Detroit Police Officers' Association v. Young Joint Brief of Plaintiffs-Appellees
Public Court Documents
October 17, 1978
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Brief Collection, LDF Court Filings. Detroit Police Officers' Association v. Young Joint Brief of Plaintiffs-Appellees, 1978. fc1a62c0-af9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/722337db-bda8-4f6a-b2f3-70751dbf716e/detroit-police-officers-association-v-young-joint-brief-of-plaintiffs-appellees. Accessed April 19, 2025.
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UNITED STATES COURT OF APPEALS
DETROIT POLICE OFFICERS ASSOCIATION,
a Voluntary Mutual Benefit Association, Labor Organization,
Plaintiff-Appellee,
IS
m •Hi
5
“SJI53:
-5 '
M g
* 3 * S 5 S i IS
COLEMAN A. YOUNG,
Mayor of the City of Detroit, et al,
Defendants-Appellants.
r l ! i>
WILLIAM MORGAN, BRIAN BRUNETT
and DONALD PRINCE,
Individually and as Representatives of a Class,
Plaintiffs-Appellees,
vs.
Wlffl
COLEMAN A. YOUNG,
Mayor of the City of Detroit, et al,
Defendants-Appellants.
Appeal from the United States District
Court for the Eastern District of Michigan,
Southern Division
JOTNT BRIEF OF PLAINTIFFS-APPELLEES
DETROIT POLICE OFFICERS ASSOCIATION,
WILLIAM MORGAN, BRIAN BRUNETT AND
DONALD PRINCE
(Counsel on Inside Cover)
COURT INDEX PRESS.. INC. — 215 E. Ninth Street, Cincinnati, Ohio 45202 — (513 ) 24 M45Q
JOHN F. BRADY
THOMAS M. J. HATHAWAY
RILEY and ROUMELL
720 Ford Building
Detroit, Michigan 48226
(313) 962-8255
Counsel for William Morgan, Brian Brunett
and Donald Prince, Plaintiffs-Appellees
WALTER S. NUSSBAUM,
SHELDON H. ADLER, and
ALAN POSNER
NUSSBAUM, McEVOY & ADLER
20833 Southfield Road, Ste. 100
Southfield, Michigan 48075
(313) 569-2666
Counsel for Detroit Police Officers Assn.,
Plaintiff-Appellee
DONALD J. MOONEY, JR.
PAXTON & SEASONGOOD
1700 Central Trust Tower
Cincinnati, Ohio 45202
(513) 352-6760
Co-Counsel for Plaintiffs-Appellees
TABLE OF CONTENTS
Table of Authorities ............................................................. ix
COUNTER-STATEMENT OF ISSUES PRESENTED . . xxix
COUNTER-STATEMENT OF THE C A SE ..................... 1
I. Procedural Background ......................................... . 1
II. Discovery H isto ry ...................................... 3
COUNTER-STATEMENT OF FACTS .............................. 4
I. THE PROMOTIONAL MODEL OF THE DE
TROIT POLICE DEPARTMENT......................... 4
A. The Components of the Model ...................... 4
B. The Written Examination................... 7
1. Richard Caretti and the Development
of the Promotional Examination .............. 7
2. The Resulting Examinations Were Con
tent Valid . .................................. ................. 12
C. Service R atings................................................... 16
D. Seniority .......................................... 18
E. College Credit ......... 19
F. Veterans Preference .......................................... 20
G. Oral Board ......................................................... 20
H. Cumulative Effect of the Promotional Model .. 21
II. THE IMPLEMENTATION OF THE CITY’S
RACIAL PREFERENCE PROGRAM .................. 22
A. Promotions to the Rank of Sergeant Prior to
July 31, 1974 ..................................................... 22
Page
B. The Creation of the Affirmative Action
Program .............................................................. 24
1. The Appointment of Philip G. Tannian
as Commissioner of Police by Mayor
Coleman A. Y oung .......... ......................... 24
2. Hearings Before the Board of Police
Commissioners ............................................ 25
C. Promotions from Personnel Order No. 74-108 .. 29
D. Promotions from Personnel Order No. 75-352 . 32
E. Promotions from Personnel Order No. 76-441 .. 33
III. THE CITY’S AFFIRMATIVE DEFENSE OF
PAST DISCRIMINATION ...................................... 33
A. Promotion and Hiring Policies of The De
troit Police Department Prior to 1968 ........... 33
B. The Department’s Hiring and Recruitment
from 1968 to P resen t.......................................... 36
1. The Vickery Committee and The Devel
opment of a New Entry Level Written
Examination .................................................. 36
2. Accelerated Recruiting Efforts of the De
partment from 1968 to Present . . . . . . . . 39
3. Revisions of Entry Level Qualifications . . 41
(a) Preliminary Screening.......................... 42
(b) Criminal Record .................................. 42
(c) Background Investigation .................. 43
(d) Medical .................................... 43
(e) Oral Boards ....................................... 44
II.
