Detroit Police Officers Association v. Young Supplemental Brief for Appellees Coleman A. Young

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
No. 85-1120

DETROIT POLICE OFFICERS ASSOCIATION, et al.
Plaintiffs-Appellants, 

COLEMAN A. YOUNG, et al.,
Defendants-Appellees.

On Appeal From The United States District Court 
For the Eastern District of Michigan

SUPPLEMENTAL BRIEF FOR APPELLEES COLEMAN A. YOUNG, et al.

JAMES R. ANDARY 
1105 For Building 
Detroit, Michigan 48226
J. LeVONNE CHAMBERS
99 Hudson Street
New York, New York 10013

BARRY L. GOLDSTEIN 
Suite 940806 15th Street, N.W. 
Washington, D.C. 20005 
(202) 638-3278
DONALD PAILEN 
FRANK JACKSON 
1010 City-County Building 
Detroit, Michigan 48226 
(313) 224-4559
Counsel for defendants 
appellees, Coleman A. Young 
et al.



TABLE OF CONTENTS

Table of Authorities
Page
ii

A. Introduction and Summary 1
B. Without Dissent the Supreme Court

Ruled that a Local Governmental 
Body, as Did the Detroit Police 
Department, May Constitutionally 
Institute a Race-Conscious 
Affirmative Action Plan in Order to Remedy the Effects of Prior
Discrimination. 4

C. The Use of the One-for-one Imple­
menting Ratio and Fifty Percent 
End Goal in the Detroit Police 
Department's Affirmative Action
Plan Is Constitutional. 9

D. Conclusion. 15

i



TABLE OF AUTHORITIES
Cases:
Baker v. City of Detroit, 483 F. Supp. 919 

(E.D. Mich. 1979), 483 F. Supp. 930 (E.D. 
Mich. 1979), 504 F. Supp. 841 (E.D. Mich. 
1981) .

Bratton v. City of Detroit, 704 F.2d 878 
(6th Cir. 1983), modified, 712 F.2d 222 (1983), cert. denied, 104 S. Ct. 703 (1984).

DP0A v. Young, 608 F.2d 671 (6th Cir. 1979), 
cert. denied. 452 U.S. 938 (1981).

Fullilove v. Klutznick, 448 U.S. 448 (1980).
Geier v. Alexander, Slip Opinion No. 84-6055 

(6th Cir. Sept. 5, 1986).
Local 93, Firefighters v. Cleveland,

54 U.W.L.W. 5005 (July 2, 1986).
Local 28 of the Sheet Metal Workers
Association v. EEOC, 54 U.S.L.W. 4984 
(July 2, 1986) .

N.A.A.C.P. v. Detroit Police Officers 
Association, 591 F.2d 1194 (E.D.MI. 1984), appeal pending Nos. 84-1936, 
85-1026, 85-1927 and 85-1041 (6th Cir.).

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

United Steekworkers of America v. Weber,
443 U.S. 193 (1979) .

Wygant v. Jackson Bd. of Education,
54 U.S.L.W. 4479 (May 19, 1986).

- ii -

Pages

passim

passim

passim
9

4, 13

3 , 6

passim

11

5, 9 

9

passim



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 
No. 85-1120

DETROIT POLICE OFFICERS ASSOCIATION, et al.
Plaintiffs-Appellees, 

v .

COLEMAN A. YOUNG, et al.,
Defendants-Appellees.

On Appeal From The United States District Court 
For The Eastern District of Michigan

SUPPLEMENTAL BRIEF FOR APPELLEES COLEMAN A. YOUNG, et al.

A • Introduction and Summary.
This Court has twice reviewed and approved the twelve-year 

old affirmative action plan for the promotion of black police 
officers in the Detroit Police Department. In 1979 the Court 
determined that the affirmative action promotions of black police 
officers to sergeant were lawful under Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. 2000e et seq., and other federal
and state laws but remanded the case to the district court in 
order to determine whether the plan met constitutional standards. 
DPOA v. Young, 608 F.2d 671 (1979), cert. denied, 452 U.S. 938
(1981) . In 1981 the Court ruled that the affirmative action
promotions of black police sergeants to lieutenant were lawful



and constitutional.1 Bratton v ._City of Detroit, 704 F.2d 878
(1983), modified, 712 F.2d 222 (1983), cert. denied, 104 S. Ct.
703 (1984).

