Salone v. USA Brief for Plaintiff Appellant

    No. 85-999

I n  t h e

j^upratr Court of tiro Ituitrii i^tatra
October Term, 1986

U nited States of A merica,

v.
Petitioner,

P hillip Paradise, Jr., et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF AMICUS CURIAE FOR THE NAACP 
LEGAL DEFENSE & EDUCATIONAL FUND, INC.

Julius L. Chambers 
R onald L. E llis 
P enda H air 
E ric Schnapper 
Clyde E . M urphy*

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Counsel for Amicus

#iCounsel o f Record



QUESTION PRESENTED

Whether the Fourteenth and Fifth 
Amendments prohibit the use of a one for 
one promotion ratio to remedy the 
discriminatory effects of and prevent 
future discriminatory actions by a 
governmental employer.

- 1 -



TABLE OF CONTENTS
Page

iQUESTIONS PRESENTED
INTEREST OF AMICUS ..............  1
SUMMARY OF ARGUMENT ..............  3
ARGUMENT .........................  13

I. Remedying Racial Discrimin­
ation By A State Actor Is A 
Sufficient State Interest To 
Warrant Remedial Use Of Race 
Conscious Remedies ........  13

II. The Role Of The Alabama
Highway Patrol In The 
Oppression Of Black People 
Is Important In Determining 
The Scope Of The Remedy 
Which, Though Narrowly 
Tailored, Accomplishes Its 
Purpose ....................  17

III. The Remedy Fashioned By The
District Court Took Appro­
priate Consideration Of 
Critically Important Public 
Safety Concerns............  3 3

ii



Page

VI. The One For One Promotion
Ratio Introduced Below, Was 
Narrowly Tailored To 
Eradicate The Disabling 
Effects Of The Department’s 
Past Discrimination, And To Prevent Future
Discrimination ............  45

CONCLUSION ........................  63

iii



TABLE OF AUTHORITIES
Cases Page
Albemarle Paper Co., v. Moody, 422 

405 (1975) .....................
U.S.
. 3,13

Association Against Discrimination 
v. City of Bridgeport, 594 F.2d 
306 (2nd Cir. 1979) ............ 56

Berkman v. City of New York
705 F.2d 584 (2nd Cir. 1983) ___ 55

Boston Chapter, NAACP v. Beecher, 
679 F.2d 965 (1st Cir.
1982) ..........................

Bratton v. City of Detroit,
704 F.2d 878 .................. 41

Bridgeport Guard, Inc. v.
Bridgeport Civil Serv. Com.,
482 F.2d 1333 cert.
denied, 454 U.S. 145 (1982) .... 39

Carter v. Gallagher, 452 
F.2d 315 (8th Cir. 1971)
(en banc), cert, denied, 406 
U.S. 950 (1972) ................ . 39,56

Commonwealth of Pennsylvania v. 
Rizzo, 13 FEP Cases 1475 
(E.D. Pa. 1975) ................ 57

iv



Cases Page
Detroit Police Officers Ass'n. 
v. Young, 608 F.2d 671
(6th Cir. 1979)   39,40

Fullilove V. Klutznick, 448 U.S.
448 (1980).........................11,14

Gladestone Realtors v. Bellwood,
441 U.S. 91 (1979)   30

Green v. County School Board, 391
U.S. 430 (1968)   60

Kirkland v. New York Dept, of 
Corrections, 628 F.2d 796 (2d Cir. 1980)   55

Local 28, Sheet Metal Workers' 
International Association v.
EEOC, 106 S.Ct. 3019 (1986).....13,14,15

16,46,61
Louisiana v. United States, 380 U.S.

145 (1965) ................... 4,13,44
McKenzie v. Sawyer, 684 F.2d 62

(D.C. Cir. 1982)   54
Morgan v. Kerrigan, 530 F.2d

431 (1st Cir. 1976)   54
Morrow v. .Crisler, 491 F.2d 1053 

1055 (5th Cir. 1974) (en banc) 
cert, denied, 419 U.S. 895 
(1974)  29,54

v



Cases Page
NAACP v. Allen, 340 F.Supp. 703,

705 (M.D. Ala. 1972), aff'd, 493 F.2d
614 (5th Cir. 1974) ............  6,30,39

47,48,54
NAACP v. Beecher, 679 F.2d

965 (1st Cir. 1982) .............  54
Ostapowicz v. Johnson Bronze 

Co., 12 FEP Cases 1230
(W.D. Pa. 1974) .................  57

Ostapowicz v. Johnson Bronze 
Co., 541 F.2d 394 (3rd
1976)   57

Paradise v. Prescott, 585 F.Supp. 72,
74 (M.D. Ala. 1983) aff'd. 767 F.2d 
1514 (11th Cir. 1985), cert, granted.
106 S.Ct. 3331 (1986)   8

Paradise v. Prescott, 767 F.2d
1514 (1985)  8,15,50

52
Paradise v. Shoemaker, 470 F.Supp

439, 442 (M.D. Ala. 1979)  8,32
Regents of the University of 

California v. Bakke, 438 U.S.
265............................. 14,15,45

Rogers v. Paul, 382 U.S. 98
(1965)   30,32

- vi -



Cases
Seagar v. Smith, 738 F.2d 1249

(D.C. Cir. 1984)   55
Sosna v. Iowa, 419 U.S. 393,

(1975)   59
Talbert v. City of Richmond, 648

F. 2d 925 (4th Cir. 1981)   40
Taylor v. Jones, 653 F.2d 1193

(8th Cir. 1981)   54,58
United States of America v.

The State of Alabama, Civil
Action No. 83-C-1676-S, p.2
(N.D. Ala. Southern Division
December 7, 1985)   26

United States v. City of Chicago 
663 F.2d 1354 (7th Cir.
1981) (en banc) .................  39

United States v. Montgomery County 
Board of Education 395 U.S.
255 (1969)   61

United States v. Operating 
Engineers, 4 FEP Cases 1088 
(N.D. Cal. 1972)   57

United States v. U.S. Klans,
194 F.Supp. 897 (M.D. Ala.
1961)   24

- vii



Cases Page
Whitehead v. Oliver, 339 F.Supp.

