United States v. Paradise, Jr. Reply Brief for Petitioner

    No. 85-999

31 n t\)t Supreme Court of ttje Hntteb States
O ctober T erm , 1986

U nited  States of A m erica , petitioner

v .

P hillip P a r a d ise , Jr ., et a l .

ON WRIT OF CERTIORARI TO 
THE UNITED STA TES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

Charles Fried 
Solicitor General 
Department o f Justice 
Washington, D.C. 20530 
(202) 633-2217



'



TABLE OF AUTHORITIES

Cases: Page
Bazemore v. Friday, No. 85-93 (July 1, 1986)....................  11
Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 9
Fullilove v. Klutznick, 448 U.S. 448 .................................... 14
NAACP  v. Allen, 340 F. Supp. 703 .................................... 6
Regents o f the University o f California v. Bakke, 438 U.S.

265 ......................................................................................  13
Sheet Metal Workers v. EEOC, No. 84-1656 (July 2,

1986) ........................................................................9, 10, 12, 14
Swann v. Charlotte-Mecklenhurg Bd. o f Education, 402

U.S. 1 .................................................................................. 11
Wygant v. Jackson Board o f Education, No. 84-1340 

(May 19, 1986)................................................................7, 11, 12

Constitution and statute:

U.S. Const. Amend. XIV (Equal Protection Clause)........  1
Ala. Code § 36-26-17 (1975)...............................................  13

Miscellaneous:

Uniform Guidelines on Employee Selection Procedures,
43 Fed. Reg. 38290 (1978)................................................ 5

(III)



3n tf)t Supreme Court of tfje Mnttetr states.
O ctober T erm , 1986

No. 85-999
U nited  States of A m erica , petitioner 

v.
P hillip P a ra dise , Jr ., et a l .

ON WRIT OF CERTIORARI TO 
THE UNITED ST A TES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

It is not hard to see why respondents and their amici 
should devote so many words and such lofty rhetoric to 
questions of law not properly before this Court and to 
questions of fact not raised by the record below. Respond­
ents and amici have much to say about the propriety as a 
general and abstract matter of numerical race-conscious 
relief, about the desirability of having black officers in the 
upper ranks of a police force to satisfy “operational 
needs,” and about the lamentable role of the Alabama 
State Troopers in the civil rights struggles of the sixties. 
But respondents and amici have remarkably little to say 
about the precise and narrow issue on which this Court 
granted certiorari: whether in the particular context of this 
case —a context that included an alternative proportional 
promotion schedule offered by the defendants and acqui­
esced in by the United States —the district court’s order of 
a one-for-one quota was sufficiently “narrowly tailored” 
to satisfy the demands of strict scrutiny under the Equal 
Protection Clause.

( 1)



2

1. Before all it is imperative to keep in sight the fact that 
the district court ordered the one-for-one promotion 
quota in the face of an offer by the Department of Public 
Safety to effect the next batch of promotions by pro­
moting four blacks and eleven whites. This offer was made 
in response to the district court’s order —the order that 
furnished the occasion for this phase of the litigation — 
that the Department submit “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). The district court not only rejected the Department’s 
offer, but stated that, had the moving plaintiffs argued 
“that all 15 of the new corporals should be black,” it would 
have been inclined to grant that request too (Pet. App. 61a 
n.l). Now on another day in another case there may be oc­
casion to inquire whether a promotion schedule like that 
offered by the Department is necessary and appropriate to 
comply with a consent decree requiring that an employer 
maintain a promotion system that “will have little or no 
adverse impact upon blacks” (J.A. 40). But in the instant 
case the question is not whether resort to race-conscious 
relief is permissible as a general matter; the consent 
decrees, whose validity is unquestioned here, by their 
terms “mandated race-conscious promotion procedures” 
(Resp. Br. 22). The district court was thus confronted with 
alternative race-conscious promotion proposals, and the 
question in this case is whether the one that it adopted was 
“narrowly tailored” within the meaning of this Court’s 
decisions.

