is unquestionably a violation of the
Fourteenth Amendment .” NAACP v. Allen, 340 F. Supp. 703, 705 (MD Ala. 1972).
He concluded:
“Under such circumstances ... the courts have the authority and the duty not only to order an end to discriminatory practices, but also to correct and eliminate the present effects of past discrimination. The racial discrimination in this instance has so permeated the Department[‘s] employment policies that both mandatory and prohibitory injunctive relief are necessary to end these discriminatory practices and to make some substantial progress toward eliminating their effects.” Id., at 705-706 (citations omitted).
As a result, the court issued an order (1972 order), enjoining the Department to hire one black trooper for each white
The defendants appealed,4 but the Fifth Circuit upheld the hiring requirement:
“The use of quota relief in employment discrimination cases is bottomed on the chancellor‘s duty to eradicate the continuing effects of past unlawful practices. By mandating the hiring of those who have been the object of discrimination, quota relief promptly operates to change the outward and visible signs of yesterday‘s racial distinctions and thus, to provide an impetus to the process of dismantling the barriers, psychological or otherwise, erected by past practices. It is a temporary remedy that seeks to spend itself as promptly as it can by creating a climate in which objective, neutral employment criteria can successfully operate to select public employees solely on the basis of job-related merit.” NAACP v. Allen, 493 F. 2d 614, 621 (1974).
The Court of Appeals also held that white applicants who had higher eligibility rankings than blacks were not denied due process or equal protection of the laws by the one-for-one hiring order. The Department‘s use of unvalidated selection procedures that disproportionately excluded blacks precluded any argument that “quota hiring produces unconstitutional ‘reverse’ discrimination, or a lowering of employment standards, or the appointment of less or unqualified persons.” Id., at 618.5
In 1974, only shortly after the Court of Appeals’ decision, the plaintiffs found it necessary to seek further relief from the District Court. Judge Johnson found that “defendants have, for the purpose of frustrating or delaying full relief to the plaintiff class, artificially restricted the size of the trooper
“[T]he high attrition rate among blacks resulted from the selection of other than the best qualified blacks from the eligibility rosters, some social and official discrimination against blacks at the trooper training academy, preferential treatment of whites in some aspects of training and testing, and discipline of blacks harsher than that given whites for similar misconduct while on the force.” Ibid.
The court reaffirmed the 1972 hiring order, enjoining any further attempts by the Department to delay or frustrate compliance.
B
In September 1977 the plaintiffs again had to return to the District Court for supplemental relief, this time specifically on the question of the Department‘s promotion practices. Following extensive discovery, the parties entered into a partial consent decree (1979 Decree), approved by the court in February 1979.7 In this decree, the Department agreed to develop within one year a promotion procedure that would be fair to all applicants and have “little or no adverse impact upon blacks seeking promotion to corporal.” App. 40. In the decree, the Department also agreed that the promotion procedure would conform with the 1978 Uniform Guidelines
Five days after approval of the 1979 Decree, the defendants sought clarification of the 1972 hiring order. The Department maintained that its goal-a 25% black trooper force-applied only to officers in entry-level positions and not to the upper ranks. The court responded:
“On this point, there is no ambiguity. The Court‘s [1972] order required that one-to-one hiring be carried out until approximately twenty-five percent of the state trooper force is black. It is perfectly clear that the order did not distinguish among troopers by rank.” Paradise v. Shoemaker, 470 F. Supp. 439, 440 (MD Ala. 1979) (emphasis in original).
The Department also argued that because the 25% objective could not be achieved unless 37.5% of entry-level positions were held by blacks, “more qualified white applicants” were passed over than was constitutionally permissible. Id., at 441. The District Court rejected the argument, stating:
“To modify this order would be to do less than the law requires, which is to eradicate the continuing effects of past unlawful practices. In 1972, defendants were not just found guilty of discriminating against blacks in hir-
ing to entry-level positions. The Court found that in thirty-seven years there had never been a black trooper at any rank. One continuing effect of that discrimination is that, as of November 1, 1978, out of 232 state troopers at the rank of corporal or above, there is still not one black. The [hiring] quota fashioned by the Court provides an impetus to promote blacks into those positions. To focus only on the entry-level positions would be to ignore that past discrimination by the Department was pervasive, that its effects persist, and that they are manifest. ... The order in this case is but the necessary remedy for an intolerable wrong.” Id., at 442 (emphasis added).
In April 1981, more than a year after the deadline set in the 1979 Decree, the Department proposed a selection procedure for promotion to corporal and sought approval from the District Court. The United States and the plaintiff class both objected to implementation of the procedure, arguing that it had not been validated and that its use would be impermissible if it had an adverse impact on blacks. To resolve this dispute the parties executed a second consent decree (1981 Decree) which the District Court approved on August 18, 1981.