On remand, as directed by this Court, Judge Freeman 
considered two separate issues: whether the Detroit Police
Department could constitutionally institute race-conscious 
affirmative action promotions2 and whether the Department could 
constitutionally operate the program with the one-for-one 
implementing ratio and the designated termination point. 608 
F .2d at 697.

After briefing and oral argument Judge Freeman granted 
judgment for the Department "because the affirmative action 
program of the Detroit Police Department has been upheld [by the 
Sixth Circuit and a District Court] against the challenges raised 
by plaintiffs herein...." Op. 1. The plaintiffs' appeal from 
the Judgment was fully briefed and scheduled for oral argument on 
April 22, 1986. One week prior to the argument the Detroit
Police Officers Association and the police officers who are 
challenging the plan requested a stay of the appellate 
proceedings pending Supreme Court decisions in three affirmative 
action cases.

The Court remanded one particular issue —  whether the 
50% end goal was appropriate in light of the 1980 census figures 
that Detroit has a black population of 63% -- which is not 
pertinent to this appeal. See Brief for Appellees Coleman A. Young, et al. at 35-36 n. 23.

The Sixth Circuit directed the lower court to consider 
whether race-conscious affirmative action was justified because 
"it has been established that the Department engaged in 
intentional discrimination against blacks, and if not, whether 
the affirmative action plan is justified under the alternative 
claim of operational needs." 608 F.2d at 697.

2



After the issuance of these decisions, Wyqant v. Jackson Bd. 
of Education, 54 U.S.L.W. 4479 (May 19, 1986), Local 28 of the 
Sheet Metal Workers Association v. EEOC, 54 U.S.L.W. 4984 (July 
2, 1986), and Local 93, Firefighters v. Cleveland, 54 U.S.L.W. 
5005 (July 2, 1986), the Sixth Circuit provided the parties with 
the opportunity to file a supplementary brief addressing the 
effect of the Supreme Court's decisions on this appeal.

The Supreme Court's decisions support the prior decision of 
this Court in Bratton v. City of Detroit as well as Judge 
Freeman's decision in DPOA v. Young that the Detroit Police 
Department's affirmative action plan is constitutional. All of 
the Supreme Court Justices have determined that if there is a 
sound basis for concluding that a public employer had engaged in 
prior discrimination then the public employer may take race­
conscious remedial affirmative action. See section B, supra. In 
this case, the courts and the Board of Police Commissioners have 
"f ound a pervasive history of racial discrimination in the 
Detroit Police Department." (Emphasis added), Op. at 5. 
Accordingly, the justification for the Police Department's 
affirmative action promotional plan -- express findings of 
pervasive discrimination —  exceeds the Supreme Court's 
constitutional standard for the voluntary implementation of an 
affirmative action plan by a local government. Section B.

Furthermore, a majority of the Supreme Court did not change 
the constitutional standard relied upon by this Court in Bratton 
and applied by Judge Freeman in DPOA for evaluating whether the 
affirmative action plan was sufficiently tailored to its 
permissible purposes. Section C, supra. However, even if the

3



Wygant and Local 28 Sheet Metal Workers decisions are read as
establishing a Supreme Court majority rejecting this Court's 
reasonable or substantial relationship standard and substituting 
Justice Powell's "narrowly tailored" standard, Detroit's 
affirmative action plan still passes. See section C, infra.

Thus, this Court should affirm Judge Freeman's Judgment 
approving the affirmative action plan and bring this twelve-year 
old litigation to an end.
B. Without Dissent, the Supreme Court Ruled that a Local 

Governmental Body, as Did the Detroit Police Department, May 
Constitutionally Institute a Race-Conscious Affirmative 
Action Plan in order to Remedy the Effects of Prior 
Discrimination.
The Department of Justice squarely raised before the Supreme 

Court the central constitutional issue in the affirmative action 
debate. May a governmental employer implement a race-conscious 
affirmative action plan which provides a benefit to an individual 
without first proving that the individual was a victim of racial 
discrimination? The Department argued that the Court should 
answer no. The Supreme Court unequivocally rejected the position 
of the Department of Justice. See, Geier v. Alexander, No. 84- 
6055 (6th Cir. Sept. 5, 1986), Slip Opinion at 8.