348 (M.D. Ala. 1975) ............  27
Williams v. City of New Orleans,

543 F.Supp. 662 (E.D. La.
1982), aff'd 729 F.2d 1554
(5th Cir. 1984) (en banc) ........  57

Williams v. Wallace, 240
F.Supp. 100 (M.D. Ala. 1965) ...19,21,23

Williams v. Vukovich, 720
F. 2d 909 (6th Cir. 1983) ........  54

Wygant v. Jackson Board of Education,
106 S.Ct. 1842 ...................14,15,16

32,33,38

Other Authorities
Title VII, Civil Rights Act

of 1964 .....................  passim
United States Commission on

Civil Rights, Law Enforcement:
A Report on Equal Protection
in the South (1965)   9,25

New York Times, Wednesday, June
12, 1963 ........................  26

2 G Myrdal, An American Dilemma
(Pantheon Paperback 1964)   27,28

- viii



Page
N. Bartley, The Rise of Massive 

Resistance (Louisiana State 
University Press 1969) .......... 27

Hawey, "Negro Employment in the 
Birmingham Metropolitan Area",Selected Studies of Negro 
Emmplovment in the South 
(National Planning Associa­
tion ed. 1951)   27

Birmingham Area Chamber of
Commerce, Century Plus (1976) .... 27

"Law Enforcement", Birmingham(Nov. 1969) ....................  27
S. Report No. 94-415 (1971)   35
Legislative History of the Eoual 

Employment Opportunity Act of 
1921 (1972) ....................  35,36

United States Commission on Civil 
Rights, For all the People . . ,
By All the People— A Report on
Egual Opportunity in State and
Local Government Employment(1969)     36

Report of the National Advisory 
Commission on Civil Disorders 
(Bantam Books ed., 1968)   37

- ix -



Page
United States Commission on

Civil Rights, Who is Guarding
the Guardians?: A Report on
Police Practices (1981) ........  37

President's Commission on Law 
Enforcement and Administra­
tion of Justice, Task Force 
Report; The Police (1969) .......  39,40

x



No. 85-999
IN THE

SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1986

UNITED STATES OF AMERICA,

v.
Petitioner.

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

On Writ Of Certiorari To The 
United States Court Of Appeals 

For The Eleventh Circuit

BRIEF AMICUS CURIAE FOR THE NAACP 
LEGAL DEFENSE & EDUCATIONAL FUND, INC.

INTEREST OF AMICUS

The NAACP Legal Defense and 
Educational Fund, Inc., is a non-profit



2
corporation formed to assist Blacks to 
secure their constitutional and civil 
rights by means of litigation. Since 1965 
the Fund's attorneys have represented 
plaintiffs in several hundred employment 
discrimination actions under Title VII and 
the Fourteenth Amendment, including many 
of the employment discrimination cases 
decided by this Court. In attempting to 
frame remedies to redress, prevent and 
deter discrimination, we have repeatedly 
found, as have the courts hearing those 
cases, that race conscious numerical 
remedies are for a variety of pragmatic 
reasons a practical necessity. In some 
instances, numerical remedies are 
essential to ending ongoing intentional 
discrimination. In other circumstances, 
such remedies are a practical necessity in



3
resolving by settlement, disputes as to 
the identities of direct or indirect 
victims of discrimination. We believe 
that effective enforcement of Title VII 
would at times be impossible unless 
numerical orders remain among the arsenal 
of remedial devices available to the 
federal courts. The parties have 
consented to the filing of this brief, and 
letters of consent have been filed with 
the Clerk.

SUMMARY OF ARGUMENT

This case raises important questions 
regarding the power and resolve of the 
Federal courts to eliminate the last 
vestiges of discrimination in our society. 
In Albemarle Paper Co., v. Moody. 422 U.S. 
405, 418 (1975), this Court held that the



4
critical objective of Title VII is "to 
eliminate so far as possible, the last 
vestiges" of discrimination.1 The
Solicitor General, however, would impose a 
parsimonious interpretation on that 
mandate, and exclude from its reach one of 
the harsh results of such discrimination: 
the virtual exclusion of blacks from all 
but entry level positions with the Alabama 
Highway Patrol.

In answering the constitutional

1 A number of the cases described 
herein involve Title VII as well as 
constitutional claims. In a Title VII 
case the practical remedial problems are 
similar to those in a Fourteenth Amendment 
case. See. Louisiana v. United States. 
380 U.S. 145. 154 (1965):

...the court has not merely the 
power but the duty to render a 
decree which will so far as 
possible eliminate the
discriminatory effects of the 
past as well as bar like 
discrimination in the future.



5
question addressed by the parties to this 
action, the Court must necessarily 
consider the power of the federal court 
to order comprehensive race conscious 
relief, particularly where, as here, the 
defendant has made extraordinary efforts 
to defeat prior orders from the court. 
That inquiry is emblazoned by the position 
of the Alabama Highway Patrol as a 
veritable icon of racial bigotry and 
oppression of blacks throughout the south.

Few defendants come to this court 
with so rich a history of discrimination, 
or so clear a mantle of discriminatory 
oppression, as does the Alabama Highway 
Patrol. The actions of this defendant in 
excluding blacks from their ranks; evading 
court orders and consent decrees requiring 
the integration of their workforce; and



6
its participation in some of the most 
infamous abuses of the rights of black 
people during the struggle for civil 
rights, exemplifies the reasons race 
conscious promotional relief is a 
necessary and appropriate tool in 
eliminating the effects of entrenched 
racial discrimination.

In 1972 Chief District Judge Frank M. 
Johnson found that the Alabama Department 
of Public Safety (the parent agency of 
the Alabama Highway Patrol) "engaged in a 
blatant and continuous pattern and 
practice of discrimination" against 
blacks, and noted that "[I]n the thirty- 
seven year history of the patrol there has 
never been a black trooper". NAACP v. 
Allen. 340 F.Supp. 703, 705 (M.D. Ala. 
1972), aff'd. 493 F.2d 614 (5th Cir.



7
1974). In order to eliminate the effects 
of that record of discrimination, the 
court ordered that 50% of the entry level 
troopers hired by the department be black 
until 25% of the trooper force was black.

Notwithstanding this clear mandate, 
the Department continuously tried to 
frustrate the order. In 1975 the district 
court found that the defendant, for the 
purpose of frustrating or delaying full 
relief to the plaintiff class, 
artificially restricted the size of the 
trooper force and the number of troopers 
hired.2 In 1979 the district court found 
that the effects of the defendant's 
discrimination pervaded all levels of the 
Department, and noted that the hiring

2 See Order of August 5, 1975, Joint 
Appendix 34.



8
relief ordered in 1972 was designed to 
provide an impetus to promote blacks into 
positions above the rank of entry-level 
trooper. Paradise v. Prescott. 767 F.2d 
1514 (1985) , quoting Paradise v. 
Shoemaker, 470 F.Supp. 439, 442 (M.D. Ala. 
1979) .

By December 1983, nearly 12 years 
after the 1972 order, only 4 of 197 
persons above entry level were black, and 
none of them were above the rank of 
corporal. Paradise v. Prescott. 585 
F.Supp. 72, 74 (M.D. Ala. 1983), aff'd. 
767 F.2d 1514 (11th Cir. 1985), cert, 
granted. 106 S.ct. 3331 (1986).