In the 1981 Decree, the Department reaffirmed its commitment made in 1979 to implement a promotion procedure with little or no adverse impact on blacks. The parties then agreed to the administration of the proposed promotion procedure and that its results would be “reviewed to determine whether the selection procedure has an adverse impact against black applicants.” App. 51. Whether there was adverse impact was to be determined by reference to the “four-fifths” rule of § 4 of the Uniform Guidelines. See
The defendants administered the test to 262 applicants of whom 60 (23%) were black. Of the 60 blacks who took the test, only 5 (8.3%) were listed in the top half of the promotion register; the highest ranked black candidate was number 80. App. 119. In response to an inquiry from the United States, the Department indicated that there was an immediate need to make between 8 and 10 promotions to corporal and announced its intention to elevate between 16 and 20 individuals before construction of a new list. 1 Record 222.
The United States objected to any rank-ordered use of the list, stating that such use “would result in substantial adverse impact against black applicants” and suggested that the defendants submit an alternative proposal that would comply with the requirements of the 1979 and 1981 Decrees. 1 Record 220-221. No proposal was submitted, and no promotions were made during the next nine months.
In April 1983, plaintiffs returned to District Court and sought an order enforcing the terms of the two consent decrees. Specifically, they requested that defendants be required to promote blacks to corporal “at the same rate at which they have been hired, 1 for 1, until such time as the defendants implement a valid promotional procedure.” App. 112. The plaintiff class contended that such an order would “encourage defendants to develop a valid promotional procedure as soon as possible,” and would “help to alleviate the gross underrepresentation of blacks in the supervisory
Although it opposed the one-for-one promotion requirement, the United States agreed that the consent decrees should be enforced. It stated that defendants had failed to offer “any reason[s] why promotions should not be made,” nor had they offered an explanation as to why they had halted “progress towards remedying the effects of past discrimination.” App. 199-201. The United States further observed that the Department‘s failure to produce a promotion plan in compliance with the 1979 and 1981 Decrees “suggests that a pattern of discrimination against blacks in the Department ... may be continuing.” App. 200.12
After the motion to enforce was filed, four white applicants for promotion to corporal sought to intervene on behalf of a class composed of those white applicants who took the proposed corporal‘s examination and ranked number 1 through number 79. App. 81-87. They argued that the 1979 and 1981 Decrees and the relief proposed by the plaintiffs in their motion to enforce were “unreasonable, illegal, unconstitutional or against public policy.” App. 99.
In an order entered October 28, 1983, the District Court held that the Department‘s selection procedure had an adverse impact on blacks. Paradise v. Prescott, 580 F. Supp. 171, 174 (MD Ala.).13 Observing that even if 79 corporals
The Department subsequently submitted a proposal to promote 15 persons to the rank of corporal, of whom 4 would be black. In addition, the Department requested that the department of personnel be given more time to develop and submit for court approval a nondiscriminatory promotion procedure.
The United States did not oppose the Department‘s proposal, but the plaintiffs did. They argued that the proposal “totally disregards the injury plaintiffs have suffered due to the defendants’ four-and-a-half year delay [since the 1979 Decree] and fails to provide any mechanism that will insure the present scenario will not reoccur.” 2 Record 382.
On December 15, 1983, the District Court granted the plaintiffs’ motion to enforce the 1979 and 1981 Decrees. Paradise v. Prescott, 585 F. Supp. 72 (MD Ala.). Confronted with the Department‘s immediate need to promote 15 troopers to corporal and the parties’ inability to agree, the court was required by the 1979 and 1981 Decrees to fashion a promotion procedure. The District Judge summarized the situation:
“On February 10, 1984, less than two months from today, twelve years will have passed since this court condemned the racially discriminatory policies and practices of the Alabama Department of Public Safety. Never-
theless, the effects of these policies and practices remain pervasive and conspicuous at all ranks above the entry-level position. Of the 6 majors, there is still not one black. Of the 25 captains, there is still not one black. Of the 35 lieutenants, there is still not one black. Of the 65 sergeants, there is still not one black. Of the 66 corporals, only four are black. Thus, the department still operates an upper rank structure in which almost every trooper obtained his position through procedures that totally excluded black persons. Moreover, the department is still without acceptable procedures for advancement of black troopers into this structure, and it does not appear that any procedures will be in place within the near future. The preceding scenario is intolerable and must not continue. The time has now arrived for the department to take affirmative and substantial steps to open the upper ranks to black troopers.” Id., at 74 (emphasis in original).
The court then fashioned the relief at issue here. It held that “for a period of time,” at least 50% of the promotions to corporal must be awarded to black troopers, if qualified black candidates were available. The court also held that “if there is to be within the near future an orderly path for black troopers to enter the upper ranks, any relief fashioned by the court must address the department‘s delay in developing acceptable promotion procedures for all ranks.” Id., at 75. Thus, the court imposed a 50% promotional quota in the upper ranks, but only if there were qualified black candidates, if the rank were less than 25% black, and if the Department had not developed and implemented a promotion plan without adverse impact for the relevant rank. The court concluded that the effects of past discrimination in the Department “will not wither away of their own accord” and that “without promotional quotas the continuing effects of this discrimination cannot be eliminated.” Id., at 75 and 76. The court highlighted the temporary nature and flexible
Finally, the Department was ordered to submit within 30 days a schedule for the development of promotion procedures for all ranks above the entry level. The schedule was to be “based upon realistic expectations” as the court intended that “the use of the quotas ... be a one-time occurrence.” Ibid. The District Court reasoned that, under the order it had entered, the Department had “the prerogative to end the promotional quotas at any time, simply by developing acceptable promotion procedures.” Id., at 76.