Significantly, Justice Powell, joined by the Court's two 
most conservative members, Chief Justice Burger and Justice 
Rehnquist, concluded in Wygant "that in order to remedy the 
effects of prior discrimination, it may be necessary to take race 
into account. As part of this Nation's dedication to eradicating 
racial discrimination, innocent persons may be called upon to 
bear some of the burden of the remedy." 54 U.S.L.W. at 4483. As 
Justice O'Connor summarized:

4



The Court is in agreement that, whatever the 
formulation employed, remedying past or 
present racial discrimination by a state 
actor is a sufficiently weighty state 
interest to warrant the remedial use of a 
carefully constructed affirmative action 
program. This remedial purpose need not be 
accompanied by contemporaneous findings of 
actual discrimination to be accepted as 
legitimate as long as the public actor has a 
firm basis for believing that remedial action 
is required.

Wyqant, 54 U.S.L.W. at 4484-85.
In Sheet Metal Workers five Justices ruled that the 29.23% 

membership goal which the lower court imposed upon the union was 
constitutional, 54 U.S.L.W. at 4999-5000 (Justice Brennan, joined 
by Marshall, Blackmun, and Stevens, JJ.) and id. at 5001-02 
(Justice Powell). Moreover, not a single dissenter determined 
that the membership goal was unconstitutional. Rather, the four 
dissenting Justices concluded that the membership goal, which had 
to be met by August 31, 1987 even though minorities currently
comprised less than 16% of the membership, violated Title VII. 
54 U.S.L.W. at 5004-05 (Justice O'Connor), id. at 5005 
(Justice White), and id. at 5005 (Justice Rehnquist joined by 
Burger, C .J .).3

3 Justice White "generally agree[d]" with Justice 
Brennan's description of Title VII law as approving race­
conscious affirmative action, 54 U.S.L.W. at 5005, see also 
University of California Regents v. Bakke, 438 U.S. 265, 353 
(1975) (joint opinion of Brennan, White, Marshall, & Blackmun), 
but rejected the particular remedy in Sheet Metal Workers because 
it was "not just a minority membership goal but also a strict 
racial quota [which] involved in this case ... for all practical 
purposes ... a judicial insistence that the union comply even if 
it required the displacement of nonminority workers by members of 
the plaintiff class," 54 U.S.L.W. at 5005. Similarly, Justice 
O'Connor dissented from the approval of the membership goal 
because "the timetable with which petitioners were ordered to 
comply was quite unrealistic and clearly could not be met by 
good-faith efforts...." id. at 5004.

5



In Wygant and Sheet Metal Workers,4 the Court concluded not
only that race-conscious affirmative action was permissible but 
also that evidence of prior or current discrimination may justify 
a local government's adoption of an affirmative action plan. The 
Detroit plan is premised upon findings of pervasive racial 
discrimination by the Detroit Police Department. In December 
1979, Chief William L. Hart, Chief of Police for the City of 
Detroit, requested the Board of Police Commissioners to continue 
"the affirmative action plan ... as a temporary program until an 
end goal was attained." Hart Affidavit, submitted in support of 
the Motion for Summary Judgment, Appendix Volume XVI at 90c.4 5 In 
particular, Chief Hart concluded that prior to the affirmative 
action plan the "Detroit Police Department was experiencing 
severe operational difficulties stemming from a long and tragic 
history of racial discrimination" and referred to the Board's 
1974 decision "that there had been unlawful racial discrimination

Only Justice Rehnquist, joined by Chief Justice Burger, 
stated that § 706(g) of Title VII does not permit a court to 
grant affirmative relief which might benefit persons who were not 
the proven victims of discrimination. 54 U.S.L.W. at 5005. 
However, as demonstrated by his joining Justice Powell's opinion 
in Wygant and his expressly limited dissent in Sheet Metal 
Workers, neither Justice Rehnquist nor any other Justice applied 
this narrow reading of affirmative relief to the Fourteenth Amendment.