When all the smoke generated by our opponents’ 
rhetoric clears, one is surprised to conclude that they seem 
in large measure to agree with our basic position. Re­
spondents effectively concede that the one-for-one quota 
should be tested under “strict scrutiny” (Br. 17-18); they 
seem to agree that the quota cannot be defended as a mere 
effort to promote “racial balance” {id. at 25); and they



3

appear to concede that the quota’s legitimacy must be 
gauged by analyzing it as a measure designed to “enforc[e] 
the Department’s consent decree commitments” (id. at 18, 
20, 25, 26). Against this backdrop of consensus, our con­
tention is a simple one —that the district court’s imposition 
of a one-for-one quota was not an appropriate method (in­
deed, was scarcely even a rational method) of enforcing 
the Department’s consent decree commitments, and hence 
it served no legitimate function; when compared with the 
Department’s own proposal, the one-for-one quota thus 
stands revealed as a harsh and ill-considered gesture of im­
patience rather than a remedy carefully tailored to avoid 
unnecessarily trammelling the rights of innocent white 
candidates.

One might say that respondents in a sense agree even 
with this latter contention of ours because they seem to 
concede that the one-for-one quota imposed at the time of 
February 1984 promotions had no intrinsic appropriate­
ness. Respondents seek to justify that quota principally on 
the grounds that it was “temporary” and “conditional” 
(Br. 27). So one is moved to ask: temporary until when, 
and conditional upon what? And the astonishing answer 
that comes from those who oppose us is that the time is 
July 27, 1984, and that the promotions carried out on that 
date were quite sufficient to satisfy the condition. But that 
set of promotions, which advanced three blacks and ten 
whites to the rank of corporal (Pet. App. 47a; J.A. 160, 
163-164), was no more favorable to blacks —indeed, it was 
marginally less favorable to blacks —than the four-for- 
eleven promotion schedule originally offered by the 
Department, acquiesced in by the United States, and re­
jected by the district court in favor of the one-for-one 
quota that we challenge today. Respondents thus defend 
the quota, not intrinsically, but as a device to get the 
Department to do what it had already declared itself ready 
and willing to do.



4

2. Respondents seek to extricate themselves from this 
dilemma by raising the spectre of the Department’s 
“history of recalcitrance” (Br. 13) and “history of obstruc­
tionism” (id. at 33), asserting that extreme measures were 
needed to overcome such resistance. We are quick to 
acknowledge that the Department’s history —including 
some events long past —lends surface appeal to this argu­
mentative tack. The Alabama Department of Public Safe­
ty unquestionably behaved shamefully during the civil 
rights struggles of the sixties; it was properly found guilty 
of racial discrimination in 1972; and it was properly repri­
manded for foot-dragging in remedying that discrimina­
tion in 1975. But the propriety of the one-for-one promo­
tion quota must be assessed as of the date on which it was 
imposed, and we do not think that the Department in 
December 1983 could fairly be charged with recalcitrance 
or with operating what amicus calls a “regime of racism” 
(Lawyers’ Comm. Amicus Br. 7, 12).

As of December 1983, the Department had faithfully 
complied with the one-for-one hiring quota for eight 
years, to the point where the overall trooper force was “ap­
proximately 22%-23% black” (J.A. 62).1 The Department 
signed a consent decree respecting promotions in 1979, 
and the record shows that during the ensuing four years 
the Department was continuously engaged in efforts to 
satisfy the dual requirements —concerning “validation” 
and “no adverse impact” —that the consent decree im­
posed. Consistently with the 1979 “Agreement of Counsel” 
(J.A. 46-48), the Department promoted four blacks and

1 The Lawyers’ Committee as amicus asserts (Br. 6) that “[t]he 
Department has continuously frustrated [the district court’s 1972] 
order.” While the Department concededly sought to frustrate the 
district court’s 1972 order until 1975, there is absolutely no evidence in 
the record that it did so after 1975. Indeed, it appears that the percent­
age of blacks in the overall trooper force has now reached parity 
(25%), so that the specific objective of the district court’s 1972 order 
has now been accomplished. See U.S. Br. 4 n.l.