This specific record of intentional 
and continuous frustration of the 
employment opportunities of blacks is best 
evaluated when overlaid with the societal



9
discrimination prevalent in Alabama, and 
the role played by the Alabama Highway 
Patrol as the protector of the status quo. 
The efforts of the Department to exclude 
blacks from its ranks and then to prevent 
their advancement within those ranks is in 
keeping with the role of the department as 
a bastion of the Jim Crow era. 
Particularly vivid in the minds of blacks 
through out this nation are images of 
Alabama State Troopers driving black civil 
rights demonstrators from the Courthouse 
lawn in Gadsden, Alabama using cattle 
prods and nightsticks.3

This Court cannot afford to ignore 
this history, and the special position of 
public safety agencies, in determining

3 United States Commission on Civil 
Rights, Law Enforcement: A Report on Equal 
Protection in the South (1965) p. 63.



10
whether the one for one promotion ratio is 
permissible under the Equal Protection 
clause. While this Court remains divided 
on the question of whether strict scrutiny 
or an intermediate standard applies when 
evaluating an affirmative action plan, on 
the facts of this case the government 
plainly has both an important and 
compelling interest in rectifying this 
situation. These concerns are no less 
important in determining the scope of the 
remedy which, though narrowly defined, 
must be designed to completely eradicate 
the effects of this history of 
discrimination.

Both Courts below conscientiously 
applied these standards and held that, in 
the light of the history of this case, the 
district court's enforcement of the



11
consent decree was "eminently reasonable" 
and moreover that "without promotional 
quotas the continuing effects of this 
[long-term, open and pervasive racial] 
discrimination cannot be eliminated". 
Paradise v. Prescott, 767 F.2d 1514, 1533 
(1985) .

The 1983 order imposing one for one 
promotion is reasonably designed to insure 
that the last vestiges of the long and 
brutal history of discrimination by the 
Department are eradicated. Moreover, in 
fashioning a remedy that is both flexible 
and temporary, the court below avoided 
imposing unnecessary burdens on the white 
troopers, while insuring that blacks would 
no longer be unfairly denied opportunities 
which had been withheld for almost half a 
century. Plainly the court below



12
considered the availability and efficacy 
of other remedies, Fullilove v. Klutznick, 
448 U.S. 448 (1980). However such avenues 
of redress were ineffective because the 
Department actively sought to frustrate 
compliance with the court's order. 
Notwithstanding that history the court did 
not permanently impose a one for one 
promotion ratio; rather, once a 
nondiscriminatory promotion system was 
developed, the one for one ratio ceased to 
apply.

The efforts undertaken by the 
experienced Federal judges who considered 
this case are necessary tools in the 
elimination of the lingering effects of 
the history, and, as here, current 
discrimination suffered by blacks in this 
country. If the methods used here, under



13
circumstances as egregious and significant 
as here portrayed are ruled unconsti­
tutional, than there will be little means 
available to seriously address the mandate 
of Albemarle, and Louisiana v. U.S.. 380
U.S. 145, 154 (1965).

ARGUMENT

I. REMEDYING RACIAL DISCRIMINATION
BY A STATE ACTOR IS A SUFFICIENT 
STATE INTEREST TO WARRANT 
REMEDIAL USE OF RACE CONSCIOUS REMEDIES.

While the members of this Court "have 
not yet agreed ... on the proper test to 
be applied in analyzing the 
constitutionality of race-conscious 
remedial measures", Local 28, Sheet Metal
Workers1 International Association v.



14
EEOC. 106 S.Ct. 3019, 3052 (1986) (Opinion 
of Brennan, J.)/4 two principles are 
certain. One, that "..whatever the 
formulation employed, remedying past or 
present racial discrimination by a state 
actor is a sufficiently weighty state 
interest to warrant the remedial use of a 
carefully constructed affirmative action 
program", Wygant v. Jackson Board of 
Education. 106 S. Ct. 1842, 1853 (Opinion 
of O'Connor, J., slip p.3); and, two, that 
race-conscious remedies designed to 
eliminate the vestiges of discrimination 
can be used consistent with the Equal

4 See, Regents of the University of 
California v. Bakke, 438 U.S. 265, (four 
justices favoring strict scrutiny and four 
favoring intermediate scrutiny); Fullilove 
v. Klutznick, 448 U.S. 448 (1980) (three 
justices favoring strict scrutiny three 
favoring intermediate scrutiny and three 
declining to decide the issue.



15
Protection guarantees of the Fifth and 
Fourteenth Amendments. Wygant v. Jackson 
Board of Education. 106 S. Ct. 1842, 1848 
(1986) (Opinion of Powell, J. , joined by- 
Burger, C.J., and Rehnquist and O'Connor, 

id• at 1853 (Opinion of O'Connor, 
J •) » id. at 1861 (Opinion of Marshall, J., 
joined by Brennan and Blackmun, J.J.); id. 
1867-1868 (Opinion of Stevens, J.); 
Regents of the University of California v. 
Bakke, 438 U.S. 265, 320 (1978) (Opinion
of Powell , J.); idL. at 325 (Opinion of
Brennan, J., joined by White, Marshall and 
Blackmum, J.J); Local 28, Sheet Metal 
Workers' International Association v. 
EEOC, 106 S.Ct. 3019, 3052 (1986) (Opinion 
of Brennan, J., joined by Marshall, 
Blackmun and Stevens, J.J.); id. at 3054- 
55 (Opinion of Powell, J.).



16
This Court has likewise made plain 

that race-conscious affirmative relief 
need not be limited to victims of prior 
discrimination, Wygant v. Jackson Board of 
Education, 106 S. Ct. at 1853 (Opinion of 
O'Connor, J.); id. at 1863 (Opinion of 
Marshall, J.); id. at 1867-68 (Opinion of 
Stevens, J.); cf. id. at 1850 (Opinion of 
Powell, J.); see also Local 28, Sheet 
Metal Workers' International Association 
v . EEOC. 106 S.Ct. at 3052-53 (Opinion of
Brennan, J.); id. at 3054-57 (Opinion of 
Powell, J.); and that "innocent persons 
may be called upon to bear some of the 
burden of the remedy" Wygant v. Jackson 
Board of Education. 106 S. Ct. at 1850 
(Opinion of Powell, J.).



17

II. THE ROLE OF THE ALABAMA HIGHWAY
PATROL IN THE OPPRESSION OF 
BLACK PEOPLE IS IMPORTANT IN 
DETERMINING THE SCOPE OF THE 
REMEDY WHICH, THOUGH NARROWLY 
TAILORED, ACCOMPLISHES ITS 
PURPOSE

There can be no doubt, as the 
Solicitor General concedes, that 
government has a "compelling interest" in 
remedying racial discrimination practiced 
by a public employer. (Brief For The 
United States at 21) . Equally important 
however, is the fashioning of a remedy to 
eradicate the effects of that 
discrimination. In determining the scope 
of that remedy it is important to assess 
the scope of the effects of the 
discrimination that is to be remedied. 
Here, the history of the Alabama Highway



18
Patrol, as an instrument of oppression of 
black people, is critical to that 
assessment.

The current effects of that history
and the fact that their are still no
blacks above the rank of corporal,
demonstrates that the effects of that
awful history continue to linger. The
effects linger in the form of an all-white 
supervisory force; they linger in the form 
of intransigence by that supervisory force 
to the promotion of qualified blacks; and 
they linger in the form of social and 
official discrimination which led to an 
unusually high attrition rate for blacks 
who were hired.5

• The refusal of the department to

5 Order of August 5, 1975, JointAppendix 34.



19
incorporate blacks into any but the lowest 
level of the department, reenforce 
attitudes formed by the pernicious 
behavior of the Alabama Highway Patrol 
during the struggle for Civil Rights in 
the South.

