United States v. Paradise, Jr. Brief for Petitioner

    No. 85-999

3ht %  Bvaptm? Olimrt o f  %  HUmteb S ta te s
October Term, 1986

U nited States of A merica, petitioner

v.

Phillip Paradise, Jr., et al .

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

Charles Fried 
Solicitor General

W m . Bradford Reynolds 
Assistant Attorney General

A lbert G. Lauber, Jr.
Deputy Solicitor General

Michael Carvin
Deputy Assistant Attorney General 

Roger Clegg
Assistant to the Solicitor General

W alter W . Barnett 
David k . Flyn n  
Clint Bolick 

Attorneys
Department of Justice 
Washington, D.C. 20530 
(202) 633-2217



QUESTION PRESENTED

Whether the one-black-for-one-white promotion 
quota adopted by the district court, and sustained 
by the court o f appeals, is permissible under the equal 
protection guarantees of the Fourteenth and Fifth 
Amendments to the United States Constitution.

(i)



II

PARTIES TO THE PROCEEDINGS

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



TABLE OF CONTENTS
Page

Opinions below ............   1
Jurisdiction ..............    1
Statement..............................................................................  2
Introduction and summary of argument........................  15
Argument:

The one-black-for-one-white promotion quota or­
dered by the district court is not narrowly tai­
lored to achieve a compelling governmental inter­
est, and it is therefore unconstitutional under the 
equal protection guarantees of the Fifth and Four­
teenth Amendments ....................................................  17
A. A racial classification must be narrowly tai­

lored to achieve a compelling governmental 
interest in order to satisfy strict constitutional
scrutiny ................................................................... 17

B. The promotion quota ordered by the district 
court is not narrowly tailored to remedy the 
Department’s past discrimination............... ...... 21

C. Promotion quotas like that ordered by the dis­
trict court cannot be justified as “ catch-up” 
measures designed to accelerate the achievement
of racial proportionality or balance..... .............. 30

D. The one-for-one promotion quota, whatever its 
purpose, unnecessarily and severely burdens 
innocent persons, and it therefore fails to sat­
isfy strict scrutiny.............................. ................ 36

Conclusion ..... ....................................................................... 42

TABLE OF AUTHORITIES
Cases:

Albermarle Paper Co. v. Moody, 422 U.S. 405.... 25
Baker v. City of Detroit, 483 F. Supp. 930 ...........  25
Bazemore v. Friday, No. 85-93 (July 1, 1986).... 34

( m )



Cases—Continued:
IV

Page
Bridgeport Guardians, Inc. v. Members of Bridge­

port Civil Service Comm’n, 482 F.2d 1333------
Clady v. City of Los Angeles, 770 F.2d 1421------
Connecticut v. Teal, 457 U.S. 440 ............... *...........
Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406—.
DeFunis v. Odegaard, 416 U.S. 312.........................
Dunn v. Blumstein, 405 U.S. 330............................
Firefighters v. Cleveland, No. 84-1999 (July 2,

1986) ..........................................................................
Firefighters Local Union No. 178U v. Stotts, 467

U.S. 561 ....................................................13, 15, 17, 39,
Franks v. Bowman Construction Co., 424 U.S.

747..............................................................................
Fullilove V. Klutznick, 448 U.S. 448..... 18,19, 20, 37, 38,
Hishon v. King & Spaulding, 467 U.S. 69.... .......
Kirkland v. New York State Dep’t of Correctional 

Services, 520 F.2d 420, cert, denied, 429 U.S. 823- 
Kramer v. Union Free School District, 395 U.S.

621 .............................................................................
McLaughlin v. Florida, 379 U.S. 184.....................
Milliken v. Bradley:

418 U.S. 717 ........................................................
433 U.S. 267 ........................................................

NAACP V. Allen, 340 F. Supp. 703, aff’d, 493 F.2d
614 .............................................................. 2,21,25,35,

Palmore v. Sidoti, 466 U.S. 429............ .................
Paradise v. Prescott, 580 F. Supp. 171 ...................
Paradise v. Shoemaker, 470 F. Supp. 439 ............ 3,21,
Pasadena City Bd. of Educ. v. Spangler, 427 U.S.

424..............................................................................
Regents of the University of California v. Bakke,

438 U.S. 265.................................................-16,18, 31,
Shapiro v. Thompson, 394 U.S. 618..........................
Sheet Metal Workers v. EEOC, No. 84-1656 (July

2, 1986).............................— 16, 25, 29, 31, 32, 33, 39,
Sledge v. J.P. Stevens & Co., 585 F.2d 625, cert.

denied, 440 U.S. 981...............................................
Spencer v. Kugler, 404 U.S. 1027.................. ... ......
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402

U.S. 1 - ......................................................................  33,
Teamsters v. United States, 431 U.S. 324 ............... 26,

41
25
25
34
37
19

20

41

40
42
40

41

19
19

33
34

40
19
9

36

33

37
19

41

41
33

34
37



Cases—Continued:
v

Page
United Jewish Organizations v. Carey, 430 U.S.

144 .............................................................................  37
United States v. City of Chicago, 663 F.2d 1354.... 26, 41
United Steelworkers v. Weber, 443 U.S. 193.......  11, 23
Vuyanvich v. Republic Nat’l Bank, 505 F. Supp.

224 .............................................................................. 25
Washington v. Davis, 426 U.S. 229.............................  34
Wygant v. Jackson Board of Education, No. 84-

1340 (May 19, 1986) ................................................passim
Yick Wo v. Hopkins, 118 U.S. 356 ........................... 18

Constitution, statute and regulations:
U.S. Const.:

Amend. V ...............................................................  17
Amend. XIV (Equal Protection Clause) .........  14,17

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e
et seq............................................ ....................14,15, 28, 29

§ 706 (g ) , 42 U.S.C. 2000e-5 (g) ........................ 20
29 C.F.R.:

Section 1607...........................................................  5
Section 1607.1 (B )................   5
Section 1607.4(D)—.............................................. 7,10

Miscellaneous:
K. Abraham & J. Medoff, National Bureau of Eco­

nomic Research, Years of Service and Probabil­
ity of Promotion (1983) ........................................

Bureau of Labor Statistics, Current Population
Survey (Jan. 1983) ...... .........................................

Ely, The Constitutionality of Reverse Racial Dis­
crimination, 41 U. Chi. L. Rev. 723 (1974)........

Fallon & Weiler, Firefighters v. Stotts: Conflict­
ing Models of Racial Justice, 1984 Sup. Ct. Rev.
1 ................................................................................

Posner, The DeFunis Case and the Constitutional­
ity of Preferential Treatment of Racial Minor­
ities, 1974 Sup. Ct. Rev. 1 ...... ............................... 37-38

Uniform Guidelines on Employee Selection Pro­
cedures, 43 Fed. Reg. 38290 (1978)........... 5, 6, 9,10,12,

13, 25, 28

40

40

20



Jn %  Bnpvmt OJmtrt of %  IKnttfth States
October Term , 1986

No. 85-999

United States of A merica, petitioner

v.

Phillip Paradise, Jr., et al .

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion o f the court of appeals (Pet. App. la - 
54a) is reported at 767 F.2d 1514. The order and 
memorandum opinion of the district court (Pet. App. 
55a-64a; J.A. 128-137) are reported at 585 F. Supp. 
72.

JURISDICTION

The judgment of the court of appeals (Pet. App. 
83a-84a) was entered on August 12, 1985. On No­
vember 5, 1985, Justice Powell extended the time

(1 )



2

within which to file a petition for a writ o f certiorari 
to and including December 10, 1985. The petition 
was filed on that date and was granted, limited to 
the third question presented, on July 7, 1986 (J.A. 
178). The jurisdiction of this Court is invoked under 
28 U.S.C. 1254(1).

STATEMENT

1. This dispute arises from a lawsuit challenging 
discrimination in hiring by the Alabama Department 
of Public Safety (the Department). The original 
class action was brought by the NAACP in January 
1972. The United States was joined as a party plain­
tiff, and Phillip Paradise, Jr., was permitted to in­
tervene on behalf of a class o f black plaintiffs (Para­
dise) shortly thereafter (Pet. App. 3a).

In 1972, the district court held that the Depart­
ment had violated the Fourteenth Amendment by 
“ engag[ingi] in a blatant and continuous pattern 
and practice of discrimination in hiring.”  NAACP 
v. Allen, 340 F. Supp. 703, 705 (M.D. Ala.) (re­
printed at J.A. 23). This finding of discrimination 
was based in part upon the “ unexplained and unex­
plainable”  fact that “ [I]n  the thirty-seven-year his­
tory of the patrol there has never been a black 
trooper and the only Negroes ever employed by the 
[D epartm ent have been nonmerit system laborers.”  
Ibid. The court ordered the Department to hire one 
black trooper for each white trooper hired until 
blacks comprised approximately 25% of the state 
trooper force. 340 F. Supp. at 706 (reprinted at 
J.A. 27). The court directed that “ eligible and pro­
motional registers heretofore used for the purpose of 
hiring troopers be * * * abrogated,”  and it enjoined 
the Department from “ engaging in any employment



practices, including * * * promotion * * *, for the 
purpose or with the effect o f discriminating against 
any employee * * * on the ground of race or color. ” 
340 F. Supp. at 706-707 (reprinted, at J.A. 27-28). 
The court o f appeals affirmed the district court’s 
order. 493 F.2d 614 (5th Cir. 1974).

In 1975, the district court granted supplemental 
relief to the plaintiffs. It found that the Department, 
“ for the purpose of frustrating or delaying full re­
lief to the plaintiff class, [had] artificially restricted 
the size o f the trooper force and the number of new 
troopers hired”  (J.A. 34). The court enjoined the 
Department from engaging in such conduct and 
ordered it to file status reports concerning its prog­
ress in hiring blacks (id. at 35, 36).

