United States v. Board of Education for the City of Savannah, Chatham County Brief for Plaintiff-Intervenor and Appellant

    §>upretne C o u r t  oi tfjc s t a t e s
OCTOBER TERM, 1986

United States Of America,
Petitioner,

v.

Phillip Paradise, Jr., etal.,
Respondents.

On W rit of Certiorari to the United States Court of 
Appeals for the Eleventh Circuit

BRIEF FOR RESPONDENTS

Of Counsel:

J. Richard Cohen 
Counsel of Record 

morris S. Dees, Jr.
P.O. Box 2087 
400 Washington Avenue 
Montgomery, Alabama 36102 
(205) 264-0286

Arthur Z. Lazarus, Jr., P.C. 
Elliot e . poleb aum 
Mira N. Marshall 
Fried, Frank, Harris,

Shriver & Jacobson
1001 Pennsylvania Avenue, N.W.
Suite 800
Washington, D.C. 20004 
(202) 639-7000



QUESTION PRESENTED

Whether the district court’s race-conscious order enforcing 
two consent decrees against recalcitrant state agencies 
previously found to have blatantly violated the rights of blacks 
abridges the Equal Protection Guarantee.



PARTIES TO THE PROCEEDINGS

The parties to the proceedings before the court of appeals 
were as follows: Phillip Paradise, Jr., and the class he
represents; the United States of America; the Alabama 
Department of Public Safety and its director, Byron Prescott; 
and intervenors V.E. McClellan, William M. Bailey, D.B. 
Mansell, and Dan Davenport, white troopers, and the class 
they represent.*

*Although originally a plaintiff, the NAACP voluntarily 
withdrew as a party during the course of the litigation.



Ill

Table Of Contents

PAGE

Statement   2

Introduction a n d  Summary Of argument ............. 17

Argument   19

the District Court’s Enforcement Order 
does no t  Violate The Constitution’s 
equal Protection Guarantee Because It 
Is Narrowly Tailored to  Remedy the 
Pervasive Effects Of The Department’s 
egregious Discrimination ....................................  19

A. Remedying the Pervasive Effects of the 
Department’s Egregious Discrimination by 
Enforcing Its Consent Decree Commitments
Is a Compelling Governmental Interest .................  19

B. The District Court’s Enforcement Order Was
Appropriately Tailored   26

1. The District Court Had Broad Remedial
Authority to Combat Discrimination ................ 27

2. The Order Was Clearly Necessary ................... 28

3. The One-for-One Promotion Requirement 
Is Inherently Flexible, Temporary in 
Effect, and Geared to the Relevant Labor
Market   33

4. The Order Has a Limited Impact on White
Troopers   38

Conclusion 43



IV

Table Of authorities

PAGE
Cases:

Albemarle Paper Co. v. Moody, 422 U.S. 405 
(1975)   28

Bazemore v. Friday, 106 S.Ct. 3000 
(1986)   25

Bridgeport Guardians, Inc. v. Bridgeport 
Civil Service Commission, 482 F.2d 1333 
(2d Or. 1973), affd, 497 F.2d 1113 (2d Cir.
1974), cert, denied, 421 U.S. 991 (1975)   36

Brown v. Board of Education,
349 U.S. 294 (1955)   28

Carter v. Gallagher, 452 F.2d 315 (8th Cir.
1971) (en banc), cert, denied, 406 U.S. 950
(1972) ...................................................... 36

Castro v. Beecher, 459 F.2d 725 (1st Cir.
1972)   36

Crockett v. Green, 534 F.2d 715 (7th Cir.
1976) .................................................. 28, 36

EEOC v. Local 638 ... Local 28 of the Sheet 
Metal Workers’ International Association,
753 F.2d 1172, 1188 (2d Cir. 1985), affd,
106 S.Ct. 3019 (1986)   37

Firefighters Institute for Racial Equality v.
City of St. Louis, 588 F.2d 235 (8th Cir.
1978), cert, denied, 443 U.S. 904 (1979)   36

Firefighters Local Union No. 1784 v.
Stotts, 467 U.S. 561 (1984) .........................  16, 22



V

Ford Motor Co. v. EEOC, 458 U.S. 219 (1982) ......... 41

Franks v. Bowman Transportation Co.,
424 U.S. 747 (1976) .................................  38,41

Fullilove v. Klutznick, 448 U.S. 448 (1980) .... 27, 28, 33,
34, 38

Flutto v. Finney, 437 U.S. 678 (1978) ................ 24, 32

International Brotherhood of Teamsters v.
United States, 431 U.S. 324 (1977) ................  27, 38

Kirkland v. New York State Department of 
Correctional Services, 711 F.2d 1117 (2d 
Cir. 1983), cert, denied, 465 U.S. 1005 
(1984) ......................................................  36

Local 28 o f the Sheet Metal Workers’
International Association v. EEOC,
106 S.Ct. 3019 (1986) ..............................  passim

Madden v. Grain Elevator, Flour and Feed 
Mill Workers, Local 418, 334 F.2d 1014 
(7th Cir. 1964), cert, denied, 379
U.S. 967 (1965)   32

Milliken v. Bradley, 433 U.S. 267 (1977) ................ 28

NAACP v. Allen, 340 F. Supp. 703 (M.D. Ala.
1972), supplemented sub nom. United States
v. Dothard, 373 F. Supp. 504 (M.D. Ala. 1974),
aff d sub nom. NAACP v. Allen, 493 F.2d 614
(5 th Cir. 1974)   passim

Paradise v. Prescott, 580 F. Supp. 171 
(M.D. Ala. 1983)   11,12

Paradise v. Prescott, 585 F. Supp. 72 (M.D.
Ala. 1983)   13



VI

Paradise v. Shoemaker, 470 F. Supp. 439 
(M.D. Ala. 1979)   passim

Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1 (1971) ......................  27, 38

United States v. City o f Chicago, 573 F.2d 
416 (7th Cir. 1978)   36

United States v. City of Chicago, 663 F.2d 
1354 (7th Cir. 198l)(en banc) ...........................  26

United States v. Dothard, 373 F. Supp. 504 
(M.D. Ala. 1974), affd sub nom. NAACP v.
Allen, 493 F.2d 614 (5th Cir. 1974) ....................  3,4

United States v. Frazer, 317 F. Supp. 1079 
(M.D. Ala. 1970) ......................................... 3,4

United States v. NL. Industries, Inc., 479 
F.2d 354 (8th Cir. 1973) ..................................  36

United Steelworkers v. Weber, 443 U.S. 193 
(1979) .........................................  14, 15, 37,42

University of California Regents v. Bakke,
438 U.S. 265 (1978) .....................................  42

Vulcan Society of New York City Fire 
Department, Inc. v. Civil Service 
Commission of New York, 490
F.2d 387 (2nd Cir. 1973) .................................  36

Williams v. City o f New Orleans, 729 F.2d 
1554 (5th Cir. 1984) ......................................  28

Williams v. Wallace, 240 F. Supp. 100 
(M.D. Ala. 1965) .........................................  20

Wygant v. Jackson Board of Education,
106 S.Ct. 1847 (1986) ..............................  passim



Vll

Statutes and Regulations:

Ala. Code § 36-26-17 (1975), amended by 
Ala. Code § 36-26-17 (1985) ...........................  12

Ala. Code § 36-26-17 (1985) ..............................  12

29 C.F.R. § 1607 (1985) ...............................  7, 22

29 C.F.R. § 1607.3.B (1985) .............................  39

29 C.F.R. § 1607.4.D (1985) ..............................  12

Articles:

Edwards & Zaretsky, Preferential Remedies for 
Employment Discrimination, 74 Mich.
L. Rev. 1 (1975) .......................................... 41

Ely, The Constitutionality o f Reverse Racial 
Discrimination, 41 U. Chi. L. Rev.
723 (1974) ................................................ 33

Fallon & Weiler, Firefighters v. Stotts:
Conflicting Models o f Racial Justice,
1984 Sup. Ct. Rev. 1 .................................  23, 41

Miscellaneous:

President’s Commission on Law Enforcement and 
Administration of Justice, Task Force 
Report: The Police (1967) ...........................  21, 23

United States Commission on Civil Rights, Who 
is Guarding the Guardians?: A Report on 
Police Practices (1981) ...............................  21,23





in  The

Supreme Court ot tfje ©uittfr states
October term , 1986

No. 85-999

United States Of America,
Petitioner,

v.

PHILLIP PARADISE, JR., et al.,
Respondents.

On Writ of Certiorari to the United States Court of 
Appeals for the Eleventh Circuit

BRIEF FOR RESPONDENTS

OPINIONS BELOW

The 1985 opinion of the court of appeals (Pet. App. la-54a) 
is reported at 767 F.2d 1514. The 1983 order and memorandum 
opinion of the district court (Pet. App. 55a-64a; J.A. 128-137) 
are reported at 585 F. Supp. 72. Earlier decisions below, 
which bear directly upon the issue before this Court, are: 
NAACP v. Allen, 340 F. Supp. 703 (M.D. Ala. 1972) (J.A. 
23-29), supplemented sub. nom. United States v. Dothard, 
373 F. Supp. 504 (M.D. Ala. 1974), ajfd sub nom. NAACP 
v. Allen, 493 F.2d 614 (5th Cir. 1974); Paradise v. Dothard, 
No. 3561-N (M.D. Ala. Aug. 5, 1975) (J.A. 30-36); Paradise



2

v. Shoemaker, 470 F. Supp. 439 (M.D. Ala. 1979); and 
Paradise v. Prescott, 580 F. Supp. 171 (M.D. Ala. 1983).

STATEMENT

This case presents the narrow question whether the district 
court’s order directing the Alabama Department of Public 
Safety (the “Department”) and the Alabama Personnel 
Department to promote one qualified black trooper for each 
white trooper promoted until the Department adopts acceptable 
promotion procedures or until 25 percent of the officers at a 
given rank are blacks violates the Constitution’s Equal 
Protection Guarantee. Adopted to remedy the continuing 
effects of notorious racial discrimination and to enforce two 
consent decrees designed to insure that blacks would attain 
supervisory positions within the Department, the district court 
order was a necessary remedy narrowly tailored to further 
these compelling purposes without unnecessarily infringing on 
the employment opportunities of white troopers.