Numerous motions for reconsideration of the court‘s order and for the alteration or amendment of the court‘s judgment were denied by the District Court. In its motion, the Department set forth the “new contention” that it was “without legal authority and sufficiently trained personnel to design any promotional procedures” because “this function is allocated by statute to the Department of Personnel.” Paradise v. Prescott, Civ. Action No. 3561-N (MD Ala., Jan. 13, 1984). The District Court responded that the Department had signed consent decrees in 1979 and 1981 mandating development of an acceptable procedure and that Department counsel had represented at the January 5, 1984, hearing that “it was anticipated that the development of these procedures would take only a few months.” Ibid. The judge concluded:
“It is now years later and this court will not entertain the excuse that the department is now without legal authority to meet its obligations under the consent decrees. ... [T]he Department of Personnel, which is also a party to these proceedings, assured the court at the January 5, [1984] hearing that it would work closely with the Public Safety Department to develop acceptable promotion
procedures. The Public Safety Department‘s contention that it is without legal authority is not only meritless, it is frivolous. “Moreover, that the Department of Public Safety would even advance this argument dramatically demonstrates the need for the relief imposed by this court. Such frivolous arguments serve no purpose other than to prolong the discriminatory effects of the department‘s 37-year history of racial discrimination.” Ibid. (emphasis added).
In February 1984, the Department promoted eight blacks and eight whites to corporal pursuant to the District Court‘s order enforcing the consent decrees.
Four months later, the Department submitted for the court‘s approval its proposed procedure for promotions to the rank of corporal. The District Court ruled that the Department could promote up to 13 troopers utilizing this procedure and suspended application of the one-for-one requirement for that purpose. App. 163-164. In October 1984, following approval of the Department‘s new selection procedure for promotion to sergeant, the court similarly suspended application of the quota at that rank. App. 176-177.15
On appeal the Court of Appeals for the Eleventh Circuit affirmed the District Court‘s order. The Court of Appeals concluded that the relief at issue was designed to remedy the present effects of past discrimination-“effects which, as the history of this case amply demonstrates, ‘will not wither away of their own accord.‘” Paradise v. Prescott, 767 F. 2d 1514, 1533 (1985) (quoting 585 F. Supp., at 75). In addition, the relief awarded was deemed to “exten[d] no further than necessary to accomplish the objective of remedying the ‘egre-
We granted certiorari. 478 U. S. 1019 (1986). We affirm.
II
The United States maintains that the race-conscious relief ordered in this case violates the Equal Protection Clause of the
It is now well established that government bodies, including courts, may constitutionally employ racial classifications essential to remedy unlawful treatment of racial or ethnic groups subject to discrimination. See Sheet Metal Workers v. EEOC, 478 U. S. 421, 480 (1986), and cases cited therein. See also Wygant v. Jackson Board of Education, 476 U. S. 267, 286 (1986) (“The Court is in agreement that ... remedying past or present racial discrimination ... is a sufficiently weighty state interest to warrant the remedial use of a carefully constructed affirmative action program“) (O‘CONNOR, J., concurring in part and concurring in judgment). But although this Court has consistently held that some elevated level of scrutiny is required when a racial or ethnic distinction is made for remedial purposes, it has yet to reach consensus on the appropriate constitutional analysis.17 We need not do
The Government unquestionably has a compelling interest in remedying past and present discrimination by a state actor. See ibid.; id., at 286 (O‘CONNOR, J., concurring); Sheet Metal Workers, supra, at 480 (opinion of BRENNAN, J.). See also Franks v. Bowman Transportation Co., 424 U. S. 747, 763 (1976) (prevention and remedying of racial discrimination and its effects is a national policy of “highest priority“). In 1972 the District Court found, and the Court of Appeals affirmed, that for almost four decades the Department had excluded blacks from all positions, including jobs in the upper ranks. Such egregious discriminatory conduct was “unquestionably a violation of the Fourteenth Amendment.” NAACP v. Allen, 340 F. Supp., at 705. As the United States concedes, Brief for United States 21, the pervasive, systematic, and obstinate discriminatory conduct of the Department created a profound need and a firm justification for the race-conscious relief ordered by the District Court.18
Discrimination at the entry level necessarily precluded blacks from competing for promotions, and resulted in a departmental hierarchy dominated exclusively by nonminorities. The lower courts determined that this situation was explicable only by reference to the Department‘s past discriminatory conduct.19 In 1972 the Department was not just found guilty of discriminating against blacks in hiring to entry-level positions. The court found that in 37 years there had never been a black trooper at any rank. Paradise v.