Page
111.
C. The Changing Racial Composition of the De
troit Police D epartm ent...................................... 44
1. Reasons for Under-utilization .................. 44
2. Hiring Rates Within the Detroit Police
Department from 1968 to the Present . . 47
IV. THE CITY’S AFFIRMATIVE DEFENSE OF
OPERATIONAL N EE D S.......................................... 48
A. The Alleged Need to Racially Balance the
D epartm ent......................... 49
1. The Alleged Need for Black Officers In
Surveillance W o rk ........................................ 54
2. The Alleged Reduction in Citizen Com
plaints ........................................................... 54
3. The Purported Decrease in Crime .......... 55
ARGUMENT ....................................................................... 57
I. INTRODUCTION ................................................... 57
A. The Findings of the District Court Must Be
Affirmed Unless Shown to be “Clearly Er
roneous” ............................................................... 58
B. This Court May Not Reverse on Issues or
Arguments Never Presented by the City to
the District Court ............................................. 60
C. This Court May Confirm the Decision of the
District Court on any Ground that Appears
in the R ecord ............................, , . , , ............. .. 61
Page
IV.
Page
D. The Failure of the City to Present Any Di
rect Evidence of its Own Discrimination
Justifies a Conclusive Presumption in Favor
of the Plaintiffs .................................................. 62
E. The Elements in a Prima Facie Case and the
Proper Allocation of the Burden of Proof . . . . 64
II. DEFENDANTS MAY NOT FOIST THE ECO
NOMIC AND SOCIAL BURDENS OF THEIR
ALLEGED PAST WRONGDOING UPON THE
INDIVIDUAL PLAINTIFFS .................................. 66
III. THE CITY’S RACIAL PREFERENCE PRO
GRAM CONSTITUTES UNLAWFUL RACIAL
DISCRIMINATION REGARDLESS OF THE
DEFENDANTS’ CLAIM OF PAST DISCRIMI
NATION AGAINST MINORITIES ...................... 72
IV. THE DISTRICT COURT CORRECTLY HELD
THAT A VOLUNTARY, NON-JUDICIAL RA
CIAL QUOTA WAS UNLAWFUL ...................... 78
A. An Employer Has No Authority to Volun
tarily Impose a Racial Q u o ta .......................... 78
B. The City’s Racial Quota Is Both Unreason
able and A rbitrary ............................................. 84
V. THE RECORD ESTABLISHES A VIOLATION
OF TITLE VI OF THE 1964 ACT ...................... 86
A. The Violation of Plaintiffs’ Rights Under
Title V I ............................................................... 86
B. The Record Shows No Violation of Minority
Rights Under Title VI ............................... 90
V.
VI. THE DISTRICT COURT CORRECTLY
FOUND THAT DEFENDANTS’ RACIAL
Page
QUOTA VIOLATED PLAINTIFFS’ RIGHTS
UNDER 42 USC § 1981 ..................................... ... 91
A. The Record Shows the Plaintiffs:’ § 1981
Rights Were Violated by the Promotional
Quota .................................................. 91
R. The City has Failed to Show a Violation of
§ 1981 in its Pre-1972 Hiring and Promo
tional Practices ................................................. 93
1. § 1981 is a Separate and Distinct Equal
Protection Statute with Standards of Lia
bility Distinct from Title VII ................. 93
2. Congress Intended by Section 1981 to
Prohibit Unconstitutional, Purposeful
Discrimination, Not to Create Liability
Rased on Disproportionate Impact .......... 95
3. Contrary to Teamsters, The City Seeks
to Disregard the Distinction Retween
Pre- and Post-Title VII Hiring Practices . . 97
VII. THE CITY’S RACIAL PREFERENCE QUOTA
VIOLATED TITLE VII OF THE CIVIL
RIGHTS ACT OF 1964, AS AMENDED IN 1972 . 98
A. Title VII Prohibits Discrimination Based on
R ac e ..................................................................... 98
B. Title VII Does not Allow the Granting of
Preferential Promotions to Individuals Not
Shown to be Victims of Past Discrimination . . 102
C. Race is Not a Bona Fide Occupational Quali
fication Under Title VII ................................. 104
VI.