The case now before this Court is but the latest chapter in 
continuing efforts to desegregate the Alabama state troopers. 
Proceedings were initiated in January 1972 when the NAACP 
brought this action against the Department and the Alabama 
Personnel Department alleging that the defendants 
systematically excluded blacks from employment in violation 
of the Fourteenth Amendment. J.A. 23-24. The United States 
was joined as a party plaintiff (and amicus curiae), and Phillip 
Paradise, Jr., was permitted to intervene on behalf of a class 
of black plaintiffs (“Paradise”). Pet. App. 3a.

After a hearing, Judge Frank Johnson found:

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



3

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. at 705; J.A. 25 (emphasis 
added).

NAACP v. Allen was not the first time that the 
employment practices of Alabama state agencies had been 
condemned by the federal court. In United States v. Frazer, 
317 F. Supp. 1079 (M.D. Ala. 1970), Judge Johnson had 
found that various state agencies, including the Alabama 
Personnel Department,1 were systematically violating the 
constitutional rights of black applicants and employees. Id. at 
1089-90.2 In his decision, Judge Johnson noted that extended 
and repeated efforts to persuade Alabama even to acknowledge 
constitutional guarantees had failed:

From 1963 until the commencement of this lawsuit in 
June, 1968, federal officials made repeated but 
unsuccessful efforts to persuade defendant officials and 
their predecessors to adopt a regulation expressly 
prohibiting discrimination on the ground of race or color. 
. . . Defendants have repeatedly refused to adopt such a 
regulation. Alabama is the only state among the fifty

1 “Since the Department of Personnel was one of the defendants in 
Frazer and Personnel supplies employees to all state agencies, the 
provisions o f the Frazer order were applied across the board to all Alabama 
agencies.” United States v. Dolhard, 373 F. Supp. at 506.

2 The discrimination was not subtle. It included the “practice of 
segregating employees by race in the use of facilities such as rest rooms, 
snack bars, and cafeterias.” 317 F. Supp. at 1090.



4

states which has refused to adopt such a regulation.

Id. at 1084-85 (footnote omitted) (emphasis in original).
In light of Frazer, Judge Johnson found that the defendants 

in NAACP v. Allen “unquestionably knew and understood 
that their discriminatory practices violated the Fourteenth 
Amendment to the United States Constitution.” 340 F. Supp. 
at 708.3 Accordingly, he enjoined them from engaging in 
discriminatory “employment practices, including . . .
promotion,” and ordered them to “hire and permanently 
employ . . . one Negro trooper for each white trooper hired 
until approximately twenty-five (25) percent of the Alabama 
state trooper force is comprised of Negroes.” J.A. 27.

Defendants appealed. While that appeal was pending, the 
court of appeals ordered the district court to supplement the 
record and to reconsider its decree in the light of current 
information. See United States v. Dothard, 373 F. Supp. at 
505. Following discovery and the submission of additional 
data,4 Judge Johnson decided to leave his original decree 
unaltered. Id. at 508. Comparing the relative efficacy of the 
injunction prohibiting discrimination in Frazer and the 
numerical relief ordered in Allen, Judge Johnson concluded:

The contrast in results achieved to this point in the Allen 
case and the Frazer case under the two orders entered in 
those cases is striking indeed. Even though the agencies 
affected by the Frazer order and the Department of Public 
Safety draw upon the same pool of black applicants — 
that is, those who have been processed through the

3 Because the defendants’ actions were so defiant, Judge Johnson found 
that their defense in NAACP v. Allen amounted to “unreasonable and 
obdurate conduct” meriting an award of attorneys’ fees against them. 340 
F. Supp. at 708.

4 The district court specifically added to the record in this case the 
evidence that had been received in Frazer. 373 F. Supp. at 508.



5

Department of Personnel — Allen has seen substantial 
black hiring, while the progress under Frazer has been 
slow and, in many instances, nonexistent. . . .

[T]his Court’s experience reflects that the decrees that are 
entered must contain hiring goals; otherwise effective 
relief will not be achieved.

Id. at 506-507 (footnotes omitted).
On appeal, defendants did not challenge the district court’s 

finding of blatant discrimination. NAACP v. Allen, 493 F.2d 
at 617. Instead, they attacked only the affirmative relief 
granted, contending that the one-for-one hiring order 
unconstitutionally discriminated against white applicants. Id. at 
617-618.5 Observing that the “supplemental record here” 
comparing the progress under Allen with that under Frazer 
“provides an unusual confirmation of the feasibility, wisdom 
and efficacy of the [Allen] decree,” Id. at 621, the court of 
appeals rejected defendants’ contention and affirmed the 
judgment below. Id. at 622. The court noted that the remedial 
hiring order:

is not without its limitations. 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

5 In substance, defendants raised in Allen the same constitutional 
argument with respect to hiring that Petitioner here raises with respect to 
promotion. In Allen, the United States supported the one-for-one hiring 
order.



\

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.

Id.
Shortly after the court of appeals’ 1974 decision, the 

plaintiffs were forced to seek supplemental relief. Following a 
hearing, the district court found in 1975 that “defendants have, 
for the purpose of frustrating or delaying full relief to the 
plaintiff class, artificially restricted the size of the trooper force 
and the number of new troopers hired.” J.A. 34. Even the few 
blacks hired under the court’s 1972 order had faced 
discriminatory conditions.

[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.

6

Id.
In September 1977, plaintiffs were required once again to 

move the district court for supplemental relief. J.A. 5. “Faced 
with [a] poor track record, as well as additional allegations of 
discrimination”6 — including discrimination in making 
promotions to the position of corporal7 — the defendants,

6 P et App. 40a.

7 See Plaintiffs’ Motion for a Preliminary Injunction 1) 7(e), Paradise 
v. Hilyer, No. 3561-N (M.D. Ala. June 15, 1978) (“Not one black 
trooper has been promoted past the trooper rank, whereas six of the white



7

after extensive discovery, entered into a Partial Consent Decree 
(“1979 Decree”) with plaintiffs and the United States. See J.A. 
37. At the time, the Department had not promoted a single 
black trooper above the entry-level. Paradise v. Shoemaker, 
470 F. Supp. at 442.

Under the 1979 Decree, the parties recognized the 
continuing force of the district court’s 1972 and 1975 orders. 
J.A. 37. To help create a “racially neutral” employment and 
promotion system, J.A. 37, defendants agreed to implement a 
new disciplinary review procedure, J.A. 38-39, a race 
relations program, J.A. 39-40, and a promotion procedure that 
would have “little or no adverse impact upon blacks seeking 
promotion to corporal.” J.A. 40.8 The Department promised to 
develop such a promotion procedure and submit it for the 
plaintiffs’ review and the court’s approval “no later than one 
year from the signing of th[e] Consent Decree,” i.e., by 
February 16, 1980. J.A. 40, 45.9 Once a new procedure for 
promotion to corporal was in place, the Department agreed that 
it would develop promotion procedures having little or no 
adverse impact upon blacks for “the position of sergeant, and, 
in turn, for the positions of lieutenant, captain, and major.” 
J.A. 41.

Five days after the district court approved the 1979 Decree, 
defendants sought “clarification” of the 1972 order, asking 
“whether the twenty-five percent hiring quota applies to the 
entire state trooper force or just to entry-level troopers.”

troopers who were hired since 1972 have been promoted to the rank of 
corporal.”).

8 The Department also agreed that the promotion procedures would 
conform to the Uniform Guidelines on Employee Selection Procedures. 
J.A. 40; see 29 C.F.R. § 1607 (1985).

9 In the interim, the Department agreed to use a promotion procedure 
pursuant to which four black troopers were promoted to corporal. J.A. 41, 
46-48; Pet. App. 42a n.16.



8

Paradise v. Shoemaker, 470 F. Supp. at 440. “On this point,” 
the court responded, “there is no ambiguity. The Court’s order 
required that one-for-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.” Id. (emphasis in original).

In rejecting defendants’ argument that the hiring order went 
further than necessary to eradicate the effects of past 
discrimination, the court declared:

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 hiring 
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 
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 in original).
In April 1981, more than a year after the deadline to which 

it had agreed in the 1979 Decree, the Department proposed a 
selection procedure for promotion to corporal and requested its 
approval by the district court. Both the United States and 
Paradise objected. In a joint response, they observed that the 
examination had not been validated and that its use would not 
be justified if the results had an “adverse impact” on black 
applicants. Pet. App. 12a; see J.A. 50. But, to put an



9

acceptable promotion procedure in place expeditiously, the 
parties entered into a second consent decree in August 1981 
(“1981 Decree”). J.A. 49-54.

Under the 1981 Decree, defendants reaffirmed their 
obligation under the 1979 Decree “to utilize a selection 
procedure which has little or no adverse impact on blacks 
seeking promotion to corporal.” J.A. 50. The parties agreed 
that the Department’s proposed promotion procedure would be 
administered and the results “reviewed to determine whether 
the selection procedure has an adverse impact against black 
applicants.” J.A. 51. Under the scoring system, four factors 
were weighted in the following manner: written test, 60 
percent; length of service, 10 percent; supervisory evaluation, 
20 percent; and service ratings, 10 percent. J.A. 56. Given the 
method of rating length of service, differences in seniority 
could account for no more than a three percent difference in the 
final scores of candidates for promotion.10

If the proposed promotion procedure had little or no 
adverse impact upon blacks, selections were to be made in 
rank order. If the parties agreed, or the court found, that the 
procedure had an adverse impact upon blacks, promotions 
were to be made “in a manner that does not result in adverse 
impact for the initial group of promotions or cumulatively.” 
J.A. 52. To accomplish this goal, defendants were required to 
submit an alternative proposed promotion procedure and, if the 
parties failed to agree on the method for making promotions, 
the matter was to be “submitted to the Court for resolution.” 
J.A. 52-53.

In October 1981,262 applicants took the written corporal’s 
examination. Pet. App. 14a; J.A. 119. Of the 60 blacks, only

10 The minimum length o f service rating was 70 points; the 
maximum, 100 points. J.A. 51. Applying the 10 percent weight for 
length o f service used in arriving at a candidate’s final score, the 
minimum number of points for seniority in the final score was 7; the 
maximum, 10.



