Detroit Police Officers' Association v. Young Decision and Dissent

    No. 78-1163

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Detroit Police Officers’ Associa­
tion, et al.,

Plaintiffs-Appellees,

v.

Coleman A. Young, Mayor of the 
City of Detroit, et al.,

A p p e a l  from the 
United States District 
Court for the Eastern 
District of Michigan.

Defendants-Appellants.

Decided and Filed October 12, 1979.

Before: Celebrezze, L ively and Merritt, Circuit Judges.

L ively, Circuit Judge. This appeal is from a judgment of 
the district court which permanently enjoined the defendants 
from continuing the operation of an affirmative action program 
by the Detroit Police Department. The plaintiffs are an associ­
ation of police officers and a number of white Detroit police­
men who were passed over for promotion to the rank of 
sergeant when black officers with lower numerical standings 
on the eligibility list received promotions. The district court 
found that the affirmative action program offended the equal 
protection clause of the Fourteenth Amendment and violated 
42 U.S.C. § 1981, Section 601 (Title VI) of the Civil Rights 
Act of 1964, 42 U.S.C. § 2000d (1976), and Section 703(a) and 
( j)  (Title VII) of the 1964 Act, 42 U.S.C. §2000e-2(a) and



( j)  (1976).’ The memorandum opinion of the district court 
appears at 446 F.Supp. 979 (E.D. Mich. 1978). All defendants 
have appealed.

I.

It is undisputed that in 1968 the total black component of 
the Detroit police force was between four and five percent. 
The percentage of black sergeants and higher ranking officers

2 Detroit Police Assn., et al. v. Young, et al. No. 78-1163

t 42 U. S. C.:
9 1981.

All persons within the jurisdiction of the United States shall 
have the same right in every State and Territory to make and 
enforce contracts, to sue, be parties, give evidence, and to the 
full and equal benefit of all laws and proceedings for the 
security of persons and property as is enjoyed by white citizens, 
and shall be subject to like punishment, pains, penalties, taxes, 
licenses, and exactions of every kind, and to no other.
8 2000d.

No person in the United States shall, on the ground of race, 
color, or national origin, be excluded from participation in, be 
denied the benefits of, or be subjected to discrimination under 
any program or activity receiving Federal financial assistance.
8 2000e-2.

(a)
It shall be an unlawful employment practice for an em­

ployer—
(1) to fail or refuse to hire or to discharge any indi­

vidual, 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; or

(2) to limit, segregate, or classify his employees or ap­
plicants for employment in any way which would deprive 
or tend to deprive any individual of employment oppor­
tunities or otherwise adversely affect his status as an 
employee, because of such individual’s race, color, religion, 
sex, or national origin.

( j )
Nothing contained in this subchapter shall be interpreted to 

require any employer, employment agency, labor organization, 
or joint labor-management committee subject to this subchapter 
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

No. 78-1163 Detroit Police Assn., et al. v. Young, et al. 3

was even less.* * In the wake of tragic civil disturbances in 
Detroit in July 1967 the community’s attention turned to im­
proving race relations in Detroit.

Widespread alienation of black residents from the Detroit 
Police Department was one problem identified by city lead­
ers. Two groups, a Mayor’s task force and a police advisory 
group, were formed to recommend changes in personnel poli­
cies which could contribute to the solution of this problem. 
The advisory group, the “Vickery Committee,” was composed 
of personnel administrators and psychologists from private 
industry. Believing that "any incident involving the police 
might serve to incite a civil disturbance of the kind experi­
enced in July, 1967,” the Vickery Committee recommended 
to the Department the abandonment of certain qualifications 
for police employment it found “non-relevant to the actual 
requirements” of police work.

The Department’s liaison with the Committee was Richard 
Caretti, who was assigned to the personnel section in Septem­
ber 1968. Caretti, who held the position of Deputy Director of 
Personnel and the rank of Commander at the time of trial, 
testified extensively. Though never trained as a psychologist, 
Caretti had both undergraduate and master’s degrees in busi­
ness administration with emphasis on police administration. 
Prior to his assignment to personnel work Commander Caretti 
had more than 15 years experience as a member of the Detroit 
police force, primarily as a precinct officer and detective.

employed by any employer, referred or classified for employ­
ment by any employment agency or labor organization, ad­
mitted to membership or classified by any labor organization, or 
admitted to or employed in, any apprenticeship or other train­
ing program, in comparison with the total number or percent­
age of persons of such race, color, religion, sex, or national 
origin in any community, State, section, or other area.

* In 1950, one percent of Detroit policement were black, while 16 
percent of the city’s population was black. In I960, two percent of 
police were black, while 29 percent of the city was black,



4 Detroit Police Assn., et al. v. Young, et al. No. 78-1163

Caretti testified that immediately after his assignment to the 
personnel section he became involved in a series of adjustments 
in the recruiting and hiring practices of the police department. 
These adjustments, which continued from 1968 through 1973, 
were intended to improve the ability of black candidates to 
negotiate the selection process successfully and make the 
selection procedure more accurately reflect the skills needed for 
the job of police officer.

For example, one of the early adjustments was the replace­
ment of a 3-1/2 hour written entry level examination with a 
12-minute test considered equally effective. This was an 
interim step recommended by the Vickery Committee. How­
ever, both the longer and shorter exams were essentially I.Q. 
tests which Caretti concluded did not properly measure the 
skills required of a police officer. He also felt that these tests 
incorporated cultural biases to the disadvantage of black ap­
plicants. The Department later abandoned the I.Q. tests 
altogether and in 1973 adopted a new test and a “differential 
regression curve” to grade it. The purpose of the scoring curve 
was to compensate for bias inherent in such tests by providing 
different formulae for determining the pass/fail point for white 
aud black applicants.

Efforts to attract additional black candidates were also in­
stituted. Physical requirements for employment, such as blood 
pressure standards, were changed because they were believed 
to exclude black candidates and yet had little value in de­
termining physical suitability. Procedures for conducting back­
ground investigations of applicants were altered because they 
created opportunities for racial discrimination in the entry 
level screening process.

During the same period efforts were made to devise a pro­
motional model” for promotion from patrolman to sergeant 
that would be free of bias. The term “promotional model” 
refers to a total package of factors considered when a candi­
date stands for promotion. The most heavily weighted ingredi­

No. 78-1163 Detroit Police Assn., et al. v. Young, et al. 5

ent of the promotional model is a written examination. In 1968 
the written promotion exam, like the entry level test, was es­
sentially an intelligence test which principally gauged verbal 
ability.

Between 1968 and 1973 the Department adopted several dif­
ferent tests for promotions before one was specifically devised 
for it. Commander Caretti testified that the written examina­
tion used for promotion to sergeant in 1973, 1974 and 1976 
was the “Furcon” exam which, like the 1973 entry exam, was 
developed at the University of Chicago. The witness stated 
that despite all efforts to eliminate bias the written promotional 
exams retained an adverse impact on black candidates. The 
examination for promotion to sergeant which was given in De­
cember 1973 produced a 72* failure rate among black candi­
dates and a 57% failure rate among white candidates. For the 
November 1974 examination the black failure rate was 61%; 
that of the white candidates was 47*. The May 1976 failure 
rate was 58* for black and 47* for white candidates.

In addition to grades on written examinations the “promo­
tional model” required consideration of other factors: recent 
performance ratings by superiors, seniority, college credits and 
veterans’ points. During the period under consideration per­
formance at an oral interview was added as a factor. The re­
sult of the process was a score which was a composite of 
grades of all the elements, each element weighted by a prede­
termined percentage applied to the raw score. An eligibility 
list was drawn up with a sufficient number of names to fill the 
projected vacancies. Only candidates who received a raw 
score of 70 or better on the written exam were listed on the 
roster. Candidates were listed in rank order according to 
their weighted composite scores.

The percentages or weights assigned to the various factors 
were adjusted from time to time. The weight given to the 
written test was reduced when the oral boards were instituted 
and, similarly, the percentage of the total grade achievable



6 Detroit Police Assn., et al. v. Young, et al. No. 78-1163

by reason of seniority was reduced when that resulting from 
advanced education was increased. In 1973 the total length 
of service on the force required to take the written examina­
tion for promotion to sergeant was also reduced.

