Detroit Police Officers' Association v. Young Brief for Appellants Coleman A. Young
Public Court Documents
July 24, 1978
Cite this item
-
Brief Collection, LDF Court Filings. Detroit Police Officers' Association v. Young Brief for Appellants Coleman A. Young, 1978. 47fd4bae-af9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4d1cbe21-074d-4621-bd07-301a54a909dd/detroit-police-officers-association-v-young-brief-for-appellants-coleman-a-young. Accessed May 21, 2025.
Copied!
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NO. 78-1163
DETROIT POLICE OFFICERS' ASSOCIATION,
et al.,
Plaintiffs-Appellees,
v.
COLEMAN A. YOUNG, et al. ,
Defendants-Appellants.
On Appeal From The United States District Court
For The Eastern District Of Michigan
BRIEF FOR APPELLANTS COLEMAN A. YOUNG, ET AL.
BARRY L. GOLDSTEIN
806 15th Street, N.W.,
Washington, D. C. 20006
JACK GREENBERG
JAMES M. NABRIT, III
O. PETER SHERWOOD
LOWELL JOHNSTON
PATRICK O. PATTERSON
t 10 Columbus Circle
Suite 2030
New York, New York 10019
ROGER E. CRAIG
Suite 940 ANNA DIGGS-TAYLOR
NANCY McCAUGHAN-BLOUNT
JAMES ZEMAN
DENISE PAGE HOOD
Law Department, City of
Detroit
1010 City-County Building
Detroit, Michigan 48226
JAMES R. ANDARY
2440 Buhl Building
Detroit, Michigan 48226
Attorneys for Appellants
iv
xv
vi
1
4
4
6
6
11
14
20
22
26
27
30
32
INDEX
Table of Authorities .................... ......... .
Questions Presented ....................................
Table of Abbreviations .................................
STATEMENT OF THE CASE ..................................
STATEMENT OF FACTS .....................................
Introduction ........ ...........................
A. Practices Prior to the 1967 Riots ...........
1. Statistical Evidence of Discrimination...
2. The General Practices of Discrimination..
3. The Hiring and Promotional Models ......
B. Practices Instituted After the 1967 Riots
and Prior to the Affirmative Action Plan ....
1. Hiring Practices ........................
2. Recruitment Practices ...................
3. Promotional Practices ...................
4. The Results of the Hiring, Recruitment,
and Promotional Practices, 1968-1973....
C. Practices Instituted Pursuant to or Con
temporaneously ■with the Affirmative Action
Plan ..........................................
x
Page
1. Introduction and Summary................ 32
2. Affirmative Action Plan ................. 34
3. Promotional Model ....................... 41
SUMMARY OF ARGUMENT .................................... 45
■<»
I. THE DISTRICT COURT WAS WRONG AS A MATTER
OF LAW IN HOLDING THE AFFIRMATIVE ACTION
PLAN UNLAWFUL, AND IT MADE CLEARLY ERRONEOUS
FINDINGS OF FACT ................................... 46
II. THE AFFIRMATIVE ACTION PLAN WAS AN APPROPRIATE
REMEDY FOR THE DEPARTMENT'S PAST DISCRIMINATION
AGAINST BLACKS ..................................... 49
A. Prior to the Adoption of the Affirmative
Action Plan in 1974, the Department Engaged
in Unconstitutional and Unlawful Employment
Discrimination Against Blacks ................. 49
1. Standards of Proof ........................ 49
2. Pre-July 1967 Employment Practices ....... 56
3. 1968-1973 Employment Practices ............ 68
B. The Department Had a Duty to Take Race-Conscious „ •*
Affirmative Action to Correct The Effect of Its
Past Discrimination ............................ 82
4
III. THE CITY WAS REQUIRED TO USE AN AFFIRMATIVE
ACTION PLAN TO REMOVE THE ADVERSE RACIAL IMPACT
FROM THE 1973, 1974 AND 1976 PROMOTIONAL MODELS.. 101
A. Adverse Impact .................................
n
Page
B. The 1973, 1974 and 1976 Promotional Models
Were Not "Manifestly" Job Related.......... 105
1. The Development of the Written
Test by Caretti .................... 106
2. Job Analysis ......................... 108
3. The Test Content and Job Content .... 112
4. The Promotional Model and Its Use ... 116
5. Expert Testimony ................... 121
IV. THE AFFIRMATIVE ACTION PLAN WAS JUSTIFIED BY THE
CITY'S COMPELLING NEED FOR FAIR AND EFFECTIVE
LAW ENFORCEMENT ......................... 124
r
A. Standards Concerning the Consideration of
Governmental Interests to Support Race-
Conscious Programs ...... 124
Effective Law Enforcement in Detroit Requires
a Substantial Representation of Black Officers
in all Ranks of the Detroit Police Department 131
1. Introduction: The Lower Court's Decision. 131
2. The Operational Requirements of the
Department .............................. 133
V. THE AFFIRMATIVE ACTION PLAN ADOPTED BY THE CITY
WAS REASONABLY DESIGNED AND PROPERLY SUPERVISED . 145
CONCLUSION....................................... i48
Appendix A: The Remarks of the District Court Con
cerning The Department's Historical
Employment Practices and the. Depart
ment's Operational Requirements ....... la
Appendix B: The Hiring Ratio of Blacks and Whites
v Compared to the Population of Detroit
and the Labor Market for 1944-1967 ..... lb
Appendix C: Board of Police Commissioners,
Resolution Approved July 31, 1974 ..... lc
- i i i
TABLE OF AUTHORITIES
Cases: Page
Afro American Patrolmens League v. Duck, 503 F.2d
294 (6th Cir. 1974) ................................ 63,65,69,72
Albemarle Paper Company v. Moody, 422 U.S. 405 (1975) .. 53,77,82,90,
91,105.
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) .... 54,90
Associated General Contractors of Mass., Inc. v.
Altshuler, 361 F.Supp. 1293 (D. Mass. 1973),
aff1d . 490 F.2d 9 (1st Cir. 1973), cert, denied,
416 U.S. 957 (1974)................................. 83
Arnold v. Ballard, 390 F.Supp. 723 (N.D. Ohio 1975),
aff1d 12 FEP cases 1613 (6th Cir. 1976), vac.
and rem. on other grounds, 16 FEP cases 396
(6th Cir. 1976 ) .................................... 131
Baker v. Columbus Municipal Separate School District,
462 F. 2d 1112 (5th Cir. 1972) ..................... 52,62
Bolton v. Murray Envelope Corp., 493 F.2d 191
(5th Cir. 1974 ) .................................... 47
Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d
1017 (1st Cir. 1974), cert, denied, 421 U.S.
910 (1975) ......................................... 62,83,89,120
Bridgeport Guardians, Inc. v. Bridgeport Civil
Service Commission, 482 F.2d 1333 (2nd Cir.1973), 62,77,83,89,
cert, denied, 421 U.S. 991 ( 1975) ................. 120,131,141
Brown v. Board of Education 347 U.S. 483 (1954) ....... 68
Califano v. Goldfarb, 430 U.S. 199 (1977) .............. 98,99
Castaneda v. Partida, 430 U.S. 482 (1977) .............. 58,59,63,66,
74,79,80,82
Carter v. Gallagher, 452 F.2d 315 (8th Cir.)(en banc),
cert, denied, 406 U.S. 950 (1972) ................. 83,84
Causey v. Ford Motor Co., 516 F.2d 416 (5th Cir.1975) .. 47,48
Chance v. Board of Examiners, 534 F.2d 993 (2nd Cir.
1976), cert, denied, 431 U.S. 965 (1977 ) ......... 89
Colorado Anti-Discrimination League v. Continental
Airlines, Inc., 372 U.S. 714 ( 1963 ) ............... 94
- i v -
Contractors Association of Eastern Pennsylvania v.
Secretary of Labor, 442 F.2d 159 (3rd Cir.
1971), cert, denied, 404 U.S. 854 (1971) ......... 84,86,130
Craig v. Boren, 429 U.S. 190 ( 1976) .................... 98
Crockett v. Green, 534 F.2d 715 (7th Cir. 1976) ....... 71,72,84
Davis v. County of Los Angeles, 566 F .2d 1334
(9th Cir. 1977), cert, granted, 46 U.S.L.W. 56,61,72,77,
.3780 (June 19, 1978) ............................... 79,82,84
DeCanas v. Bica, 424 U.S. 351 (1976) ................... 94
r Detroit Police Officers Association v. City of
Detroit, 233 N.W.2d 49 (Ct. App. Mich. 1975) ..... 41,42
Detroit Police Officers Association v. Detroit, 385
Mich. 519, 190 N.W.2d 97 (Mich. S.Ct. 1971) ...... 131
Dothard v. Rawlinson, 433 U.S. 321 ( 1977) .............. 53
Dozier v. Chupka, 395 F.Supp. 836 (S.D. Ohio 1975) .... 61
EEOC v. A.T. & T. Co., 556 F.2d 167 (3rd Cir. 1977),
cert, denied, 46 L.W. 3803 (July 3, 1978) ........ 90,91,130
EEOC v. Bailey Co., Inc., 563 F.2d 439 (6th Cir.1977) .. 129
EEOC v. Detroit Edison Co., 515 F.2d 301 (6th Cir.
1975) vac, and rem. on other grounds, 431
U.S. 951 (1977) .................................... 83,89
Ensley Branch, NAACP v. Seibels, 14 FEP cases 670
(N.D. Ala. 1977) ................................... 103
Erie Human Relations Commission v. Tullio, 493 F .2d
371 (3rd Cir. 1974) ................................ 83,131
Feeney v. Massachusetts, ___ F.Supp.___, 17 FEP
v Cases 659 (D. Mass. 1978 ) ......................... 52
Firefighters Institute for Racial Equality v. City
of St. Louis, 549 F.2d 506 (8th Cir. 1977),
cert, denied, 434 U.S. 819 (1977) ................. 110,111,116
Foley v. Connelie, 55 L.Ed.2d 287 (1978) ............... 130,131
Fowler v. Schwarzwalder, 351 F.Supp. 721 (D.Minn.1971).. 114
Page
- v -
Page
Franks v. Bowman Transportation Co., 424 U.S. 747
(1976) .............................................. 86
Franks v. Bowman Transportation Co., 495 F.2d 385
(5th Cir. 1974), rev'd on other qrounds, 424
U.S. 747 (1976) .................................... 76
Gautreaux v. Romney, 448 F.2d 731 (7th Cir. 1971) ..... 54
General Electric Co. v. Hughes, 454 F.2d 730 (6th
Cir. 1974) ......................................... 94
Griggs v. Duke Power Co., 401 U.S. 424 (1971) ......... 52,53,54,91
Harkless v. Sweeny Independent School District,
554 F.2d 1353 (5th Cir. 1977), cert, denied,
54 L. Ed . 2d 452 (1977)............................... 51,52,68
Hazelwood School District v. United States, 433 53,57,59,60,
U.S. 299 (1977) .................................... 64,70,75,80
Hunter v. Erickson, 393 U.S. 385 ( 1969) ................ 127
International Brotherhood of Teamsters v. United 53,57,60,64,
States, 431 U.S. 324 (1977) ....................... 68,70,75,80,
Johnson v. Ryder Truck Lines, Inc., 575 F.2d 471
(4th Cir. 1978) .................................... 56,61
Kelley v. Southern Pacific Co., 419 U.S. 318 (1974) .... 48
Kinsey v. First National Securities, Inc., 557 F . 2d
830 (D.C. Cir. 1977) ............................... 56
Kirkland v. New York State Department of Correctional
Services, 520 F.2d 420 (2nd Cir. 1975), rehear ing
en banc denied, 531 F .2d 5 (1975), cert, denied,
429 U.S. 823 (1976) ................................ 89
Kirkland v. New York State Dept, of Correctional
Services, 374 F.Supp. 1361 S.D.N.Y. 1974),
aff'd in pertinent part, 520 F.2d 420 (2nd 105,110-112,
Cir. 1975), cert, denied, 429 U.S. 974 (1976) .... 116,119
Lau v. Nichols, 414 U.S. 563 ( 1974) .................... 54,91,92
League of United Latin American Citizens v. City 62,69,72,73,
of Santa Ana, 410 F.Supp. 873 (C.D. Cal.1976) .... 131,143
- v i -
Lindsay v. City of Seattle, 86 Wash. 2d 698, 548
P.2d 320, cert, denied, 429 U.S. 886 (1976) ...... 94
Local 53, Asbestos Workers v. Vogler, 407 F.2d
1047 (5th Cir. 1969) ............................... 84
Long v. Ford Motor Co., 496 F .2d 500 (6th Cir.1974) ___ 56
Louisiana v. United States, 380 U.S. 145 (1965) ....... 82
Mathews v. Lucas, 427 U.S. 495 (1976) .................. 98
McBride v. Delta Air Lines, Inc., 551 F.2d 113
(6th Cir.), vac. and rem. on other grounds, 51
54 L.Ed.2d 273 (1977) ..............................
McLaughlin v. Florida, 379 U.S. 184 ( 1964 ) ............. 68
Milliken v. Bradley, 418 U.S. 717 ( 1974 ) ............... 74
Moody v. Albemarle Paper Co., 474 F.2d 134 (4th
Cir. 1973), aff'd in pertinent part, 422
U.S. 405 (1975) .................................... 76
Morrow v. Crisler, 479 F.2d 960 (5th Cir.1973),
mod, on reh. en banc on other grounds,
491 F. 2d 1053 ( 5th Cir. 1974 ) ..................... 57
Morrow v. Crisler, 491 F.2d 1053 (5th Cir. 1974)
(en banc), cert. denied, 417 U.S. 895 (1974) ..... 84
Morton v. Mancari, 417 U.S. 535 ( 1974) ................. 130
Mourning v. Family Publications Service, Inc.
411 U.S. 356 (1973) ................................ 92
NAACP v. Allen, 493 F. 2d 614 (5th Cir. 1974) ........... 83,84,131,
141
NAACP v. Lansing Board of Education, 559 F.2d 1042 51,56,62,76,
(6th Cir. 1977) .................................... 81
Nader v. Allegheny Airlines, Inc., 512 F.2d 527
(D.C. Cir. 1975) ................................... 48
National League of Cities v. Usery, 426 U.S. 833
(1976) .............................................. 131
North Carolina State Board of Education v. Swann,
402 U.S. 43 (1971) ................................. 127
Page
v i i -
Page
Officers for Justice, NAACP v. Civil Service
Commission of San Francisco, 371 F.Supp.
1328 (N.D. Cal. 1973) .............................. 72,131,143
Pennsylvania v. Flaherty, 404 F.Supp. 1022
(W.D. Pa. 1975) .................................... 72
Porcelli v. Titus, 431 F.2d 1254 (3rd Cir. 1970)
(per curiam), cert. denied, 402 U.S. 944 (1971) ... 128
Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367
(1965) ............................................. 92
Regents of the University of California v. Bakke, 67,87,88,91,
46 U.S.L.W. 4896 (June 28, 1978) .................. 93,95-100,
101,125-28,146
Reitman v. Mulkey, 387 U.S. 369 ( 1967) ................. 67
Rios v. Enterprise Association Steamfitters
Local 638, 501 F.2d 622 ( 2nd Cir. 1974) .......... 83,87
Rosenfeld v. Southern Pacific Co., 444 F.2d 1219
(9th Cir. 1971) .................................... 94
Rowe v. General Motors, 457 F.2d 348 (5th Cir. 1972) ... 63,66
Schaefer v. Tannian, 394 F.Supp. 1128 (May 22, 1974,
E.D. Mich.) ........................................ 37
Schaefer v. Tannian, 10 FEP cases 896 (July 3, 1974,
E.D. Mich.) ........................................ 37,147
Sangmeister v. Woodard, 565 F.2d 460 (7th Cir. 1977) ... 52
Senter v. General Motors, Corp., 532 F .2d 511
(6th Cir. 1976), cert. denied, 429 U.S.
870 (1976) ......................................... 48
Shannon v. U.S. Department of Housing & Urban
Development, 436 F.2d 809 ( 3rd Cir. 1970) ....... 54
Sherrill v. J.P. Stevens & Co., 551 F.2d 308, 13
EPD 1111,422 (4th Cir. 1977) ....................... 84,90
Shield Club v. City of Cleveland, 13 FEP cases 1373
(N.D. Ohio 1976) ................................... 52
Shield Club v. City of Cleveland, 13 FEP cases 1394
(N.D. Ohio 1976) ................................... 52,62
- v i i i -
Page
Sims v. Sheet Metal Workers Local 65, 489 F .2d
1023 (6th Cir. 1973) ............................... 47,83
Southern Illinois Builders Association v. Ogilvie,
471 F. 2d 680 ( 7th Cir. 1972) ...................... 84
Stamps v. Detroit Edison Co., 365 F.Supp. 87 (E.D.
Mich. 1973) ........................................ 70,89,120
Stewart v. General Motors Corp., 542 F.2d 445
(7th Cir. 1976), cert, denied, 433 U.S. 919
(1977) ............................................. 47,63,66
Strauder v. West Virginia, 100 U.S. 303 (1879) ........ 68
Swann v. Charlotte-Mecklenburg Board of Education
402 U.S. 1 (1971) .................................. 128
Trafficante v. Metropolitan Life Insurance Co.,
409 U.S. 205 (1972) ................................ 129
United Jewish Organizations of Williamsburgh v. 67,97,98,99,
Carey, 430 U.S. 144 (1977) ........................ 129
United States v. Allegheny-Ludlum Industries, Inc.,
517 F.2d 826 (5th Cir. 1975), cert, denied,
425 U.S. 944 (1976) ................................ 90,91
United States v. City of Chicago, 549 F.2d 415 79,83,84,90,
(7th Cir. 1977), cert, denied, 434 U.S. 94,103,113,
875 (1977) ......................................... 116
United States v. City of Chicago, 573 F.2d 416
(7th Cir. 1978 ) .................................... 53,110,122
United States v. Gypsum Co., 333 U.S. 364 (1948) ...... 48
United States v. Ironworkers Local 86, 443 F.2d
544 (9th Cir.), cert, denied, 404 U.S. 984 (1971).. 84
United States v. Local 38, IBEW, 428 F.2d 144
(6th Cir.), cert, denied, 400 U.S. 943 (1970)..... 83,86
United States v. Local 212, IBEW, 472 F.2d 634
(6th Cir. 1973 ) .................................... 83,89
United States v. Masonry Contractors Association,
497 F. 2d 871 (6th Cir. 1974) ...................... 83
- IX
Page
United States v. N.L. Industries, Inc., 479 F.2d
354 (8th Cir. 1973) ................................ 84,90
United States v. Singer Mfg. Co., 374 U.S. 174 (1963) .. 48
United States v. Texas Education Agency, 564 F.2d
162 (5th Cir. 1977) ................................ 51
United States v. Wood Lathers Local 46, 471 F.2d 408
(2nd Cir.), cert. denied, 412 U.S. 939 (1973) .... 83
Village of Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252 (1977) .... 50,51.52.68
Vulcan Society v. Civil Service Commission, 490 F.2d
387 ( 2nd Cir. 1973) ................................ Ill
Vulcan Society v. N.Y. Civil Service Commission,
360 F.Supp. 1265 (S.D.N.Y. 1973), aff'd in
relevant part, 490 F.2d 387 (2nd Cir. 1973) ...... 110,114
Washington v. Davis, 426 U.S. 229 (1976) ............... 50,51,52,56,
57,63,98
Waters v. Heublein, Inc., 547 F.2d 466 (9th Cir.1976) .. 129
Watkins v. Scott Paper Co., 530 F.2d 1159 (5th
Cir. 1976) ......................................... 90
Weber v. Kaiser Aluminum & Chemical Corp., 563
F. 2d 216 (5th Cir. 1977) .......................... 91
Western Addition Community Organization v. Alioto,
360 F.Supp. 733 (1973), appeal dismissed,
514 F.2d 542 ( 9th Cir. 1975), cert, denied,
423 U.S. 1014 ( 1975 ) ............................... 116,120
Yick Wo v. Hopkins, 118 U.S. 356 ( 1886 ) ................ 68
Constitutional Provisions, Statutes,
Executive Order and Regulations:
United States Constitution, Supremacy Clause............ 94
United States.Constitution, Fourteenth Amendment ...... Passim
United States Constitution, Fifteenth Amendment ....... 97-8
- x -
Crime Control Act of 1973, Pub. L. No. 93-83,
87 Stat. 197 ....................................... 88
Crime Control Act of 1976, Pub. L. No. 94-503,
90 Stat. 2407 ...................................... 88
Equal Employment Opportunity Act of 1972,
Pub. L. No. 92-261 ................................. 87
Juvenile Justice and Delinquency Prevention Act
of 1974, 42 U.S.C. §5672 .......................... 55
Omnibus Crime Control and Safe Streets Act of
1968, as amended, 42 U.S.C. §3766 ................. 55,88,93-94
State and Local Fiscal Assistance Act of 1972,
as amended, 31 U.S.C. §1242 ....................... 55,93
Title VI of the Civil Rights Act of 1964,
42 U.S.C. §§2000d et seq........................... Passim
Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§2000e et seq.................. Passim
Voting Rights Act, 42 U.S.C. §§1973, et seq............. 129
28 U.S.C. §1292 ......................................... 3
42 U.S.C. §1981 ......................................... Passim
42 U.S.C. §1983 ......................................... Passim
42 U.S.C. §1985(3) ...................................... 2
Executive Order No. 11246, 30 Fed. Reg. 12319,
as amended, 32 Fed. Reg. 14303 .................... 86
Equal Employment Opportunity Commission Guidelines
on Employee Selection Procedures, 29 C.F.R. 102,109-10,
§1607 et seq........................................ 112
Equal Employment Opportunity Coordinating Council
Policy Statement on Affirmative Action
Programs for State and Local Government
Agencies, 41 Fed. Reg. 38816 (Sept. 13, 1976) .... 49-50,92
Federal Executive Agency Guidelines, 28 C.F.R. §
50.14 et seq. . 41 C.F.R. §60 et_. seq.............. 102,112
Page
xi
Page
Proposed EEOC Guidelines Relating to Remedial
and/or Affirmative Action Appropriate Under
Title VII, 42 Fed. Reg. 64826 (Dec. 18, 1977) .... 49,93
28 C.F.R. §42.203 et seq................................ 55,93-94
31 C.F.R. §§51.50 et seg................................ 55,93
45 C.F.R. §80.3(b)(2) ................................... 54
Article I Section 2 of the Constitution of the
State of Michigan .................................. 3
Michigan Civil Rights Act of 1977, Michigan
Compiled Laws Annotated §§37.2101 et seq.......... 3,52-53,94
Michigan Fair Employment Practices Act, Michigan 3,53,61,
Compiled Laws Annotated §§423.301, et seq......... 78,94
Public Employment Relations Act, Michigan Compiled
Laws Annotated §§423.201 et seq.................... 41-42
Michigan Civil Rights Commission, Guidelines and
Interpretations of the Michigan Civil Rights
Laws, BNA F.E.P. Manual 455: 1091-1095
(adopted Sept. 26, 1972, revised Dec.12, 1973) .... 54
Legislative History:
H.R. Rep. No. 92-238, 92d Cong. 1st Sess. ( 1971) ...... 87-88,133
S. Rep. No.92-415, 92d Cong. 1st Sess. (1971) ......... 87-88,134
118 Cong. Rec. 793 (January 31, 1972) .................. 134
118 Cong. Rec. 790 (1972) ............................... 88
119 Cong. Rec. 20070 (1973) ............................. 88
122 Cong. Rec. 11908 (1976).............................. 88
122 Cong. Rec. 17319 (Sept. 30, 1976) .................. 94
Other Authorities:
American Psychological Association, Inc., Standards
for Educational & Psychological Tests (1974) ..... 110,155
J. Bannon and M.Wilt, Black Policemen: A Study in
Self Images, 1 Journal of Police Science and
Administration (Northwestern Law School, 1973) .... 142
- x i i -
p.g.9e
Comment, The Philadelphia Plan: A Study in the
Dynamics of Executive Power, 39 U.Chi. L.
Rev. 732 (1972) ....................................
Cooper & Sobol, Seniority and Testing Under Fair
Employment Laws: A General Approach to
Objective Criteria of Hiring and Promotion,
82 Harv.L.Rev. 1589 (1969) ........................
Detroit Urban League, Revised Report on the
Employment Practices of the Detroit Police
Department (Oct. 1963) ............................
Edwards, Order and Civil Liberties: A Complex
Role for the Police, 64 Mich. L. Rev. 47 (1965) ...
Edwards, The Police on the Urban Frontier
(New York 1968) ....................................
J.L. Gastwirth and S.E. Haber, Defining the Labor
Market for Equal Employment Standards, 99
Monthly Labor Review 32 (March 1976) ..............
Hearings Before the United States Commission on
Civil Rights Held in Detroit, Michigan,
Dec. 14-15, 1960 (GPO 1961) .......................
Kerner Commission, Report of the National Advisory 8,1
Commission on Civil Disorders (Bantam edition 137,
1968) ..............................................
Michigan Civil Rights Commission, Report on
Investigation of Law Enforcement Claims
Against the Detroit Police Department (1966) .....
G. Myrdal, An American Dilemma (1944) ..................
President's Commission on Law Enforcement and
Administration of Justice, Task Force Report;
The Police (GPO 1967 ) .............................. 139
President's Commission on Law Enforcement and
Administration of Justice, The Challenge of
Crime in a Free Society (GPO 1967) ................
Regoli and Jerome, The Recruitment and Promotion
of Minority Groups into an Established
Institution: The Police, 3 Journal of Police
Science and Administration (1975) .................
- x i i i -
89
62
138
22
12,137,
140-41
71
138
0- 11,22
139-140
144
138
125
10,29,
-42,144
139-40
142-43
Page
Remarks by William H. Webster, Director, Federal
Bureau of Investigation, Before the National
Organization of Black Law Enforcement Executives,
St. Louis, Missouri, June 23, 1978 ................ 4a
M. Rosenblum, The Use of Labor Statistics and
Analysis in Title VII Cases: Rios, Chicago
and Beyond, 1 Indus. Reis. L.J. 685 (1977) ....... 70-72
Shogan & Craig, The Detroit Race Riot ( 1964) .......... 7
U.S. Bureau of the Census, Census of Population:
1970, Vol. 1, Characteristics of the Population
Part I, United States Summary - Section I,
Table 67 (1973) .................................... 73
White & Marshall, What Caused the Detroit Riot?
(New York 1943) .................................... 7,137
E.F. Wonderlic & Assoc., Inc., Negro Norms,
A Study of 38,452 Job Applicants for
Affirmative Action Programs (1970) ............... 76
x i v
QUESTIONS PRESENTED
1. Whether a police department which has a long history
of unlawful and unconstitutional discrimination against
blacks may take race-conscious affirmative action to
remedy the effects of that discrimination.
2. Whether a police department may make race-conscious
adjustments in promotional tests and other promotional
practices which are not job-related and which otherwise
would adversely affect black employees.
3. Whether a city with a long history of both racial dis
crimination in police department employment practices
and hostility and violence between the black community
and the police may take race into consideration in its
police promotion practices in order to attain fair and
effective law enforcement.
4. Whether the affirmative action plan adopted by the City
of Detroit for the promotion of black police officers
to the rank of sergeant was reasonably designed and
implemented to serve legitimate purposes.
5. Whether under • the circumstances presented here the
City's affirmative action plan for the promotion of
black police officers to the rank of sergeant violated
the Fourteenth Amendment, 42 U.S.C. §1983, 42 U.S.C.
§1981, Title VI or VII of the Civil Rights Act of 1964
as amended, or any provision of Michigan law.
- xv -
Table of Abbreviations
"DPOA"
"Aug. at
"DPD*
" AAP "
"Board"
"St."
Detroit Police Officers
Association
Month, date and page
of testimony
Detroit Police Depart
ment
Affirmative Action Plan
Board of Police
Commissioners
Statement of Facts
"Exhibit 240 ( at Exhibit 240 (which is a
Compendium of Minutes
of Meetings of the
Board), date of the
meeting and page of the
minutes of the meetings
x v i
STATEMENT OF THE CASE
This appeal involves important issues concerning the law
fulness of efforts by local governments to remedy the effects of
prior discrimination.
The Detroit Police Officers Association filed a complaint
on July 10, 1974, alleging that the City of Detroit and certain
city officials had violated federal and state fair employment
laws as well as the United States Constitution and the Michigan
Constitution. On July 22, 1975, three white police officers,
Morgan, Brunet and Prince, filed a separate complaint alleging,
as did the DPOA, that the promotional practices of the Detroit
Police Department violated the constitutional and statutory
rights of white officers to equal employment opportunity. On
November 18, 1976, Judge Kaess certified the Morgan plaintiffs
as representatives of a class defined as "[a]11 past, present
and future qualified white Detroit Police Officers below the
rank of Sergeant who, since April of 1974, have been or will be
denied, because they are white, their timely promotions to the
rank of Sergeant", Op. 2 n.l.
Judge Gubow entered an Order on August 9, 1975 in the
DPOA case granting the City's partial Summary Judgment and dis
missing all the causes of action except as to Mayor Young and
Police Chief Tannian under 42 U.S.C. §§ 1981 and 1983 and as
to the City of Detroit under 42 U.S.C. § 1981. On January 24,
1977, Judge Gubow denied the DPOA’s motion for rehearing of the
Order without prejudice. The DPOA filed several amended complaints;
1
the last amended complaint, the fourth, was entered by stipula
tion.
After the DPOA case was consolidated with the Morgan
class action and reassigned to judge Kaess, the plaintiffs
moved to preliminarily enjoin promotions to sergeant pursuant
to the City's affirmative action plan. After holding a hearing
from May 25 through May 27, judge Kaess granted the motion for
a preliminary injunction. On May 28, 1977, this Court stayed
the injunction and ordered a hearing to be held June 22 on the
City's appeal from the issuance of the injunction. On the
following day, this Court dissolved the injunction and remanded
the cause for a prompt hearing, Op. 2.
On remand, the district court bifurcated the trial on
the issues of liability and damages. The trial on the liability
issues commended on August 8, 1977, and over 50 days of trial
were held during the next five months. On September 19, the
defendants filed a motion to disqualify; this motion was
denied on September 21. After the plaintiffs rested on October
21, 1977, the class representatives moved to reinstate their
claim pursuant to 42 U.S.C. § 1985(3), and the DPOA moved to
reinstate its claim pursuant to Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. §§ 2000e et_ seq. , and to add
a claim pursuant to Title VI of the Civil Rights Act of 1964,
42 U.S.C. § 2000d. The court granted these motions but denied
the plaintiffs' motion for a directed verdict.
2
On February 28, 1978, the district court issued a
Memorandum Opinion concluding that the City's affirmative action
plan violated the Fourteenth Amendment of the United States
Constitution; Article I Section 2 of the Constitution of the
State of Michigan; Title VI of the Civil Rights Act of 1964;
Sections 703(a), (e), (h) and (j) and 706(g) of Title VII of
the Civil Rights Act of 1964, as amended; 42 U.S.C. §1981; 42
U.S.C. § 1983; the Michigan Fair Employment Practices Act,
Michigan Compiled Laws Annotated §§ 423.301, et seq. ; and the
Michigan Civil Rights Act of 1977, Michigan Compiled Laws
Annotated §§ 37.2101 et seq., Op. 49, 50, 57. The district court
entered a permanent injunction prohibiting the City from pro
moting police officers to sergeant pursuant to its affirmative
action plan and requiring that all promotions until a final
determination of a remedy "shall be made in accord with strict
numerical ranking . . . as established by the current Sergeants
Eligibility Roster."
The defendants filed a timely notice of appeal on March
16, 1978. This Court has jurisdiction of this appeal pursuant
to 28 U.S.C. § 1292.
3
STATEMENT OF FACTS
Introduction
The City of Detroit necessarily presents a detailed
statement of the facts because of several unusual aspects
of the lower court’s decision. Most importantly, the district
court in its findings of fact and review of the evidence
virtually ignored the extensive evidence of decades of dis
crimination against blacks practiced by the Detroit Police
Department in hiring, promotion, and other employment practices.V
Since, as the district court recognized, this evidence of
prior discrimination is central to the legitimacy of the
affirmative action plan, the court's failure even to discuss
the unrebutted evidence of prior discrimination in itself
requires reversal.