In 1979, the Department sought clarification o f the 
district court’s 1972 order, “ ask[ing] whether the 
[25%!] hiring quota applies to the entire state trooper 
force or just to entry-level troopers.”  Paradise v. 
Shoemaker, 470 F. Supp. 439, 440 (M.D. A la .). The 
Department pointed out that its “ promotion policy 
prohibits lateral hiring and requires advancement 
through the ranks.”  Because the 1972 order “ did not 
impose promotional quotas,”  the Department said, 
“ the ratio o f blacks in entry-level positions must ap­
proach 37.5 percent”  in order for the overall trooper 
force to be 25% black. 470 F. Supp. at 441. The dis­
trict court responded that the 1972 order requiring 
25% black representation in the trooper force un­
ambiguously “ refers to the entire force of sworn offi­
cers, not just to those in the entry-level rank,”  and it 
ruled that the “ law of the case”  doctrine barred re­
consideration of that issue ('ibid.). In this regard, the 
court held:



4

To modify this order would be to do less than 
the law requires, which is to eradicate the con­
tinuing effects o f 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 dis­
crimination is that, as of November 1, 1978, out 
o f 232 state troopers at the rank o f corporal or 
above, there is still not one black. The [hiring] 
quota fashioned by the Court provides an im­
petus to promote blacks into those positions. To 
focus only on the entry-level positions would be 
to ignore that past discrimination by the Depart­
ment was pervasive, that its effects persist, and 
that they are manifest.

470 F. Supp. at 442 (emphasis in original). See J.A. 
63; Pet. App. 10a-12a. The district court accordingly 
denied the Department’s motion for supplemental re­
lief (470 F. Supp. at 442).1

2. In 1979, after Paradise had moved for supple­
mental relief, the parties entered into a consent de­
cree that for the first time addressed the issue o f 
promotions. The Department generally agreed to 
“have as an objective * * * an employment and pro­
motion system that is racially neutral”  (J.A. 37)

1 The Department since 1975 has consistently complied with 
the one-for-one hiring quota. As of April 1983, the overall 
trooper force was “ approximately 22%-23% black” (J.A. 62). 
Since the opinion below was issued, the percentage of blacks 
in the overall trooper force has apparently reached parity 
(25% ). Accordingly, the defendants recently filed with the 
district court a motion requesting rescission of the hiring 
quota. See Defendants’ Motion for Relief of Judgment (May 
12, 1986).



5

and “ not to engage in any act or practice which has 
a purpose or effect of unlawfully discriminating 
against blacks * * * [or] which discriminates on the 
basis o f race in hiring, promotion, upgrading, train­
ing, assignment [or] discharge”  (id. at 38). With 
respect to promotions, the Department agreed “ to 
have as an objective the utilization of a promotion 
procedure which is fa ir to all applicants and which 
promotion procedure when used either for screening 
or ranking will have little or no adverse impact upon 
blacks seeking promotion to corporal”  (id. at 40).

In pursuit of these general objectives, the Depart­
ment specifically agreed “ to utilize a promotion pro­
cedure which is in conformity with the 1978 Uniform 
Guidelines [on Employee]  Selection Procedures, 43 
Fed. Reg. 38290, and which, in addition, when used 
either for screening or ranking will have little or no 
adverse impact on blacks seeking promotion to cor­
poral”  (J.A. 40).2 The Department pledged to for­
mulate a promotion procedure for the position of 
corporal that would be submitted for the plaintiffs’ 
review and the court’s approval “ no later than one 
year from the signing o f th[e] Consent Decree” —  
that is, by February 16, 1980 (id. at 40, 45). Once a 
new procedure for promotion to corporal had been 
validated, the Department agreed that it would “ be­
gin validation of a promotional procedure for the posi­
tion of sergeant and, in turn, for the positions of

2 The Uniform Guidelines, currently set forth at 29 C.F.R. 
1607, are a joint pronouncement of the EEOC, the Depart­
ment of Justice, the Department of Labor, and the Civil 
Service Commission. The Guidelines “ are designed to provide 
a framework for determining the proper use of tests and other 
selection procedures” to ensure nondiscrimination. 29 C.F.R. 
1607.1(B).



6

lieutenant, captain, and major” (id. at 41). As an 
interim measure, the parties agreed to use the state 
merit system for all promotions to corporal (ibid.). 
The interim procedure was elaborated in a side agree­
ment among the parties (id. at 46-48), and, pursuant 
to the consent decree and that agreement, we under­
stand that four black troopers and six white troopers 
were promoted to corporal in February 1980. See id. 
at 46-48, 62.

8. In April 1981, some two years after the sign­
ing o f the consent decree, the Department proposed a 
selection procedure for promotion to corporal and 
requested that the district court approve it.3 The 
United States and Paradise filed a joint response 
objecting to the Department’s proposal, maintaining 
that the examination had not been validated in ac­
cordance with the Uniform Guidelines and that its 
use would not be justified if  the results had an “ ad­
verse impact” on black applicants (Pet. App. 12a; 
J.A. 50). In the hope of expeditiously establishing 
an acceptable promotion procedure, however, the par­
ties, including the United States, entered into a sec­
ond consent decree in August 1981 (J.A. 49-54). The 
parties thereby agreed that the proposed corporal’s 
examination would be administered and scored; that 
the scores would be used in conjunction with other 
factors to rank applicants on a promotion register; 
and that the promotion register would “ be reviewed to 
determine whether the selection procedure has an ad­
verse impact against black applicants”  (id. at 51).

3 The proposed promotion procedure was composed of four 
components, weighted as follows: written examination (60% ), 
length of service (10% ), supervisory evaluation (20% ), and 
service ratings (10% ). See J.A. 55-57; Pet. App. 12a & n.8.



7

The parties further agreed that the determination 
of whether the proposed procedure had an “ adverse 
impact”  would be “measured by the ‘four-fifths rule’ 
set forth in * * * the Uniform Guidelines”  (J.A. 52). 
Under the “ four-fifths rule,”  the proposed promotion 
procedure would be judged to have an adverse impact 
on blacks if  it produced a selection rate for black 
applicants that was less than 80% of the selection 
rate for white applicants. See 29 C.F.R. 1607.4(D). 
I f  the proposed procedure turned out to have such an 
“ adverse impact,”  the Department was to come up 
with an alternative procedure for making promotions 
to corporal “ in a manner that does not result in 
adverse impact for the initial group of promotions 
or cumulatively”  (J.A. 52, 53). I f  the proposed pro­
cedure proved unsatisfactory and the parties were 
unable to agree on a new procedure, the matter was 
to be “ submitted to the [cjourt for resolution”  (id. 
at 53). No further promotions to corporal were to 
be made until a satisfactory procedure was put in 
place (ibid.).

In accordance with the consent decree, the Depart­
ment in October 1981 administered its written cor­
poral’s examination to 262 applicants, of whom 60 
(or 23% ) were black (Pet. App. 14a; J.A. 119). A  
promotion register was prepared based on the exam­
ination results and the other relevant factors. See 
page 6 & note 3, swpra. Of the 60 blacks who took the 
test, only five were listed in the top half o f the reg­
ister and the highest-ranked black was number 80 
(Pet. App. 14a; J.A. 119). Rank-ordered use of the 
register would thus have resulted in no blacks being 
promoted to corporal even if  79 troopers were pro­
moted (J.A. 120). In June 1982, the Department 
advised the United States that there was a current



8

need for eight to ten promotions to corporal, and 
that a total of 16 to 20 corporal promotions were ex­
pected to be made from the 1981 register before the 
formulation of a new list (Pet. App. 14a). The 
United States objected to rank-ordered use o f the 
1981 register, contending that “ such use would result 
in substantial adverse impact on black applicants,”  
and suggested that the Department should submit an 
alternative proposal for making promotions in con­
formity with the 1979 and 1981 consent decrees (id. 
at 14a-15a). No such proposal was submitted, and 
no promotions were made, during the next nine 
months.

4. In April 1988, Paradise moved the district 
court for an order enforcing the terms of the two 
consent decrees (Pet. App. 15a; J.A. 58). He urged 
that the selection procedure for corporals adminis­
tered in 1981 had had a demonstrably adverse impact 
on black applicants (Pet. App. 15a; J.A. 60), and 
he sought an order directing the Department to com­
ply with the consent decrees by implementing accept­
able promotion procedures, both for the rank of cor­
poral and for the higher ranks (id. at 58). He also 
sought an order directing the Department immedi­
ately “ to promote qualified blacks to the corporal 
position at a rate that does not result in adverse im­
pact and which is within the spirit of * * * the par­
ties’ consent decrees”  (id. at 59). Specifically, refer­
ring to the hiring quota imposed in 1972, Paradise 
submitted that “ blacks should be promoted to cor­
poral at the same rate at which they have been 
hired, 1 for 1, until such time as the defendants im­
plement a valid promotional procedure”  (id. at 62). 
Paradise argued that a promotion quota would “ en­
courage defendants to develop a valid promotional



9

procedure as soon as possible”  and would “help to 
alleviate the gross underrepresentation of blacks in 
the supervisory ranks of the Department”  (ibid.).

The United States agreed that the consent decrees 
should be enforced by ordering some promotions, stat­
ing that the Department’s failure to come up with 
a promotion plan in conformance with the consent 
decrees “ suggests that a pattern of discrimination 
against blacks in the Department * * * may be con­
tinuing”  (Pet. App. 15a-16a & n.10). The United 
States opposed, however, the imposition of a one- 
black-for-one-white promotion quota as a method of 
enforcing the consent decrees (ibid.). Four white 
troopers moved to intervene on behalf o f a class (in- 
tervenors) composed of the top-ranked white appli­
cants on the 1981 promotion register (J.A. 81-87). 
They urged principally that the 1981 corporal’s exam 
had been administered “ in a racially neutral and non- 
discriminatory manner”  and that its results should 
be effectuated (id. at 107).