The argument that the Department‘s promotion procedure was not discriminatory is belied by the record. In 1979, faced with additional allegations of discrimination, the Department agreed to adopt promotion procedures without an adverse impact on black candidates within one year. See 767 F. 2d, at 1532. By 1983 the Department had promoted only four blacks, and these promotions had been made pursuant to the 1979 Decree, and “not the voluntary action of the Department.” Id., at 1533, n. 16. In December 1983, the District Court found, despite the commitments made in the consent decrees, that the Department‘s proposed promotion plan would have an adverse impact upon blacks, 580 F. Supp., at 174, and that “the department still operate[d] an upper rank structure in which almost every trooper obtained his position through procedures that totally excluded black persons.” 585 F. Supp., at 74 (emphasis in original). On appeal, the Eleventh Circuit summarily rejected the argument of the Department and the intervenors:
“[I]t is no answer in this case to say that plaintiffs have not proven that the Department has discriminated
against blacks above the entry-level seeking promotions. . . . [I]t cannot be gainsaid that white troopers promoted since 1972 were the specific beneficiaries of an official policy which systematically excluded all blacks.” 767 F. 2d, at 1533, n. 16 (emphasis added).
Promotion, like hiring, has been a central concern of the District Court since the commencement of this action; since 1972, the relief crafted has included strictures against promotion procedures that have a discriminatory purpose or effect. The race-conscious relief at issue here is justified by a compelling interest in remedying the discrimination that permeated entry-level hiring practices and the promotional process alike.20
Finally, in this case, as in Sheet Metal Workers, 478 U. S., at 485 (POWELL, J., concurring in part and concurring in judgment), the District Court‘s enforcement order is “supported not only by the governmental interest in eradicating [the Department‘s] discriminatory practices, it is also supported by the societal interest in compliance with the judgments of federal courts.” The relief at issue was imposed upon a defendant with a consistent history of resistance to
III
While conceding that the District Court‘s order serves a compelling interest, the Government insists that it was not narrowly tailored to accomplish its purposes—to remedy past discrimination and eliminate its lingering effects, to enforce compliance with the 1979 and 1981 Decrees by bringing about the speedy implementation of a promotion procedure that would not have an adverse impact on blacks, and to eradicate the ill effects of the Department‘s delay in producing such a procedure. We cannot agree.
In determining whether race-conscious remedies are appropriate, we look to several factors, including the necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties. Sheet Metal Workers, 478 U. S., at 481 (opinion of BRENNAN, J.); id., at 486 (POWELL, J., concurring in part and concurring in judgment). When considered in light of these factors, it was amply established, and we find that the one-for-one promotion requirement was narrowly tailored to serve its several purposes, both as applied to the initial set of promotions to the rank of corporal and as a continuing contingent order with respect to the upper ranks.
A
To evaluate the District Court‘s determination that it was necessary to order the promotion of eight whites and eight blacks to the rank of corporal at the time of the motion to enforce, we must examine the purposes the order was intended to serve. First, the court sought to eliminate the effects of the Department‘s “long term, open, and pervasive” discrimination, including the absolute exclusion of blacks from
The options proffered by the Government and the Department would not have served the court‘s purposes. The Department proposed, as a stopgap measure, to promote 4 blacks and 11 whites and requested additional time to allow the department of personnel to develop and submit a non-discriminatory promotion procedure. The United States argues that the Department‘s proposal would have allowed this round of promotions to be made without adverse impact on black candidates.
The Department‘s proposal was inadequate because it completely failed to address two of the purposes cited above. The Department‘s ad hoc offer to make one round of promotions without an adverse impact ignored the court‘s concern that an acceptable procedure be adopted with alacrity. As early as 1972, the Department had been enjoined from engaging in any promotional practices “for the purpose or with the effect of discriminating against any employee . . . on the ground of race or color.” NAACP v. Allen, 340 F. Supp., at 706. In 1979, the Department had promised in a court-approved consent decree to develop and implement a procedure without adverse impact by 1980. By 1983, such a procedure still had not been established, and Paradise sought enforcement of the consent decrees. Given the record of delay, we find it astonishing that the Department should sug
Moreover, the Department‘s proposal ignored the injury to the plaintiff class that resulted from its delay in complying with the terms of the 1972 order and the 1979 and 1981 Decrees.21 As the Eleventh Circuit pointed out, no blacks were promoted between 1972 and 1979; the four blacks promoted in 1979 were elevated pursuant to the 1979 Decree and not as a result of the voluntary action of the Department; and, finally, the whites promoted since 1972 “were the specific beneficiaries of an official policy which systematically excluded all blacks.” 767 F. 2d, at 1533, n. 16. To permit ad hoc decisionmaking to continue and allow only 4 of 15 slots to
The Government suggests that the trial judge could have imposed heavy fines and fees on the Department pending compliance. This alternative was never proposed to the District Court. Furthermore, the Department had been ordered to pay the plaintiffs’ attorney‘s fees and costs throughout this lengthy litigation; these court orders had done little
By 1984 the District Court was plainly justified in imposing the remedy chosen. Any order allowing further delay by the Department was entirely unacceptable. Cf. Green v. New Kent County School Board, 391 U. S. 430, 438, 439 (1968) (“[A] plan that at this late date fails to provide meaningful assurance of prompt and effective disestablishment of a dual system is intolerable. . . . The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now“). Not only was the immediate promotion of blacks to the rank of corporal essential, but, if the need for continuing judicial oversight was to end, it was also essential that the Department be required to develop a procedure without adverse impact on blacks, and that the effect of past delays be eliminated.27
We conclude that in 1983, when the District Judge entered his order, “it is doubtful, given [the Department‘s] history in this litigation, that the District Court had available to it any other effective remedy.” Sheet Metal Workers, 478 U. S., at 486 (POWELL, J., concurring in part and concurring in judgment).28
B
The features of the one-for-one requirement and its actual operation indicate that it is flexible in application at all ranks. The requirement may be waived if no qualified black candidates are available. The Department has, for example, been permitted to promote only white troopers to the ranks of lieutenant and captain since no black troopers have qualified for those positions. Further, it applies only when the Depart
Most significantly, the one-for-one requirement is ephemeral; the term of its application is contingent upon the Department‘s own conduct. The requirement endures only until the Department comes up with a procedure that does not have a discriminatory impact on blacks—something the Department was enjoined to do in 1972 and expressly promised to do by 1980. As noted at n. 21, supra, the court has taken into account the difficulty of validating a test and does not require validation as a prerequisite for suspension of the promotional requirement. The one-for-one requirement evaporated at the ranks of corporal and sergeant upon implementation of promotion procedures without an adverse impact, demonstrating that it is not a disguised means to achieve racial balance. Cf. Sheet Metal Workers, supra, at 487 (POWELL, J., concurring in part and concurring in judgment).