5

six whites as an interim measure (J.A. 62) and proceeded 
to develop a new corporal’s examination that was submit­
ted for approval in April 1981 (Pet. App. 12a & n.8). The 
parties disagreed about the examination’s validity, as the 
1979 decree had contemplated that they might do (see id. 
at 69a), and the parties accordingly signed a second con­
sent decree in 1981. As required by the latter decree, the 
Department administered and scored the corporal’s ex­
amination, then analyzed its results to ascertain whether it 
had an “adverse impact.” When Paradise and the United 
States protested that it did, the Department offered to rec­
tify the imbalance by promoting blacks at a 20% rate com­
mensurate with their availability (J.A. 61). When Paradise 
rejected this offer {ibid.) and moved for enforcement of 
the decrees, the Department promptly responded with a 
proposal to promote four blacks and eleven whites, a pro­
posal that squarely satisfied the district court’s order that 
it submit a plan to promote “at least 15 persons in a man­
ner that will not have an adverse racial impact” (J.A. 123). 
And after the district court rejected that offer and instead 
imposed the one-for-one quota that we challenge, the 
Department promptly submitted procedures for promo­
tions first to corporal and then to sergeant, procedures 
that the district court has provisionally approved. See U.S. 
Br. 12-13 & n.5.

This history does not smack of recalcitrance or obstruc­
tionism. The chief fault that may be laid at the Depart­
ment’s door after 1979 was its failure to submit, within the 
promised one-year period, a procedure for corporal pro­
motions that complied with the 1979 decree. See U.S. Br. 
5-6; Resp. Br. 22-23. But this tardiness cannot be thought 
to evidence “recalcitrance” given the difficulty of the task 
that the Department had undertaken. The 1979 decree re­
quired that the promotion procedure both be validated as 
job-related under the Uniform Guidelines and “in addi­
tion, * * * have little or no adverse impact on blacks”



6

(J.A. 40). As the district court itself recognized in de­
clining to require validation of the Department’s hiring 
procedures in 1972, the validation process alone can “take 
several years.” N AACP  v. Allen, 340 F. Supp. 703, 706 
(M.D. Ala. 1972). And as the parties recognized below 
(Pet. App. 66a), the existence of an “adverse impact” can­
not be determined until a promotion procedure, once de­
veloped, has actually been administered and its results 
scrutinized. The Department’s pledge to accomplish this 
within a year might well be thought ambitious, and there is 
nothing in the record to suggest that its failure to meet that 
deadline evidenced bad faith.2

Whatever construction is put on the Department’s 
failure to meet its deadline, respondents still do not ex­
plain why a one-for-one quota should have been imposed 
instead of the four-for-eleven schedule that the Depart­
ment proffered. Respondents suggest by their rhetoric that

2 Respondents suggest (Br. 31 n.31) that recalcitrance may be in­
ferred from the fact that, “[a]fter having failed for almost five years to 
develop a promotion procedure that conformed to its consent decree 
commitments, the Department developed what it claimed was an ac­
ceptable procedure within seven months” after the one-for-one quota 
was imposed. This suggestion borders on the disingenuous. In approv­
ing in July 1984 the Department’s proposal to promote three blacks 
and ten whites, the district court concluded that that selection pro­
cedure satisfied one of the Department’s consent decree commitments, 
viz., the requirement that promotions be made with no adverse impact 
on blacks. Of course, the Department’s earlier proposal to promote 
four blacks and eleven whites would have satisfied that requirement 
just as well. The district court, however, did not conclude that the July 
1984 procedure satisfied the second of the Department’s consent 
decree commitments, viz., the requirement that the procedure be 
validated as job-related. To the contrary, the court directed the parties 
to “proceed with discovery on the issue whether the selection pro­
cedure * * * can be validated as job-related pursuant to The Uniform 
Guidelines * * * and thus shown to be in compliance with the 1979 
and 1981 consent decrees” (J.A. 164). As noted in the text and in our 
opening brief (at 24-25 n.13), the validation process is extremely time- 
consuming.