Moreover, the district court did not adequately describe
nor accurately make findings of fact concerning the prior and
present hiring and promotional systemsused by the Department.
Accordingly, the lower court failed to recognize not only that
the prior systems were discriminatory but that the present
promotional system, if allowed to operate without any adjust
ment by affirmative action, would have an unlawful discriminatory
_/ "In the absence of proof of prior discrimination as
claimed by the defendants the preferential promotion plan of
the defendants clearly violates Title VII as an impermissible
racial quota. . .Prior racial discrimination against blacks
being absent in this case, the Court holds as a matter of law
that Section 706 (g) would not allow any quota regardless of
whether it was voluntary or court ordered." (emphasis added)
Op. at 45-6.
4
effect against blacks. The City of Detroit in order to remedy
the discriminatory effect of the present promotional system
was justified in adopting the affirmative action plan.
Finally, the district court unfortunately became, at
least on several occasions, personally involved, almost as
an advocate, in this hotly-contested litigation. For example,
the court in colloquy with counsel for the City of Detroit
stated, "We had a beautiful police department at one time,
don't ever say we didn't," Sept. 12 at 19. The trial judge
indicated that he was relying on personal experience and sur
mise garnered from his experience both as a United States
Attorney, Sept. 12 at 19, and as a resident of Detroit, Sept.
12 at 15-16, and on his view both as to the operation of the
3/
FBI, Sept. 7 at 89, and as to the administration of the police
department under Judge George Edwards, Sept. 12 at 13. The
judge's strongly expressed opinions as to the quality and
fairness of the DPD, based on views and experience nowhere
supported by the record, indicate that his failure to recog
nize the evidence proving the prior discrimination may have
resulted from a predisposition.regarding the DPA.
2 /
2/ The district court's actual findings on the hiring and
promotional systems which existed prior to 1973 are confusing
and contradictory, see infra 9 n. 10, 16, 25.
3/ A view which is, interestingly, contradicted by the
present Director of the FBI, Judge Webster, see infra
Appendix A. The district court's statements indicating his
personal views and experience are collected in Appendix A
attached to this brief.
4/ Judge Edwards has commented contrary to the
supposition of the lower court, see infra 12, 17.
The history of the employment practices of the DPA
falls into three distinct but interrelated periods: prac
tices in existence prior to the July 1967 riot; practices
instituted after the 1967 riot but prior to the institution
of the affirmative action plan in 1974; and practices insti
tuted pursuant to the affirmative action plan from 1974 to
the date of trial. The Statement of Facts follows this
historical division in describing these practices of the DPD
and their effect both on the employment opportunities of
blacks and on police-community relations.
A. Practices Prior to the 1967 Riots
The riots which occurred in July, 1967 caused the
City of Detroit to seriously reevaluate the practices of the DPD.
The Mayor and New Detroit, an urban coalition, recommended the
establishment of a committee, the Vickery Committee, to deter
mine "why minorities were not succeeding in the application
process of the Detroit Police Department," Op. 26 n. 53. The
pre-1967 practices were marked by both overt discrimination and
the use of practices which were not job-related and which had the direct result
of limiting the opportunities of blacks for hire, promotion and
assignment. These discriminatory practices substantially contributed to a
climate of hostility between the DPD and the black community.
1. Statistical Evidence of Discrimination
5/
Former Police Commissioner Nichols, who testified
5/ Mr. Nichols was the Police Commissioner from 1970 to
September 1973, Aug. 9 at 5-7; he entered the Police Department
6
as a witness for the plaintiffs, stated that there were
"a minimal number" of non-Caucasians in the Detroit Police
Department when he was hired in 1942, August 10 at 41. in
1940 there was not a single black supervisor in the Detroit
§/
Police Department, Nov. 15 at 50. The disproportionately
low number of black police officers and the almost total
exclusion of blacks from supervisory positions continued
throughout this period.
In 1950 blacks comprised only 1% and in 1960 only 2%
of the police officers in the DPD, exhibit 272. Former
Commissioner Nichols estimated that blacks comprised 5% or
6% of the police force in 1966, Aug. 10 at 44. In 1967 only
214 or 4.9% of the 4,356 police officers in the DPD were
black, exhibit 208, see Aug. 24 at 22. During the period from
1944 through 1967 there were 5,872 appointments made to
the Detroit Police Department, but only 325 or 5.5% of the
5/ cont'd.
in 1942 and was employed there through September 1973 except
for three years in the military service during World War II,
Aug. 9 at 5, Aug. 10 at 41.
6/ This testimony is unrebutted in the record. The lack
of black officers, discriminatory enforcement of the law by
the DPD and hostility between the DPD and the black community
were primary causes of the 1943 riots. These riots resulted in
over 30 deaths.
Thurgood Marshall and Walter White reported that "the
trouble reached riot proportions because the police of Detroit
once again enforced the law under an unequal hand." White and
Marshall, What Caused the Detroit Riot?(New York 1943) at 29.
White and Marshall recommended that the number of Negro offi
cers be increased from 43 to 350 and "that there be immediate
promotions of Negro officers in uniform to positions of
7
applicants appointed were black, exhibits 99, 208. Mr. Charles
Guenther, an expert called by the plaintiffs, testified con
cerning the most appropriate labor force with which to compare
the racial composition of the actual appointments to the
Detroit Police Department. In his opinion, the appropriate
labor market during this period was defined by those persons
who resided in the Standard Metropolitan Statistical Area of
8/
Detroit, who were under thirty-four years of age, and who had
9/
a high school diploma. Guenther concluded from his labor
market analysis that he would expect 645 appointments of blacks
to the Detroit Police Department from 1944 through 1967, exhi
bit 242, Table 2a, see Appendix B. This expected number of
appointments is twice the actual number of blacks appointed.
Furthermore, if the number of blacks hired by the DPD
is compared either to the general black population of Detroit or
to the labor force as defined by residents of the City of Detroit,
which the defendants maintain is proper, infra 69-74 the dis
parity is even more substantial. Guenther testifed that it
7 /
6/ contd.
responsibility," id. at 17; see generally Shogan and Craig,
The Detroit Race Riot (1964).
See also Report of the National Advisory Commission
on Civil Disorders (Kerner Commission) (Bantam edition 1968) at
85. (Testimony of Judge Edwards, infra.137^.
7/ Appendix B sets forth the number of appointments made
by race from 1944 through 1967.
8/ This SMSA is a tri-county area comprising Wayne, Oakland
and Macomb Counties.
9/ The district court accepted this as the appropriate
labor market, Op. 21, nn.38, 40, 42.
8
is possible to approximate this labor market from the census
data available; it includes those persons who resided in
Detroit, who were over twenty-five years of age, and who had
a high school diploma. Guenther stated that if this labor
market is used, one would expect that for the period from 1944
through 1967 there would have been 1,061 appointments of blacks,
or more than three times the actual number, exhibit 242,
10/
Table la, Appendix B. Also, there was a substantial disparity
between the police force and the black population of Detroit
11/
throughout this period:
Percentage of Population Percentage of
of Detroit (Black) DPP (Black)
1950 16% 1%
1960 29% 2%
1967 40% (approximately) 5%
The statistics comparing the promotional opportunities
of black officers with those of white officers show even
greater disparities than the hiring statistics. Moses Baldwin,
a black police officer for twenty-five years, testified that
when he was appointed in 1952 there were only three black police
10/ The district court recognized "that from 1944 to 1968
the number of whites appointed far outdistanced the number of
blacks..." (emphasis added), Op. 25. But the court made no
finding of discrimination during this period, stating that there
was no evidence concerning the relevant labor market, id.
This is inexplicable since the district court relied on the labor
market evidence presented by the plaintiffs' expert in finding
that there was no hiring discrimination through 1974, Op. 21;
this'same evidence applies equally to the period from
1944-1968. ■
11/ Exhibit 272 contains the evidence for 1950 and 1960;
the percentage of blacks in the Department in 1967 is found in
the testimony of Caretti and Nichols, see supra at 7, the
percentage of blacks in the population in Detroit in 1967 is found
in exhibit 106 at 45.
9
supervisors, Nov. 15 at 19-20. Jesse Stewart, a black police
officer who served in the Department from 1940-1966, testified
that during his career he never had a black supervisor, Nov.
12/
15 at 50. William L. Hart, the current Chief of the Detroit
Police Department, testified that in 1952 when he was assigned
to the Ninth Precinct, one of the few precincts to which
blacks were then assigned, see infra ll, approximately
16% of the officers in that precinct were black but there
was not a single black supervisor, Nov. 2 at 9-12. This
unrebutted testimony is reflected in the President's Com
mission on Law Enforcement and Administration of Justice,
Task Force Report: The Police (GPO 1967), which reports
that in 1952-3 there were 344 white sergeants and 3 black
sergeants and that in 1962 there were 340 white sergeants
13/
and 5 black sergeants, at 172. The Report of the National
12/ Mr. Stewart received his B.S. degree and his Masters
degree in education and has completed two years of law school,
Nov. 15 at 40-2. Mr. Stewart became a sergeant in 1954 and
applied for promotion to lieutenant on three occasions, but he
was never promoted, Nov. 15 at 47-50.
13/ The complete figures reported in the Task Force Report
are as follows:
Captains
Police Officers Sergeants Lieutenants And Above
White Black White Black White Black White Black
1952-3 3,565 96 344 3 167 1 42 0
1962 3,640 148 340 5 152 1 56 0
10
Advisory Commission on Civil Disorders found that the number
of black supervisors in the DPD had scarcely improved by
1967: only 9 out of 348 sergeants and 2 out of 158 lieutenants
14/
were black, at 322.
2. The General Practices of Discrimination
Prior to the 1967 riots, overt discrimination
within the DPD was standard procedure. There was a general
practice of segregated assignments, Aug. 10 at 56 (Nichols).
At least until 1960 the scout cars were assigned on a segre
gated basis, Aug. 10 at 55 (Nichols), Nov. 4 at 23-9
15/
(Bannon), Nov. 15 at 16-8, (Baldwin), Nov. 2 at 13-4 (Hart).
Blacks were only assigned to certain precincts, Nov. 3 at
13-14 (Hart). Even patrol beats within precincts were
assigned on a segregated basis, Nov. 4 at 23-6 (Bannon).
Black police officers were not placed in positions where they
would regularly control white prisoners, Nov. 4 at 26-7.
These practices not only stigmatized black officers,
but also limited the available training, experience and
promotional opportunities. White officers were assigned to
scout cars soon after being placed in a precinct, whereas
black officers had to wait years before being assigned to
scout cars, Nov. 15 at 15-18 (Baldwin), Nov. 15 at 45-6
(Stewart). The supervisor positions available to blacks
14/ The complete figures reported in the Kerner Commission
are as follows:
Number of
Number of Non-white Captains
Sworn Personnel Sworn Personnel Sergeants Lieutenants and Above
W N-W W N-W W N-W
4,326 227 339 9 156 2 62 1
15/ James Bannon, a white police officer, has been employed
11
were limited because, as Executive Deputy Chief Bannon
testified, it was the custom neither to assign blacks to
public positions of authority such as desk sergeants in
16/
the precincts, Nov. 4 at 26-7, 60-1, nor to place blacks in posi
tions supervising whites, id. at 27. The promotional
positions available to blacks were generally limited to
"invisible" operations, id. Moreover, blacks were virtually
excluded from specialized sections or units until the late
i2/1960s, id_. at 23-6.
These practices of overt discrimination were supported
by the hostility of the white officers towards black offi
cers. Bannon testified that there was a widespread opinion
that black officers would not enforce the law with respect
to black citizens as diligently as white officers would;
this was frequently stated as a reason for restricting the
employment opportunities of blacks in the DPD, Nov. 4 at * 4
15/ contd.
by the DPD for twenty-eight years. He has a Ph.D. in sociology
and is currently the Executive Deputy Chief of the DPD, Nov.
4 at 5-6.
16/ Bannon testified that this practice lasted until the
late 1960s when among the approximately 65 desk sergeants in
the thirteen precincts there were "Very very few" black sergeants. Nov
4 at 60-1; in order to have a sergeant on duty 24 hours a day
at each precinct, there must be slightly over 5 sergeants assigned
to this task for each precinct, exhibit 240, mins. 7/22 at 20.
17/ Judge Edwards, who was the Police Commissioner of the
DPD from 1961-63, summarized these overt practices of discrim
ination: "The unwritten color lines in police administration
die hard. For example, as of 1962 no Negro police officer
in Detroit had ever advanced to the rank of uniformed lieu
tenant; there were many units in the department where not a
single Negro officer had ever served." The Police on the Urban
Frontier (New York 1968) at 87.
12
23-6. Former Police Commissioner Nichols stated that when
the City tried to integrate the scout cars in 1960, the
white police officers disrupted law enforcement by reporting
sick with, as he termed it, the "blue flu," Aug. 10 at 57.
19/
The former Commissioner of Police, Tannian, and the
20/
present Deputy Director of Personnel, Caretti, testified
that their experience or their review of the history of the
Department indicated that prior to the July 1967 riots there
were some "barriers" or discriminatory practices which were
limiting the employment opportunities of blacks. Caretti
testified that, although he drew no conclusion as to the
legality of the prior practices, "something was working to
adversely impact the arrival of more minorities on the
scene...it would just appear to me as an observer that
there was some form of discrimination [against blacks] effec
tively working during those years," Aug. 25 at 63; see Aug.
24 at 22. Tannian testified that "We analyzed the hiring
patterns all the way back to 1944. We found that just un
believably small numbers of minorities...were being hired
every year, year after year after year for decades," Sept. 7
1 8 /
18/ Bannon admitted that he once shared this opinion; "I
was socialized as every police officer was," Nov. 4 at 62.
19/ Tannian was the other Police Commissioner from September
1973 until July 1, 1974. On that date the new City Charter became
effective, which designated the highest departmental officer as
chief. Tannian served as the Chief of Police until September, 1976.
20/ Caretti was employed by the DPD on August 3, 1953; he
was first assigned to the personnel section in September 1968,
Aug. 11 at 6.
13
3. The Hiring and Promotional Models
23/
at 99.
Hiring Model
There was a three-stage hiring process. First, an
22/ 23/
applicant had to meet certain minimum requirements: age,
24/ 25/ 2£_/ 2l/
height and weight, vision, residence, education, * 273
21/ The plaintiffs called former Commissioner Spreen as
their witness, Aug. 8 at 45. Spreen was Police Commissioner
from July 1968 until January 1970, id. 48. Commissioner
Spreen testified on cross-examination by counsel for the
City of Detroit that he made an inquiry as to why there
were so few blacks in the Department; he found that "one
of the causes was an exclusion policy and I made certain
there was none when I was the Commissioner," Aug. 8 at 77.
After counsel for the plaintiffs objected to the
elicitation of testimony concerning the period prior to
Spreen's coming to the DPD, id. 78-1, Spreen emphasized
that he was basing his statement on what he had "heard"
(although it was related through an official inquiry which
he directed as Police Commissioner), id. 79.
22/ The earliest evidence concerning the hiring require
ments was for 1954. There were separate requirements for
women with respect to height, weight and education/ exhibit
273, which are not listed in nn. 24 and 27.
23 / From 1954 until 1964 an applicant had to be between
the ages of 21 and 27; in 1964 the age requirement was
changed to 21-30, id.
24/ 1954: 5'8 1/2" and 148 lbs. minimum; 1964: 5 19" and
152 lbs. minimum, id.
25/ 1954: 20/20 no correction; 1964: 20/30 no correction,
id.
26/ State of Michigan resident for 1 year and a resident
of Detroit prior to graduation from the police training
program, id.
27/ High school graduate or G.E.D.
14
28/ 29/
drivers license, lack of criminal record, and "general
30/
medical fitness." Second, an applicant had to pass a written
examination which lasted three hours or longer and which
was "primarily intelligence quotient orientated." Op. 26.
Third, an applicant had to undergo a background investigation
and an interview, Oct. 25 at 82.
In 1968 Mayor Cavanagh appointed a Task Force on
Police Recruiting and Hiring to evaluate the effect of
these hiring standards on recruiting and hiring blacks, and
the relationship of these standards to the "clearly unac
ceptable" proportion of blacks in the DPD, exhibit 106 at
27-29. The Task Force began its work by analyzing the
1967 application and hiring statistics. The Task Force
found that the percentage of black applicants, 47%, 1,936
out of 4,122, was considerably higher than the black
31/
population of Detroit. But only 71 or 22% of the 323 police
32/
officers hired in 1967 were black, exhibit 99. The Task
Force found that the higher rate of failure by blacks in the
28/ An applicant had to have a valid license which was not
revoked, suspended or restricted.
29/ Applicants were disqualified for juvenile and misdemeanor as
well as for felony convictions, exhibit 106 at 5, 32.
30/ Prior to changes instituted by Commander Ferrebee after 1970,
applicants were regularly rejected for unspecified medical or
fpsychiatric reasons, infra 25-6.
1/ The fact that blacks were applying to the DPD in
numbers greater than the percentage of blacks in the population
of Detroit continued in the years after 1967, see infra 31-2.
32/ Thus, 3.6% of the black applicants were hired, whereas
12% of the white applicants were hired.
15
hiring process was due to three principal reasons: "in the
preliminary application stage, black applicants were largely
rejected for traffic records and 'miscellaneous1 reasons
[...;] large numbers of black applicants were eliminated in
the written examination stage [...; and] significant numbers
of Negroes were eliminated in the investigation and oral
board stage where subjective opinions are critical," exhi
bit 106 at 45.
The district court found that the entrance exams
administered prior to 1968 "tended to fail large numbers
33/
of blacks in relation to their white counterparts," Op. 26.
Caretti testified that this was a "very bias[ed] testing
system that we had prior to 1968 in terms of cultural
biases, and in terms of the fact that we used nothing but
I.Q. tests* " Aug. 11 at 24. Caretti further emphatically stated
that the entrance exams were in no way validated nor could they
have been: "No one ... has been able to establish a validated
relationship between I.Q. ... and [police] performance," Aug. 11
at 46, Aug. 24 at 25-6, Aug. 25 at 75; see Op. 28.
Promotional Model
There was a two-stage promotional model. First,
a police officer who sought promotion to sergeant had to
have a certain number of years "in grade" before the offi
cer was permitted to sit for the competitive exam. Second,
the officer took a competitive examination; the candidate
33/ The testimony concerning the severe disparate impact
of the entrance exams was overwhelming, see _e._g., Aug. 11
at 24 (Caretti); Aug. 8 at 81-4 (Spreen).
16
was ranked on the basis of the written examination score,
service rating, seniority and a veteran's preference.
Additionally, in order to be promoted,a candidate had to
have either served twelve and one-half years in the
Department, the "grandfather clause," or have earned
fifteen quarter hours of college credit, Op. 7-8.
In 1961 an officer had to have served at least
seven and one-half years on the force before he could
even sit for the promotional examination, Aug. 11 at 11.
By 1970 that requirement had been reduced to three years
or even less if the candidate had completed the requisite
number of years of college, exhibit 185, Op. 9 n. 10.
Caretti testified that this reduction in qualification
time was undertaken to allow more blacks to write the ex
amination "because the entry of numbers of minorities into
the Department didn't really commence until about 1968 or
latter '67," Aug. 11 at 12.
If eligible, the candidate for promotion would
take a written examination, which basically measured
"intelligence quotient," Op. 9. The written examination
constituted fifty percent of the overall score which
determined the candidate's position on the promotional lists
17
in 1965, exhibit 263. The other factors and their weights
were service rating (35%), seniority (15%) and, where
applicable, a veteran's preference (2%), id.
Caretti testified in general that the I.Q. test is
in no way validly related to performance "on the streets"
by a police officer or a sergeant, and he testified speci
fically concerning sergeants after being questioned by
the court:
3 4 /
THE COURT: Doesn't I.Q. in some way
indicate Sergeant's perfor
mance in the field?
ANSWER: Well, the answer would be no.
A minimum I.Q. certainly is
essential but there is no study,
there is no evidence... that
would suggest a relationship
between I.Q. and field perfor
mance per se. We have some
very intelligent people who
are poor performers and we
have some moderately intelligent
people who are excellent per
formers .
Aug. 25 at 75. The use of a promotional test emphasizing
intelligence quotient served as a "barrier" preventing
the promotion of blacks; thus, Caretti testified that "it
was incumbent upon me to change the system, to eliminate
34/ Exhibit 263 was introduced into evidence in order to
compare the promotional models used in 1965, 1970, and 1975.
The information in the exhibit was compiled by police lieu
tenant Vasiloff whose duties include supplying information
and data to the Chief of Police, Oct. 25 at 4-5. Vasiloff
drew this information from the personnel orders for those
years which set forth the requirements and criteria for promo
tion, id. 9-10. Additionally, the personnel order concerning
the 1970 promotions was introduced into evidence by the plain
tiffs, exhibit 185; Aug. 11 at 14.
The district court mistakenly ignored this clear, uncon
tested evidence when it found that "no evidence has been pro
duced regarding promotional models antedating 1973," Op. 28.
18
that problem," Aug. 24 at 63.
In 1965, seniority was accorded a weight of 15% in
35/
the promotional process, exhibit 263. The weight afforded
seniority was reduced in 1970 to 8% and in 1974 to 6%
in order to lessen the obstacle to the promotion of blacks
posed by the use of seniority since blacks, on average,
were more recently hired than whites, Aug. 11
36/
at 14, Aug. 16 at 76. Moreover, the importance placed on
seniority was not justified by any job-related requirements,
Op. 15, Aug. 11 at 13.
The recent ratings of a police officer by his immediate
supervisors were scored and weighted as part of the formula
used to determine ranking of a candidate on the promotional
list. Spreen testified that if he had remained as Com
missioner, "I would have done away with service ratings"
because "there was a kind of built-in discrimination" where
officers in the specialized units were unfairly given higher
35/ The district court erred in finding that "prior to
August, 1970, seniority was accorded a maximum of 10% in the
promotional process," Op. 15.
36/ Contrary to the clear evidence of prior hiring discrim
ination and the unrebutted evidence that black officers on the
whole had less seniority than white officers, the district
court erroneously found that the use of seniority in the pro
motional model did not "curtail" the promotional opportunity
of blacks nor "in any way" discriminate against blacks, Op. 15-6,
43-4.
19
ratings than the officers in the precincts, Aug. 8 at
37/
100-101. Commissioner Nichols also thought that the
service rating system was being improperly administered,
and he made some "drastic changes"in the system in 1972,
Aug. 9 at 28.
The promotion of officers to sergeants from the
eligibility list during this period was not done in strict
rank order; rather, the Commissioner of Police had the
discretion to appoint any officer who qualified to be
38/
placed on the list. Spreen testified that before he became
Commissioner it was the practice of the Commissioner to
depart from the ranked list and "dip" into the list to
promote officers to sergeant, Aug. 8 at 110. Similarly,
Nichols, who was the Deputy Superintendent during the
administration of Girardin, which lasted from December, 1963
to July, 1968, testifed that it was Girardin's practice
to bypass officers on the list in selecting candidates for
promotion, Aug. 9 at 14-15.
B. Practices Instituted After the 1967 Riots and
Prior to the Affirmative Action Plan
The severe riots in July 1967 caused the City of
Detroit to carefully evaluate the police department. During
37/ Of course, blacks were largely excluded from the
specialized units and restricted to the precincts, supra 11-2 .
38/ The district court was in error when it found con
trary to the uncontradicted evidence in the record that "prior
to the August 1, 1974, promotion, promotions to rank of sergeant had
always been made in strict numerical rank according to the
current eligibility register," Op. 7.
20
this evaluation, in the words of then Mayor Jerome P.
Cavanagh, "it became obvious to me and to this entire com
munity, both black and white, that this proportion [6%]
39/
of Negro policeman was clearly unacceptable." M^or Cavanagh
made this statement after he had received reports concern
ing employment practices of the DPD from two separate com-
40/
mittees. New Detroit appointed a subcommittee to review
the hiring practices of the DPD; this committee, which
was known as the Vickery Committee, was comprised of seven
personnel administrators from companies in the Detroit area,
exhibit 106 at 3. In addition, Mayor Cavanagh had appointed
a Task Force which was comprised of leading citizens to
review the recruitment and hiring practices of the DPD,
supra 15-16. Moreover, Spreen, the Police Commissioner from
1968-1970, agreed that overcoming the distrust between the
black community and the essentially white police department
39/ Remarks made by the Mayor on May 27, 1968, exhibit 106
at 17.
40/ New Detroit, a non-profit corporation, was formed
after the riots in the summer of 1967, Op. 26, n. 53. It is
an urban coalition which is structured to involve -all the
different groups in the Detroit area: business groups, labor
leadership, and representatives of different institutions
as well as leaders from the different ethnic groups in the
area. The purpose of New Detroit is to provide a mechanism
for people representing a cross-section of the community to
define problems in the area and to devise and implement
solutions to those problems, Nov. 23 at 5.
21
"was probably [the] biggest problem," during his tenure,
41/
Aug. 8 at 87. Spreen testified that, Aug. 8 at 76:
As Police Commissioner, I felt I
would have had a much easier job
in trying to do what I was trying
to do in a city that was in a bit
of tension over the event of a
year before if I had more black
Officers, more Sergeants, more
lieutenants. I think I could have
done a lot more than what I really
finally accomplished in the year
and a half.
In the aftermath of the 1967 riots, those evaluating
the practices of the DPD emphasized their immediate concern
with increasing the number of black officers hired. Although
most of the changes in employment practices from 1968-1973
occurred in hiring and recruiting, there were some changes
in the promotional system as well.
1. Hiring Practices
In 1968, Caretti,who had previously been assigned to
work with the Vickery Committee was transferred to the
Personnel Department. Caretti had "limited" experience in
personnel practices and he had "to try and learn" on the
job, Aug. 16 at 25-6. The Vickery Committee had recommended
several changes in the selection process,
Aug. 11 at 9, in order to attain two goals: job-related
41/ Patrick Murphy, who succeeded Spreen as Commissioner
of the DPD in 1970, testified in a similar manner before
the Kerner Commission, Report of the National Advisory
Commission on Civil Disorders at 316; see also Edwards,
Order and Civil Liberties: A Complex Role for the Police,
64 Mich L. Rev. 47, 54-55 (1965); Edwards,
The Police on the Urban Frontier, supra at 1-3, 86-8 .
22
selection devices and equal racial results, id. 41. The
Committee recommended "dramatic changes" in the "very biasfed]
testing system" which was in effect prior to 1968, id. 24.
The Vickery Committee "carefully analyzed the test,"
id., and recommended two basic improvements that were put
into effect in several stages. The existing selection
test had had an adverse effect on black applicants not only
because it was a culturally biased intelligence quotient
examination, but also because in the opinion of the
Committee "the long time frames of the test was [sic]
oppressive, especially to minority candidates..." Aug.18 at 15.
As an interim first step the Committee recommended the use
of another intelligence test, the Wonderlic, which was highly
correlated with the existing test but which was only twelve
minutes long, Aug. 11 at 24-5.
The Vickery Committee became dissatisfied with the use
of the Wonderlic examination because the statistics were
showing "that the minorities were experiencing a serious
42/
disparate result," id. 30-1. Dr. Landon, who was Director
of the Employee Research Personnel staff of General Motors and
a member of the Vickery Committee, recommended that several
42/
The Committee had recommended that the applications
be designated by race in order that the racial effects
of the selection process could be monitored, Aug. 18 at 22.
23
experts from the School of Industrial Relations of the
University of Chicago be retained to develop a new selec
tion examination. The Committee approved this recommendation
after John Furcon and several others from the University
of Chicago made a presentation, Aug. 11 at 41-4. While
these experts were developing a test battery for Detroit,
the DPD adopted a combination of tests proposed by the consultants
for use on an interim basis as an alternative to the reliance on
43/
the Wonderlic as a sole determinant, Op. 26. These interim
tests were used until September 1973 when the Detroit Bat
tery, the tests prepared by the Chicago consultants, was
put into effect, Oct. 27 at 8-10. However, it was not until
the institution of the Detroit Battery that the substantial
adverse effect of the entrance exam was finally terminated,
44/
Op. 26-7, as shown by the following table:
Passed
45/
1968 1969 1970 1971 1972 1973
Blacks 394 287 335 580 544 390
Whites 817 808 1,060 1,244 1,017 826
Failed
Blacks 530 511 514 522 493 302
Whites 255 226 244 233 179 205
% Failed
Blacks 57.4% 64.0% 60.5% 47.4% 47.5% 43.6%
Whites 23.8% 21.9% 18.7% 15.8% 15.0% 19.9%
43/ in 1971 the Department began to use the Wonderlic in
combination with the Otis. These tests were used until the
latter part of 1973. During this period the SRA Pictorial
Test was added. If applicants achieved a certain score on the
Wonderlic-Otis which was not sufficiently high to pass that
exam, they could still go forward in the selection process if
they passed the SRA Pictorial Test, Op. 26.
44 / Exhibit 201.
45/ The figures do not include females.
24
Caretti testified that the Wonderlic was "not a valid test■
... ;[it] is not a valid prediction of successful performance,"
Aug. 24 at 26. Experts who had reviewed the tests had informed
Nichols that the entrance examination contained cultural bias;
he accepted their interpretation and agreed to institute
changes in the examination process, Aug. 10 at 76-7. The court
found that until 1973 the entry level written examinations
"may have constituted a source of discrimination against blacks
... because these examinations were heavily weighted on I.Q. type
questions, were not job related and tended to fail large numbers
of blacks vis a vis whites," Op. 28.
The Vickery Committee and the Mayor's Task Force recom
mended that additional changes be made in the requirements for
selection, exhibit 106 at 7-8, 40-4. The DPD instituted several
46/
changes from 1968-1973 in the requirements for height and weight,
47/ 48/ 49/ 50/
vision, traffic record, age and criminal record. in
addition, the medical, psychiatric, and background examinations which
46/ The minimum height for men was changed from 5'9" to 5'7",
exhibit 273, Aug. 11 at 22-3.
47/ The requirement was changed from 20/30 to 20/40 by 1969 and
to correctable to 20/20 by 1973, id.
48/ In 1971 the requirement was changed to permit individual
evaluation of the traffic record, exhibit 273.
49/ The requirement was changed from 21-30 to 21-32 by 1969 and
to 18-32 by 1973, id.
50/ An applicant would not be accepted who had been arrested and
convicted for a felony or who had been convicted of a misdemeanor
offense which had not been expunged, exhibit 106 (Broadnax Report
at 3) .
25
had disproportionately screened out blacks were altered, Oct.
26 at 26-30; Aug. 24 at 35-8, 42-3. For example, the require
ments for acceptable blood pressure, which had a severe impact
51/
on blacks, were changed, Sept. 7 at 60-4. Substantial modi
fications were also instituted in the background investigations
which substantially reduced the racial disparity in the rejection
52/
rates of applicants.
2. Recruitment Practices
53/
When Commander Ferrebee became the Director of
Recruiting in 1971, he upgraded the efforts by the DPD to recruit
blacks. Commander Ferrebee increased the number of blacks in
supervisory and investigator positions in the recruiting depart-
54/
ment and sought to terminate certain irregularities in the
55/
department. While some efforts to recruit
51/ Maurice Cochran, a black man who is presently a sergeant
on the DPD, was refused hire in 1969 and 1970 because his blood
pressure was allegedly too high; but he was subsequently hired in
1971, Nov. 15 at 93-100.
52/ Background investigators were able to choose to investigate
whomever they wanted, Oct. 13 at 35, Oct. 26 at 33; sergeants could
reject applicants even before the completion of the investigation,
Oct. 26 at 44-6; and the investigations of blacks took longer than
investigations of whites with similar backgrounds, id., 31-2, 98-
100. These problems were corrected; investigations were assigned
by a "blind draw," Oct. 13 at 35, Oct. 26 at 33; the background
investigation unit was integrated, Oct. 26 at 42; only a lieutenant
or a commander could reject an applicant, Oct. 26 at 45-6.