Prior to July 1974 all promotions to sergeant were made in 
strict numerical order from the eligibility list. However, a 
new city charter effective July 1, 1974 required the appoint­
ment of a Board of Police Commissioners (BPC) which was 
entrusted with the task of approving police promotions and 
establishing “policies, rules and regulations” for the police de­
partment. At its July 31 meeting the BPC adopted an affirma­
tive action policy by a resolution which directed the Chief 
of Police, inter alia, to eliminate discriminatory hiring prac­
tices and to take affirmative action to promote minority can­
didates from existing promotion lists. The necessity for af­
firmative action was based on “past and present discrimination 
in the hiring and promotional policies of the Detroit Police 
Department . . . ” according to the BPC resolution.

Prior to the adoption of the resolution but nearly six years 
after the Vickery Committee’s report, Detroit had a black 
population of nearly 50 percent but a police force only 17 
percent black. The Department adopted a 50/50 ratio as its 
goal for staffing at all levels. It was apparent that this goal 
could not be achieved in the rank of sergeant if the De­
partment followed its past practice of adhering to the numeri­
cal order on the eligibility fist. This practice had resulted 
in the advancement of 29 whites but only one black to the 
rank of sergeant in the round of promotions immediately prior 
to the institution of affirmative action.

By order of the Chief of Police the eligibility list assembled 
from the December 1973 sergeant examination was expanded 
by adding names of persons who had achieved passing grades, 
but whose composite scores were lower than that of the per­
son whose name stood last on the existing list. At the time 
the list was expanded all black candidates on the original roster

No. 78-1163 Detroit Police Assn., et d .  v. Young, et al. 7

had been promoted and expansion of the list created a new 
pool of black candidates. In the promotions which followed 
black male candidates were selected over some white males 
who stood higher on the eligibility list.3 This “dipping” pro­
duced approximately equal numbers of new black and white 
male sergeants from the December 1973 list as expanded. 
The 50/50 ratio was observed in subsequent promotions fol­
lowing new examinations in November 1974 and May 1976. 
This was accomplished in each case by passing over white 
candidates with higher scores and promoting black candi­
dates who stood lower on the roster. No candidate who 
failed to achieve the minimum exam score of 70 for listing on 
the eligibility roster was promoted.

n.
THE DISTRICT COURTS FINDINGS OF FACT

A. Discrimination Against White Officers

The district court made extensive findings of fact, many of 
which are attacked on appeal as clearly erroneous. In support 
of its conclusion that affirmative action discriminated against 
white officers, the court found, “There was, in actuality, two 
[promotion eligibility] lists, one for white males and one for 
black males.” 446 F.Supp. at 987.

The district court further found that affirmative action pro­
motions resulted in the advancement of less qualified persons, 
stating:

The testimony consistently was, and this Court finds 
to lie fact, that the higher a candidate stood on the eligi­
bility register the better qualified and equipped he was 
to assume the position of Sergeant. The alx>ve mentioned 
witnesses testified, and the Court accepts as fact, that ap­

3 In compliance with a court order in a separate action a number 
of female candidates were also promoted each time. See Schaefer v. 
Tannian, 394 F.Supp. 1128 (E.D. Mich. 1974).



8 Detroit Police Assn., et a l  v. Young, et al. No. 78-1163

plication of the model was intended to, and in fact did, 
demonstrate relative differences in potential job perform­
ance. Further, these witnesses testified, and this Court 
accepts as fact, that the candidates positioned on the 
register were not, as defendants claimed, equally quali­
fied or a “pool” of qualified candidates.24

26 Defendants presented the Court with no evidence, other 
than bald assertions by Tannian, to support the claim that these 
candidates were “equally qualified”.

446 F.Supp. at 994.

The finding of discrimination against white candidates for 
promotion was supported by the further finding that from 
December 1973 through 1976 the examination component 
of the promotional model conformed with standards promul­
gated by the Equal Employment Opportunity Commission 
and “measured relative differences of probable job success 
between candidates for promotion. Id. at 990. In addition, 
the court found that all of these written exams for promotion 
to sergeant were job related and content valid.

B. Prior Discrimination Against Black Officers

The district court also made findings which were the basis 
of its rejection of defendants’ claim that affirmative action was 
justified. The first rejected defense was the contention that 
prior racial discrimination by the Department warranted 
remedial affirmative action.

With respect to recent hiring, the district court found 
that use of the entry level exam beginning in 1973 resulted 
in random hiring rather than hiring the most qualified appli­
cants. The court found that although the test was not job 
related, scoring it by use of differential regression equations 
resulted in hiring black and white applicants in approximately 
equal numbers. Use of this exam, scored in this way, was 
found to reflect the racial composition of the city rather than 
a concern with hiring those best suited to be patrolmen.

No. 78-1163 Detroit Police Assn., et al. v. Young, et al. 9

Considering the other elements of the “promotional model, 
the district court found that none was shown to have any 
disparate impact or to discriminate against black candidates 
in any way. He specifically found that there was no evidence 
which showed an intentional discrimination in use of the seni­
ority factor; rather he found that “seniority equally affected 
blacks as well as whites and that if this factor discriminated 
it did so against the younger, less senior officers without regard 
to their race.” 446 F.Supp. at 993.

However, the district court also found that, until 1973, the 
Department’s entrance examinations failed a disproportionate 
number of black applicants. Even after the examination was 
changed in 1968 and again in 1971 to cure its exclusionary 
effects, the tests “continued to screen out greater numbers of 
blacks than whites.” 446 F.Supp. at 999. The District Judge 
stated his conclusion in the following summary:

. . . until 1973 entry level (hiring) written examina­
tions of the Detroit Police Department may have con­
stituted a source of discrimination against blacks seeking 
entry into the department 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. However, the evidence also shows that 
after installation of the Detroit Furcon exams in 1973, no 
discrimination of any form existed in regard to black ap­
plicants for positions as police officers.40

60 At this point in time blacks and whites were passing the 
entry examinations at approximately the same rate.

446 F.Supp. at 1000.

The court made no findings regarding defendants’ evidence 
of specific instances of discrimination in the conditions of 
employment, but concluded that no evidence of discrimina­
tory failure to hire qualified applicants had been presented.



10 Detroit Police Assn., et a l  v. Young, et al. No. 78-1163

Defendants’ statistical evidence of historical hiring dis­
crimination was considered and rejected. The district court 
divided the data into two groups: the numbers of black and 
white persons hired from 1944 to 1968, and the numbers of 
black and white appointees and applicants from 1968 to 1975. 
It was found that the statistics presented by the defendants 
failed to show discrimination against black applicants for em­
ployment in either the distant or recent past. While noting 
that the Department had hired relatively small numbers of 
black officers between 1944 and 1968, the court found the 
data incomplete. No comparative census data or numbers of 
applications by race during these years were presented, and 
the court therefore concluded that these naked numbers 
of black and white hired is [sic] susceptible to a multitude of 
conclusions.” Id. at 998.

With respect to the years 1968-1975, when census data 
and the numbers of applications by race were available, the 
district court found other deficiencies which created a lack of 
statistical verity.” Therefore the court decided to accord “no 
weight” to statistical evidence which indicates on its fact a 
“significant difference” in the success rate of black and white 
applicants. Id.

Past promotional practices were also found not to be dis­
criminatory either in the composition of the promotional 
models or their application.

The district court made a statistical analysis which showed 
to its satisfaction that there was no underutilization of blacks 
by the Department. This analysis consisted of a comparison 
of the black proportion of the police force with the black pro­
portion of the entire local labor market. The district court found 
that the bulk of all applicants for police positions came from 
a tri-county area (Wayne, Oakland and Macomb) in which 
the combined 1970 population possessing the minimum re­
quirements for police employment was 18.6% black. Treating 
this as the relevant labor market, the district court found that

a black component of 17.23% in the police department in 1974 
did not represent a significant underutilization. The court 
flatly rejected use of the general population of the City of 
Detroit, which was about 44 percent black in 1970, as the 
relevant labor market. The district court neither explicitly 
rejected nor applied the labor market of the City of Detroit, 
which in 1970 was about 46 percent black.4

C. LEAA Funds
The district court found that a second justification put 

forward by the defendants for instituting affirmative action 
was not established. This was a purported danger that grants 
from the Law Enforcement Assistant Administration (LEAA) 
were in jeopardy because of police department employment 
practices. We find no error in this determination, but it is 
not dispositive of the case.

4
D. Operational Needs

The third position of the defendants addressed by the dis­
trict court was the claim that “the operational needs of the 
department required employment and promotion of greater 
number of blacks.” 446 F.Supp. at 997. The court rejected 
what it termed the “amorphous claim” that more minority 
officers were needed to provide effective police service to the 
Detroit community. This claim was further characterized as 
follows:

Stripped to its barest form this argument rests upon the 
premise that blacks can communicate and cooperate bet­
ter with blacks than can whites . . . .  446 F.Supp. at 
1001.