7

the quota was needed to goad the Department into making 
the concededly satisfactory responses that it has made 
since the one-for-one quota entered the picture. But if that 
is respondents’ argument, it falls of its own weight. The 
concededly satisfactory responses that the Department has 
since made consist of promoting three blacks and ten 
whites to corporal and promoting two blacks and eleven 
whites to sergeant. See U.S. Br. 12-13 & n.5. But those 
responses were no more consistent with the consent 
decree’s no-adverse-impact standard than was the Depart­
ment’s original proposal to promote four blacks and 
eleven whites, an offer that the district court rejected. If 
the district court saw fit to suspend the one-for-one quota 
for the July and August promotions, it is hard to see why 
the quota had to be applied to the February promotions 
either —except perhaps as a symbolic gesture to show that 
the district court really meant business. We think that this 
Court’s decisions requiring that race-conscious remedies 
be tested by “strict scrutiny” require something more than 
this.

3. Even if respondents had demonstrated a need for a 
remedy with in terrorem aspects, the one-for-one promo­
tion quota would nonetheless be impermissible. In judging 
whether race-conscious remedies are “narrowly tailored,” 
a court must consider “whether lawful alternative and less 
restrictive means could have been used.” Wygant v. 
Jackson Board o f  Education, No. 84-1340 (May 19, 1986), 
slip op. 11 & n.6 (opinion of Powell, J.). In our opening 
brief (at 23-30), we emphasized that less restrictive alterna­
tives were plainly available to the district court: it could 
have accepted the Department’s offer to promote four 
blacks and eleven whites, solving the immediate need to 
promote 15 corporals “within the spirit of * * * the par­
ties’ consent decrees” (J.A. 59); and, if an in terrorem 
message were also judged necessary, it could have imposed 
fines or other sanctions (such as the appointment of an ad­



8

ministrator) pending the Department’s development of an 
acceptable long-term promotion plan. We noted also that 
race-neutral devices could have been used to expedite the 
progress of blacks into the Department’s upper ranks, 
such as modification of the Department’s time-in-grade or 
promotion-from-within rules. See U.S. Br. 35 n.17.

Respondents and amici make no serious effort to 
demonstrate the inefficacy of these alternatives. Respond­
ents assert that adoption of the Department’s four-for- 
eleven proposal, standing alone, “would have done 
nothing to prevent continued recalcitrance,” and that the 
imposition of sanctions, standing alone, “would not have 
allowed the Department to meet its immediate need of at 
least 15 new corporals” (Resp. Br. 32). This statement is 
quite beside the point, for we suggested that these 
remedies be invoked, not in isolation, but in conjunction. 
Respondents (Br. 32), joined by amicus Lawyers’ Commit­
tee (Br. 8, 20, 25, 26-27), assert that appointment of an ad­
ministrator or modification of time-in-grade rules would 
have been constitutionally objectionable because “more 
intrusive on the Department.” But this Court’s decisions 
mandating consideration of less intrusive alternatives to 
racial quotas plainly require a focus on alternatives that 
are less racially intrusive; “intrusiveness” must be judged 
by impact upon the disadvantaged racial group, not upon 
the employer as an institution. And we know of no sup­
port whatsoever for the idea that racial quotas are to be 
preferred to fines as a means of enforcing consent decrees, 
on the theory that “[mjoney sanctions would harm only 
[the state’s] taxpayers” (Lawyers’ Comm. Amicus Br. 25).3

3 Other amici make equally inaccurate statements about the availa­
bility of alternative remedies. The City of Birmingham asserts that the 
district court in 1983 was “faced with the two unacceptable alterna­
tives” of “an outright ban on * * * promotions, or continued use of a 
discriminatory selection procedure” (Br. 26 (original quotations 
omitted)). That statement is doubly flawed: none of the Department’s 
selection procedures for promotion has ever been found to be



9

4. In our opening brief (at 30-35), anticipating a possible 
argument of respondents, we urged that the one-for-one 
quota could not be independently justified as a measure 
designed to achieve “racial balance.” Although respond­
ents and amici speak of the desirability of racial balance as 
a long-term societal goal, we do not understand them at 
the end of the day to rely on racial balance to justify the 
district court’s application of the one-for-one promotion 
quota. As we have said, respondents praise the quota as 
strictly “temporary” and “conditional” and emphasize that 
it “has been used for only one set of promotions” (Br. 27). 
The irrelevancy of the quota’s efficacy in achieving racial 
balance is thus effectively conceded, and we see no need to 
reiterate our arguments on this score.4

“discriminatory,” and the district court in any event was faced with 
other lawful alternatives, most notably the Department’s four-for- 
eleven proposal. The NAACP Legal Defense Fund asserts (Br. 11-12) 
that “[plainly the court below considered the availability and efficacy 
of other remedies.” The court below plainly did not; at least it did not 
consider them in its written opinion.