In Williams v. Wallace, 240 F.Supp. 
100 (M.D. Ala. 1965), the District Court, 
Johnson, J., issued an injunction 
enjoining the Governor of the State of 
Alabama, George C. Wallace, the Director 
of Public Safety for the State of Alabama, 
Albert J. Lingo, and others, "from 
intimidating, threatening, coercing or 
interfering with the proposed march" from 
Selma, Alabama, to Montgomery, Alabama, in 
March of 1965. 240 F.Supp. at 109.

The court's order was precipitated by 
the continuous brutal conduct of the all­



20
white Alabama State Troopers, and their 
constant efforts to harass, intimidate, 
coerce, threaten and brutalize blacks 
engaged in demonstrations for the purpose 
of encouraging blacks in their attempt to 
register to vote, and to protest 
discriminatory voter registration 
practices in Alabama.

For example, the district court made 
the following findings with respect to the 
State Troopers’ efforts to disrupt the 
voter registration demonstrations in Perry 
County, Alabama:

[0]n February 18, 1965, when 
approximately 300 Negroes were 
engaged in a peaceful demon­
stration by marching from a 
Negro church to the Perry County 
Courthouse for the purpose of 
publicly protesting racially 
discriminatory voter registra­
tion practices in Perry County, 
Alabama, the Negro demonstra­
tors were stopped by the State 
troopers under the command of



21
the defendant Lingo, and the 
Negro demonstrators were at 
that time pushed, prodded, 
struck, beaten and knocked down. 
This action resulted in the 
injury of several Negroes, one 
of whom was shot by an Alabama 
State Trooper and subsequently died.

Williams v. Wallace. 240 F.Supp. at 104.
These efforts of the Alabama State 

Troopers and others came to a dramatic 
climax on Sunday, March 7, 1965.
Approximately 650 black demonstrators left 
the church in Selma, Alabama, for the 
purpose of walking to Montgomery, Alabama. 
There the demonstrators planned to present 
to the Governor their grievances concern­
ing the discriminatory voter registration 
practices in several central Alabama 
counties, and, the restrictions that had 
been imposed on their public demonstra­
tion in opposition to these practices.



As the demonstrators proceeded to the 
Edmund Pettus bridge near the south edge 
of the City of Selma, they were
"confronted by a detachment of 60 to 70 
State troopers headed by the defendant 
Colonel Lingo". Id. at 105. As detailed 
by the District Court, the troopers then 
proceed to implement their plan to 
disperse the demonstrators, using tactics 
"similar to those recommended for use by 
the United States Army to quell armed 
rioters in occupied countries." id. at 
105.

The troopers, equipped with tear 
gas, nausea gas and canisters of 
smoke, as well as billy clubs, 
advanced on the Negroes. 
Approximately 20 canisters of 
tear gas, nausea gas, and 
canisters of smoke were rolled 
into the Negroes by these State 
officers. The Negroes were then 
prodded, struck, beaten and 
knocked down by members of the 
Alabama State Troopers. The



23
mounted "possemen," supposedly 
acting as an auxiliary law 
enforcement unit of the Dallas 
County sheriff's office, then, 
on their horses, moved in and 
chased and beat the fleeing 
Negroes. Approximately 75 to 80 
of the Negroes were injured, 
with a large number being 
hospitalized.

Williams v. Wallace. 240 F.Supp. at 105.
These events not only obliged the 

court to grant the injunction restraining 
the brutal activities of the Alabama State 
Troopers, but also played a significant 
role in the subsequent passage of the 
Voting Rights Act of 1965.

The activities of the Alabama Highway 
Patrol were not however limited to 
disrupting the efforts of blacks to obtain 
access to the ballot box. Indeed Alabama 
State Troopers have been commonly used to 
enforce the racial status quo. In 1965 
the United States Commission on Civil



24
Rights documented several incidents in 
which local government agencies used 
violence and suppression to preserve the 
subservient position of blacks, by 
suppressing the attempts of local blacks 
to assert their constitutional rights. In 
each of the events cited by the 
Commission, local law enforcement agencies 
either refused to protect black 
demonstrators from violence, see. United 
States v. U.S. Klans. 194 F. Supp. 897 
(M.D. Ala. 1961), or were in fact the 
perpetrators of violence against the 
demonstrators.

The report makes specific mention of 
the Alabama State Troopers during a 
demonstration in Gadsden, Alabama, on June 
1, 1963.

A few days after the first
sit-in, city officials obtained



25
a State Court injunction that
prohibited demonstrators from 
blocking sidewalks, entrances to 
stores, and traffic, but 
expressly permitted certain 
types of peaceful demonstra­
tions. The next afternoon . . .
235 persons were arrested for 
violating the injunction. That 
evening a large group of Negroes 
assembled on the courthouse lawn 
to protest the arrests; they
were driven from the lawn by 
Alabama State troopers using 
cattle prods and nightsticks.

U.S. Commission on Civil Rights, Law
Enforcement; A Report on Equal Protection
in the South (1965), p.63.

Such actions by the Alabama Highway
Patrol put them in the forefront of the
brutal struggle to maintain the rigid
pattern of racial segregation that existed
in Alabama. Indeed when Governor George
C. Wallace made his infamous "stand in the
schoolhouse door" in defiance of a Federal
Court Order to desegregate the University



26
of Alabama, he was "flanked by state 
troopers".6 The backbone of this rigid 
policy of segregation was a series of laws 
requiring segregation, which the apparatus 
of the state was fully prepared to 
enforce.7

6 See New York Times, Wednesday, 
June 12, 1963, page 1.

7 See. e.q., United States of 
America v. The State of Alabama. Civil 
Action Number 83-C-1676-S. p.2. (Northern 
District of Alabama, Southern Division, 
December 7, 1985), wherein the court makes 
exhaustive findings regarding segregation 
in higher education in Alabama, and 
concludes that:

... the State of 
Alabama has indeed 
operated a dual system 
of higher education; 
that in certain 
respects, the dual 
system yet exists; and 
that in other 
respects, the "root 
and branches" of the 
dual system have not 
been eliminated.



27
Gunnar Myrdal, in his classic work An 

American Dilemma. uses Alabama as an 
example of the particularly egregious 
operation, administration and enforcement 
of discriminatory practices or laws. 
Noting that of all the black policemen, 
detectives, marshals, sheriffs,

As one district court observed, the 
"march of history" in Alabama was an 
"extensive and extended history of 
exclusion of blacks from the Alabama 
political and governmental system," which 
included discriminatory exclusion from 
jury service and from voting employment 
and educational opportunities. Whitehead
Y-i_Oliver. 339 F. Supp. 348, 355-57 (M.D.
Ala. 1975) (Three-Judge Court).

