Bratton v. City of Michigan Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

    No.

in  tfje Supreme Court of tfje Hmtetr states?
O CTO BER TERM , 1983

H a n s o n  B r a t t o n , G a l e  B o g e n n , W il l ia m  S h e l l , P a t r ic k  

J o r d a n , C h a r l e s  M a h o n e y , individually and on behalf of all 
others similarly situated; and T h e  D e t r o it  P o l ic e  L ie u t e n a n t s  

&  S e r g e a n t s  A s s o c ia t io n ,

Petitioners,

vs.

C it y  o f  D e t r o i t , a Michigan Municipal Corporation; C o l e m a n  

A. Y o u n g , Mayor; W il l ia m  L. H a r t , Chief of Police; D e t r o it  
B o a r d  o f  P o l ic e  C o m m is s io n e r s ; and G u a r d ia n s  o f  M ic h ig a n , 
D a v id  L. S im m o n s , A r n o l d  D. P a y n e , J a m e s  E. C r a w f o r d , 
C l in t o n  D o n a l d s o n , W il l ie  J o h n s o n , K e n n e t h  M .  J o h n s o n ,

A l f r e d  B r o o k s ,
Respondents.

P E T IT IO N  FOR W R IT  O F C ER TIO RA RI T O  T H E  U N IT E D  STATES 
CO U R T O F APPEALS FOR T H E  S IX T H  C IR C U IT

R a m s d e l l , O a d e  &  F e l d m a n  

by: K. Preston Oade, Jr.
Counsel of Record 
25130 Southfield Rd., Ste. 100 
Southfield, Michigan 48075 
(313) 552-9400

M o u n t a in  S t a t e s  L e g a l  F o u n d a t io n  

by: Fred D. Fagg, III 
William H.^Mellor III 
Clint Bolick 

Co-Counsel
1200 Lincoln Street, Ste. 600 
Denver, Colorado 80203 
(303) 861-0244

RENAISSANCE PRINTING, INC., 76 WEST ADAMS 
8TH FLOOR, DETROIT, MICHIGAN 48226 (313) 964-3185



1

Q U ESTIO N S PR ESEN TED

1. W hether the use of a racial quota by a municipal govern­
ment should be reviewed under a standard of “ reason­
ableness”  as opposed to the traditional strict scrutiny 
standard of review applicable to all governmentally im­
posed racial classifications?

2. W hether it is permissible for a municipal government to 
impose a 50/50 racial quota for promotions from police 
sergeant to lieutenant where a collectively bargained non- 
discriminatory merit examination process is already in 
place?

3. W hether a municipal government may impose a racial 
quota for promotion to achieve a specified percentage of 
black lieutenants equivalent to the general population 
rather than reflecting the percentage of black employees 
who would have been hired and promoted in the absence of 
past discrimination as shown by relevant labor market 
statistics?

4. W hether a municipal government that has successfully 
eliminated all discriminatory employment practices must 
limit the use of racial preferences to benefit only actual vic­
tims of past discrimination, or is discrimination in favor of 
black employees justified to redress wrongs committed by 
the police force against black citizens many years earlier?



TABLE OF CONTENTS

PAGE

Q U ESTIO N S PR E S E N T E D ........................................  i
TABLE OF A U T H O R ITIES ...................................... iv
O PIN IO N S BELOW .....................................................  viii
JU R ISD IC T IO N  ...............    viii
C O N STITU TIO N A L AND STA TU TO RY

PRO VISION S IN V O L V E D .................................... ix
STA TEM EN T OF T H E  C A S E .................................... 1

A. In troduction ............................................................ 1
B. Description of P a rtie s ............................................  1
C . Procedural H istory ................................................ 2
D. Facts and B ackground..........................................  3
E. Decisions B e lo w .....................................................  7

REASONS FO R G RA N TIN G  T H E  W R I T ...........  9
I. This Case Presents Pervasive Issues of Vital 

National Concern Relating to Racial
Preferences in Public Em ploym ent.................. 9

II. Judicial Review of Governmentally Imposed 
Racial Preferences is Characterized By 
Confusion and C o n flic t.....................................   11

III. The Decisions Below Conflict in Principle 
with Bakke, Weber, and Fullilove, and Squarely 
Collide with the Requirement that the Nature 
of the Violation Must Determine the Scope of
the R em edy............................................................ 14

IV. The Case is Ripe for Review and Presents a 
Fully Developed Record for this Court to De­
cide Appropriate Standards for the Remedial
Use of Race in Public Em ploym ent.................. 22

ii



Ill

C O N C L U SIO N  ..............................................................  24

A P P E N D IX .......................................................................
Opinion O f The United States Court of

Appeals For The Sixth C ircu it............................. . la
Certificate O f Public Importance By The

Attorney General O f The United S ta te s .............  46a

O rder Denying The United States O f America
Leave To In te rv e n e .................................................  47a

Petition For Rehearing And Suggestion O f
Rehearing En Banc .............   51a

O rder Denying Petition For R ehearing....................  77a
Dissenting Opinion From O rder Denying

Rehearing En Banc .................................................  79a
O rder of Judgm ent Affirming District C o u r t ......... 83 a

Opinion O f The U.S. District Court For The
Eastern District of M ic h ig a n ............................. 85 a

Final Opinion O f The U.S. District C o u r t .............  235a
Judgm ent O f The U.S. District Court .......................  255a



IV

TABLE OF A U T H O R ITIES

CASES PAGE

Baker v. City of Detroit, 483 F. Supp. 930
(E.D. Mich. 1979) ............................................... viii

Baker v. City of Detroit, 504 F. Supp. 841
(E.D. Mich. 1 9 8 0 ) ...................................    viii

Bratton v. City of Detroit, 704 F.2d 878 (6th Cir.
1983).......................................................................  viii

Connecticutv. Teal, 457 U.S. 440 (1982).................. 19
Dayton Bd. of Educ. v. Brickman, 433 U.S. 406

(1 9 7 7 ) ....................................................................   18
Detroit Police Officers Ass’n. v. City of Detroit, 233

N .W .2d49(1975)................................................. 2
Detroit Police Officers Ass’n v. Young, 608 F.2d 671

(6thC ir. 1979) ..........................   4,7,22
E.E.O.C. v. American Telephone and Telegraph Co.,

556 F.2d 167 (3d Cir. 1 9 7 7 )...............................  12
Firefighters Institute for Racial Equality v. City of

St. Louis, 616 F .2d 350 (8th Cir. 1980).............  12
Franks v. Bowman Transportation Co., 424 U.S. 747

(1 9 7 6 ) ..............................................   20
Fullilovev. Klutzmk, 448 U.S. 448(1980) .............  passim

Hazelwood School District v. United States, 433 U.S.
2 9 9 ,(1 9 7 7 )................................    16,17

Hill v. Western Electric Co., 596 F.2d 99 (4th Cir.
1979).............      12

In t’l Brotherhood of Teamsters v. United States, 431
U.S. 324(1977)...................    17,21

Kirkland v. New York State Department of Correctional
Services, 520 F.2d 420 (2d Cir. 1975).................. 12



V

Millikenv. Bradley, 418 U.S. 717(1974) ...............  17,19
Minnick v. California Department of Corrections, 452

U.S. 105(1981).....................................................  22
NAACPv. Allen, 493 F .2d614(5thC ir. 1974) . . . 12,13,20

Parker v. Baltimore and Ohio Railroad Co., 652 F.2d
1012 (D .C .C ir. 1981).................    12

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

Sledge v. J.P. Stevens &  Co., 585 F.2d 625
(4thC ir. 1978) ................................................   12

Stotts v. Memphis Fire Dept. (No. 82 -2 2 9 )................ 11
Swann v. Charlotte-Mecklenberg Bd. of Education, 402

U.S. 1(1971).............................. ..........................  17
U.S. v. City of Chicago, 549 F.2d 415 (7th Cir.