1. Section 703 (e ) Does not Provide for Race
as a Bona Fide Occupational Qualifica
tion ..................................................... 105
2. The City’s Claim of Operational Need is
Based Upon a Stereotype That White
Officers Cannot Perform in the Black
Community .................................................. 106
3. A Customer Preference Does not Warrant
a BFOQ Exemption .................................. 107
VIII. THE CITY FAILED TO ESTABLISH ANY
POST-ACT DISCRIMINATION AGAINST
MINORITIES IN VIOLATION OF TITLE VII
OR OF THE EQUAL EMPLOYMENT OPPOR
TUNITY ACT OF 1972 .......................................... 107
A. A Bona Fide Merit System Does Not Violate
Title VII In The Absence of Intentional
Discrimination .................................................. 107
B. The Equal Employment Opportunity Act of
1972 Requires a Showing of Intent to Dis
criminate By a Public B o d y .............................. 108
C. The Statistics Presented in the District Court
Are Insufficient to Show the City’s Alleged
Past Discrimination . .............................. 110
1. An Employer May Not Rely Solely on
Statistics To Prove a Title VII Violation . . 110
2. Limitations on the Use of Statistics in a
Title VII Case .............................................. I l l
3. The City’s Use of General Population
Data For the City of Detroit Rendered
the Statistics Legally Irrelevant ............... 113
Page
VII.
Page
4. The City’s Statistics Do not Distinguish
Between Pre-Act and Post-Act Discrimi
nation ..................................... 114
D. The District Court Properly Found That
There Was No Past or Present Discrimina
tion in Promotions............................................. 115
1. The Manner and Means of Promotions
Prior to 1973 ........................... 115
2. The Promotional Model From 1973 to
the Present ..................................... 116
(a) Adverse Im p a c t.................................. 117
3. Performance Evaluations .......................... 118
4. The Promotional E xam s.......................... 118
(a) Compliance with Pertinent Guide
lines ....................................................... 118
(b) Validity of the Promotional Exams . . 120
(c) The Development of the Written
Test ....................................................... 121
(d) The Job Analyses ................................ 121
(e) The Use of Rank O rd e r ...................... 124
5. Seniority ..................................................... 125
E. The District Court Properly Found That
There Was No Post-Act Discrimination in
Hiring ............................................................... 126
IX. DEFENDANTS’ RACIAL PREFERENCE
PROMOTION QUOTA WHICH WAS DE
SIGNED TO ACHIEVE A 50/50 RACIAL BAL
ANCE BY EXCLUDING IDENTIFIABLE
WHITE POLICE OFFICERS FROM PROMO
TION, SOLELY BECAUSE OF RACE, VIO
LATES THE FOURTEENTH AMENDMENT . . 128
Vffl.
A. This Court Need Not Review the Fourteenth
Amendment Issues Presented if it Affirms
the District Court Findings of Statutory Vio
lations ............................................................... 128
B. Classifications Based Upon Race Render the
Classification Constitutionally Suspect and
Subject to the Most Rigid Judicial Scrutiny .. 129
C. Defendants Failed To Establish Any Prior
Constitutional Discrimination Against Blacks . 132
D. A Department-Wide Racial Balance Does
Not Constitute A Compelling State Inter
est of Operational Need ......................... 137
CONCLUSION ......................................................... 148
Page
IX.
TABLE OF AUTHORITIES
Federal Cases: page No.
Acha v. Beame, 438 F.Supp. 70 (S.D.N.Y. 1977) .......... 132
Adams v. Texas and Pacific Motor Transport Co., 408 F.