The court found “no factual basis for this belief’ that more 
black officers would improve police service and was not per-

No. 78-1163 Detroit Police Assn., et al. v. Young, et al. 11

4 The labor market in this instance is defined as Detroit resident? 
age 25 and over who have completed high school,



12 Detroit Police Assn., et al. v. Young, et al. No. 78-1163

snaded by evidence offered to show decreases in the crime 
rate and citizen complaints after affirmative action was insti­
tuted. Rather than concluding that affirmative action served 
the Department’s needs, the court believed it a disservice:

Diametrically opposed to the void of competent evi­
dence concerning the claim that the affirmative action 
plan improved the overall effectiveness of the department 
is evidence, which the Court accepts as fact, that the 
inclusion of race as a promotional criterion damages de­
partmental morale and the quality of work of all officers. 
The record evidence demonstrates, which the Court ac­
cepts as fact, that a police officer’s effectiveness, as a 
professional law enforcement officer both within the de­
partment and the community in which he serves, is de­
pendent upon his education, skill, training, attitude and 
sense of professionalism. The unalterable pigmentation 
of his skin has no bearing upon these facts and neither 
enhances nor depreciates his professional enforcement ef­
fectiveness. Defendants’ claim that operational needs of 
the department required more blacks on the police force 
is rejected by the Court as being factually unsupported 
by any competent evidence.

446 F.Supp. at 1002 (footnote omitted).

III.

THE DISTRICT COURT’S CONCLUSIONS OF LAW

The district court concluded that plaintiffs had made a 
prima facie  case of racial discrimination under each theory 
of liability and that defendants failed to rebut it.

A. Title VII, Title VI and § 1981

Defendants violated § 703(a) of Title VII, the court found, 
by instituting a promotional plan which discriminated against 
white candidates by preferring black candidates. The court

No. 78-1163 Detroit Police Assn., et al. v. Young, et al. 13

held that §703 (j)  precluded reliance on racial balancing as 
a legitimate non-discriminatory reason for the failure to select 
the white officers for promotion.

The district court equated the operational needs defense 
with the “bona fide occupational qualification” exception in 
§ 703(e) of Title VII.* Because that statute does not include 
race and color as possible bona fide occupational qualifica­
tions, the court concluded that operational needs failed as a 
legal defense. It believed that the affirmative action plan did 
not fit Title VII’s “limited customer preference exception.” 
446 F.Supp. at 1005.

The court declined to consider evidence of discriminatory 
practices prior to March 1972, the effective date of amend­
ments to Title VII which brought municipal governments with­
in its scope. Pub.L. 92-261, 86 Stat. 103. Based on its conclu­
sion that post-Act proof of discrimination was lacking, the 
court held that the promotion plan violated Title VII by es­
tablishing impermissible racial quotas. The court went on to S

S 42 U.S.C. §2000e-2(e):
Notwithstanding any other provision of this subchapter, (1) 

it shall not be an unlawful employment practice for an em­
ployer to hire and employ employees, for an employment agency 
to classify, or refer for employment any individual, for a labor 
organization to classify its membership or to classify or refer 
for employment any individual, or for an employer, labor or­
ganization, or joint labor-management committee controlling ap­
prenticeship or other training or retraining programs to admit 
or employ any individual in any such program, on the basis 
of his religion, sex, or national origin in those certain instances 
where religion, sex, or national origin is a bona flde occupational 
qualification reasonably necessary to the normal operation of that 
particular business or enterprise, and (2) it shall not be an un­
lawful employment practice for a school, college, university, or 
other educational institution or institution of learning to hire and 
employ employees of a particular religion if such school, college, 
university, or other educational institution or institution of learn­
ing is, in whole or in substantial part, owned, supported, con­
trolled, or managed by a particular religion or by a particular 
religious corporation, association, or society, or if the curriculum 
of such school, college, university, or other educational institu­
tion or institution of learning is directed toward the propaga­
tion of a particular religion.



state that even if a court had ordered the plan, the plan 
would be unlawful because past discrimination is a prerequi­
site to judicial relief under Title VII. The district court sum­
marized its view of voluntary affirmative action as follows:

However, even if there had been proof of prior dis­
crimination against blacks, Section 700(g) does not grant 
the employer, acting alone, the prerogative of fashioning 
quota type relief. This conclusion is based upon several 
observations. First, the prohibition of Section 703(a) of 
Title VII is directed solely to employers and not to the 
courts. Second, Section 700(g) directs that the courts 
are empowered to fashion remedies for violations of Sec­
tion 703(a) and does not grant the same authority to the 
employer. To be sure voluntary compliance in eliminating 
unfair labor practices is the central theme of Title VII 
and is preferable to court action. Franks v. Bowman Trans­
portation Co., 424 U.S. 747, 90 S.Ct. 1251, 47 L.Ed.2d 
444 (1970). However, installation of remedies designed to 
correct past unfair labor practices which discriminate 
against certain racial groups is a far cry from the equitable 
relief intended by Section 700(g). While Congress rec­
ognized that remedies must be fashioned to correct prior 
discriminatory practices and to cure the ill effects of past 
discrimination, it was cognizant of the fact that courts 
alone are in a position to afford due process to all con­
cerned in determining the necessity for and in fashioning 
such relief. Reeves v. Eaves, 411 F.Supp. 531 (N.D.Ga. 
1970); Chmill v. City of Pittsburgh, 31 Pa.Cmwlth. 98, 
375 A.2d 841 (1977). Compare, Michigan Compiled Laws 
Annotated 37.2210. All will agree that relief in the 
nature of a quota is extreme and should be approached 
and imposed only with utmost care and caution in order 
that such extraordinary relief will be uniform and in 
existence only so long as is necessary to achieve the 
intended purpose. An employer who readily admits it 
has discriminated in its employment practices in the past, 
intentionally or otherwise, can hardly be placed in a po­
sition of trust and confidence on a plateau with the courts

14 Detroit Police Assn., et al. v. Young, et al. No. 78-1103 No. 78-1103 Detroit Police Assn., et al. v. Young, et al. 15

who, without the stigma of the prior impermissible action, 
sit unblemished in fashioning relief for such prior dis­
crimination. The reasoning that unless an employer can 
fashion quota type relief the voluntary compliance theme 
of Title VII will be subverted is particularly naive. Vol­
untary quota relief by an employer, as this case evidences, 
merely changes the racial makeup of the plaintiff class. 
Accordingly, the Court holds, as a matter of law that quota 
relief, when fashioned by the employer without the as­
sistance and direction of the court, is not permitted and 
runs afoul of Section 708(g) of Title VII.

440 F. Supp. at 1010 (footnote omitted).

The above conclusions also led the court to hold that 
the affirmative action plan violated Title VI and § 1981 
as well as Title VII. These conclusions were not discussed.

B. Equal Protection
The plaintiffs also presented a valid constitutional claim, 

the court found. The rule of strict scrutiny was applied to 
the affirmative action plan. Referring to its Title VII finding 
that no proof of prior unlawful discrimination existed, the 
court decided that no prior constitutional violations justified 
the plan. The essential element of an equal protection viola­
tion, discriminatory purpose or intent, was absent because 
the record was “absolutely void of prior discriminatory pur­
pose on the part of defendants toward blacks.” Id. at 1014.

In addition, after concluding that the operational needs 
defense was based on “provincial beliefs” not borne out by 
the record, id., the court found that operational needs would 
not constitute a compelling state interest even if the evidence 
were otherwise.

If better public communication would exist by hiring 
more blacks and promoting more blacks to supervisory po­
sitions then the problem lies in a racially motivated popu- 
lus. In the eyes of this Court catering to such racial



16 Detroit Police Assn., et al. v. Young, et at. No. 78-1163

prejudice cannot be said to be “compelling . On the con­
trary, the Court would consider it to be pandering. If 
the defendants’ claim of “operational need can be con­
sidered as compelling then apparently any all white com­
munity, via the police department, could lay claim to 
such a “compelling interest” in forming a basis to reject 
all non-whites.
446 F. Supp. at 1016 (footnote omitted).