10

five were ranked among the top half of the applicants; the 
highest was ranked number 80. Pet. App. 14a; J.A. 119. In 
June 1982, in response to an inquiry from the United States, 
the Department stated that “there was an immediate need for 8- 
10 promotions to corporal, and that 16-20 promotions would 
ultimately be made from the promotion list before the 
construction of a new list.” Pet. App. 14a. The United States 
“objected to rank-order use of the promotion procedure, 
contending that . . . such use would result in substantial 
adverse impact on black applicants for promotion to corporal,” 
Pet. App. 14a-15a, and advised the Department to “abide by 
the terms of the 1981 Decree and formulate a ‘proposal for 
making promotions in a manner that does not result in 
discriminatory impact on black troopers.’” Pet. App. 15a 
(citation omitted). The Department did not do so. Brief for the 
United States at 8.

In April 1983, Paradise moved the district court for an 
order enforcing the terms of the two consent decrees. Pet. 
App. 15a; J.A. 58. Paradise sought an order requiring the 
defendants 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 promotion procedure.” J.A. 62. 
According to Paradise, such an order was justified by the 
terms of the decrees, would “encourage defendants to develop 
a valid promotional procedure as soon as possible,” and would 
“help alleviate the gross underrepresentation of blacks in the 
supervisory ranks of the Department.” J.A. 62.

Although it opposed a one-for-one promotion requirement, 
the United States agreed that the consent decrees should be 
enforced. Pet. App. 15a-16a. Noting that “defendants [had] 
failed to offer any reasons why promotions should not be 
made, nor had they offered an explanation as to why they 
halted progress towards remedying the effects of past 
discrimination,” Pet. App. 16a n.10, the United States 
contended that the Department’s failure to come up with a 
promotion plan in conformity with the 1979 and 1981 Decrees



11

“‘suggests that a pattern of discrimination against blacks in the 
Department. . .  may be continuing.’” Id. (citation omitted).

Defendants opposed the motion to enforce. In addition, 
four white applicants for promotion to corporal “moved to 
intervene on behalf of a class composed of those white 
applicants who took the corporal’s promotion examination and 
ranked #1 through #79.” Pet App. 16a; see J.A. 81-87. 
Claiming that the 1981 promotion procedure had been 
administered “in a racially neutral and non-discriminatory 
manner”, J.A. 107, intervenors maintained that the no adverse 
impact provisions of the 1979 and 1981 Decrees, as well as 
the relief sought by Paradise, were “unreasonable, illegal, 
unconstitutional or against public policy.” J.A. 99.

On May 27, 1983, the district court held a hearing on the 
motion to enforce and the motion to intervene. Pet. App. 17a. 
In an order entered October 28, 1983, the district court 
determined that the defendants’ selection procedure had an 
adverse impact on black applicants. Paradise v. Prescott, 580 
F. Supp. 171 (M.D. Ala. 1983) (J.A. 117-124).n Noting that 
the Department “need[ed] additional corporals and . . . 
need[ed] at least 15 of them as soon as possible,” J.A. 119, 
the court concluded:

Applying the four-fifths rule [of the Uniform Guidelines] 
and assuming fifteen candidates are to be promoted in 
rank order based on the selection procedure results, the 
success rate for white persons would be 15/202 or 7.4%, 
and the success rate for black persons would be 0/60 or 
0%. Zero is, of course, less than four-fifths of 7.4. 
Indeed, even if seventy-nine corporals were promoted in 11

11 In a separate order filed the same day, the district court allowed the 
intervenors to participate in the case on a prospective basis only; the court 
held that as to prior orders, judgments, and decrees, intervention was 
untimely. J.A. 116. The intervenors did not appeal the court’s order 
limiting intervention. Pet. App. 49a.



12

rank order, none would be black. Short of outright 
exclusion based on race, it is hard to conceive of a 
selection procedure which would have a greater 
discriminatory impact.

J.A. 120-121 (emphasis added).12 In light of this conclusion, 
the court ordered the Department to submit, by November 10, 
1983, “a plan to promote to corporal, from qualified 
candidates, at least 15 persons in a manner that will not have 
an adverse racial impact.” J.A. 123.

On November 10, 1983, the Department submitted to the 
district court a proposal to promote 15 troopers to the rank of 
corporal, of whom four would be black, “utilizing the ‘rule of 
three’ as provided in the Alabama Merit System Law.” J.A. 
126.13 * * * 17 In the Department’s words, its plan would apply “orfa 
one time basis only.” J.A. 125. As in the past, the Department 
promised to produce a “nondiscriminatory” promotion 
procedure “as soon as possible.” J.A. 126. The United States 
did not oppose the Department’s proposal. Pet. App. 19a.

Paradise objected. Pointing out that the Department’s 
proposal ignored the injury black troopers had suffered from 
the defendants’ inexcusable delays and “‘fail[ed] to provide

12 “Accepting the defendants’ anticipated evidence as true,” the district 
court also rejected the defendants’ contention that the one-for-one hiring 
order was a special program within the meaning of section 4D of the 
Uniform Guidelines, 29 C.F.R. §1607.4.D, that would insulate the 
defendants from a finding of adverse impact. J.A. 121.

13 Under the “rule of three”, the Department was not required to select
any particular individual for promotion. Instead, the Director of the
Personnel Department certified for the Department’s consideration “the 
name of the three ranking eligibles . . . and, if  more than one vacancy is
to be filled, the name of one additional eligible for each additional 
vacancy.” Ala. Code § 36-26-17 (1975), amended by Ala. Code § 36-26-
17 (1985). In 1985, the “rule o f three” was replaced by the “rule of ten.” 
Ala. Code § 36-26-17 (1985).



13

any mechanism that will insure the present scenario will not 
reoccur,’” Pet. App. 18a (citation omitted), Paradise argued 
that approval of the Department’s one-time plan would, in 
effect, sanction the defendants’ recalcitrance. Pet. App. 19a.

On December 15, 1983, the district court granted 
Paradise’s motion to enforce the 1979 and 1981 Decrees. 
Paradise v. Prescott, 585 F. Supp. 72 (M.D. Ala. 1983) (J.A. 
128-137). In reaching its decision, the court reviewed not only 
the Department’s 37-year, pre-1972 history of blatant 
discrimination against blacks, but also its post-1972 histoiy of 
recalcitrance. J.A. 130-131. The court found:

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. Nevertheless, 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. And 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.

J.A. 132-133 (emphasis in original).
To address this longstanding, intolerable condition and the 

“department’s delay in developing acceptable promotion 
procedures for all ranks,” the district court entered an order



14

“requiring that, for each white trooper promoted to a higher 
rank, the department shall promote one black trooper to the 
same rank, if there is a black trooper objectively qualified for 
the promotion'' J.A. 133 (emphasis added). The order 
remains “in effect as to each rank above entry level until either 
25% of the rank is black or the department has developed and 
implemented for the rank a promotion procedure which meets 
the requirements of the prior orders and decrees of th[e] court 
and all other legal requirements.” J.A. 133-134.

As experience in this case demonstrated, lesser measures 
would not suffice. According to the district court, “[t]he racial 
imbalances in the upper ranks of the Alabama Department of 
Public Safety remain egregious and are now of long duration, 
and, furthermore, it is apparent from the history of this lawsuit 
that without immediate, affirmative, race-conscious action 
these intolerable disparities will not dissipate within the near 
future.” J.A. 135. “This court has before it a record 
demonstrating that without promotional quotas the continuing 
effects of this discrimination cannot be eliminated.” J.A. 136.

After determining that the one-for-one promotion 
requirement was necessary, the district court concluded that it 
was “specifically tailored to redress the continuing effects of 
past discrimination” and did ‘“not unnecessarily trammel the 
interest of white employees.’” J.A. 135 (footnote omitted), 
quoting United Steelworkers v. Weber, 443 U.S. 193, 208-09 
(1979). According to the district court, the order does:

not require the discharge or demotion of a white trooper 
or his replacement with a black trooper; nor [does it] 
create an absolute bar to the advancement of white 
troopers. Moreover, [it is] but a temporary measure, 
designed not to maintain a racial balance, but simply to 
eliminate a manifest and chronic racial imbalance. Finally,



15

only qualified black troopers will be considered for 
promotion....

J.A. 135.14
In February 1984, the Department promoted eight blacks 

and eight whites to corporal pursuant to the district court’s one- 
for-one requirement. Pet. App. 22a. On June 19, 1984, the 
Department submitted for the court’s approval a proposed 
procedure for promotion to corporal, representing in an 
accompanying statement that the procedure “conforms with the 
applicable statutes and Orders entered in this case.” J.A. 142; 
see Pet. App. 45a-48a, J.A. 144-145. The United States 
expressed the view that the proposed procedure did not appear 
to have “an unlawful adverse impact” upon black applicants 
and hence was acceptable under the consent decrees. J.A. 161. 
On July 27, 1984, the district court ruled that the Department 
could promote up to 13 troopers to corporal in accordance with 
its new procedure and temporarily suspended the one-for-one 
promotion mechanism for that purpose. J.A. 163-164. On 
October 25, 1984, the district court, following the defendants’ 
submission of a new selection procedure for promotion to 
sergeant, similarly suspended the one-for-one requirement at 
the sergeant rank. J.A. 176-177. Since that time, “the 
defendants have been allowed to promote only white troopers 
to the lieutenant and captain ranks since there apparently are no 
black troopers qualified for promotion to those ranks.” Pet. 
App. 54a.

The court of appeals consolidated the various appeals from

14 In its Statement, Petitioner asserts that the district court found the 
promotion order to be “reasonable” under United Steelworkers v. Weber, 
443 U.S. 193 (1979). Brief for the United States at 11. What Petitioner 
fails to say is that the court also found the promotion order to be “clearly 
necessary” and “sepcifically tailored to redress the continuing effects of 
past discrimination.” J.A. 135.