53/ Commander Ferrebee, prior to joining the DPD, had been
responsible for affirmative action and recruiting at the Ford Motor
Company, Oct. 26 at 4-6.
54/ When Ferrebee became the Director in 1971, all five of the
supervisors and thirteen of the nineteen investigators in the
Department were white, Oct. 26 at 10-11.
55/ After a review of the section's practices, Ferrebee discovered
that investigations of blacks took longer than investigations
- 26 -
blacks were commenced in 1968, Aug. 18 at 30-1, Op. 23-4,
it was not until 1971-1972 that the DPD began an active
and comprehensive minority recruitment program, Oct. 26 at
66-72.
3. Promotional Practices
In 1970, several changes were made in the promo
tional model: the qualification or in-grade time required
to sit for the sergeant's exam was reduced in order to allow
more blacks to qualify: the weights accorded seniority (15% to 8%)
and service rating (35% to 30%)were reduced, while the weight
accorded the written exam (50% to 60%) was raised; a new
factor, college education, was used, and it was weighted
56/
2%, exhibits 263, 185. From 1969 through November 1973,
there were two promotional examinations for police officers;
one was given in 1969 and the other in 1970, Op. 9 n.ll,
Aug. 24 at 65. Additionally, in 1970, there was a peculiar
promotional test given to detectives for promotion to the
sergeant level, Aug. 24 at 65-6, infra. 28-9.
The district court found that prior to 1969 the
"intelligence quotient was accorded heavy emphasis in the
written promotional examination," Op. 9. Caretti, who had
been appointed to the personnel department in 1968, played
only a small role in developing the 1969 promotional examination:
55/ Cont1d
of whites, Oct. 26 at 31. He then discovered that the files of
a number of applicants,all of whom were black, were locked in the
desk drawers of certain investigators while these investigators
were on vacation, id. 32, 44-6.
56/ A veteran's preference of 2% remained constant.
27
[on] the 1969 test I didn’t have
full authority. I was essentially
involved in the job-related sec
tion of the test. I had just ar
rived on the scene and possibly
the supervisor had not gained the
confidence in my ability to do the
job...Aug. 24 at 64.
The remaining parts of the examination continued the "heavy
emphasis" on intelligence quotient with, for example, "a
57/
very complex vocabulary test," id. Caretti testified that
these "I.Q. oriented testing procedures" for promotion to
sergeant did not have any valid relationship with perfor
mance, Aug. 24 at 63, Aug. 25 at 75. Moreover, Caretti con
sidered the heavy emphasis on I.Q. testing as "an incident
of cultural bias" which formed a barrier to the promotional
opportunity of minorities, Aug. 24 at 63-4. Dr. Ebel, a
plaintiffs' expert, concurred: "In the area of intelligence
testing, I think it is relatively easy to demonstrate that
bias has existed," Oct. 12 at 57.
Caretti was responsible for the preparation of the
1970 examinations for the promotion of detectives to sergeant
and of police officers to sergeant, Aug. 24 at 65. Because of "a
political situation" the rank of detective was being phased
out and "through labor management political negotiations" it
was agreed that all detectives would be promoted to the
■sergeant rank, id. at 67. Caretti was instructed to prepare
an examination to be used in the promotional process for the
57/ The district court ignored the direct testimony of
Caretti in finding that Caretti "directed" the preparation
of the 1969 promotional examination, Op. 9 n. 11.
28
detectives, id. 66. However, in view of the "political"
situation the examination was a sham; every one of the 158
detectives who took the examination was passed and was pro-
58/
moted to sergeant, id., Aug. 11 at 17-8 (Nichols). Caretti
testified that the results achieved by the detectives on the test
were "discouraging" and "disappointing," since they "sim
ply went through...the motions" and "did not make an effort
to prepare for the examination," Aug. 24 at 68. Nevertheless,
every one of the 158 detectives was promoted despite the
fact that only 23 of the 377 police officers who passed
the promotional test were promoted at that time, exhibits
181-83, Aug. 10 at 101-02. Former Commissioner Nichols
did not consider this promotion to constitute "dipping"
5 SL/because there were "two lists," id. 101-03. There was no direct
evidence regarding the racial composition of the 158 detec
tives promoted to sergeant, but since the overwhelm
ing majority of police officers in the Department, and
especially in specialized units, was white, it may be inferred
that the beneficiaries of this "political" compromise were
60/
almost entirely white officers. * 134
58 / General Order 129, dated December 22, 1970, exhibit 181,
shows the 158 detectives who were eligible and General Order
134, December 24, 1970, exhibit 182, shows that each one of
those eligible was promoted.
59/ See supra 20 for a description of the practice of
"dipping."
60/ The Task Force Report: The Police, supra 173, supports
this conclusion. In 1966 only 12 or 3.3% of the 362 detectives
in the DPD were black.
29
When Nichols became Police Commissioner in 1970 the
promotional process was viewed by "a great many people [as]
contaminated...," Aug. 10 at 80. He "had a concern for the
examination per se...I wanted an examination put together
so nobody could say the fix was on, that they were discrim
inated against..." id. "What we tried to do was to re
establish the integrity of the system itself and to this
end I know Inspector Caretti did a very critical job," id. 81.
According to the district court, while there were some "defi
nite improvements” in 1969 and 1971, it was not until "the
1973-1976 period where the most extensive changes occurred,"
Op. 9-10, Neither Caretti nor the experts for
plaintiffs testified that the promotional examinations ad
ministered prior to 1973 were job related. Furthermore, two
Commissioners, Spreen and Nichols, stated that there were
substantial abuses in the service rating system used for the
evaluation of candidates for promotion during this period,
see supra 19-20.
4. The Results of the Hiring, Recruitment,
and Promotional Practices, 1968-1973.
The efforts by the Detroit Police Department to
terminate its overt practices of race discrimination, to
recruit blacks, and to alter the hiring practices in order to
limit their adverse racial effect, showed some progress. By
June 1974, 956 or 17.3% of the 5,512 sworn personnel in the
30
But thereDepartment were black, exhibit 208, Op. 21.
was little progress achieved by the Department in promoting
police officers to sergeants. In 1973, 20% of the police
officers but only 4.1% of the sergeants were black, exhibit
265; in June 1974, only 61 or 5.15% of 1,185 sergeants were
black, exhibit 208, Op. 18 n. 29. The promotional model from
1968-1973 had continued to adversely affect blacks and to
effectively serve as a barrier to black advancement.
Moreover, the hiring practices continued to have a severe
adverse impact on blacks which limited the number of blacks
appointed to the force. The entrance exam had an adverse
impact upon blacks, Op. 26,28, Aug. 8 at 81-4 (Spreen). But
more importantly, as Nichols testified, the entire hiring model
screened out substantially more blacks than whites, Aug. 10 at
70-1. For example, the figures for 1970 show the following,
exhibits 99, 201, 208: * 180
6 1 /
61/ Interestingly, blacks were appointed to the police force
in the highest proportion in 1968, immediately after the traumatic
1967 riots, exhibit 208. The following chart lists the number of
black appointments for each year from 1968-1973 with their percentage
of total appointments:
1968 1969 1970 1971 1972 1973
180 (34.7) 127 (22.6) 101(20.4) 170 (25.9) 185(30.1) 149 (30.4)
31
Total Blacks Whites
No. % No. %
Applicants 5,7 52 2,516 44% 3,236 56%
Hires 494 101 20% 393 80%
Thus, a white applicant was three times more likely to be
hired than a black applicant; 12.1% of all white applicants
were hired, whereas only 4% of all black applicants were
hired. As shown in exhibits 201 and 208, the disproportionate
exclusion of blacks at rates comparable to that in 1970 con-
62/
tinued during this entire period.
C. Practices Instituted Pursuant to or contempora
neously with the Affirmative Action Plan
1. Introduction and Summary
The affirmative action plan has affected the selec
tion of candidates for the promotion to sergeant who took
62/ The district court erroneously rejected the applicant
flow records for all the years from 1968-1975 because, according
to the court, there was "a multitude of errors," Op. 25. First,
as brought out on cross-examination by counsel for the plaintiffs,
the figures for 1968-1971 did balance and were done correctly,
whereas the figures in the applicant flow analysis after 1971
did have some inaccuracies, Oct. 27 at 65. Accordingly, there
is nothing in the record which casts doubt on the 1968 to 1971
figures. Second, Commander Ferrebee testified that while the
post-1971 figures did not balance, the important conclusion,
the substantial disparity between black and white selection rates,
is not affected by the discrepancies since the figures showed the
racial effects of the components of the process, Oct. 27 at 57-58,
Oct. 28 at 11-9. Third, the Commissioner of Police, Nichols, and
the Director of Recruiting, Ferrebee, testified that there were
substantial disparities between the hire rate of blacks and whites.
Fourth, two separate Commissions established to review the hiring
practices of the DPD, Mayor Cavanagh's 1968 Task Force and the
1970 Police Community Relations Project, also found substantial
racial disparities in the hire rate, see supra at 15-16 (The Task
Force) and exhibit 294 at p. 11 (Police Community Relations
Project).
32
three examinations: 1973, 1975, and 1976. There were five
separate sets of promotions made from the eligibility list
which resulted from the 1973 examination, three sets from
64
the 1974 examination, and one set from the 1976 examination.
All of the candidates who were promoted were on the eligi
bility lists, had passed the promotional examination and
were "well-qualified," Nov. 3 at 4 (Hart), Aug. 19 at 31, * 8
6 3 /
^3/ On November 1, 1973 a notice of promotional examina
tion was posted. The examination was administered Decem
ber 16, 1973. On April 9, 1974 a list of 298 candidates
ranked by score was posted. On June 7, 1974 and January 6,
1975 the list was amended to add 77 and 125 names respec
tively, Op. 3-6.
On September 10, 1974 a notice of another promotional
examination was announced, Op. 6 . The examination was
administered on November 17, 1974, but the eligibility
roster was not issued until November 28, 1975, exhibit 9.
There were 523 officers listed, id., Op. 6.
On May 23, 1976, a third promotional examination was
given which resulted in the issuance of an eligibility ros
ter of 460 officers on December 28, 1976, Op. 7.
64/ Date of Promotion Black Male White Male Females
1973 Examination May 9, 1974 1
August 1, 1974 25
Oct. 11, 1974 14
Feb. 12, 1975 8
March 27, 1975 15
1974 Examination Total for 3 1976
promotions 59
1976 Examination June 30, 1976 30
Source: Op. 3-7.
152
29
15
8
18
59 9
30 _9
159 34
33
in "sj1
n
Aug. 25 at 76-7 (Caretti). As a result of the application
of the affirmative action plan, 159 whites and 152 black males
were promoted from police officer to sergeant. By the end
of 1977, the proportion of black sergeants had increased
to 15.1% of the total, exhibit 264. If the promotions had
been made on the basis of the strict rank order on the
eligibility rosters, 287 white and 47 black males would
have been promoted, exhibit 274, which would have left
DPD with only slightly more black sergeants in 1977 than in
1973.
The changes in the employment practices in the DPD
from 1973-1977 must be examined in two parts: the insti
tution, application and supervision of the affirmative
action plan, and the alteration of the promotional
model.
2. Affirmative Action Plan
On May 9, 1974 the DPD promoted in rank order
from the eligibility list; the results, 29 whites and 1
black promoted, continued the severe adverse impact of the
promotional model. Subsequently, Chief Tannian sought per
mission from the Board of Police Commissioners to institute
an affirmative action plan which would permit the promotion,
out of rank order, of qualified black officers who had
65/
passed the examination. The first meeting of the Board was
65/ on July 1, 1974 a new City Charter became effective
which required the Mayor to appoint a five-member Board of
Police Commissioners, Op. 18, exhibit 276. The Board ap
proves promotional policies and all promotions, id. at 45, 49.
The City Charter banned the custom in the DPD of permitting
the Police Chief to "dip" into the pool of eligibles in order
to promote at his discretion, id. 49.
34
held on July 22, 1974. Tannian made a presentation in
support of the affirmative action plan. The purposes of
the plan, Tannian informed the Board, were to remedy prior
discriminatory practices, to overcome the present barriers to
66/
the promotion of blacks in the promotional model, exhibit 240
67/
(Minutes, 7/22 meeting at 11-12, 14), and to satisfy the
operational needs of the Police Department, id., Aug. 30 at 7;
Sept. 12 at 11. Tannian presented the "dramatic” hiring
statistics of the Department from 1944 to the present, which
showed "the hiring of minority applicants . . . so low as to
be almost non-existent," and the low percentage of black
sergeants, 5%, exhibit 240 (Min., 7/22 meeting at 11).
If the promotional model was allowed to apply as in
the past, Tannian stated to the Board "[i]t would be fifteen
or twenty years before I would begin to see any impact [sub
stantial increase in black supervisors] . . . So I felt I had
66/ Exhibit 240 is a compendium of the minutes of those
sections of the Board meetings pertaining to the discussion
of the affirmative action plan.
67/ For example, Tannian pointed out that only one of the
30 officers promoted in rank order in May 1974, was black,
exhibit 240 (Min., 7/22 meeting at 12). Additionally, Tannian
pointed out that seniority constituted eight points in the
promotional model; because of the past hiring discrimination
there were few black officers vho had more than a few years
seniority and thus this requirement adversely affected blacks,
id. 12, 14, 17.
35
to take some affirmative action to correct a historic
imbalance as to the way the promotional system functioned,"
id. 12. Moreover, there were "valid operational reasons
why the Police Department should reasonably reflect the ethnic
make-up of the City in order to more effectively serve
its citizens," Aug. 30 at 7, see Sept. 12 at 10-12. Tannian
pointed out that every precinct commander was requesting
black supervisors and that there was a shortage of blacks
to work in Homicide, as investigators (almost all investi
gators were sergeants) and in other units, exhibit 240
68/
(Min. 7/12 meeting at 19-20). As Commissioner Littlejohn
testified, discrimination seriously affected the DPD's
ability to control crime, Nov. 9 at 10:
My recall is that the most com
pelling reason furnished by the
Chief of Police was the need to
promote in this fashion to meet
the needs of the Department with
regard to rendering, not only
efficient, but necessary service
to the citizens of the City of Detroit
... A reason that is connected with
that primary purpose, the most
compelling of reasons, and why the
situation existed as it was out
lined by the Chief, was the fact
of prior discrimination...the
impact of that discrimination
was a dramatic imbalance of police
personnel... that affected the De
partment's ability to control
crime in the City of Detroit. The
two are interrelated; you cannot
68 / Professor Littlejohn has been a member of the Board
of Police Commissioners since its inception; he is presently
Associate Dean and Professor of Law of Wayne State University
Law School, Nov. 9 at 4-6.
36
separate one from the other
because one exists because
the other existed previously.
That1s my understanding of
what the Chief's presentation
embodied.
The Board of Police Commissioners also carefully
considered the legal requirements for and limitations on
affirmative action, Nov. 9 at 11. in fact, Tannian pointed
out to the Board that the City was "involved in multiple
lawsuits on this subject [affirmative action]" and that
Judge Freeman had within the last several months ordered
the Department to adopt an affirmative action plan for the
69/
promotion of women to sergeants, exhibit 240 (Min., 7/22
meeting at 11, 13). Tannian observed that, Sept. 16 at 18:
[If] the judicial branch of govern
ment upon an appropriate finding can
order certain actions, and those
actions are entirely proper and law
ful, then it should not be a require
ment upon the executive branch of
government, when they analyze the
facts and find things to be dis
proportionate 70/ and not in compli
ance, to stand around and wait for
somebody to sue them to have a court
order then to deal with it.
(footnote added)
69/ Schaefer v. Tannian, 10 FEP Cases 896 (July 3, 1974,
E.D. Mich.) (Order issued); 394 F. Supp. 1128 (May 22, 1974
E.D. Mich.) (Opinion on preliminary injunction).
70/ Judge Freeman in ordering a quota remedy in Schaefer
relied in part on the fact that "in 1972 there were 12 ser
geant positions for which women could compete — j_.e.; one
sergeant position for every 5.4 police women. At the same
time, there were 1,006 male sergeant positions for 3,004 male
patrolmen — i-e., one sergeant position for every 3.4 patrol
men. In other words, a police woman had 37% less likelihood
of being promoted than her male counterpart. . ." 10 FEP Cases
The Board relied upon the advice of the Corporation Counsel
that the affirmative action plan was lawful, Nov. 9 at 11,
Sept. 19 at 28-9, 39-40, 44, exhibit 240 (Min. 7/22 meeting
at 22-3) .
The Board tabled the proposal for the affirmative
action plan. At the next meeting of the Board, July 26,
counsel for and other representatives of the plaintiff
DPOA were in attendance; they presented written and oral
statements and were allowed to examine charts prepared by
the Police Chief in support of the affirmative action plan,
exhibit 240 (Min. 7/26 meeting). The Board decided to
reconvene on July 31 to determine whether or not the AAP would
be adopted; it was also decided to keep a tape recording
of this meeting, exhibit 240 (Min. 7/31 meeting at 1).
At the July 31 meeting, counsel for and representa
tives of the DPOA spoke in opposition to the plan; others
spoke in support of the plan, id. 2-5. The AAP then was
unanimously adopted by the Board. The resolution stated that
"de facto discrimination exists in the promoting of blacks...
to supervisory positions" and that the AAP is necessary
"because of past and present discrimination in the hiring
and promotional policies" of the DPD. The resolution provided
70/ contd.
896 at 897.
By the same analysis the disproportionality between
the likelihood of black and white officers being promoted in
1973 was almost twice as large. There were 48 black sergeants
and 817 black police officers, or 1 black sergeant for each
17 black officers; but there were 1,094 white sergeants and
3,142 white police officers, or 1 white sergeant for each 2.9
white officers, exhibit 265. According to this ratio, a black
38
that there should be a remedy for the discriminatory prac
tices, that racially neutral hiring and promotional prac
tices should be developed, and that the Chief of Police
"shall regularly report" to the Board in order that the
73/
Board may regularly re-evaluate the plan, exhibit 240.
The Board authorized Tannian to promote officers
from the eligibility list on the approximate ratio of one
black for each white. This decision was made after con
sidering various alternatives and "the overall objective
[of] chang[ing] the nature of the Department" because "any
thing more...would be disrupted and anything else less wouldZi./
be too slow of a process," Nov. 9 at 151 (Littlejohn).
As provided in the resolution, the Board exercised
close supervision over the implementation of the plan.
73/
Both Chief Tannian on December 4, 1975 and Chief Hart on
70 /contd.
police officer would have 83% less likelihood of being pro
moted than a white police officer.
71 / A copy of the resolution is attached to the brief
as Appendix C.
72/ The court stated that the ratio was chosen because
it was comparable to the racial breakdown of the City, Op. 19;
this was the basis for Tannian proposing the ratio, Aug. 30
at 7, but the Board adopted the ratio for additional reasons
indicated above.
73/ Chief Tannian presented extensive charts and written
reasons in support of the AAP, Sept. 12 at 27-8, exhibit 128
and exhibit 240, (Min. 12/4/75 meeting).
39
April 28, 1977 made extensive subsequent presentations
before the Board including documentary and oral evidence
concerning the need for continuing the AAP. The Board was
informed as to how little progress would have been made
if the promotional model had been used without an affirm
ative action adjustment and that the candidates chosen were
qualified, exhibit 240 (Min. 12/4/75 meeting at 7-8, 12-13).
Moreover, the Board continued to monitor the legal
75/ 76/
requirements, administrative and judicial. Additionally,
the Board repeatedly approved proposed promotions under the
77/
AAP, and on at least two occasions issued resolutions re-
78/
newing the Board's approval of the affirmative action plan.
7 4 /
74/ Chief Hart supplied additional documents in support of
the plan as requested by the Board, exhibit 240 (Min. 4/28/77
meeting), Nov. 2 at 50-1.
75/ Chief Tannian informed the Board that the LEAA Guidelines
indicated that there was a racial imbalance in the work force
of the DPD. The Guidelines which were in effect suggested
that, pursuant to an analysis of the population of the City,
it would be expected that the Department would have at least
394 minority sergeants; as of December 1974 there were only
101 minority sergeants, exhibit 240 (Min. 12/4/75 meeting at
8) .
76/ Commissioner Cohn, a lawyer in Detroit, was careful to
obtain legal advice each time the plan was discussed, Nov. 11 at 19.
77/ See, e.g,., exhibit 240, minutes of the meetings of January
10, 1975, February 7 and 14, 1975, March 19 and 27, 1975, December
4, 1975, May 27, 1976 and April 28, 1977.
78/ Exhibit 240, Min. 12/4/75 meeting at 11, 4/28/77 meeting
at 213.
40
3. Promotional Model
While the Board approved the affirmative action
plan to remedy the effects of the discriminatory practices,
the Commissioners were also looking for a non-discriminatory,
job-related model for promotion: "What we were trying to
get to was a model, that once we got into an equal position
[having remedied the effects of the discrimination] that
that model could be applied equally and then, as I have
said before, there would be no further need for an Affirm
ative Action Program," Nov. 9 at 80 (Commissioner Littlejohn).
The Board directed the Department to design and develop a
non-discriminatory, racially neutral selection procedure
which would assist in promoting and hiring qualified per
sonnel, supra 39.
The Department was substantially limited in the
changes which it could effect in the promotional model
because of a dispute with the plaintiff DPOA concerning
whether the criteria for promotion were subject to collec-
79/
tive bargaining. The Vice-President of the DPOA, Watroba,
testified that beginning in 1971, the DPOA sought to bargain
with the City concerning the standards for promotion, Oct.11
at 6, 19. The City refused to bargain with the DPOA over
79/ The DPOA had been recognized as the exclusive bargaining
agent for police officers since 1966. The dispute concerned
both the interpretation of the Public Employment Relations Act,
M.C.L.A. §423.201 et. seq. and whether the DPOA is the proper
bargaining agent with which to negotiate promotional standards.
The court below took judicial notice of this litigation, Aug.
16 at 40-3. Detroit Police Officers Association v. City of
Detroit, 233 N.W.2d 49 (Ct. App. Mich. 1975).
41
this matter, id., Aug. 26 at 31, Sept. 6 at 47. The DPOA
filed an action with the Michigan Employment Relations
Commission (MERC) seeking an order compelling the City to
bargain collectively regarding the promotional standards.
The order sought by the DPOA was issued by MERC and affirmed
by the Michigan Court of Appeals. Detroit Police Officers
Association v. City of Detroit, supra. After the Michigan
Supreme Court denied the City's appeal in November, 1975,
the City for the first time entered into collective bargain
ing negotiations with the DPOA regarding promotional stan
dards, Oct. 11 at 19-20. There has been no contract suc-
80/
cessfully negotiated since November 1975; accordingly, there
never has been any provision in a collective bargaining
agreement between the City of Detroit and the DPOA which
81/
pertained to promotions.
80/ The collective bargaining agreement which had become
effective in June 1973 was due to expire in 1976, exhibit
24. The agreement has been extended by the parties from
day to day through the unsuccessful negotiation of a new
agreement. Currently, the agreement is held in force by
Michigan's public safety employees Compulsory Arbitration
Law pending the arbitration of a new agreement, M.C.L.A.
§423.201 ei:. seg.
81/ The court is in error in concluding that the collec
tive bargaining agreements negotiated since 1968 provided
that seniority had to be considered in promotion, Op. 15,
22, 43-4.
The seniority provision in the 1973 collective bar
gaining agreement, exhibit 24 at 23, only concerns the job
assignment, layoff and recall of police officers; the pro
vision simply does not concern promotion. Prior to 1975,
the parties, as is clear from the record, never even bargained
over promotional standards.
42
As a result of the labor dispute, Caretti was instructed
in 1973 by Lewis Barr, Police Labor Relations Director, to
change nothing in the promotional model, Aug. 18 at 46. The
promotional model instituted in 1970, supra 27, was applied
to the 1973 promotional examination. In 1974, there were four
82/
adjustments to the weighting of factors. A new factor, the
oral board, was added. The oral board was instituted in order
to assist in selecting " [the candidate] who knows the job, has
good communication skills and can deal with the day to day problems,"
and not to necessarily select "the best test writer," Aug. 16
83/
at 62, Op. at 14. The 1974 promotional model was also applied
to the 1976 promotional model, Op. 9.
After the negotitations between the DPOA and the City
regarding promotional standards became stalled, the parties
submitted the dispute to an arbitrator pursuant to Michigan
law, supra 42 n. 80. There were substantial differences between
the parties relating to the promotional standards. The DPOA
wanted to increase the time-in-grade requirement for sitting
for the examination and to increase the weight of the seniority
factor, Oct. 11 at 41—2, Oct. 20 at 8 , 34; the DPOA made no
attempt to analyze whether or not its proposed emphasis on seniority
would continue the effects of past hiring discrimination,
82/ The weights of the written examination (60% to 65%) , per
formance evaluation (30% to 15%) and seniority (8% to 6%) were
altered. The college credit and veteran's preference components
were increased to maximum of 2% each, no longer 2% combined.
83/ The oral board presented realistic situations and the
candidate was asked to indicate proper police procedure, Aug.
17 at 55-63. There were substantial precautions undertaken
43
Oct. 11 at 58-64, see Oct. 20 at 35. The City of Detroit
rejected these proposals as possibly violating the fair employ
ment laws, Oct. 20 at 10. The City proposed, inter alia, that
84/
the "grandfather clause" and the seniority requirement for
sitting for the examination be eliminated and that the written
examination and the oral board be weighted equally at 32% each,
Oct. 20 at 12-14. These changes would tend to reduce the
adverse racial impact of the promotional model, infra Section III, A.
85/
The DPOA rejected the City's proposals.
Caretti was directed to make the written promotional exami
nation more job related. He tried to make the test content valid
"to the best of [his] ability," Aug. 17 at 18, but he candidly
admitted the limits of his expertise, Aug. 11 at 9, Aug. 16 at 86,
and that he could not testify that "the test is content valid,"
Aug. 15 at 81. The efforts undertaken to develop a content valid
examination are discussed in detail in Section III.
83 / (Continued)
to insure the objectivity of the system: each board was composed
of three officers from police departments other than Detroit's;
one of the three officers was black; structured questions were
used; each of the three officers rated the candidate indepen
dently; a tape was made of the interview and there was an appeal
procedure, Nov. 17 at 96-109, Op. 14-5.
84 / This clause relieved long-service officers of the obliga
tion to have taken a requisite number of college courses before
being promoted, see supra 17.
35 / Despite the fact that over 30% of the bargaining unit is
black, the DPOA has never had a black on its negotiating team,
Oct. 11 at 32-3.
44
SUMMARY OF THE ARGUMENT
The district court erred as a matter of law in holding the
Detroit Police Department's affirmative action plan unlawful, and
many of its findings of fact were clearly erroneous. (Section I)
Prior to its adoption of the affirmative action plan in 1974,
the Department had a history of extreme and longstanding inten
tional discrimination against blacks, and it engaged in unlawful
employment practices which adversely affected blacks and were
unrelated to job performance. Under these circumstances, the
Department was permitted, and indeed was obligated, to take race
conscious measures to remedy the effects of its past discrimination.
(Section II)
If the Department had made no adjustments to the model which
it used from 1974 through 1977 for the promotion of police officers
to sergeants, that model would have had a substantial adverse impact
on black officers. Since neither the promotional model as a whole,
nor its seniority component and its written examination, were job-
related, the City was compelled by law to remove the adverse impact;
if it did not, it would be liable for discrimination against black
officers. (Section III)
Fair and effective law enforcement in a city of Detroit's size,
racial diversity, and history of violence is a complex and demand
ing responsibility. That responsibility has been made more
45
difficult by the effects of the Police Department's prior practices
of discrimination in employment and law enforcement and by the
hostility between the black community and the Police Department
which was the primary cause of the tragic race riots of 1943 and
1967. Under these circumstances, the City was justified in using
race-conscious selection practices in order to make the Department
more representative of, and more effective in, the community it
serves. (Section IV)
The affirmative action plan was reasonably related to removing
both the effects of the prior discriminatory practices and the
adverse racial effects of the current promotional model, and to
meeting the operational requirements of the Department. In addition,
the plan was implemented and supervised in a reasonable manner.
(Section V)
ARGUMENT
I. THE DISTRICT COURT WAS WRONG AS A
MATTER OF LAW IN HOLDING THE AFFIRMA
TIVE ACTION PLAN UNLAWFUL, AND IT MADE
CLEARLY ERRONEOUS FINDINGS_0F FACT.
The district court's rulings on four basic issues led it to the
conclusion that the City's affirmative action plan was unlawful:
(1) Since proof of prior discrimination was "absent in this case",
the plan was not justified as a remedy to correct any past
46
violations of law, Op. 45-46; (2) Since the promotional model
was job-related, it was not proper to use racer-conscious selection
practices to remove its adverse racial impact, Op. 42-43; (3) In any
case, even if there were proof of prior discrimination, only a court
and not an employer “acting alone" may fashion an affirmative action
plan which contains "quota type relief", Op. 46; (4) There was no
compelling governmental interest that justified the City's use of
race in its promotional practices, Op. 56.
The clearly erroneous rule does not apply to the latter two
issues, voluntary affirmative action and operational requirements,
because the determination of those issues depends upon the application
of legal standards and not upon the resolution of contested factual
questions. Nor does the clearly erroneous rule apply to the former
two issues, the existence of prior discrimination and the job re
latedness of the test. These issues involve "ultimate facts", the
proper determination of which depends upon whether controlling legal
standards are correctly applied. Sims v. Sheet Metal Workers Local
65, 489 F.2d 1023, 1026 (6th Cir. 1973)(job relatedness of a selection
practice); Causey v. Ford Motor Co., 516 F.2d 416, 420-21 (5th Cir.
1975); Bolton v. Murray Envelope Corp., 493 F.2d 191, 195 (5th Cir.
1974); Stewart v. General Motors Corp., 542 F.2d 445, 449 (7th Cir.
47
1976), cert, denied, 433 U.S. 919 (1977); where, as here, the
district court has applied erronous legal standards to findings
of ultimate fact, the appellate court may reverse "as a matter of
law" and without application cf the clearly erroneous rule. Kelley
v. Southern Pacific Co., 419 U.S. 318, 319-20 (1974); United States
v. Singer Mfg. Co., 374 U.S. 174, 194 n.9 (1963); Senter v. General
Motors Corp., 532 F.2d 511, 526 (6th Cir. 1976), cert, denied, 429
U.S. 870 (1976); Causey v. Ford Motor Company, supra at 420-21;
Nader v. Allegheny Airlines, Inc., 512 F.2d 527, 538-39 (D.C. Cir.
1975). However, even if the clearly erroneous rule were applied,
the lower court's conclusions must be reversed since a review of tie
evidence leaves the "firm conviction that a mistake has been commited,"
United States v. Gypsum Co., 333 U.S. 364, 395 (1948). Moreover,
as is detailed throughout this brief, the district court clearly
86/
erred in its findings of subsidiary facts.
86/ See, e.g., the following clearly erroneous findings: there was no
labor market analysis in the record applicable to the years 1944-1967,
p.9, n.10; there was no evidence in the record regarding promotional
models which were used prior to 1973, p.18, n.34; the promotional model
never accorded a weight of more than 10% to seniority, p.19, n.35; Caretti
directed the preparation of the entire written promotional examination
used in 1969, pp. 2 7-28; tie collective bargaining agreement included a
provision specifying the use of seniority in the promotional model,p.42,
n.81; prior to 1974, promotions to the rank of sergeant had always been
made in strict numerical rank order according to the eligibility roster,
p .20; Caretti relied on the job analyses of both Inn and Furcon for the
for the preparation of the 1973, 1974 and 1976 written examinations, p.109
uhe use of seniority in the promotional model did not have an adverse
effect on blacks, pp. 17,19; Caretti, wollack, Guenther and Ebel testi
fied that the promotional model was job-related, pp.121-122.