Supp. 156 (E.D. La. 1975) ............................................. 116
Afro-American Patrolmens League v. Duck, 503 F.2d
294 ( 6th Cir. 1974) ......................................................... 117
Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975) . .66, 104
Alexander v. Aero Lodge No. 735, 565 F.2d 1364 (6th
Cir- 1977) ............................................59, 60, 113, 115, 125
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) . . 101
Anderson v. Martin, 375 U.S. 399 (1964) .......................... 131
Anderson v. San Francisco Unified School District, 357
F.Supp. 248 (N.D. Cal. 1972) ........................................ 89
Arado v. United States, 434 U.S. 875 (1977) ..........76, 135
Arnold v. Ballard, 390 F.Supp. 723 (N.D. Ohio 1975) . . 96
Ashwander v. TV A, 297 U.S. 288 (1936) ..................128, 129
Austin Independent School District v. United States
429 U.S. 990 (1976) ..................................................134, 145
Ay on v. Samson, 547 F.2d 466 (9th Cir. 1976) .............. 99
Bannert v. American Can Co., 525 F.2d 104 (6th
Cir. 1975) ........................................................................... 60
Bell v. Southwell, 376 F.2d 659 ( 5th Cir. 1967) .......... 96
Blake v. City of Los Angeles, 435 F.Supp. 55 (C.D.
Cal- 1977) ........................................................................... 132
Blount v. Xerox Corporation, 405 F.Supp. 849 (N D
Cal. 1975) ................................................. 92
X.
Bossier Parish School Board v. Lemon, 370 F.2d 847
(5th Cir. 1967)........................ ........................................... 86
Bossier Parish School Board v. Lemon, 388 U.S. 911
(1967) ............................................................................... 86
Bridgeport Guardians, Inc. v. Members of the Bridge
port Civil Service Commission, 482 F.2d 1333 (2d
Cir. 1973) ................................................................. 73, 81, 85
Bridgeport Guardians, Inc. v. Members of the Bridge
port Civil Service Commission, 421 U.S. 991
(1975) ................................................................... 73, 81, 85
Brown v. Board of Education, 349 U.S. 294 (1954) . . . . 144
Califano v. Goldfarb, 430 U.S. 189 (1 9 7 7 ).......................... 130
Calif ano v. Webster, 430 U.S. 313 (1977) . . . .130, 138, 147
Carson v. American Brands, Inc., 446 F.Supp. 780 (E.D.
Va. 1977) ....................................................................... 81, 103
Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971) ___ 85
Carter v. Gallagher, 406 U.S. 950 (1972) .................... 85
Cassell v. Texas, 339 U.S. 282 (1950) ..................140, 142, 143
Castaneda v. Partida, 430 U.S. 482 (1977) ...................... 136
Cates v. Trans World Airlines, 561 F.2d 1064 ( 2d Cir.
1977) ................................................................................. 126
Chambers v. Omaha Public School District, 536 F.2d
222 ( 8th Cir 1976) .......................................................... 86
Chance v. Board of Examiners, 458 F.2d 1167 (2d
Cir. 1972) ......................................................................... 58
Chance v. Board of Examiners, 534 F.2d 993 ( 2d Cir.
1976)
Federal Cases: Page No.
74
XI.
Chicano Police Officers Assn. v. Stover, 552 F.2d 918
(10th Cir. 1977) ................................................. . .96, 132
City of Los Angeles, Department of Water and Power
v. Manhart, 98 S.Ct. 1370 (1978) ..........102, 103, 106, 143
City of Milwaukee v. Saxbe, 546 F.2d 693 ( 7th Cir
1976) ................................................................................. 96
Cleveland v. Cleveland Electric Illuminating Co., 570
F.2d 123 (6th Cir. 1978) ................................................. 62
Coates v. Illinois State Board of Education, 559 F.2d
445 (7th Cir. 1977) ..................................................... 90, 91
Commonwealth of Pennsylvania v. Glickman, 370 F.
Supp. 724 (W.D. Pa. 1974) ............................................. 81
Cooper v. Aaron, 358 U.S. 1 (1958) ............................131, 144
Cox v. Babcock and Wilcox Co., 471 F.2d (4th Cir. 1972) . 101
Craig v. Alabama University, 451 F.Supp. 1207 (D.
Ala. 1978) ......................................................................... 75
Craig v. Boren, 429 U.S. 190 (1976) ........................... 130
Crockett v. Green, 534 F.2d 715 (7th Cir. 1976) .......... 85
Croker v. Boeing Co., 437 F.Supp. 1138 (E.D. Pa.