In an order entered October 28, 1988, the district 
court agreed with the United States and Paradise 
that the 1981 promotion procedure was unacceptable 
under the consent decrees because it had an “ adverse 
impact”  on black applicants. Paradise v. Prescott, 
580 F. Supp. 171 (M.D. Ala.) (reprinted at J.A. 
117-124). The court noted that the Department 
“ need[ed] additional corporals and * * * need[ed] 
at least 15 of them as soon as possible”  (J.A. 119). 
Applying the “ four-fifths rule”  of the Uniform Guide­
lines, the court observed that, if  the 1981 promotion 
register were used in rank order, “ 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 % ” 
(J.A. 120). Pointing out that “ [z]ero is, of course,



10

less than four-fifths of 7.4,”  the court suggested that, 
“ [s]hort 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).4 The court ordered the Department to submit, 
by November 10, 1983, “ a plan to promote to cor­
poral, 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 duly filed 
with the court a proposal to promote 15 troopers to 
the rank of corporal, o f whom 11 (or 73% ) would 
be white and four (or 27% ) would be black (J.A. 
125-126). In support of this proposal, the Depart­
ment stated that it had “ an immediate need for at 
least fifteen * * * Corporals,”  that “ this percentage of 
blacks to whites reflects the percentage of blacks to 
whites who took the Corporal’s examination,”  and

4 The Department and the intervenors contended that rank- 
ordered use of the 1981 promotion register would not work an 
“ adverse impact”  under the four-fifths rule, noting the Guide­
lines’ caveat that “  [g] reater differences in selection rate may 
not constitute adverse impact * * * where special recruiting or 
other programs cause the pool of minority * * * candidates 
to be atypical” (29 C.F.R. 1607.4(D)). The Department 
argued “that the one-to-one hiring ratio for state troopers is 
a ‘special program’ which has resulted in an atypical pool 
because black troopers scored lower on a ‘hiring test’ than did 
white troopers” (J.A. 121). The district court rejected this 
argument, agreeing with the United States and Paradise that 
a hearing was unnecessary on this question and that the 
Department’s proffered evidence was “an unacceptable basis 
[on which] to rest a claim of atypicality” (ibid.). The court 
stated that “ [t]he hiring test, to which the defendants wish 
to link their promotion procedure, has not been subjected to 
an adverse impact determination, nor has it been validated” 
(ibid, (footnote omitted)).



11

that this proposal would meet “ the requirements of 
the four-fifths rule of the Uniform Guidelines con­
cerning adverse impact”  (ibid.). The Department 
pledged to cooperate with the Alabama Department 
of Personnel to develop a permanent procedure for 
promotion to corporal “ as soon as possible”  (id. at 
126). The United States did not oppose the Depart­
ment’s proposal, but Paradise continued to insist upon 
a one-for-one promotion quota (Pet. App. 18a-19a).

5. On December 15, 1983, the district court 
granted Paradise’s motion to enforce the consent de­
crees (J.A. 128-129). As Paradise had requested, the 
court imposed a quota requiring the Department “ to 
promote from this day forward, for each white 
trooper promoted to a higher rank, one black trooper 
to the same rank, if there is a black trooper objec­
tively qualified to be promoted to the rank” (id. at 
128). The court ordered this promotion quota to 
“ remain in effect as to each trooper rank above the 
entry-level rank until either approximately 25% of 
the rank is black or the [Department has] developed 
and implemented a promotion plan for the rank 
which meets the prior orders and decrees of the court 
and all other relevant legal requirements”  (ibid.). 
The court found that the quota was necessary to cure 
“ racial imbalances in the upper ranks” (id. at 135) 
and that it was “ reasonable”  under United Steelwork­
ers v. Weber, 443 U.S. 193 (1979). See J.A. 135-136. 
The court said that the Department “ ha[d] the pre­
rogative to end the promotional quotas at any time, 
simply by developing * * * promotion procedures”  
in compliance with the consent decrees, so that the 
quota might prove “ to be a one-time occurrence” 
(J.A. 136). Finally, the court ordered the Depart­
ment to submit within 35 days “ a schedule for the



12

development of promotion procedures for all ranks 
above the entry-level position” (J.A. 129). The De­
partment, the intervenors, and the United States 
appealed from the December 13, 1983, order.

In February 1984, eight blacks and eight whites 
were promoted to corporal under the quota (Pet. 
App. 22a). The Department filed its schedule with 
the court as required, pledging to develop an accept­
able procedure for promotion to corporal within five 
months (Pet. App. 45a; J.A. 151). The Depart­
ment duly submitted its proposal on June 19, 1984, 
and moved the district court to approve it (Pet. App. 
45a-47a; J.A. 144-145). The United States expressed 
the view that the proposed procedure would not have 
an “ adverse impact” upon black applicants and hence 
was acceptable under the consent decrees (Pet. App. 
48a; J.A. 159-161). The other parties, except for the 
intervenors, agreed with that assessment (see Pet. 
App. 48a; J.A. 146-150, 157).

On July 27, 1984, the district court ruled that the 
Department could promote up to 13 troopers to cor­
poral in accordance with the newly proposed selection 
procedure (J.A. 163-164). The one-for-one promo­
tion quota was temporarily suspended for that pur­
pose (id. at 164). The court retained jurisdiction to 
decide whether future uses of the selection procedure 
for corporals were similarly without an “ adverse 
impact”  on blacks, and it ordered the parties to pro­
ceed with discovery to determine whether the proce­
dure could be validated as job-related under the Uni­
form Guidelines (ibid.). A fter the intervenors’ mo­
tion for a stay was denied (id. at 167-175), 13 troop­
ers were promoted to corporal, o f whom three were 
black and ten were white. See Pet App. 47a; J.A.



13

160. The intervenors alone appealed from the July- 
27, 1984, order (Pet. App. 48a; J.A. 165).5

6. The court of appeals consolidated the various 
appeals from the district court’s December 15, 1983, 
order and the intervenors’ appeal from the July 27, 
1984, order and affirmed the district court in all re­
spects (Pet. App. la -54a). The court first rejected 
the appellants’ contention that the district court, in 
ordering the one-black-for-one-white promotion quota,

5 On August 16, 1984, after the district court had issued its 
order respecting promotions to corporal, the Department, 
pursuant to the agreed-upon schedule, submitted its proposed 
procedure for promotion to sergeant (J.A. 176). The 
district court ruled that the Department could promote up 
to 13 sergeants pursuant to that procedure, and it temporarily 
suspended the one-black-for-one-white quota for that purpose 
(Pet. App. 53a-54a n.19; J.A. 176-177). Promotions were made 
to sergeant (as they were previously made to corporal) from 
a “ best qualified” list, on which two of thirteen candidates for 
sergeant were black. The one-for-one promotion quota has 
thus been applied in actual practice only once, and the question 
of the quota’s constitutionality has limited retrospective im­
portance since its invalidation could not lead to demotion of the 
eight blacks promoted under it. See Firefighters Local Union 
No. 178U v. Stotts, 467 U.S. 561, 579 n .ll (1984). As we noted 
in our petition (at 7 n.3), however, the case is far from moot, 
because imposing the quota has continuing prospective effects. 
Although the quota has been temporarily suspended for pro­
motions to corporal and sergeant, it could apply again if those 
selection procedures in the future produce an “adverse impact” 
on blacks or if they cannot be validated under the Guidelines. 
And while the quota does not now apply to promotions to 
ranks above sergeant because of the current absence of objec­
tively qualified black applicants for such positions (Pet. App. 
53a-54a n.19), the quota will eventually apply to such promo­
tions unless the Department develops acceptable selection pro­
cedures for those ranks. We discuss the continuing effects of 
the quota at page 24, infra.



14

had “ improperly modified, rather than enforced, the 
1979 and 1981 [Consent] Decrees”  (Pet. App. 23a). 
The court interpreted the consent decrees to bar an 
“ adverse impact”  only against blacks, and not against 
whites, seeking promotion (id. at 25a-26a). The 
court accordingly held that “ the district court, faced 
as it was with the Department’s representation that 
promotions needed to be made immediately, did not 
* * * exceed the relief authorized by those decrees 
when it granted plaintiffs’ motion to enforce”  (id. 
at 27a (footnote om itted)).

The court of appeals then held that the one-for-one 
promotion quota violated neither Title VII (Pet. App. 
28a-35a), nor the Equal Protection Clause (id. at 
35a-42a). On the constitutional issue, the court up­
held the quota because o f “ the long history of dis­
crimination in the Department”  (id. at 39a) and be­
cause “ the relief now at issue was designed to rem­
edy the present effects o f past discrimination”  (id. 
at 40a). The court concluded that the promotion 
quota was “ substantially related to the objective of 
eradicating [those] effects”  and that it extended no 
further than necessary to remedy the “ longstanding 
racial imbalances in the upper ranks of the Depart­
ment” (id. at 41a). The court observed that the pro­
motion quota was “ a temporary measure”  which 
would “cease to exist when * * * the Department suc­
ceeds in doing what it promised to do years ago” 
(ibid.). The court noted that the quota did not 
require the promotion o f any unqualified black 
trooper, did not absolutely bar qualified white troop­
ers “ from advancement through the ranks,”  and did 
not “ require the discharge or demotion o f a white 
trooper or the replacement of a white trooper with 
a black trooper”  (ibid.). The opinion contains no



15

discussion as to whether there existed any less intru­
sive or more narrowly tailored means of enforcing 
the Department’s compliance with its obligations un­
der the consent decrees.6

INTRODUCTION AND SUMMARY OF ARGUMENT

Since 1972 the United States has stood with the 
plaintiffs and the courts below in their efforts to end 
discrimination by the Alabama Department o f Public 
Safety. We have urged and supported remedial ef­
forts in respect to promotion as well as hiring. In 
our petition for certiorari we objected to only one of 
the district court’s remedial provisions: the 1983 
imposition of a one-for-one promotion quota for cer­
tain ranks, to remain in effect until the Department 
comes forward with a proper long-term procedure 
that does not have an adverse impact on black aspir­
ants for promotion to each of these grades. That 
promotions be made according to the consent decrees 
and that promotions should thus display approxi­
mate parity with the applicant pool are propositions 
that are not in issue in this case.