- 43 -
II. THE AFFIRMATIVE ACTION PLAN WAS AN
APPROPRIATE REMEDY FOR THE DEPARTMENT'S
PAST DISCRIMINATION AGAINST BLACKS
A. Prior to the Adoption of the Affirmative
Action Plan in 1974, the Department
Engaged in Unconstitutional and Unlawful
Employment Discrimination Against Blacks
1. Standards of Proof
Neither an employer in adopting a voluntary affirma
tive action plan, nor a court in deciding a challenge to such
a plan, must determine that past discrimination against minori
ties has been proven by a preponderance of the evidence. Such
a rigid standard of proof would largely eliminate voluntary
compliance with the fair employment laws. Rather, where an
employer had a reasonable basis for concluding that it might
be held in violation of the fair employment laws, it should
be protected from liability for acting in accordance with an
affirmative action plan which is reasonably calculated to
remedy that violation. See Proposed EEOC Guidelines Relating
to Remedial and/or Affirmative Action Appropriate Under Title
87/
VII, 42 Fed. Reg. 64826 (Dec. 28, 1977). In this case, however,
the evidence of past discrimination against blacks is so glaring
° V "An employer or other person subject to Title VII who has
a reasonable basis for concluding that it might be held in
violation of Title VII and who takes remedial and/or affirma
tive action reasonably calculated to avoid that result on the
basis of such self-analysis does not thereby violate Title VII
with respect to any employee or applicant for employment who
is denied an employment opportunity as the result of such action.
The lawfulness of such remedial and/or affirmative action pro
gram is not dependent upon an admission, or a finding, or evi
dence sufficient to prove that the employer or other person
subject to Title VII taking such action has violated Title VII."
49
and abundant that it satisfies even the more rigorous standards
which apply to typical cases alleging discrimination against
minorities. These standards are summarized below.
The Supreme Court has held that proof of a racially
discriminatory intent or purpose is necessary to show a viola
tion of the Equal Protection Clause, Washington v. Davis. 426
U.S. 229 (1976); Village of Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252, 265 (1977). "This is
not to say that the necessary discriminatory racial purpose
must be express or appear on the face of the statute, or that
a law's disproportionate impact is irrelevant . . . . Nec-
esssarily, an invidious discriminatory purpose may often be
inferred from the totality of the relevant facts, including the
fact, if it is true, that the law bears more heavily on one
race than another," Washington v. Davis, supra at 241-42. It
need not be shown that racial discrimination was a dominant or
primary purpose for the challenged action; rather, "proof that
a discriminatory purpose has been a motivating factor in the
decision" is sufficient, Arlington Heights, supra at 265-66.
Determining whether invidious discriminatory purpose was a mo
tivating factor requires "a sensitive inquiry into such circum
stantial and direct evidence of intent as may be available," inclu
ding such factors as the impact of the challenged practice and its
historical background, id_.266-68. As Justice Stevens has noted,
87/ continued
42 Fed. Reg. 64826. See also, Equal Employment Opportunity
Coordinating Council, "Affirmative Action Programs for State
and Local Government Agencies Policy Statement," 41 Fed. Reg.
38814 (Sept. 13, 1976).
50
Frequently the most probative evidence
of intent will be objective evidence of what
actually happened rather than evidence des
cribing the subjective state of mind of the
actor. For normally the actor is presumed
to have intended the natural consequences of
his deeds. This is particularly true in the
case of governmental action which is fre
quently the product of compromise, of col
lective decisionmaking, and of mixed
motivation. Washington v. Davis, supra at
253 (Stevens, J., concurring).
This court has held that the discriminatory intent
or purpose required by the Washington v. Davis - Arlington
Heights standard of proof may be inferred "from a pattern of
official action or inaction which has the natural, probable
and foreseeable result of increasing or perpetuating school
segregation," NAACP v. Lansing Board of Education, 559 F.2d
1042, 1047-48 (6th Cir. 1977). The circuits uniformly have
adopted this objective standard for ascertaining segregative
intent, see United States v. Texas Education Agency, 564
F.2d 162, 168 (5th Cir. 1977), and cases cited therein. This
Court has recognized that the objective standard applies to
employment discrimination cases as well: "a pervasive pattern
of discriminatory effects may support an inference of inten
tional discrimination underlying the individual charge of
discriminatory firing," McBride v. Delta Air Lines, Inc.,
551 F.2d 113, 115 (6th Cir.), vac. and rem. on other grounds,
54 L.Ed. 2d 273 (1977). Proper findings of unconstitutional,
discriminatory purpose have been made and upheld where statis
tical evidence of a disproportionate impact has been coupled
with other objective evidence of discrimination in employment,
see Harkless v. Sweeny Indep endent School District, 554 F.2d
51
1353, 1356-58 (5th Cir. 1977), cert, denied, 54 L. Ed. 2d
452 (1977); Baker v. Columbus Municipal Separate School
District, 462 F.2d 1112, 1114 (5th Cir. 1972); Feeney v.
Massachusetts, ____ F. Supp. ____ , 17 F.E.P. Cases 659 (D.
Mass. 1978) (three-judge court); Shield Club v. City of
Cleveland, 13 F.E.P. Cases 1373 and 1394 (N.D. Ohio 1976).
Where the disproportion itself is sufficiently dramatic,
that fact alone "may for all practical purposes demonstrate
unconstitutionality . . .," Washington v. Davis, supra at
242. See also, Sangmeister v. Woodard, 565 F.2d 460, 467
88/
(7th Cir. 1977).
This inquiry into intent and purpose may be rele
vant but is not required to show a violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e
et seq. "Congress directed the thrust of [that] Act to the
consequences of employment practices, not simply the motiva
tion," Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971)
(emphasis in original); Washington v. Davis, supra at 246-47.
A prima facie violation of Title VII may be established either
by evidence of disparate treatment or by evidence of disparate
impact. Disparate treatment is shown where there is evidence,
for example, that an employer treats blacks less favorably
than whites. In such cases, as in cases under the Fourteenth
Amendment, proof of discriminatory motive is critical, but
88/ The Washington v. Davis-Arlington Heights standard also
applies to claims under 42 U.S.C. § 1983 for deprivation of
the rights secured by the Equal Protection Clause. See, e.g.,
Harkless v. Sweeny Independent School District, supra.
52
motive can be inferred from the fact of differences in treat
ment, International Brotherhood of Teamsters v. United States,
431 U.S. 324, 335 n.15 (1977). And, as in cases under the
Fourteenth Amendment, gross statistical disparities alone may
justify the inference of a discriminatory motive and thus
establish a prima facie disparate treatment violation, Hazel
wood School District v. United States, 433 U.S. 299, 307-308
(1977); Teamsters, supra at 339.
Title VII claims of disparate impact, on the other
hand, need not be supported by any proof of discriminatory
motive, Teamsters, supra at 335-36 n.15? Griggs, supra at 432.
See also, United States v. City of Chicago, 573 F.2d 416, 420-
23 (7th Cir. 1978). To establish a prima facie disparate
impact case, a plaintiff need only show, for example, that a
facially neutral test or other selection practice selects
applicants for hire or promotion in a significantly dispro
portionate pattern. Once this is shown, the burden shifts to
the employer to prove that the practice is job related. If
the employer meets this burden, the plaintiff may then show
that other selection devices without a similar discriminatory
effect would also serve the employer's legitimate interests,
Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); Albemarle
Paper Co. v. Moody, 422 U.S. 405, 425 (1975). The same stand
ards apply to claims under both the Michigan Civil Rights Act
89/
of 1977, M.C.L.A. § 37.2101, et seq., and its predecessor,
89/ The court below found that the Michigan Civil Rights Act
"is patterned after Title VII of the Civil Rights Act of 1964,
as amended in 1972," Op. 50 n.82. Its relevant substantive
provisions are essentially identical to those of Title VII.
53
the Michigan Fair Employment Practices Act, M.C.L.A. § 423.301,
90/
et seq.
It also is unnecessary to show purpose or intent to
discriminate in order to establish a violation of Title VI of
the Civil Rights Act of 1964, which prohibits "discrimination
under any program or activity receiving Federal financial as
sistance, " 42 U.S.C. § 2000d. The Supreme Court has approved
the administrative interpretation of Title VI as barring
"[d] iscrimination . . . which has that effect even though no
purposeful design is present," Lau v. Nichols, 414 U.S. 563,
9TJ
568 (1974) (emphasis in original). See also Gautreaux v.
Romney, 448 F.2d 731, 737-40 (7th Cir. 1971); Shannon v. U.S.
99/ continued
Compare M.C.L.A. § 37.2202 (1) (a) and (b) with 42 U.S.C. § 2000e-
2 (a)(1) and (2 ).
90/ The Michigan Fair Employment Practices Act was repealed
and replaced by the Civil Rights Act in 1977, Op. 50 n.82.
The Fair Employment Practices Act was interpreted as incor
porating the standards of Title VII and Griggs v. Duke Power
Co.. supra. See Michigan Civil Rights Commission, Guidelines
and Interpretations of the Michigan Civil Rights Laws, BNA
F.E.P. Manual 455:1091-1095 (adopted Sept. 26, 1972, revised
Dec. 12, 1973).
91/ The Court in Lau approved regulations adopted by HEW
under § 602 of Title VI providing that a recipient of federal
funds "may not . . _ utilize criteria or methods of adminis
tration which have the effect of subjecting individuals to
discrimination" or which have "the effect of defeating or sub
stantially impairing accomplishment of the objectives of the
program as respect individuals of a particular race, color,
or national origin," 45 C.F.R. § 80.3(b)(2). 414 U.S. at
568.
54
Department of Housing and Urban Development. 436 F.2d 809,
820-21 (3rd Cir. 1970). Similar antidiscrimination provisions
of statutes under which federal financial assistance is pro-
92/
vided to state and local governments generally and to law en-
93/
forcement agencies specifically,are also interpreted as pro
hibiting practices which have discriminatory consequences
without regard to discriminatory intent. See nn. 92-93.
Although the Supreme Court has recognized that Title
VII and 42 U.S.C. § 1981 embrace ''parallel or overlapping re
medies against discrimination," Alexander v. Gardner-Denver
Co., 415 U.S. 36, 47 and n.7 (1973), that Court has not yet
V State and Local Fiscal Assistance Act of 1972, as amended,
31 U.S.C. § 1242. The interpretive regulations of the Depart
ment of the Treasury provide, inter alia: "in areas of employ
ment a recipient government may not utilize criteria or methods
of administration which have the effect of: (i) Subjecting in
dividuals to discrimination on the basis of race, color, . . ..
(ii) Perpetuating the results of past discriminatory practices.
(iii) Defeating at: substantially impairing the accomplishment
of the objectives of the program or activities with respect to
individuals of a particular race, color, . . .." 31 C.F.R.
§ 51.52(b) (3) .
9 3/ Omnibus Crime Control and Safe Streets Act of 1968, as
amended, 42 U.S.C. § 3766(c). The regulations of the Law En
forcement Assistance Administration provide that this sec
tion will be interpreted consistently with Title VII in matters
involving employment discrimination, 28 C.F.R. § 42.203(c), and
that a recipient "may not . . . utilize criteria or methods of
administration which have the effect of subjecting individuals
to discrimination . . . or have the effect of defeating or sub
stantially impairing accomplishment of the objectives of the
program as respects individuals of a particular race, color,
. . 28 c.F.R. § 42.203(e). These regulations also apply
to the Juvenile Justice and Delinquency Prevention Act of 1974,
42 U.S.C. § 5672.
55
expressly decided whether the standards of proof are the same
under both statutes. In this circuit, however, the law is
that Title VII principles as to the order and allocation of
proof "apply with equal force to a § 1981 action," Long v.
Ford Motor Co.. 496 F.2d 500, 505 n.ll (6th Cir. 1974), and
that a prima facie violation of § 1981 may be established by
proof of either disparate treatment or disparate impact, id.
at 506. Other circuits have concluded subsequent to the
Supreme Court's decision in Washington v. Davis, supra, that
the standards of proof under § 1981 remain identical to those
under Title VII, see Johnson v. Ryder Truck Lines, Inc., 575
F.2d 471 , 474 , 16 E.P.D. f 8289 (4th Cir. 1978); Davis v.
County of Los Angeles, 566 F.2d 1334, 1338-40 (9th Cir. 1977),
cert, granted, 46 U.S.L.W. 3780 (June 19, 1978). See also,
Kinsey v. First National Securities, Inc., 557 F.2d 830, 383
547
n.22 (D.C. Cir. 1977J.
2. Pre-July 1967 Employment Practices
Until the City and its officials were jolted by the
riots of the summer of 1967, blacks were largely excluded
from the Detroit police force. The population of the City
of Detroit in 1940 was 9.2% black, see App. B, but the
number of blacks on the force in the early 1940s was minimal,
St.6-7. This stark disparity persisted through the ensuing
years, St. 7 :
94/ This court, citing Washington v. Davis, supra. 426 U.S.
at 247-48, has also noted that "[t]he more rigorous 'discrimina
tory effect' test is still applicable to causes of action based
on statutory rights rather than on constitutional grounds, for
example, those granted under Title VII of the Civil Rights Act of
1964." NAACP v. Lansing Board of Education, supra, 559 F.2d
at 1046 n.3.
56
1950
City Population (% Black) DPD (% Black)
1%16%
1960 29% 2%
1967 40% (approximately) 5%
These statistics show the kind of imbalance which
is often a telltale sign of purpose
ful discrimination; absent explana
tion, it is ordinarily to be expected
that non-discriminatory hiring prac
tices 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 employees are hired. Evidence
of longlasting and gross disparity
between the composition of a work
force and that of the general popu
lation thus may be significant . . .,
Teamsters, supra, 431 U.S. at 340 n.20.
The extreme and longstanding disparities demonstrated
in this record are sufficient, standing alone, to establish a
prima facie case of racially motivated disparate treatment,
Teasmsters, supra, 431 U.S. at 339; Hazelwood, supra, 433 U.S.
at 307-308. See also, Morrow v. Crisler, 479 F.2d 960, 961-62
(5th Cir. 1973), mod, on reh. en banc on other grounds, 491
F.2d 1053 (5th Cir. 1974). This is the sort of "total or
seriously disproportionate exclusion of Negroes . . . [which]
may for all practical purposes demonstrate unconstitutionality
because . . . the discrimination is very difficult to explain
on nonracial grounds." Washington v. Davis, supra, 426 U.S.
at 242. Indeed, Deputy Director of Personnel Caretti had no
other explanation: "[S]omething was working to adversely
impact the arrival of more minorities on the scene . . . it
would just appear to me as an observer that there was some
57
form of discrimination effectively working during those years,"
St. 13.
This inescapable inference of racially motivated
discrimination against blacks is supported by additional ob
jective evidence of intentional discrimination.From 1944
through 1967, blacks accounted for only 325, or 5.5%, of the
5,872 appointments made to the police department, St. 7 ”8.
According to the plaintiffs' expert, this is half the number
of blacks (645) which one would expect to be appointed during
this period based on an assumption that the relevant labor
market consisted of persons residing in the Detroit SMSA who
were under 34 years of age and who had a high school diploma.
Furthermore, the actual number of blacks appointed is less
than one-third of the 1,061 black appointments which one would
expect during this period if the relevant labor market were
more appropriately defined as residents of the City of Detroit
who were over 25 years of age and who had completed high school,
95/
St. 8-9. The statistical analysis adopted by the Supreme Court
in Castaneda v. Partida, 430 U.S. 482, 496-97 n.17 (1977), shows
that there is a difference of more than 13 standard deviations
between the actual number and the expected number of blacks
hired if the relevant labor market includes the entire Detroit
96/
SMSA, and a difference of approximately 25 standard deviations
95/ Defendants submit that the relevant labor market is more
properly defined by the geographic boundaries of the City of
Detroit, infra 69-74.
96/ This statistical model measures fluctuations from the
expected value in terms of the standard deviation, which is
defined as the square root of the product of the total number
in the sample (here, 5872) times the probability of selecting
58
between the actual and the expected numbers based on the
91/
City of Detroit labor market. A fluctuation of more than
two or three standard deviations "undercut[s] the hypothesis
that decisions were being made randomly with respect to
race," Hazelwood, supra, 433 U.S. at 311 n.17; Castaneda v.
Partida, supra 430 U.S. at 497 n.17. Under either view of
the relevant labor market, the disparity here, whether 13
or 25 standard deviations, is so great that it indicates
the operation of intentional racial discrimination, Hazelwood,
98/ ---------
supra, 433 U.S. at 308-309 and n.14, 311 n.17. There is no
other explanation for this pattern. Former Commissioner
Tannian found it "unbelievable" that such 'femall numbers
of minorities . . . were being hired every year, year after
96/ continued
a black (645 divided by 5872 = .1098) times the probability
of selecting a white (5227 divided by 5872 = .8902). Thus,
the standard deviation based on the Detroit SMSA labor market
is 23.96. The difference between the expected and observed
numbers Qf blacks hired during this period is 13.36 standard
deviations ([645 - 325] divided by 23.96 = 13.36). 430 U.S.
at 496-97 n.17.
97 / The standard deviation is the square root of the product
of the total number in the sample (5872) times the probability
of selecting a black (1061 divided by 5872 = .1807) times the
probability of selecting a white (4811 divided by 5872 = .8193).
Thus, the standard deviation based on the City of Detroit labor
market is 29.48. The difference between the expected and ob
served numbers of blacks hired during this period is 24.97
standard deviations ([1061 - 325] divided by 29.48 = 24.97).
Id.
98/ The Court in Hazelwood found that differences of five
and six standard deviations were indicative of intentional
discrimination in hiring, id.
59
year after year for decades," and former Commissioner Nichols
acknowledged that he found upon becoming Commissioner in 1968
that "one of the causes was an exclusion policy and I made
certain there was none when I was the Commissioner," St. 14 n.21.
Applicant flow data provide "very relevant" addi
tional proof of intentional racial discrimination in hiring,
Hazelwood, supra, 433 U.S. at 308 n.13. Here the figures for
1967 show that almost half (47%) of 4,122 applicants were black,
but only 22% of the 323 officers hired were black, St. 15. Thus,
while 12% of the white applicants were hired in 1967, only 3.6%
of the black applicants were hired. This is far removed from
the pattern one would expect to result from nondiscriminatory
hiring practices — i.e., approximately equal numbers of black
and white police officers ordinarily would be hired from a
pool containing approximately equal numbers of black and white
applicants, cf. Teamsters, supra, 431 U.S. at 340 n.20.
This extreme departure from the expected pattern
was a direct result of the use of discriminatory tests and
other discriminatory selection practices. In the hiring model
which was in effect prior to the 1967 riots, an applicant
had to complete each stage of a three-stage selection process
by (1) satisfying certain preliminary requirements, (2)
passing a written examination, and (3) undergoing a background
investigation and an oral interview, St. 14-15. Mayor
Cavanaugh's Task Force on Police Recruiting and Hiring found
60
in 1968 that substantial numbers of blacks were being eliminated
at each of these stages, and that this was the primary cause of
the inordinately low success rate for black applicants. At the
preliminary application stage, "black applicants were largely
rejected for traffic records and 'miscellaneous' reasons"; at
the investigation and interview stage, they were rejected on
the basis of "subjective opinions",St. 16 . This disproportionate
exclusion of black applicants on grounds bearing no demonstrable
relationship to job performance violated both the Michigan Fair
Employment Practices Act, supra n .90, and 42 U.S.C. § 1981, see
Davis v. County of Los Angeles, supra, 566 F.2d at 1340-42;
Johnson v, Ryder Truck Lines, Inc., supra, 575 F.2d at 474;
Dozier v. Chupka, 395 F. Supp. 836, 350-52 (S.D. Ohio 1975).
Similarly, the written examination, which took three hours or
longer to administer and which was "primarily intelligence
quotient orientated,"op. 26, had a severe disparate impact on
black applicants and was not related to job performance, St. 16*
As Deputy Director Caretti testified, the pre-1968 testing system
was "very bias[ed] . . . in terms of cultural biases, and in
terms of the fact that we used nothing but I.Q. tests," and
those tests were not validated: "No one has been able to
establish . . . a validated relationship between I.Q. and [police]
performance", id. Thus, the use of the written examination also
violated Michigan law, supra n. 90. and § 1981, Davis v. County
of Los Angeles, supra.
Moreover, the use of these non-job related, racially
exclusionary barriers to employment supplies further evidence
of intentional discrimination. It has long been widely recog-
61
nized that black and other minority persons typically perform below
the norm for whites on paper-and-pencil tests of generalized in
telligence or aptitude. Boston Chapter. NAACP, Inc, v. Beecher. 504
F.2d 1017, 1021 (1st Cir. 1974), cert, denied, 421 U.S. 910 (1975);
Bridgeport Guardians, Inc, v. Members of Bridgeport Civil Service
Commission, 482 F.2d 1333, 1340 (2d Cir. 1973); League of Unitefl Latin
American Citizensv,City of Santa Ana, 410 f . Supp. 873, 902 (C.D. Cal.
1976). See Cooper & Sobol, Seniority and Testing Under Fair Employ
ment Laws: A General Approach to Objective Criteria of Hiring and
Promotion, 82 Harv. L. Rev. 1598, 1640 (1969). The continued use of
these tests and of other exclusionary practices unrelated to job
performance, in the face of the fact which was obvious to all "that
just unbelievably small numbers of minorities . . . were being
hired every year, year after year after year for decades", St. 13
(Tannian), is a clear instance of "official action or inaction
which has the natural, probable and foreseeable result of increasing
or perpetuating" discrimination in hiring. NAACP v. Lansing Board
of Education, supra, 556 F.2d at 1047-48. As other courts have held,
the use of such selection procedures, with reason to know of their
disproportionate racial effect, constitutes evidence of purposeful
discrimination. Baker v. Columbus Municipal School District, supra,
462 F .2d at 1114; Shield Club v. City of Cleveland, supra, 13 F.E.P.
Cases at 1399.
The inference of intentional discrimination created by
the statistical showing is further strengthened by evidence of the
rejection of black applicants for traffic records and "miscellaneous"
reasons at the initial stage of the process, and on the basis of
subjective opinions at the background investigation and oral inter-
62
view stage, St. 16. As the Supreme Court has held in the context
of jury selection, "a selection procedure that is susceptible of
abuse or is not racially neutral supports the presumption of
[intentional] discrimination raised by the statistical showing
Washington v. Davis. 426 U.S., at 241 . . . Castaneda v.
Partida, 430 U.S. 482, 494 (1977). The same principle has been
applied in employment discrimination cases. See, e.g., Stewart
v. General Motors Corp.. 542 F.2d 445, 450 (7th Cir. 1976), cert.
denied, 433 U.S. 919 (1977); Rowe v. General Motors. 457 F.2d 348,
358-59 (5th Cir. 1972).
Here the use of generalized intelligence tests and sub
jective screening mechanisms at the entry level, when considered
with the evidence of gross statistical disparities, fully supports
the conclusion that racial discrimination against blacks existed
in the City's pre-July 1967 hiring practices, Afro American
Patrolmens League v. Duck. 503 F.2d 294, 300 (6th Cir. 1974).
The "totality of the relevant facts," Washingon v. Davis, supra,
426 U.S. at 241, also shows that throughout this period the City
engaged in intentional discrimination in its promotional practices.
In 1940, there was not a single black supervisor in the
Detroit Police Department, St. 7. In 1953, blacks accounted for
only 3 of 347 sergeants and only 1 of 168 lieutenants, and all
42 captains were white, St. 10. By 1962, the pattern had remained
essentially the same; 5 of the 345 sergeants, 1 of the 153
lieutenants, and none of the 56 captains were black, id. The
exclusion of blacks from the Department's supervisory ranks was
in part a direct result of its discriminatory hiring practices:
63
Because only a small number of black officers had ever been
hired, there was only a correspondingly small number of black
officers available to be promoted.
Moreover, the blacks who had been hired were not
promoted in the pattern which would ordinarily be expected
to result from nondiscriminatory promotional practices — i.e.,
they were not promoted in numbers commensurate even with their
limited representation in the pool of available candidates.
See Teamsters, supra, 431 U.S. at 340 n.20; Hazelwood, supra,
433 U.S. at 307-308. For example, in 1962, when 3.9% (148 of
3,788) of the police officers were black, only 1.4% (5 of 345)
of the sergeants were black, St. 10-11. In 1967, when 5.2%
(227 of 4,326) of all sworn personnel were nonwhite, only 2.6%
(9 of 348) of the sergeants were nonwhite, id.
The inference of intentional discrimination created
by these statistical disparities is strengthened by evidence
of specific discriminatory promotional practices. A two-stage
promotional model was in effect until well after the 1967 riots.
In the first stage, an officer who sought promotion to sergeant
was required to have served a certain number of years on the
force (ranging from 7^ years in 1961 to 3 years or less in 1970)
in order to be eligible to take the promotional examination,
St. 17. This requirement, building upon and perpetuating the
effects of past discrimination in hiring, excluded the more
recently hired black officers from promotional opportunities.
This exclusionary effect was well known in the department; the
length-of-service requirement was reduced in 1970 "because the
entry of numbers of minorities into the department didn't really
64
commence until about 1968 or latter '67", St. 17 (testimony
of Caretti). As this Court held in Afro American Patrolmens
League v. Duck, supra, even a promotional system which includes
a racially neutral and job-related written test is unlawful if
it imposes an excessive length-of-service requirement and
grants bonus points for seniority where,
as here, there is an imbalance in favor of white police officers
because of past discrimination in hiring. 503 F.2d at 301.
The second stage of the promotional model consisted
of a written examination followed by ranking on the basis of
written examination score (weighted 50%) , service rating
(weighted 35%), seniority (weighted 15%), and a veteran's
preference (weighted 2%), St. 17-18. As the district court
found, "intelligence quotient was accorded heavy emphasis in
the written promotional examination" which was given during
this period, Op. 9. There was no evidence of any relationship
between performance on the I.Q. test and performance as a super
visor on the job, St. 18 . The natural, probable, and foresee
able result of using this non-job related written examination
was the disproportionate exclusion of blacks from supervisory
positions, supra 62.Similarly, seniority was accorded substantial
weight which was not justified by any job-related requirements,
Op. 15, and the inevitable consequence was a severe restric
tion of the promotional opportunities available to minority
II
officers, because the entry of numbers of minorities into the
department didn't really commence until about 1968 or latter '67",
(testimony of Caretti, St. 17). See Afro American Patrolmens
League v. Duck, supra, 503 F.2d at 301.
65
Furthermore, unfair and subjective service ratings
were given heavy weight in the promotional process. These
ratings had "a kind of built in discrimination" (testimony
of former Commissioner Spreen, St. 19-20): officers in the
specialized units, from which blacks were largely excluded,
were unfairly given higher ratings than officers assigned to
the precincts, St. 12. Commissioner Nichols found that "drastic
changes" were necessary in the service rating system in 1972
because it previously had been improperly administered, St. 20.
Moreover, after establishing a ranked promotional eligibility
list based on percentage weights assigned to specific numerical
values (for the written test scores, service ratings, seniority,
and veteran's preference), the commissioner was free to — and
did — completely disregard the resulting rank order and "dip"
into the list to promote lower-ranking officers ahead of those
who were higher on the list, St. 20. The use of these "highly
subjective method[s] of selection" which were "susceptible of
abuse" goes a long way toward explaining the exclusion of black
officers from supervisory positions, and it further supports
the inference of discrimination created by the statistical
evidence of that exclusion, Castaneda v. Partida, supra, 430
U.S. at 495 and n.14; see also, Stewart v. General Motors Corp.,
supra, 542 F.2d at 450; Rowe v. General Motors, supra, 457 F.2d
at 358-59.
The intentionally discriminatory nature of these pre-
July 1967 hiring and promotional practices is brought into sharp
focus by the overt policies of racial segregation and discrimina
tion which prevailed within the Department throughout this period.
66
Until the 1960s, there was a general practice of segregated
job assignments: black officers were assigned only to certain
patrol beats within precincts; patrol cars were assigned on a
segregated basis; black officers were not placed in positions
in which they would regularly control white prisoners; blacks
were not assigned to positions in which they would ‘supervise
whites; blacks were virtually excluded from specialized sec
tions and units, St. 11-12. This internal segregation directly
limited the training,experience, and promotional opportunities
available to black officers: they had to wait years longer
than white officers to be assigned to patrol cars; they generally
were limited to promotional positions in "invisible" operations
which did not involve dealing with the public or supervising
white officers; their exclusion from specialized units prevented
them from obtaining the higher service ratings and correspond
ing promotional advantages which were accorded to members of
those units, St. 11-12, 19-20. These practices were based on
the racial hostility of whites in the department toward black
officers, St. 12-13, and they violated the Fourteenth Amendment
under "the cardinal principle that racial classifications that
stigmatize — because they are drawn on the presumption that
one race is inferior to another or because they put the weight
of government behind racial hatred and separatism — are invalid
without more," Regents of the University of California v. Bakke,
46 U.S.L.W. 4896, 4920 (June 28, 1978) (opinion of Brennan,
White, Marshall, and Blackmun, JJ.). See United Jewish Organiza
tions of Williamsburgh, Inc, v, Carey, 430 U.S. 144, 165 (1977)
(opinion of White, Rehnquist, and Stevens, JJ.); Reitman v.
67
Mulkey, 387 U.S. 369, 375-76 (1967); McLaughlin v. Florida,
379 U.S. 184, 191-92 (1964); Brown v. Board of Education, 347
U.S. 483, 494-95 (1954); Yick Wo v, Hopkins, 118 U.S. 356, 374
(1886); Strauder v. West Virginia, 100 U.S. 303, 308 (1879).
This pattern of racial stigmatization provides strong additional
evidence of intentional discrimination against blacks in hiring
and promotion, "particularly [since] it reveals a series of
official actions taken for invidious purposes," Arlington
Heights, supra, 429 U.S. at 267; see also, Harkless v. Sweeny
Independent School District, supra, 554 F.2d at 1357. Thus,
prior to the 1967 riots, "racial discrimination was the
[Department's] standard operating procedure — the regular
rather than the unusual practice," Teamsters, supra, 431 U.S.
at 336, in violation of the Fourteenth Amendment, §§ 1981 and
1983, and Michigan law.
3. 1968-1973 Employment Practices
After the devastating riots of 1967, it finally
"became obvious" to city officials that the small proportion
of black police officers in the Department was "clearly unac
ceptable", St. 21 (remarks of Mayor Cavanaugh). In 1968,
blacks constituted approximately 40% of the population of
the City of Detroit but only 6% of its police officers,
exhibits 208, 241. By 1970, the population of Detroit was
43.7% black, App. B, but as late as June 1974 only 17.3% of
the Department's sworn personnel were black, St. 30-31. These
disparities are more than sufficient to support the inference
that discrimination against blacks in hiring continued long
after the 1967 riots. See Teamsters, supra, 431 U.S. at 339-40;
68
Afro American Patrolmens League v. Duck, supra, 503 F.2d at 299?
League of United Latin American Citizens v. City of Santa Ana,
supra, 410 F. Supp. at 896-98, and cases cited therein.
This inference also is supported by evidence of signi
ficant disparities between the racial composition of the Depart
ment and the racial composition of the relevant labor market.
The Court below stated that 11 [t]he experts have testified, and
this Court accepts such testimony as fact, that the proper labor
market for comparison in this case is the tri-county area,
commonly known as the 1970 Standard Metropolitan Statistical Area
(SMSA) " Op. 20-2lT^^h -̂s conclusion is erroneous as a matter
of both fact and law.
The only witnesses whose testimony might support the
Court's finding were Marc Rosenblum and Charles Guenther.
Dr. Rosenblum, an economist, testified in this case that he con
sidered the Detroit SMSA to be the appropriate labor market
"largely on the basis, the consensus of scholars and analysts in
this field and the most recent holdings of the U.S. Supreme Court,"
Dec. 7 at 10 (dep.). There is no decision of the Supreme Court,
recent or otherwise, which establishes the SMSA as the proper area *
9 9 /
99/ This court in Duck affirmed a finding of discrimination in
police hiring practices based in part on evidence that the minori
ty population of Toledo was 16% but the minority representation in
the Toledo Police Department was only half that figure, 8.2%. 503
F.2d at 299. The disparity in Detroit in June 1974 was substan
tially greater (see text above).
100/ The district court adopted the conclusions of plaintiffs'
expert witness, Dr. Marc Rosenblum, that the 1970 Detroit SMSA was
the appropriate geographical area and that the relevant civilian
labor force within that area (persons between the ages of 18 and
34 who had completed high school), adjusted for under-numeration
in the census, was 18.6% black, Op. 21 and n. 42? Dec. 7 at 9-12
(deposition of Rosenblum).