Finally, the record reveals that this requirement was flexible, waivable, and temporary in application. When the District Court imposed the provision, the judge expressed the hope that its use would be “a one-time occurrence.” 585 F. Supp., at 76. The court believed that this hope would be fulfilled: at the January 15, 1984, hearing on the plaintiffs’ mo
C
We must also examine the relationship between the numerical relief ordered and the percentage of nonwhites in the relevant work force. The original hiring order of the District Court required the Department to hire 50% black applicants until 25% of the state trooper force was composed of blacks; the latter figure reflects the percentage of blacks in the relevant labor market. 585 F. Supp., at 75, n. 2. The enforcement order at issue here is less restrictive: it requires the Department to promote 50% black candidates until 25% of the rank in question is black, but only until a promotion procedure without an adverse impact on blacks is in place. Thus, had the promotion order remained in effect for the rank of corporal, it would have survived only until 25% of the Department‘s corporals were black.
The Government suggests that the one-for-one requirement is arbitrary because it bears no relationship to the 25% minority labor pool relevant here. This argument ignores that the 50% figure is not itself the goal; rather it represents the speed at which the goal of 25% will be achieved. The
To achieve the goal of 25% black representation in the upper ranks, the court was not limited to ordering the promotion of only 25% blacks at any one time. Some promptness in the administration of relief was plainly justified in this case, and use of deadlines or end dates had proved ineffective. In these circumstances, the use of a temporary requirement of 50% minority promotions, which, like the end date in Sheet Metal Workers, was crafted and applied flexibly, was constitutionally permissible.
The District Court did not accept the argument that in order to achieve a goal of 25% representation, it could order only 25% of any particular round of promotions to be awarded to minorities. Had it done so, the court would have implemented the Department‘s proposal to promote 4 blacks and 11 whites when it issued its order enforcing the consent decree, because this proposal approximated the 25% figure.30 Again, however, this proposal completely ignores the fact and the effects of the Department‘s past discrimination and its delay in implementing the necessary promotion proce
It would have been improper for the District Judge to ignore the effects of the Department‘s delay and its continued default of its obligation to develop a promotion procedure, and to require only that, commencing in 1984, the Department promote one black for every three whites promoted. The figure selected to compensate for past discrimination and delay necessarily involved a delicate calibration of the rights
D
The one-for-one requirement did not impose an unacceptable burden on innocent third parties. As stated above, the temporary and extremely limited nature of the requirement substantially limits any potential burden on white applicants for promotion. It was used only once at the rank of corporal and may not be utilized at all in the upper ranks. Nor has the court imposed an “absolute bar” to white advancement. Sheet Metal Workers, supra, at 481. In the one instance in which the quota was employed, 50% of those elevated were white.
The one-for-one requirement does not require the layoff and discharge of white employees and therefore does not impose burdens of the sort that concerned the plurality in Wygant, 476 U. S., at 283 (opinion of POWELL, J.) (“[L]ayoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruption of
Finally, the basic limitation, that black troopers promoted must be qualified, remains. Qualified white candidates simply have to compete with qualified black candidates. To be sure, should the District Court‘s promotion requirement be applied, black applicants would receive some advantage. But this situation is only temporary, and is subject to amelioration by the action of the Department itself.
Accordingly, the one-for-one promotion requirement imposed in this case does not disproportionately harm the interests, or unnecessarily trammel the rights, of innocent individuals.