In seeking certiorari, the principal purpose o f the 
United States was to illuminate further the proposi­
tion we drew from Firefighters Local Union No. 178f  
v. Stotts, 467 U.S. 561 (1984), that preferential re­
lief under Title VII was available only to the actual

6 The court of appeals also rejected (Pet. App. 45a-53a) the 
intervenors’ challenge to the district court’s July 27, 1984, 
order permitting the proportional promotion of three black 
and ten white corporals. See id. at 47a; J.A. 160. The inter­
venors have not petitioned for review of that holding, and 
hence no question concerning it is presented here. The pro­
priety of the subsequently ordered promotions to sergeant 
(see page 13 note 5, supra) is likewise not before this Court.



16

victims of discrimination, a proposition we asserted 
had constitutional dimensions as well. In Sheet Metal 
Workers v. EEOC, No. 84-1656 (July 2, 1986), the 
Court stated last Term that race-conscious relief may 
be available in certain instances of egregious discrim­
ination. We take that holding as a premise for our 
argument here, which addresses only the narrow 
question— the only question on which the Court 
granted review— whether the one-for-one promotion 
quota imposed in addition to and on top o f the other 
relief (relief requiring a hiring quota and a propor­
tionate promotion remedy) violates the Constitution. 
We believe the one-for-one promotion quota to be 
plainly unconstitutional in the light o f the Court’s 
recent pronouncements in Sheet Metal Workers and 
Wygant v. Jackson Board of Education, No. 84-1340 
(May 19, 1986).

First, particularly in light of the specific context 
in which it was superimposed, we believe this quota 
requires discrimination against innocent white state 
employees for no independently justifiable remedial 
purpose. The district court appears to have intended 
the one-for-one quota in part as an in terrorem device 
to compel the Department to adopt proper promotion 
procedures. In our view this puts the wrong gun to 
the wrong head, holding innocent white state troopers 
hostage for the purpose of ending the Department’s 
alleged recalcitrance. The courts below appear also 
to have embraced a purpose to attain numerical “bal­
ance”  of races at each level of the police force. This 
we believe goes well beyond a proper remedial pur­
pose and cannot be justified under the Court’s deci­
sions in Sheet Metal Workers, Wygant, and Regents 
of the University of California v. Bakke, 438 U S 
265 (1978).



17

Second, even if either of these purposes were prop­
erly viewed as part of the remedy for the Depart­
ment’s clear and intentional p re-1975 hiring discrimi­
nation, nonetheless the one-for-one promotion quota 
imposes unnecessarily heavy burdens on a small num­
ber of identified white competitors for promotions, 
and is therefore unconstitutional for the same reason 
the layoffs in Wygant were found to be unconstitu­
tional. Particularly in the context of civil service 
public employment, the prospects of regular promo­
tion and an orderly progression through the ranks 
are an important aspect of a new entrant’s career 
expectations. To diminish those prospects for a de­
fined group of individual white entrants as drasti­
cally as this one-for-one quota would do is to blight 
those expectations— and on racial grounds— as surely 
as did the denial of job security pursuant to race- 
based lay-off quotas in Wygant and Stotts.

ARGUMENT

THE ONE-BLACK-FOR-ONE-WHITE PROMOTION 
QUOTA ORDERED BY THE DISTRICT COURT IS 
NOT NARROWLY TAILORED TO ACHIEVE A COM­
PELLING GOVERNMENTAL INTEREST, AND IT IS 
THEREFORE UNCONSTITUTIONAL UNDER THE 
EQUAL PROTECTION GUARANTEES OF THE 
FIFTH AND FOURTEENTH AMENDMENTS

A. A Racial Classification Must Be Narrowly Tailored 
To Achieve A Compelling Governmental Interest In 
Order To Satisfy Strict Constitutional Scrutiny

1. The proper standard by which to evaluate the 
constitutionality of race-conscious governmental ac­
tion under the Equal Protection Clause is now clear. 
“ [RJacial classifications of any sort must be sub­
jected to ‘strict scrutiny.’ ”  Wygant, slip op. 1-2 
(O ’Connor, J., concurring in part and concurring in



18

the judgment). Strict scrutiny applies regardless 
whether the purpose of the discrimination is char­
acterized as malevolent or benign, and regardless of 
the race of its victims. E.g., Bakke, 438 U.S. at 294 
(opinion of Powell, J . ) ; Yick Wo v. Hopkins, 118 U.S. 
356, 369 (1886). As the plurality stated in Wygant, 
“ the level of scrutiny does not change merely because 
the challenged classification operates against a group 
that historically has not been subjected to govern­
mental discrimination”  (slip op. 5 ). Any less strin­
gent analysis, such as a “ test o f ‘reasonableness [ , ] ’ 
* * * has no support in the decisions of this Court” 
(id. at 10-11).7

Under strict scrutiny, “ ‘ [a ]ny preference based 
on racial or ethnic criteria must necessarily receive

7 Justice White concurred separately in Wygant and thus 
did not join the opinion of the four Justices who explicitly 
stated that all racial classifications are subject to “ strict 
scrutiny.” As the plurality in Wygant noted, however, Justice 
White had previously joined that portion of Justice Powell’s 
opinion in Bakke which stated that discrimination against 
nonminorities is to be assessed under this standard. See 
Wygant, slip op. 4, quoting Bakke, 438 U.S. at 291 (opinion of 
Powell, J., joined by White, J.) (“ Racial and ethnic distinc­
tions of any sort are inherently suspect and thus call for the 
most exacting judicial examination.” ). Thus, at least five 
Justices have subscribed to this position. See also Fullilove 
V. Klutznick, 448 U.S. 448, 551 (1980) (Stevens, J., dissent­
ing) . Three members of the Court have recently expressed 
the view that a somewhat less rigorous standard is appro­
priate where a racial classification discriminates against white 
persons. See, e.g., Wygant, slip op. 7 (Marshall, J., joined 
by Brennan and Blackmun, JJ., dissenting). These Justices 
nevertheless have required a “ ‘strict and searching’ * * * in­
quiry” in such instances. See id. at 7 (Marshall, J., dissent­
ing) . See also Wygant, slip op. 4 (Stevens, J., dissenting) (dis­
tinguishing between inclusionary and exclusionary measures).



19

a most searching examination to make sure that it 
does not conflict with constitutional guarantees,’ ”  
Wygant, slip op. 5 (plurality opinion), quoting Fulli- 
love v. Klutznick, 448 U.S. 448, 491 (1980) (opinion 
of Burger, C.J.). Thus, “ to pass constitutional mus­
ter, [racial classifications] must be justified by a 
compelling governmental interest and must be ‘neces­
sary . . .  to the accomplishment’ o f their legitimate 
purpose.”  Palmore v. Sidoti, 466 U.S. 429, 432-433 
(1984), quoting McLaughlin v. Florida, 379 U.S. 184, 
196 (1964). In order to be deemed “ necessary to the 
accomplishment”  of their purpose, moreover, laws em­
ploying racial or other inherently suspect classifica­
tions “ must be drawn with precision * * * and must 
be tailored to serve their legitimate objectives.”  Dunn 
v. Blumstein, 405 U.S. 330, 343 (1972) (original 
quotation marks omitted). If there are other reason­
able ways to achieve those objectives, the government 
“ may not choose the way of greater interference.” 
Ibid. See, e.g., Kramer v. Union Free School District, 
395 U.S. 621, 627 (1969); Shapiro v. Thompson, 394 
U.S. 618 (1969).

Strict scrutiny thus consists o f “ two prongs.”  
Wygant, slip op. 5 (plurality opinion). “ First, any 
racial classification must be justified by a compelling 
governmental interest. * * * Second, the means 
chosen by the [government] to effectuate its purpose 
must be narrowly tailored to the achievement of that 
goal.”  Ibid, (original quotation marks omitted). In 
other words, unless both the end and the means are 
permissible, a racial classification cannot stand.

2. It is of course clear beyond peradventure that 
the government has a “ compelling interest”  in rem­
edying past discrimination practiced by a public em­
ployer. The standards for determining whether a



20

particular remedial measure is “ narrowly tailored” 
to that end were elaborated last Term in Wygant. In 
holding racially based layoffs an impermissible rem­
edy, the plurality stated that the term “ narrowly 
tailored”  in one sense “ require [s] consideration 
whether lawful alternative and less restrictive means 
could have been used”  (slip op. 11 & n.6). “ Or, as 
Professor Ely has noted, the classification at issue 
must ‘fit’ with greater precision than any alternative 
means”  {ibid., quoting Ely, The Constitutionality of 
Reverse Racial Discrimination, 41 U. Chi. L. Rev. 
723, 727 n.26 (1974 )). “ ‘Racial classifications are 
simply too pernicious to permit any but the most 
exact connection between justification and classifica­
tion’ ”  (Wygant, slip op. 11-12 (plurality opinion), 
quoting Fullilove, 448 U.S. at 537 (Stevens, J., dis­
senting) ) .8

8 The standards of “ strict scrutiny” apply to the instant case 
even though the court of appeals ruled that the one-for-one 
promotion quota was designed to enforce the 1979 and 1981 
consent decrees (Pet. App. 22a-27a) and that “ those decrees
* * * * fully authorized the promotion quota” (id. at 40a). Al­
though this Court held in Firefighters v. Cleveland, No. 84- 
1999 (July 2, 1986), that parties may voluntarily enter into a 
consent decree that exceeds the limitations of judicially ordered 
remedies provided by Section 706(g) of Title VII, 42 U.S.C. 
2000e-5(g), the Court emphasized that “ approval of a consent 
decree between some of the parties * * * cannot dispose of the 
valid claims of nonconsenting intervenors.” Firefighters, slip 
op. 26. As Justice O’Connor there stated, “ nonminority employ- 
ees * * * remain free to challenge the race-conscious measures
* * * as violative of their rights under * * * the Fourteenth 
Amendment.” Firefighters, slip op. 1 (O’Connor, J., con­
curring). And even if nonminority employees had not been 
present as intervenors in the instant case, the Court “ should 
not approve a consent decree that on its face provides for 
racially preferential treatment that would clearly violate * * *