16

the district court’s December 15, 1983 order15 and the 
intervenors’ appeal from the July 27, 1984 order and, in a 
thorough opinion, affirmed the district court’s decision. Pet. 
App. la-54a. First, it rejected the appellants’ contention that 
the district court’s order improperly modified, rather than 
simply enforced, the 1979 and 1981 Decrees. Pet. App. 23a. 
Construing the consent decrees to prohibit “adverse impact” 
against blacks, but not whites, Pet. App. 26a, the court held 
that the lower court “did n o t. . . exceed the relief authorized 
by those decrees when it granted plaintiffs’ motion to 
enforce.” Pet. App. 27a. This Court declined review of this 
ruling. 106 S.Ct. 3331 (1986).

Second, the court of appeals held that the order adopting 
the one-for-one promotion requirement did not violate Title 
VII. Pet. App. 28a-35a. In so ruling, the court distinguished 
Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 
(1984), and concluded that the district court’s order “will not 
be reversed simply because black troopers promoted under it 
have not been identified as specific victims of unlawful 
discrimination.” Pet. App. 34a-35a. This Court declined 
review of this ruling as well. 106 S.Ct. 3331.

Third, the court of appeals held that the district court’s 
order did not deprive white troopers of their constitutional 
rights to equal protection. Pet. App. 35a-42a. After reviewing 
past precedent, the court expressed the view that “the 
differences between the various” equal protection tests “are 
more of phraseology than of substance”. Pet. App. 39a. The 
court concluded that “the relief now at issue was designed to 
remedy the present effects of past discrimination,” Pet. App. 
40a — “effects which, as the history of this case amply 
demonstrates, ‘will not wither away of their own accord,”’ 
Pet. App. 41a (citation omitted) — and “extends no further

15 The United States, the Department, and the intervenors had appealed. 
Pet. App. 22a.



17

than necessary to accomplish the objective of remedying the 
‘egregious’ and longstanding racial imbalances in the upper 
ranks of the Department.” Pet. App. 41a (citation omitted). As 
a result, the court declared that it was not prepared “to upset 
the considered judgment of the district court that ‘without 
promotional quotas the continuing effects of this [long-term, 
open and pervasive racial] discrimination cannot be 
eliminated.’” Pet. App. 42a (citation omitted) (bracketed 
material by the court).

INTRODUCTION AND SUMMARY 
OF ARGUMENT

This case presents the Court with a race-conscious 
remedial order designed to open the upper ranks of the 
Alabama state troopers to qualified blacks. Although the 
Government claims that Alabama’s Department of Public 
Safety “had already made substantial progress” by the time the 
order was entered, Brief for the United States at 37, the reality 
is that this case demonstrates why the Court has “recognized .
.. that in order to remedy the effects of prior discrimination, it 
may be necessary to take race into account.” Wygant v. 
Jackson Board of Education, 106 S.Ct. 1842, 1850 (1986) 
(opinion of Powell, J.).

In deciding this case, the Court need not resolve questions 
concerning the proper formulation of the equal protection 
test.16 Even assuming that “strict scrutiny” is applicable, the

16 Although the Government states that “[t]he proper standard by which 
to evaluate the constitutionality of race-conscious governmental action 
under the Equal Protection Clause is now clear,” Brief for the United 
States at 17, this Court has expressed the opposite view. See Local 28 of 
the Sheet Metal Workers’ Int’l Ass’n v. EEOC, 106 S.Ct. 3019, 3052 
(1986) (opinion o f Brennan, J.) (“[w]e have not agreed ... on the proper 
test to be applied in analyzing the constitutionality of race-conscious 
remedial measures”); Wygant, 106 S.Ct at 1852 (O’Connor, J., 
concurring) (“standard applicable to racial classifications that work to the



18

district court’s order easily withstands it. By enforcing the 
consent decrees, the order furthered a compelling 
governmental interest — eradicating the pervasive effects of 
the Department’s egregious discrimination. Contrary to the 
suggestion of the other parties, the order was not entered 
merely because the Department failed to achieve “racial 
balance.” Rather, it was entered as a result of the Department’s 
refusal to abide by its judicially-entered consent decree 
commitments — commitments that required the Department to 
allow qualified black troopers to advance.

Like the one-for-one hiring requirement imposed in 1972, 
the conditional one-for-one promotion requirement at issue 
here was “but the necessary remedy for an intolerable wrong.” 
Paradise v. Shoemaker, 470 F. Supp. at 442. The record 
here provides an unusual confirmation of the feasibility, 
wisdom and efficacy of the” promotion order. NAACP v. 
Allen, 493 F.2d at 621. After twelve years of tenaciously 
refusing to advance blacks past the entry-level, the Department 
finally has moved to adopt promotion procedures by which 
black troopers can progress as a result of the court’s 
command.

The district court’s order is carefully crafted. It 
accommodates legitimate reasons for the Department’s failure 
to promote blacks because it requires neither unnecessary 
promotions nor the promotion of the unqualified. The 
applicability of the one-for-one promotion requirement is 
extremely limited. It operates only if the Department fails to 
fulfill its consent decree commitment to develop acceptable 
promotion procedures and, then, only if the Department has 
not achieved the goal of 25 percent black representation at a 
given rank — a goal clearly related to availability. Courts often

disadvantage of ‘nonminorities’ has been articulated in various ways ); 
Wygant, 106 S.Ct. at 1867 n. 7 (Marshall, J., dissenting) (“I do not envy 
the District Court its task of sorting out what this Court has and has not 
held today.”).



19

have imposed far more stringent race-conscious measures.
The district court’s order has only a limited impact on 

white troopers. It does not require the demotion or discharge 
of any white troopers, does not bar white troopers from 
advancing, and does not disrupt any legitimate expectations for 
promotion white troopers may have on the basis of valid 
selection procedures. Like a hiring goal, the one-for-one 
promotion requirement here results in, at most, a “[djenial of a 
future employment opportunity.” Wygant, 106 S.Ct. at 1851 
(opinion at Powell, J.). And unlike preferential layoff 
schemes, the one-for-one promotion requirement has literally 
no impact on any legitimate expectations based on seniority. In 
this case, failing to achieve a promotion is far more akin to not 
being hired than it is to losing an existing job.

ARGUMENT

THE DISTRICT COURT’S ENFORCEMENT ORDER 
DOES NOT VIOLATE THE CONSTITUTION’S 
EQUAL PROTECTION GUARANTEE BECAUSE IT IS 
NARROWLY TAILORED TO REMEDY THE 
PERVASIVE EFFECTS OF THE DEPARTMENT’S 
EGREGIOUS DISCRIMINATION

A. Remedying the Pervasive Effects of the Department’s 
Egregious Discrimination by Enforcing Its Consent Decree 
Commitments Is a Compelling Governmental Interest

As the Government acknowledges, “[gjiven the pervasive 
past discrimination practiced by the Department,. . .  the first 
prong of this Court’s ‘strict scrutiny’ test [the compelling 
governmental interest requirement] is met here.” Brief for the 
United States at 21-22; see, e.g., Wygant, 106 S.Ct. at 1850- 
51 (opinion of Powell, J.); id. at 1853 (opinion of O’Connor, 
J.); Sheet Metal Workers’, 106 S.Ct. at 3052-53 (opinion of



20

Brennan, J.). Indeed, the district court’s “order is supported 
not only by the governmental interest in eradicating [the 
Department’s] discriminatory practices, it also is supported by 
the societal interest in compliance with the judgments of 
federal courts.” Sheet Metal Workers’, 106 S.Ct. at 3055 
(opinion of Powell, J.). The Department’s and the intervenors’ 
claim that no compelling governmental interest exists here — a 
claim premised on the contention that the district court found 
the Department guilty “only” of hiring discrimination17 — 
ignores both the character of the Department’s transgressions 
and the fact that the district court’s order simply enforced the 
consent decrees the Department had signed.

“In 1972, defendants were not just found guilty of 
discriminating against blacks in hiring to entry-level 
positions.” Paradise v. Shoemaker, 470 F. Supp. at 442. 
Rather the district court found that “the [Department operated 
under a regime of racism which totally excluded blacks from 
all ranks in the patrol.” J.A. 140 (emphasis added); see 
Paradise v. Shoemaker, 470 F. Supp. at 442; NAACP v. 
Allen, 340 F. Supp. at 705 (J.A. 26) (emphasis added) 
(“racial discrimination in this instance has . . . permeated the 
Department of Public Safety’s employment policies”).18

17 Brief for the Department at 8 n.3, 24-25, 27; Brief for the 
Intervenors at 8.

18 In addition to “operating] under a regime of racism,” J.A. 140, the 
Department enforced a “regime of racism” throughout the State. See 
Williams v. Wallace, 240 F. Supp. 100, 105 (M.D. Ala. 1965) (blacks 
walking from Selma to Montgomery to protest discriminatory voting 
registration practices brutally attacked by 60 to 70 Alabama state troopers 
under the command o f the Director o f Public Safety). Fostering a more 
responsive trooper force was a principal rationale underlying the court of 
appeals’ affirmance of the district court’s 1972 injunctive decree.

“Finally, but perhaps the most crucial consideration in our view is 
that this is not a private employer and not simply an exercise in 
providing minorities with equal opportunity employment. This is a



21

Given the enormity of the Department’s constitutional wrong,

it 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; there 
were no blacks holding such positions until 1979, and 
even then the only black troopers promoted obtained their 
promotions pursuant to the 1979 Decree, not the voluntary 
action of the Department. On the other hand, it cannot be 
gainsaid that white troopers promoted since 1972 were the 
specific beneficiaries of an official policy which 
systematically excluded all blacks.

Pet. App. 42a n. 16.
The district court’s 1972 order was designed not only to 

remedy the Department’s “blatant and continuous pattern of 
discrimination in hiring,” NAACP v. Allen, 340 F. Supp. at 
705; J.A. 25, but also to provide the Department with “an 
impetus to promote blacks.” Paradise v. Shoemaker, 470 F. 
Supp. at 442.19 Having promoted none in the seven years

police department and the visibility of the Black patrolman in the 
community is a decided advantage for all segments of the public at a 
dme when racial divisiveness is plaguing law enforcement.”