1977).......................................................................  12
U.S. V. City of Chicago, 663 F.2d 1354 (7th Cir.

1981)................................................................. .. . 13
U.S. v. City of Miami, 614 F.2d 1322 (5th Cir.

1980) ......................................      12
United Steelworkers of America v. Weber, 443 U.S.

193 (1979 )...............        passim
Valentine v. Smith, 654 F.2d 503 (8th Cir. 1981). . . 12
Williams v. City of New Orleans, 543 F. Supp. 662

(E.D. La. 1982)...........   11
Williams v. City of New Orleans, 694 F.2d 987 

(5th Cir. 1982), rehearing en banc granted,
694 F.2d 998 (1983) ........    11



V I

C O N STIT U T IO N A L PRO V ISIO N

Fourteenth Amendment to the United States
C onstitu tion ...............    passim

FEDERAL STA TU TES

28U .S .C .§  1254(1)................................................. viii
28 U .S.C . §§ 1441 and 1443.................... ............... 2

42U .S .C .§  1983 . . .............    ix.2.21
Title V II Civil Rights Act of 1964, as amended,

42 U .S.C . § 20Q0e etseq .................................  passim

LOCAL STA TU TES

Michigan Public Employee Relations Act,
Mich. Comp. Laws Ann. § 423.201, etseq . . . .  2

Detroit City Charter, § 7-1103 ....................    2
Detroit City Charter, § 7-1114...............   vi,2

M ISCELLA N EO US

Brown, Court-Ordered Racial Discrimination in
‘ A  merica ’s Finest City, ’ ’ 3 Lincoln Rev. 9 (1983) 10

Buzawa, The Role of Race in Predicting Job Attitudes
of Patrol Officers, 9 J. Grim. Just. 63 (1981) . . . .  10

Equal Employment Opportunity Commission,
Eliminating Discrimination in Employment: A
Compelling National Priority (1 9 7 9 )......................  13,20



Schlei and Grossman, Employment Discrimination 
Law (2d ed. 1 9 8 3 ).................... ............................

Sowell, Dissenting from Liberal Orthodoxy (1976) . . .
U .S. Commission on Civil Rights, Affirmative 

Action in the 1980’s: Dismantling the Process of 
Discrimination (1 9 8 1 )............................................

U .S. Commission on Civil Rights, The State of 
Civil Rights: 1979 (1980 )......................................

Williams, America: A Minority Viewpoint ( 1982) . . . 
W ortham, The Other Side of Racism (1981 ).............



V l l l

Petitioners pray that a writ of certiorari issue to review the 
judgm ent of the United States Court of Appeals for the Sixth 
Circuit entered in this case on M arch 29, 1983 and issued as 
mandate on June 21, 1983.

O PIN IO N S BELOW

The opinion of the Court of Appeals is reported as Bratton v. 
City of Detroit, 704 F.2d 878 (6th Cir. 1983), and is reproduced 
at pages l-45a of the Appendix hereto. The consolidated 
M emorandum Opinion of the District Court is reported as 
Baker v. City of Detroit, 483 F. Supp. 930 (E.D. Mich. 1979), 
reproduced at pages 85-234a in the Appendix. The Final opin­
ion of the District Court is reported at 504 F. Supp. 841 (E.D. 
Mich. 1980), set out in the Appendix at pages 235-254a.

The opinion and order of the Court of Appeals denying the 
petition for rehearing en banc and vacating in part the final 
order of the District Court is reproduced at page 77a of the 
Appendix, with the separate dissenting opinion from the 
order denying rehearing en banc at page 79a.

JU R IS D IC T IO N

The Court of Appeals decided and filed its opinion on 
M arch 29, 1983, and denied rehearing on June 3, 1983. By 
order of this Court entered by Justice White on August 8, 
1983, the time for filing this petition was extended to and 
including October 1, 1983. This Court has jurisdiction pur­
suant to 28 U .S.C . § 1254(1) (1976).



I X

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

The provisions of the United States Constitution involved 
in this case are the Equal Protection and Due Process clauses, 
which provide in pertinent part:

No state shall . . . deprive any person of life, liberty, or pro­
perty without due process of law; nor deny to any person 
within its jurisdiction the equal protection of the laws.

The statutory provisions involved include 42 U .S .C . 
§ 1983, as well as sections 703(a), (h), and (j), of Title V II of 
the Civil Rights Act of 1964, as amended, 42 U .S.C . §§ 
2000e-2(a), (h), and (j) (1976) [hereinafter Title VII], pro­
viding in pertinent part:

42 U .S .C . § 1983
Every person who, under color of any statute, ordinance, 
regulation, custom, or usage, of any State . . . causes to be 
subjected, any citizen of the United States . . .  to the depri­
vation of any rights, privileges, or immunities secured by 
the Constitution and laws, shall be liable to the party in­
jured in an action at law, suit in equity, or other proper pro­
ceeding for redress . . . .

42 U .S .C . § 2000e-2
(a) It shall be an unlawful employment practice for an 
employer —

(1) to fail or refuse to hire or to discharge any individual, 
or otherwise to discriminate against any individual with 
respect to his compensation, term s, conditions, or 
privileges of employment, because of such individual’s 
race ..  .; or

(2) to limit, segregate, or classify his employees or ap­
plicants from employment in any way which would 
deprive or tend to deprive any individual of employment



X

opportunities or otherwise adversely affect his status as 
an employee, because of such individual’s race, . . . .

(h) Notwithstanding any other provision of this sub­
chapter, it shall not be an unlawful employment practice for 
an employer to apply different standards of compensation, 
or different terms, conditions, or privileges of employment 
pursuant to a bona fide seniority or merit system . . . pro­
vided that such differences are not the result of any inten­
tion to discriminate because of race . . . ,  nor shall it be an 
unlawful employment practice for an employer to give and 
to act upon the results of any professionally developed 
ability test provided that such test, its administration or ac­
tion upon the results is not designed, intended or used to 
discriminate because of race . . . .