1977) 96,116,127
Curran v. Portland School Committee, 435 F.Supp. 1063
(D. Me. 1977) ................................................................. 109
Dandridge v. Williams, 397 U.S. 471 (1970) .................. 62
Davis v. County of Los Angeles, 566 F.2d 1334 (9th
Cir. 1977) ..................................................... .. .93, 96, 97, 109
Federal Cases: Page No.
Defunis v. Odegaard, 416 U.S. 312 (1974) 140, 141
XII.
DeGraffereid v. General Motors Assembly Division, 558
F.2d 480 (8th Cir. 1977) .................................................. 126
Detroit Police Officers Association v. Young, 446 F.
Supp. 979 (E.D. Mich. 1978) ..................................... passim
Diaz v. PanAmerican World Airways, Inc., 311 F.Supp.
559 (D. Fla. 1 9 7 0 ).......... ............................. ............. 105, 106
Diaz v. Pan American World Airways, Inc., 422 F.2d
385 (5th Cir. 1971) ................................................107, 144
Dickerson v. U.S Steel Corp., 439 F.Supp. 55 (E.D.
Pa. 1977) ........................................................................... 96
Federal Cases: Page No.
DiSalvo v. Chamber of Commerce of Greater Kansas
City, 416 F.Supp. 844 ( W.D. Mo. 1976) ...................... 106
Dothard v. Rawlinson,
433 U.S. 321 (1977) ...................... 104, 105, 106, 109, 110
Dunn v. Blumstein, 405 U.S. 330 (1972) .......................... 132
EEOC v. AT&T Co., 556 F.2d 167 (3rd Cir. 1977) . .69, 75, 85
EEOC v. AT&T Co., 98 S.Ct. 3145 (1978) .......................... 85
EEOC v. Detroit Edison Co., 515 F.2d 301 (6th Cir.
1Q75) ............................................................................... 77, 84
EEOC v. Detroit Edison Co., 431 U.S. 951 (1977) . . . .77, 84
EEOC v. Local 14, International Union of Operating
Engineers, 553 F.2d 251 (2d Cir. 1 9 7 7 ).......................... 113
EEOC v. Local 638, Sheetmetal Workers International
Association, 532 F.2d 821 (2d Cir. 1976) ...................... 74
EEOC v. United Air Lines, Inc., 15 FEP Cases 310 (7th
Cir. 1977) ........................................................................... 126
Erie Human Relations Committee v. Tullio, 493 F.2d
371 (3rd Cir. 1974) ...................................................... 85
Espinoza v. Farrah Manufacturing Company, Inc., 414
U.S. 86 (1973) ................................................................... 82
Fesel v. Masonic Home, 428 F.Supp. 573 (D. Del.
1977) 106
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) .................... 109
Flanagan v. President & Directors of Georgetown Col
lege, 417 F.Supp. 377 (D.D.C. 1976) .......................... 89
Fort v. Trans World Airlines, 14 FEP Cases 208 (N.D.
Cal. 1976) ......................................................... H3
Franks v. Bowman Transportation Co., Inc., 424 U.S.
747 ............................ 65, 66, 67, 68, 69, 71, 76, 103, 128
Friend v. Leidinger, 17 EPD If 8392, 5978 (E.D. Pa. 1977) . 110
Frink v. United States Navy, 16 FEP Cases 67 (E.D.
Pa. 1977)......................................................................... n s
Furnco Construction Corporation v. Waters, 98 S.Ct.
2943 (1978) ....................................................................... 100
General Electric v. Gilbert, 429 U.S. 125 (1976) . .82, 83, 101
Germann v. Kipp, 429 F.Supp. 1323 (W.D. Mo. 1977) . . 70
Germann v. Kipp, 572 F.2d 1258 ( 8th Cir. 1978) .............. 70
Gibson v. First Federal Savings & Loan Association of
Detroit, 504 F.2d 826 ( 6th Cir. 1974) .......................... 60
Green v. County School Board of New Kent County,
391 U.S. 430 (1968) ........................................................ 145
Green v. McDonnell Douglas Corp., 528 F.2d 1102
(8th Cir. 1976) ..................... 113
Griffin v. Breckenridge, 403 U.S. 88 (1971) ................... . 95
XIII.
Federal Cases: Page No.