21

B. The Promotion Quota Ordered By The District Court 
Is Not Narrowly Tailored To Remedy The Depart­
ment’s Past Discrimination

As we have stated, there can be no doubt that the 
government has a “ compelling interest”  in remedying 
racial discrimination practiced by a public employer. 
It is that interest which from the outset of this 
protracted litigation has been urged to justify the 
various race-conscious remedial measures ordered by 
the courts since 1972.* 9 The United States has con­
sistently maintained and the courts below have cor­
rectly concluded that the hiring discrimination orig­
inally practiced by the Department was “ unquestion­
ably a violation of the Fourteenth Amendment.” 
NAACP  v. Allen, 340 F. Supp. at 705. And as the 
courts below found, the Department’s hiring discrim­
ination for almost four decades had excluded blacks 
from any jobs at all, including jobs in the upper 
ranks (Pet. App. 10a-12a; J.A. 63). See also Para­
dise v. Shoemaker, 470 F. Supp. at 442. Given the 
pervasive past discrimination practiced by the De­

the Fourteenth Amendment” (ibid.). In any event, the chal­
lenge here is not to the consent decrees per se, but to the 
district court’s imposition of a particularly rigid and burden­
some racially based promotion quota as a method of enforcing 
those decrees.

9 Those prior race-conscious measures include the one-black- 
for-one-white hiring quota implemented in 1972 and the pro­
portional promotion procedure required to be implemented 
under the 1979 and 1981 consent decrees. The original hiring 
quota has long since become “ law of the case” (Paradise v. 
Shoemaker, 470 F. Supp. at 441), and the court of appeals 
below correctly held that “the validity of the 1979 and 1981 
[consent] Decrees [was] not properly before [it]”  (Pet. App. 
49a n.18). There is thus no occasion for the Court to address 
the propriety of those earlier remedial measures.



22

partment, we have no hesitation in agreeing that the 
first prong of this Court’s “ strict scrutiny”  test is 
met here.10

Although we agree that there exists a “ compelling 
governmental interest”  in remedying the Depart­
ment’s past discrimination, we cannot agree that the 
one-for-one promotion quota sanctioned by the lower 
courts is a “ narrowly tailored”  means of achieving 
that end. As the history of this litigation illustrates, 
the district court has already imposed a series of race- 
conscious measures designed to cure the effects of the 
Department’s prior discrimination in hiring. The 
United States as plaintiff is a party to the 1979 and 
1981 consent decrees, which are the “ law of the 
case,”  and we agreed with Paradise that those de­
crees should be enforced and that promotions should 
be ordered, consistently with the consent decrees, in 
a manner that would have “ little or no adverse im­
pact upon blacks seeking promotion to corporal.”  (Pet. 
App. 15a-16a & n.10; J.A. 40). We parted com­
pany with Paradise below, and we part company with 
him here, on the question whether a one-black-for-one- 
white promotion quota is “ a legally appropriate 
means” of accomplishing those objectives. Wygant, 
slip op. 9 (plurality opinion). In approving that

10 As we shall explain more fully below (pages 30-35, 
infra), the district court and the court of appeals, in sanction­
ing the one-for-one promotion quota, also seem to have been 
pursuing the different and additional objective of attaining 
some numerical proportion or “ racial balance’’ in the Depart­
ment’s upper ranks. To the extent that the courts sought to 
justify the challenged quota on that ground, rather than on 
the ground of remedying the Department’s past discrimination 
in hiring, those courts not only failed to identify a “ compelling 
governmental interest,” but relied upon an objective that we 
believe to be constitutionally impermissible.



23

quota over our objections, the courts below did not 
consider “whether lawful alternative and less re­
strictive means could have been used”  to achieve the 
desired ends. Wygant, slip op. 11 n.6 (plurality- 
opinion). Indeed, besides failing to ascertain whether 
the promotion quota is “ narrowly tailored”  within 
the meaning of this Court’s decisions, neither the 
district court11 nor the court of appeals 12 conducted 
“ strict scrutiny”  at all.

1. The quota ordered by the district court appears 
to have been intended in part as an in terrorem en­
forcement device, designed to induce the Department’s 
compliance with its obligation under the consent de­
crees to develop and implement a permanent promo­
tion procedure that would have “ little or no adverse 
impact upon blacks” (J.A. 40). The quota was first 
proposed by Paradise in a “ motion to enforce the 
terms of the * * * consent decree[s]”  (J.A. 58, 62). 
The quota was defended by Paradise on the ground 
that it would “ encourage defendants to develop * * * 
as soon as possible”  a promotion procedure consistent 
with the consent decrees (J.A. 62). Paradise con­
ceded that the quota would “perhaps not be neces­
sary”  if  the defendants had timely implemented an 
acceptable promotion plan, asserting that it was “ de­
fendants’ perennial non-compliance that necessitates 
this action”  (J.A. 62 n.3). The quota was adopted 
by the district court in a ruling that granted “ the

11 See Pet. App. 63a-64a (finding the promotion quota “rea­
sonable” under United Steelworkers v. Weber, supra).

12 See Pet. App. 35a-42a & n.15 (employing a variety of 
tests, none strict scrutiny, including whether “ the measures 
employed are reasonable” and whether they are “ substantially 
related” to the objective of eradicating the present effects of 
past discrimination).



24

plaintiffs’ * * * motion to enforce the terms of the 
* * * consent decree [ s ] ” (J.A. 128). The in terrorem 
enforcement purpose of the quota is evidenced by the 
nature of the relief granted, for the quota was to 
remain in place until “ the defendants have developed 
a promotion plan * * * which meets the prior orders 
and decrees of the court”  (ibid.) and was to be aban­
doned when the Department came into compliance. 
This in terrorem threat, moreover, would inevitably 
continue for many years, since the Department would 
be able to demonstrate that a promotion procedure 
for a particular rank had no “ adverse impact”  on 
blacks only when a sufficient number of blacks, con­
sistently with the time-in-grade rules, had reached 
the next lower rank and thus qualified for promotion. 
As an enforcement device, therefore, the one-for-one 
quota was designed to operate against the Depart- 
partment for a long time to come.

Insofar as the promotion quota was intended to 
coerce the Department’s compliance with its obliga­
tion to formulate acceptable promotion procedures, or 
to punish it for its alleged delay in doing so,13 that

13 Although Paradise alleged that the Department had been 
guility of “perennial non-compliance,” in the four years after 
the signing of the 1979 consent decree, the Department in 
reality had acted with reasonable diligence to devise a new 
corporal’s examination, to administer and evaluate it pur­
suant to the 1981 consent decree, and, when objections were 
raised to the examination, to propose an alternative plan to 
promote four blacks and eleven whites to corporal on a propor­
tional basis. Since the district court’s decision was rendered, 
the Department has timely proposed, and the district court has 
tentatively approved, procedures for promotion to corporal and 
sergeant. See pages 12-13 & note 5, supra. Both Paradise and 
the courts below failed to appreciate how difficult it is to de­
velop and implement selection procedures that satisfy the



25

race-conscious relief was plainly not “ narrowly tail­
ored”  to achieve its end. A  racial classification is 
“ narrowly drawn” only if  it “ fit[s] with greater pre­
cision than any alternative means”  and if no “ non- 
racial approach or * * * more narrowly tailored racial 
classification could promote the [governmental] in­
terest about as well.”  Wygant, slip op. 11 n.6 (plu­
rality opinion) (original quotation marks omitted). 
But plentiful alternatives were in fact available to 
the district court. The court could have imposed 
stringent contempt sanctions, including heavy fines 
and attorneys’ fees, to remain in effect until the De­
partment produced an acceptable long-term promo­
tion plan. See, e.g., Sheet Metal Workers, slip op. 
17-19. The court could have considered appointing 
a trustee or administrator to supervise the Depart­
ment’s progress, or even to make the promotions him­
self by the proper standard. See id. at 56-57. And

rigorous standards of the Uniform Guidelines. As the district 
court itself previously recognized (NAACP v. Allen, 340 F. 
Supp. at 706), the validation of selection procedures is an ex­
pensive and time-consuming process usually extending over 
several years. This is particularly true of jobs, like the state 
trooper jobs here, that require skills not easily measured by 
written exams. See also Connecticut v. Teal, 457 U.S. 440, 463 
(1982) (Powell, J., dissenting) ; Albemarle Paper Co. v. 
Moody, 422 U.S. 405, 449 (1975) (Blackmun, J., concurring) ; 
Clady v. City of Los Angeles, 770 F.2d 1421, 1431 (9th Cir. 
1985) ; Vuyanvich v. Republic Nat’l Bank, 505 F. Supp. 224, 
369-370 (N.D. Tex. 1980) ; Baker V. City of Detroit, 483 F. 
Supp. 930, 971 (E.D. Mich. 1979). The task was even more 
difficult and time-consuming here because the Department also 
had to ensure that the tests, besides being properly validated, 
were without an “ adverse impact.” In any event, despite the 
absence of a validated long-term selection procedure, the De­
partment has made all promotions since 1980 on a basis that 
was proportional as between blacks and whites.



26

if  the court found that individual blacks would have 
been promoted earlier but for the Department’s al­
leged procrastination, and if the court determined 
that specific relief was needed to remedy that fault, 
competitive seniority could have been awarded. See 
Wygant, slip op. 15 n.12 (opinion of Powell, J . ) ; 
Teamsters v. United States, 431 U.S. 324, 365-371 
(1977).