(j) Nothing contained in this title shall be interpreted to re­
quire any em ployer . . . subject to this title to grant 
preferential treatment to any individual or to any group 
because of race . . . of such individual or group on account 
of an imbalance which may exist with respect to the total 
number or percentage of persons of any race . . . employed 
by any employer . . .  in comparison with the total number 
or percentage of persons of such race . . .  in any 
community, State, section, or other area, or in the available 
work force in any community, State, section or other area.



1

STATEMENT OF THE CASE

A. Introduction.
The Police D epartm ent of the City of Detroit consists of 

patrolmen, sergeants, lieutenants, inspectors, commanders, 
deputy chiefs, and ultimately the Chief of Police who is ap­
pointed by the Mayor. As of 1973, and possibly as early as 
1968, the mechanism governing promotions from sergeant to 
lieutenant (a combination of merit examination and seniority 
factors) had no disparate impact on blacks, i. e., blacks were 
being promoted to lieutenants at rates at least equal to their 
rep resen ta tio n  am ong prom otional candidates in the 
sergeants ranks. Although for many years under-represented 
in the Detroit police force, by 1974, in part as a result of affir­
mative action recruiting efforts that began in 1968, blacks 
constituted approximately 11 % of the sergeant ranks.

In 1974, the newly elected administration of M ayor Cole­
man A. Young imposed a strict 50/50 racial quota on, inter 
alia, promotions from sergeant to lieutenant. By order of the 
courts below, this racial preference is to remain in effect at 
least until 1990, and possibly longer, in order to reach an 
ultimate goal of black representation among the lieutenant 
group that mirrors black representation in the city population.

As a result of this racial quota, the black promotion rate to 
lieutenant was in 1974 and continues to be several times the 
promotion rate that would be expected with a racially neutral 
system. Black sergeants with lower examination scores than 
white sergeants are promoted to lieutenant solely because half 
of the promotional opportunities have been guaranteed to 
blacks. Petitioners challenge the decision of the Court of Ap­
peals, which sustained the 50/50 quota in its entirety.

B. Description of Parties.
Petitioners Bratton and other named individuals (Plain­

tiffs/Appellants below) represent a class of adversely affected



2

white male sergeants who, since November of 1975, have 
been or will be denied timely promotion to the rank of lieuten­
ant solely because of their race. The Detroit Police Lieuten­
ants & Sergeants Association is the exclusive bargaining agent 
and the signatory to the collective bargaining agreement with 
the City of Detroit, pursuant to the Michigan Public Em­
ployees Relations Act (PERA), Mich. Comp. Laws Ann. 
(MCLA) § 423.201, et seq.

Respondent Detroit Board of Police Commissioners (the 
“ Board” ) is a five-member body appointed by the Mayor, 
Respondent Coleman A. Young. U nder § 7-1103 of the 
Detroit City Charter, the Board establishes “ policies, rules 
and regulations” for the Police Departm ent “ in consultation 
w ith” the Respondent Chief of Police, ‘ ‘with the approval of 
the M ayor.” Respondent Guardians of Michigan is a minority 
organization which intervened as a Defendant shortly before 
trial.

C. P rocedural H istory.
Petitioners commenced this action in a state circuit court in 

November, 1975. It was subsequently removed to federal 
district court pursuant to 28 U .S.C . § § 1441 and 1443. In­
terim injunctive relief was denied, and the quota has been ap­
plied throughout the litigation and continues to date.

As amended, the complaint alleges that the 50/50 racial 
quota for promotions from sergeant to lieutenant violates 
Title VII, 42 U .S.C . § 1983, and the Fourteenth Amendment 
to the United States Constitution.1 The district court upheld

1 Pendent state claims not addressed below include violations of § 7-1114 
of the Detroit C ity C harter and the collective bargaining agreem ent re­
quiring m erit exam inations for prom otions, as well as violations o f the 
M ichigan Public Employees Relations Act (PERA ), M C LA  423.201, et 
seq. PER A  imposes the obligation of good faith bargaining on all prom o­
tion standards and criteria as a term  and condition of em ploym ent. See, 
Detroit Police Officers A ss’n v. City of Detroit, 233 NW  2d 49 (1975).



3

the quota, and incorporated the program into its final judicial 
decree. See Appendix at 255-261a [hereinafter App.]. The 
Sixth Circuit affirmed on M arch 29, 1983. O n April 28, 1983, 
the United States of America, through the Civil Rights Divi­
sion of the Justice Department, sought leave to intervene as a 
party appellant and to file a suggestion of rehearing en banc. 
The motion was denied on M ay 27, 1983, with Judge M erritt 
dissenting. (App. 47-50a).

The Sixth Circuit denied Petitioner’s Motion for Rehearing 
and suggestion of rehearing en banc per Order dated June 3, 
1983. The O rder also vacated that part of the district court’s 
final O rder incorporating the quota into a judicial decree, and 
remanded for further consideration of the 50 % quota in view 
of the 1980 census showing a Detroit black population of 63 % . 
(App. 78a). Circuit Judge Wellford filed a separate opinion 
dissenting from the denial of rehearing en banc. (App. 79a).

D . Facts and  Background.
The 50/50 quota on promotions to lieutenant was adopted 

by the newly-appointed Board of Police Commissioners in 
June, 1974, as part of a plan designed to remedy the Police 
D epartm ent’s prior discriminatory employment practices and 
to meet what the Board perceived to be an “ operational need’ ’ 
for more black police officers and supervisors. The 50% figure 
was based upon the racial composition of the general popula­
tion of the City of Detroit in 1974. Jo in t Appendix on Appeal 
to the Sixth Circuit at 1237 [hereinafter J .A J . U nder the 
plan, the Police Departm ent allocates 50% of all promotions 
to black employees at every rank and level of the Department.2

2 In  the 1973 M ayoral race, candidate Colem an A. Y oung cam paigned 
on a pledge to the voters of proportional representation between the 
C ity’s work force and the population. (J.A . 1088). Accordingly, when 
the M ayor took office in Ja n u a ry  of 1974, his C hief o f Police adopted as a 
top priority  the im plem entation of a 50/50 racial hiring and prom otional 
policy. (J.A . 1124-25).



4

This case, however, involves only promotions from sergeant 
to lieutenant since November of 1975.3

Prior to the imposition of the racial quota, all sergeants who 
were candidates for promotion to lieutenant were ranked on a 
single list according to numerical ratings based on various 
performance evaluation factors, including individual exam 
scores, oral board scores, educational attainment, seniority, 
and other factors. (App. 152a). Promotions were made in 
rank order from the resulting eligibility list of candidates. 
While the Department did not keep statistics by race prior to 
1973, the district court found that “ there is no question, 
however, that the 1973 and 1974 promotional examinations 
were not themselves discriminatory.’’ (App. 153a). At trial, 
experts for both sides agreed that the 1973 eligibility list was 
racially neutral, and that subsequent promotional exams and 
resulting eligibility lists did not have any disparate impact 
against black candidates.4

The Sixth Circuit’s opinion describes the operation of the 
50/50 racial quota as follows:

The plan mandates that two separate lists for promotion 
be compiled, one for black and the other for white officers. 
The rankings on those lists are then made in accordance 
with the same numerical rating system previously em­
ployed. The promotions are made alternatively from

T he issue of prom otions from patrolm an to sergeant is currently  pend­
ing in the district court upon rem and in the related case of Detroit Police 
Officers A ss’n. v. Young, 608F .2d671 (6th C ir. 1979), cert, denied, 452U .S . 
938 (1981). Unlike the facts here, Young involves an exam ination for pro­
m otions to sergeant which is alleged to have a disparate im pact against 
blacks.