4 Although respondents seem to agree that the furthering of racial 
balance is not a compelling governmental interest, they suggest at one 
point that the “racial imbalances” in the Department’s upper ranks are 
“obvious effects” of past discriminatory practices, and that the one- 
for-one quota is justifiable as an attempt to eliminate such alleged “ef­
fects” (Resp. Br. 25-26). Apart from the fact that the consent decrees 
themselves, in mandating the implementation of a proportional pro­
motion procedure, already contained a mechanism to expedite blacks’ 
progress into the Department’s upper ranks, respondents’ argument in 
any event is incorrect. As we discussed in our opening brief (at 30-35), 
this Court made clear last Term that race-conscious remedial efforts 
are appropriate only to remove continuing barriers, such as “informal 
mechanisms [that] obstruct equal employment opportunities” (Sheet 
Metal Workers v. EEOC, No. 84-1656 (July 2, 1986), slip op. 24 
(plurality opinion)), rather than to bring about some ideal racial 
balance that would theoretically have existed if the employer had 
never discriminated at all. See, e.g., Firefighters Local Union No. 
1784 v. Stotts, 467 U.S. 561, 587-588 (1984) (O’Connor, J., con­
curring) (“[A] court may use its remedial powers * * * only to prevent



10

5. Whereas respondents seek to justify the one-for-one 
quota as a mode of “enforcing] the Department’s consent 
decree commitments” (Br. 25), amici proffer various alter­
native rationales. The Lawyers’ Committee urges that the 
quota satisfies strict scrutiny because it was designed to 
eradicate a supposed “institutional bias” against black can­
didates for promotion (Br. 7, 8, 12, 16, 18, 20, 24, 25). 
This argument aims to capitalize on this Court’s observa­
tion in Sheet Metal Workers v. EEOC, No. 84-1656 (July 
2, 1986), that “the lingering effects” of past discrimination 
may include “informal mechanisms [that] obstruct equal 
employment opportunities,” such as an old-boy network 
that frustrates black applicants (slip op. 24, 51-52 (plurali­
ty opinion), cited in Lawyers’ Comm. Amicus Br. 11). 
Amicus would have this Court believe that the district 
judge made findings of fact concerning the existence of 
“institutional bias,” then carefully tailored a remedy in the 
form of a one-for-one quota specifically to address that 
problem. Indeed, amicus asserts that “[t]he district court’s 
choice of this ratio * * * [was] based on its conclusion 
that institutional bias persists” (Br. 21) and “was based on 
its determination * * * that lesser measures could not ade­
quately and expeditiously dismantle the Department’s in­
stitutional bias” (id. at 8).

Amicus has made all of this up out of whole cloth. The 
words “institutional bias” recur at least twenty times in 
amicus’s brief; one searches the record in vain for that 
phrase. The truth is that this argument was not raised by

future violations and to compensate identified victims of unlawful 
discrimination.”) (citations omitted). Cf. Swann v. Charlotte- 
Mecklenburg Bd. o f Education, 402 U.S. 1, 28 (1971) (“When school 
authorities present a district court with a ‘loaded game board,’ affirm­
ative action in the form of remedial altering of attendance zones is 
proper to achieve truly nondiscriminatory assignments.”); Bazemore 
v. Friday, No. 85-93 (July 1, 1986), slip op. 2-3 (White, J., for the 
Court).



11

any party below and was neither relied on nor mentioned 
by either court below. The issue of promotions has been 
addressed exclusively in consent decrees and never at trial, 
and no evidence has even been submitted about the exist­
ence of “informal mechanisms” or “institutional bias” that 
might impede blacks’ access to the upper ranks of/DeparT 
ment. The pattern of promotions since 1979 surely sug­
gests no inference of “institutional bias,” for each set of 
promotions to corporal since 1979 has been at least pro­
portional as between blacks and whites. Because the 
district court was faced with no allegations of “institu­
tional bias,” and because the Department a fortiori has 
had no opportunity to rebut such allegations, it is not 
possible here to assess whether the elimination of “institu­
tional bias” would be a compelling governmental interest. 
Nor is it possible, in the absence of any factual predicate, 
to determine whether a one-for-one promotion quota 
would qualify as “narrowly tailored” to address such an 
objective.