As an injunction that aimed to punish or coerce the 
Department, in short, the quota ordered by the dis­
trict court misses the mark by a rather wide margin. 
“ [I ]t  is not the enjoined party,”  as the Seventh Cir­
cuit has observed, “but rather the persons on the 
eligibility roster passed over as a result of the quota 
who bear the real burden” of such an order. United 
States v. City of Chicago, 663 F.2d 1354, 1361 (1981) 
(en banc). Nonminority troopers on the Depart­
ment’s eligibility roster had strong and legitimate ex­
pectations that they would be considered for promo­
tion based on their merit and seniority, and, as we 
explain in greater detail below (pages 38-42, infra), 
the burden that the quota imposed upon them was 
considerable. As an in terrorem enforcement device, 
therefore, the promotion quota was the wrong gun, 
and it was aimed at the wrong head.

2. a. In support of the challenged promotion quota, 
Paradise advanced, and the district court adopted, 
a second and distinct justification for that race­
conscious relief. In his motion to enforce the consent 
decrees, Paradise emphasized that no promotions to 
corporal had been made in several years and that the 
Department urgently needed new promotions to that 
rank (J.A. 61 & n .l) .  He argued that the promotion 
procedure proposed by the Department in 1981 had 
proven to have an “ adverse impact”  on blacks (id.



27

at 60-61), with the result that there currently ex­
isted no promotion mechanism that complied with the 
consent decrees (id. at 63-64). Paradise accordingly 
requested that the Department be ordered, not only 
to discharge its obligation to develop and implement 
the requisite long-term promotional procedure, but 
also, on a more immediate basis, “ to promote quali­
fied blacks to the corporal position at a rate that does 
not result in adverse impact and which is within the 
spirit o f * * * the parties’ consent decrees”  (id. at 
59, 64). Paradise submitted that, in view of the De­
partment’s delay in developing a long-term solution, 
a one-for-one promotion quota was a “ reasonable and 
necessary”  means of making promotions (id. at 62 
& n.3). The consent decrees, in Paradise’s words, re­
quired the court to decide “ what percentage o f’ the 
forthcoming * * * promotions should be black”  (id. 
at 61).

In response to Paradise’s motion, the district court 
recited the parties’ understanding that the Depart­
ment “ need[ed] additional corporals and * * * 
need[ed] at least 15 of them as soon as possible”  
(J.A. 119). The court refused to delay the impending 
promotions until an acceptable long-term plan had 
been implemented by the defendants. The court ac­
cordingly ordered the Department, within two weeks, 
to “ file with the court a plan to promote to corporal, 
from qualified candidates, at least 15 persons in a 
manner that will not have an adverse racial impact”  
(id. at 123). The Department responded with a pro­
posal to promote four blacks and eleven whites, a pro­
posal to which the United States as plaintiff expressed 
no objection. See id. at 125-126; Pet. App. 18a-19a.

Confronted with the two proposals that had been 
placed on the table— the one-for-one quota proposed



28

by Paradise and the four-and-eleven plan proposed by 
the Department— the district court clearly erred in 
opting for the former. I f one assumes arguendo that 
some form of race-conscious relief was needed to pro­
mote 15 corporals consistently with the consent de­
crees— decrees that required promotions to be made 
in a way that would have “ little or no adverse im­
pact on blacks”  (J.A. 40 )— the Constitution man­
dated that the district court choose a means that was 
“ narrowly tailored”  to this end. Wygant, slip op. 11, 
15 (opinion of Powell, J .). But the Department’s 
proposal, as compared with the extreme quota upon 
which Paradise insisted, plainly represented the “ less 
intrusive means,”  id. at 15, by which to make the 
needed promotions within the spirit of the consent 
decrees (J.A. 59). As the Department explained be­
low, its proposal met “ the requirements of the four- 
fifths rule of the Uniform Guidelines concerning ad­
verse impact,”  the standard that the consent decrees 
embodied (J.A. 40, 125-126). And the Department’s 
proposal “ reflect [ed] the percentage of blacks to 
whites who took the Corporal’s examination” (J.A. 
126), and it was thus in harmony with the remedial 
objective of proportional promotion that, under the 
consent decrees, the procedure ultimately adopted was 
required to implement.

b. It cannot be argued, moreover, that the one- 
for-one promotion quota was justifiable independently 
of the consent decrees in order to remedy some Title 
VII violation. No such violation was found or even 
suggested by the district court as to promotions at 
this stage of the proceedings ( i.e., after 1979). A l­
though the district court did find that the promotion 
procedure for corporals proposed by the Department 
in 1981 had an “ adverse impact”  within the meaning



29

of the consent decrees, such a finding would clearly 
be insufficient, absent a finding that those procedures 
failed to predict job performance, to establish a “ dis­
parate impact”  Title VII violation. Indeed, the dis­
trict court declined to hear evidence on the question 
of job-relatedness because it considered that question 
to be irrelevant under the consent decrees.14 And even 
if there had been a “ disparate impact”  Title VII vio­
lation, the one-for-one quota ordered by the district 
court would have been an unjustifiable remedy. First, 
quota relief of any sort is generally unjustified for 
a mere “ disparate impact”  violation, since such a 
fault does not represent either a violation of the Con­
stitution or the kind of flagrant and egregious dis­
crimination that the Court in Sheet Metal Workers 
strongly suggested was necessary to justify quota re­
lief. See, e.g., slip op. 50. Secondly, even if numeri­
cal race-conscious relief were appropriate for a “ dis­
parate impact”  violation, a one-for-one quota could 
not possibly be justified here because it greatly ex­
ceeded the proportion of minorities that had applied 
for, or were eligible for, promotion to the rank of 
corporal. Thus, even if the district court had found 
a Title VII violation, which it did not do, the Depart­
ment’s proposal to promote four blacks and eleven 
whites represented the extreme outer limit of any 
appropriate remedy.

3. In sum, to the extent that the district court in 
awarding relief to Paradise intended to enforce the 
Department’s compliance with the consent decrees, 
the court was clearly pursuing a legitimate objective. 
With respect to this objective, however, the court

14 A fortiori, there can be no suggestion of a “ disparate 
treatment” Title VII violation as to promotions at this stage 
of the proceedings (i.e., after 1979).



30

passed over or failed to consider reasonable, effica­
cious, and less intrusive means o f accomplishing its 
desired ends. The one-black-for-one-white quota that 
it adopted thus cannot be said to have been “ narrowly 
tailored”  under the second prong of the “ strict scru­
tiny” test, and the quota is for that reason violative 
of the Constitution’s equal protection guarantees.15

C. Promotion Quotas Like That Ordered By The District 
Court Cannot Be Justified As “Catch-Up” Measures 
Designed To Accelerate The Achievement Of Racial 
Proportionality Or Balance

The courts below seem to have been pursuing a 
third purpose as well in sanctioning the challenged 
promotion quota— to redress the “ longstanding racial 
imbalances in the upper ranks of the Department” 
(Pet. App. 41a, 62a). Those courts appear to have 
posited the objective of expediting the promotion of 
blacks in order to attain more rapidly a desired “bal­
ance”  o f races at each level o f the trooper force. The 
one-for-one quota may thus have been designed as a 
“ catch-up” quota that aimed, not simply to remedy 
the effects of the Department’s past discrimination, 
but to help bring about the “ racial mix”  that theo­
retically would have existed in the upper ranks of 
the Department if  it had never discriminated in hir­
ing at all. But discrimination against innocent white 
employees for the purpose of expediting attainment

15 We have not discussed so far the especially intrusive re­
sults that flow from the fact that the quota challenged here is 
a promotion quota, because, even without considering that ad­
ditional factor, the quota is not a “ narrowly tailored” means 
to the ends discussed in the text. We elaborate below (pages 
38-42) the particularly disruptive effects of promotion quotas, 
and those effects are obviously an additional factor that can be 
considered whatever the purpose of the quota.



31

of a “balance”  of the races in our view goes beyond 
a proper remedial purpose and is inconsistent with 
this Court’s decisions in Wygant and Bakke.

1. We start with the general proposition, which 
we believe to be noncontroversial, that a mere desire 
to obtain some preferred degree of racial or gender 
balance is unacceptable under the Constitution. As 
Justice Powell concluded in Bakke, “ Preferring mem­
bers of any one group for no other reason than race 
or ethnic origin is discrimination for its own sake. 
This the Constitution forbids.”  438 U.S. at 307.

To be sure, eliminating the “ effects”  of prior dis­
crimination is a permissible remedial purpose, but 
the elimination of such effects cannot be equated with 
the attainment of racial balance. The plurality opin­
ion in Sheet Metal Workers stated that “ affirmative 
action may be necessary in order effectively to enforce 
Title V IP ’ because such measures are required either 
to remedy violations by a defendant who “has en­
gaged in persistent or egregious discrimination”  or 
“ to dissipate the lingering effects of pervasive dis­
crimination”  (slip op. 50). At the same time, the 
plurality emphasized that “ race-conscious affirmative 
measures [should] not be invoked simply to create a 
racially balanced work force” ( ibid .; see also id. at 
52 ).16 As Justice Powell said in his concurring opin­
ion, “ [A ] court may not choose a remedy for the

16 The Court in Sheet Metal Workers noted the court of ap­
peals’ rejection, even in the egregious context there, of a re­
quirement by the district court that one minority apprentice 
be indentured for every white apprentice. The court of ap­
peals had concluded that a rigid one-for-one hiring quota was 
not needed to ensure that a sufficient number of nonwhites 
were selected for the apprenticeship program. See Sheet Metal 
Workers, slip op. 13-14 & n.18.