The district court s conclusion that the pre-1973 prom otional exams 
had a disparate im pact on black candidates was inferred from the content 
of the pre-1973 written exam inations. (App. 135-137a).



5

each list so that white and black officers are promoted in 
equal numbers. The 50/50 plan is to remain in effect until 
fifty percent of the lieutenant’s corps is black, an event 
estimated to occur in 1990. (App. 4a).

Although the merit examination process was itself non- 
discriminatory, the 1975 Board cited the imbalance between 
the percentage of black police lieutenants as compared to the 
general population of the City of Detroit. The Board made no 
attempt to provide remedial relief on an individual basis, nor 
did it attempt to define the extent of such past discrimination 
through an analysis of the relevant labor market or labor pool, 
relying instead on general population figures to determine the 
50% goal. (App. 25a). This effort to achieve a racial balance 
in the police department was acknowledged at trial by Chief of 
Police H art, who conceded that the quota was not based upon 
particularized needs, but rather reflected “ the mandate of the 
M ayor, the m an in charge of the City. ” (J.A . 700).

The position of lieutenant is a specialized one, requiring 
several years of experience and well-developed skills. As a 
result, the relevant labor market is substantially narrower 
than the general population. At trial, the City’s own expert5 
attempted to define the relevant labor market to deter­
mine racial disparities, if any, among the lieutenant ranks. 
(App. 139a). Based on an analysis of the relevant labor market 
as derived from a count of actual applications for employment 
with the Department, he estimated the num ber and percent­
age of black lieutenants that could have been expected in an 
environment free of discrimination in both hiring and promo­
tions since 1945. As of June, 1978, his estimate was 49 black

5 M r. A lan Fechter, who is incorrectly identified in the C ourt of Appeals 
opinion as “ Appellants (Petitioners) own statistical expert, M r. Alan 
Fechter” . (App. 27a).



6

male lieutenants out of a total of 194 lieutenants, or 25%. 
(J .A . 1764). In fact, however, there were 41 black male lieu­
tenants out of 194, or 21 % by that date.6 Fechter testified that 
this difference between the expected and actual num ber of 
black lieutenants in 1978 was not statistically significant. 
(J.A . 1044). The district court, however, concluded that this 
was a substantial difference justifying continued application of 
the quota well beyond 1978. (App. 143a).

The following table illustrates the increased numbers of 
blacks at every level of the Department since 1975. W hen the 
quota was implemented in November, 1975, blacks repre­
sented 22 % of total department personnel and 6% of the lieu­
tenant’s ranks, down from 10% two months earlier (J.A. 1537) 
because a disproportionately high number of black lieutenants 
were appointed to the higher ranks of inspector and above 
(J.A . 1538).

Racial Breakdow n of Police C om m and Officers7

____ lieutenants____  Inspectors Commanders & Above
White Black White Black White Black

1975 — 195 (89%) 23 (11%) 47 (84%) 9 (16%) 14 (64%) 8 (36%)
1976 — 161 (90%) 18 (10%) 43 (74%) 15 (26%) 15 (58%) 11 (42%)
1977 — 176 (78%) 51 (22%) 43 (66%) 21 (32%) 17 (63%) 10 (37%)
1978 — 154 (78%) 44 (22%) 38 (60%) 24 (38%) 16 (53%) 13 (43%)
1979 — 145 (77%) 44 (23%) 35 (59%) 23 (39%) 16 (55%) 12 (41%)
1980 — 151 (73%) 56 (27%) 36 (58%) 25 (40%) 15 (54%) 12 (43%)
1981 — 145 (73%) 54 (27%) 32 (56%) 24 (42%) 15 (50%) 14 (47%)
1982 -  138 (72%) 53 (28%) 28 (54%) 23 (44%) 15 (54%) 12 (43%)
1983 — 145 (70%) 62 (30%) 34 (54%) 28 (44%) 16 (52%) 14 (45%)

6 This 21 % figure does not include seven additional black female 
lieutenants in Ju n e , 1978.

7 Source: U pdated statistics subm itted by order to the Sixth Circuit. 
Discrepancies between the num ber of lieutenants above and those set out 
in the Sixth C ircu it’s opinion (App. 17a) are the result of the C o u rt’s in­
clusion of H ispanic and Asian officers as “ w hite” , which were deleted in

(footnotes continued on next page)



7

E. Decisions Below.
The district court found that the selection rates of the com­

petitive merit examination process had no disparate impact 
against black candidates for promotion since such statistics 
were compiled starting in 1973. (App. 153a). It also found 
that the racial classification creating two separate lists for pro­
motion “ is unquestionably a racial preference and unques­
tionably impacts against white officers.” (App. 185a).

Nonetheless, it concluded that the City ‘ ‘acted reasonably 
when it adopted its affirmative action plan. ’ ’ Id. Extending its 
interpretation of United Steelworkers of America v. Weber, 443 
U .S. 193 (1979) to the case of a public employer (App. 201a), 
the district court held that a broad ‘ ‘ area of discretion’ ’ exists 
for employers to design and implement “ voluntary”  affirma­
tive action programs. (App. 192a). The district court then 
concluded that the promotion quota was a “ reasonable” 
effort to remedy the present effects of the C ity’s past inten­
tional employment discrimination, which did not cease until 
1967-1968, when an affirmative action minority recruitment 
p ro g ram  was in s ti tu te d  by the D e p a rtm e n t. (A pp. 
210-211a).8

The Sixth Circuit affirmed. Noting that “ what is valid 
under [the Fourteenth Amendment] will certainly pass muster 
under Title V II” (App. 13a), the Sixth C ircuit’s analysis 
focused solely on the constitutionality of the Board’s 50/50 
promotion quota. The Court of Appeals considered itself 
bound by Detroit Police Officers Ass ’n v. Young, supra, which dealt 
with a similar 50/50 quota on promotions from patrolman to
(footnotes continued from previous page)

the table above. These statistics are on file with the D etroit Police D epart­
m ent Statistical Section, and are published yearly in the D etroit Police 
D epartm ent A nnual Report.

8 T he court also based its holding on Respondents’ contention that the 
D epartm en t’s “ operational needs”  justified im position of the prom o­
tional quota for lieutenants. (App. 226-229a). In a separate final opinion,

(footnote continued on next page)



8

sergeant, (App. 10a, n. 26). The court relied on Young’s 
“ reasonableness’ ’ standard which, according to the Sixth C ir­
cuit, requires an examination of whether any discrete group 
or individual is stigmatized by the racial classification and 
whether racial classifications have been “ reasonably used in 
light of the program ’s remedial objectives.”  (App. 13a, 20a). 
Applying this standard to the instant case, the Court of Ap­
peals concluded that the 50/50 quota (1) did not unduly 
stigmatize anyone (App. 20a-23a), and (2) passed the “ test of 
reasonableness.” (App. 23a). The court found it “ unneces­
sary to address the validity of the operational needs defense to 
affirmative action in this context.” (App. 12a n. 30).