Much the same can be said of the argument, advanced 
by several amici, that the one-for-one quota satisfies strict 
scrutiny because it was designed to meet the “operational 
needs” of the Alabama Department of Public Safety, such 
as the need to assure good community relations. See 
Lawyers’ Comm. Amicus Br. 18; New York Amicus Br. 3, 
8-9; Detroit Amicus Br. 5-16; NAACP Legal Defense 
Fund Amicus Br. 33-35. This argument apparently seeks 
to capitalize on Justice Stevens’ dissent in Wygant, where 
he suggested that the exigencies of law enforcement may 
sometimes rationalize race-conscious classification. “To 
take the most obvious example,” Justice Stevens wrote, “if 
an undercover agent is needed to infiltrate a group 
suspected of ongoing criminal behavior —and if the 
members of the group are all of the same race —it would 
seem perfectly rational to employ an agent of that race 
rather than a member of a different racial class” (slip op. 
2-3). “Similarly,” Justice Stevens continued, “in a city with



12

a recent history of racial unrest, the superintendent of 
police might reasonably conclude that an integrated police 
force could develop a better relationship with the com­
munity and thereby do a more effective job of maintaining 
law and order” (id. at 3).

The short answer to amici’s argument is that this “opera­
tional needs” theory, like the “institutional bias” theory, 
was not advanced by any party and was not addressed by 
either court below. Even if there were a factual predicate 
for this argument, which there is not, the argument could 
not be presented, least of all by an amicus, for the first 
time in this Court. There is thus no occasion for the Court 
here to consider if and when the satisfaction of a law en­
forcement agency’s operational needs might be a “compel­
ling governmental interest” justifying race-conscious 
classification, or whether a one-for-one promotion quota 
could ever qualify as “narrowly tailored” to achieve such a 
goal.5

6. Respondents and amici seek to minimize the impact 
of the one-for-one quota on white competitors for promo­
tions, and to assimilate that burden to the more diffuse 
burden found by this Court to be acceptable on occasion 
in the case of race-conscious remedies at the hiring stage. 
Respondents are far from appreciating the real harm that 
this quota inflicts. One must consider both “the effect

5 We note that, if a race-conscious promotion scheme could ever be 
defended on “operational needs” grounds, that scheme would have to 
be adopted in the first instance by the law enforcement agency itself, 
as necessary in its view to the successful discharge of its respon­
sibilities. Moreover, because the “operational needs” theory seeks to 
justify race-conscious relief on grounds other than remedying prior 
discrimination and its effects, we have serious doubts whether that 
theory would ever authorize the imposition of a race-conscious pro­
motion quota. Cf. Wygant, slip op. 7 (plurality opinion) (rejecting 
role model theory since it “does not necessarily bear a relationship to 
the harm caused by prior discriminatory hiring practices”); id. at 5 
(O’Connor, J., concurring) (same).



13

* * * and the diffuseness of the burden imposed on inno­
cent nonminorities.” Sheet Metal Workers, slip op. 6 n.3 
(Powell, J., concurring (emphasis added)).

The one-for-one quota is objectionable in both respects. 
The effect of the quota is to frustrate innocent persons’ 
legitimate promotional expectations; contrary to respond­
ents’ suggestion (Br. 9 & n. 10, 41 & n.42), those expecta­
tions are not based on seniority alone, but are premised on 
the right to be considered for civil service promotion based 
on one’s merit rather than on the color of one’s skin. See 
Regents o f the University o f  California v. Bakke, 438 U.S. 
265, 319 n.53 (1978) (opinion of Powell, J.) (“Fairness in 
individual competition for opportunities, especially those 
provided by the State, is a widely cherished American 
ethic.”). And the impact of the quota, while not focused 
uniquely upon a single individual, is plainly not diffused 
“among society generally,” as may be true when hiring is 
involved ( Wygant, slip op. 14-15 (opinion of Powell, J.)). 
The individuals passed over by operation of the instant 
quota were readily identifiable, particularly since the 
Department normally made promotions in rank order 
(subject to the “rule of three”) based on competitive 
results.6 And whereas an individual at the hiring stage 
typically has the option of applying for many jobs, a