The district court’s view of race-conscious remedies is sum­
marized by this language in its opinion:

Until racial discrimination is uprooted from employment 
practices the seeds of racial harmony will never be sown 
either in this city or the country. However, the fact 
that a racial group, any racial group, suffered its own spe­
cial injustice does not make one such group different in 
the eyes of the law -  for the remedy for racial dis­
crimination is not more racial discrimination. In tliis 
day and age race is an impermissible criterion for judg­
ing either the employee’s qualifications or the employers 
needs.

Id.

IV.

Our discussion is arranged under various headings which, 
in sum, treat the significant findings and conclusions and cover 
all the claims and defenses of the parties.

A. Prior Discrimination

The holding of the district court on wliich tliis appeal es­
sentially turns is that there was no showing of prior dis­
crimination against blacks by the Detroit Police Department. 
This conclusion, based on errors of law and an impermissibly 
restrictive view of the evidence, must be reversed.

The district court’s findings of fact are binding on this

No. 78-1163 Detroit Police Assn., et al. v. Young, et al. 17

court unless they are clearly erroneous. Fed. R. Civ. P. 
52(a). However, whether prior discrimination occurred is a 
conclusion of law based on subsidiary findings of fact. As 
stated by the Seventh Circuit:

The statement that discrimination exists for the pur­
poses of establishing liability under Title VII or under 
the Constitution . . .  is as much a conclusion of law as 
a finding of fact. A distinction must be drawn between 
subsidiary facts to which the “clearly erroneous” standard 
applies, and the ultimate fact of discrimination . . . .  
Accordingly, we will make an independent examination 
of whether the Police Department’s employment practices, 
as a matter of law, were proscribed under Title VII or 
the equal protection clause. United States v. City of Chi­
cago, 549 F.2d 415, 425 ( 7th Cir.), cert, denied, 434 U.S. 
875 (1977); See also W ade v. Mississippi Cooperative Ex­
tension Service, 528 F.2d 508, 516 ( 5th Cir. 1976).

Reexamination of the law and evidence reveals that the 
district court’s conclusion that the Detroit Police Department 
did not engage in unlawful discrimination was erroneous.

1. Employment Data. The district court held that statis­
tical evidence of prior discrimination was not entitled to any 
weight whatever. Statistical evidence of racially disparate 
impact of employment practices alone may establish a statu­
tory violation. See International Brotherhood of Teamsters v. 
United States, 431 U.S. 324, 339 (1977); Hazelwood School 
District v. United States, 433 U.S. 299, 307-8 (1977). Under 
some circumstances, such evidence may also demonstrate a 
constitutional violation. See Village o f Arlington Heights v. 
Metropolitan Housing Corp., 429 U.S. 252, 266 and n. 13 
(1972).

The evidence in this case showed that “the number of 
whites appointed far outdistanced the number of blacks ap­
pointed” from 1944 to 1968 and from 1968 to 1975 “a signifi­
cant difference between the number of black and white ap­



18 Detroit Police Assn., et al. v. Young, et al. No. 78-1163

plicants and the number of black and white appointees.” 446 
F.Supp. at 998. However, the court rejected the evidence 
because of a “lack of statistical verity.” Id.

The conclusion that flaws in the data deprived it of any 
probative value is itself flawed. The court dismissed the 
1944-1968 data for want of labor market data from the De­
troit Standard Metropolitan Statistical Area (SMSA) for the 
same period. This data would be compared to police employ­
ment to determine whether the black proportion of the police 
department was much smaller than the black component of 
the labor market, a condition which would support an in­
ference of discrimination.

The rejection of the data on this basis was proper only 
if the district court’s insistence on this metropolitan-wide labor 
market benchmark was proper. Defendants presented evi­
dence based on city population and city labor market com­
parisons. For example, their evidence indicated that from 
1944 to 1973, new hires by the Department included 13.7 
percent blacks. If hiring had conformed to the racial pro­
portion of the Detroit labor market* black new hires would 
have constituted 23.6 percent of all appointments in that 
period.

The district court also rejected the statistical evidence 
because of a lack of “applicant flow data” until 1968 and 
data reporting errors thereafter. The district court seemed to 
require proof to a mathematical certainty, but there is no 
such requirement. Vulcan Society o f N.Y.C. Fire Dept. v. Civil 
Service Commission, 490 F.2d 387, 393 ( 2d Cir. 1973). De­
ficiencies in the data base “may, of course, detract from the 
value of such evidence,” Teamsters, 431 U.S. at 340 n. 20, but 
ordinarily would not obliterate its evidentiary value. There 
was no indication that the reporting errors accounted for the 
“striking racial imbalance” indicated by the data. Vulcan, 490 6

6 See note 4.

No. 78-1163 Detroit Police Assn., et al. v. Young, et al. 19

F.2d at 392. In short, none of the defects cited by the 
district court were fatal and it was “unfair to ignore [the 
figures] entirely.” Boston Chapter, NAACP, Inc. v. Beecher, 
504 F.2d 1017, 1021 n. 6 (1st Cir. 1974), cert, denied, 421 U.S. 
910 (1975).

Viewed in the light of all the evidence we hold that the 
district court’s finding that the statistical evidence is “suscepti­
ble to a multitude of conclusions,” 446 F.Supp. at 998, is 
clearly erroneous. The court found that the disparity between 
white and black police employment was “significant” and that 
the pre-1973 entry level examinations “may have constituted 
a source of discrimination against blacks.” 446 F.Supp. at 
1000. A number of black officers testified to the existence 
of a pattern of specific discriminatory practices which they 
had experienced and observed. No explanation for the under­
representation of black officers and sergeants other than syste­
matic exclusion appears on the record.

Even standing alone, the statistical data was evidence of 
discrimination. As the Supreme Court stated in Teamsters, 
supra:

Statistics showing racial or ethnic imbalance are proba­
tive in a case such as this one only because such im­
balance is often a telltale sign of purposeful discrimi­
nation; absent explanation, it is ordinarily to be ex­
pected that non-discriminatory hiring practices 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.

431 U.S. at 340 n. 20.

The district court found that the defendants had not pre­
sented the proper statistical data, even if it were otherwise 
reliable. The court concluded that a comparison of the racial 
proportions of the police force and the Detroit SMSA labor 
market demonstrated “no ‘significant disparity’ regarding black



representation on the Detroit Police Department.” 446 F. 
Supp. at 1006. This conclusion is dependent on the court’s 
selection of the Detroit SMSA labor market as “the proper 
labor market for comparison.” 446 F.Supp. at 996 (emphasis 
added).

While the metropolitan labor market may be “a proper com­
parison,” Hazelwood, 433 U.S. at 308 (emphasis added), the 
availability of one appropriate benchmark is no warrant for re­
jection of other data which are also probative. The courts 
of appeals have recognized the value of other benchmarks 
and approved the use of city population — a standard spe­
cifically rejected by the district court — in cases involving 
public agencies which provide services citywide. E.g., Afro 
American Patrolmens League v. Duck, 503 F.2d 294, 299 ( 6th 
Cir. 1974) (police); Boston Chapter, NAACP, supra, 504 F.2d 
at 1020 n. 4, 1027 n. 17 (firefighters, city and metropolitan 
population); Vulcan Society, supra, 490 F.2d at 398 (firefight­
ers); Erie Human Relations Commission v. Tullio, 493 F.2d 
371, 372-73 (3d Cir. 1974) (police).

The selection of the SMSA labor market as the sole bench­
mark was not warranted on the basis that the Department 
recruited some officers from outside the boundaries of the 
city. This is especially true in view of the adoption of a 
city-residency requirement during the period in question. 
Rather, the “usefulness [of statistics] depends on all of the 
surrounding facts and circumstances. Teamsters, 431 U.S. at 
340. In this case, the fact that the police department had 
a residency requirement and served a city-only population 
made a comparison with city population and labor market 
data eminently proper.

Application of these benchmarks indicates a gross disparity 
between black employment in the Department and black 
representation in the city’s labor market and general popula­
tion. In 1974, the Department was 17.23 percent black, the 
district court found. Data from the 1970 census show that the

20 Detroit Police Assn., et al. v. Young, et al. No. 78-1163 No. 78-1163 Detroit Police Assn., et al. v. Young, et al. 21

Detroit labor market was 45.8 percent black and the city 
population was 43.7 percent black.

The metropolitan labor market was only 18.6 percent black 
in 1970. But the district court’s comparison of 1970 census 
data, the most recent available, to 1974 police employment 
could not refute the pattern of racial disparity standing alone. 
If general population trends were any guide, it was distinctly 
possible that by 1974 the metropolitan labor force had become 
increasingly black. Thus, 1970 census data could not be com­
pared fairly with 1974 police employment data. A proper com­
parison, between 1970 labor market and police statistics, 
yields a significant disparity. The metropolitan labor market 
was 17.23 percent black in that year while the Department 
employed only 11 percent black officers.