69
for comparison. On the contrary, the Court recently held that
comparisons between the percentage of minorities on the em
ployer's work force and the percentages of minorities in the
population of both the metropolitan area and the city proper
were highly probative, Teamsters, supra, 431 U.S. at 337 and n. 17;
and the Court recently discussed but did not resolve an issue as
to whether the proper area for comparison was St. Louis County
inclusive or exclusive of the City of St. Louis, without even
suggesting that the St. Louis SMSA might be appropriate, Hazelwood,
supra, 433 U.S. at 310-12. Moreover, Dr. Rosenblum has indicated
elsewhere that there is no "consensus of scholars and analysts in
this field ":
Of course, specific labor markets may
differ in geographic scope and number of
workers. For example, the market for
college presidents or research scientists
is national in scope. In contrast, the
labor market for secretaries or dishwashers
may be Standard Metropolitan Statistical Area
(S.M.S.A.), a local city, a community, or
even a neighborhood. M. Rosenblum, The Use
of Labor Statistics and Analysis in Title VII
Cases: Rios, Chicago and Beyond, 1 Indus.
Reis. L. J. 685, 694 (1977).
Dr. Rosenblum also has noted that "[t]he problem of
defining the geographic element of a given market has been
approached in various ways," id. at 696; and he has cited as
examples two decisions, including one of this court involving
101/
the city of Detroit, which reject broader geographic areas in
10V Stamps v. Detroit Edison Co., 365 F. Supp. 87, 111 (E.D.
Mich. 1973), aff'd in part and rev'd on other grounds sub nom.
EEOC v. Detroit Edison Co~ 515 F.2d 30l (6th Cir. 1975) .
70
favor of city boundaries as the relevant comparison area, id.
He has suggested still another acceptable approach by refer
ring to an article by a statistician and another economist
whose procedure is not to define any specific geographic area
as the labor market but to weight areas according to their
proximity to the place of employment, id. at 696 n.52. See
J. L. Gastwirth and S. E. Haber, Defining the Labor Market
for Equal Employment Standards, 99 Monthly Labor Review 32
(March 1976). Thus, there clearly is no "consensus" among
the courts, the scholars, or the analysts that the SMSA is
the proper area for comparison.
Plaintiffs' other expert witness with respect to
this question, Charles Guenther, further undercut Dr. Rosenblum's
opinion by testifying that, in determining the relevant labor
market, there is no real alternative to an examination of the
location of the residences of the actual applicants for the job,
Sept. 27 at 28. The data necessary for this examination were
made available to plaintiffs, but they never performed the re
quired analysis, id. at 31-34, 49-81. In the absence of such
a study, Guenther was unable to say with confidence that the
SMSA was the geographic area of the relevant labor market, id.
at 29-30, 55-56.
Contrary to the testimony of Dr. Rosenblum on which
the district court relied, "the courts, albeit without much
discussion, have consistently looked to the city, i.e., the
geographic area served by police and fire departments, in 1
1 Qy continued
vacated anĉ remanded on other grounds, 431 U.S. 951 (1977);
Crockett v. Green, 534 F.2d 715, 718 (7th Cir. 1976).
71
considering the existence of a prima facie case,11 League
of United Latin American Citizens v. City of Santa Ana. 410
F. Supp. 873, 896 (C.D. Cal. 1976), and cases cited therein.
See also, Davis v. County of Los Angeles, supra, 566 F.2d at
1337; Crockett v. Green, 388 F. Supp. 912, 917-18 (E.D. Wis.
1975), aff1d 534 F.2d 715 (7th Cir. 1976) (municipal skilled
craft employees); Pennsylvania v. Flaherty, 404 F. Supp. 1022
(W.D. Pa. 1975); Officers for Justice v. Civil Service Com
mission, 371 F. Supp. 1328, 1330-31 (N.D. Cal. 1973). This
Court has expressly approved the use of the city served by the
police department as the appropriate geographic area for com
parison in such cases. Afro American Patrolmens League v. Duck,
supra, 503 F.2d at 299.
There are substantial grounds independent of stare
decisis for holding, in the absence of credible countervailing
evidence, that the relevant labor market for a city's entry-
level police jobs ordinarily is found within the city's own
boundaries. A city generally would be expected to look to its
own population as theprincipal source of its employees in order
to reduce unemployment among its residents, to improve relations
between minority residents and city employees, to improve em
ployee performance by obtaining employees with personal know
ledge of the city's conditions and with a personal stake in
the city's progress, to reduce the problems of tardiness and
102/ Dr. Rosenblum was aware of these decisions when he testi
fied that the "consensus" was the opposite. See M. Rosenblum,
supra, 1 Indus. Reis. L. J. at 701 and n. 88.
102/
72
absenteeism associated with long-distance commuting, to insure the
ready availability of trained personnel in emergency situations,
and to enjoy the general economic benefits flowing from local ex
penditure of employees' salaries, League of United Latin American
Citizens, supra, 410 F. Supp. at 896? see Section IV, infra.
These reasons are particularly compelling where the city which is
hiring police officers has experienced two disastrous race riots
in the space of twenty-five years, see Section IV, infra.
After the riots of 1967, the City of Detroit was well
aware of the benefits to be gained by hiring its own residents,
and the evidence indicates that applicants came primarily from
within city boundaries. In 1970, for example, the proportion of
black applicants for police jobs (44%, St. 32) was virtually
identical to the proportion of black residents in the city popu
lation (43.7% App. B), and it was more than twice the proportion103/of black residents in the SMSA (18.0%). Indeed, from 1967 through
1973, the proportion of black applicants for police jobs consistent
ly matched or exceeded the proportion of blacks in the city popula
tion, and it consistently bore no resemblance to the racial compo
sition of the SMSA, St. 32. The reasonable inference is that the
actual applicants for jobs in the police department throughout this
period came largely from within the city limits. The contrary assum
ption— that large numbers of applicants might have come from parts of
the SMSA outside the city limits— is patently unreasonable. As
the Supreme Court described the three-county Detroit SMSA in re
jecting an inter-district school desegregation order which
extended beyond the city limits, "[t]hese counties cover
103/ U.S. Bureau of the Census, Census of Population: 1970, Vol. 1,
Characteristics of the Population. Part 1, United States Summarv-
Section 1, Table 67 at 1-324 (1973).
73
and the area is approximately the1,952 square miles . .
size of the State of Delaware (2,057 square miles), more
than half again the size of the State of Rhode Island (1,214
square miles) and almost 30 times the size of the District of
Columbia (67 square miles)," Milliken v. Bradley, 418 U.S.
717, 729 n.10 (1974). Thus, the available evidence in this
case and the prior decisions of this and other courts demon
strate that the relevant labor market for employment as a
Detroit police officer is defined by the geographic boundaries
of the City of Detroit.
There is a substantial disparity between the number
of black officers hired from 1968 through 1973 and the number
which one would expect to have been hired from the relevant
labor market. During this period, blacks accounted for 912
of the 3,165 appointments made to the police department, Ex.
208. According to figures compiled by the plaintiffs' expert,
Charles Guenther, one would expect 153 more blacks, or a total
of 1,065 blacks, to have been appointed during this period from
a labor market consisting of residents of the city of Detroit
who were over 25 years of age and who had completed high school,
Ex. 242, Table la. Under the analysis
set forth in Castaneda v. Partida, supra, 430 U.S. at 496-97
n.17, there is a difference of 5.76 standard deviations between
the actual and the expected members of blacks hired as police
104/
officers during this period. Because "a fluctuation of more
104/ The standard deviation is the square root of the product
of the total number in the sample (3165) times the probability
of selecting a black (1065 divided by 3165 = .3365) times the
probability of selecting a white (2100 divided by 3165 = .6635)#
74
than two or three standard deviations would undercut the
hypothesis that decisions were being made randomly with
respect to race,” Hazelwood, supra, 433 U.S. at 311 n.17,
this statistical comparison indicates that intentional dis
crimination against blacks in hiring continued during the
1968-1973 period, id. at 308-309 and n.14.
The inference of continuing racial discrimination
in hiring is also supported by applicant flow data, id. at
308 n.13. For example, in 1970 44% of the 5,725 applicants
were black, but only 20% of the 494 police officers hired
were black, St. 31-32. Thus, 12.1% of the white applicants
but only 4% of the black applicants were hired. This was a
huge departure from the hiring pattern which one would expect
if nondiscriminatory selection practices had been applied to
this pool of applicants, cf. Teamsters, supra, 431 U.S. at
340 n.20. Similar racial disparities in hiring rates existed
throughout this period, St. 31-32.
The statistical disparities in hiring during the
1968-1973 period were somewhat less extreme than those of
earlier years, but they still were substantial and they still
were attributable in large part to the intentional use of
!■£&/ continued
Thus, the standard deviation is 26.58. There is a difference
of 5.76 standard deviations between the expected and observed
numbers of blacks hired during this period ([1065-912] divided
by 26.58 = 5.76). 430 U.S. at 496-97 n.17.
105/ The disparity here is approximately the same as the dif
ference of five to six standard deviations which the Court in
Hazelwood found indicative of intentional discrimination in
hiring, id.
75
discriminatory tests and other discriminatory selection pro
cedures. The Vickery Committee, appointed by New Detroit,
Inc., in the wake of the 1967 riots, had evaluated the exist
ing testing system and had found it to be "very bias[ed]" and
in need of "dramatic changes", St.23 Following recommenda
tions of the committee/in 1968 the Department abandoned its
three-hour intelligence test and substituted a twelve-minute
intelligence test, the Wonderlic examination, id « Deputy
106/
Director of Personnel Caretti and the committee knew that
the Wonderlic was "not a valid test . . ., not a valid pre
diction of successful performance," St. 25. They also knew
m /
that the "race-oriented Wonderlic Test" would have an adverse
impact on blacks, Aug. 24 at 25-28. Although they hoped that
the impact might now be less severe, their adoption of the
Wonderlic test was intentionally discriminatory because the
natural, probable, and foreseeable result was to continue the
30f/
department's discriminatory testing practices, NAACP v. Lansing
Board of Education, supra, 559 F.2d at 1047-48.
106/ Caretti was transferred into the Personnel Department in
1968 and worked with the Vickery Committee in recommending and
implementing changes in the selection process, St. 27-28.
107/ Franks v. Bowman Transportation Co., 495 F.2d 385, 412 (5th
Cir. 1914), rev'd on other grounds, 424 U.S. 747 (1976); The
authors of the Wonderlic test published a survey in 1970 which
revealed that blacks scored substantially lower than whites on
the test. E. F. Wonderlic & Assoc., Inc., Negro Norms, A Study
of 38,452 Job Applicants for Affirmative Action' Programs (1970),
cited in Moody v. Albemarle Paper Company" 474 F.2d 134, 138 n.l
(4th Cir. 1973), a f f d in pertinent part, 422 U.S. 405 (1975).
•^V The Vickery Committee "did not want to come in and move with
a hatchet, so to speak, to try and correct and change the system.
They were cautious. * * * [T]here was no opinion in the Vickery
Committee that would support Wunderlich [sic]. ItMwas strictly
an interim measure to try and improve the process, Aug. 24 at
25-28 (testimony of Caretti).
76
As expected, the Wonderlic test had a serious adverse
impact on minorities, St. 25; Op. 26. In 1971, the Dapartment
began using a combination of the Wonderlic and Otis exams oc
casionally augmented with the SRA Pictorial Test, St. 24;
Op. 26. These also "were basically i.Q. exams," Op. 26.
"[T]he failure here of the defendants to recognize the increas
ing evidence that tests of this type have an innate cultural
bias cannot be overlooked." Bridgeport Guardians, supra, 482
F.2d at 1340. See p. 62,supra. These written examina
tions in fact continued to fail black applicants at two to three
times the rate of white applicants, St. 24-25. The district
court found that these exams were used until 1973 and "were
heavily weighted on I.Q. type questions, were not job related
and tended to fail large numbers of blacks vis a vis whites,"
Op. 28. This is a classic statement of a violation of both
Title VII, see Albemarle Paper Co. v. Moody, supra, 422 U.S.
at 425, and § 1981, see Davis v. County of Los Angeles, supra,
566 F.2d at 1338-40. The continuing use of these tests violated
Title VI and the Michigan Fair Employment Practices Act as well,
supra 54-55 . It was not until late 1973 that the Department
finally began using a written entrance examination which did
not have a substantial adverse impact on black applicants,
St. 24.
The written tests were not the only discriminatory
selection procedures used during the 1968-1973 period. The
background investigation and medical procedures also screened
out blacks at higher rates than whites, St. 25-26; Aug. 24 at
35-38, 42-43 (Caretti); Oct. 31 at 26-29, 68 (Broadnax). When
77
Commander Ferrebee became Director of Recruiting in 1971, all
of the supervisors and thirteen of the nineteen investigators
in the recruiting department were white; the investigators
could choose whom they wanted to investigate, and the sergeants
could reject applicants on the recommendations of investigators
even before investigations were completed; investigationscf
black applicants took substantially longer than investigations
of white applicants; and the files of some applicants, all of
whom were black, were found locked in the desk drawers of va
cationing investigators, St.26-27n .55; Oct. 31 at 35 (Broadnax).
At the medical examination stage, the blood pressure standards
had a severe impact on blacks, and 80 percent of the applicants
rejected on psychiatric grounds were black but the psychiatrist
refused to give reasons for or document the rejections, St. 25-
26; Oct. 26 at 28-30 (Ferrebee). Between 1971 and 1973, these
practices were gradually modified: reforms were instituted in
the background investigation process; the blood pressure stand
ards were altered; anew psychiatrist was appointed who documented
all rejections, St. 26; Oct. 31 at 35, 54 (Broadnax); Oct. 26
at 33, 41-42, 45-46 (Ferrebee). Some black applicants who had
been rejected for medical or psychiatric reasons were subse
quently reevaluated and accepted, and the racial disparities
in the rejection rates of the background investigation and
the psychiatric examination were substantially reduced, St. 26.
While these practices were allowed to continue, however, they
had a disparate impact on blacks and were unrelated to job
performance, thus violating Titles VI and VII, § 1981, and the
Michigan Fair Employment Practices Act, supra 53-56. See, Unit eel
78
States v ■- City of Chi nagn - supra. 549 F. 2d 415, 432 (7th Cir.
1977),. cert, denied. 434 U.S. 875 (1977'). Davis
v. County of Los Angeles, supra, 566 F.2d at 1338-40. The
background investigation and psychiatric examinaticnprocedures
were highly subjective and especially susceptible to abuse,
and their use to reject disproportionate numbers of blacks
therefore adds further support to the evidence that intentional
discrimination in hiring continued during this period in viola
tion of the Fourteenth Amendment and § 1983 in addition to the
statutes cited above, Castaneda v. Partida, supra, 430 U.S.
at 494.
Although the department between 1968 and 1973 con
tinued to engage in some forms of intentional discrimination
in hiring and continued to use some tests and other selection
procedures which had a disparate impact on blacks and were
unrelated to job performance, blacks nonetheless were hired
in larger numbers than in previous years. By June 1974, 17.3%
of the department's sworn personnel were nonwhite, St. 30-31.
But this improvement did not carry into the supervisory ranks.
Indeed, between 1967 and 1974, the pattern of promotional dis
crimination against blacks actually became more pronounced.
In 1967, 2.6% (9 of 348) of the sergeants were nonwhite; this
was half the number of nonwhite sergeants (18) one would
expect as a result of nondiscriminatory promotion from the
pool of all sworn personnel, which was 5.2% nonwhite (227 of
4,326), St. 11. By 1974, 5.15% (61 of 1,185) of the sergeants
were nonwhite, but the nonwhite proportion of the pool of sworn
personnel had increased to 17.3% (956 of 5,512), St. 30. Thus,
in 1974 the proportion of nonwhite sergeants had fallen to a
79
third of the number one would expect to find (205) if the
promotional system had been nondiscriminatory. These dis
parities indicate the continuation of the intentional dis-
109/
crimination in promotion which existed in previous years,
supra. See Teamsters, supra, 431 U.S. at 340 n.20. Hazelwood,
supra, 433 U.S. at 307-308.
This inference is buttressed by evidence of the con
tinuing use of discriminatory promotional practices throughout
this period. The discriminatory time-in-grade requirement,
seniority credit, and service rating system which had been
in effect prior to the 1967 riots, supra, 64-66, were not changed
at all until 1970, St. 27. The changes which occurred at
that time reduced somewhat but did not eliminate the dis
crimination against black officers which was inherent in
these parts of the promotional model, id. Prior to 1969,
"intelligence quotient was accorded heavy emphasis in the
written promotional examination," Op. 9. In that year, one
part of the written sergeant test was modified, but the
examination retained its "heavy emphasis" on the intelligence
quotient, including " a very complex vocabulary test," St. 27-28
(Caretti). The Department recognized that these I.Q.-oriented
tests did not bear any valid relationship to performance as a
sergeant and that they were "culturally bias[ed]" and formed
ipg/ There is a difference of 11.06 standard deviations be
tween the expected and the observed numbers of black sergeants
in 1974, Castaneda v. Partida, supra, 430 U.S. at 496-97 n.17.
See nn. 96-97, supra.
80
a barrier to promotional opportunities for minorities, id.
Nevertheless, in 1970 the weight assigned to the written test
score in the promotional process was increased from 50% to
60%, St. 27. The promotional model was not changed again
until the announcement for the 1974 examinations,St. 43.The
retention of the discriminatory elements of the pre-1967 pro
motional model, and the increase in the weight assigned to
the written test, were intentionally discriminatory; they
had the natural, probable, and foreseeable consequence of
continuing to deny equal promotional opportunities to black
officers, NAACP v. Lansing Board of Education, supra, 559
F.2d at 1047-48.
There were other indications of continuing inten
tional discrimination against blacks in the promotion process.
Until late 1972, for example, there were substantial abuses
in the service rating system used for the evaluation of pro
motional candidates, supra 66 . There were also abuses in
written testing. In 1970, a written examination was adminis
tered for promotion from the rank of detective to sergeant.
But it had been decided through collective bargaining that
all detectives would be promoted to sergeant. Accordingly,
all 158 detectives who took the test were automatically
promoted regardless of their performance on the test, includ
ing those who "simply went through . . . the motions" and "did
not make an effort to prepare for the examination," St. 29 (Caretti)
By contrast, only 23 of the 377 police officers who passed
the regular test were promoted to sergeant at that time, id.
The large majority of the beneficiaries of this "special"
testing procedure were white BV t îe
81
time John Nichols became Commissioner in 1970, he found that
"a great many people felt that the entire examination process had
contaminated and . . . I wanted an examination put together
so nobody could say the fix was on, that they were discriminated
against * * * What we tried to do was to reestablish the in
tegrity of the system itself . . Aug. 10 at 80-81._These abuses
of the testing process provide further evidence of intentional
discrimination in promotions, Castaneda v. Partida, supra, 430
U.S. at 494.
B. The Department Had a Duty To Take Race-
Conscious Affirmative Action To Correct
The Effects of Its Past Discrimination
If the Department's longstanding pattern of discrimina-
P
tion against blacks had been challenged in a suit brought prior
to the adoption of the affirmative action plan, the court would
have "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,"
Louisiana v. United States, 380 U.S. 145, 154 (1965); Albemarle
Paper Co. v. Moody, 422 U.S. 405, 418 (1975). Many courts have
held that numerical race-conscious remedies may, and in some
instances must, be imposed under Title VII, § 1981, and § 1983
and the Fourteenth Amendment to eradicate the effects of dis
criminatory police and fire department testing practices and
other unlawful employment practices like those used by the
Detroit Police Department prior to 1974. See Davis v. County
of Los Angeles, supra, 566 F.2d at 1342-43 (§ 1981); United
82
States v. City of Chicago, supra, 549 F.2d at 436-37 (Title
VII); Boston Chapter, NAACP, Inc, v. Beecher, 504 F.2d 1017,
1026-28 (1st Cir. 1974), cert, denied, 421 U.S. 910 (1975)
(Title VII § 1981, § 1983, Fourteenth Amendment); NAACP v.
Allen, 493 F .2d 614, 617-21 (5th Cir. 1974) (Fourteenth Amend
ment); Erie Human Relations Commission v. Tullio, 493 F.2d 371,
373-75 (3rd Cir. 1974) (§ 1981, § 1983, Fourteenth Amendment);
Bridgeport Guardians, Inc, v. Members of Bridgeport Civil
Service Commission,supra, 482 F.2d at 1340-41
(§ 1981, § 1983, Fourteenth Amendment); Carter v. Gallagher,
452 F.2d 315, 328-31 (8th Cir.) (en banc), cert, denied, 406
U.S. 950 (1972)(§ 1981, Fourteenth Amendment). This court
has repeatedly upheld the authority of the district courts to
order such numerical relief. See EEOC v. Detroit Edison Pri si
F.2d 301, 317 (1975), vac, and rem. on other grounds, 431 U.S.
951 (1977); United States v. Masonry Contractors Association,
497 F.2d 871, 877 (1974); United States v. Local 212, IBEW,
472 F .2d 634, 636 (1973); Sims v. Local 65, Sheet Metal Workers,
489 F .2d 1023, 1027 (1973); United States v. Local 38, IBEW,
428 F .2d 144, 149, cert, denied, 400 U.S. 943 (1970). The
110/
courts of appeals of eight other circuits are in accord. * 361
Ufl/ See, e.g. Boston Chapter, NAACP, Inc, v. Beecher, 504
F .2d 1017 (1st C i r . 1974), cert, denied, 421 U.S. 910 (1975);
Associated General Contractors of Mass., Inc. v. Altshuler,
361 F. Supp. 1293 (D. Mass.), aff'd, 490 F.2d 9 (1st Cir.
1973) , cert... denied,. 416 U.S. 957 (1974); Rios v. Enterprise
Association Steamfitters Local. 638, 501. F.2d .6.22 (2d Cir.
1974) ; Bridgeport Guardians, Inc, v. Members of Bridgeport.
Civil Service. Commission, 482 F,.2d 1333 (2d Cir. 1973); United
States v. Wood Lathers Local 46, 471 F.2d 408 (2d Cir.), cert,
denied, 412 U.S. 939 (1973); Erie Human Relations Commission,
v. Tullio, 493 F.2d 371 (3rd Cir. 1974); Contractors Association
83
In spite of the vast amount of authority supporting
such relief, the court.below held that its use by the Depart-
111/
ment violated Titles VI and VII, § 1981, § 1983, the Fourteenth
Amendment, and Michigan law. The district court was clearly
wrong. These provisions do not forbid but on the contrary they
require affirmative action like that taken by the Department
to eliminate the effects of its past discrimination.
110/ continued
v. Secretary of Labor, 442 F.2d 159 (3rd Cir.), cert, denied, 443
404 U.S. 854 (1971); Sherrill v. J.P. Stevens & Co., 551 F.2d
308,13 E.P.D. 5 11,422 (4th Cir. 1977); NAACP v. Allen, 493
F.2d 614 (5th Cir. 1974); Morrow v. Crisler, 491 F.2d 1053
(5th Cir. 1974) (en banc), cert, denied, 419 U.S. 895 (1974);
Local 53, Asbestos Workers v. Vogler, 407 F.2d 1047 (5th Cir,
1969); United States v. City of Chicago, 549 F.2d 415 (7th
Cir. 1977), cert, denied, 434 U.S.875 (1978); Crockett v.
Green, 534 F.2d 715 (7th Cir. 1976); Southern Illinois Builders
Association v. Ogilvie, 471 F.2d 680 (7th Cir. 1972); United
States v. N. L. Industries, Inc., 479 F.2d 354 (8th Cir. 1973);
Carter v. Gallagher, 452 F.2d 315, 327 (8th Cir.) (en banc),
cert, denied, 406 U.S. 950 (1972); Davis v. County of Los Angeles,
566 F .2d 1334 (9th Cir. 1977), cert, granted, 46 U.S.L.W. 3780
(U.S., June 19, 1978); United States v. Ironworkers Local 86,
443 F.2d 544 (9th Cir.)7~cert. denied, 404 U.S. 984 (1971).
111/ Even if the department's affirmative action plan could
otherwise be held to violate Title VI, neither the district
court's findings nor the record satisfies the provision of
Title VI which limits enforcement actions with respect to em
ployment practices to cases "where a primary objective of the
Federal financial assistance is to provide employment," 42
U.S.C. § 2000d-3. The court found only "that defendants have
received federal financial assistance in connection with their
racial preference plan," Op. 49, and that the department had
received LEAA grants "which were used, in part, to pay salaries
of police officers and sergeants," op. 29 n.61. The record
indicates that "LEAA funds were considered to be specific
project types of grants," Aug. 31 at 25 (Tannian). Although
Chief Hart believed that some grants included funds for officers'
salaries, Nov. 3 at 67-68, the LEAA grants “are used to further
law enforcement, solutions to crime problems, communications
or something of that nature," id_. at 67. Since the provision
of employment was not shown to be a primary objective of the
84
The district court held that the Department's
312/ H3_/
remedial efforts violated §§ 703(a) and 703 (j) of Title VII,
111/ continued
federal funds, there is no basis for an enforcement action
under Title VI.
^ 3/ "It shall be an unlawful employment practice for an
employer -
(1) to fail to refuse to hire or to discharge
any individual, or otherwise to discriminate against
any individual with respect to his compensation,
terms, conditions, or privileges of employment,
because of such individual's race, color, religion,
sex, or national origin;
(2 ) to limit, segregate, or classify his employees
or applicants for employment in any way which would
deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status
as an employee, because of such individual’s race, color,
religion, sex, or national origin." 42 U.S.C. § 2000e-2(a).
113/ "Nothing contained in this title shall be interpreted to
require any employer, employment agency, labor organization,
or joint labor-management committee subject to this title to
grant preferential treatment to any individual or to any group
because of the race, color, religion, sex, or national origin
of such individual or group on account of an imbalance which
may exist with respect to the total number or percentage of
persons of any race, color, religion, sex, or national origin
employed by any employer, referred or classified for employ
ment by any employment agency or labor organization, admitted
to membership or classified by any labor organization, or ad
mitted to, or employed in any apprenticeship or other training
program, in comparison with the total number or percentage of
persons of such race, color, religion, sex, or national origin
in any community, State, section, or other area, or in the
available work force in any community, State, section, or
other area." 42 U.S.C. § 2000e-2(j).
85
42 U.S.C. §§ 2000e-2(a), (j), Op. at 49. This construction
of Title VII has long been rejected as contrary to both the
policy and the legislative history of the Act. This court
held in 1970, in an opinion which has since been followed
uniformly in the other circuits, that § 703 (j)
cannot be construed as a ban on affirmative
relief against continuation of effects of
prior discrimination resulting from present
practices (neutral on their face) which have
the practical effect of continuing past in
justices .
Any other interpretation would allow
complete nullification of the stated purposes
of the Civil Rights Act of 1964. United
States v. Local 38, IBEW, supra, 428 F.2d at
149-50.
Similarly, the Third Circuit in upholding the use
of race-conscious numerical goals under Executive Order No.
11246, 30 Fed. Reg. 12319, as amended, 32 Fed. Reg. 14303,
held that,
114/
To read § 703(a) in the manner suggested
by the plaintiffs we would have to attribute
to Congress the intention to freeze the status
quo to foreclose remedial action under other
authority designed to overcome existing evils.
We discern no such intention either from the
language of the statute or from its legislative
history. Contractors Association v. Secretary
of Labor, supra, 442 F.2d at 173.
114/ The court also stated that the defendants violated §§ 703(e),
703(h), and 706(g) of Title VII, 42 U.S.C. §§ 2000e-2(e), (h),
2000e-5(g), Op. at 49. However, it is not possible to "violate"
§§ 703 (e) and 703 (h) because these sections do not forbid any
conduct but merely set forth certain practices which shall not
be regarded as unlawful. Nor do these sections restrict the
relief which is appropriate to remedy a violation of Title VII,
see Franks v. Bowman Transportation Co., 424 U.S. 747, 758-62
(1976). It is also impossible to "violate" § 706(g), which
does not proscribe any conduct but rather prescribes appropriate
remedies for violations, id.at 762-70.
86
These interpretations of §§ 703(a) and (j) have
been reaffirmed in many cases, see,e.g., Rios v. Enterprise
Association Steamfitters Local 638, supra, 501 F.2d at 629-31,
and cases cited therein. Moreover, "[e]xecutive, judicial,
and congressional action subsequent to the passage of Title
VII conclusively established that the Title did not bar the
remedial use of race," Regents of the University of California
v. Bakke. 46 U.S.L.W. 4896, 4919 n.28 (June 28, 1978) (opinion
of Brennan, White, Marshall, and Blackmun, JJ.). Prior to the
amendment of Title VII by the Equal Employment Opportunity
Act of 1972, Pub. L. No. 92-261, a number of courts had ap
proved race-conscious action to remedy the effects of employ
ment discrimination, id̂ . See pp.82-84, suPra- The 1972 amend
ments extended the coverage of the Act to state and local govern
ments, based on congressional findings that widespread discrimina
tion against minorities existed in the public employment sector.
See H. R. Rep. No. 92-238, 92d Cong., 1st Sess. 17-18 (1971);
115/
S. Rep. No. 92-415, 92d Cong., 1st Sess. 10 (1971). In enacting
H 5 / Both congressional committee reports relied on findings
of the U.S. Commission on Civil Rights in For All The People
. . . By All The People (1969), indicating "that widespread
discrimination against minorities exists in State and local
government employment, and that the existence of this dis
crimination is perpetuated by the presence of both institu
tional and overt discriminatory practices. The report cites
widespread perpetuation of past discriminatory practices
through de facto segregated job ladders, invalid selection
techniques, and stereotyped misconceptions by supervisors
regarding minority group capabilities. The study also in
dicates that employment discrimination in State and local
governments is more pervasive than in the private sector."
H. R. Rep. No. 92-238, at 17. See also, S. Rep. No. 92-415,
at 10.
87
the amendments, Congress was aware that "[b]arriers to equal
employment are greater in police and fire departments than
in any other area of State and local government." 118 Cong.
Rec. 790 (1972), reprinting excerpts from U. S. Commission
on Civil Rights, For All The People . . . By All The People,
116/ ; 1
at 71 (1969). Congress intended to provide effective means
to eliminate these barriers; it "explicitly considered and
rejected proposals to alter Executive Order 11246 and the pre
vailing judicial interpretations of Title VII as permitting,
andin some instances requiring, race conscious action" Bakke,
supra, 46 U.S.L.W. at 4919 n.28. See also, United States v. * 118
115/ continued
The House and Senate reports both quote the Civil Rights
Commission's conclusion that "State and local governments have
failed to fulfill their obligation to assure equal job oppor
tunity . . . . Not only do State and local governments con
sciously and overtly discriminate in hiring and promoting
minority group members, but they do not foster positive pro
grams to deal with discriminatory treatment on the job." H. R.
Rep. No. 92-238, at 18; S. Rep. No. 92-415, at 10.
^£/ Congress was also aware of the Commission's findings
that "Negroes are not employed in significant numbers in police
. . . departments"; that "Negro policemen . . . hold almost
no positions in the officer ranks"; and that police departments
"have discouraged minority persons from joining their ranks by
failure to recruit effectively and bypermitting unequal treat
ment on the job including unequal promotional opportunities,
discriminatory job assignments, and harassment by fellow workers."
118 Cong. Rec. 790 (1972).
Congress subsequently reaffirmed these findings of widespread
discrimination by law enforcement agencies and strengthened the
available remedies by enacting the antidiscrimination provisions
of the Crime Control Act of 1973, Pub. L. No. 93-83, 87 Stat.
197, and the Crime Control Act of 1976, Pub. L. No. 94-503, 90
Stat. 2407. See 119 Cong. Rec. 20070 (1973) (remarks of
Rep. Jordan); 122 Cong. Rec.11908-9 (1976) (remarks of Rep.
McClory). These provisions are codified at 42 U.S.C. § 3766(c).
88
Local 212, IBEW, supra, 472 F.2d at 636; Boston Chapter,
112./NAACP, Inc, v. Beecher, supra, 504 F.2d at 1028 .