6 Under the “rule of three,” the Department considered “three rank­
ing eligibles” for a promotion, “and, if more than one vacancy [was] 
to be filled, the name of one additional eligible for each additional 
vacancy.” Ala. Code § 36-26-17 (1975), cited in Resp. Br. 12 n.13. 
Thus, if the Department sought to fill 15 vacancies, it would consider 
the 17 highest-ranked candidates. Although this of course means that 
a highly-ranked candidate under the Department’s merit system has no 
absolute guarantee of promotion, that does not make the disruptive 
effect of the promotion quota “diffuse.” The burden of a race­
conscious layoff scheme would not be called “diffuse” merely because 
the 15 white workers to be fired were chosen by lot from a list of 17
names.



14

trooper-level employee hoping for promotion in the Ala­
bama Department of Public Safety has only one job for 
which to apply, and that is the job of corporal.

7. Finally, respondents seem to suggest (Br. 27) that the 
district court was free to dispense with all measure of con­
sideration and restraint because it was simply enforcing a 
consent decree to which the Department had previously 
agreed. To lend color to this suggestion, respondents stress 
the district court’s closeness to the case and its familiarity 
with local conditions. Decisions to impose racial quotas, 
respondents say, should be reviewed under an abuse-of- 
discretion standard (Br. 28), like decisions about mis­
joinder of parties.

A district court’s enforcement powers, alone or 
strengthened by a tincture of local expertise, cannot serve 
as a universal solvent, doing away with all constitutional 
limitations. A district court generally has wide latitude in 
declaring remedies; but when the remedy discriminates on 
the basis of race, the court’s action must be closely ex­
amined. Strict scrutiny would not be strict if race­
conscious remedies were scanned only to see if discretion 
had been abused.7 Respondents rather cavalierly dismiss 
the rights of white applicants for promotion, suggesting 
that this case really comes down to numbers and that, 
when it comes to numbers, one can give or take a few

7 Respondents cite Full Hove v. Klutznick, 448 U.S. 448, 508 (1980) 
(Powell, J., concurring), for the proposition that a district court’s 
remedial powers are somehow immune from the constitutional limita­
tions that would otherwise apply. See Resp. Br. 27-28. But Justice 
Powell there cautioned that district courts must exercise their remedial 
powers “within appropriate constitutional or statutory limits” (ibid.). 
One of the basic constitutional limits on racial classifications is that 
they may not be used unless they are narrowly tailored to accomplish a 
compelling governmental purpose. This Court has never suggested 
that racially discriminatory devices are merely one of many options in 
a judge’s remedial arsenal, to be employed or not as he sees fit in a 
simple exercise of discretion. If effective, non-racial alternatives are



15

without its much mattering. Whether a different array of 
numbers “would have served the purpose of the district 
court’s one-for-one order equally well,” respondents 
assert, “is not the question” before this Court (Br. 37). To 
the contrary, if strict security means what we believe it 
means, that emphatically is the question. Although re­
spondents properly recognize that the dispute before this 
Court is a narrow one, they err in trivializing the import­
ance of the constitutional principles at stake.

For these reasons and those set forth in our opening 
brief, the judgment of the court of appeals should be 
reversed with respect to the question presented.

Respectfully submitted.

Charles Fried 
Solicitor General

October 1986

available, racial discrimination is by definition unnecessary and thus 
under strict scrutiny constitutionally impermissible. Indeed, this 
Court reaffirmed just last Term that the same constitutional test ap­
plies to judicial action as to other state action. See Sheet Metal 
Workers, slip op. 50-51 (plurality opinion); id. at 4 (Powell, J., con­
curring). And the Chief Justice’s opinion in Fullilove stressed that the 
“limited remedial powers of a federal court” are more constrained 
than those of Congress (448 U.S. at 480, 483).

■.. U.S. GOVERNMENT PRINTING OFFICE: 1986-181-483/40049