E
In determining whether this order was “narrowly tailored,” we must acknowledge the respect owed a district judge‘s judgment that specified relief is essential to cure a violation of the
Nor have we in all situations “required remedial plans to be limited to the least restrictive means of implementation. We have recognized that the choice of remedies to redress racial discrimination is ‘a balancing process left, within appropriate constitutional or statutory limits, to the sound discretion of the trial court.‘” Fullilove v. Klutznick, 448 U. S. 448, 508 (1980) (POWELL, J., concurring) (quoting Franks v. Bowman Transportation Co., 424 U. S., at 794 (POWELL, J., concurring in part and dissenting in part)). Cf. Green v. New Kent County School Board, 391 U. S., at 439 (“The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation. There is no universal answer to the complex problems of desegregation; there is obviously no one plan that will do the job in every case. The matter must be assessed in light of the circumstances present and the options available in each instance“).
The district court has firsthand experience with the parties and is best qualified to deal with the “flinty, intractable realities of day-to-day implementation of constitutional commands.” Swann, supra, at 6. In this case, as in Sheet Metal Workers, “[the] court having had the parties before it over a period of time, was in the best position to judge whether an alternative remedy, such as a simple injunction, would have been effective in ending [the] discriminatory practices.” 478 U. S., at 486 (POWELL, J., concurring). The District Judge determined that the record demonstrated that “without promotional quotas the continuing effects of [the Department‘s] discrimination cannot be eliminated.” 585 F. Supp., at 76. His proximate position and broad equitable powers mandate substantial respect for this judgment.
IV
The remedy imposed here is an effective, temporary, and flexible measure. It applies only if qualified blacks are available, only if the Department has an objective need to make promotions, and only if the Department fails to implement a promotion procedure that does not have an adverse impact on blacks. The one-for-one requirement is the product of the considered judgment of the District Court which, with its knowledge of the parties and their resources, properly determined that strong measures were required in light of the Department‘s long and shameful record of delay and resistance.
The race-conscious relief imposed here was amply justified and narrowly tailored to serve the legitimate and laudable
Affirmed.
JUSTICE POWELL, concurring.
In many respects this case is similar to Sheet Metal Workers v. EEOC, 478 U. S. 421 (1986). Here, as in that case, racial discrimination had been continued for many years in contravention of repeated decisions of the District Court. NAACP v. Allen, 340 F. Supp. 703, 705 (MD Ala. 1972); Paradise v. Dothard, Civ. Action No. 3561–N (MD Ala., Aug 5, 1975); Paradise v. Shoemaker, 470 F. Supp. 439, 442 (MD Ala. 1979); Paradise v. Prescott, 585 F. Supp. 72, 74 (MD Ala. 1983). There are differences. Sheet Metal Workers involved an action under Title VII, and here the courts below found a violation of the Equal Protection Clause.1 Also, in Sheet Metal Workers the District Court had finally cited the union for contempt. This difference is of no importance where, as here, it has been established beyond question that the Department of Public Safety had engaged in persistent violation of constitutional rights and repeatedly failed to carry out court orders. In such circumstances there is a “compelling governmental interest sufficient to justify the imposition of a racially classified remedy.” Sheet Metal Workers v. EEOC, supra, at 485.
I therefore agree with the plurality that the protracted history of this litigation justifies the conclusion that the “one-for-one” promotion to corporal was appropriate. It is reasonable to conclude that the District Court would have been “powerless to provide an effective remedy” if it had lacked authority to establish a benchmark against which to measure progress in remedying the effects of the discrimination. Sheet Metal Workers v. EEOC, 478 U. S., at 487.
The District Court imposed the one-for-one promotion requirement only on one occasion, when it ordered the promotion of eight blacks and eight whites to the rank of corporal in February 1984. Because the Department urgently needed at least 15 additional corporals, see Paradise v. Prescott, 580 F. Supp. 171, 173 (MD Ala. 1983), there appears to have been no alternative remedy that would have met the then-existing need. Given the findings of persistent discrimination, the Department‘s longstanding resistance to necessary remedies, and the exigent circumstances presented to the District Court, the imposition of a one-for-one requirement for the particular promotions at issue did not violate the Equal Protection Clause.
The District Court‘s order contains significant elements of flexibility and fairness. First, it applies only if qualified black candidates are available for promotion. Second, the court suspended the order when the Department proposed procedures that appeared likely to have no adverse impact on minority applicants. It thus appears that the court‘s order is based upon “realistic expectations,” and that the one-for-one requirement is likely to be, as the court intended, a “one-time occurrence.” Paradise v. Prescott, supra, at 75-76. The court‘s actions indicate that the order will be enforced in a constitutional manner if it is reimposed. As in Sheet Metal Workers, “[a]n examination of what has occurred in this litigation over the years makes plain that the District Court has not enforced the goal in [a] rigid manner.” 478 U. S., at 489, n. 4 (emphasis in original).
Finally, and particularly important, the effect of the order on innocent white troopers is likely to be relatively diffuse. Unlike layoff requirements, the promotion requirement at
In view of the purpose and indeed the explicit language of the
JUSTICE STEVENS, concurring in the judgment.