2. Prior Discrimination: The Title VII Claim. The district 
court rejected the defense of prior discrimination in part 
because

. . . statistics regarding pass/fail rates on the entry ex­
amination antedating March 24, 1972 are inconsequential 
in determining if there had been a prior Title VII viola­
tion. Further, as the Findings of Fact demonstrate, short­
ly after March 24, 1972, there was no disparate impact 
upon blacks as a result of entry examinations or any 
other portion of the entry process.

446 F. Supp. at 1006 (footnote omitted).

March 24, 1972 is the effective date of Pub. L. 92-261, 
86 Stat. 103, which amended Title VII to include “govern­
ments, governmental agencies [and] political subdivisions.” 
42 U.S.C. § 2000e(a). The district court relied on Hazelwood, 
supra, for the proposition that a governmental employer who 
provides equal employment opportunities on that date and 
thereafter cannot be held liable solely on the basis of prior 
discrimination. 433 U.S. at 309.



However, the Supreme Court in Hazelwood made clear that 
only a public employer who “made all its employment de­
cisions in a wholly nondiscriminatory way” after the effective 
date of the Act would be immune from liability. Id. (emphasis 
added). In a footnote to the portion of the opinion quoted 
by the district court, the Supreme Court wrote:

This is not to say that evidence of pre-Act discrimina­
tion can never have any probative force. Proof that an 
employer engaged in racial discrimination prior to the 
effective date of Title VII might in some circumstances 
support the inference that such discrimination continued, 
particularly where relevant aspects of the decisionmaking 
process had undergone little change.

433 U.S. at 309-310 n.15.

Where there is at least some evidence of post-Act dis­
criminatory practices and effects, pre-Act evidence of a simi­
lar nature is relevant to the conclusion of post-Act discrimina­
tion. If there is no evidence of post-Act discrimination, the 
public employer cannot be held liable under Title VII.

There was evidence of post-Act discrimination in this case 
which made the evidence of pre-Act employment practices 
relevant. The district court conceded that it was not until 
“shortly after” the effective date of the Act that the De­
partment was able to eliminate the racially disparate impact of 
the hiring process. 446 F.Supp. at 1007. In fact, it was not 
until 1973 that the unvalidated entry level exam which failed 
greater numbers of black than white applicants was finally 
abandoned. See 446 F.Supp. at 1000. In addition, changes in 
other aspects of the entry level hiring process which had racial­
ly disparate effects or afforded opportunities for discrimination 
continued until 1973.

Moreover, discriminatory acts which might not give rise to 
legal liability may nonetheless be sufficient to justify a volun­
tary remedial affirmative action plan. Thus evidence of pre-Act

22 Detroit Police Assn., et al. v. Young, et al. No. 78-1163 No. 78-1163 Detroit Police Assn., et al. v. Young, et al. 23

discrimination in the present case was relevant to a legiti­
mate defense. The test under Title VII of vohmtary affirma­
tive action is whether the action is consistent with the 
anti-discrimination policy of the statute. See United Steel­
workers o f America v. W eber, —  U.S. — , 47 U.S.L.W. 4851 
(June 27, 1979). Prior discrimination which would constitute 
a violation but for the effective date of the statute is cog­
nizable in concluding that the employer’s purpose in imple­
menting affirmative action was consistent with the statutory 
purpose of eliminating discriminatory employment practices 
and their effects. When the question is what a public em­
ployer may do rather than what it must do, evidence of pre- 
Act discrimination is relevant to the propriety of ostensibly 
remedial racial preferences.7

In W eber, the Supreme Court rejected many of the legal 
principles on which the district court based its decision. The 
Court held that Title VII does not prohibit all remedial, race­
conscious affirmative action plans. —  U.S. at — , 47 U.S.L.W. 
at 4852. The district court in this case relied heavily on the 
court of appeals decision in W eber in concluding that Section 
703(j) of Title VII required rejection of defendants’ claim that 
racial balancing is a permissible reason for employment pref­
erences. 446 F.Supp. at 1004.

7 Appellees argued in a supplemental brief that Title VII has a 
different meaning when applied to governmental employers than 
when applied to private employers. This argument rests on the 
theory that the commerce clause was the source of legislative power 
for the original version of Title VII (which applied only to private 
employers), but the enforcement clause of the Fourteenth Amend­
ment was the source of congressional power in enacting the 1972 
amendments to Title VII which brought public employers within 
the scope of the statute.

This argument was considered recently by the Fifth Circuit in 
Scott v. City of Anniston, 597 F.2d 897 (1979). That court correctly 
decided that “whether the employer be private or public, the same 
prerequisites to Title VII liability apply . . . .” 597 F.2d at 900. We 
agree that reliance on the Fourteenth Amendment as the source of 
legislative power for the 1972 amendments does not limit their sub­
stance to the minimum protections provided by the Fourteenth 
Amendment. See also Katzenbach v. Morgan, 384 U S  641 651
(1986).



24 Detroit Police Assn., et al. v. Young, et al. No. 78-1163

In reversing the court of appeals in W eber, the Supreme 
Court found that Section 703(j) states only what Title VII 
does not require of an employer. That section contains no ex­
plicit prohibition against voluntary employer action. The 
Court found a “natural inference” from this omission that Con­
gress chose not to forbid all voluntary race-conscious affirma­
tive action. —  U.S. at — , 47 U.S.L.W. at 4854.

The district court also relied on McDonald v. Santa Fe Ira il 
Transit. Co., 427 U.S. 273 (1976), in concluding that Title 
VII prohibits the implementation of an affirmative action 
plan which in any way prefers black employees over white. 
446 F.Supp. at 1003. However, in W eber, the Supreme Court
held that McDonald expressly left this question open.----U.S.
a t __ , 47 U.S.L.W. at 4853. Further, it found that a prin­
cipal purpose of Title VII is to induce voluntary solutions 
to racial discrimination, one form of which is race-conscious 
affirmative action employment. In view of the statutory pur­
pose, § 703(a) and (d) cannot be read as literal, absolute pro­
hibitions against race-conscious action to eliminate discrimina­
tion. —  u.S. at — , 47 U.S.L.W. at 4853-54.

The basic error in the district courts approach to the Title 
VII issue was that it determined what the Act requires of 
employers and then concluded that all other actions with racial­
ly disparate consequences are forbidden. But as the Supreme 
Court made clear in W eber, in a case of this kind where re­
verse discrimination” is claimed, the question is not what Title 
VII requires or what a court might order to remedy a proven 
Title VII violation. Rather, the question is what voluntary 
actions may lawfully be taken. As Justice Blackmun noted 
in his concurring opinion in W eber, a preferential hiring plan 
which seeks to alleviate an imbalance caused by traditional 
practices of job segregation is a reasonable voluntary response 
“whether or not a court, on these facts, could order the same
step as a remedy.” —  U.S. a t ---- , 47 U.S.L.W. at 4856. Under
W eber, the district court’s holding that “quota relief, when

fashioned by the employer without the assistance and direction 
of the court is not permitted . . . ,” 446 F.Supp. at 1010, can­
not stand as a matter of law.

Consideration of the uncontroverted evidence before the 
district court and the very findings made by the court com­
pel the conclusion that the Department was guilty of racial 
discrimination in violation of Title VII. Hiring data spanning 
the period 1944 to 1975 demonstrated a consistent, “signfi- 
eant” racial disparity. Police work force statistics revealed a 
gross underrepresentation of black police officers when com­
pared with city population, city labor market, and proper 
metropolitan labor market data.

No nondiscriminatory explanation for these disparities was 
offered. On the contrary, there was substantial evidence that 
the Department had a “custom” or “tradition” of racial dis­
crimination in job assignments, conducted unvalidated entry 
tests with racially disparate effects, maintained physical job 
requirements with discriminatory impact, and created oppor­
tunities for racial discrimination in the background investi­
gation of job applicants.