Griffin v. County School Board, 377 U.S. 218 (1964) . . 136
Federal Cases:
x t v . '
(Briggs v. Duke Bower Company, 40.1 U.S. 424
(1971) .................................................... 82, 95, 98,-99, 104
Haber v. Klassen, 540 F.2d 220 (6th Cir. 1976) .. . .64, 92
Harkless v. Sweeny Independent School District, 554 F.
2d 1353 (5th Cir. 1977) .......... ........................... ......... .. 96
Harper v. Kloster, 486 F.2d 1134 (4th Cir. 1973) . . . . , . 81
Harper v. Mayor and City Council of Baltimore, 359 F.
Supp. 1187 (D. Md. 1973) ............................................. 81
Harrison v. Goodyear Tire & Rubber Co., 508 F.2d 678
(5th Cir. 1975) ....................................... ................. . 58
Haynie v. Chupka, 17 FEP Cases 267 (S.D. Ohio 1976) . . 85
Hazelwood School District v. United States, 433 U.S. 299
(1977) ......................97, 104, 109, 110, 112, 113, 114, 127
Heard v. Mueller Co., 464 F.2d 190 (6th Cir. 1972) . .58, 101
Page No;
Helvering v. Gowran, 302 U.S. 238 (1937) ...................... 61
Henman v. Coleman, 428 F.Supp. 447 (D.D.C. 1977) . . 64
Hester v Southern Railway Co., 497 F.2d 1374 (5th Cir.
1974) 115
Hicks v. ABT Associates, Inc., 572 F.2d 960 (3rd
Cir. 1978) ..................................................................... .. 64.,
Hills v. Gautreaux, 425 U.S. 284 (1976) ......................... 95
Hirabayashi v. United States, 320 U.S. 81 (1943) .......... 132
Hormel v. Helvering, 312 U.S. 552 (1941) ...................... 61
Howard v. Ward County, 418 F.Supp. 494 (D.N.D.
1976) 109
Hughes v. Superior Court, 339 U.S. 460 (1950) .. 140, 142, 143
Institute for Racial Equality v. City of St. Louis, 549
F.2d 506 ( 8th Cir. 1977) 1 2 0
Federal Cases:
International Brotherhood of Teamsters v. United States,
431 U.S. 324 (1977) ......... 63, 65, 71, 75, 76, 79, 83, 84, 97,
103, 104, 108, 110, 111, 112, 113,
115,125,137
J.E. Riley Investment Co. v. Commissioner of Internal
Revenue, 311 U.S. 55 (1940) ......................................... 61
Jackson v. Nassau County Civil Service Commission, 424
F.Supp. 1162 (E.D. N.Y. 1976) .................. .. 120
Jennings v. Patterson, 488 F.2d 436 (5th Cir. 1974) . . . . 95
Johnson v. Alexander, 572 F.2d 1219 (8th Cir. 1978) . . . . 96
Johnson v. Lybecker, 15 FEP Cases 300 (D. Ore.
1977) ........................................................................... 115, 116
Johnson v. Railway Express Agency, Inc., 421 U.S. 454
(1975) ............................................................................... 93
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) . . .94, 95
Jurinko v. Wiegand Co., 477 F.2d 1038 ( 3rd Cir.
1973) 62, 106, 143
Keyes v. School District No. 1, Denver, Colo., 521 F.2d
465 (10th Cir. 1975) ..................................................... 62
Keyes v. School District No. 1, Denver, Colo., 413 U.S.
189 (1973) .......................................................... 134, 136, 137
Kinsey v. First Regional Securities, Inc., 557 F.2d 830
(D.C. Cir. 1977) ............................................................... 113
Kirkland v. New York State Department of Correctional
Services, 374 F.Supp. 1361 (S.D. N.Y. 1974) ..........81, 122
-Kirkland, v. New York State Department of Correctional
Services, 520 F.2d 420 (2d Cir. 1975) ..................73, 74, 81
Knetch v. United States, 364 U.S. 361 (1960) . . .......... 61
XVv-
Page No.
Korematsu v. United States, 323 U.S. 214 (1944) .......... 132
XVI.
Kramer v. Union School District, 395 U.S. 621
(1969) ............................................................... 138,145,146
Kremens v. Bartley, 431 U.S. 119 (1977) ................ 128
Lane v. Wilson, 307 U.S. 268 (1939) .......................... 136
Lewis v. Bethlehem Steel Corp., 440 F.Supp. 949 (D.