4 There was no constitutional issue before the Court in 
Local Number 93, Firefighters v. Cleveland, supra. On the only 
issue presented, a six-member majority ruled that § 706(g) of 
Title VII, 42 U.S.C. § 2000e-6(g), "does not restrict the ability 
of employers or unions to enter into voluntary agreements 
providing for race-conscious remedial action." 54 U.S.L.W. at 5010 .

° Counsel for the defendants objected to the inclusion of 
the materials from the first appeal in the appendix. It is the 
defendants' view that volumes I through XV of the Appendix are 
unnecessary. Only Volume XVI includes material pertinent to the 
motion for summary judgment and the issue before this Court.

6



discrimination in the hiring and promotional practices of the 
Detroit Police Department." Id. at 97c.

The findings by the Chief of Police and the Board of Police 
Commissioners were confirmed by the District Court, the Detroit 
Police Department engaged in "harsh, intentional past 
discrimination," Baker v. City of Detroit, 483 F. Supp. at 994, 
and by this Court, "the affirmative action plan adopted for the 
Detroit Police Department is a valid and permissible remedy for 
the clearly identifiable past discriminatory practices in that 
department," Bratton v. City of Detroit, 704 F.2d at 882.
Judge Freeman relied upon the Bratton findings of "a pervasive 
history of racial discrimination in the Detroit Police 
Department" in order to conclude that the plaintiffs are 
"collaterally estopped from relitigating the issue of prior 
discrimination" in this case. Op. 5, App. Vol. XVI at 344c. The 
findings of "pervasive discrimination" by the courts and the 
local governmental body instituting the plan exceed the Supreme 
Court's constitutional requirements for the use of a race­
conscious plan.

A local government does not need to find that there was 
racial discrimination. Rather, a "public employer must ensure 
that ... it has convincing evidence that remedial action is 
warranted. That is, it must have sufficient evidence to justify 
the conclusion that there has been prior discrimination." 
Wyqant, 54 U.S.L.W. at 4482 (Justice Powell, joined by Burger,
C.J., and Rehnquist, J.). Justice O'Connor explained that "[t]he 
imposition of a [constitutional] requirement that public 
employers make findings that they have engaged in illegal

7



discrimination before they engage in affirmative action programs 
would severely undermine public employers' incentive to meet 
voluntarily their civil rights obligations [and] produce the 
anomalous result that what private employers may voluntarily do 
to correct apparent violations of Title VII ... public employers 
are constitutionally forbidden to do to correct their statutory 
and constitutional transgressions." Wyqant, 54 U.S.L.W. at 4486. 
Justice Marshall, joined by Justices Brennan and Blackmun, 
expressly agrees with these conclusions reached by Justices 
Powell and O'Connor, and summarizes as follows: "[t]he Court is 
correct to recognize . . . that formal findings of past 
discrimination are not a necessary predicate to the adoption of 
affirmative-action policies, and that the scope of such policies 
need not be limited to remedying specific instances of 
identifiable discrimination." ^d. at 4490.

As Justice O'Connor concludes, "demonstrable evidence of a 
[statistical] disparity" between minority employees and the 
available pool of minority employees "would lend a compelling 
basis for a competent authority ... to conclude that 
implementation of a voluntary affirmative is appropriate to 
remedy apparent prior employment discrimination." (Emphasis 
added), Wyqant , 54 U.S.L.W. at 4486; see also, id. at 4481 
(Justice Powell, joined by Burger, C.J., and Rehnquist, J.) In 
DPOA v. Young this Court directed the lower court to determine 
"whether it has been established that the Department engaged in 
intentional discrimination against blacks...." (Emphasis added) 
608 F . 2d at 697. Relying upon the extensive findings of 
intentional discrimination in Baker - Bratton, Judge Freeman