In addition, where judicial findings of discrimination in a 
particular job category are so numerous as to be a proper 
subject for judicial notice, affirmative action is permissible.
W eber, —  U.S. a t ---- , 47 U.S.L.W. at 4852 n. 1. Racial
discrimination by law enforcement agencies in the employ­
ment of police officers has resulted in numerous findings of 
unlawful discrimination. See, e.g., Afro American Patrolmens 
League v. Duck, 503 F.2d 294 ( 6lh Cir. 1974); Bridgeport 
Guardians, Inc. v. Members o f Bridgeport Civil Service Com­
mission, 482 F.2d 1333 ( 2d Cir. 1973), cert, denied, 421 U.S. 
991 (1975); Erie Human Relations Commission v. Tullio, 
493 F.2d 371 (3d Cir. 1974); Mims v. Wilson, 514 F.2d 106 
(5th Cir. 1975); Morrow v. Crisler, 491 F.2d 1053 ( 5th Cir. 
en banc), cert, denied, 419 U.S. 895 (1974); NAACP v. Al­
len, 493 F.2d 614 (5th Cir. 1974); United States v. City of

No. 78-1163 Detroit Police Assn., et al. v. Young, et al. 25

I



26 Detroit Police Assn., et al. v. Young, et al. No. 78-1163

Chicago, 549 F.2d 415 (7th Cir.), cert, denied, 434 U.S. 875 
(1977); see also President’s Commission on Law Enforcement 
and the Administration of Justice, Task Force Report: The 
Police 169, 174 (1967) (citing surveys which found racially 
exclusionary hiring practices and racially discriminatory job 
assignments in Detroit Police Department).

Based on the findings of the district court and uncontro­
verted evidence of prior discrimination by the Department we 
conclude that the affirmative action program did not violate 
Title VII. See W eber, supra.

3. Prior Discrimination: Title VI and § 1981. The district 
court did not explain its holding that the affirmative action 
plan violated Title VI. It apparently concluded that a public 
entity which receives federal funds may not establish any 
race-conscious preference program even to remedy past dis­
crimination. We find this reading of 42 U.S.C. § 2000d to be 
too expansive.8

The Supreme Court has held that states may take voluntary 
race-conscious action to achieve compliance with the law. 
United Jewish Organizations v. Carey, 430 U.S. 144 (1977) 
(reapportionment); McDaniel v. Barresi, 402 U.S. 39 (1971) 
(school desegregation). Moreover, the Constitution imposes 
on states a duty to take affirmative steps to eliminate the 
continuing effects of past unconstitutional discrimination. 
Swann v. Charlotte-M ecklenberg Board of Education, 402 
U.S. 1, 15 (1971); Green v. County School Board, 391 U.S. 430, 
437-38 (1968). The district court erred in holding that only 
a court can effect a remedy upon a judicial finding of prior 
discrimination, for as Chief Justice Burger wrote in Swann, 
“Judicial authority enters only when local authority defaults.” 
402 U.S. at 16.

Title VI must be construed to avoid the conclusion that

8 Whether Title VI may be the basis of a private cause of action 
need not be decided because the district court committed an error 
of substantive law in premising liability on Title VI.

No. 78-1163 Detroit Police Assn., et al. v. Young, et al. 27

the statute interferes with the operation of the Constitution. 
It is presumed that Congress did not intend to prohibit state 
and local governments from performing their constitutional 
duty to eliminate discrimination and its effects. Therefore 
while Title VI may prohibit acts of discrimination, it cannot 
be read to forbid remedies which are constitutionally required 
and unavoidably race-conscious.

The validity of the affirmative action plan under Title VI 
thus turns on whether it was effected to comply with a 
constitutional duty to remedy prior discrimination. This con­
striction of Title VI is not inconsistent with the view that 
the statute forbids only that discrimination which offends the 
Constitution, as expressed by at least four Justices in Regents 
o f the University o f California v. Bakke, 438 U.S. 265 (1978):

In view of the clear legislative intent, Title VI must be 
held to proscribe only those racial classifications that 
would violate the Equal Protection Clause of the Fifth 
Amendment.

438 U.S. at 287 (Opinion of Powell, J .) . We agree with 
Mr. JUSTICE POWELL, ,ha. as .ppl.'ed X  “ e 
before us Title VI goes no further in prohibiting the use 
of race than the Equal Protection Clause of the Four­
teenth Amendment itself.

438 U.S. at 325 (Opinion of Brennan, White,’  Marshall 
and Blackmun, J .J.) .

The district court also held without explanation that the 
affirmative action plan violated 42 U.S.C. § 1981. Apparently 
the court interpreted the statute as a prohibition of all race­
conscious programs without regard to whether they fulfill a 
constitutional duty to remedy past discrimination.

CSVIS ??«■ —



28 Detroit Police Assn., et al. v. Young, et al. No. 78-1163

Section 1981 is derived from the Civil Rights Act of 1866. 
That Act was intended to implement the Thirteenth Amend­
ment and eliminate the vestiges of slavery. See Jones v. Alfred 
II . Mayer Co., 392 U.S. 409, 439-440 (1968). The statute 
also has a close relationship to the Fourteenth Amendment. 
The statute was a model for the Amendment, Mahone v. 
W addle, 5frl F.2d 1018, 1029-30 and n. 21 (3d Cir. 1977), 
cert, denied, 438 U.S. 904 (1978), and was reenacted after 
approval of the Amendment. Enforcement Act of 1870, Ch. 
114, § 18, 16 Stat. 144; See Jones, 392 U.S. at 436.

What the Constitution forbids generally, § 1981 forbids 
with some specificity. The constitutional genesis of § 1981 
also means that what the Constitution permits, § 1981 must 
also permit. Because the Constitution not only permits but 
requires race-conscious action to remedy a constitutional viola­
tion, it was error to hold that § 1981 bars such action.

4. Prior Discrimination: The Constitutional Claim. The dis­
trict court held that no race-conscious affirmative action pro­
gram was permissible unless the defendants proved by un­
equivocal direct evidence that any disadvantages suffered 
by black applicants and candidates for promotion resulted 
from purposeful, intentional discrimination. Typical of several 
statements to this effect is the following:

Aside from statistical comparisons defendants have 
claimed that prior to the installation of the voluntary 
“affirmative action” plan blacks were treated differently 
than whites, essentially a claim of disparate treatment. 
While there was no evidence in this record showing such 
an allegation to be true, even if defendants had shown 
prior differential treatment to blacks vis a vis whites the 
claim of prior unconstitutional discrimination against 
blacks, without more, would fall short of a constitutional 
violation as it must be shown that the alleged differential 
treatment was because of the race of the group. Proof of 
discriminatory purpose, intent, or motive, be it evil or in­

No. 78-1163 Detroit Police Assn., et al. v. Young, et al. 29

nocent, is required and absent such proof, as in the case 
at bar, there can be no constitutional violation.

446 F.Supp. at 1013-14 (footnote and citation omitted).

The district court relied primarily on Washington v. Davis, 
426 U.S. 229 (1976), and quoted extensively from the majority 
opinion. Washington v. Davis holds that proof of discriminatory 
purpose or intent is required to establish a constitutional vio­
lation and that proof of disparate racial impact from state ac­
tion is not alone sufficient. This requirement applies to allega­
tions of racial discrimination in various factual contexts. 426 
U.S. at 239-41.

However, the district court failed to follow those portions 
of the Supreme Court’s opinion which give guidance on 
evaluating proof of discriminatory purpose:

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 ir­
relevant in cases involving Constitution-based claims of 
racial discrimination. A statute, otherwise neutral on its 
face, must not be applied so as invidiously to discriminate 
on the basis of race. Yick Wo v. Hopkins, 118 U.S. 356 
(1886).

• • •
Necessarily, 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. It is also not in­
frequently true that the discriminatory impact—in the 
jury cases for example, the total or seriously dispropor­
tionate exclusion of Negroes from jury venires—may for 
all practical purposes demonstrate unconstitutionality be­
cause in various circumstances the discrimination is very 
difficult to explain on nonracial grounds. Nevertheless, we 
have not held that a law, neutral on its face and serving 
ends otherwise within the power of government to pur­
sue, is invalid under the Equal Protection Clause simply



because it may affect a greater proportion of one race 
than of another. Disproportionate impact is not irrelevant, 
but it is not the sole touchstone of an invidious racial 
discrimination forbidden by the Constitution.