The Court of Appeals held that to the extent to which the 
50/50 quota is excessive as a remedy for past discrimination in 
employment, it can be justified due to a prior “ pattern of 
unconstitutional deprivation of the rights of a specific, iden­
tifiable segment of the Detroit population by white members of 
the segregated Police Departm ent,” and concluded that the 
“ redress of this injury to the black population as a whole 
justifies a plan which goes beyond the. . . work force limitation 
which appellants imply may have been appropriate. ” 
(App. 31a). Judge M erritt, dissenting in part, argued that “ the 
Fourteenth Amendment requires a more exacting standard 
than the open-ended mere ‘reasonableness’ stated by the 
C ourt.” (App. 45a).

In its order denying rehearing, the court vacated that part 
of the district court’s final order holding that the quota was 
constitutionally required at the 50% level, and remanded for 
reconsideration of the quota in light of the 1980 census showing 
a black City population of 63%. (App. 79a). Circuit Judge

(  footnote continued from previous page)
the district court incorporated  the B oard’s prom otional quota for 
lieutenants into a final and m andatory judicial decree, holding that the 
quota was constitutionally required until the 50% black end-goal was 
achieved. (App. 255a-261a).



9

Wellford filed a separate opinion dissenting from the denial of 
rehearing en banc, expressing his view that the court “ inappro­
priately considered the racial breakdown of the Detroit popula­
tion as a whole instead of the racial breakdown of the applicable 
qualified labor pool.” (App. 79a).

REASONS FOR G RANTING T H E  W R IT

I. T H IS  CASE P R E S E N T S  PER V A SIV E  
ISSU ES O F V ITA L N A TIO N A L C O N ­
CERN RELATIN G  TO  RACIAL P R E FE R ­
ENCES IN  PU B LIC  EM PL O Y M E N T .

Although there is substantial litigation in the area of 
municipally imposed racial preferences in public employ­
m ent,9 this Court has dealt only peripherally with these issues 
in three principal cases: Regents of the University of California v. 
Bakke, 438 U.S. 265 (1978); United Steelworkers of America v. 
Weber, supra; and Fullilove v. Klutznik, 448 U .S. 448 (1980). 
None of these cases directly addresses the pervasive issue of 
the applicable parameters of municipal discretion to impose 
racial quotas to remedy perceived past discrimination.

The U .S. Civil Rights Commission has singled out the 
issue of municipal authority to impose racial quotas in public 
employment as a principal unanswered question in affirm­
ative action law, see U .S. Commission on Civil Rights, Affirm­
ative Action in the 1980’s: Dismantling the Process of Discrimination 
28 (1981), and has cited the district court opinion in the in­
stant case as expressing the applicable state of the law on these 
issues. U .S. Commission on Civil Rights, The State of Civil 
Rights: 1979 22-24 (1980). The Attorney General has certified 
“ that the United States has determined this case to be of 
general public im portance.” (App. 46a).

9 See, e.g., B. Schlei and P. Grossm an, Employment Discrimination Law 
775-870 (2d  ed. 1983).



10

Racial preferences, particularly in promotions, substantially 
impact individual citizens. Unbridled racial quotas foster 
community divisiveness, with minority individuals,10 whether 
beneficiaries or not, bearing the stigma of the unearned,11 and 
innocent nonminority individuals harboring sustained resent­
m ent.12 A resolution of the issues in this case will thus impact 
not only the parties herein, but also “ the broader question of 
race relations in the City of Detroit and throughout the United 
States.’’ (App. 88a).

10 T he use of the term  “ m inority” here is generic rather than descrip­
tive. Blacks presently constitute a m ajority of the D etroit population, and 
for nearly a decade have controlled the political apparatus which produced 
and m aintains the quota.

11 Several outstanding black scholars have delivered strong indictments 
against governmentally imposed racial preferences and so-called “ benign” 
discrim ination. See, e.g., A. W ortham , The Other Side of Racism (1981); 
T. Sowell, Dissenting from Liberal Orthodoxy (1976); W . W illiams, America: 
A Minority Viewpoint (1982); an d  S. B row n, Court-Ordered Racial 
Discrimination in America’s Finest City, ” 3 Lincoln Rev. 9 (1983).

12 A 1981 com parative study reveals that white police attitudes in D etroit 
have deteriorated markedly since the im position of racial quotas. Faced 
with lim ited prom otional opportunities and “ alienated from the political 
struc tu re ,”  21 % of the white police officers left the D epartm ent in the 
four year period between 1974-78, which the author characterized as a 
“ massive tu rnover” of white police officers on the force. This situation is 
contrasted with O akland, which does not utilize racial quotas and where 
white police attitudes are dem onstrably better. Buzawa, The Role of Race 
in Predicting Job Attitudes of Patrol Officer, 9 J .  C rim , Ju st. 63 (1981).



11

II. JUDICIAL REVIEW OF GOVERNMENT- 
ALLY IMPOSED RACIAL PREFERENCES 
IS CHARACTERIZED BY CONFUSION 
AND CONFLICT.

No decision of this Court has established parameters in the 
myriad circumstances in which municipalities enact affirm­
ative action plans. Stotts v. Memphis Fire Dept. (No. 82-229), 
679 F.2d 541 (6th Cir. 1982), cert, granted — U.S. — , 51 
U .S.L .W . 3871 (1983), will provide an opportunity to adjudge 
the authority of a federal court under Title VII to require 
racially preferential employee layoffs, but will leave unad­
dressed the constitutionality of racial promotional quotas 
established by municipalities purportedly seeking to remedy 
their own past discrimination.

This Court has never issued a majority opinion setting out 
the constitutional standard for reviewing racial quotas or 
preferences under the Equal Protection Clause. Consequently, 
the circuits have expressed confusion in determining proper 
standards in such cases.13 The Sixth Circuit below noted the 
“ inherent uncertainty of the law in this area’ ’ (App. 36a) and 
rendered its decision despite a perceived absence of agreement 
within this Court “ on the nature of the governmental interest 
which must be at stake, on the finding necessary to establish 
the presence of that interest [and] on the standard under 
which the method employed to achieve that interest is to be 
reviewed.” (App. 9a). Similarly, the Fifth Circuit, citing 
Bakke, complained that “ the Justices have told us mainly that

13 This confusion is illustrated in Williams v. City of New Orleans, in which 
the district court denied a consent decree incorporating racial prom otion 
quotas, 543 F. Supp. 662 (E .D . La. 1982), which denial was reversed and 
rem anded on appeal, 694 F.2d 987 (5th Cir. 1982), and which m andate 
was dissolved and rehearing en banc granted, 694 F. 2d 998 (5th Cir. 
1983).