8



ruled that there was a "pervasive history' of discrimination and 
that a race-conscious program was constitutionally justified. 
Accordingly, Detroit's plan passed a stricter standard than 
established by the Supreme Court in Wygant which does not require 
f i nd inqs of racial discrimination in order for a court to 
determine that an affirmative action is permissible.
C . The Use of the One-for-One Implementing Ratio and Fifty

Percent End Goal in the Detroit Police Department's
Affirmative Action Plan Is Constitutional.
Since the findings of discrimination establish the 

legitimacy of a race-conscious program, the issue turns to 
whether the one-for-one implementing ratio and fifty percent end 
goal are constitutional. In Bratton-Baker the District Court and 
this Court ruled that the implementing ratio and the end goal are 
constitutional and on the basis of these opinions Judge Freeman 
concluded that the affirmative action plan for the promotion of 
police officers to sergeant is constitutional. Op. at 15-16, 
App, Vol. XVI at 354c-355c.

The recent Supreme Court decisions did not change the 
standard for evaluating the constitutionality of the application 
of an affirmative action plan. In DPOA v. Young this Court 
concluded that there is "no such clear authority in dealing with 
the constitutional issues as rUnited Steelworkers of America v.] 
Weber [,443 U.S. 193 (1979)] supplies with respect to Title VII" 
and "that the opinion of Justice Brennan, White, Marshall, and 
Blackmun in Regents of the University of California v. Bakke, 438 
U.S. 265, 324 (1978), offers the most reasonable guidance," 608
F . 2d at 694. In Bratton this Court noted that Fullilove v. 
Klutzni.ck, 448 U.S. 448 (1980), which "is a plurality decision,"

9



did not require the Court to alter its determination "that the 
Brennan-White-Marshall-Blackmun opinion in Bakke offered the most 
reasonable guidance for a resolution of these constitutional 
issues." (Footnotes omitted), 704 F.2d at 885,

The decisions in Sheet Metal Workers and Wyqant like 
Fullilove did not include a majority or even consensus view on 
the constitutional standard which should be applied. Thus, these 
opinions do not require this Court to alter its reliance upon the 
four-Justice Bakke opinion or to vacate Judge Freeman's decision 
which relied upon this Court's enunciation of the appropriate 
constitutional standard in DPOA and Bratton.

Justice Brennan summarized in Sheet Metal Workers that the 
Court has "consistently recognized that government bodies 
constitutionally may adopt racial classifications as a remedy for 
past discrimination [but the Justice] have not agreed, however, 
on the proper test to be applied in analyzing the 
constitutionality of race-conscious remedial measures," 
(citations omitted). 54 U.S.L.W. at 4999. As Justice Brennan 
indicated in the plurality opinion, the dispute regarding the 
proper standard remains unresolved because the plan at issue in 
Sheet Metal Workers would pass even the most rigorous test and 
therefore agreement on a standard was not necessary to the 
decision. Id. at 5000; see, id. at 5001-02 (Opinion of Justice 
Powell, concurring). Similarly, in Wyqant Justice O'Connor 
concludes that "[t]he Equal Protection Clause standard applicable 
to racial classification that work to the disadvantage of 
'nonminorities' has been articulated in various ways." 54 
U.S.L.W. at 4484.

10



At the least, the support of the Justices for the standard
enunciated in the joint opinion of Brennan, White, Marshall, and 
Blackmun in Bakke and adopted by this Court in DPOA and Bratton 
remains as strong after as before the 1986 affirmative action 
decisions. The four Justices joining the joint Bakke opinion did 
not announce any change in the standard.6 Moreover, in Wygant

r

Justice Stevens agreed with Justices Brennan, Marshall and
> Blackmun that the layoff goal was constitutional and adopted a

standard comparable to the one established by the four-Justice 
joint opinion in Bakke. Justice Stevens concluded that the 
layoff goal in Wygant was permissible because of "the fairness of 
the procedures used to adopt the race-conscious provision" and 
the "serious consequence to the [nonminorities] is not based on

b Justices Brennan, Marshall and Blackmun voted with the 
majority to affirm the numerical goal in Sheet Metal Workers and 
voted in dissent to approve the layoff goal in Wygant.