The district court also erred in holding that
Title VII does not permit the use of race-conscious numerical
promotion relief, Op. 47-48. The reasoning of the Second Cir
cuit decisions on which the court below relied has been the
118/
subject of considerable debate within that circuit, and it
has not been followed in this and other circuits. Indeed,
this Court has specifically approved a remedial order under
Title VII and § 1981 requiring the promotion of one black em
ployee for each white promoted to a supervisory position,
provided that only qualified persons are promoted and that
there is a time or percentage limit placed on the order, EEOC
v. Detroit Edison Co., supra, 515 F.2d at 317, aff1q Stamps
v. Detroit Edison Co., 365 F. Supp. 87, 122-23 (E.D. Mich.
1973). Similar relief has been upheld in other circuits 420
117/ For a full discussion of the relevant legislative history,
see Comment, The Philadelphia Plan: A Study in the Dynamics of
Executive Power, 39 U. Chi. L. Rev. 732, 747-60 (1972).
118/ The reversal of an order granting promotional relief in
Bridgeport Guardians, supra, is distinguishable because in
that case there was no finding of discrimination in promotions.
482 F.2d at 1341. The decision of the panel in Kirkland v.
New York State Department of Correctional Services, 520 F.2d
420 (2d Cir.), rehearing en banc denied. 531 F.2d 5 (1975),
cert, denied, 429 U.S. 823 (1976), was followed by the author
of the Kirkland opinion and by one other circuit judge in
Chance v. Board of Examiners. 534 F.2d 993 (2d Cir. 1976),
cert, denied, 431 U.S. 965 (1977), but has been rejected by
three circuit judges as inconsistent with other decisions of
the circuit, Kirkland, supra, 531 F.2d at 5-11 (Mansfield,
Kaufman, and Oakes, JJ., dissenting from denial of rehearing
en banc).
89
as well. See EEOC v. A.T. & T. Co., 556 F.2d 167, 177 (3rd
Cir. 1977), cert, denied, 46 U.S.L.W. 3803 (July 3, 1978);
United States v. City of Chicago, supra, 549 F.2d at 436-37;
Crockett v. Green, supra, 534 F.2d at 719; Sherrill v. J.P. Stevens
& Co., supra, 551 F. 2d 308, 13 E.P.D. at 6414; Watkins v. Scott
Paper Co., 530 F.2d 1159, 1194 (5th Cir. 1976); United States
v. N. L. Industries, Inc., supra, 479 F.2d at 377.
The court below further erred in holding that an
employer may not voluntarily adopt a race-conscious remedy
for its past racial discrimination, but rather must wait to
be sued so that the same remedy may be imposed by a court, Op.
'46-47. This construction of Title VII frustrates the intent
of Congress, which selected "[c]ooperation and voluntary com
pliance . . . as the preferred means of achieving" the elimi
nation of discrimination in employment, Alexander v. Gardner-
Denver Co., 415 U.S. 36, 44 (1974); see also, United States v.
Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 846-48 (5th
Cir. 1975), cert, denied, 425 U.S. 944 (1976), and cases cited
therein. As the Supreme Court has recognized, the prospect of
judicial imposition of remedies serves this congressional purpose
by providing "the spur or catalyst which causes employers and
unions to self-examine and self-evaluate their employment prac
tices and to endeavor to eliminate, so far as possible, the
last vestiges of an unfortunate and ignominious page in this
country's history," Albemarle Paper Co. v. Moody, supra, 422
U.S. at 417-18, quoting United States v. N. L. Industries, Inc.,
supra, 479 F.2d at 379.
90
Voluntarily negotiated settlements adopting race
conscious relief have often been approved by the courts in
the form of consent decrees. See, e.g., EEOC v. A.T. & T. Co.,
supra. 556 F.2d at 171-72; United States v. Allegheny-Ludlum
Industries. Inc., supra. 517 F.2d at 835. If the intent of
Congress is to be served, employers must be permitted to
continue the necessary self-evaluation and self-correction of
the effects of their past discrimination. Since "voluntary
compliance in eliminating unfair employment practices is pre
ferable to court action and . . . private settlement without
litigation is the central theme of Title VII," it is necessary
to reject the district court's view "that what courts may force
upon employers in the name of Title VII employers and unions
may not voluntarily institute," Weber v, Kaiser Aluminum &
Chemical Corp., 563 F.2d 216, 223 (5th Cir. 1977). A rule
restricting to the judiciary the authority to impose such
relief
. . . would be self-defeating. Such a require
ment would severely undermine efforts to achieve
voluntary compliance with the requirements of
law. And, our society and jurisprudence have
always stressed the value of voluntary efforts
to further the objectives of the law. Judicial
intervention is a last resort to achieve cessa
tion of illegal conduct or the remedying of its
effects rather than a prerequisite to action,
Bakke, supra, 46 U.S.L.W. at 4921 (opinion of
Brennan, et al.).
Title VII and related civil rights statutes, as con
strued by the enforcement agencies whose interpretations are
"entitled to great deference," not only permit but require
119/ Griggs v, Duke Power Co., supra, 401 U.S. at 433-34; Albemarle
Paper Co. v. Moody, supra, 422 U.S. at 431. See also, e.g., Lau v .
91
voluntary race-conscious affirmative action to overcome the effects
of past discrimination. The Equal Employment Opportunity Coordi
nating Council has adopted a policy statement on affirmative action
programs for state and local government agencies which expresses
the views of the EEOC, the Department of Justice, the Department
of the Treasury, the Department of Labor, the Civil Service Commis
sion, and the Commission on Civil Rights, 41 Fed. Reg. 38814 (Sept.
13, 1976). This statement provides in part as follows:
On the one hand, vigorous enforcement of the
laws against discrimination is essential. But
equally, and perhaps even more important, are
affirmative, voluntary efforts on the part of
public employers to assure that positions in the
public service are genuinely and equally acces
sible to qualified persons, without regard to
their sex, racial or ethnic characteristics.
Without such efforts equal employment opportu
nity is no more than a wish. The importance of
voluntary affirmative action on the part of em
ployers is underscored by Title VII of the Civil
Rights Act of 1964, Executive Order 11246, and
related laws and regulations — all of which
emphasize voluntary action to achieve equal em
ployment opportunity.
* * *
When an employer [following self-examination]
has reason to believe that its selection proce
dures have [an] exclusionary effect, . . . it
should initiate affirmative steps to remedy the
situation. Such steps . . . in design and execu
tion may be race,, color, sex or ethnic "conscious"
. . . . IcL 120/
119/ continued
Nichols, supra, 414 U.S. at 566-68; Mourning v. Family Publica
tions Service, Inc., 411 U.S. 356, 369 (1973); Red Lion Broad
casting Co. v. F.C.C.. 395 U.S. 367, 381 (1965).
120/ The policy statement also "recognizes that affirmative action
cannot be viewed as a standardized program which must be accomplished
in the same way at all times in all places," and that "State and
local employees have flexibility to formulate affirmative action
plans that are suited to their particular situations," id.
92
The EEOC not only endorsed the EEOCC policy statement
but also recently proposed its own guidelines for voluntary af
firmative action under Title VII, 42 Fed. Reg. 64826 (Dec. 28,
1977). These proposed guidelines "are designed to encourage
voluntary compliance with the Act," id., by "authorizing em
ployers to adopt racial preferences as a remedial measure where
they have a reasonable basis for believing that they might other
wise be held in violation of Title VII," Bakke, supra,46 U.S.L.W.
at 4921 n.38 (opinion of Brennan, et al.). The Department of the
Treasury, whose Office of Revenue Sharing enforces the civil rights
provisions of the State and Local Fiscal Assistance Act of 1972,
31 U.S.C. § 1242, has adopted regulations which provide that
" [r]ecipient governments are expected to conduct a continuing
program of self-evaluation to ascertain whether any of their re
cruitment, employee selection, or promotional policies . . .
have the effect of denying equal employment opportunities to
minorities or women," 31 C.F.R. § 51.53(d), and which reaffirm
its endorsement of the EEOCC policy statement, 31 C.F.R. § 51.60(c).
The Law Enforcement Assistance Administration — the arm of the
Department of Justice which administers federal financial assis
tance to state and local law enforcement agencies and which en
forces the antidiscrimination provisions of the Omnibus Crime
Control and Safe Streets Act of 1968, as amended, 42 U.S.C.
§ 3766(c), and the Juvenile Justice and Delinquency Prevention
Act of 1974, 42 U.S.C. § 5672 — has found that these provisions
should be interpreted consistently with Title VII, 28 C.F.R.
§ 42.203 (c), and that where a "recipient has previously dis
criminated against persons on the ground of race [or] color
the recipient must take affirmative action to overcome
93
• /
the effects of prior discrimination," 28 c.F.R. § 42.203(i)(1).
Thus, contrary to the conclusion of the court below,
the Detroit Police Department was authorized, and indeed was
obligated, by a number of federal laws to undertake race
conscious efforts to overcome the effects of its past discrimina
122/
tion. The court below nevertheless held that the Department's
affirmative action, plan violated the Equal Protection Clause of
121/
121/ The regulations also provide that, "[e]ven in the absence
of such prior discrimination, a recipient in administering a
program may take affirmative action to overcome the effects of
conditions which resulted in limiting participation by persons
of a particular race [or] color . . . 2 8 C.F.R. § 42.203 &) (2).
There are statutory, 42 U.S.C. § 3766(b), and administrative,
28 C.F.R. § 42.203(j), provisions stating that the LEAA may
require a recipient to adopt "a percentage ratio, quota system,
or other program to achieve racial balance or to eliminate
racial imbalance." The regulations recognize that"[t]he use
of goals and timetables is not use of a quota prohibited by
this section," 28 C.F.R. § 42.203(j). This interpretation is
supported by the legislative history. See 122 Cong. Rec.
17319-23(Sept. 30, 1976) (remarks of Sen. Hruska).
122/ Because both the Michigan Fair Employment Practices Act
and the Michigan Civil Rights Act of 1977 are interpreted con
sistently with Title VII, supra, nn. 89-90, these statutes also
authorized the defendants to take race-conscious remedial action
and the district court's conclusion to the contrary, Op. 50, is
in error. However, if the district court were correct in its
interpretation of the constitution and laws of Michigan, those
provisions would be required to yield to the paramount commands
of federal law. Section 708 of Title VII exempts or relieves
"any person from any liability, duty, penalty, or punishment
provided by any . . . law of any State . . . which purports
to require or permit the doing of any act which would be an
unlawful employment-practice under this title," 42 U.S.C.
§ 2000e-7. See General Electric Co. v. Hughes, 454 F.2d 730
(6th Cir. 1974); Rosenfeld v. Southern Pacific Co., 444 F.2d
1219 (9th Cir. 1971). Moreover, any provisions of Michigan
law which were obstacles to the attainment of rights granted
by the Fourteenth Amendment, Title VII, and other federal civil
rights statutes would be, invalid under the Supremacy Clause of
the Constitution., See. DeCanas v<. Bica,.. 424 U.S... 351 ,(1976);
Colorado Anti-Discrimination. League v.. Continental Airlines,
I n c 372 U.S. 714 (1963),; United States v.» City of Chicago,
supra, 549 F.2d at 438;.Lindsay v. City of Seattle, 86 Wash.
2d 698, 548 P.2d 320, cert, denied. 429 U.S. 886 (1976).
94
1_23/
the Fourteenth Amendment, Op, 50-58, The recent opinions
of the Supreme Court in the Bakke case, supra, 46 U.S.L.W.
4896, demonstrate that the district court was wrong.
The Court in Bakke considered the constitutionality
of a special admissions program which set aside 16 of 100
places in the entering class of a state medical school for
members of specified minority groups, id. 4898-99. The
medical school itself had not engaged in past discrimination,
id. A majority of the Court held that "the State has a sub
stantial interest that legitimately may be served by a pro
perly devised admissions program involving the competitive
consideration of race and ethnic origin," id. 4910 (opinion
of Powell, J., joined by Brennan, White, Marshall, and
Blackmun, JJ.). However, a different majority held on the
facts of the case that the school had violated Title VI by
excluding the white plaintiff because of his race, id. 4910
(opinion of Powell, J.)* 4936 (opinion of Stevens, J., joined
by Burger, C.J., and Stewart and Rehnquist, JJ.).
The opinion of Justices Brennan, White, Marshall,
and Blackmun correctly summarized the central meaning of the
Court's opinions, id. 4911:
123/ The district court also held that defendants had violated
Title VI, Op. 49. As noted above, neither the findings nor
the record adequately supports this conclusion, supra n.ni
In any event, since a majority of the Supreme Court has held
that Title VI does not bar race-conscious affirmative action
which is consistent with the Fourteenth Amendment, it is un
necessary to give separate consideration to this issue . See
Bakke, supra, 46 U.S.L.W. at 4901 (opinion of Powell, j.)•
id. at 4912 (opinion of Brennan, White, Marshall, and Blackmun, JJ).
95
Government may take race into account
when it acts not to demean or insult any
racial group, but to remedy disadvantages
cast on minorities by past racial prejudice,
at least when appropriate findings have
been made by judicial, legislative, or ad
ministrative bodies with competence to act
in this area. 124/
These four Justices held that racial classifications
which are designed to further a remedial purpose are constitu
tionally permissible if they serve important governmental
objectives, if they do not stigmatize any discrete group or
individual as inferior, and if they are reasonably used in
light of their purpose, id. 4920-24. The purpose of remedying
the effects of past discrimination is sufficiently important
to satisfy this standard, id 4923:
[A] state government may adopt race
conscious programs if the purpose . . .
is to remove the disparate racial impact
its actions might otherwise have and if
there is reason to believe that the dis
parate impact is itself the product of
past discrimination, whether its own or
that of society at large.
Because this was the purpose of the program challenged
in Bakke, id. 4923-24, and because race was not used to stigmatize
any racial group or individual but was used reasonably in light
of that purpose, id. 4924-25, Justices Brennan, White, Marshall,
and Blackmun held that the program was permissible under the
Fourteenth Amendment. They also indicated that race-conscious
action to correct the effects of discrimination in employment
would b.e upheld on the same basis: " [0]ur cases under Title VII
124/ The opinion written by Justice Stevens criticizes, id.
4933 ri.l, but the opinion of Justice Powell does not disavow,
this statement of the legal and constitutional effect of the
Court1s judgment.
96
. . . have held that, in order to achieve minority participa
tion in previously segregated areas of public life, Congress
may require or authorize preferential treatment for those
likely disadvantaged by societal racial discrimination,"
id. 4922. Thus, these four Justices clearly would uphold
the Police Department's affirmative action plan in this case.
Justices Stevens, Burger, Rehnquist, and Stewart/
on the other hand, found that the question whether race can
ever be used as a factor in admissions decisions was not
presented in the Bakke case and that there was no need to
consider the constitutional issue, id. 4934. They expressed
no views on the permissibility of race-conscious affirmative
125/
action to correct the effects of employment discrimination.
However, three of these Justices have indicated in recent
decisions in other contexts that such voluntary race-conscious
action does not violate the Fourteenth Amendment.
In United Jewish Organizations of Williamsburgh, Inc,
v. Carey, 430 U.S. 144 (1977), the Court held that the New York
legislature was constitutionally permitted to take voluntary
race-conscious action to comply with the Voting Rights Act of
1965, 42 U.S.C. § 1973, by insuring fair representation of the
voting strengths of different racial groups: "a reapportionment
cannot violate the Fourteenth or Fifteenth Amendment merely
because a State uses specific numerical quotas in establishing
a certain number of black, majority districts," id. 162 (opinion
125/ They indicated, however, that in enacting Title VII Congress
had properly gone beyond the prohibitions of § 1 of the Fourteenth
Amendment to effectuate its policy of eliminating racial dis
crimination in employment, id̂ . 4935 and n.20.
97
of White, J., joined by Brennan, Blackmun, and Stevens, JJ.).
Justices Stevens and Rehnquist, who expressed no view on the
constitutional question in Bakke, joined Justice White in
UJO y. Carey in upholding the state's reapportionment plan
on an independent constitutional ground: Wholly apart from
the Voting Rights Act, a state is permitted by the Fourteenth
and Fifteenth Amendments to "deliberately use[ ] race in a
purposeful manner," id, 165,in creating districts which will
prevent blacks from being repeatedly outvoted by assuring that
they are in the majority in those distrcts, id. 168, so long
as the plan does not represent a "racial slur or stigma with
respect to whites or any other race," id. 165. See also,
Califano v. Goldfarb, 430 U.S. 199, 218-19 (1977) (Stevens, J.,
concurring); id, 430 U.S. at 242 (Rehnquist, J., dissenting);
Craig v. Boren, 429 U.S. 190, 211 (1976) (Stevens, J., concur
ring); Mathews v. Lucas, 427 U.S. 495, 516 (1976) (Stevens, J.,"T3d7---------
dissenting). The Detroit Police Department's affirmative
action plan seeks to assure adequate representation of blacks
in police supervisory positions, and it does not stigmatize
any racial or ethnic group as inferior. Therefore, it is per
missible under the Fourteenth Amendment standards which have
been adopted by Justices Stevens and Rehnquist.
Justice Stewart, joined by Justice Powell, adopted
a somewhat different standard in UJO v. Carey, supra. He held
that "[u]nder the Fourteenth Amendment the question is whether
the reapportionment plan represents purposeful discrimination
against white, voters, " id., 179, citing Washington v. Davis,
126/ Justice Stevens has indicated that, in his view, a classification
is not "invidious" if it "does not imply that males are inferior to
females . . .; does not condemn a large class on the basis of the
misconduct of an unrepresentative few . . .; and does not add
98
supra, and that the legislature’s purpose to comply with the
Voting Rights Act "forecloses any finding that it acted with
the invidious purpose of discriminating against white voters,"
id. 180. Similarly, the Police Department in adopting its
affirmative action plan sought to comply with the federal
civil rights laws by correcting the effects of its past dis
crimination, not to invidiously discriminate against white
officers. Accordingly,it did not mgage in purposeful dis
crimination in violation of the Fourteenth Amendment as inter
preted by Justices Stewart and Powell in UJO v. Carey.
Justice Powell adopted a position in the Bakke case
with which no other member of the Court concurred. He held
that remedial racial classifications are "inherently suspect
and thus call for the most exacting judicial examination,"
46 U.S.L.W. 4902, and that such classifications can only be
justified if they are necessary to serve a compelling govern-
127/
mental interest, id. 4906. Although he found that the classifi
cation in Bakke did not satisfy this standard, he indicated
that race-conscious affirmative action would be constitutionally
justified by the existence of "judicial, legislative, or adminis
trative findings of constitutional or statutory violations * * *
[by] a governmental body . . . [with] the authority and capability
126/ continued
to the burdens of an already disadvantaged discrete minority,"
Califano v. Goldfarb, supra at 218.
127/ Justice White joined in the view that such racial classifi
cations are inherently suspect, id. 490.1-4902, but held that a
lesser justification is sufficient, id. 4921-25.
99
to establish, in the record, that the classification is
responsive to identified discrimination," id. 4906-4907.
Such findings were made here by the Board of Police Com
missioners, St.38 ; -App. C^ioreover, Justice Powell recognized
"the special competence of Congress [under § 5 of the Four
teenth Amendment] to make findings with respect to the effects
of identified past discrimination and its discretionary authority
to take appropriate remedial measures," id. 4905 n.41. Congress
has made such findings and authorized such measures here. See
suPra 87-88 and nn. 115-116. Justice Powell also found in
Bakke that a race—conscious medical school admissions program
would be justified if it were necessary to promote better health
care delivery to deprived persons, id. 4907. in this case, the
evidence is clear that the Department's affirmative action plan
was necessary to provide fair and effective law enforcement
to the people of Detroit, see Section IV, infra.
For all the foregoing reasons, the Department's use
of race-conscious affirmative action in promotions should be
upheld as a constitutional and lawful means to remedy the
effects of the Department's past discrimination.
100
III. THE CITY WAS REQUIRED TO USE AN AFFIRMATIVE
ACTION PLAN TO REMOVE THE ADVERSE RACIAL
IMPACT FROM THE 1973, 1974 and 1976 PROMO
TIONAL MODELS
A . Adverse Impact
The district court found that the promotional examination
128/
failed black males at a higher rate than white males, Op. 12, but
the court made no finding concerning the selection rate. The
following chart shows the number of black and white males who took
the 1973, 1974 and 1976 written examinations, the number who passed
these tests, the numbers who would have been selected if rank order
had been followed on the eligibility lists and the pass and selec-
12J/
tion rate for black and white males:
W
1973
% B % W
1974
% B %
No. Took Test 965 226 830 318
No. Passed 413 (43) 63 (28) 442 (53) 125 (39)
No. Would have
Been Promoted
Without AAP 127 (13.2) 15 (6 .6) 111 (13.4) 14 (4.4)
W
1976
% B % W
Combined
% B %
No. Took Test 671 300 2,466 844
No. Passed 342 (51) 127 (42) 1,197 (48.5) 315 (37.3)
No. Would Have
Been Promoted
Without AAP 49 (7.3) 18 (6 .0) 287 (11.6 ) 47 (5.6)
128/ jn order to be ranked on the eligibility list a candidate first
had to qualify by passing the examination .
129/ The nuiT1i)er of blacks and white males who took the examination
101
The following chart indicates the pass rate of the 1973,
1974 and 1976 written examinations and the selection rate (if
rank-ordering had been used) from the 1973, 1974 and 1976 eligi
bility lists for promotion to sergeant of black males compared to
white males:
1973 1974 1976 Combined
Pass rate, B/W 65.1% 73.6% 82.4% 76.9%
Selection rate, B/W 50% 32.8% 82.2% 48.3%
In analyzing the disparate racial effect of the selection
procedure, it must be determined if the disparity is sufficiently
large to constitute a prima facie case of discrimination which
requires that the selection procedure be shown to be job related
in order to avoid a finding that Title VII or §1981 has been
violated, supra 53. The district court in making this deter
mination used the "rule of thumb" incorporated in the Federal
13_y
Executive Agency Guidelines, Op. 41-2. Accordingly, the court
122f (Con't) and the number who passed is listed on exhibits 198
(1976), 199 (1974), 200 (1973), See Op. 12„ Exhibit 274 lists
the number of blacks and white males who would have been selected
if rank order had been followed.
130/ "A selection rate for any racial, ethnic or sex group which
is less than four-fifths (4/5) (or eighty percent) of the rate for
the group with the highest rate will generally be regarded as
evidence of adverse impact, while a greater than four-fifths rate
will generally not be regarded as evidence of adverse impact.
Smaller differences in selection rate may nevertheless be considered
to constitute adverse impact, where they are significant in both statis
tical and practical terms," (emphasis added) 41 CFR §60-3.4(b).
These guidelines were adopted by the Department of Justice, Depart
ment of Labor and the Civil Service Commission, 41 F.R. 51744 (Nov.
23, 1976).
The EEOC has not adopted these guidelines, 29 CFR §1607.
102
concluded that since the pass rate of blacks on the 1973 and
1974 written examinations was less than 80% of the pass rate
of whites there was adverse impact on these examinations but
that since the pass rate of blacks on the 1976 examination was
more than 80% of the pass rate of whites there was no adverse
impact on the 1976 examination, id. The comparison of the
selection rate between whites and blacks is more meaningful than
a simple comparison of the pass rate since the position on the
eligibility list rather than merely passing the examination is
the fact that determines promotions, United States v. City of
Chicago, 549 F.2d 415, 429 (7th Cir. 1977), cert, denied 434 U.S.
875 (1977), Ensley Branch, N.A.A.C.P v. Seibels, 14 FEP Cases 670, 674
n2L4 (N.D. Ala. 1977) . Moreover, the section of the FEA Guidelines
which the district court accorded "due deference" refers to
"selection rate" and not "pass rate." When the selection rate
is compared, the enormous adverse impact of the selection pro
cedure is apparent: when the three examinations are taken
together the selection rate of black males, 47 out of 844
applicants or 5.6%, would have been less than half, 48.3%, of the
11/
selection rate of white males, 287 out of 2,466 or 11.6%.
13]/ The disparity in the selection rates on the 1973 and 1974
examinations were substantially below the 80% "rule of thumb."
The black selection rate on the 1973 and 1974 examinations would
have been but 5G% and 30% respectively of the white selection rate.
On the 1976 examination the selection rate of black males
would have been 82.2% of the selection rate of white males. While
it is just over the 80% level, the disparity is sufficient to
constitute evidence of adverse impact when considered in conjunc
tion with the two prior administrations of the test.
103
There were 3310 male applicants for promotion to sergeant
from 1973-1976: 2466 whites and 844 blacks. If there had been no
affirmative action, 334 males or 10.1% of the applicants would have
been promoted in rank order from the eligibility lists, exhibit 274.
If the City had determined not to undertake an affirmative action
plan to remedy prior discriminatory practices but rather determined
to terminate continuing discrimination by removing the adverse impact
of the promotional model and promoting blacks in proportion to their
application rate, then the DPD would have promoted 85 blacks (10.1%
of 844) to sergeant from the three eligibility lists. There were 105
blacks who were promoted under the affirmative action plan who would
132/
not have been promoted if rank ordering had been followed. Thus, 38
(i.e., 85 minus 47) or 36% of the black males promoted pursuant to
the affirmative action plan would have been promoted, in any case, if
a racially neutral selection had been used. The promotions of these 38
blacks then did not assist in achieving the primary goal of the
affirmative action plan, remedying prior discriminatory practices,
but merely removed the discriminatory effect of the present
promotional practices. An affirmative action plan which removes
the adverse racial impact from a promotional system which is not
shown to be job related is not only permissible but is compelled
132/ There were 152 black males promoted under the affirmative
action plan; only 47 black males would have been promoted if rank
ordering had been followed, St. 34.
104
by the fair employment laws; if the City did otherwise, it would
be held liable under Title VII and §1981 in a suit brought by
133/
black employees.
B . The 1973, 1974 and 1976 Promotional Models
Were Not "Manifestly" Job Related
The district court correctly observed that "adverse
impact does not mandate a conclusion of discrimination if the
134/
procedure is validated in accordance with Equal Employment
Opportunity Guidelines on Employee Selection Procedures and
alternative suitable procedures do not exist. Thus it must be
shown that the examinations have a manifest relationship to the
job in question. . (footnote added, citations omitted), Op. 42.
13/ Even if the selection procedure is valid, an employer must
ensure that the test score of minority candidates predicts the
same job competence as the test score for white candidates. If
lower test scores for minority candidates corresponded to higher
test scores for white candidates in predicted job competence,
then Title VII requires that "employers, to ensure equal oppor
tunity, have to adopt race-conscious practices" in order to
correspond to the "differential validation" of the test. An
employer would have to select black candidates before white can
didates who have higher test scores because, in these circumstances,
the black candidates would actually have a higher prediction of
job success, Bakke, supra at 4921, n. 37 (opinion of Brennan,
White, Marshall and Blackmun, JJ.); Albemarle Paper Company v. Moody,
supra 422 U.S. at 435.
Justice Powell also stated that where cultural bias exists
in selection procedures, a racial classification which serves to
counter-balance this inaccuracy in predicting performance may be
justifiable, Bakke, supra at 4906, n. 43. Commander Caretti, who
was responsible for the preparation of the 1973, 1974 and 1976
examinations candidly testified that the written examinations were
not free from cultural bias, Aug. 16 at 25, Aug. 17 at 29.
13f/ "'Validation' is the term of art designating the process
of determining the job-relatedness of a selection procedure,"Kirk
land v. New York State Dept.of Correctional Services,374 F.Supp.1361,
1370 (S.D. N.Y. 1974) aff'd in pertinent part 520 F.2d 420 (2nd
Cir. 1975), cert, denied 429 U.S. 823 (1976).
105
But the district court erroneously concluded that the promo
tional models were shown to be manifestly job related by the
technique of content validity, Op. 42-3. A review of the
unprofessional method by which the written examinations were
developed, the failure to properly perform a job analysis or
to match the content of the examination with the content of the
job, and the failure to appropriately use the promotional models
demonstrates the error in the court's legal conclusion. More
over, the court improperly relied on the testimony of the three
experts, Caretti, Ebel and Wollack.
1. The Development of the Written Test by Caretti
Caretti was assigned the job of developing written exami
nations and models for promotion in 1968. Substantial change in
the examination was necessary, in Caretti's opinion, because the
examination used by the department emphasized intelligence
quotient, was culturally biased, and formed a "barrier" to the
promotional opportunities of blacks,St. 18-19,28. But it was not
until 1973 that Caretti was able to sufficiently alter the
written examination in order to be able to even suggest that it
was content valid, St. 28. Caretti defined content validity
135/
as follows, Aug. 16 at 19:
13J/ Caretti correctly states the two basic prerequisites for
demonstrating content validity: A thorough and careful job
analysis, and the matching of duties tested with the actual
job duties required for successful performance, infra 108-116.
106
Certainly the knowledge, skills and
abilities required to do the job should
be identified through a job analysis,
and then the content of the examination
should relate to that job analysis.
Essentially that's the way you go about
to obtain content validity. . .
Because of his lack of experience and training and the diffi
culty of the job, Caretti was unable to properly perform a job
analysis or to match the test content with the important job
duties. Moreover, Caretti was handicapped by restrictions
imposed by the Department.
When Caretti was assigned to the personnel department
he had "limited" experience and he was forced to "try and learn"
on the job, Aug. 16 at 25-6. Additionally, he gained experience
in personnel administration by attending "numerous workshops"
and by "various and sundry other types of experiences, Aug. 11.
at 5. Candidly, Caretti recognized the limits of his ability
and training, Aug. 11 at 9, Aug. 16 at 86, and that he had not
prepared a validation study and, in fact, could not prepare one
without the assistance of professionals, Aug. 17 at 19. Repeatedly,
he emphasized that he was not a psychologist and that he "can't
say that the test is content valid," Aug. 16 at 81, 73,
75-76, 82, 86. The goal was content validity but how
well he succeeded "would be extremely speculative". Aug. 16 at 29.
Caretti tried to make the test content valid "to the best of my
ability" but "how well I succeeded or failed remains for someone
107
else to determine", Aug. 17 at 18.
During the years he has been responsible for preparing
the written examination, 1965 to the present, Caretti has used
"essentially the same basic approach, learning as we proceeded
down the road and improving the process as much as we could",
Aug. 18 at 41. The approach was to rely on a bibliograpy of
reading materials which had been used by the Department prior to
his joining the personnel department, Aug. 18 at 41-2, 47.
Caretti was instructed to select questions for the written exam
ination from the bibliography, and not to change the bibliography,
Aug. 18 at 47. Caretti used a wide variety of consultants from
both inside and outside the DPD to assist in the selection of
questions from the bibliography: an attorney to do the legal
section, lieutenants and captains in the DPD, id., police
officers from other police departments, Aug. 16 at 25, and
academics, Aug. 17 at 15-16, Nov. 17 at 95-6. Caretti admitted
that there were problems with this "testing on book content;"
" . . . there were sections that dealt with knowledge of the
book that would in many cases surface on the job but many in
some other cases wouldn't surface on the job", Aug. 17 at 22.
2. Job Analysis
The district court concludes that the tests were the
product of "careful job analyses" designed to identify the major
136J
or critical work behavior of the job, Op.42 n.77. However,
136J This conclusion by the court, like the other conclusions
108
the district court relied on its erroneous finding that the job
analyses prepared by "two outside experts", John Furcan in 1973
and Andres Inn in 1975, were used in the preparation of the test,Op.10.
Caretti plainly testified that he "didn't have the benefit of a
professional job analysis" because he did not understand Furcon1s
137/
analysis and Inn's analysis was not available until after the
examinations had been prepared, Aug. 16 at 22. In determining
the work behavior and skills required for the job, Caretti relied
principally on his own judgment although he consulted with others,
Aug. 17 at 12-13. Caretti did not prepare a written job analysis.
A thorough and careful job analysis is essential for the
development of a content valid test:
The cornerstone in the construction
of a content valid examination is the
job analysis. Without such an analysis
136/ (Con't) concerning testing practices, is simply a paraphrase
of the applicable Guidelines from the Equal Employment Opportunity
Commission's Guidelines on Employment Selection Procedures, 29
CFR 1607.