See also, Gunnar Myrdal, American 
Dilemma. 543, 635-36, 638-39, 952-53
(Pantheon Paperback 1964); N. Bartley, The 
Rise of Massive Resistance 87-88, 200-201 
(Louisiana State University Press 1969); 
Hawley, "Negro Employment in the 
Birmingham Metropolitan Area", in Selected 
Studies of Negro Employment in the South 
265 (National Planning Association ed. 
1951); Birmingham Area Chamber of 
Commerce, Century Plus 23 (1976) ; "Law
Enforcement", Birmingham 19-20 (Nov. 1969).



28
constables, probation and truant officers
in 193 0, only 7% were employed in the
South, Myrdal observes:

The geographic distribution of 
Negro policemen is in inverse 
relation to the percentage of 
Negroes in the total population. 
Mississippi, South Carolina, 
Louisiana, Georgia and Alabama- 
—  the only states with more 

' than 1/3 Negro population — have 
not one Negro policeman in them, 
though they have nearly 2/5 of 
the total Negro populations of 
the nation.

2 G. Myrdal, An American Dilemma 635-36 
(Pantheon Paperback 1964).

The discriminatory employment
practices of the Alabama Highway Patrol, 
combined with its specific history of 
brutality, served to reinforce a 
reputation in the black community which 
fostered mistrust and apprehension. In 
circumstances such as these the courts 
have often found that mandatory injunctive



29
relief is necessary to restore faith in
these institutions. In Morrow v. Crisler.
491 F. 2d 1053, 1055 (5th Cir. 1974) (en
banc ), cert, denied. 419 U.S. 895 (1974),
following intransigence on the part of the
Mississippi Highway Patrol similar to that
encountered by the court here, the Fifth
Circuit noted that some form of mandatory
injunctive relief would be essential if
the Patrol was to obtain the confidence of
the'black community:

The reputation of the Patrol in 
the black community as a 
discriminatory employer has 
posed a formidable obstacle to 
the achievement of a Patrol 
which has eradicated all of the 
effects of past discriminatory 
practices. . . . Since we are
not sanguine enough to be of the 
view that benign recruitment 
programs can purge in two years 
a reputation which
discriminatory practices of 
approximately 30 years have 
entrenched in the minds of 
blacks in Mississippi



30
additional . . . measures [must]
be taken. . . .
The experience of this Court and the 

lower courts has repeatedly demonstrated 
that as a practical matter there are 
secondary and indirect effects of racial 
discrimination which may often cause 
severe and enduring injuries. Rogers v. 
Paul. 382 U.S. 98, 200 (1965) (effect on
students of faculty segregation); 
Gladestone Realtors v. Bellwood, 441 U.S. 
91 (1979) (effect on whites of housing
discrimination against blacks). That the 
lower courts were aware of these effects 
is 'indicated by the following language 
from the Fifth Circuit's opinion in NAACP 
v. Allen. 493 F.2d at 621, which, while it 
is directed at a hiring ratio, is no less 
applicable to the promotion ratio 
currently under consideration.



31
The use of quota relief in 
employment discrimination cases 
is bottomed on the chancellor's 
duty to eradicate the continuing 
effects of past unlawful 
practices. By mandating the 
hiring of those who have been 
the object of discrimination, 
quota relief promptly operates 
to change the outward and 
visible signs of yesterday's 
racial distinctions and thus, to 
provide an impetus to the 
process of dismantling the 
barriers, psychological or 
otherwise, erected by past 
practices.

The Department's discriminatory policies 
permeated the entire agency, affecting 
both its employment policy and its 
treatment of black citizens. The profound 
impact of the Department's policies and 
history is not likely to be remedied by 
the simple inclusion of a few blacks at 
the lowest levels of employment with the 
agehcy. Indeed, failing to address the 
problem of promotion would be similar to



32
integrating a school system by having 
black students but no black teachers; or 
black teachers but no black principals. 
See e.q.. Rogers v. Paul. 382 U.S. at 200.

The one for one promotion ratio 
ordered in 1972 was designed to provide an 
impetus to promote blacks into positions 
above the rank of entry level trooper 
Paradise v. Shoemaker. 470 F. Supp. 439, 
442 (M.D. Ala. 1979). In order to obtain 
real change and to give the community a 
sense of that change, the district court 
recognized the necessity of insuring that 
blacks became part of the entire structure 
of the department. Such action is 
necessary to prevent discrimination 
against subordinate minority employees and 
the public.



33
III. THE REMEDY FASHIONED BY THE DISTRICT 

COURT TOOK APPROPRIATE CONSIDERATION 
OF CRITICALLY IMPORTANT PUBLIC SAFETY 

. CONCERNS

The special function of government 
and the responsibility of those empowered 
to enforce the law makes particularly 
compelling this Court's suggestion that 
promoting racial diversity in the 
workforce is a sufficiently compelling 
government interest to support
implementation of an affirmative action 
plan. See Wyqant v. Jackson Board of 
Education. 106 S.Ct. at 1863 (Opinion of
Marshall, J. , joined by Brennan and 
Blackmun, J.J.); id. at 1868 (Opinion of 
Stevens, J.). See also id. at 106 S.Ct. 
at 1853 (Opinion of O'Connor, J.).

Moreover it is precisely the evil of 
racial exclusion and other discriminatory



34
practices on the part of governmental 
employers that Congress sought to address 
when it made Title VII applicable to state 
and local governmental employers. 
Similarly in support of her contention 
that "the remediation of governmental 
discrimination is of unique importance",8 
Justice O'Connor specifically cited the 
legislative history of the 1972 Amendment 
to Title VII.

Th[e] failure of State and local 
governmental agencies to accord 
equal employment opportunities 
is particularly distressing in 
light of the importance that 
these agencies play in the daily 
lives of the average citizen.
From local law enforcement to 
social services, each citizen is 
in constant contact with many 
local agencies. The importance 
of equal opportunity in these 
agencies is, therefore, self- 
evident. . . . Discrimination

8 Wygant v. Jackson Board of
Education. 106 S.Ct. at 1855.



35
by government . . . serves a
doubly destructive purpose. The 
exclusion of minorities from 
effective participation in the 
bureaucracy not only promotes 
ignorance of minority problems 
in that particular community, 
but also creates mistrust, 
alienation, and all too often 
hostility toward the entire 
process of government.

S. Rep. No. 92-415 at 10 (92nd Cong., 1st
Sess. 1971)9

More specifically, both the Congress
and the United States Commission on Civil
Rights recognized the particular
importance of removing racial barriers to
employment with police agencies.

. . . Barriers to equal employ­
ment are greater in police and 
fire departments than in any 
other area of State and local 
government.. . . State police
forces employ very few Negro

9 Reprinted in Legislative History 
of the Equal Employment Opportunity Act of 
1972 (1972) at 419.



36
policemen. . . . Police and
fire departments have
discouraged minority persons
from joining their ranks by 
failure to recruit effectively 
and by permitting unequal
treatment on the job including
unequal promotional
opportunities, discriminatory 
job assignments, and harassment 
by fellow workers.. . . Unless
special precautions are taken, a 
past history of overt
discrimination may continue to 
deter minority applications for 
employment or advancement,
particularly with respect to 
positions which have not 
traditionally been held by 
minority persons.