12

they agree to disagree.” U.S. v. City of Miami, 614 F.2d 1322, 
1337 (5th Cir. 1980). Accord generally, e.g., Valentine v. Smith, 
654 F.2d 503, 508 (8th Cir. 1981); Parker v. Baltimore and Ohio 
Railroad Co., 652 F.2d 1012, 1020 (D .C. Cir. 1981). As a 
result, conflicts among the circuits on issues presented in this 
case are plentiful, including the following:

A. Promotion quotas. The circuits disagree on the propriety of 
imposing racial quotas for promotions. The Fourth Circuit, in 
reversing a public employment promotion quota, noted that 
the relevant labor market for promotions is not the pool of 
potential employment applicants, but rather the smaller pool of 
experienced, qualified employees. Hill v. Western Electric Co., 
596 F.2d 99, 105-06 (4th Cir. 1979). And the Second Circuit, 
recognizing important differences between hiring and promo­
tion quotas in terms of the degree of injuries suffered by inno­
cent persons, reversed such a quota in Kirkland v. New York State 
Department of Correctional Services, 520 F.2d 420, 429 (2d Cir. 
197o). The reasoning of the Second Circuit was specifically re­
jected by the trial court below (App. 195-96a) in upholding 
Respondents 50/50 promotion quota. Other circuits have join­
ed the Sixth Circuit in sustaining promotion quotas. See 
E.E.O.C. v. American Telephone and Telegraph Co., 556 F. 2d 167 
(3d Cir. 1977): U.S. v. City of Chicago, 549 F.2d 415 (7th Cir. 
1977); Firefighters Institute for Racial Equality v. City of St. Louis 
616 F. 2d 350 (8th Cir. 1980).

B. Less harmful alternatives. In Sledge v. j .P . Stevens &  Co., 
585 F .2d 625, 646-47 (4th Cir. 1978), the court reversed a 
remedial decree requiring hiring quotas, noting the existence 
of less burdensome means to achieve equal employment oppor­
tunity. The Fifth Circuit in NAACP v. Allen, 493 F. 2d 614, 621 
(5th Cir. 1974) instructed that quotas may be imposed only 
where less burdensome alternatives have failed. Contrast the 
instant case, in which a rigid 50/50 promotion quota was



13

superimposed on existing hiring quotas and admittedly non- 
discriminatory promotion procedures which provided equal 
opportunity based on merit. While conceding that the 50/50 
ratio “ is unquestionably a racial preference and it unques­
tionably impacts against white officers,” (App. 185a), the 
trial court made no finding that less harmful alternatives had 
failed to provide equal opportunity or were inadequate to 
remove the vestiges of past discrimination over time.

C. Duration. The Fifth Circuit in NAACPv. Allen, 493 F.2d 
at 621, admonished that in the narrow circumstances in which 
a quota is justified, it should seek “ to spend itself as promptly 
as it can by creating a climate in which objective, neutral 
employment criteria can successfully operate.” Accord, Equal 
Employment O pportunity Commission, Eliminating Discrimi­
nation in Employment: A Compelling National Priority III-3 (1979). 
And the Seventh Circuit recognized that failure to modify or 
eliminate racial quotas where they are no longer justified 
results in “ unfairness to innocent individuals.” U.S. v. City of 
Chicago, 663 F. 2d 1354, 1361 (7th Cir. 1981). The Sixth C ir­
cuit below, while terming the quota “ tem porary,” upheld a 
program which will operate for at least sixteen years and not 
spend itself until a balance in the lieutenants’ ranks consistent 
with the general population is reached. Given the C ity’s goal 
of racial balancing, along with rapidly changing demographic 
patterns, it is clear that the quota cannot be fairly character­
ized as temporary in nature.14

These conflicts among the circuits are central to the ques­
tion of the extent to which municipalities may offend the rights 
of innocent nonminority individuals in ostensibly remedying 
past discrimination, and thus commend themselves to this 
Court for resolution.

14 T he C ourt noted that the 1980 census reveals that the black population 
is now 63% (App. 25a, n .41), and rem anded the case to the district court 
in light of the new census figures. (App. 78a).



14

III. T H E  D ECISIO N S BELOW  C O N FL IC T  
IN  P R IN C IP L E  W IT H  B A K K E , W EBER  
A N D  F U L L IL O V E  A N D  SQ U A R E L Y  
C O L L ID E  W IT H  T H E  P R IN C IP L E  
T H A T  T H E  NATURE OF T H E  V IO LA ­
T IO N  M U ST D E T E R M IN E  T H E  SCOPE 
OF T H E  REM ED Y .

The Sixth Circuit sustained a sweeping 50/50 quota which 
places within the municipal “ area of discretion’ ’ (App. 192a) 
the power to use racial preferences much broader than those 
conferred under the remedial provisions of Title VII and the 
permissible parameters of the Equal Protection Clause. If the 
ruling below is not disturbed, major cities throughout the 
country will, like Detroit, have (a) the power to impose class- 
based racial preferences without regard to whether the benefi­
ciaries are actual victims of past discriminatory practices; 
(b) the ability to impose racial preferences on a racially neutral 
merit and seniority system which would otherwise be pro­
tected under § 703 (h) of Title VII; and (c) the ability to dis­
regard procedural safeguard requirements for the protection 
of individual rights and to distort the collective bargaining 
system.

The result below contradicts the teachings of this Court, 
which although not fully dispositive of all the issues presented 
herein,15 nonetheless offer sound general principles with 
which the decisions below conflict. The most obvious and fun­
damental departure from established constitutional principles

15 Weber and Fullilove are distinguishable in im portant respects. For ex­
am ple, Weber was lim ited in scope to a private, collectively bargained 
plan which the C ourt em phasized did not implicate the Fourteenth 
A m endm ent since no state action was involved, 443 US at 200; while 
Fullilove involved an act of Congress, with broad, constitutionally derived 
powers which provide unique authority  to rem edy past discrim ination 
based on carefully developed findings of fact. 448 US at 472-80.



15

is the standard of review adopted by the Sixth Circuit. In 
Bakke, supra, Justice Powell, announcing the judgm ent of the 
Court, clearly articulated the traditional “ strict scrutiny” 
standard of review applicable to all governmentally imposed 
racial classifications:

The guarantee of equal protection cannot mean one 
thing when applied to one individual and something else 
when applied to a person of another color . . . .  Racial 
and ethnic distinctions of any sort are inherently suspect 
and thus call for the most exacting judicial examination. 
438 US at 289-91.
M aintaining that “ the Supreme Court has failed to set out 

a binding standard” (App. 10-1 la , n. 26), the Sixth Circuit 
below flatly rejected strict scrutiny, choosing instead a “ rea­
sonableness” standard, holding that:

One analysis is required when those for whose benefit 
the Constitution was amended . . . claim discrimination.
A different analysis must be made when the claimants 
are not members of a class historically subjected to 
discrimination. (App. 11a).