Md. 1977) ........................................................................... 96
Lewis v. Tobacco Workers Union, 577 F.2d 1135 (4th
Cir. 1978) .......................................................................... 100
Lightfoot v. Gallo Sales Co., 15 FEP Cases 615 (N.D.
Cal. 1977) .......................................................................... 113
Lim v. Citizens Savings & Loan Assn., 430 F.Supp.
802 (N.D. Cal. 1976) ...................................................... 113
Long v. Ford Motor Co., 496 F.2d 500 (6th Cir.
1974) 92, 99
Loving v. Virginia, 388 U.S. 1 (1967) ..............131, 132, 142
Mammoth Oil Co. v. United States, 275 U.S. 13 (1927) .. 63
Mapp v. Board of Education of Chattanooga, 525 F.2d
169 (6th Cir. 1975) ........... 145
Massachusetts v. Westcott, 431 U.S. 322 (1976) .............. 128
Mayer v. Missouri State Highway Commission, 567 F.
2d 804 (8th Cir. 1977) ...................................................... 64
McAleer v. American Telephone and Telegraph Co.,
416 F.Supp. 435 (D.D.C. 1976) ...................... .......... 69, 76
McDonald v. Santa Fe Trail Transportation Company,
427 U.S. 273 (1976) ..........64, 65, 82, 83, 92, 94, 98, 99
McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973) ...................................................... 64, 65, 98, 99,101
Federal Cases: Page No.
XVII.
Federal Cases: Page No.
McLaughlin v. Florida, 379 U.S. 184 (1964) ..............131, 132
Milbank Mutual Insurance Co. v. Wentz, 352 F.2d 592
(8th Cir. 1965) ...................................... 63
Millikenv. Bradley, 418 U.S. 717 (1974) . .137, 139, 140, 142
Milwaukee v. Saxbe, 546 F.2d 693 ( 7th Cir. 1976) . . . . 62
Mitchell v. Board of Trustees of Pickens County School
District “A”, 415 F.Supp. 512 (D.S.C. 1976) .............. 106
Mitchell v. Mid-Continent Spring Co., 17 FEP Cases
1594 (6th Cir. 1978) ..................76, 81, 103, 104, 106, 143
Moffet Tunnel Improvement District v. Denver & St.
Louis Railway Co., 45 F.2d 715 (10th Cir. 1930) . . . . 61
Mohone v. Waddle, 564 F.2d 1018 (3rd Cir. 1977) . . . . 128
Monell v. Department of Social Services, 532 F.2d 259
(2d Cir. 1976) ................................................................. 114
Monell v. Department of Social Services, 98 S.Ct. 2018
(1978) 114
Monroe v. Board of Commisisoners, 391 U.S. 450
(1968) ........................................................... .......... 144,145
Morgan v. Kerrigan, 509 F.2d 599 (1st Cir. 1975) .......... 85
Morgan v. Kerrigan, 530 F.2d 401 (1st Cir. 1976) ........... 144
Moss v. Lane Co., Inc., 471 F.2d 853 (4th Cir. 1973) .. 101
Myers v. Gilman Paper Corp., 556 F.2d 758 ( 5th Cir.
1977) ......................................................................... 125, 126
Myers v. Gilman Paper Co., 434 U.S. 801 (1977) .......... 126
NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974) . .74, 75, 85
x v ih
NAACP v. Laming Board of Education, 559 F.2d 1042
(6th O r. 1977) .................................................................. 136
Nashville Gas Co. v. Satty, 98 S.Ct. 347 (1977) .......... I l l
National League of Cities v. Usei-y, 426 U.8. 833 (1976) . . 109
Oburn v. Schapp, 521 F.2d 142 (3rd Cir. 1975) .............. 85
Olzman v. Lake Hills Swim Club, Inc., 495 F.2d 1333
(2d Cir. 1974) .................................................................. 96
Opara v. Modern Manufacturing Co., 434 F.Supp. 1040
(D. Md. 1977) ................................................. 112
Ortiz v. Bach, 14 FEP Cases 1019 (D. Colo.
1977) ............................................................74, 75, 117, 126
Pasadena City Board of Education v. Spangler, 427 U.S.