United States Commission on Civil Rights,
For all the People . . .  By All the
People--A Report on Ecrual Opportunity in
State and Local Government Employment
(1969), reprinted as exhibit Legislative
History of the Eaual Employment
Opportunity Act of 1972 (92nd Cong. 1972)
p .1118-1119.

Almost twenty years ago the Report of



37
the National Advisory Commission on Civil
Disorders (Bantam Books ed., 1968),
pointedly noted circumstances which surely
apply to the Alabama Highway Patrol.

[F]or police in a Negro 
community to be predominantly 
white can serve as a dangerous 
irritant; a feeling may develop 
that the community is not being 
policed to maintain civil peace 
but to maintain the status quo.

Id. at 315.
The United States Civil Rights 

Commission in its publication, Who is 
Guarding the Guardians?: A Report on 
Police Practices (1981), made a similar 
observation while quoting a report of the 
National Minority Advisory Council on 
Criminal Justice, October 1980.10 The

10 The National Minority Advisory 
Council on Criminal Justice was 
established in June 1976 by the Law 
Enforcement Assistance Administration of 
the U.S. Department of Justice.



38
Advisory Council's report noted that the 
nation's first police force was developed 
in the South to prevent disruptions by 
slaves, and that typically the police 
share the society's views of minorities 
and those views are reflected in the 
police agencies dealings with minorities.

These and similar observations have 
led to the conclusion, noted by Justice 
Stevens, that it might reasonably be 
concluded that a racially diverse police 
force "could develop a better relationship 
with the community and thereby do a more 
effective job of maintaining law and order 
than a force composed only of white 
officers", Wycrant v. Jackson Board of 
Education. 106 S.Ct. at 1868, a view 
similarly expressed by the First, Second, 
Fourth, Fifth, Sixth, Seventh and Eighth



39
Circuits.11 These opinions share an 
awareness of the deleterious effect on the 
community of maintenance of segregated 
employment patterns in law enforcement 
agencies, which is not limited to lower 
level positions.

This need extends to the higher 
ranks in police departments, 
such as the rank of sergeant 
involved in this case:

If minority groups are

11 See Boston Chapter. NAACP v. 
Beecher. 679 F.2d 965, 977 (1st Cir. 
1982) ; Bridgeport Guard. Inc. v. 
Bridgeport Civil Serv. Com.. 482 F.2d
1333, 1340-41 (2d Cir. 1973); Talbert v.
City of Richmond. 648 F.2d 925, 931-32
(4th Cir. 1981), cert, denied. 454 U.S. 
145 (1982); NAACP V. Allen. 493 F.2d 614,
621 (5th Cir. 1974); Detroit Police 
Officers Ass'n. v. Young. 608 F.2d 671, 
695-96 (6th Cir. 1979); United States v. 
city of Chicago. 663 F. 2d 1354, 1364 (7th 
Cir. 1981) (en banc); Carter v. Gallagher. 
452 F. 2d 315, 331 (8th Cir. 1971) (en 
banc), cert, denied. 406 U.S. 950 (1972).
See also President's Commission on Law 

Enforcement and Administration of Justice, 
Task Force Report: The Police 167 (1969).



40
to feel that they are 
not policed entirely 
by a white police 
force, they must see 
that Negro or other 
minority officers
participate in policy­
making and other 
crucial decisions.

Detroit Police Officers' Ass'n. v. Young,
608 F.2d 671, 995 (6th Cir. 1979) (quoting
President's Commission on Law Enforcement
and the Administration of Justice, Task
Force Report: The Police 167) . See also,
Talbert v. City of Richmond. 648 F.2d 925,
932 (4th Cir. 1981).

As graphically reported by the Sixth
Circuit, the effects of black senior
officers can markedly change the tenor and
outcome of interactions between the police
and minority citizens.

The record established a pattern 
of mistreatment in the form of 
outright discrimination by white 
officers against black citizens



41
as well as more subtle 
discrimination in the handling 
of complaints and
investigations. A number of 
witnesses testified to the fact 
that many such incidents could 
have been avoided had black 
lieutenants been overseeing the 
interaction of police officers and black citizens.12
Given the brutal history of the

Alabama Highway Patrol and its active role
in the suppression of blacks, the view
taken by the Sixth Circuit in Bratton v.
City of Detroit. 704 F.2d 878, 897 n.44 is
particularly pertinent:

We have chosen to deal with the 
situation with regard to the 
Detroit citizenry as an element 
of our redress analysis. This 
is so because in Detroit the 
issue cannot be neatly 
categorized within the bounds of 
"operational needs." We are 
faced with far more than a 
generalized need for a police 
force which reflects the racial

12 Bratton v. City of Detroit. 704 
F.2d 878,895-96 (6th Cir. 1983).



42
composition of the city. We are 
faced, rather, with a population 
that has been subjected to 
constitutional indignities as a 
direct result of the 
discriminatory practices which 
have created and maintained a 
white-dominated police force. 
Whatever the appropriate 
semantics in such a situation, 
we are convinced that the facts 
present a constitutionally valid 
justification (a substantial 
governmental interest) for the 
implementation of this particular remedy.
Certainly no less than the police in 

the City of Detroit, Alabama State 
troopers subjected black people to a 
myriad of constitutional indignities. 
Indeed the symbolic nature of many of 
those abuses, such as the actions of the 
Alabama State Troopers during the March 
from Selma to Montgomery, are indelible 
symbols of racial intolerance. As the 
record in this case indicates, those 
actions were combined with a deliberate



43
policy of excluding blacks from their 
ranks, and once the most heinous of those 
abuses were no longer in the public eye, 
the Alabama Highway Patrol continued to 
obstruct the integration of its ranks.

The brutal practices of the Alabama 
Highway Patrol and their discriminatory 
employment history, as documented in the 
proceedings below, make plain that the 
state has an important and compelling 
interest in fully rectifying this 
situation.

Here, societal discrimination 
crystallized in an organization that 
symbolized the oppression of black people. 
The refusal of state authorities to 
integrate the organization was an 
indication of the reluctance of the State 
to yield this last bastion of white



44
supremacy to the demands of simple 
justice. This stance and the very nature 
of the State Troopers demanded 
comprehensive action on the part of the 
court, lest it neglect its "duty to render 
a decree which will so far as possible 
eliminate the discriminatory effects of 
the past as well as bar like 
discrimination in the future". Louisiana
V.__United States. 380 U.S. 145, 154
(1965) . Thus the operational need was 
both practical (an investigative and law 
enforcement agency needs the support of 
the people it protects, and must be seen 
as fair and even handed) and symbolic 
(ending the history of the Alabama Highway 
Patrol as an all-white tormentor of the 
black community) . The one for one 
promotion remedy appropriately reflects



45
the need to eradicate the effects of 
centuries of exclusion of black people 
from the power or ability to obtain 
personal security in Alabama.