NAACP v. Allen, 493 F.2d 621 (citation omitted); cf. United States 
Commission on Civil Rights, Who is Guarding the Guardians?: A Report 
on Police Practices 153 (1981) [hereinafter, “Police Practices”] 
(underutilization o f minorities hampers “the ability of police departments 
to function effectively in and earn the respect of predominantly minority 
neighborhoods, thereby increasing the probability of tension and 
violence”); President’s Commission on Law Enforcement and 
Administration of Justice, Task Force Report: The Police 167 (1967) 
[hereinafter, “The Police”] (“to gain the general confidence and acceptance 
of a community, personnel within a police department should be 
representative of the community as a whole”).

19 As Judge Johnson explained in ruling that the 25 percent goal set in 
1972 applied to the trooper force as a whole, “To focus only on the entry­



22

following the district court’s order, see id., and facing wide- 
ranging charges of continued discrimination, including 
allegations that the Department had discriminated against 
blacks since 1972 in making promotions to corporal,* 20 the 
Department entered into the 1979 Decree. See J.A. 37-45.

Recognizing the long-term “objective” of a “racially 
neutral” employment system, J.A. 37, the 1979 Decree called 
for new disciplinary review procedures, a race relations 
program, and the implementation of promotion procedures 
with “little or no adverse impact on blacks.” J.A. 39-41. 
Under the terms of the Decree, compliance with the Uniform 
Guidelines on Employee Selection Procedures, 29 C.F.R. § 
1607, did not excuse the Department from developing 
promotion procedures which would have “little or no adverse 
impact on blacks.” J.A. 40. In other words, the Decree 
mandated race-conscious promotion procedures. Id 21 The

level positions would be to ignore that past discrimination by the 
Department was pervasive, that its effects persist, and that they are 
manifest” Paradise v. Shoemaker, 470 F. Supp. at 442.

20 See, e.g., Plaintiffs’ Motion for a Preliminary Injunction f7(e), 
Paradise v. Hilyer, No. 3561-N (M.D. Ala. June 15, 1978) (“Not one 
black trooper has been promoted past the trooper rank, whereas six of the 
white troopers who were hired since 1972 have been promoted to the rank 
of corporal.”).

21 For this reason, the Government contended in the court of appeals 
that the “no adverse impact” provisions of the 1979 and 1981 Decrees:

cannot be squared with the victim-specific limits on affirmative 
equitable relief under Title VII, as enunciated by the Supreme Court 
in [Firefighters Local Union No. 1784 v.] Stotts [, 467 U.S. 561 
(1984)]. These provisions appear to go beyond enjoining promotions 
until valid selection procedures can be implemented, requiring instead 
that promotions be made in accord with certain racial ratios —  quotas 
—  to ensure racially proportional promotions. To the extent that they 
do, the “no adverse impact” provisions are unlawful under Stotts.



23

procedures for promotion to corporal were to be developed no 
later than “one year from the signing of th[e] Consent Decree.” 
Id. Procedures for promotion to other ranks were to follow in 
turn. Id. at 41.22

Almost five years later, the district court found that despite 
the Department’s consent decree commitments

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.

J.A. 133 (emphasis in original). Confronted with the

Brief for the United States as Appellee at 19-20, Paradise v. Prescott, 767 
F.2d 1514 (11th Cir. 1985) (No. 84-7564). The Government pointed out, 
however, that the validity of the consent decrees and their “no adverse 
impact” provisions was not properly before the court, id., an assessment 
with which the court agreed. Pet. App. 49a n.18.

22 There was nothing inconsistent with including a race-conscious 
promotion provision in a decree having a “racially neutral” employment 
system as its objective. Such a provision dismantles “the barriers, 
psychological or otherwise, erected by past practices” and helps to create 
“a climate in which objective, neutral employment criteria can 
successfully operate to select public employees solely on the basis o f job- 
related merit.” NAACP v. Allen, 493 F.2d. at 621; see Sheet Metal 
Workers', 106 S.Ct. at 3037 (opinion of Brennan, J.); cf. Police 
Practices, supra note 18, at 153 (disproportionately white police command 
structures hamper minority recruitment efforts and fuel “community 
perception o f racism”); The Police, supra note 18, at 172 (crucial role of 
high-ranking minority police officers in fostering sensitivity within 
police departments and dispelling community resentment); Fallon & 
Weiler, Firefighters v. Stotts: Conflicting Models of Racial Justice, 1984 
Sup. Ct. Rev. 1, 36-37 (“fuller representation of blacks in positions of 
responsibility provides some assurance against a reversion to reliance on 
stereotypes”).



24

Department’s recalcitrance, the district court entered an order 
enforcing the 1979 and 1981 Decrees.23 Designed to 
“eliminate the discriminatory effects of past discrimination as 
well as bar like discrimination in the future,” J.A. 134, the 
enforcement order served a compelling governmental purpose. 
See, e.g., Wygant, 106 S.Ct. at 1850-51 (opinion of Powell, 
J.); id. at 1853 (opinion of O’Connor, J.); Sheet Metal 
Workers’, 106 S.Ct. at 3052-53 (opinion of Brennan,J.).

“[F]ederal courts are not reduced to issuing injunctions 
against state officers and hoping for compliance. Once issued, 
an injunction may be enforced.” Hutto v. Finney, 437 U.S. 
678, 690 (1978). The absurdity of the position asserted by the 
Department and the intervenors is obvious. Saddled with 
judicial findings of “blatant and continuous” discrimination 
that had “permeated [its] employment policies,” NAACP v. 
Allen, 340 F. Supp. at 705; J.A. 25-26, employing “still not 
one black” above the entry-level, Paradise v. Shoemaker, 470 
F. Supp. at 442 (emphasis in original), and facing new 
allegations of promotion discrimination, the Department chose 
to settle rather than litigate, entering into a consent decree 
mandating promotions with “little or no adverse impact upon 
blacks.” J.A. 40; see J.A. 49-53. Told that it finally must live 
up to its obligations, the Department now resists enforcement

23 The court of appeals held that the district court’s enforcement order 
“did not modify the 1979 and 1981 Decrees or exceed the relief authorized 
by those decrees.” Pet. App. 27a. Although that holding is not before this 
Court, see 106 S.Ct. 3331, the Department makes a number of 
statements or arguments premised on the assumption that the court of 
appeals erred. See Brief for the Department at 6 (district court “did not 
enter an order requiring use of promotional plan ‘. . . that does not result 
in adverse impact for the initial group . . .’ as required by the consent 
decree”); id. at 9 n.5; id. at 14 (emphasis in original) (district court 
“utilized race as the means of enforcement o f consent decrees having 
racially neutral purposes”); id. at 35 (“instead of adhering to parties’ 
purpose, district court inteijected race as the means to ‘enforce’ the 
consent decrees”).



25

by claiming that there was, after all, no judicial finding of 
promotion discrimination.24

Given that the district court’s order enforced the 
Department’s consent decree commitments, the contention by 
the other parties that the order is supported by nothing more 
than the fanciful notion that the constitution requires some sort 
of magical “racial balance” is misguided. See Brief for the 
United States at 22; Brief for the Department at 23-24; Brief 
for the Intervenors at 8.25 The one-for-one promotion 
mechanism “was not imposed for the [Department’s] failure to 
achieve” racial balance, “but for its failure to take the 
prescribed steps that would facilitate achieving the goal.” Sheet 
Metal Workers’, 106 S.Ct. at 3056 (opinion of Powell, J.). 
The district court considered the gross and longstanding racial

24 The corollary to the claim that there is no judicial finding of 
promotion discrimination is the Department’s and intervenors’ contention 
that the district court was required to hold an evidentiary hearing to resolve 
the question. See Brief for the Department at 25, 31; Brief for the 
Intervenors at 6-7, 12-13. But, again, because the court was enforcing 
previously entered consent decrees, such a determination was unnecessary. 
The Department’s claim that it was denied an opportunity to demonstrate 
that the racial imbalances in its upper ranks were not caused by its pre- 
1972 hiring practices, Brief for the Department at 25, 31; see id. at 27, 28 
n.9, is frivolous, see Defendants’ Motion to Alter or Amend Judgement 
and Stay of Order at 2-3, Paradise v. Prescott, No. 3561-N (M.D. Ala. 
Dec. 27, 1983) (claim that Department was denied opportunity to 
demonstrate that disparities were caused by pre-1972 hiring practices), as 
is its claim, Brief for the Department at 25 (emphasis in original), that 
there never has “been a judicial determination that the racial disparity 
among the ranks were related in any way to findings of discrimination in 
hiring in 1972.” See, e.g., Paradise v. Shoemaker, 470 F. Supp. at 442.

25 Equally misguided is the Government’s attempt to analogize this 
case to Bazemore v. Friday, 106 S.Ct. 3000 (1986). Compare id. at 3012 
(“any racial imbalance existing in any of the clubs was the result of 
wholly voluntary and unfettered choice of private individuals”) with Brief 
for the United States at 35 (in Bazemore, “clear that . . . imbalance was 
traceable, at least in part, to the de jure segregated period”).



26

imbalances in the Department — obvious effects of the 
Department’s past discriminatory actions that the consent 
decrees were designed to eliminate — simply in reaching its 
conclusion that the consent decrees should be enforced. J.A. 
130-36. Such consideration was clearly proper. Cf United 
States v. City of Chicago, 663 F.2d 1354, 1360 (7th Cir. 
1981) (en banc) (“essential purpose of th[e] quota (parity of 
minority representation, at a substantial level, between patrol 
officers and sergeants) has been achieved, and changed 
conditions have rendered continuance of the quota without 
modification an inequitable and unnecessary burden on 
presumably innocent individuals”).

B. The District Court’s Enforcement Order Was
Appropriately Tailored

In determining whether race-conscious remedies are 
appropriately tailored, this Court has looked to factors such as 
the necessity for the relief, the flexibility and duration of the 
relief, the relationship of any numerical goals to the relevant 
labor market, and the impact of the relief on third-parties.26 
When viewed in light of these same factors, the order here is 
clearly proper.