426 U.S. at 241-42.

In Arlington Heights v. Metropolitan Housing Corp., 429 
U.S. 252, 266-68 (1977), the Supreme Court set forth a 
number of “subjects of proper inquiry in determining whether 
racially discriminatory intent existed.” The racial impact of 
the official action was identified as “an important starting 
point.” The historical background of decisions having dis­
parate racial impact and the contemporary statements of 
members of the decision-making body were also types of 
evidence considered relevant. The Court quite recently re­
viewed the standard of proof for constitutional violations 
and held that “actions having foreseeable and anticipated dis­
parate impact are relevant evidence to prove the ultimate 
fact, forbidden purpose.” Columbus Bd. o f Education v. Penick, 
—  U.S. — , 47 U.S.L.W. 4924, 4928 (July 2, 1979). The 
foreseeable effects standard may be employed “as one of the 
several kinds of proofs from which an inference of segrega­
tive intent may be properly drawn.” Id. In short, discrimina­
tory intent may be established by any evidence which logically 
supports an inference that the state action was characterized 
by invidious purpose.

The district court erred in treating evidence of disparate 
impact of hiring and promotion practices as having no pro­
bative value. It found no relevance in the longstanding and 
gross underrepresentation of blacks on the Detroit police force. 
Its suspicions were not aroused by its own finding that the 
pre-1973 entry level written examination had serious flaws 
which tended to work against black applicants.

The court similarly erred in finding that there was no evi­
dence on the record of disparate treatment. 446 F.Supp. at 
1013. In light of uncontradicted evidence of discriminatory

30 Detroit Police Assn., et al. v. Young, et al. No. 78-1163 No. 78-1163 Detroit Police Assn., et al. v. Young, et al. 31

treatment in job assignments, this finding was clearly errone­
ous. There was uncontradicted evidence that the traditional 
practice of the Detroit police department had been to assign 
black officers to foot patrols only, denying them the use of 
patrol cars for years. After assignment of black officers to 
scout cars was begun, there were “white” and “black” cars. 
If the only black car was in use or out of operation black 
officers were required to walk rather than being permitted to 
use a white car. Black officers were permitted to work only 
in black neighborhoods. It was also uncontradicted that the 
traditional practice had been to exclude black officers from 
assignments to certain desirable details. Further, black of­
ficers were rarely given visible posts at headquarters and for 
many years black and white officers were never paired.

The natural consequence of these practices was to make 
police work unattractive to blacks and to limit the experience 
of blacks who were employed as police officers in ways which 
could hinder their chances for advancement. No non- 
discriminatory explanation was given for any of these practices. 
On the contrary, past and present uniformed police officers 
and civilian officials were convinced that these practices rep­
resented purposeful discrimination. Unlike the district court, 
we believe that evidence of these practices and their conse­
quences was entitled to serious consideration.

When veteran police officers attempted to state the reasons 
for these practices as related to them by their former police 
supervisors, the evidence was excluded as hearsay. Thus 
while the district court required proof of discriminatory pur­
pose, it excluded the most probative evidence on the issue: 
contemporaneous statements by persons in positions to know 
the purpose of the Department’s traditional practices. Ex­
clusion of this evidence of discriminatory purpose as hearsay 
was error under the Federal Rules of Evidence. Rule 803(3)'® 10

10 Rule 803(3) states:
A statem pnnfX/lne'i-io (nent?!> emotional, or physical condition. A statement of the declarant s then existing state of mind, emo-



32 Detroit Police Assn., et al. v. Young, et al. No. 78-1163

makes such testimony admissible as an exception to the hear­
say rule, regardless of whether the declarant is available as a 
witness.

The City’s own determination that it had been guilty of 
racial discrimination in the past was also entitled to more 
serious consideration than the district court gave it. The 
resolution approved by the Board of Police Commissioners 
conceded the role of prior discrimination in creating the De­
partment’s racial imbalance. In light of this admission, the 
statistical evidence of disparate impact, the tradition of dis­
criminatory treatment and the testimonial evidence of dis­
criminatory purpose, we believe it was error for the district 
court to require the city to prove specific acts of discrimina­
tion and produce the individual victims of these acts.

We have no such clear authority in dealing with the consti­
tutional issues as W eber supplies with respect to Title VII. 
However, we conclude that the opinion of Justices Brennan, 
White, Marshall and Blackmun in Regents of the University 
of California v. Bakke, supra, 438 U.S. at 324, offers the most 
reasonable guidance. Applying the principles set forth in that 
opinion, we conclude that the district court committed a 
number of errors of law.

Thus it was error to require proof that the persons receiving 
the preferential treatment had been individually subjected 
to discrimination, for “it is enough that each recipient is within 
a general class of persons likely to have been the victims 
of discrimination.” Bakke, supra, 438 U.S. at 363.

And, rather than requiring a direct showing of past inten­
tional discrimination by the City of Detroit against identified 
individual black applicants for hiring and promotion, the dis­
trict court should have determined first whether appropriate

tion, sensation, or physical condition (such as intent, plan, 
motive, design, mental feeling, pain, and bodily health), but 
not including a statement of memory or belief to prove the 
fact remembered or believed unless it relates to the execu­
tion, revocation, identification, or terms of declarant’s will.

No. 78-1163 Detroit Police Assn., et al. v. Young, et al. 33

findings were made by a public body “with competence to act 
in this area.” Id. at 325.

It was also error to require that there be judicial determina­
tion of past discrimination for a state to undertake a race­
conscious remedy, as stated by the district court. This re­
quirement would be “self-defeating” and would “severely un­
dermine” voluntary remedial efforts. Id. at 364.

It is apparent that the district court misapprehended the 
nature of remedial race-conscious action and failed to conduct 
the proper inquiry into such action. As the four Justices 
wrote in Bakke, earlier cases involving discrimination against 
minorities are often inapposite and a more precise meaning 
of strict scrutiny is required when considering state action 
taken for the purpose of remedying past discrimination 438 
U.S. at 357.

Thus it appears that, rather than requiring a direct show­
ing of past intentional discrimination by the City of Detroit 
against identified individual black applicants for hiring and 
promotion the district court should have considered the find­
ing by the BPC, a public body with competence to act. 
This should have led to the following inquiries, at least: 
whether there is a sound basis for concluding that minority 
underrepresentation is substantial and chronic and that the 
handicap of past discrimination is impeding access [and promo­
tion] of minorities . . .” Id. at 362; whether any discrete group 
or individual is stigmatized and whether use of race is rea­
sonable in light of the objectives of the plan. Id. at 373-76 
If this analysis establishes the need for remedial action, the 
test of reasonableness requires a showing that no other ap­
proach offers a practical means of achieving the ends of the 
program in the foreseeable future. Id. at 376. If the affirma­
tive action plan satisfies these criteria, it does not violate the 
Equal Protection Clause of the Fourteenth Amendment. The 
district court conducted none of these inquiries, and its finding 
that the affirmative action program violated the constitutional 
rights of the plaintiffs must be reversed.



34 Detroit Police Assn., et al. v. Young, et ail. No. 78-1163 

B. Operational Needs

The defense of operational requirements is claimed by the 
defendants to be an independent justification for the affirmative 
action plan." The basis of the claim is that improved law en­
forcement is a sufficiently important reason in itself for af­
firmative action.

As noted above, the district court gave little consideration 
to the testimony of high-ranking police officers that a more 
representative black presence on the Detroit force was re­
quired. The court referred to the “provincial beliefs” on which 
the claim was based and characterized the argument as a 
simplistic claim that blacks communicate better with blacks.

The argument has considerably more substance. It is based 
on law enforcement experience and a number of studies con­
ducted at the highest levels. E.g., National Advisory Commis­
sion on Criminal Justice Standards and Goals, Police (1973); 
National Commission on the Causes and Prevention of Vio­
lence, Final Report: To Establish Justice, To Insure Domestic 
Tranquility (1969); Report of the National Advisory Commis­
sion on Civil Disorders (1968); President’s Commission on 
Law Enforcement and Administration of Justice, Task Force 
Report: The Police (1967). As these reports emphasize, the 
relationship between government and citizens is seldom more 
visible, personal and important than in police-citizen contact. 
See To Establish Justice, supra at 145; Report on Civil Dis­
orders, supra at 300 (New York Times edition). It is criti­
cal to effective law enforcement that police receive public co­
operation and support. Report on Civil Disorders, supra, at 301; 
Task Force Report: The Police, supra at 144-45, 167; Police, 
supra, at 330. 11

11 The district court believed that defendants also intended to as­
sert operational needs as a defense to Title VII under Section 703(3), 
which provides for a limited statutory exception based on “bona 
fide occupational qualifications.” However, the argument seems to us 
intended as a defense to the claimed equal protection violation rather 
than the Title VII claims.

No. 78-1163 Detroit Police Assn., et al. v. Young, et al. 35

These national commissions recommended the recruitment 
of additional numbers of minority police officers as a means 
of improving community support and law enforcement effec­
tiveness. In fact, the benefits of Negro officers were recognized 
as early as 1931 by the “Wickersham Commission.” Report on 
the Causes o f Crime 242, National Commission on Law Ob­
servance and Enforcement (Vol. I, 1931).