32

purpose of attaining a particular racial balance; 
rather, remedies properly are confined to the elimina­
tion of proven discrimination. A goal is a means, 
useful in limited circumstances, to assist a court in 
determining whether discrimination has been eradi­
cated.”  Slip op. 5 (Powell, J., concurring). See also 
id. at 7 (O ’Connor, J., concurring in part and dis­
senting in part) ( “ The imposition of a quota is there­
fore not truly remedial, but rather amounts to a re­
quirement of racial balance” ; a “goal must be in­
tended to serve merely as a benchmark for measuring 
compliance with Title VII and eliminating the linger­
ing effects o f past discrimination” ).

The plurality opinion in Sheet Metal Workers thus 
establishes that there is a clear distinction between 
the effects of past discrimination and racial imbal­
ance, and that, even as to a flagrant discriminator, 
only the former may be the object of remedial efforts. 
The effects of past discrimination that may be ad­
dressed by remedial orders include, for instance, 
those “ informal mechanisms [that] obstruct equal 
employment opportunities”  even after “ the employer 
or union formally ceases to engage in discrimina­
tion.” Slip op. 24. Specifically, the Court identified 
as “ lingering effects”  barring equal opportunity such 
factors as a reputation for discrimination that dis­
courages minority applicants (id. at 24, 51, 52) and 
an “ old-boy”  network that restricts access and train­
ing to those whites who have “ informal contacts with 
union members”  (id. at 52). But the only permissible 
purpose of class-based affirmative measures is to “ dis­
mantle prior patterns of employment discrimination 
and to prevent discrimination in the future” (id. at 
48). See also id. at 49 n.46.

In upholding the membership goal at issue in 
Sheet Metal Workers, the plurality also pointed out



33

(slip op. 52) that the flexible goal involved there was 
“ not being used simply to achieve and maintain racial 
balance, but rather as a benchmark”  to measure ef­
forts to remedy past discrimination. But the one- 
for-one quota sanctioned by the courts below could 
not possibly be rationalized as ̂ “benchmark” of this 
sort. There is generally no reason to assume that a 
nondiscriminatory employer would select blacks (or 
whites) in greater numbers than their availability, 
and hence any race-conscious numerical relief de­
signed to serve a prophylactic or “benchmark” func­
tion must, at a minimum, necessarily be tied to the 
percentage of minorities in the relevant labor market. 
See Sheet Metal Workers, slip op. 23 (plurality opin­
ion) ; id. at 4 (Powell, J., concurring in part and 
concurring in the judgm ent); id. at 7 (O ’Connor, J., 
concurring in part and dissenting in part). Here, 
of course, the one-for-one quota greatly exceeds the 
percentage of blacks in the relevant labor market—  
viz., entry-level troopers eligible for promotion— and 
thus could not be justified as a flexible “ benchmark.”  

2. Even in the school-desegregation context, this 
Court’s decisions demonstrate that a government 
which has adopted truly race-neutral admissions pol­
icies need not assure a particular “ racial mix”  in 
order to cure its prior segregation. Those cases es­
tablish that the Constitution does not require, either 
as a matter o f substantive right (e.g., Pasadena City 
Bd. of Educ. v. Spangler, 427 U.S. 424, 433-434 
(1976 ); Spencer x. Kugler, 404 U.S. 1027 (1972 )), or 
as a matter of remedy (Milliken x. Bradley (Milliken 
I ) ,  418 U.S. 717, 740-741 (1974); Swann x. Char- 
lotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 22-25, 
31-32 (1971 )), any particular degree of racial bal­
ance in a state’s activities. As the Court wrote in 
Swann, “ [t]he constitutional command to desegre­



34

gate schools does not mean that every school in every 
community must always reflect the racial composition 
of the school system as a whole.”  402 U.S. at 24. 
Thus, even in the school cases— where insisting on 
racial balance would not disadvantage any innocent 
nonminorities, since all school children will receive a 
public education— racial balance is not required. A 
fortiori here, the Constitution cannot require racial 
balance at the severe expense o f innocent nonminor­
ity persons.

The Constitution of course requires that the govern­
ment refrain from any action intentionally designed 
to exclude or segregate persons on the basis o f race. 
Dayton Bd. of Educ. v. Brinkman (Dayton I ) ,  433 
U.S. 406, 413 (1977); Washington v. Davis, 426 
U.S. 229, 239 (1976). And the Constitution requires 
that where, as here, the government has discriminated 
on the basis of race, it undertake the remedial efforts 
necessary to eliminate the constitutional violation 
and the conditions that flow therefrom. Milliken v. 
Bradley (Milliken II),  433 U.S. 267, 282 (1977). 
See Dayton I, 433 U.S. at 417, 420. But since the 
condition that offends the Constitution is racial dis­
crimination (subtle or otherwise), not the lack of 
racial balance, the prior constitutional violation is 
remedied by establishing a system that “ exclude [s] 
no I [person] of a racial minority * * *, directly or 
indirectly, on account o f race.”  Swann, 402 U.S. at 
23. The Constitution thus does not require that the 
government, in seeking to eradicate the effects of its 
past discrimination, employ “ catch-up”  quotas or sim­
ilar race-conscious steps to accelerate progress toward 
some preconceived notion of a desirable “ racial bal­
ance.”

In Bazemore v. Friday, No. 85-93 (July 1, 1986), 
this Court applied similar principles in a context not



35

far removed from the present case. There, the Court 
was required to decide what actions were necessary 
to cure a prior discriminatory admissions policy of 
4H Clubs operated by an agency of the State of 
North Carolina. It was undisputed that there re­
mained a substantial racial imbalance among the 
Clubs, even though the agency had adopted a non- 
discriminatory admissions policy. Slip op. 1 (White, 
J., for the Court). It was equally clear that this 
imbalance was traceable, at least in part, to the de 
jure segregated period. The Court nevertheless held 
that any constitutional or statutory violation was 
cured when the agency “ ha[d] taken affirmative ac­
tion to change its ! [segregative] policy and * * * es­
tablish [ed] what is concededly a nondiscriminatory 
admissions system.”  Id. at 3; see also id. at 2. Al­
though nothing approaching racial balance had been 
achieved, the Court concluded that the State had 
met federal regulatory requirements “ to take ‘affirm­
ative action’ to overcome the effects of prior discrim­
ination in its programs.”  Id. at 3. As the Fifth Cir­
cuit wrote in an earlier phase of the instant litiga­
tion, “ equality o f access satisfies the demand of the 
Constitution.”  NAACP  v. Allen, 493 F.2d at 621. 
The Constitution does not require, and in our view 
should not be interpreted to permit, “ catch-up” 
quotas designed to achieve racial balance.17

17 Progress toward racial balance in the upper levels of the 
Alabama Department of Public Safety could be substantially 
expedited by a variety of race-neutral devices designed to 
eliminate arguably arbitrary barriers to promotion. For ex­
ample, the Department’s time-in-grade requirement for pro­
motion eligibility could be reduced. And the Department could 
be ordered to modify its policy of promoting only from within, 
a modification that would permit it to hire black (or white) 
troopers laterally for upper-rank positions.



36
D. The One-For-One Promotion Quota, Whatever Its Pur­

pose, Unnecessarily And Severely Burdens Innocent 
Persons, And It Therefore Fails To Satisfy Strict 
Scrutiny

Whatever purpose is offered for the one-for-one 
promotion quota— whether as a means of coercing 
compliance with the consent decrees, as a method of 
allocating the 15 promotions immediately needed, or 
as a way of attaining racial balance— this quota 
was not a “ narrowly tailored”  means of achieving the 
goal. An extreme one-for-one quota was not necessary 
to enable blacks to progress with deliberate speed into- 
the upper ranks of the Department. And that quota 
seriously disadvantaged identified nonminority in­
dividuals because of the color of their skin.

1. As we have noted above, the quota challenged 
here was superimposed upon a bedrock of earlier race­
conscious relief— the hiring quota ordered in 1972, 
and the proportional promotion remedy set forth in 
the 1979 and 1981 consent decrees— which had al­
ready proven, or had the potential to prove, successful 
in eliminating the effects of past discrimination. The 
hiring quota had produced by 1983 a racially balanced 
trooper or “ entry-level”  force, and the results had 
begun to manifest themselves in the upper ranks. 
The district court recognized that new black troopers 
would initially be clustered in the lower echelons, until 
they gained sufficient time in grade to earn promo­
tions. Paradise v. Shoemaker, 470 F. Supp. at 441. 
Of the ten troopers promoted to corporal after the 
1979 consent decree, four were black. For the next 
set of promotions, the Department proposed to pro­
mote four blacks and eleven whites, a proposal that 
would have raised the percentage of black corporals 
from 6% to 9.8%. See J.A. 62, 133. The promotion 
procedures mandated by the consent decrees, which



37

were in fact implemented shortly after the district 
court acted, have brought three additional blacks to 
the rank of corporal and two to the rank of sergeant. 
See pages 12-13 & note 5, supra. As this Court has 
observed in a somewhat different context, nondis- 
criminatory hiring and promotion practices ordinarily 
“ will in time result in a work force more or less 
representative of the racial and ethnic composition 
of the population in the community from which em­
ployees are hired.”  Teamsters v. United States, 431 
U.S. at 339-340 n.20. Because the earlier race-con­
scious relief ordered by the district court and imple­
mented pursuant to the consent decrees had succeeded 
in remedying the Department’s past hiring discrim­
ination and had already made substantial progress 
in achieving “ racial balance,”  the one-for-one promo­
tion quota was unnecessary no matter how the quota’s 
purpose is characterized.