By turning a blind eye to reality, the Government fails to 
acknowledge the compelling circumstances that confronted the 
district court and made the order necessary. By focusing on 
the one-for-one promotion requirement rather than the 
conditions under which it applies and the goal at which it is 
directed, the Government distorts the true fabric of the

26 See Sheet Metal Workers’, 106 S.Ct. at 3052-53 (opinion of 
Brennan, J.); id. at 3054-55 (opinion of Powell, J.); Wygant, 106 S.Ct. 
at 1850-52 (opinion of Powell, J.); id. at 1853 (O’Connor, J., concurring 
in part and concurring in judgment); id. at 1857-58 (White, J., concurring 
in judgment); id. at 1864-65 (Marshall, J., dissenting); id. at 1869-71 
(Stevens, J., dissenting).



27

remedy. The order is both temporary and inherently flexible. 
The one-for-one promotion requirement operates only until the 
Department adopts acceptable promotion procedures or until 
the goal of 25 percent black representation in each rank has 
been achieved. Because the order is conditional, the 
Department may preclude further use of the one-for-one 
promotion requirement by implementing acceptable promotion 
procedures. J.A. 136. This is not an abstract possibility. The 
one-for-one requirement has been used for only one set of 
promotions, and the district court has provisionally suspended 
its further use. Even if it were to apply systematically, the one- 
for-one promotion mechanism would not unfairly or 
unnecessarily infringe on the legitimate interests of white 
troopers.

1. The District Court Had Broad Remedial Authority to 
Combat Discrimination

In issuing its order, the district court exercised its equitable 
powers. Having found that the effects of the Department’s 
pervasive discriminatory practices were continuing despite its 
consent decree commitments, the “scope of [the] district 
court’s equitable powers to remedy past wrongs [was] broad, 
for breadth and flexibility are inherent in equitable remedies.” 
Swann v. Charlotte-Mecklenburg Board of Education, 402 
U.S. 1, 15 (1971)27

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) (citation 
omitted) (Powell, J., concurring). “[H]aving had the parties 
before it over a period of time, [the district court] was in the 27

27 See International Bhd. of Teamsters v. United States, 431 U.S. 324, 
364 (1977).



28

best position to judge whether an alternative remedy . . . 
would have been effective in ending [the Department’s] 
discriminatory practices.” Sheet Metal Workers, 106 S.Ct. at 
3056 (opinion of Powell, J.); cf. Brown v. Board of 
Education, 349 U.S. 294, 299 (1955) (“[bjecause of their 
proximity to local conditions,” district courts are in the best 
position to appraise compliance with constitutional 
guarantees). Only if this Court concludes that the district court 
abused its discretion in fashioning a remedy would it be 
appropriate to reverse the judgment of the court of appeals.28 
No such conclusion is warranted here.

2. The Order Was Clearly Necessary

“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’, 106 S.Ct. at 3056. 
In 1972, the district court found that the Department had 
ignored the injunctive order in Frazer barring continued 
discrimination. 340 F. Supp. at 708. In 1975, the district 
court found that the Department had, “for the puipose of 
frustrating or delaying full relief to the plaintiff class, artifically

28 Albemarle Paper Co. v. Moody, 422 U.S. 405, 424 (1975) (citation 
omitted) (“the standard of review will be the familiar one of whether the 
District C ourt... abused its traditional discretion to locate a just result in 
light of the circumstances peculiar to the case”); see Milliken v. Bradley, 
433 U.S. 267, 288 (1977); Williams v. City of New Orleans, 729 F.2d 
1554, 1560 (5th Cir. 1984) (en banc); Crockett v. Green, 534 F.2d 715, 
718 (7th Cir. 1976). Application o f a multi-factor test to ascertain the 
appropriateness of race-conscious remedies, see, e.g., Sheet Metal 
Workers', 106 S.Ct at 3052-53 (opinion of Brennan, J.); id. at 3055-57 
(opinion of Powell, J.), is a task calling for considered judgment. Not 
only do the tests contain several factors to be balanced, but the factors 
themselves —  which inquire into the necessity, flexibility, duration, 
scope, and burden o f the remedy —  are not susceptible to mechanical 
application.



29

restricted the size of the trooper force.” J.A. 34. In 1983, the 
district court found that the Department, despite its consent 
decree commitments, was “still without acceptable procedures 
for advancement of black troopers . . . and it d[id] not appear 
that any procedures would be in place within the near future.” 
J.A. 133 (emphasis in original). Based on its experience with 
alternative remedies,29 and having solicited proposals from the 
parties, J.A. 123, the district court had no choice but to 
conclude that “it is apparent from the history of this lawsuit 
that without immediate, affirmative, race-conscious action” the 
effects of the Department’s egregious discrimination would 
“not dissipate within the near future.” J.A. 135; see J.A. 136.

Instead of acknowledging the situation that faced the 
district court, the Government creatively reconstructs the facts. 
As if to suggest that black troopers had been progressing to 
positions of responsibility in an orderly manner, the 
Government claims that by 1983, “the results [achieved under 
the district court’s 1972 one-for-one hiring order] had begun 
to manifest themselves in the upper ranks.” Brief for the 
United States at 36 (emphasis added). Taking its rewrite of the 
record one step further, the Government claims that, because 
the Department “had already made substantial progress in 
achieving ‘racial balance,’ the one-for-one promotion quota 
was unnecessary no matter how the quota’s purpose is 
characterized.” Id. at 37 (emphasis added).

The very “evidence” the Government cites proves the 
opposite. The four black corporals to which the Government 
points were promoted, not on the Department’s own initiative, 
but only as the result of an interim agreement entered 
simultaneously with the 1979 Decree. Pet. App. 42a; J.A. 41,

29 As the district court explained, “In an earlier order this court 
demonstrated dramatically the efficacy of quotas, over other remedies, in 
instances where blacks have historically been completely excluded or 
almost completely excluded from employment NAACP v. Dotfiard, 373 
F.Supp. 504 (M.D. Ala. 1974) (Johnson, C.J.).” J.A. 134.



30

46-48. The Department’s 1983 proposal to promote four 
blacks and eleven white troopers to corporal came only after 
the district court had prohibited the Department from using a 
promotion procedure that would have guaranteed that every 
promotion would go to a white trooper. J.A. 117-24. And the 
Department’s promotion procedures which “brought three 
additional blacks to the rank of corporal and two to the rank of 
sergeant,” Brief for the United States at 37, were adopted only 
after the district court had entered its one-for-one promotion 
order, making it clear that it would not countenance further 
delay.

The Government’s argument that the district court “clearly 
erred” in rejecting the Department’s proposal to promote four 
blacks and eleven whites, Brief for the United States at 28, is 
nothing more than a thinly disguised attempt to reassert the 
claim — resoundingly rejected by the court of appeals — that 
the district court modified, rather than enforced, the consent 
decrees.30 Furthermore, the Government’s position ignores

30 Compare Brief for the United States at 28 (citations 
omitted)(emphasis added):

the Department’s proposal, as compared with the the extreme quota 
upon which Paradise insisted, plainly represented the “less intrusive 
means” ... by which to make the needed promotions within the spirit 
of the consent decrees ... As the Department explained below, its 
proposal met “the requirements o f the four-fifths rule of the Uniform 
Guidelines concerning adverse impact,” the standard that the consent 
decrees embodied ...

with Pet App. at 10 n.4 (citation omitted):

Although it was contemplated by the earlier consent decrees that 
specific numbers of blacks would be promoted, the one-for-one quota 
was greatly different, in kind and degree. Accordingly, the one-for- 
one quota is clearly a modification of the prior decrees because it 
requires more o f the Department than simply avoiding ... adverse 
impact. Thus, the issue here, as in Stotts, is whether a “disputed 
modification of a consent decree” ... may require racial quotas.



31

not only the district court’s legitimate interest in making up for 
the Department’s delay,31 but also the district court’s interest 
in avoiding “endless enforcement litigation.” Sheet Metal 
Workers’, 106 S.Ct. at 3036 (opinion of Brennan, J.). The 
1979 Decree required the Department to develop promotion 
procedures without adverse impact not only for corporals, but 
also for sergeants, lieutenants, captains, and majors. J.A. 41. 
In entering its order, the district court made it clear that “any 
relief fashioned by the court must address the department’s 
delay in developing acceptable promotion procedures for all 
ranks.” J.A. 133 (emphasis added).32 Had it accepted the 
Department’s proposal to promote eleven whites and four

31 The Government’s contention that “in the four years after the 
signing of the 1979 Decree, the Department. . . had acted with reasonable 
diligence,” Brief for the United States at 24 n.13, is of very recent origin. 
Before the district court, the Government pointed out that the defendants 
had failed for ten months to respond to the Government’s request for a 
proposal for making promotions in conformity with the 1979 Decree and 
had “failed to offer any reason why promotions should not be made, nor 
had they offered an explanation as to why they halted progress toward 
remedying the effects of past discrimination.” Pet. App 16a n.10. 
According to the Government, the Department’s conduct “‘suggested] that 
a pattern of discrimination against blacks... may be continuing.’” Id. 
(citation omitted). Furthermore, the Government’s attempt to portray the 
burden on the Department as being particularly onerous, see Brief for the 
United States at 24 n.13, is belied by the Department’s recent progress in 
implementing promotion procedures. After having failed for almost five 
years to develop a promotion procedure that conformed to its consent 
decree commitments, the Department developed what it claimed was an 
acceptable procedure within seven months of the court’s order. J.A. 142.

32 Contrary to the Department’s representation to this Court, see Brief 
for the Department at 36, the Department’s promotions of white troopers 
between 1979 and 1983 had not been limited to those made pursuant to 
tire 1979 Decree. See Transcript of Proceedings at 21-22, Paradise v. 
Shoemaker, No. 3561-N (M.D. Ala. May 27, 1983).



32

blacks and contented itself with the Department’s pledge to 
develop acceptable corporal selection procedures “as soon as 
possible,” J.A. 126, the district court would have done 
nothing to prevent continued recalcitrance.