The district court also relies on the Federal Executive Agency
Guidelines, adopted by the Justice Department, 28 CFR 50.14 and
accords them "great deference" even though "they are not enacted
by a body having enforcement responsibility under Title VII." Op.
40. The district court is confused on this account since the
Department of Justice has enforcement power under Title VII with
respect to state and local governments, Section 706 (f) (1), 42 U.S.C.
§2000e-5 (f) (1) .
13/ Furcon's analysis is exhibit 299; it is understandable after
a review of the analysis why a layperson like Caretti was not able
to understand or use the analysis. Caretti was also restricted
in using Furcon's job analysis because of the litigation instituted
by the DPQA regarding collective bargaining and the promotional
model, Aug. 16 at 30; see St. 43 supra 108.
109
374
to single out the critical knowledge,
skills and abilities required by the
job, their importance relative to each
other, and the level of proficiency
demanded as to each attribute, a test
constructor is aiming in the dark and
can only hope to achieve job related
ness by blind luck, (emphasis added).
Kirkland v. N. Y. State Dept, of Correctional Services, supra,
F. Supp. at 1373; Firefighters Institute for Racial Equality v. City
of St. Louis, 549 F.2d 506, 511 (8th Cir. 1977) cert, den., 434 U.S.
819(1977); United States v. City of Chicago, supra, 573 F.2d at 425;
Vulcan Society v. N. Y. Civil Service Comm'n., 360 F. Supp. 1265,
1274 (S.D. N.Y. 1973) aff'd in relevant part 490 F.2d 387 (2nd Cir.
138_/
1973) .
Caretti's reliance on his own experience as a sergeant in
specialized sections and his informal, unwritten review of the
sergeant position simply do not constitute an adequate job
analysis which serves as the "cornerstone"’ for developing
138/ The Standards for Educational & Psychological Tests, published
by the American Psychological Association, Inc. (1974) provide:
"When a test is represented as having content validity for a job
or class of jobs, the evidence of validity should include a com
plete description of job duties, including relative frequency,
importance and skill level of such duties. Essential", at E.12.4.
These Standards are adopted by reference in both the EEOC and FEA
Guidelines and were introduced into evidence in this case, exhibit
189; see also the EEOC Guidelines §§1607.5(a) and 1607.5(b)(3).
Similarly, the plaintiffs' expert has written: "It is im
plicit in content validity that the domain of the test and the job
content domain will be defined with a sufficient degree of preci
sion to permit a reliable inference concerning the degree of content
validity," exhibit 256 at 33.
110
13_y 140J
a content valid test. Kirkland, supra 374 F. Supp. at 1376.
Moreover, Caretti used consultants from varied backgrounds,
academic, legal, DPD, other police forces, to select the questions
from the bibliography for the written examinations. These con
sultants did not have access to any formal job analysis. This
form of examination development, which was necessarily haphazard,
is the type of "poor preparation of an examination [which] entails
the need of 'the most convincing testimony as to job-relatedness1"
(emphasis added).Vulcan Society v. N.Y. Civil^Service Commission,
141/
supra 490 F.2d at 396; Kirkland v. N. Y. State Dept, of Correctional
139/ Caretti's attempted job analysis falls far short of what is
required, see Firefighters Institute for Racial Equality v. City
of St. Louis, supra at 511 n. 9 (description of an adequate job anal
ysis for first-level supervisor in a fire department); see also
the extensive job analysis performed by plaintiffs' expert Wollack
in the preparation of a selection test for hiring police officers,
exhibit 256 at 36-73 .
140/ The factual situation in Kirkland is similar to this case.
The Department of Corrections relied on a supervisor with long
experience: he had been a Correction Officer since 1957, a ser
geant in 1968, a lieutenant in 1972 and a Captain in 1973. How
ever, the court noted that in 1970, the supervisor went into a
specialized section and that he had not had actual experience as
a line-sergeant since 1970. Judge Weinfeld concluded that "[g]iven
the changes which have occurred in the job since that time, his
experience, although useful cannot substitute for a professionally
acceptable job analysis", id. at 1375-76.
Caretti worked for nine years in a precinct; he then worked as
a detective in the Robbery Bureau where he was promoted to Sergeant.
After working there and in another Bureau, he was transferred to
the personnel department in 1968, Aug. 11 at 6.
141J Judge Friendly approved the adoption by the district court of
"a sort of sliding scale for evaluating the examination, wherein
the poorer the quality of the test preparation, the greater must
be the showing that the examination was properly job related, and
vice versa", id. The plaintiffs' expert Wollack has written that
this approach "showed great insight. . . for evaluating the
111
Services,supra 374 F.Supp. at 1372.Caretti1s testimony -was not at all
convincing: he stated that he was restricted in the material
which he could use, that he could not say that the test was
valid, and that the reliance on the "book content" in the biblio-
graply for the source of the questions led "in many cases" to the
testing of knowledge that would not "surface on the job", supra 107-108.
3. The Test Content and Job Content
The Federal Executive Agency Guidelines require that,28 CFR
142/
50.14 §12 (c) (4) :
A demonstration of the relationship
between the content of the selection
procedure and the performance domain
of the job is critical to content
validity. Content validity may be
shown if the knowledges, skills or
abilities demonstrated in and measured
by the selection procedure are sub
stantially the same as the knowledges,
skills or abilities shown to be nec
essary for job performance. The closer
the content of the selection procedure
is to actual work samples, behaviors
or activities, the stronger is the basis
for showing content validity. The need
for careful documentation of the rela
tionship between the performance domain
of the selection procedure and that of
the job increases as the content of the
selection procedure less resembles that
of the job performance domain.
141/ (Con't) examination in dispute", exhibit 256 at 32.
The EEOC Guidelines similarly provide that "evidence of content
validity, alone may be acceptable for well-developed tests. . ."
(emphasis added), §1607.5(a).
14/ The EEOC Guidelines similarly provide that, "Whatever criteria
are used they must represent major or critical work behaviors as
revealed by careful job analyses", 29 CFR §1607.5(b)(3); Op. 42 n. 77.
The plaintiffs' expert, Dr. Wollack, agreed: "The degree of
112
Here the selection procedure, a written examination, does not
bear much resemblance to the "actual work samples, behaviors or
activities" of the position of sergeant; and there is no documen
tation, much less the required "careful documentation," "of the
relationship between the performance domain of the selection
144y
procedure and that of the job."
The "claim of content validity [requires a showing] that
the tasks on the examination substantially represented equivalent
tasks on the job," United States v. City of Chicago, supra 549 F.2d at
434 (footnote omitted). The content of the examination must not only
"match" the content of the job, it is also "essential that the
examination test these attributes both in proportion to their
/ (Cont'd) similarity or correspondence between the content
domain of the test and that of the job is, of course, the most
essential aspect of content validity," exhibit 256 at 146.
143/ There are other parts to the selection model, seniority, oral
board, service rating, veterans' and college preference, but these
factors are a minor part of the model and do not counterbalance the
deficiency of the written examination, infra 116-120.
144/ Plaintiffs' expert Wollack has forthrightly written about this
problem: "Unless we intend to employ individuals for the purpose of
taking written examinations, it must be recognized that the written
examination format represents a substantial, departure from the duties
and responsibilities of most jobs. One can hardly claim a high degree
of fidelity or realism based upon the assessment of required capabil
ities on the basis of a written examination," exhibit 256 at 29-30.
Wollack continues by saying that written tests do provide an "objective"
method but that the use of this and other selection procedures must be
carefully weighed, id. 30-1. Interestingly, in the selection model which
he developed for hiring police officers Wollack only relies on written
tests for 24% of the weighting factor-instead of the 65% in this model,
id. 261-262.
113
relative importance on the job and at the level of difficulty demanded
by the job," (footnote omitted). Vulcan Society v. N. Y. Civil Service
Comm'n, supra at 1274; Fowler v. Schwarzwalder, 351 F. Supp. 721, 722
(D. Minn. 1972). In order to meet this requirement other than by
"blind luck," it is necessary to have a thorough job analysis. This
job analysis must be designed to survey the relative importance of the
skills or behaviors involved in the job and the degree of competency
required by "closely observing the actual performance of the job,"
Vulcan Society, supra 360 F.Supp. at 1274. There was, of course,
no such job analysis performed by the DPD.
While there was no job analysis used by Caretti which may serve
as a basis for the comparison of the job content with the test content,
an analysis of the items tested on the 1973, 1974 and 1976 examinations
reveals their limitations. The 1973 written examination includes
145J
six general items: a verbal inventory, General Order, Training
and Information Bulletins, Michigan Liquor Control Act, Criminal
Law-Fundamentals of Criminal Investigation and Constitutional * 146 147
^ 5 / This is '"basically a vocabulary test"; on the 1974 examination
the verbal inventory "is more a police terminology type examination,"
Oct. 13 at 27 (WoHack) .
146 / This item refers to "such matters as General Orders and Informa
tion Bulletins", id. at 29.
147 / This item includes questions concerning the Liquor Act as
well as city and traffic ordinances, id.
114
Limitations on Evidence in Criminal Cases, Miscellaneous Sources
149/
identified in the Bibliography, and Watson Glazer Critical Think-
150/
ing Appraisal. The 1974 examination included the first five general
items of the 1973 examination but did not include the Watson-Glazer
!51/
Critical Thinking Appraisal, Oct. 13 at 30.
The examinations emphasize general education, vocabulary and
the academically-oriented questions of the bibliography, general
intelligence measures, the Watson-Glazer Critical Thinking Appraisal
(1973 only) or "book content." There is an emphasis on the ability
of the candidate to retain certain knowledge of statutes and
ordinances for the test period. While some of this matter is
relevant to the sergeant position, there is no demonstration, nor
could there be, that the knowledges, skills or behaviors tested
represent the important job knowledges, skills, or behaviors; or,
equally important, there is no demonstration that the matters * 1
1 4 8 _ /
1 Aftx ° / This item refers to constitutional, criminal and evidentiary
law, id.
1 A Q / This item includes questions taken from a "bibliography composed
of criminal justice related subject matter, and general supervisory
subject matter, which one would hope that a Sergeant would generally
have some understanding of this type of material. But I don't see
it as being so immediate and so pertinent to what a Sergeant must
do on a daily basis as the other areas [items 1-4] . . . It's
somewhat more academically oriented," id. 30.
/ This is a standardized examination, id.
1 SI__/ The 1973, 1974 and 1976 examinations were admitted into
evidence, exhibits 15-17.
115
tested measure the job-relevant knowledges, skills and abilities
proportionate to their relative job importance and at the complexity-
level required by the job. For example, the important job duties
involving supervisory responsibility and police-community relations
are not, or are only marginally, covered. The courts have repeatedly
and properly determined that a selection procedure is not content
valid when, as in this case, it fails to test or improperly weights
major or important job duties or responsibilities, Firefighters
Institute for Racial Equality v. City of St. Louis, supra at 511-12
(supervisory ability), United States v. City of Chicago, supra 549
F .2d at 434; United States v. City of Chicago, supra 573 F.2d at 425-
26; Vulcan Society v. N. Y. Civil Service Comm'n, supra 360 F. Supp.
at 1274; Kirkland v. N. Y. State Dept, of Correctional Services, supra
152/
374 F.Supp. at 1378; Western Addition. Community Organization v .
Alioto, 360 F.Supp. 733, 738 (N.D. Cal. 1973) appeal dismissed, 514
F .2d 542 (9th Cir. 1975) cert, den. 423 U.S. 1014 (1975).
4. The Promotional Model and Its Use
The promotional models used from 1973-1976 were comprised of
the written examination, service ratings, seniority, college and vet
eran's preference and, for 1974 and 1976, an oral board. The
152/ "More serious perhaps than specific item flaws is the fact that,
regardless whether 34-944 adequately tests the attributes it is intended
to measure, it fails to examine a number of traits, skills and abilities
. . . important to the Sergeant job . . . leadership, understanding of
inmate resocialization, ability to emphathize with persons from different
backgrounds, and ability to cope with crisis situations," id.
116
only factor which the court held to have an adverse racial effect
was the written examination. The court observed that the black
candidates scored "somewhat higher" than the white candidates on
the oral boards but that this difference was not significant, Op.
14-5. However, the evidence does reveal that black officers were
hired, on average, more recently than white officers, and there
fore they were adversely affected by the use of seniority as a
factor in promotion, St. 17, 19. Moreover, the seniority of
an officer tends to influence service ratings, Op. 13. Since
whites had, in general, greater seniority because of prior hiring
discrimination, the service rating factor combined with seniority
ls jy
to adversely affect the promotional opportunities of blacks.
The written examination,which had the most substantial
adverse impact on blacks, was accorded the greatest proportion of
weight in the promotional model, 60% in 1973 and 65% in 1974 and
1976. The importance attached to the written examination exacer
bates the adverse impact of the rank ordering. The City in 1975
proposed to reassess the weighting of the factors by allocating
32% both to the written examination and to the oral boards. But
the DPOA frustrated this attempt to reduce the adverse impact of
153_/ The court found that there was no adverse impact of service rat
ings, Op. 13-14. The court relied on a study performed by Caretti,
in which he controlled for seniority by comparing blacks and whites
with similar years of seniority. Accordingly, the study concealed
the racial effect of the service ratings.
117
the promotional model by rejecting the proposal and by counter
offering that the oral board factor should be dropped, St. 43-4.
There is no evidence in the record which establishes
that the weighting system was developed to be job related. Rather
the model largely resulted from historical practice; and changes
in these historical practices were limited by the union negotiat
ions. Caretti was instructed not to alter the model in 1973
because of the labor practices suit brought by the DPOA and a
reordering of the model in 1975 was frustrated by an impasse
in the labor negotiations, St. 43-4.
A study performed by Dr. Andres Inn, exhibit 298(a), is
the only review of the promotional model introduced into evidence.
The DPOA retained Inn to review the 1974 promotional model
in preparation for the negotiations with the City.
Dr. Inn found that there is "virtually no racial difference in
composite scores" but that "this is not the case for rank order
scores. The rank order scores emphasize racial differences . . . ,"
exhibit 298(a) at 17. Moreover, Inn found that the rank ordering
scores are based upon arbitrary weights, _id. 2-3, and that they are
'• inappropriate" for measuring relative qualifications, id. 7, 17, 21,
and that "the rank order scores convey a false illusion of overall
superiority or inferiority," id. 22.
The proper use of a selection procedure is as important
118
as establishing the general job relatedness of the procedures.- 7
The DPD simply passed 50% of the applicants taking the written
examination; the promotional model simply provided for the selec
tion of those who passed the examination with the highest scores.
While this process serves administrative convenience and removes
the personal favoritism which previously existed when the police
commissioner could "dip" into the list to promote candidates, it
is not based on job relatedness.
• • • [T]o establish the passing score
[in this manner] subordinates the goal of
job-relatedness to that of administrative
convenience . . . [and] departs from the
requirement, imposed by law [when the pro
cess has adverse impact], that such
decisions be made so as to further the
paramount goal of job relatedness,"
Kirkland v. N.Y. State Dept, of Correctional Services,supra 374 F.Supp.
“*• P P /
at 1377. The establishment of arbitrary passing or selection
scores based on rank-ordering, not justified by an analysis of
the relationship of the test use to performance on the job, when
those scores have an adverse racial impact, has repeatedly been held
T-/ pla;|-ntlffs expert Wollack wrote that "the procedure by which
testing information is utilized is every bit as important to fair
employment as is the job relatedness of the selection tools "
exhibit 256 at 254, see 32, and that a process improperly used
may unfairly" reject applicants, id. 255.
i?16 APA ~ andards similarly provide: the test's "validitv
should be determined in light of its actual use. . . the intent
is to recommend that test users avoid the practice of designating
purely arbitrary cutting scores they can neither explain nor
defend," Standard I 14 at p. 67, exhibit 189.
119
unlawful, id.; Stamps v. Detroit Edison, supra 365 F.Supp. at 118;
Boston Chapter, NAACP, Inc, v. Beecher. 504 F.2d 1017, 1023 (1st
Cir. 1974) cert, denied 421 U.S. 910 (1975); Western Addition
Community Organization v.AJLioto,supra 360 F.Supp. at 738; cf.
Bridgeport Guardians, Inc, v. Bridgeport Civil Service Commission,
supra 482 F.2d at 1338.
Dr. Wollack, plaintiffs' expert, in his written validity
study which was introduced into evidence, emphasized:
Each required capability or attribute
which is measured in the employment
process must be factored into the deter
mination of the candidate's eligibility,
and this must be done by a method which
is consistent with the relative import
ance of each characteristic measured.
Weights must be assigned to the assess
able performance dimensions or person
al characteristics which have been
identified in the job analysis and in
a manner which is proportionate to their
importance . . . . In this fashion, an
applicant’s position on the eligibility
list reflects a valid, comprehensive
assessment of all relevant measurable
job analysis factors, exhibit 256 at
258-59.
Caretti did not assign weights to the parts of the selection
process by careful reference to a job analysis as Dr. Wollack
suggested. Proper weighting of selection components, for example,
the oral boards as compared to the written examination, is parti
cularly essential, as Dr. Wollack wrote, in order "to reduce
inappropriate adverse effect against protected classes which
accrues from the inordinate weighting of certain select components
120
in the process," id. 259.
5. Expert Testimony
The Court held that the promotional model and its use was
content valid, Op. 17 and see Op. 42-3:
It is important to note that the
Detroit Police Department has no
written validation report . . . .
However, equally important to note is
the fact that Caretti, Wollack, Guenther
and Ebel consistently testified that the
promotional models for 1973-1976, including
each component part, were job related and
content valid.
The court's statement is contrary to the record on numerous
accounts. First, Guenther, who was qualified as an expert concerning
the definition of an appropriate labor market, did not testify regard
ing the jcb-relatedness of the selection procedures, see generally
Aug. 12, Sept. 27 and 28. Second, Dr. Ebel did not testify that the
entire selection model was content valid nor that the use of a rank-
156 /
^ order list was appropriate. Third, Dr. Wollack did not have an
opinion concerning the job relatedness of the entire selection model
157/
and specifically refused to comment on the seniority factor. Fourth, 156
156 / "Well, I know there is an overall composite score. I can't say
that I reviewed them in any particular sense," Oct. 12 at 54; Ebel
had looked at the promotional examination, id. 66, and at the general
weighting of that examination but he testified neither that the promo
tional model was content valid nor that its use to establish a rank
order was appropriate, _id. 71-72.
15/ " . . . i have made some testimony with regard to the individual
components of the model, but I really have no opinion as to the method
by which the various components were put together so I couldn't really
say whether it's job related," Oct. 14 at 60-1. Wollack refused to
assess the job relatedness of the seniority factor, i_d. at 61. Dr.
Wollack added, though, that the "composite score is a meaningful one
. . . therefore I don't have any great problems with the promotional
model," (emphasis added), id. 62.
121
Caretti repeatedly asserted the limits of his professional exper
ience and flatly stated, "I can't say the test is content
valid," supra 107. Fifth, neither Wollack nor Ebel even looked
at the 1976 written examination and they refused to offer an
158_/
opinion on that examination.
159/ 16 0_/
Dr. Wollack and Dr. Ebel testified that in their
opinion the 1973 and 1974 written examinations were job-related.
However, they did not review the sergeant's position by perform
ing a job analysis nor did they perform their own validity study;
rather they relied on a review of the examinations and on a re
view of Caretti's testimony explaining the development of the
161/
tests.
The testimony of Ebel and Wollack offers no evidentiary
support for the conclusion that the examinations are job-related
but merely opinion as to their job relatedness. The actual devel
opment and use of the test must itself be carefully reviewed,
supra 110-11.The "mere testimony that a test has been validated,
without a record of validation, is insufficient to prove job
relatedness," United States v. City of Chicago, supra 549 F.2d at 432.
lSfl/ Oct. 14 at 35-7 (Wollack); Oct. 12 at 63 (Ebel).
159/ "I do believe that the 1973 and 1974 Sergeant's examination
are substantially job related," Oct. 14 at 35.
160/ Oct. 12 at 16.
161/ Oct. 12 at 65-8 (Ebel); however, Wollack did look at Inn's
job analysis, Oct. 13 at 21-2 (Wollack).
122
Finally, the procedures followed by Caretti in developing and
using the test plainly do not follow the procedures which Dr.
Wollack outlined in his written submission as necessary for
demonstrating the content validity of a selection system, supra.
123
IV. THE AFFIRMATIVE ACTION PLAN WAS JUSTIFIED
BY THE CITY'S COMPELLING NEED FOR FAIR
AND EFFECTIVE LAW ENFORCEMENT
A. Standards Concerning the Consideration of
Governmental Interests to Support Race-
Conscious Programs
The lower court held that an employer could not lawfully
fashion "quota type relief." The "prerogative" to grant this
relief belonged to "courts alone", Op. 46. After concluding
that the City of Detroit could not lawfully institute the affirm
ative action plan even to remedy intentional discrimination by
the Department, the lower court further found that there was no
compelling government interest which'justified the
establishment of the affirmative action program, Op. 56. The
court also concluded that fair and effective law enforcement was
not furthered by the affirmative action plan, Op. 54-56. The
court's erroneous legal standard is discussed in Section A while
its erroneous conclusion regarding law enforcement in the City
of Detroit is discussed in Section B.
The district court's standard is based on the premise
that "racial discrimination is as indefensible when practiced
against whites as it is when practiced against blacks . . . "
Op. 54. By not going further than this simple premise in
analyzing the background to and purpose of affirmative action,
the lower court is led to several erroneous declarations:
"'affirmative action' [as used by the Department] is not only a
vile misnomer but acts as the antithesis of equal opportunity",
Op. 54 n.87; "If better communication would exist by . . . pro
moting more blacks . . . then the problem lies in a racially
124
motivated populus [sic] . . . catering to such racial prejudices can
not be said to be 'compelling' . . . the Court would consider it
to be pandering," Op. 56.
The lower court's premise, equating affirmative action
programs which limit the opportunities of whites with discrimina
tion against blacks, leads to its conclusion that "if 'affirmative
action' is a term mandating equality of result then this country
is not far from rejection of the concepts of individual merit and
achievement - concepts which made this country the great nation
that it is today", Op. 54 n.87. The lower court does not consider
that, especially for blacks, these concepts have been more
promise than reality. " [C]andor requires acknowledgement that
the framers of our Constitution . . . openly compromised this
principle of equality with its antithesis: slavery. The con
sequences of this comprise are well known and have aptly been
called our 'American Dilemma'," University of California Regents
v . Bakke, supra, 46 .U.S.L.W. at 4911 (opinion of Brennan, Blackmun,
White and Marshall, JJ.); see also id. 4931, 4933 (opinion of
Blackmun, J.); and _id. 4927, 4931 (opinion of Marshall, J.).
16_2/
The magnitude of this "American Dilemma" has been all
too clear within the City of Detroit. The discriminatory
practices of the Detroit Police Department have resulted in a
high level of hostility between the black community and the police
16 ̂ in his epic work on race relations, Gunnar Myrdal pointed
out that "[t]he Negro's most important public contact is with the
policeman" and that the policeman's traditional relationship to
blacks is that of the enforcer of "white supremacy" and the
"caste system", Myrdal, An American Dilemma (1944) at 535.
125
force. In combination with the City's history of racial tension,
this hostility has produced a crisis in law enforcement which
creates a compelling government interest in increasing the
representation of black officers at all ranks within the Depart
ment.
The Fourteenth Amendment does not prevent a local govern
ment from implementing race-conscious measures to meet a suf-
ficently important governmental interest, supra 96. Of course,
"the mere recitation of a benign, compensatory purpose" does not
automatically shield the use of a race conscious practice, Bakke,
supra at 4920 (opinion of Brennan, et al.). The classification
must serve important governmental objectives and must be sub
stantially related to their achievement, id. 4920-21. This
standard applies where there is no fundamental right involved,
where the class does not have any "traditional indices of sus
pectness " (as whites do not) and where the classification does
not stigmatize a group with a badge of inferiority, id. 4919-21.
Justice Powell states that the "strict scrutiny standard" must
apply to all racial classifications, id. 4903, but that does not
mean that all racial classifications are unlawful. In order to
justify the classification, there must be a showing that "its
purpose or interest is both constitutionally permissible and
substantial and that its use of the classification is
'necessary . . id. 4906.
Justices Brennan, Blackmun, White and Marshall, in apply
ing their standard,stated that
. . . a state government may adopt race
conscious programs if the purpose of such
prograne is to remove the disparate racial
126
impact its action might otherwise have and
if there is reason to believe that the
disparate impact is itself the product of
past discrimination, whether its own or
that of society at large, id. 4923.
These four Justices held that because of the clear and
substantial discrimination imposed upon minorities in education
and in admittance to medical schools there was "no question"
that the Davis affirmative action program, which set aside- a certain
number of places for minorities was constitutional, id. 4923-25.
Moreover, these Justices indicated that the same result would be
reached under Title VII, id. 4922. In fact, they indicated that
if Title VII was intended by Congress to bar State or local
government from exercising their discretion to remedy societal
discrimination, then Title VII may be unconstitutional, id. 4915,
n.17; see also North Carolina State Board of Education v. Swann,
402 U.S. 43, 45-6 (1971); Hunter v. Erickson, 393 U.S. 385, 392
(1969). The problems in law enforcement which resulted from the
discriminatory practices of the Department and from the racial
tensions in Detroit created a governmental interest in the use
of affirmative action to promote black officers which was at least
as compelling as the governmental interest which Justices
Brennan, Marshall, White and Blackmun held to be sufficient in
the affirmative selection of minorities by the Davis Medical
School.
Justice Powell, in applying his standard, stated that
"it may be assumed that in( some situations a State's interest in
facilitating the health care of its citizens is sufficiently
compelling to support the use of a suspect classification [. . .
127
and that] the attainment of a diverse student body . . . clearly
is a constitutionally permissible goal for an institution of
162/
higher education", id. 4907. The goal of providing effective
and fair law enforcement and the need for a racially diverse
police force in Detroit are no less compelling than the need of
California to provide adequate health care for its citizens and
to insure a racially diverse student body.
The courts in other situations have concurred that a
local government may take race into consideration in selection
practices in order to promote racial diversity within important
institutions. "School authorities . . . might well conclude . . .
that in order to prepare students to live in a pluralistic
society each school should have a prescribed ratio of Negro to
white students reflecting the proportion for the district as a
whole", Swann v. Charlotte-Mecklenburg Bd. of Education, supra,
at 16 (1971) . Similarly, the Third circuit approved a system for
promotion to school principals where race was taken into con
sideration because the integration of the faculty was a legiti
mate government objective in light of the crisis in education in
the Newark school system. Porcelli v. Titus, 431 F.2d 1254,
1256-57 (3rd Cir. 1970) (per curiam) , cert, denied. 402 U.S. 944
(1971). Furthermore, the absence of racial diversity and inter
racial association adversely affects both black and white
citizens, and practices which limit racial diversity violate
3/ Justice Powell also approved the justification of a racially
conscious policy for countering historic or societal discrimination
but indicated that "judicial, legislative, or administrative
findings of constitutional or statutory violations" are necessary,
id. 4906; see Arguments II and V.
128
the fair housing law, see Trafficante v. Metropolitan Life Insurance Co.,
409 U.S. 205, 211 (1972), and the fair employment law, see EEOC v .
Bailey Co., Inc., 563 F.2d 439, 453-54 (6th Cir. 1977); Waters v.
Heublein, Inc., 547 F.2d 466, 469 (9th Cir. 1976).
As Justice Powell indicated in Bakke, the courts have approved
race conscious practices by state and local governments when these
practices are legitimately related to furthering important governmental
objectives. In United Jewish Organizations c£ Williamsburg v. Carey,
430 U.S. 144 (1977), the Supreme Court approved the state legislature's
consideration of race when designing the electoral districts in Brooklyn
"for tie purpose of increasing minority representation", 430 U.S. at
167. The Court did not limit the use of racial criteria to eliminating
the effects of past discriminatory practices but rather permitted the
State wide latitude to achieve its purpose, representative minority
participation in government, 430 U.S. at 161. Four Justices based
their approval of the State's apportionment plan on Section 5 of the
Voting Rights Act, 42 U.S.C. §1973c. But three Justices, White, Stevens
and Rehnquist, held that the plan was authorized by the Constitution:
[W]e think it also permissible for a State,
employing sound districting principles such
as compactness and population equality, to
attempt to prevent racial minorities from
being repeatedly outvoted by creating districts
that will afford fair representation to the members
of those racial groups who are sufficiently numerous
and whose residential patterns afford the opportunity
of creating districts in which they will be in the
majority, 430 U.S. at 168.
129
Moreover, the government may require affirmative action
programs with, as here, specific numerical goals for the employ
ment of minorities, even without a finding of prior intentional
discrimination because of the substantial "governmental interest
in having all groups fairly represented in employment . . . to
counteract the detrimental effects a particular, identifiable
pattern of discrimination [not necessarily the discrimination of
the institution required to institute the affirmative action
plan] has had upon the prospects of achieving a society in which
the distribution of jobs to basically qualified members of sex
and racial groups is not affected by discrimination", EEOC v.
A.T. & T. Co., 556 F .2d 167, 179-180 (3rd Cir. 1977) cert, denied,
46 U.S.L.W. 3803 (July 3, 1978); see Contractors1 Associa
tion of Eastern Pennsylvania v. Secretary of Labor. 442 ^ 4/
F.2d 159 (3rd Cir. 1971) cert, denied, 404 U.S. 854 (1971);
cf. Morton v. Mancari, 417 U.S. 535 (1974).
The governmental interest in the provision of fair and
effective law-enforcement is at least as substantial as the
governmental interest in the provision of health care, minority
representation in government, and the integration or expansion
of the skilled work force, "The police function fulfills a most
fundamental obligation of government to its constituency." Foley
164/ "Even absent a finding that the situation was the result
of deliberate past discrimination, the federal interest in
improving the availability of key tradesmen in the labor pool would
£>e. the same," id. at 175. "A finding as to the historical
reason for the exclusion of available tradesmen from the labor
pool is not essential for federal contractual remedial action",
id. at 177.
130
v . C o n n e l ie , 55 L .E d .2 d 2 8 7 , 293 (1 9 7 8 ) ; N a t io n a l L eague o f
Cities v. Usery, 425 U.S. 833, 851 (1975). Courts have repeatedly
determined that, where there is a disproportionately low number
of minority officers compared to the representation of minorities
in the population, an increase in the number of minority officers
will substantially improve the quality of law enforcement; and
accordingly, the courts have taken this factor into account in
determining an appropriate remedial order, Bridgeport Guardians,
Inc, v. Bridgeport Civil Service Commission, 482 F.2d 1333, 1341
(2d Cir. 1973), cert, denied, 421 U.S. 991 (1975); NAACP v .
Allen, 493 F.2d 514, 521 (5th Cir. 1974); Arnold v. Ballard,
390 F. Supp, 723, 736 (N.D. Ohio 1975), aff*d, 12 FEP Cases 1616
(6th Cir. 1976), vac, and rem. on other grounds, 16 FEP Cases 396
(6th Cir. 1976); Officers for Justice v. Civil Service Commission
of San Francisco, 371 F. Supp. 1328, 1330-31 (N.D. Cal. 1973);
League of United Latin American Citizens v. City of Santa Ana,
410 F. Supp. 873, 896-97 (C.D. Cal. 1976) ; <cf. Erie Human
Relations Commission v. Tullio, 493 F.2d 371, 375 (3rd Cir. 1974);
DPOA v. Detroit, 385 Mich. 519, 190 N.W.2d 97, 98 (1971)(Brennan,
J., concurring).
B. Effective Law Enforcement in Detroit Requires
a Substantial Representation of Black Officers
in all Ranks of the Detroit Police Department
1. Introduction; The Lower Court's Decision
Fair and effective law enforcement in a city of Detroit1s
size, racial diversity, and history of violence is a complex
131
and demanding responsibility. In order to meet this
responsibility the Board of Police Commissioners adopted an
affirmative action plan. Prior to approving the affirmative
action plan, the Board reviewed the difficulties confronting
the Department and determined that a more integrated force
was necessary for proper police functioning, St.34-40. The City
presented diverse evidence demonstrating that it was reason
able and proper to institute the plan in order to meet the
operational requirements of the Department. The district court
"stripped" this argument to "its barest form" and evaluated the
argument simply as an assertion "that blacks can communicate and
cooperate better with blacks than can whites", Op. 31. Moreover,
the lower court stated that the City relied "principally upon an
alleged reduction of crime and a drop in citizen complaints", id.
in so doing the district court missed the complexity and variety
of the argument and ignored the substantial testimonial evidence.