IV. THE ONE FOR ONE PROMOTION RATIO
INTRODUCED BELOW, WAS NARROWLY 
TAILORED TO ERADICATE THE
DISABLING EFFECTS OF THE DEPART­
MENT'S PAST DISCRIMINATION, AND 
TO PREVENT FUTURE DISCRIMINATION

In Regents of the University of 
California v. Bakke, 438 U.S. at 307, 
Justice Powell asserted that the states 
have "a legitimate and substantial 
interest in ameliorating, or eliminating 
where feasible, the disabling effects of 
identified discrimination." However the 
formulation of the Solicitor General would 
define those effects so narrowly as to 
leave many of the most pernicious results



46
of the Alabama Highway Patrol's actions
untouched. Similarly by restricting the
available remedies to dismantling specific
procedures used to discriminate, the
government essentially resurrects the
arguments rejected by this Court last
term.

The state's interest in eradicating 
the effects of past discrimination 
encompasses not only the dismantling of 
the apparatus of discrimination, but also 
securing measures that will prevent future 
discrimination. Local 28, Sheet Metal 
Workers' International Association v. 
EEOC. 106 S.Ct. at 3049.

In the case of this defendant it is 
clear that the lower courts were 
confronted with a situation in which the 
entire structure of the Department was



47
permeated with intentional and persistent 
discrimination. Beginning with NAACP v. 
Allen, 340 F.Supp. 703, 705-6 (M.D. Ala. 
1972), aff'd. 493 F.2d 614 (5th Cir. 
1974), the district court found 
unequivocally that the Department "engaged 
in a blatant and continuous pattern and 
practice of discrimination in hiring", and 
that:

The racial discrimination in 
this instance has so permeated 
the Department of Public 
Safety's employment policies 
that both mandatory and 
prohibitory injunctive relief 
are necessary to end these 
discriminatory practices and to 
make some substantial progress 
toward eliminating their effects.
In 1975 the Court of Appeals 

observed:
As in Morrow, fv. Crisler. 491 
F. 2d 1053 (5th Cir. 1974)], the 
district court was confronted 
with (1) clear evidence of a



48
long history of intentional 
racial discrimination, (2) a 
paucity, if not a total absence 
of any positive efforts by the 
patrol to recruit minority 
personnel and (3) utilization of 
unvalidated employment criteria 
and selection procedures and 
other discriminatory practices.

NAACP v. Allen. 493 F.2d 614, 620-1 (5th
Cir. 1974).

Based on this record the Fifth 
Circuit upheld the district court's 
conclusion that numerical relief was 
essential toward making any "meaningful 
progress towards eliminating the 
unconstitutional practices and to overcome 
the patrol's thirty-seven year reputation 
as an all-white organization". Id.

Even after the Court of Appeals 
upheld the original hiring Order in this 
case, the district court found the 
Defendants, for the purpose of

« 5



49
"frustrating or delaying full relief to 
the plaintiff class", to have 
"artificially restricted the size of the 
trooper force and the number of troopers 
hired". Order of August 5, 1975 J.A.
3413.

Moreover the district court made the
following findings with respect to the
unusually high attrition rate for blacks
hired since 1977:

[T]he high attrition rate among 
blacks resulted from the 
selection of other than the best 
qualified blacks from the 
eligibility rosters, some social 

- and . official discrimination 
against blacks at the trooper 
training academy, preferential 
treatment of whites in some 
aspects of training and testing, 
and discipline of blacks harsher 
than that given whites for 
similar misconduct while on the 
force.

13 Citations to "J.A." 
Joint Appendix.

are to the



50
Id.

Shortly before the imposition of the
challenged order, the district court
rejected the promotion proposal of the
Patrol, finding that it failed to comply
with the requirements of the 1981 consent
decree that it be free of adverse impact.
After applying the Uniform Guidelines of
Selection Procedures, and noting that zero
blacks would be promoted under the
Patrol's plan, the court held:

Short of outright exclusion 
based on race, it is hard to 
conceive of a selection 
procedure which would have a 
greater discriminatory impact.
Paradise v. Prescott. 580 F. Supp.

171, 173 (M.D. Ala. 1983).
• This pattern of resistance on the 

part of the Department continued. Less 
than three years ago the district court



51
found:

On February 10, 1984, less than 
two months from today, twelve 
years will have passed since 
this court condemned the 
racially discriminatory policies 
and practices of the Alabama 
Department of Public Safety. 
Nevertheless, the effects of 
these policies and practices 
remain pervasive and conspicuous 
at all ranks above the entry- 
level position. Of the 6
majors, there is still not one 
black. Of the 25 captains, 
there is still not one black. 
Of the 35 lieutenants, there is 
still not one black. Of the 65 
sergeants, there is still not 
one black. And of the 66 
corporals, only four are black. 
Thus, the department still 
operates an upper rank structure 
in which almost every trooper 
obtained his position through 
procedures that totally excluded 
black persons. Moreover, the 
department is still without 
acceptable procedures for 
advancement of black troopers 
into this structure, and it does 
not appear that any procedures 
will be in place within the near 
future. The preceding scenario 
is intolerable and must not 
continue. The time has now 
arrived for the department to



52
take substantial steps to open 
the upper ranks to black 
troopers. (emphasis in
original)

Paradise v. Prescott. 585 F.Supp. 72, 74
(M.D. Ala. 1983).

Another clear example of the court's
concern with the Patrol's intention to
carry out the decree in good faith was its
response to the Department1s contention
that it "is without legal authority and
sufficiently trained personnel to design
any promotional procedures", pursuant to
its Consent Decree obligation to provide
for the advancement of black troopers into
the upper ranks of the Patrol. Order of
January 13, 1984 J.A. 138.

The Public Safety Department's 
contention that it is without 
legal authority is not only 
meritless, it is frivolous.
Moreover, that the Department of 
Public Safety would even advance



53
this argument dramatically 
demonstrates the need for the 
relief imposed by this court.
Such frivolous arguments serve 
no purpose other than to prolong 
the discriminatory effects of 
the department's 37-year history 
of racial discrimination.

Id. at 139.
Confronted with actions such as 

these the lower courts have frequently 
determined that positive action in the 
form of mandatory injunctive relief is 
necessary to overcome the effects of past 
discrimination and to prevent future 
discrimination. In a variety of 
circumstances where district courts have 
concluded that an employer would not obey 
a general injunction against employment 
discrimination, numerical hiring or 
promotion orders have been required simply 
to end continued intentional violations of



54
the law.14 Race conscious orders 
regarding the selection of supervisory- 
personnel15 or public employees16 have 
been utilized where district courts 
regarded them as necessary to prevent 
discrimination against subordinate workers 
or against the public. Where an employer 
has been found guilty of using a non-job 
related employment test, and no new test

14 See, e^g. NAACP v. Allen. 493
F.2d 614 (5th Cir. 1974); Morrow v.
Crisler, 491 F.2d 1053 (5th Cir. 1974).

15 See, e. q . McKenzie v. Sawyer. 684
F. 2d 62 (D.C. Cir. 1982) (3 of 5 members
of selection panel to be black); cf. 
Taylor v. Jones. 653 F.2d 1193 (8th Cir.
1981) (quota hiring necessary to end 
racist environment of virtually all white workforce).