A “district court may adapt the form of the application of its 
power according to the resistance with which it is confronted.” 
Madden v. Grain Elevator, Flour and Feed Mill Workers, 
Local 418, 334 F.2d 1014, 1020 (7th Cir. 1964), cert, denied, 
379 U.S. 967 (1965). Here, entering an order requiring 
promotions without adverse impact merely would have 
reiterated an obligation the Department had already assumed. 
See J.A. 40-41 (1979 Decree); id. 50 (1981 Decree). 
“[T]aking the long and unhappy history of the litigation into 
account, the court was justified in entering a comprehensive 
order to insure against the risk of inadequate compliance.” 
Hutto v. Finney, 437 U.S. at 687.33

The Government’s “plentiful alternatives” — alternatives it 
never presented to the district court — are ill-suited to the task 
the district court was facing . Imposing “stringent contempt 
sanctions . . .  to remain in effect until the Department pro­
duced an acceptable long-term promotion plan,” Brief for the 
United States at 25, would not have allowed the Department to 
meet its immediate “need of at least 15 new corporals.” J.A. 
130. And, appointing a trustee or administrator “to supervise 
the Department’s progress, or even to make the promotions 
himself by the proper standard,” Brief for the United States at 
25, in addition to inevitably fostering delay, would have been 
far more disruptive of the Department’s operations than a

33 Cf. Sheet Metal Workers’, 106 S.Ct. at 3051 (opinion of Brennan, 
J.) (“In light of petitioners’ long history of ‘foot dragging resistance’ to 
court orders, simply enjoining them from once again engaging in 
discriminatory practices would clearly have been futile. Rather, the 
District Court properly determined that affirmative race-conscious 
measures were necessary to put an end to petitioners’ discriminatory 
ways.”).



directive that allowed the Department to conduct its own affairs 
subject to the court’s review.34

In any event, the district court surely was not required to 
employ remedy after remedy before it reasonably could 
conclude that race-conscious relief was warranted. See Sheet 
Metal Workers’, 106 S.Ct. at 3056 (opinion of Powell, J.); 
Fullilove v. Klutznick, 448 U.S. at 508 (Powell, J., 
concurring); Ely, The Constitutionality of Reverse Racial 
Discrimination, 41 U. Chi. L. Rev. 723, 727 n.26 (1974) 
(“once the goal of increasing the percentage of Blacks in the 
professions is accepted as either legitimate or compelling ..., 
the fit between a racial classification and that goal should 
present no problem”). Such a course was particularly 
unnecessary here given that the consent decrees themselves 
called for race-conscious action. In light of the Department’s 
history of obstructionism, “it is fair to conclude that absent 
authority to” enter its conditional promotion order, “the District 
Court may have been powerless to provide an effective 
remedy.” Sheet Metal Workers’, 106 S.Ct. at 3056 (opinion 
of Powell, J.).

3. The One-for-One Promotion Requirement Is Inherently 
Flexible, Temporary in Effect, and Geared to the 
Relevant Labor Market

The one-for-one promotion requirement is not a rigid 
remedy. It accommodates “legitimate reasons for the

34 In addition to potentially requiring an evidentiary hearing for every 
black trooper on the force, the Government’s suggested remedy of 
competitive seniority confuses a court’s power to award individual make- 
whole relief with its power to order race-conscious measures.

The purpose of affirmative action is not to make identified victims 
whole, but rather to dismantle prior patterns of employment 
discrimination and to prevent discrimination in the future. Such relief 
is provided to the class as a whole rather than to individual members;



34

[Department’s] failure to” make progress toward eliminating 
the effects of its unlawful discrimination because it does not 
mandate unnecessary promotions or require the Department to 
promote unqualified black troopers. Sheet Metal Workers’, 
106 S.Ct. at 3052 n.49 (opinion of Brennan, J.) (emphasis in 
original); see Fullilove v. Klutznick, 448 U.S. at 488 
(requirement of 10 percent set aside for minority business 
enterprises subject to administrative waiver if minority 
contractors unavailable); J.A. 128. Furthermore, the one-for- 
one requirement applies only if the Department fails to develop 
acceptable promotion procedures for a particular rank pursuant 
to its consent decree commitments and, then, only if 25 
percent of troopers at the rank are not black. Id.

The district court has applied the one-for-one requirement 
sparingly. Used for only one set of promotions to corporal, 
succeeding promotions to corporal and sergeant were made on 
the basis of new selection procedures for those ranks, and the 
one-for-one requirement was suspended. J.A. 163-64, 176- 
77. In fact, “the defendants have been allowed to promote 
only white troopers to the lieutenant and captain ranks since 
there apparently are no black troopers qualified for promotion 
to those ranks.” Pet. App. 34a. Regardless of whether the 
Department easily could prove that a promotion procedure for 
a particular rank would have no long-term adverse impact prior 
to its implementation, it is clear that “[a]s an enforcement 
device . . .  the one-for-one quota was designed to operate 
against the Department for a long time to come,” Brief for the 
United States at 24, only in the sense that it was designed to

no individual is entided to relief and beneficiaries need not show that 
they were themselves victims of discrimination.

Sheet Metal Workers’, 106 S.Ct. at 3049 (opinion of Brennan, J.).



35

end pennanently the Department’s recalcitrance.35 At most, it 
lasts as long as the Decrees it was designed to enforce.

The Government’s contention that “the one-for-one quota 
greatly exceeds the percentage of blacks in the relevant labor 
pool — viz., entry-level troopers eligible for promotion — and 
thus could not be justified as a flexible ‘benchmark’”, Brief for 
the United States at 33, distorts the true character of the order 
and ignores the district court’s need to fashion effective relief. 
Even if the Department fails to adopt promotion procedures for 
a rank in compliance with its consent decree commitments, the 
order imposes the one-for-one mechanism only until blacks are 
25 percent of the officers at the rank — a figure that “is 
directly related to the percentage of [blacks] in the relevant 
workforce.” Sheet Metal Workers’, 106 S.Ct. at 3056 
(opinion of Powell, J.).36 Without authority to employ a 
flexible mechanism requiring promotions at a rate greater than 
25 percent under certain circumstances, the district court 
would have been without a remedy that ended the 
Department’s resistance and insured future compliance.

Courts often have approved hiring or promotion 
mechanisms requiring selection of minorities in a proportion

35 At the same time that it criticizes the lower court for adopting a 
remedy that might last “a long time,” the Government seems to say that 
it would have preferred a numerical remedy that would have lasted even 
longer —  one that mirrored the proportion of black troopers at a lower 
rank. Brief for the United States at 28-29.

36 The extant court orders require the Department to achieve black 
representation of 25 percent within the Department as a whole, J.A. 27, 
and either black representation of 25 percent at each rank above entry-levei 
or adoption of acceptable promotion practices at each rank. J.A. 128. The 
25 percent hiring benchmark mirrors the percent of Alabama’s population 
that is black. J.A. 134 n.2. The promotion benchmark of 25 percent at 
each rank is identical to the hiring goal.



36

substantially greater than the ultimate goal that is sought to be 
achieved.37 In Sheet Metal Workers’, this Court approved the 
lower court’s adoption of a 29.23 percent minority 
incumbency goal, the same as the percentage of minorities in 
the relevant labor market. 106 S.Ct. at 3031. In doing so, the 
Court was keenly aware that hiring of minorities necessarily 
would occur at a rate higher than 29.23 percent if the 
incumbency goal were to be achieved in the foreseeable future.

37 See, e.g, Kirkland v. New York State Dep't of Correctional Serv., 
711 F.2d 1117 (2d Cir. 1983), cert, denied, 465 U.S. 1005 (1984) (Tide 
VII case; as interim measure until validated selection procedures 
implemented, all promotions to be offered to qualified minorities until 
minority appointments equal 21 percent of rank); Firefighters Inst, for 
Racial Equality v. City of St. Louis, 588 F.2d 235 (8th Cir. 1978), cert, 
denied, 443 U.S. 904 (1979) (Title VII case; as interim relief pending 
development of non-discriminatory exam, twelve black firefighters ordered 
immediately promoted to fire captain, twelve whites to be promoted at 
discretion of district court); United States v. City of Chicago, 573 F.2d 
416 (7th Cir. 1978) (Tide VII case; until validated tests developed and 
used, all minorities on current eligibility lists to be offered permanent 
promotions before whites on lists may be promoted); Crockett v. Green, 
534 F.2d 715 (7th Cir. 1976) (Equal Protection case; one-for-one 
appointments to skilled craft positions until percentage of blacks in job 
classification matches that o f blacks in city population (17.2 percent)); 
Bridgeport Guardians, Inc. v. Bridgeport Civil Serv. Comm'n, 482 F.2d 
1333 (2d Cir. 1973), affd  , 497 F.2d 1113 (2d Cir. 1974), cert, denied, 
421 U.S. 991 (1975) (Equal Protection case; one for one hiring quota 
until 15 percent minority patrolmen); United States v. NJL. Industries, 
Inc., 479 F.2d 354 (8th Cir. 1973) (Title VII case; one-for-one promotion 
ratio until at least 15 of 100 foremen are black); Vulcan Society of New 
York City Fire Dep't, Inc. v. Civil Serv. Comm'n of New York, 490 
F.2d 387 (2d Cir. 1973) (Equal Protection case; one for three hiring ratio 
upheld as interim relief until validated selection procedure implemented); 
Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) (Equal Protection case; 
one for one, two, or three hiring ratio, at discretion of district judge, until 
current pool of eligibles exhausted; new, validated examination to be 
expeditiously developed); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 
1971) (en banc), cert, denied, 406 U.S. 950 (1972) (Equal Protection case; 
one for two hiring until 20 minority fire-fighters hired).



37

See, e.g., id. at 3062 (opinion of O’Connor, J.).38 Similarly, 
in United Steelworkers v. Weber, 443 U.S. 193 (1979), the 
Court approved a voluntary agreement between a company and 
a union providing that 50 percent of new trainees were to be 
black until the percentage of black skilled craftworkers in the 
plant approximated the percentage of blacks in the local labor 
force — 39 percent. Id. at 198. The Court found that the plan 
was carefully drawn to break down “old patterns of racial 
segregation and hierarchy.” Id. at 208. Given the conditional 
nature of the one-for-one requirement here and its suspension 
after only one use, it is clear that it is far less rigorous in nature 
or operation than comparable mechanisms approved in many 
other cases.

Whether this Court believes that, for example, a two-for- 
three or a three-for-four requirement would have served the 
purpose of the district court’s one-for-one order equally well is 
not the question. Every numerical remedy “necessarily 
involve[s] a degree of approximation and imprecision.”