Furthermore, the district court misperceived a basic premise of
the City's evidence. The lower court addresses solely the
effectiveness of the individual officer, stating that "the un
alterable pigmentation" of the officer does not enhance "his
165/
professional enforcement effectiveness", Op. 32, 53. The City'
principal argument is that increased racial integration of the
Department will increase the effectiveness of the police force as
a whole.
There are three general and interrelated reasons why the
16^ However, there are situations where it is critical that the
Department assign black officers, infra.
132
operational requirements of the Department support the imple
mentation of the affirmative action plan to integrate the super
visory force: (1) to overcome the obstacles to effective and
fair law enforcement resulting from prior racial discrimination;
(2) to generally lessen the hostility between the black community
and the Police Department and to avoid the recurrence of problems
which led to the severe race riots of 1943 and 1967; and (3) to
provide effective law enforcement in a city where the population
is over 50% black.
2. The Operational Requirements of the Department
In describing the reasons why the Board instituted the
affirmative action plan, Commissioner Littlejohn testified that
effective law enforcement is dependent upon remedying the
effects of the Department's discriminatory practices: The two
are interrelated, you cannot separate one from the other because
one [inadequate law enforcement] exists because the other [dis
crimination] existed previously", Nov. 9 it 10. In amending
Title VII to cover state and local governments, the Congress,
like Commissioner Littlejohn, recognized the severely negative
effects that employment discrimination by local governments has
on essential government services, such as law enforcement. The
Report of the House Committee on Education and Labor stated:
The problem of employment discrimination is
particularly acute and has the most deleterious
effect in those government activities which are
most visible to the minority communities (notably
education, law enforcement, and the administration
of justice with the result that the credibility of
the government's claim to represent all the people
is negated. (emphasis added).
H.R. Rep. No. 92-238, 92d Cong. 1st Sess. (1971) at 17
Similarly the State Committee on Labor and Public Welfare found:
133
The 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. . . . . Dis
crimination by government therefore serves
a doubly destructive purpose. The exclusion
of minorities from effective participation
in the bureaucracy not only promotes
ignorance of minority problems in the
particular community, but also creates mis
trust, alienation, and all too often hostility
toward the entire process of government.
(emphasis added).
S. Rep. 92-415, 92d Cong. 1st Sess. (1971) at 10. Senator
Harrison Williams, the Chairman of the Labor and Public Welfare
Committee and sponsor of the bill in the Senate, made repeated
references during the debate to the importance of increasing
minority representation in governmental services, especially
law enforcement, not only to end employment discrimination but
also to insure public cooperation and effective governmental
166J
functioning, 118 Cong. Rec. 793 (January 31, 1972).
In general, Congress found that the effectiveness of the
police is substantially undercut by discriminatory practiceswhich
have limited the number of minority officers. This is clearly the
case in Detroit, where police-community relations had deteriorated
166/ In support of his position Senator Williams introduced
into the Congressional Record a report prepared by the U.S.
Commission on Civil Rights, Mexican Americans and the Administra
tion of Justice in the Southwest (March 1970). The Report found,
inter alia, that an increase in the number of minority police
officers "can contribute significantly in reducing the present
feeling of apprehension and distrust" between the police and the
community. Moreover, in order to have any real positive effect
minorities must have the opportunity to be promoted to super
visory positions,US Cong. Rec. 793 (Jan. 31, 1972) .
134
to the point where the effectiveness of law enforcement was seriously
compromised.
The four most recent police chiefs of the Department testified
that there was severe hostility between the police and the community
and that more black officers and supervisors were necessary to
improve the capabilities of the police force. Spreen stated that
the distrust between the black community and the largely white
police force "was probably my biggest problem to try to overcome",
Aug.8 at 87; and that the Department would have been more effective
during his administration if there had been more black supervisors,
Aug.8 at 76, and if the racial composition of the police force had
more closely reflected that of the population of Detroit, Aug.8
at 54-5, 90. Nichols testified that he was "keenly aware of the
community requirement" for increasing the number of blacks on the
police force, Aug.9 at 21-22; and that in light of the social
reality, if the operational requirements of the Department are to
be met, it is important to have the racial composition of the police
force reflect that of the community, Aug.11 at 29-30. Tannian
believed that the functioning of the police force had been impaired
by the prior discriminatory practices and that "a department which
more accurately reflects the pluralistic characteristics of our
City will be best equipped to carry out the primary responsibility
of the Department: effective, fair equal and professional law
enforcement", Sept. 7 at 9-10, 85-6, 89, Aug.26 at 19, Aug. 30
at 7. The present Police Chief, Hart, agreed with his prede
cessors that an increase in the proportion of black officers and
supervisors was necessary to improve law enforcement in Detroit,
135
Nov. 2 at 58-62.
Additionally, two reports issued by blue-ribbon citizen
panels reached the same conclusion: the representation of black
officers in the Department must be increased to further effective
167V
law enforcement in the Detroit area. Finally, the last three
Mayors of Detroit have recognized that without substantial
minority representation on the police force, the governing of
Detroit is handicapped. Mayor Cavanagh, in the wake of the 1967
riots, declared that it had finally become "obvious to me and
this entire community, that this proportion of Negro policemen
[in the Department] was clearly unacceptable", exhibit 106 at 17.
In July 1971, Mayor Gribbs instructed Ferrebee, the Commander
of the Department's Recruiting Division, to work toward a
department where the racial composition reflected that of the
City, Oct. 27 at 24-5. Mayor Young agreed with Mayor Cavanagh
that the racial proportion of the department was "unacceptable"
and with Mayor Gribbs that the Department's proportion of black
officers should more clearly reflect the proportion of black
residents of Detroit and supported the affirmative action plan
in order to effectively resolve the problem, Op. 17-18.
Detroit's need for more black police officers
and supervisors has been tragically demonstrated by the 1943
and 1967 race riots. Judge Edwards who was a member of the
Detroit City Council in 1943,graphically recounts the horror of
the 1943 race riot:
167 / Vickery Committee, exhibit 106, and Police Community
Relations Project Committee, exhibit 294 .
136
A river of hate runs through the dark
streets of the central areas in our cities.
Those who live and work there, whether
black or white, are washed continually by
its bitter waters.
Race prejudice is two-sided; and it is ex
plosive. There is no such thing as a con
trolled riot. Once racial violence runs
loose on city streets, fear and hatred
tend to turn human beings, white and black,
into savages. Usually, utterly innocent
people are the victims.
The Police on the Urban Frontier 1.
After the 1943 riots there were repeated warnings that
the hostility between the police and the black community com
pounded by the continued low number of black officers and super
visors in the Department could well result in another severe
riot. In their review of the 1943 riots, Justice Marshall and
Walter White concluded that "the trouble reached riot proportion
because the police of Detroit once again enforced the law under
an unequal hand. . . .", What Caused the Detroit Riot? 29. They
further commented that "one of the important factors in any race
riot is the local police", id., and recommended that the number
of black officers be increased and that "there be immediate
promotions of Negro officers in uniform to positions of respon
sibility. . . .", id. 17.
In testimony before the Kerner Commission, Judge•Edwards stated
that at the time of the 1943 race riot there was "open warfare
between Detroit Negroes and the Detroit Police Department" and
that in 1961 he had thought that "Detroit was the leading
candidate in the United States for a race riot", Report of the
National Advisory Commission on Civil Disorders 85. In 1965,
137
Judge Edwards write that "hostility between the Negro communities in
our large cities and the police departments is the major problem in
law enforcement in this decade. It has been a major cause of all
recent race riots", "Order and Civil Liberties: A Complex Role for
the Police", 64 Mich. L. Rev. 47, 54-5 (1965).
In a 1960 statement before the U.S. Commission on Civil Rights,
Arthur Johnson, the Executive Secretary of the NAACP1 s Detroit Branch,*
articulately explained the severity of the strained relations between
the black community and the Department. Hearings before the United
States Commission on Civil Rights held in Detroit Michigan, Dec.14-15,
1960 (GPO 1961) at 309-20. Mr. Johnson detailed the problem of police
brutality, the refusal by the Detroit police to be respectful towards
blacks, and the "very strong anti-Negro, anti-integration, and anti-civil
rights practices and attitudes which dominate the Detroit Police Depart-
168/
ment1 s image in the Negro Community", id.312. In 1963, the Detroit Urbar
League emphasized the need for reform, stressing the Department's failure
to recruit more black officers and its "failure to promote qualified
Negro personnel after years of satisfactory performance of duty", Revisec
Report on the Employment Practices of The Detroit Police Department
(October 1963) 8. Similarly, in 1966 the Michigan Civil Rights Commis
sion stressed the importance of increasing the number of black officers -
in the Department, Report on Investigation of Law Enforcement Claims
Against the Detroit Police Department (1966) 5:
The small number of Negro officers on
Department rolls is a major factor in
168/ see also Statements of Joynal Muthleb, a former officer in the
Department, id. 330-34; William C. Matney, Managing Editor, Michigan
Chronicle, id. 497-98, Victor J. Baum, Judge, Circuit Court, id.
429-33.
138
the continuing suspicion with which the
Negro community views the Department.
Special efforts must be made to recruit,
hire and promote Negro officers.
Unfortunately, the warnings repeated so often were not
adequately h.eeded; the 1967 Detroit race riots surpassed the
1943 riots in terms of loss of life, injury, and devastation.
Once again "the deep hostility between police and ghetto
[was] a primary cause of the disorders . . . in Detroit [and
other cities] . . . . " , Report of the National Advisory Commission
on Civil Disorders 299, see also 135, 144. As stated earlier
those responsible for law enforcement in Detroit, the mayors and
police chiefs, also perceived law enforcement problems caused by
the hostility between the police and the community and the
resulting need to recruit and promote black officers.
The President's Commission on Law Enforcement and Ad
ministration of Justice thoroughly reviewed the problem of law
enforcement in major cities and especially the relationship
between the police and minority groups, Task Force Report: The
Police (GPO 196 7)*The Commission determined that there was a
critical shortage of black police officers in most large cities,
that discrimination in the selection of blacks was widespread,
noting Detroit as a particularly bad example, id. 167-71, and
"that discrimination is practiced against minority group
officers, perhaps more in promotion than in recruitment," id. 172. More
over, the problem cf hostile relations between the police and
minority communities, in the Commission's view, "is as serious
as any problem the police has today," The President's Commission
139
on Law Enforcement, and Administration of Justice, The Challenge
of Crime in a Free Society (GPO 1967) at 99.
The practices of discrimination by police departments,
the gross-underrepresentation of blacks in police departments,
and the antagonism between police and the black community are
interrelated." In order to gain the general confidence and
acceptance of a community, personnel within a police department
should be representative of the community as a whole," Task
Force Report: The Police, supra at 167. ". . . [M]ore Negro
police officers, particularly as superior officers, are needed
to gain the confidence of the Negro community, " _id. 2 06, see
172; Report of the National Advisory Commission on Civil Disorders — ------- ------------- ----- --------------------------------
supra at 315-16. The Task Force stressed that due to past dis
crimination and the relations between the police and minority
169/ "Perhaps nothing will do more in the long run to give
Negroes confidence in the police than the presence of black
faces on the force." Edwards, The Police on the Urban
Frontier. 86.
Patrick V. Murphy, a former head of the police in
Detroit, Washington, D.C. and New York City agreed with Judge
Edwards in his testimony before the Kerner Commission. "I
think one of the serious problems facing the police in the Nation
today is the lack of adequate representation of Negroes in police
departments. I think the police have not recruited enough
Negroes in the past and are not recruiting enough of them today.
I think we would be less than honest if we didn't admit that
Negroes have been kept out of police departments in the past
for reasons of race discrimination, Report of the National
Advisory Commission on Civil Disorders, 316
140
communities, "promotion of officers from minority groups will
often require more than nondiscrimination", Task Force Report:
The Police, 173. In approving an affirmative action- remedy for a
police department, the Second Circuit emphasized that:
. . . this is not a private employer and
not simply an exercise in providing
minorities with equal opportunity employ
ment. This is a police department and
the visibility of the Black patrolman is
a decided advantage for all segments of
the public at a time when racial divisiveness
is plaguing law enforcement.
Bridgeport Guardians, Inc., v. Bridgeport Civil Service
Commission, supra at 1341;see also NAACP v. Allen, supra at 621;
Arnold v. Ballard, supra 390 F. Supp. at 736.
Black officers may be especially effective in improving
police relations with the black community and in assisting the
police department and the white officers to better understand
the problems in the community, Task Force Report: The Police,
167; 173-74; Edwards, The Police on the Urban Frontier, 35.
Bannon, the Executive Deputy Chief of the Department and a
Doctor of Philosophy in sociology, testified that generally,
black officers in the Detroit Police Department have greater
effectiveness and credibility with the black community than do
white officers, Nov. 4 at 29-30, 50-1; and that an increase in
YIS' The Second Circuit refused to approve a quota remedy
for promotion because there was neither a finding that the
promotional system was discriminatory nor that the promotional
examination was not job-related.
141
the number and visibility of black officers and supervisors is
necessary to improve the relationship between the Department
and the black community, id. at 18, 29-30. Also Bannon tes
tified regarding a survey he had conducted, which examined
the effectiveness and efficiency of black officers
in tbs black community, id. at 18-2G; James D. Bannon
and Marie G. Wilt, "Black Policemen: A
Study in Self Images," 1 Journal of Police Science and Adminis
tration 1, 22 (Northwestern Law School,1973):
Another factor which has influenced the
view of police held by many blacks has
been the differential treatment they
have observed as well as experienced.
As many officers pointed out, police
traditionally have felt that they have
a different service to perform in black
communities than that which is performed
in white communities.
171/ 112_J
Both the Kerner Commission and the President's Commission
referred to substantial evidence of racial bias on behalf of
white officers. The integration of the police forces and
especially the promotion of black officers will help to reduce
the stereotyping of minority groups by white officers and lessen
racial prejudice, id.; see also Edwards, The Police on the Urban
173/
Frontier, 27; Regoli and Jerome, "The Recruitment and Promotion
171/ Report of the National Advisory Commission on Civil Dis
orders 305-6. The Commission refers to a study which showed
that "[i]n predominantly Negro precincts, over three-fourths of
the white policemen expressed prejudice or highly prejudiced
attitudes towards Negroes."
172/ Task Force Report: The Police, 164, 172.
173/ "Today, the police in most of America's great cities under
stand that they are the public's servants, charged with keeping
the law; but they do not always carry this understanding into the
Negro areas. There, all too often, police tend to act like an
army of occupation. Many police officers see the citizen with a
black face as a potential enemy."
142
of Minority Groups into an Established Institution: The Police",
3 Journal of Police Science and Administration 410, 413 (1975).
League of United Latin American Citizens v. City of Santa Ana.
supra at 896-97; Officers for Justice, NAACP v. Civil Service
Commission of San Francisco, supra at 1330-31. Lawrence Doss,
174/
President of New Detroit, emphatically testified that the
affirmative action program and the promotions of black officers
were,as the Commissions and commentators predicted, "an ex
tremely positive factor" in improving the relations between the
police and the community, Nov. 23 at 15-17; see also Nov.2 at 58-62
(Hart).
Finally, Police Chiefs Tannian and Hart and Executive
Deputy Chief Bannon testified that an adequate number of black
officers and supervisors was essential to cover certain tactical17j/
situations or to perform certain jobs or duties: surveillance
17/ 177 / 178/
work; investigations; and monitoring gang activity. Most impor-
174 / For a description of New Detroit, see supra 21 n. 40.
175/ Bannon, Nov. 4 at 18, 22. Bannon gave as an example
the patrolling of a high school football game where intelligence
reports indicated that there might be violence.
176/ Tannian, Aug. 26 at 12.
177/ Tannian, Sept. 7 at 95-6; Hart, Nov. 2 at 42-4, 55-6, Hart.
^Z®/ Hart, Nov. 2 at 65-6. Hart testified that the amount of
gang activity had decreased as a result of the promotions and
assignment of more black sergeants, id.
143
tantly, black supervisors may be of critical importance in
easing tensions during a potentially dangerous racial con
frontation, Nov. 4 at 18-22 (Bannon); see Aug. 10 at 61 (Nichols);
Report of the National Advisory Commission on Civil Disorders 315;
Task Force Report; The Police 172„
144
V. THE AFFIRMATIVE ACION PLAN ADOPTED
BY THE CITY WAS REASONABLY DESIGNED
AND PROPERLY SUPERVISED.
In light of the history of prior discrimination, the
unjustified adverse effect of the current promotional model, and
the operational requirements of the Department, the Board of
Police Commissioners properly ordered the use of race-conscious
179/
promotion practices for several sets of promotions. The Board
directed that, subject to the availability of qualified black
officers, approximately equal numbers of black and white officers
should be promoted to the rank of sergeant.
The plaintiffs did not argue and the lower court did
not hold that this ratio was excessive. The plan accorded pro
motional opportunities to white officers as well as blacks, and
it did not require the promotion of the untrained or the unquali
fied, St. 34-40. The decision to adopt this ratio took into
account "the overall objective [of] chang [ing] the nature of the
Department" and balanced the considerations of achieving this
objective within a reasonable time while minimizing any disrup
tion in the Department, St. 39 (Littlejohn). The ratio is similar
to those instituted by federal courts and to those imposed pursuant
180/
to administrative regulations. Furthermore, although by the time
of trial the affirmative action plan had increased the proportion
of black sergeants to approximately 15%, exhibit 264, it had not
resulted in the attainment of a proportion of black sergeants
17*$/ The Board specifically must approve each set of promotions
made out of rank order, St. 34 N.65.
180/ See cases cited, supra 82-84.
145
181J
comparable to the proportion of black personnel in the Department,
182_/
or to the proportion of blacks in the population of Detroit,
183/
the labor force of Detroit, or even the labor force of the 184/
Detroit SMSA. Accordingly, by any standard, neither the ratio
used nor the goal attained is excessive.
In addition, the method by which the plan was adopted
and supervised helped to insure that it was reasonable and properly
related to its purposes, see Bakke, supra, 46 U.S.L.W. at 4906-07.
(opinion of Powell, J.). The Board of Police Commissioners was
created by City Charter to review the practices of the Police
Department, St. 34. The Board has the specific authority to
approve promotions, including the authority to approve promotions
out of rank order from the eligibility list, exhibit 276 §7-1114.
The Board considered the institution of the affirmative action
181/ in 1977, blacks constituted approximately 32% of the personnel
in the Department, exhibit 272.
182/ In i977/ blacks constituted approximately 55% of the popula
tion of Detroit, exhibit 272. Four justices in Bakke, supra,
referred to the minority population of the state, not to the pro
portion of minority college graduates, as a benchmark for determin
ing the constitutionality of an affirmative action plan for medical
school admissions, 46 U.S.L.W. at 4924 n.58 (opinion of Brennan,
White, Marshall, Blackmun, JJ.)
183/ In 1973, blacks constituted 36% of the labor force of Detroit,
exhibit 242a; the black proportion of the labor force had certainly
increased by 1977.
18&/ In 1973, blacks constituted 18.6% of the labor force of the
Detroit SMSA, Op. 21. The defendants reject the SMSA as the proper
area for determining the composition of the labor force for hiring,
supra69-74;moreover,the labor force of the SMSA is particularly irrel
evant for determining the composition of the qualified pool of
persons available for promotion to sergeant when all the promotions
are made from the rank of police officer within the work force of
the Department.
146
promotions at its three initial meetings in July 1974, St. 35
39. It considered written and oral presentations by the De
partment concerning prior discriminatory practices, current
barriers to the promotion of blacks, and the disproportionate
ly low number of black officers and supervisors which had
resulted from those practices. The Board also considered the
operational difficulties facing the Department because of the
lack of black supervisors and the Department's history of dis
crimination, St. 36-37. Finally, the Board considered the
applicable legal requirements and received legal advice, St.
185/
37. The question of whether to adopt the plan was discussed
in public meetings at which proponents and opponents of the
plan, including representatives of the DPOA, made presen
tations to the Board, St.38.After it had instituted the plan,
the Board closely supervised its operation by requiring the
Department to make periodic reports concerning the continuing
need for the plan, by monitoring the legal requirements, and
by reviewing the operation of the plan, St. 39-40.
185/ The constitutional and statutory standards described
in Section II, A, permitted, even required, the institution
of the affirmative action plan. Moreover, the Board was
specifically required by LEAA to consider whether an affirma
tive action program was appropriate, supra 93-94. Finally,
the legal necessity to consider the need for an appropriate
affirmative action plan for minorities was emphatically
brought to the Board's attention by the judicial imposition
of an affirmative action plan for women, Schaefer v. Tannian,
supra, St. 37 n. 69.
147
CONCLUSION
WHEREFORE, for the foregoing reasons the appellants
respectfully submit that the Court should reverse the opinion
of the lower court.
Respectfully submitted,
BARRY L. GOLDSTEIN
806 15th Street, N.W., Suite 940
Washington, D.C. 20006
JACK GREENBERG
JAMES M. NABRIT, III
O. PETER SHERWOOD
LOWELL JOHNSTON
PATRICK 0. PATTERSON
10 Columbus Circle
Suite 2030
New York, New York 10019
ROGER E. CRAIG
ANNA DIGGS-TAYLOR
NANCY McCAUGHAN-BLOUNT
JAMES ZEMAN
DENISE PAGE HOOD
Law Department, City of
Detroit
1010 City-County Building
Detroit, Michigan 48826
JAMES R. ANDARY
2440 Buhl Building
Detroit, Michigan 48826
Attorneys for Appellants
148
APPENDIX A
THE REMARKS OF THE DISTRICT COURT CONCERNING
THE DEPARTMENT'S HISTORICAL EMPLOYMENT PRACTICES
AND THE DEPARTMENT'S OPERATIONAL REQUIREMENTS
A number of remarks made by the District Court during the
trial of this case suggest that the Court's ability to fairly evaluate
the evidence submitted by the parties was impaired by the Court's
reliance on its personal views regarding the needs of law enforcement
agencies and the equal employment opportunity record at the Department.
The Court's interjection of its personal views on these two subjects
is particularly troubling inasmuch as the two issues — Department's
prior discrimination and its operational needs — go to the very
heart of the City's defense of the affirmative action plan.
1. During the testimony of former Police Chief Tannian
regarding the discriminatory hiring practices dating back to 1944,
the trial judge interrupted to ask whether Tannian was claiming
that these practices continued even under the administration of "Mr.
1/
George Edwards." When Tannian answered in the affirmative, the Court
1 / Judge Edwards himself has on numerous occasions acknowledged
and condemned the discrimination practiced by the Detroit Police
Department. See supra 12, 17, 137.
la
responded, Sept. 12 at 13-14:
That's news to me.
As I recall, there were signs, ads
and everything else being run in the papers
requesting blacks to apply for Police Department
jobs so that there would be proper and adequate
officers to become members of the Detroit Police
Department, in which I agree.
Am I not right?
2. The Court continued to give weight to its own views, rather
than relying on the evidence presented by the parties. Shortly after
making the comment set out above, the trial judge asked Tannian whether
it was true that blacks were reluctant to bee one police officers.
Tannian stated his belief that the low number of black applicants
hired caused the black community to doubt the sincerity of the Depart
ment's recruiting advertisements. The Court then remarked, id. at
15-16:
Having been around this town much longer
than the witness I am getting somewhat
confused because apparently I haven't
gotten around very much, if what he says
is true.
Questioned by counsel for the City, the Court explained that it was
referring to "[a]11 I saw for a great deal of time. . . _id. at 16.
In a similar vein, the Court insisted: "Don't forget I was the
United States Attorney long before [Tannian] was Commissioner, don't
forget that," id. at 19.
2a
3. The strength of the trial judge's personal conviction
that the record of the Department was beyond reproach was summed up
by his comment that " [w]e had a beautiful police department at one
time, don't ever say we didn't," _id. at 19.
4. The Court's strongly held view that the past performance
of the Department was "beautiful," and its corresponding disbelief in
the necessity for affirmative action were further indicated by the
Court's treatment of Avern Cohn, a member of the Board of Police
Commissioners. The Court asked Cohn whether there had been any doubt
in his mind as to the propriety of the affirmative action program.
Cohn described for the Court the process he had gone through to
satisfy himself that the Board was acting properly in approving
the affirmative action promotions. The Court responded to this
answer by remarking, "Thank you, Judge", Nov. 11 at 26. Later in the
trial, the Court referred to Cohn as "'Know all, see all' Commissioner
Cohn." Dec. 7 at 31.
5. The Court's personal views regarding the operational
needs of law enforcement agencies may have predisposed the Court to
reject the Department's contention that a substantial increase in black
representation in the Department was essential in order to provide
fair and effective law enforcement. In response to Tannian's testimony
that it would be almost impossible for white officers to conduct
surveillance activities "in the heart of the black communities," the
3a
eourt queried: "Is that why the FBI has been so successful?"
Sept. 7 at 89. The Court's suggestion that the predominantly
white composition of the FBI had not impaired that agency's
effectiveness was not only an improper reliance on the court's
own personal views, it was an opinion not shared by the current
Director of the FBI. Speaking before the National Association of
Black Law Enforcement Executives in June of 1978, FBI Director
William H. Webster stated:
We have suffered in the past from a lack
of minority candidates for the Special Agent
position. Although 16% of our total employees
are minority members, there are still not nearly
enough Special Agents to be truly representative
and to enable us fully to perform our designated
tasks.
When I came on board I recognized that this
inadequacy of numbers (there were only 144 Black
Special Agents out of nearly 8,000) represented
a real problem to us.
Remarks by William H. Webster, Director, Federal Bureau of
Investigation, Before the National Organization of Black Law
Enforcement Executives, St. Louis, Missouri, June 23, 1978, at 7.
4a
APPENDIX B
THE HIRING RATIO OF BLACKS AND WHITES COMPARED TO
POPULATION OF DETROIT AND THE LABOR MARKET FOR 1944-1967
COLUMN
Year
I
Black
Appts.
to DPD
II
White
Appts.
to DPD
III
1/
Total
IV
No. of Expected
Appts. of Blacks
(% of Blacks in
Labor Market)?/
V
No. of Expected
Appts. of Blacks
(% of Blacks in
Labor Market)?/
VI
Census Reports
on % of Blacks
in Detroit
1940-19701/
1940
1944 5 135 140 10 (7.0) 12 (8.6) 9.2%
1945 7 294 301 22 (7.4) 29 (9.5)
1946 4 300 304 24 (7.8) 32 (10.5)
1947 17 560 5 77 48 (8.2) 65 (11.4)
1948 9 2 74 288 25 (8.6) 36 (12.4)
1949 7 407 414 37 (9.0) 55 (13.3)
1950 3 310 313 39 (9.4) 45 (14.3) 16%
1951 28 240 268 26 (9.8) 41 (15.2)
1952 27 301 328 33 (10.2) 53 (16.2)
1953 10 179 189 20 (10.6) 32 (17.1)
1954 7 362 369 41 (11.0) 67 (18.1)
1955 11 316 327 37 (11.4) 62 (19.0)
1956 11 176 187 22 (11.8) 37 (19.9)
1957 9 149 158 19 (12.2) 33 (20.9)
1958 3 11 14 2 (12.6) 3 (21.8)
1959 7 109 116 15 (13.0) 26 (22.8)
1960 3 87 90 12 (13.4) 21 (23.7) 29%
1961 7 185 192 26 (13.6) 47 (24.7)
1962 10 268 2 78 39 (13.9) 71 (25.6)
1963 9 170 179 25 (14.2) 48 (26.6)
1964 6 135 141 20 (14.4) 39 (27.5)
1965 16 155 171 25 (14.6) 49 (28.5)
1966 38 167 205 31 (14.9) 70 (29.4)
1967 71 2 52 323 49 (15.2) 98 (30.4)
1970 43.7%
TOTALS 325 5,547 5,872 645 1,061
1/ Exhibit 208 (for years 1944-1960) ; Exhibit 99 (for years 1961-1967).
2/ Exhibit 242, Table 2a. This exhibit was prepared by Charles Guenther, who
testified as an expert for the plaintiffs. Mr. Guenther testified as to the
^proper labor market for comparison with the actual racial composition of the
Detroit Police Department. In his opinion, the proper labor market consists of
those persons who reside in the Detroit Standard Metropolitan Statistical Area
*who are less than 34 years of age and who have a high school diploma. The City
of Detroit disagrees with this analysis, see pp.69-74, supra. But in any case,
Guenther's own analysis indicates that there was a substantial disparity
between the number of blacks actually hired and the number of blacks that
he would expect to be hired from the labor market.
3/ Exhibit 242, Table la. This exhibit was also prepared by the plaintiffs'
expert, Charles Guenther. These figures are based on a labor market analysis
which the City of Detroit maintains is more appropriate for purposes of com
parison with actual hires than the one used in Column IV. This labor market
is based on those persons who reside in Detroit, who are more than 25 years
of age and who have completed high school.
4/ Exhibit 27.
lb
APPENDIX C
RESOLUTION APPROVED: JULY 31, 1974
AFFIRMATIVE ACTION POLICY BOARD OF POLICE COMMISSIONERS
It has been determined that the Detroit Police Depart
ment has submitted facts and statistics that would indicate
that de facto discrimination exists in the hiring of Blacks and
other minority groups as police officers contrary to the U.S.
and Michigan Constitution, the Charter of the City of Detroit,
and the Civil Rights Acts.
It has also been determined from those facts that de
facto discrimination exists in the promoting of Blacks and other
minority groups to supervisory positions in the Detroit Police
Department contrary to U.S. and Michigan Constitutions, the
Charter of the City of Detroit, and the Civil Rights Acts.
It is necessary because of past and present discrimina
tion in the hiring and promotional policies of the Detroit
Police Department that this Board establish an Affirmative
Action policy that will guarantee to every individual who is now
a police officer or who intends to pursue a career as a police
officer, a policy of equality in hiring and in promotion and
most importantly, an Affirmative Action Program of enforcement
to support that policy.
The U.S. Constitution, the Michigan Constitution, the
Charter of the City of Detroit, the Civil Rights Acts, and the
overwhelming moral principle of equality,compels this Board to
take Affirmative Action to guarantee to all persons equality in
1 —c
their promotional and hiring rights.
THEREFORE, BE IT RESOLVED, that the Chief of Police is
instructed to take immediate affirmative action to eliminate any
discriminatory hiring practices that systematically exclude
minority groups from being appointed as Detroit Police Officers,
and
BE IT FURTHER RESOLVED, that the Chief of Police take
Affirmative Action to promote minorities from the existing
promotional lists, and
BE IT FURTHER RESOLVED, that the Chief of Police establish
criteria, with weighted component parts, used to establish
promotional lists that are non discriminatory with respect to
minority groups, and
BE IT FURTHER RESOLVED, that the Chief of Police shall
regularly report to the Board of Commissioners on the effective
ness of this Affirmative Action policy in order that this Board
may re-evaluate and, if necessary, order additional action that
may have to be taken.
Source: Exhibit 240
2-c
CERTIFICATE OF SERVICE
I hereby certify that on the 24th day of July, 1978, a
copy of the foregoing Brief for Appellants were served on each
attorney for plaintiffs-appellants by United States mail, postage
prepaid, addressed to:
Donald J. Mooney, Jr.,Esq.
Paxton & Seasongood
1700 Central Trust Tower
Cincinnati, Ohio 45202
Walter S. Nussbaum, Esq.
20833 Southfield Road
Suite 100
Southfield, Michigan 48075
John F. Brady, Esq.
Riley and Roumell
7th Floor, Ford Building
Detroit, Michigan 48226
BARRY L. GOLDSTEIN
10 Columbus Circle
Suite 2030
New York, New York 10019
Attorney for Befendants-Appellants