Petitioners submit that this revisionist interpretation of the 
Fourteenth Amendment not only dictated the result in the in­
stant case, but also creates an alarming precedent by discard­
ing the vital principle that “ if both are not accorded the same 
protection, then it is not equal. Bakke, 438 US at 290.

Announcing the judgm ent of the Court in Fullilove, supra, 
Chief Justice Burger confirmed that any “ preferences based 
on racial or ethnic criteria must necessarily receive a most 
searching examination . . . ” 448 US at 491; and Justices 
Stewart, Rehnquist and Stevens clearly articulated the tradi­
tional striet scrutiny standard in separate dissenting opinions. 
Fullilove, 448 US at 526, 537. The Sixth Circuit disregarded 
Fullilove, terming it “ a plurality decision with little preceden­
tial value.”  (App. 10a). Instead, the Court below explicitly



16

embraced concurring and dissenting opinions in Bakke and 
Fullilove to ascertain applicable constitutional standards. 
(App. 10a).

As applied below, this standard of “ reasonableness” per­
mits the duration of the racial quota to be linked to achieving 
racial parity with the general population rather than the rele­
vant labor market of qualified “ minority members who would 
have been employed (and promoted) by the governmental in­
stitution in question in the absence of discrimination.” (M er­
ritt, dissenting, App. 45a). While purporting to apply the 
teachings of Weber, the Sixth Circuit remanded for recon­
sideration of the 50% quota in view of the general population 
figure of 63% in the 1980 census. (App. 78a). This contrasts 
sharply with Weber, wherein preferential selection of craft 
trainees terminates as soon as the percentage of skilled black 
craft-workers approximates the number of minorities in the 
relevant labor market. 443 US at 209. Indeed, in a separate 
opinion dissenting from the denial of rehearing en banc, Circuit 
Judge Wellford emphasized “ that the District Court, in ap­
proving the affirmative action program in question, inap­
propriately considered the racial breakdown of the Detroit 
population as a whole instead of the racial breakdown of the 
applicable qualified labor pool.” (App. 79a).16

This Court has specifically noted the limited probative 
value of general population figures where the population at 
large does not possess the requisite qualifications for the job in 
question. Hazelwood School District v. United States, 433 US 299

This difference is substantial. Although the general population was 
50% black in 1974, the C ity ’s relevant labor m arket expert estim ated that 
absent discrim ination there should have been 43 black lieutenants in 
1974 out of a total o f 232 lieutenants, a ratio of only 19% . The C ourt of 
Appeals does not mention this finding, but com pare the num ber of 
lieutenants in the table in the opinion at App. 17a with the district court’s 
findings at App. 143a.



17

(1977); In t’l Brotherhood of Teamsters v. United States, 431 US 
324, 399 (1977). As the Court stated in Hazelwood,

W hen special qualifications are required to fill particular 
jobs, comparisons to the general population (rather than 
to the smaller group of individuals who possess the 
necessary qualifications) may have little probative value. 
433 US at 308, n. 13.

The Sixth Circuit flatly misconstrued Hazelwood, con­
cluding without any qualification that “ [tjhe Supreme Court 
has approved the use of racial composition comparisons be­
tween employers work forces and general area-wide popula­
tion as probative of discrimination in employment discrimina­
tion cases . . .” (App. 32a). This misconstruction of Hazelwood 
permitted the Sixth Circuit to sustain the Board’s use of 
general population figures in fashioning its 50/50 quota, 
noting with approval that the Board in choosing this figure 
had ‘ ‘ simply concluded that most police officers in the past had come 
from within the City and that the City was now approximately fifty per­
cent black.’’ (App. 25a, emphasis in original).17

As Justice Powell made clear in Bakke, 438 U.S. at 307, the 
goal of achieving ‘ ‘ some specified percentage of a particular 
group merely because of its race or ethnic origin’ ’ is not con­
stitutionally permissible and constitutes discrimination for its 
own sake. This Court has emphasized that there is neither a 
constitutional necessity nor right to create balances, Milliken v. 
Bradley, 418 US 717, 740-741 (1974), and the goal of racial 
balancing as a remedy has been specifically rejected by the 
Court. See Swann v. Charlotte-Mecklenberg Bd. of Education, 402 
US 1, 24 (1971). O n the contrary, where past discrimination 
is to be remedied, “ the nature of the violation determines the 
scope of the rem edy.’’ Id at 16.

17 It seems obvious that a police force of mostly thirty-year career officers 
cannot possibly keep pace with rapidly changing demographics that went 
from 16% black in 1950 to 63% black in 1980.



18

Instead of determining whether the racial preferences were 
“ precisely tailored”  to remedy past discrimination, the Sixth 
Circuit embraced the use of a racial quota as a form of 
‘ ‘ redress . . . to the black population as a whole. ’ ’ (App. 31a), 
Referring specifically to past discrimination in employment, the 
Sixth Circuit held that “ we do not believe that marginally in­
creasing the percentage of black lieutenants above the figure that 
would exist had hiring been non-discriminatory is an unreasonable 
remedy for redressing this w rong.’’ {Id, emphasis added).

No authority is cited for this “ redress” rationale, which 
conflicts with established case law. Such “ cum ulative” 
remedies were specifically rejected in Dayton Bd. of Educ. v. 
Brinkman, 433 US 406 (1977), in which the Court instructed 
that race-conscious remedies may only be designed to redress 
the difference between the status quo and that which would ex­
ist absent past discrimination, based on specific fact findings.

A permissible remedy must be carefully designed to correct 
past discrimination with due regard for the individuals 
adversely affected by the remedy. Accordingly, when racial 
classifications impinge upon individual rights, the individual 
is entitled to a “ determination that the burden he is asked to 
bear on that basis is precisely tailored to serve a compelling 
governmental interest.” Bakke, 438 US at 299. In Fullilove, 
this requirement was satisfied by the existence of procedural 
safeguards insuring that “ the use of racial and ethnic criteria 
is premised on assumptions rebuttable in the administrative 
process. ’’ 448 US at 489. Contrast the instant case, in which the 
courts below sustained the abrogation of existing procedural 
safeguards specified in § 7-1114 of the Detroit City Charter, 
providing that ‘ ‘ any person having been passed over (for pro­
motion) may appeal to the Board.” (J.A . 1519). The district 
court brushed aside the lack of procedural due process in the



19

Board’s systematic denial of a hearing to individual victims of 
the racial preferences, declaring that:

[t]he purpose of individual appeals is to hear individual 
grievances. The white officers who were bypassed by af­
firmative action were complaining about Board Policy, 
not an injustice unique to them as individuals. (App. 
218a).

The quota thus contains no procedural safeguards to insure 
that beneficiaries are victims of past discrimination, nor does 
it preclude unjust penalization of innocent individuals.18 As a 
result, the Sixth Circuit, in sustaining this class-based quota, 
effectively rejected Chief Justice Burger’s warning against any 
“ program which seeks to confer a preferred status upon a 
non-disadvantaged m inority,” Fullilove, 448 US at 485; as 
well as the requirement that race-conscious affirmative action 
programs must be carefully tailored so that they do not “ stray 
from narrow remedial justifications.” Id  at 487.