38 In Sheet Metal Workers’, approximately 45 percent of newly 
indentured members were non-white. 106 S.Ct. at 3031 n.18. Previously, 
the district court had established a one-minority-for-one-white hiring 
mechanism to remain in effect until the 29.23 percent membership goal 
had been achieved. Id. at 3031. Although the court of appeals set aside the 
one-for-one hiring requirement, it recognized that “temporary hiring ratios 
may be necessary in order to achieve integration of a work force from 
which minorities have been unlawfully barred.” EEOC v. Local 638 ... 
Local 28 of the Sheet Metal Workers' Int'l Ass’n, 753 F.2d 1172, 1188 
(2d Cir. 1985), aff d, 106 S.Ct. 3019 (1986). The court of appeals set 
aside the one-for-one mechanism because “petitioners had voluntarily 
indentured 45% nonwhites since January of 1981” so that “the Court 
concluded that a strict one-to-one hiring requirement was not needed to 
insure that a sufficient number of nonwhites were selected for the 
apprenticeship program.” 106 S.Ct. at 3031 n.18. Here, by contrast, the 
district court and the court of appeals concluded that the one-for-one 
promotion mechanism was necessary.



38

Teamsters v. United States, 431 U.S. at 372. “This Court . . . 
appropriately deal[s] with the large constitutional principles; 
other federal courts ha[ve] to grapple with the flinty, 
intractable realities of day-to-day implementation of those 
constitutional commands.” Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. at 6; see Sheet Metal Workers', 
106 S.Ct. at 3056 (opinion of Powell, J.).

4. The Order Has a Limited Impact On White Troopers

“As part of this Nation’s dedication to eradicating racial 
discrimination, innocent persons may be called upon to bear 
some of the burden of the remedy.” Wygant, 106 S.Ct. at 
1850 (opinion of Powell, J.). “When effectuating a limited and 
properly tailored remedy to cure the effects of prior 
discrimination, such a ‘sharing of the burden’ by innocent 
parties is not impermissible.” Fullilove v. Klutznick, 448 U.S. 
at 484 (opinion of Burger, C.J.), quoting Franks v. Bowman 
Transportation Co., Inc., 424 U.S. 747, 111 (1976).

The burden in this case is extremely light and upsets no 
legitimate expectations of white troopers for promotion. To 
accept the Government’s contention that the district court’s 
order is too intrusive merely because it “casts its onus not on 
the general public, but on a finite . . . number of identifiable 
individuals,” Brief for the United States at 39, would be 
tantamount to adopting the “simplistic” conclusion that race­
conscious promotion remedies can never “withstand 
constitutional muster.” Sheet Metal Workers’, 106 S.Ct. at 
3057 n.3 (opinion of Powell, J.).

Notwithstanding the attempt by the Department to lure this 
Court into believing otherwise, see Brief for the Department at 
14, 29, 32, the district court’s order does not compel the 
Department to promote unqualified black troopers at the 
expense of more qualified white troopers. The district court’s 
one-for-one promotion requirement applies only if the 
Department fails to adopt acceptable promotion procedures



39

and, even then, only “if there is a black trooper objectively 
qualified to be promoted.” J.A. 128. Expectations of 
promotion, such as those harbored by intervenors here, based 
on invalid, discriminatory selection procedures39 are entitled to 
little weight. As the court of appeals explained in an earlier 
phase of this case:

[N]o applicant for public employment can base any claim 
of right under the Fourteenth Amendment’s equal 
protection or due process clauses upon an eligibility 
ranking which results from unvalidated selection 
procedures that have been shown to disqualify blacks at a 
disproportionate rate. This is so because by definition such

39 The Department never actually claimed that its procedure for 
selecting troopers for promotion to corporal that was found wanting by 
the district court was valid. Rather, the Department claimed only that its 
written test —  one of four components of the corporal selection process 
—  was valid. See, e.g., Motion for Reconsideration at 2-3, Paradise v. 
Prescott, No. 3561-N (M.D. Ala. Nov. 10, 1983); see also Motion of 
Department o f Public Safety for Reconsideration and to Alter, Modify or 
Amend January 13, 1984 Order at 7, Paradise v. Prescott, No. 3561-N 
(M.D. Ala. Jan. 23, 1984) (after analyzing other “factors in the 
promotional procedure, it is now apparent other alternatives and 
combinations must be explored”). And, even if it had claimed, and 
demonstrated, that the entire selection process were valid, the point would 
have been o f little consequence for reasons quite apart from the “no 
adverse impact” provisions of the consent decrees. Before using a job- 
related test that has adverse impact, an employer must determine that there 
are no reasonable, alternative procedures available. See 29 C.F.R. § 
1607.3.B. The wisdom of this requirement is graphically illustrated in 
this case. As soon as the Department was told that the court would 
tolerate no more delay, it developed a corporal selection procedure that it 
claimed was valid but had no apparent adverse impact J.A. 142; Pet. 
App. 45a. Similarly, the Department developed a procedure for the 
selection o f sergeants that it claimed was valid and, again, had no apparent 
adverse impact. See Statement of Completion of Procedure for Promotion 
to Rank of Sergeant Paradise v. Prescott, No. 3561-N (M.D. Ala. Aug. 
16, 1984); J.A. 176-177; Pet. App. 7.



40

criteria have not been shown to be predictive of successful 
job performance. Hence, there is no reliable way to know 
that any accepted applicant is truly better qualified than 
others who have been rejected. Until the selection 
procedures used by the defendants here have been properly 
validated, it is illogical to argue that quota hiring produces 
unconstitutional “reverse” discrimination, or a lowering of 
employment standards, or the appointment of less or 
unqualified persons.

NAACP v. Allen, 493 F.2d at 618.40
Like the hiring goal in Sheet Metal Workers’, the 

conditional promotion requirement in this case results in a 
“[djenial of a future employment opportunity,” not the “loss of 
an existing job.” Wygant, 106 S.Ct. at 1851 (opinion of 
Powell, J.). Even if suspension of the one-for-one 
requirement were lifted and the requirement were employed 
systematically until the 25 percent goal had been achieved, no 
white trooper would lose a job or be demoted, and substantial 
promotion opportunities for white troopers would continue to 
be available.40 41

Unlike the preferential layoff scheme in Wygant, the 
conditional promotion requirement here has, at most, a trivial

40 In addition, the Department planned to use the “rule of three” as 
provided in the Alabama Merit System Law in making promotions. See 
supra note 13. Thus, even if the Department’s selection procedure had 
been valid, the first person on the promotion list would have had no 
“right” to a promotion. Since the district court’s order was entered, the 
“rule of three” has been replaced by the “rule o f ten.” See id.

41 The intervenors misconstrue the district court’s order when they 
imply that it bars white troopers from advancing. See Brief for the 
Intervenors at 11, 17. On the one occasion the one-for-one promotion 
mechanism was used, eight white troopers were promoted. Pet. App. 22a. 
The only effect on white troopers was a temporary reduction in the 
number of promotion opportunities available.



41

impact on any expectations of promotion white troopers may 
have on the basis of their seniority. Whatever part seniority 
normally may play “in allocating benefits and burdens among 
employees,” Ford Motor Co. v. EEOC, 458 U.S. 219, 239 
(1982); see Franks v. Bowman Transportation Co., 424 U.S. 
at 766-67, it has an insignificant role in this case.42 Given that 
white troopers have “no legitimate expectation of promotion” 
on the basis of their seniority, this case is “closer to the hiring 
case, since, although there may occasionally be some inequity, 
nonminority employees are not deprived of a benefit that they 
had reason to expect.” Edwards & Zaretsky, Preferential 
Remedies for Employment Discrimination, 74 Mich. L. Rev. 
1, 40 (1975) (“easier to order preferential remedy” where 
promotions not made on basis of seniority); see Fallon & 
Weiler, Firefighters v. Stotts: Conflicting Models of Racial 
Justice, 1984 Sup. Ct. Rev. at 67 (“promotion resembles 
hiring in the sense that dispreferred white does not lose an 
existing job;” however, where seniority plays “a significant 
role in promotion decisions, overriding that criterion can 
produce the same sense of grievance ... as ... in the layoff 
setting”).43

42 Differences in seniority could account for no more than a three 
percent difference in final ratings of candidates for promotion to corporal. 
See supra note 10. But cf. Brief for the Intervenors at 17 (“only natural for 
[white troopers] to expect that many years of service will result in the 
ultimate reward: promotion”); Brief for the United States at 39-40 
(emphasizing role of seniority in promotion decisions and in creating 
expectations of promotions).

43 Because seniority plays a trivial role here, the Court need not 
determine the circumstances under which “employee expectations arising 
from a seniority system” must give way to the “strong public policy 
interest” in eliminating the effects of pervasive discrimination. Franks v. 
Bowman Transp. Co., 424 U.S. at 778. Nor need the Court weigh the 
degree to which seniority-based expectations must be tempered by the fact 
that white employees with long tenure are those whose hopes of



42

In sum, the order below does not “unnecessarily trammel 
the interests of white employees,” Weber, 443 U.S. at 208 
(opinion of Brennan, J.), or cause a “serious disruption” in 
their lives. Wygant, 106 S.Ct. at 1851-52 (opinion of Powell, 
J.). The burden on white troopers is small, and their legitimate 
expectations of promotion are not substantial. Failing to 
achieve a promotion in this case is far more comparable to not 
being hired than it is to losing an existing job.

promotion are most likely the “product [ ] of discrimination and hence 
tainted.” University of California Regents v. Bakke, 438 U.S. 265, 365 
(1978) (opinion of Brennan, J.).



43

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

J. Richard Cohen 
Counsel of Record

morris S. Dees, Jr .
P.O. Box 2087 
400 Washington Avenue 
Montgomery, Alabama 36102 
(205)264-0286

Of counsel:

Arthur Z. Lazarus, Jr ., p .C. 
Elliot e . polebaum  
Mira N. Marshall 
Fried, Frank, Harris,

Shriver & Jacobson
1001 Pennsylvania Avenue, N.W.
Suite 800
Washington, D.C. 20004 
(202) 639-7000