In 1971, one year before the District Court found in this case that the State of Alabama had persistently maintained a deliberately segregated police force, this Court issued a unanimous opinion setting forth the guidelines for district judges in fashioning remedies to eliminate the effects of racial segregation in public schools. Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U. S. 1 (1971). The central theme of that opinion is that race-conscious remedies are obviously required to remedy racially discriminatory actions by the State that violate the
“Once a right and a violation have been shown, the scope of a district court‘s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.
“‘The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.’ Hecht Co. v. Bowles, 321 U. S. 321, 329-330 (1944), cited in Brown [v. Board of Education, 349 U. S.], at 300.” 402 U. S., at 15.
In this case, the record discloses an egregious violation of the
“[A] school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right. The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution.
“In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system.” 402 U. S., at 15-16.
The Court was equally unambiguous in its rejection of the argument that a different standard of review is required when a remedial decree employs mathematical ratios.
“We see therefore that the use made of mathematical ratios was no more than a starting point in the process of shaping a remedy, rather than an inflexible requirement. From that starting point the District Court proceeded to frame a decree that was within its discretionary powers, as an equitable remedy for the particular circumstances. As we said in Green [v. County School Bd., 391 U. S.
430 (1968)], a school authority‘s remedial plan or a district court‘s remedial decree is to be judged by its effectiveness. Awareness of the racial composition of the whole school system is likely to be a useful starting point in shaping a remedy to correct past constitutional violations. In sum, the very limited use made of mathematical ratios was within the equitable remedial discretion of the District Court.” Id., at 25. “Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems.” Id., at 28.
“The Court of Appeals, searching for a term to define the equitable remedial power of the district courts, used the term ‘reasonableness.’ In Green, supra, this Court used the term ‘feasible’ and by implication, ‘workable,’ ‘effective,’ and ‘realistic’ in the mandate to develop ‘a plan that promises realistically to work, and . . . to work now.’ On the facts of this case, we are unable to conclude that the order of the District Court is not reasonable, feasible and workable. However, in seeking to define the scope of remedial power or the limits on remedial power of courts in an area as sensitive as we deal with here, words are poor instruments to convey the sense of basic fairness inherent in equity. Substance, not semantics, must govern, and we have sought to sug-
gest the nature of limitations without frustrating the appropriate scope of equity.” Id., at 31.
A party who has been found guilty of repeated and persistent violations of the law bears the burden of demonstrating that the chancellor‘s efforts to fashion effective relief exceed the bounds of “reasonableness.”2 The burden of proof in a case like this is precisely the opposite of that in cases such as Wygant v. Jackson Board of Education, 476 U. S. 267 (1986), and Fullilove v. Klutznick, 448 U. S. 448 (1980), which did not involve any proven violations of law.3 In such cases the governmental decisionmaker who would make race-conscious decisions must overcome a strong presumption against them. No such burden rests on a federal district judge who has found that the governmental unit before him is
The relief that the district judge has a duty to fashion must unavoidably consider race. A unanimous Court held in North Carolina State Board of Education v. Swann, 402 U. S. 43 (1971), a case decided on the same day as Swann v. Charlotte-Mecklenburg Board of Education, that the State‘s Anti-Busing Law, which prohibited assignment of any student on account of race or for the purpose of creating a racial balance in the schools, conflicted with the State‘s duty to remedy constitutional violations. We observed:
“[T]he statute exploits an apparently neutral form to control school assignment plans by directing that they be ‘color blind‘; that requirement, against the background of segregation, would render illusory the promise of Brown v. Board of Education, 347 U. S. 483 (1954). Just as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy. To forbid, at this stage, all assignments made on the basis of race would deprive school authorities of the one tool absolutely essential to fulfillment of their constitutional obligation to eliminate existing dual school systems.
“Similarly, the flat prohibition against assignment of students for the purpose of creating a racial balance must inevitably conflict with the duty of school authorities to disestablish dual school systems. As we have held in Swann, the Constitution does not compel any particular degree of racial balance or mixing, but when past and continuing constitutional violations are found, some ratios are likely to be useful starting points in shaping a remedy.” 402 U. S., at 45-46.
The District Court, like the school authority in North Carolina State Board of Education v. Swann, may, and in some instances must, resort to race-conscious remedies to
Agreeing with much of what JUSTICE O‘CONNOR has written in this case, I find it evident that the District Court exceeded its equitable powers in devising a remedy in this case. I therefore dissent from the judgment of affirmance.
JUSTICE O‘CONNOR, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, dissenting.
In Wygant v. Jackson Board of Education, 476 U. S. 267, 273 (1986), we concluded that the level of
One cannot read the record in this case without concluding that the Alabama Department of Public Safety had undertaken a course of action that amounted to “pervasive, systematic, and obstinate discriminatory conduct.” Ante, at 167. Because the Federal Government has a compelling interest in remedying past and present discrimination by the Department, the District Court unquestionably had the authority to fashion a remedy designed to end the Department‘s egregious history of discrimination. In doing so, however, the District Court was obligated to fashion a remedy that was narrowly tailored to accomplish this purpose. The plurality
As JUSTICE POWELL notes, this case is similar to Sheet Metal Workers v. EEOC, 478 U. S. 421 (1986). In Sheet Metal Workers, I observed that “it is completely unrealistic to assume that individuals of each race will gravitate with mathematical exactitude to each employer or union absent unlawful discrimination.” Id., at 494. Thus, a rigid quota is impermissible because it adopts “an unjustified conclusion about the precise extent to which past discrimination has lingering effects, or . . . an unjustified prediction about what would happen in the future in the absence of continuing discrimination.” Id., at 494-495. Even more flexible “goals,” however, also may trammel unnecessarily the rights of nonminorities. Racially preferential treatment of nonvictims, therefore, should only be ordered “where such remedies are truly necessary.” Id., at 496. Thus, “the creation of racial preferences by courts, even in the more limited form of goals rather than quotas, must be done sparingly and only where manifestly necessary.” Id., at 496-497.