16 See. e.q., Williams v. Vukovich. 
720 F. 2d 909 (6th Cir. 1983) (police); 
NAACP v. Beecher. 679 F.2d 965 (1st Cir.
1982) (police and fire); Morgan v.
Kerrigan. 530 F.2d 431 (1st Cir.
1976)(teachers).



55
has yet been framed, courts have directed 
that, as an interim measure, the old test 
may be utilized in combination with a 
race-conscious adjustment to eliminate the 
discriminatory effect of that test.17 
Even in providing relief for victims of 
past discrimination, judges have at times 
found it impracticable to frame decrees 
affecting thousands of potential victims 
of classwide discrimination with the same 
precision that might be possible in a 
single tort action.18

17 See, e. q ., Berkman v. City of New 
York. 705 F.2d 584 (2d Cir. 1983) (interim 
numerical hiring order necessary as 
"compliance relief"); Kirkland v. New York 
Dept, of Corrections. 628 F.2d 796 (2d 
Cir. 1980) (Interim order adding 250 
points to scores of minority applications 
on non-job related test).

18 Segar v. Smith. 738 F.2d 1249, 
1289 n. 36 (D.C. Cir. 1984) (individual­
ized hearings not required where 
impracticable) ; Association____ Against



56
Several circuits have concluded that 

in some situations the unlawful deterrent 
effect of an employer's well deserved 
reputation for discrimination could only 
be dissipated by a court ordered increase 
in the number of minority or female 
employees.19

Similarly, when lower courts have 
concluded that eradication of continuing 
discrimination required an alteration of 
the group of individuals involved in 
making critical personnel decisions, they 
have issued orders directing that

Discrimination v. City of Bridgeport. 20 
FEP Cases 985 (D.Conn. 1979) (where number 
but not identities of victim known, 
beneficiaries of decree to be chosen by 
lot among probable victims).

1 9 A s s o c i a t i o n _________Aga inst
Discrimination v. City of Bridgeport. 594 
F.2d 306, 311 n.13 (2nd Cir. 1979); Carter 
v. Gallagher. 452 F.2d 315, (8th Cir. 1971) .



57
specified numbers of minorities or females 
be included among officials responsible 
for recruiting new applicants,20 
considering appeals of rejected 
applicants,21 training newly hired 
workers,22 and, more broadly, evaluating 
all hiring and promotions.23 Such orders 
were upheld as "an effective method to 
prevent future discrimination".24

20 Commonwealth of Pennsylvania v. 
Rizzo. 13 FEP Cases 1475, 1483 (E.D. Pa. 
1975).

21 Id.
22 Williams v. City of New Orleans. 

543 F.Supp. 662, 682 (E.D. La. 1982), 
aff »d 729 F. 2d 1554 (5th Cir. 1984) (en 
banc); United States v. Operating 
Engineers. 4 FEP Cases 1088, 1097 (N.D. 
Cal. 1972).

23 Ostapowicz v. Johnson Bronze Co., 
12 FEP Cases 1230, 1232 (W.D. Pa. 1974).

24 Ostapowicz v. Johnson Bronze Co., 
541 F.2d 394, 404 (3rd 1976).



58
Absent the requirement that the 

Department be forced to include blacks 
among the upper ranks of the Patrol —  as 
envisioned by the original hiring order 
and subsequent consent decree —  the 
likelihood of substantial change in the 
Department was virtually nil. In effect, 
the situation was not unlike that 
confronted by the court in Taylor v. 
Jones, 495 F.Supp. 1285 (E.D. Ark. 1980),
aff»d. 653 F.2d 1193 (8th Cir. 1981),
where a black plaintiff had been driven 
from her position as one of the Arkansas 
National Guard's few minority workers 
after a long period of harassment. The 
trial court held that full relief required 
more than an order reinstating Taylor in 
the job involving the same "appalling 
conditions." 495 F.Supp. at 1294. The



59
judge found that, at the offices of the 
Guard,

as the environment approaches a 
fairer racial representation,

' the degree of racism tends to 
diminish. . . . [Plaintiff] has 
standing not only to seek
reinstatement, but to seek 
reinstatement in a work place 
where all people are treated 
with decency and respect. The 
Court finds that this goal will 
be materially impeded unless the 
Arkansas National Guard is
required to step up its
employment of qualified black 
persons. . . . There simply is
no other way to ensure that the 
law will be complied with in the 
future.

495 F.Supp. at 1294.25
The lower courts' choice of a one for 

one ratio was clearly based on its 
experience with the Department over a 12 
year period: a period during which the
defendant clearly demonstrated its

25 See also. Sosna v. Iowa. 419 U.S. 
393, 414 n. 1 (1975) (White, J., dissenting) .



60
willingness to exhibit exceptional
intransigence. The one for one promotion
ratio ordered by the court addresses this
intransigence as well as the government's
broad interest in eradicating the
lingering effects of discrimination and
preventing the continuation of that
discrimination into the future.

After almost half a century of
existence and 12 years of litigation, with
no real progress toward integrating the
upper rank structure, the district court
adopted a remedy that "promises
realistically to work, and promises
realistically to work now." (emphasis in
original) Green v. County School Board.
391 U.S. 430, 439 (1968).

As this Court noted last term
it is doubtful, given [the 
employer's] history in this



61
litigation, that the District 
Court had available to it any 
other effective remedy. That 
court, having had the parties 
before it over a period of time, 
was in the best position to 
judge whether an alternative 
remedy, would have been 
effective in ending petitioner's 
discriminatory practices.

Local 28, Sheet Metal Workers v. EEOC. 106
S.Ct. at 3056 (Opinion of Powell, J.).

The actions of the Patrol would have
required a permanent one for one ratio in
order to fully remedy, within this
generation, the effects of the Patrol's
adamant refusal to promote blacks.
However, in the exercise of its equitable
discretion, the district court's order,
abandoning the one for one ratio as soon
as a non-discriminatory promotion
procedure was developed, proved a
practical solution which reconciled both
public and private needs. United States



62
v. Montgomery County Board of Education. 
395 U.S. 225 (1969).

In framing remedial decrees, the 
federal courts act in a complex world in 
which it is at times impossible to 
reconstruct the past. If they are to be 
successful in meeting the demands for 
justice in the face of intransigent 
opposition, they must have the tools to 
implement remedies that are feasible and 
promising in their effectiveness.



63

CONCLUSION

For the above reasons the decision of 
the court of appeals should be affirmed.

Respectfully submitted,

JULIUS L. CHAMBERS 
RONALD L. ELLIS 
PENDA HAIR 
ERIC SCHNAPPER 
CLYDE E. MURPHY*
99 Hudson Street 
16th Floor

New York, New York 10013 
(212) 219-1900
Counsel for Amicus
♦Counsel of Record



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