Justice White concurred in the Judgment overturning the 
layoff goal in Wygant because "[w]hatever the legitimacy of hiring goals or quotas may be, the discharge of white teachers to 
make room for blacks, none of whom has been shown to be a victim 
of any racial discrimination is quite a different matter [and 
n]one of our cases suggest that this would be permissible under 
the Equal Protection Clause." 54 U.S.L.W. at 4487. In Sheet 
Metal Workers, Justice White dissented from the approval of the 
membership goal. In White's view it was "inequitable" to impose 
a "membership quota during a time of economic doldrums . . . and a 
declining demand for union skills [which] for all practical 
purposes [was] equivalent to a judicial insistence that the union 
comply even if it required the displacement of nonminority 
workers by members of the plaintiff class." 54 U.S.L.W. at 5005.

The affirmative action plan of the Detroit Police 
Department does not provide for race-conscious layoffs or any 
action which would require the displacement of nonminorities from 
jobs, and thus does not present the situation which led to 
Justice White's rejection of the plans in Wygant and Sheet Metal 
Workers ■ In fact, the Detroit Police Department refused to 
impose a race-conscious layoff plan. See N.A.A.C.P. v. Detroit 
Police Officers Association, 591 F. Supp. 1194 (E.D. Mich. 1984), 
appeal pending Nos. 84-1836, 85-1026, 85-1027, and 85-1041 (6th 
Cir . )

11



any lack o f respect for their race, or on blind habit and
stereotype 1! (Footnote omitted), 54 U.S .L.W . at 4493 .

Even i f we assume arguendo that Wygant and Sheet Metal
Workers rendered obsolete the Bakke standard articulated by
Brennan, et al. , and adopted by this Court in DPOA and Bratton,
the one-for-one implementing ratio and the 50$ end-goal are still
constitutional since the Detroit plan satisfies the "narrowly
tailored" standard formulated by Justice Powell and adopted by
Justice O'Connor. First, as Justie O'Connor concluded,

Although Justice Powell's formulation may be 
viewed as more stringent than that suggested 
by Justices Brennan, White, Marshall, and 
Blackmun, the disparities between the two 
tests do not preclude a fair measure of 
consensus.

Ultimately, the Court is at least in accord 
in believing that a public employer, 
consistent with the Constitution, may undertake an affirmative action program which 
is designed to further a legitimate remedial 
purpose and which implements that purpose by 
means that do not impose disproportionate 
harm on the interests, or unnecessarily 
trammel the rights, of innocent individuals 
directly and adversely affected by a plan's 
racial preference.

Wygant, 54 U.S.L.W. at 4484-85. As described below, the Detroit
plan like the remedy ordered in Sheet Metal Workers establishes 
affirmative action which falls within the "fair measure of 
consensus" on the Court regarding constitutional affirmative 
action.

Second, as Judge Merritt concluded, this Court's opinion in 
Bratton establishes that the Detroit affirmative action plan 
meets "exacting procedural and substantive standards." 704 F.2d 
at 902. Judge Merritt stated his view that Judges Jones and

12



Celebrezze had failed to set forth the correct constitutional
standard but concurs that the plan is constitutional because "in 
fact" the Court applies a more exacting standard than the one it 
stated. (Emphasis added), id^ at 903. It is apparent, as 
indicated by Judge Merritt, that the Court's opinion in Bratton- 
- as well as Judge Keith's lower court opinions7 —  contains 
findings and conclusions which establish that the Detroit 
affirmative action plan passes the most exacting constitutional 
standard.