In my view, whether characterized as a goal or a quota, the District Court‘s order was not “manifestly necessary” to achieve compliance with that court‘s previous orders. The order at issue in this case clearly had one purpose, and one purpose only—to compel the Department to develop a promotion procedure that would not have an adverse impact on blacks. Although the plurality and the courts below suggest that the order also had the purpose of “eradicat[ing] the ill effects of the Department‘s delay in producing” such a promotion procedure, ante, at 171, the District Court‘s subsequent implementation of the order makes clear that the order cannot be defended on the basis of such a purpose.
Moreover, even if the one-for-one quota had the purpose of eradicating the effects of the Department‘s delay, this purpose would not justify the quota imposed in this case. “[T]he relationship between the percentage of minority workers to be [promoted] and the percentage of minority group members in the relevant population or work force” is of vital importance in considering the validity of a racial goal. Sheet Metal Workers v. EEOC, supra, at 486 (POWELL, J., concurring in part and concurring in judgment). The one-for-one promotion quota used in this case far exceeded the percentage of blacks in the trooper force, and there is no evidence in the record that such an extreme quota was necessary to eradicate the effects of the Department‘s delay. The plurality attempts to defend this one-for-one promotion quota as
Given the singular in terrorem purpose of the District Court order, it cannot survive strict scrutiny. There is simply no justification for the use of racial preferences if the purpose of the order could be achieved without their use because “[r]acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.” Fullilove v. Klutznick, 448 U. S. 448, 537 (1980) (STEVENS, J., dissenting). Thus, to survive strict scrutiny, the District Court order must fit with greater precision than any alternative remedy. See Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. Chi. L. Rev. 723, 727, n. 26 (1974). The District Court had available several alternatives that would have achieved full compliance
The District Court, however, did not discuss these options or any other alternatives to the use of a racial quota. Not a single alternative method of achieving compliance with the consent decrees is even mentioned in the District Court‘s opinion—with the exception of an even more objectionable 100% racial quota. See Paradise v. Prescott, 585 F. Supp. 72, 75, n. 1 (MD Ala 1983). What is most disturbing about the District Court‘s order, therefore, is not merely that it implicitly or explicitly rejected two particular options, but that the District Court imposed the promotion quota without consideration of any of the available alternatives. Even in Sheet Metal Workers v. EEOC, 478 U. S. 421 (1986), the District Court had “considered the efficacy of alternative remedies” before imposing a racial quota. Id., at 481; see also id., at 486-487 (POWELL, J., concurring in part and concurring in judgment). Thus, the Court was able to evaluate the claim that the racial quota was “necessary.” Without any exploration of the available alternatives in the instant case, no such evaluation is possible. Remarkably, however, the plurality—purporting to apply “strict scrutiny“—concludes that the order in this case was narrowly tailored for a remedial purpose.
I have no quarrel with the plurality‘s conclusion that the recalcitrance of the Department of Public Safety in complying with the consent decrees was reprehensible. In its understandable frustration over the Department‘s conduct, however, the District Court imposed a racial quota without first considering the effectiveness of alternatives that would have a lesser effect on the rights of nonminority troopers. Because the District Court did not even consider the available alternatives to a one-for-one promotion quota, and because these alternatives would have successfully compelled the Department to comply with the consent decrees, I must respectfully dissent.
Notes
I cannot agree that the applicability of the school desegregation cases in determining the validity of any particular remedial solution fashioned by a district court and imposed on a State depends on detailed and inevitably imprecise calculations of hardship. For me the relevant fact in this case is that the remedial order was directed against a proven violator of the Constitution. Just as I believe that a uniform standard should govern our review of the merits of an equal protection claim, see Craig v. Boren, 429 U. S. 190, 211 (1976) (STEVENS, J., concurring), so do I believe that a uniform standard should govern our review of all such decrees entered by district courts. Of course, different violations require different remedies, but they should be reviewed under the principles of equitable discretion set forth in the school desegregation cases. “[A] school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right.” Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U. S. 1, 15-16 (1971). The district court‘s task in each case is to “be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of the traditional attributes of equity power.” Brown v. Board of Education, 349 U. S. 294, 300 (1955) (footnotes omitted). Thus, the remedial issue in these cases is dramatically different from the question whether a statutory racial classification can be justified as a response to a past societal wrong. See Fullilove v. Klutznick, 448 U. S. 448, 537-539 (1980) (STEVENS, J., dissenting).