It is true, o f course, that a one-for-one promotion 
quota may succeed in integrating the upper levels 
o f a work force more rapidly than a nondiscrimina- 
tory policy embodying equality o f access. But before 
seeking to advance “ racial balance”  in this way, a 
court must consider that such quotas manifest racial 
discrimination in its least subtle form. When all pro­
motions are allocated on a racial basis— particularly 
when the basis is one black for every white— promo­
tion decisions inevitably become suspect in the eyes 
o f some. I f racial preferences ever stigmatize their 
beneficiaries— and various members of the Court have 
recognized that they can and d o 18— then it is pre-

13 See Fullilove v. Klutznick, 448 U.S. at 545, 547 (Stevens, 
J., dissenting); id. at 531 (Stewart, J., dissenting) ; United 
Jewish Organizations v. Carey, 430 U.S. 144, 173-174 (1977) 
(Brennan, J., concurring in part); Bakke, 438 U.S. at 298 
(opinion of Powell, J.) ; DeFunis v. Odegaard, 416 U.S. 312, 
343 (1974) (Douglas, J., dissenting); see also Posner, The



38

cisely such “ catch-up”  quotas that courts should strive 
to avoid. Indeed, the risk of stigma will be especially 
great where it is clear that the quota’s high-ranking 
beneficiaries have received preferential treatment in 
both hiring and promotion.

2. Besides being unnecessary, and perhaps being 
counterproductive, in remedying the effects of past 
discrimination, the relief sanctioned below fails “ strict 
scrutiny”  because of its exceptional and unwarranted 
intrusiveness upon the rights of innocent third par­
ties. The district court ordered and the court of ap­
peals approved the most intrusive of all race-conscious 
remedies— a rigid numerical quota. As Alan Bakk'e 
was obviously excluded from competing for 16 out of 
100 seats in medical school (see 438 U.S. at 315-316 
(opinion of Powell, J . ) ) ,  application of the quota in­
volved here absolutely excludes white troopers from 
competing for one out of every two promotions. And 
while that quota in practice will probably be limited 
in time and effect, the principle that such quotas are 
highly disfavored nevertheless applies.

A  one-for-one promotion quota does considerable 
harm to a discrete group of innocent non-minority 
individuals.19 To achieve the social good of ending 
racial discrimination, “ innocent persons may be called

DeFunis Case and the Constitutionality of Preferential Treat­
ment of Racial Minorities, 1974 Sup. Ct. Rev. 1, 17 & n.35.

10 The displaced white applicants for promotion cannot be 
said to have “ acquiesced” in any sense. Compare Fullilove, 
448 U.S. at 479 (opinion of Burger, C.J.) (voluntary recipi­
ents of federal funds). See also Wygant, slip op. 7 (Stevens, 
J., dissenting) (ratification of union contract). Nor is it 
likely that these individuals—many of whom are entry-level 
troopers hired since 1972, when the Department ended its 
hiring discrimination—have in the past “ reaped competitive 
benefit” relative to black promotional applicants. Fullilove, 
448 U.S. at 485 (opinion of Burger, C.J.).



39

upon to bear some of the burden of the remedy.” 
Wygant, slip op. 12 (opinion of Powell, J .). But 
whether that summons is constitutionally permissible 
depends in part upon “ the diffuseness of the burden” 
to which nonminorities are subjected. Sheet Metal 
Workers, slip op. 6 n.3 (Powell, J., concurring in 
part and concurring in the judgment), citing Wygant, 
slip op. 14-15 (opinion of Powell, J .). The loss of 
one’s job, as contrasted with the failure to receive a 
job offer to begin with, is an unacceptable result of 
affirmative action in virtually all circumstances. Com­
pare Firefighters Local Union No. 178U v. Stotts 
(layoffs), and Wygant (layoffs), with Sheet Metal 
Workers (hiring and training), and Weber (train­
ing). This is in part because a layoff or discharge 
works a grievous disruption of identifiable individ­
uals’ previously settled expectations and is in no sense 
“ diffused”  through society as a whole.

The promotion quota involved here, like the layoff 
remedies that the Court has previously addressed, “ im­
pose [s] the entire burden of achieving racial equal­
ity on particular individuals, often resulting in seri­
ous disruption of their lives.”  Wygant, slip op. 14-15 
(opinion of Powell, J .). Unlike race-conscious hiring 
relief, a one-for-one promotion quota casts its onus 
not on the general public, but on a finite and often 
rather small number of identifiable individuals whose 
opportunities for advancement are significantly re­
duced. Particularly in public service careers, where 
long tenure and regular advancement are more the 
rule than the exception, an individual who contem­
plates or has already invested years in his job has 
legitimate expectations transcending those of an ap­
plicant for an entry-level position.20 Eligibility for

2° Figures compiled by the Bureau of Labor Statistics show 
that 32% of employees in the “protective service” category—



40

promotion is a major part of the “ equity”  in senior­
ity built up by an employee. See Wygant, slip op. 14 
(opinion of Powell, J . ) ; Fallon & Weiler, Firefighters 
v. Stotts: Conflicting Models of Racial Justice, 1984 
Sup. Ct. Rev. 1, 58, 60 & n.222, 67. See also Franks 
v. Bowman Construction Co., 424 U.S. 747, 787 
(1976) (opinion of Powell, J.) ( “ consideration for 
promotion”  an element of competitive seniority); 
Hishon v. King & Spaulding, 467 U.S. 69, 76-77 
(1984) (record reflected that the possibility of being 
made a partner was a major inducement to accept­
ing employment). The intrusiveness of a one-for-one 
promotion quota is particularly marked where, as in 
the instant case, it is coupled with a previously ex­
isting hiring quota. For those troopers hired since 
1972— and many current applicants for promotion to 
corporal can be expected to fall within that group—  
this will be the second time that they have encoun­
tered a racial quota, impeding first their access into, 
and then their advancement through, the Depart­
ment.* 21

firefighters, police, prison guards, etc.— have held their jobs 
for 10 years or more, whereas only 27% of the employed popu­
lation at large have held their jobs for that length of time. Cur­
rent Population Survey (Jan. 1983) (unpublished compila­
tion) . A recent private-sector survey concluded that seniority 
plays a significant role in both union and nonunion promotions. 
K. Abraham & J. Medoff, National Bureau of Economic Re­
search, Years of Service and Probability of Promotion (1983). 
And, “ [o]n average, black workers now have accumulated 
seniority roughly equal to that of whites.” Fallon & Weiler, 
Firefighters v. Stotts: Conflicting Models of Racial Justice, 
1984 Sup. Ct. Rev. 1, 65 & n.238.

21 Although the Fifth Circuit in an earlier stage of this 
litigation recognized that “ [t] he problems inherent in quota re­
lief assume different parameters in the promotion, rather than 
hiring, context” (NAACP V. Allen, 493 F.2d at 622 n.12), the 
Eleventh Circuit below did not address that distinction in sus­
taining the promotion quota now challenged. Other courts of



We do not mean to suggest that an absolute con­
stitutional line should be drawn between hiring and 
promotional preferences. All race-conscious remedies 
are constitutionally suspect, and all must meet the 
same exacting standards. See Sheet Metal Workers,

appeals, however, have joined the Fifth Circuit in emphasizing 
the important differences between preferences in hiring and 
promotion. In reversing a promotion quota in Kirkland v. 
New York State Dep’t of Correctional Services, 520 F.2d 420 
(1975), cert, denied, 429 U.S. 823 (1976), the Second Circuit 
declared that “  [s] o long as civil service remains the constitu­
tionally mandated route to public employment in the State of 
New York, no one should be ‘bumped’ from a preferred posi­
tion on the eligibility list solely because of his race.” Conclud­
ing that the promotion quota represented “ constitutionally for­
bidden reverse discrimination,” the court explained that where 
finite numbers of candidates are competing for promotions,

We can no longer speak in general terms of statistics and 
class groupings. We must address ourselves to individual 
rights.

A hiring quota deals with the public at large, none 
of whose members can be identified individually in ad­
vance. A quota placed upon a small number of readily 
identifiable candidates for promotion is an entirely differ­
ent matter. Both these men and the court know in 
advance that regardless of their qualifications and stand­
ing in a competitive examination, some of them may be 
bypassed solely because they are white.

520 F.2d at 429 (footnote omitted). See also Sledge v. J.P. 
Stevens & Co., 585 F.2d 625 (4th Cir. 1978), cert, denied, 440 
U.S. 981 (1979) ; Bridgeport Guardians, Inc. V. Members of 
Bridgeport Civil Service Comm’n, 482 F.2d 1333, 1341 (2d 
Cir. 1973) (invalidating a promotion quota for ranks above 
patrolman, reasoning that “ the imposition of quotas will ob­
viously discriminate against those Whites who have embarked 
upon a police career with the expectation of advancement only 
to be now thwarted because of their color alone” ) ; United 
States v. City of Chicago, 663 F.2d 1354, 1361 (7th Cir. 1981). 
Cf. Firefighters v. Stotts, 467 U.S. at 579 n .ll (noting that, in 
the layoff context, “ [ljower courts have uniformly held that 
relief for actual victims does not extend to bumping employees 
previously occupying jobs” ).

41



42

slip op. 6 (Powell, J., concurring in part and con­
curring in the judgment). But a quota that thrusts 
its entire burden on a few nonminority individuals, 
as the one-for-one promotion quota does here, will 
rarely qualify as “ narrowly tailored”  to achieve its 
goal. I f  nonminority individuals, at each step in 
their careers, find themselves excluded from employ­
ment opportunities because of the color of their skin, 
“ affirmative action”  will come to resemble for them 
the systematic and pervasive discrimination so long 
and so tragically directed at generations o f blacks. 
“ The ultimate goal must be to eliminate entirely 
from governmental decisionmaking such irrelevant 
factors as a human being’s race.”  Fullilove, 448 U.S. 
at 547 (Stevens, J., dissenting).

CONCLUSION

The judgment o f the court o f appeals should be 
reversed.

Respectfully submitted.

Charles Fried 
Solicitor General

W m . Bradford Reynolds 
Assistant Attorney General

A lbert G. Lauber, Jr.
Deputy Solicitor General

Michael Carvin
Deputy Assistant Attorney General

Roger Clegg
Assistant to the Solicitor General

W alter W . Barnett
David K. Flyn n
Clint Bolick 

Attorneys
A ugust 1986

☆  U . S .  GOVERNMENT PRINTING OFFICE; 1 9 8 6  4 9 1 5 0 7  2 0 3 1 5



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