This Court has specifically noted that the “ principal focus” 
of Title V II “ is the protection of the individual employee, 
rather than . . . the minority group as a whole.” Connecticut v. 
Teal, 457 US 440, 453-54 (1982), and that remedial efforts 
must be “ necessarily designed . . . to restore the victims of 
discriminatory conduct to the position they would have oc­
cupied absent such conduct.” Milliken v. Bradley, 418 US at 
746. Indeed, Title VII expressly prohibits courts from order­
ing specific affirmative relief for persons who were not actual

18 O ne individual m em ber of the P laintiff class observed over a period of 
tim e several individual black sergeants who were first prom oted to lieu­
tenant ahead of him , and who were later prom oted to  inspector. (J.A . 
236). A t the same time, other individuals were passed over for prom otion 
not once, but two or three times. (J.A . 65).



20

victims of past discrimination. Franks v. Bowman Transportation 
Co., 424 US 747, 774 (1976).19

As a class-based “ remedy” the 50/50 quota inherently 
favors some persons who have never been hindered by dis­
crim inatory employment practices,20 yet these same in­
dividuals are preferred over other individuals in the context of 
a merit examination that otherwise provides an equal oppor­
tunity for each candidate to compete for promotion. This 
equality of opportunity is consistent with equal protection, 
“ for once an environment where merit can prevail exists, 
equality of access satisfies the demand of the Constitution.” 
NAACPv. Allen, 493 F 2d 614, 621 (5th Cir, 1974).

O n this point, the E .E .O .C . instructs that the proper pur­
pose of an affirmative action program “is to overcome previous ex­
clusion, rather than merely to achieve numerical ‘parity .’” 
E .E .O .C ., Eliminating Discrimination in Employment, supra, at 
III-3 (emphasis in original). The Civil Rights Commission 
warns further that race-balancing quotas improperly change 
“ the objectives of affirmative action plans from dismantling 
discriminatory processes to assuring that various groups 
receive specified percentages of resources and opportunities. ’ ’

19 The district court claimed that identification of actual victims of 
discrim ination is impossible in the instant case (App. 155a), yet proceed­
ed to illustrate several particular cases in point, dem onstrating that said 
efforts are indeed feasible. (156a).

20 T o the contrary, some individual beneficiaries of the lieutenants quota 
also benefitted from the same preference in prom otions from patrolm an 
to sergeant. (J .A . 1661, 1686, 1871).



21

U.S. Commission on Civil Rights, Affirmative Action in the 
1980’s, supra, at 31.21

Finally, while the Sixth Circuit purports to apply the 
teachings of Weber, it glosses over the role of the collective 
bargaining agreement which constituted the voluntary affirm­
ative action plan upheld in that case. See, 443 US at 197. The 
instant case, conversely, involves a racial quota for promo­
tions unilaterally imposed on a bona fide equal opportunity 
merit system in derogation of the state law obligation to 
bargain, and which includes procedural safeguards of the type 
described in Fullilove.22

The decision below therefore conflicts with important con­
stitutional principles as well as statutory parameters beyond 
which racial quotas may not be considered “ benign” in any 
real sense. Yet, in the absence of definitive guidance from this 
Court, the decisions below are necessarily viewed as the state 
of the law on these issues.23 It is therefore vital that this Court 
review the statements of law decided below.

21 This C ourt has recognized that Congress, in § 703(h) of T itle V II, 
specifically intended to protect seniority systems from being distorted by 
racial preferences. See, In t’l Brotherhood of Teamsters v. United States, 431 US 
324 (1977). On its face, § 703(h) also protects “ professionally developed” 
merit systems such as the promotional process in the instant case. 42 USC 
§ 2000e-2(h).
22 Unlike Fullilove, which involved an Act of Congress based on broad 
constitutionally derived powers, the City of D etroit is a public entity in­
com petent to make unilateral decisions regarding police prom otions 
under the collective bargaining requirem ents of M ichigan law {see, 
PE R  A, supra, n . l) .  A nd unlike the carefully developed findings of fact in 
Fullilove, 448 US at 472-80, the B oard’s “ fact findings” were limited to 
one public m eeting and no formalized findings of past discrim ination. 
( J . A. 1129-31).

23 See, e.g. Schlei & G rossm an, Employment Discrimination Law, 854-62 (2d 
ed 1983).



2 2

IV. THE CASE IS RIPE FOR REVIEW AND 
PRESENTS A FULLY DEVELOPED  
RECORD FOR THIS COURT TO DECIDE 
APPROPRIATE STANDARDS FOR THE 
REMEDIAL USE OF RACIAL PREFER­
ENCES IN PUBLIC EMPLOYMENT.

In contrast to the unsettled records and procedural prob­
lems in other similar cases that have come before this C ourt,24 
this case presents to the Court a final Court of Appeals deci­
sion based on a fully developed record. Issues fully developed 
in the record evidence include:

(1) a comprehensive relevant labor market analysis 
derived from a laborious count of actual applications for 
employment with the Department over a three-year period, 
1971-1973;

(2) an analysis of the competitive merit selection ex­
amination process, with findings on the selection rates of 
that process concurred in by experts for both sides;

(3) a detailed history of the affirmative action effort in 
the Department commencing in 1967 with special recruit­
ment efforts and the elimination of disproportionate stan­
dards, and progressing through the use of racial preferences 
for hiring and, finally, in promotions;

24 For example, in Minnick v. California Department of Corrections, 452 US 
105 (1981), the state court decision was held not final and certiorari was 
dismissed. In Detroit Police Officers A ss’n v. Young, supra, n. 3, the record 
was unsettled because the Sixth C ircuit reversed the district court’s deci­
sion holding the racial preferences for prom otion to sergeant unconstitu­
tional, and rem anded for a new trial under standards inconsistent with 
the opinion.



23

(4) studies and testimony from police professionals on 
the question of race as a bona-fide occupational qualifica­
tion in a modern police department; and

(5) on the issue of “ benign” discrimination, expert 
testimony and the testimony of several individual members 
of the Plaintiff class, including their experiences and feel­
ings in dealing with the racial preferences.

The record is thus one on which this Court may solidly base a 
decision regarding the permissible parameters of municipal 
racial preferences in public employment.



24

CONCLUSION

The instant case presents im portant and topical issues of 
vital nationwide significance, in a m anner ripe for resolution. 
It is respectfully urged that this Court agree to hear this case 
and resolve the questions presented herein.

Respectfully submitted,

R a m s d e l l , O a d e  &  F e l d m a n  
/s / K. Preston Oade, J r . (P28506) 
Counsel of Record for Petitioners 
25130 Southfield R d., Ste. 100 
Southfield, Michigan 48075 
(313) 552-9400

M o u n t a in  S t a t e s  L e g a l  F o u n d a t io n  
by: Fred D. Fagg, III

William H. Mellor III 
Clint Bolick 

Co-Counsel
1200 Lincoln Street, Ste. 600 
Denver, Colorado 80203 
(303) 861-0244

Dated: September 30, 1983