In 1967, a presidential commission stated the proposition 
offered by the defendants in this case:

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.

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

If minority groups are to feel that they are not policed 
entirely by a white police force, they must see that Negro 
or other minority officers participate in policymaking and 
other crucial decisions.
Id. at 172.

The presence of a mostly white police force in minority 
communities can be a “dangerous irritant” which can trigger 
as it did in Detroit in 1967, a violent response. Report on 
Civil Disorders, supra at 315, 120; see also id. at 84-108 
(chronology of events of 1967 Detroit civil disorders).

The testimony of defense witnesses in this case was com­
pletely consistent with the findings of these studies and with 
the view widely accepted in law enforcement that a police 
force must reflect the makeup of the community it serves 
Former Police Commissioner John F. Nichols testified to a 
keen awareness of “the community requirement and the socio­
political reality that required a higher percentage of black



30 Detroit Police Assn., et al. v. Young, et al. No. 78-1163

officers to be made a part of the Department.” Chief of 
Police William II. Hart testified that this need involves the 
trust between a community and its police force and that rep­
resentativeness is essential to citizen cooperation and crime 
prevention. He also stated that the need is much deeper than 
a perception that persons of tire same race communicate bet­
ter with each other than with someone from a different racial 
group. James Bannon, Executive Deputy Chief with 28 years 
of experience on the force and a doctoral degree in sociology, 
also testified. In addition to his testimony regarding his­
torical discriminatory treatment of black officers in Detroit, he 
cited both the need for more black officers to perform spe­
cialized tasks such as surveillance and the need to improve the 
community’s perception of police. He viewed affirmative ac­
tion as a tool needed to change an image of the police among 
black Detroit residents as part of the white establishment 
with little interest in their problems.

The argument that police need more minority officers is not 
simply that blacks communicate better with blacks or that 
a police department should cater to the public’s desires. Rath­
er, it is that effective crime prevention and solution depend 
heavily on the public support and cooperation which result 
only from public respect and confidence in the police. In short, 
the focus is not on the superior performance of minority offi­
cers, but on the public’s perception of law enforcement 
officials and institutions. It is therefore apparent that the dis­
trict court misconstrued this justification for affirmative action, 
and that the justification offered by defendants is a substan­
tial one.

C. The 50/50 Promotion Ratio

Because the district court focused on other issues, the 
record is incomplete with respect to the propriety of the 
50/50 promotional ratio adopted by the Department. The

No. 78-1163 Detroit Police Assn., et al. v. Young, et al. 37

test to be applied is whether the voluntarily adopted ratio 
is reasonable.

The reasonableness test includes a determination whether 
the affirmative action plan is “substantially related” to the ob­
jectives of remediation of prior discrimination and improved 
law enforcement. Bakke, supra at 359. A racial preference plan 
is reasonable when it provides an effective remedy for past 
discrimination without unnecessarily trammeling the interests 
of white candidates for promotion. W eber, supra, —  U.S. at
---- , 47 U.S.L.W. at 4855. The reasonableness test has been
applied by the federal courts on review of quotas ordered 
by trial courts. See, e.g., Tullio, supra, 493 F.2d at 374-75; 
Carter v. Gallagher, 452 F.2d 315, 330-31 (8th Cir. 1971) (en 
banc), cert, denied, 406 U.S. 950 (1972); see also United 
States v. Chicago, supra, 549 F.2d at 436-37 (abuse of discre­
tion standard).

On remand, the district court must consider the factors 
enumerated in W eber, supra. It must consider the urgency 
of effectuating the states objectives, practical limitations in 
doing so, and the degree of hardship to be borne by whites. 
However, concern for the interests of white employees cannot 
be allowed to thwart achievement of the state’s goals. It is 
reasonable for some persons innocent of wrongdoing to bear 
some burden12 in order to correct the harsh effects of a griev­
ous wrong of constitutional dimensions and enhance public 
safety by improved law enforcement. See Franks v. Bowman 
Transp. Co., 424 U.S. 747, 774-75, 777-78 (1976); see also 
Teamsters, supra.

The district court should also consider that a goal which 
seeks the same racial proportion among employees as in the 
labor force will ordinarily be reasonable. “[AJbsent explana­

12 This is not a case in which white employees are deprived of 
vested employment rights. At most, the white patrolmen had an 
expectation of promotion under certain conditions. These conditions 
were altered by the BPC under authority of the City Charter See 
Franks v. Bowman Transp. Co., 424 U.S. 747 778 (1976)



tion, it is ordinarily to be expected that nondiscriminatory 
hiring practices 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.” Teamsters, supra, 431 U.S. at 340 n. 20. Although no 
one can say with absolute precision how much of the De­
partment’s racial disparity in employment is due to racial 
discrimination, logic and fairness require a presumption that 
where racial discrimination has been purposeful and per­
vasive, all racial imbalance within the discriminating organi­
zation occurred as its result. See Keyes v. School Dist. No. 1, 
413 U.S. 189, 198-205 (1973).

Thus a ratio requirement equivalent to the racial propor­
tion of the labor market ordinarily achieves the racial balance 
which would have existed but for discrimination.

38 Detroit Police Assn., et al. v. Young, et al. No. 78-1163

V.

CONCLUSION

The basic holding of the district court which appears to 
have been decisive in its treatment of all claims and de­
fenses is that there was no showing of prior discrimination 
by the Detroit Police Department. We believe this conclu­
sion is based on an impermissibly restrictive view of the proof 
in the case. Thus, while conceding that the entry level ex­
aminations used prior to 1973 “may have constituted a source 
of discrimination against blacks,” the court concluded that af­
firmative action was forbidden because no discrimination ex­
isted after installation of the Detroit Furcon exams in that 
year. This holding overlooks completely the continuing effect 
of the pre-1973 exclusionary practices. These practices had 
the effect of freezing the status quo. The fact that job-related, 
non-diseriminatory examinations for sergeant were instituted 
in 1973 did not deprive the City of the power to deal with 
the lingering effects of past discriminatory practices.

No. 78-1163 Detroit Police Assn., et al. v. Young, et al. 39

We have not discussed every argument made by the parties 
and amici curiae. To do so would unreasonably extend what 
is already a lengthy opinion. However, we have treated the 
issues which are central to a decision of this particular case.

The judgment of the district court is reversed and the in­
junction entered by it is vacated. All claims of the plaintiffs 
based on the contention that the affirmative action program 
for promotion to sergeant violates Title VI, Title VII and 
§ 1981 are dismissed. The case is remanded for further con­
sideration of the constitutional issues. This will require a de­
termination of whether it has been established that the De­
partment engaged in intentional discrimination against blacks, 
and if not, whether the affirmative action plan is justified 
under the alternative claim of operational needs. The Dis­
trict Judge to whom the case is assigned will determine 
whether further proof is required.

If the court concludes that prior acts of the Department 
did deprive blacks of rights guaranteed them under the equal 
protection clause, it must then determine whether the affirma­
tive action plan, with its 50/50 ratio, was a reasonable remedial 
response. Bakke and W eber make it clear that a case involving 
a claim of discrimination against members of the white ma­
jority is not a simple mirror image of a case involving claims 
of discrimination against minorities. One analysis is required 
when those for whose benefit the Constitution was amended 
or a statute enacted claim discrimination. A different analysis 
must be made when the claimants are not members of a class 
historically subjected to discrimination. When claims are 
brought by members of a group formerly subjected to dis­
crimination the case moves with the grain of the Constitution 
and national policy. A suit which seeks to prevent public 
action designed to alleviate the effects of past discrimination 
moves against the grain, and the official actions complained 
of must be subjected to the analysis prescribed in W eber 
and the plurality opinion in Bakke which we find controlling.



!

In the event the district court concludes that the affirmative 
action plan may remain in force, it will be necessary to de­
termine a formula for its eventual termination. In approving 
the plan in W eber, the Supreme Court noted that it was a 
temporary measure to eliminate a manifest racial imbalance, 
not a measure to maintain a given balance. Steelworkers v.
W eber, supra, —  U .S .---- , 47 U.S.L.W. at 4855. Unless the
parties are able to agree on provisions for termination of the 
plan in event of its approval, this will be an ingredient of the 
final judgment.

40 Detroit Police Assn., et al. v. Young, et al. No. 78-1163

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