Third, it is clear that the Detroit plan meets the "narrowly 
tailored" standard established by Justice Powell. In Sheet Metal 
Workers Justice Powell relied upon four factors -- all of which 
are met by the Detroit plan —  for assessing a race-conscious 
plan. 54 U.S.L.W. at 5001.8

(a) There was no "efficacious" alternatives to the 
race-conscious promotional plan. " [T]he use of racial 
classifications reflects the only legitimate method for achieving 
[the] objectives [of the plan] in light of the urgent need for a 
remedy and the practical limitatons placed on the effective use 
of other means." Bratton v. City of Detroit, 704 F. 2d at 892. 
See also, Baker v. City of Detroit, 483 F. Supp. at 994 ("The

7 Baker v. City of Detroit, 483 F. Supp. 930 (E.D. Mich. 
1979), 504 F. Supp. 841 (E.D. Mich. 1980).

8 In Geier v. Alexander, supra, this Court recently 
applied these four factors in determining that a race-conscious 
plan for admission to Tennessee institutions of higher education 
was constitutional. Slip Opinion at 13-15. The Court did not 
choose between the several standards for assessing the 
constitutionality of a race-conscious plan since, as suggested 
above with respect to the Detroit plan, the plan for the 
Tennessee institutions of higher education met the most stringent 
test.

13



affirmative action program was necessary to ensure the rapid 
eradication of past discriminatory effects nothing less than 
race-conscious promotions could do this.")

(b) The plan is appropriately "temporary in nature, 
scheduled to endure only so long as is necessary to achieve its 
legitimate goals." Bratton, 704 F .2d at 892.

(c) As this Court found in Bratton, Detroit's detailed 
expert analysis established that the 50% implementing ratio and 
end goal were appropriately related to the labor force. Bratton, 
704 F.2d at 894-98. If anything, there is a question, as Judge 
Merritt suggested, as to whether the 50% figure is sufficiently 
high since the 1980 census reflected that the population for the 
City of Detroit is 63% black. 704 F .2d at 902.

(d) The Detroit plan is not rigid but rather depends 
upon the availability of qualified black applicants and 
consistent review by the Chief of Police and the Board of Police 
Commissioners. In order to be eligible for promotion a black 
officer had to demonstrate his or her qualifications by passing 
the regular promotional examination. After a thorough review of 
the evidence, Judge Keith found that the black officers who were 
promoted under the affirmative action plan were "as substantially 
equally qualified" as the white officers who were promoted. 
Baker v. City of Detroit, 483 F. Supp. at 970-79. This Court 
held that "only well-qualified blacks were promoted." (Emphasis 
in original), Bratton, 704 F . 2d at 892. Furthermore, in public 
meetings the Board of Police Commissioners regularly reviewed the 
affirmative action promotions proposed by the Chief of Police, 
Baker v. City of Detroit, 483 F. Supp. 919, 924-27 (E.D. Mich.

14



1979), and the Board followed "careful, reasoned decision-making 
[and] did not lightly adopt any of the resolutions concerning the 
Police Department's affirmative action program, but carefully 
examined past practices, current needs, and the legal 
justification for the program," id. at 927. See also, Affidavit 
of Chief Hart, App. Vol. XVI at 90c-92c.
D. Conclusion.

Therefore, the Court should affirm Judge Freeman's 
determination that Detroit Police Department's affirmative action 
plan is constitutional and bring this twelve-year old litigation 
to an end.

Respectfully submitted

JAMES R. ANDARY 
1105 Ford Building 
Detroit, Michigan 48226
J. LeVONNE CHAMBERS
99 Hudson street
New York, New York 10013

Suite 940
806 15th Street N.W. 
Washington, D.C. 20005 
(202) 638-3278
DONALD PAILEN 
FRANK JACKSON
1010 City-County Building 
Detroit, Michigan 48226 
(313) 224-4559
Counsel for defendants- 
appellees, Coleman A. Young, 
et al.

15



CERTIFICATE OF SERVICE

I hereby certify that on this 22nd day of September 1986 a 
copy of Defendants-Appellees1 Supplemental Brief for Appellees 
Coleman A. Young, et al. was served on counsel for all parties by 
depositing a copy with Federal Express, next day service, postage 
prepaid as follows:

John F. Brady 
Riley and Roumell 
7th Floor Ford Building 
Detroit, Michigan 48226
Walter S. Nussbaum 333 W. Fort 
Suite 2000
Southfield, Michigan 48226

Attorney (nor Defendants-Appellees