424 (1976) ..........................................................133, 140, 142
Patterson v. American Tobacco Co., 8 FEP Cases 778
(E.D. Va. 1974) ........................................................... 70, 81
Patterson v. American Tobacco Co., 535 F.2d 257 ( 4th
Cir. 1976) cert, denied 429 U.S. 920 . . . .70, 81, 100, 114
Pennsylvania v. O’Neill, 348 F.Supp. 1084 (E.D. Pa.
(1972) ........................................................................... 74, 81
Perham v. Ladd, 436 F.Supp. 1101 (N.D. 111. 1977) . .113, 114
Pettit v. United States, 488 F.2d 1026 (Ct. Cl. 1973) . . . . 64
Presseisen v. Swarthmore College, 15 FEP Cases 1466
(E.D. Pa. 1977) ............................................................... 115
Reeves v. Eaves, 411 F.Supp. 531 (N.D. Ga.
1976)
Federal Cases: Page No.
79, 80, 81
Federal Cases:
Regents of the University of California v. Bakke, 98
S.Ct. 2733 (1978) .............79, 86, 87, 89, 99, 103, 129, 130
131, 132, 134, 137, 138, 139, 140,
142, 146, 147
Ridinger v. General Motors Corp., 325 F.Supp. 1089
(S.D. Ohio 1971) ............................................................. 107
Ridinger v. General Motors Corp., 474 F.2d 949 ( 6th
Cir. 1972) ......................................................................... 107
Rizzo v. Goode, 423 U.S. 362 (1976) ............................ 137
Robinson v. Union Carbide Corporation, 538 F.2d 652
(5th Cir. 1976) ................................................................. 127
Roman v. ESB Inc., 550 F.2d 1343 (4th Cir. 1976) . . . . 112
Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (9th
Cir. 1971) ................................................... ............... 106, 143
Ruckel v. Essex International, Inc., 14 FEP Cases 403
(N.D. Ind. 1976) ....................... ......................... .. . 106, 107
Rundle v. Humane Society of Missouri, 12 FEP Cases
444 (E.D. Mo. 1975) ........................................... 107
Runyon v. McCrary, 427 U.S. 160 (1976) ..................94, 95
Sanders v. John Nurveen & Co., Inc., 554 F.2d 790
(7th Cir. 1977) ................................................... 61
Sapp v. Renfroe, 511 F.2d 172 (5th Cir. 1975) .............. 62
Schneider v. Electric Auto-Lite Co., 456 F.2d 366 (6th
Cir. 1972) ......................................................................... 60
Scott v. City of Anniston, 430 F.Supp. 508 (N.D. Ala.
1977) 110
SEC v. Chenery Corporation, 318 U.S. 80 (1943)
Page No.
61
XX.
Senter v. General Motors Corp., 532 F.2d 511 (6th
Cir. 1976) .......................................................... 58, 110, 111
Shelly v. Kraemer, 334 U.S. 1 (1948) ................................ 131
Sherril v. /. P. Stevens & Co., Inc., 410 F.Supp. 770
(W.D.N.C. 1975) .............................................................. 77
Sherril v. J. P. Stevens & Co., Inc., 551 F.2d 308 (4th
Cir. 1977) ........... 77
Shipp v. Memphis Area Office, Tennessee Department
of Employment Security, No. 76-1515 (6th Cir. Aug.
7, 1978) ............................... 58
Shuell v. London Amusement Co., 123 F.2d 302 (6th
Cir. 1941) .......................................................................... 63
Sims v. Local 65, Sheetmetal Workers, 489 F.2d 1023
(6th Cir. 1973) .................................................................. 85
Sipuel v. Board of Regents, 332 U.S. 631 (1948) .......... 129
Skidmore v. Swift Co., 323 U.S. 134 (1940) ...................... 83
Smith v. Board of Education of Morrilton School Dis
trict No. 32, 355 F.2d 770 (8th Cir. 1966) ................ 145
Smith v. South Central Bell Telephone Co., 518 F.2d
68 (6th Cir. 1975) ...................................................... 58, 136
Smith v. Texas, 311 U.S. 128 (1940) .................................. 144
Snowden v. Hughes, 321 U.S. 1 (1944) ............................ 134
Spector Motor Co. v. McLaughlin, 323 U.S. 101 (1944) . . 128
Spencer v. Kugler, 404 U.S. 1027 (1 9 7 2 )......................142, 143
Sprogis v. United Airlines, Inc., 444 F.2d 1194 (7th
Cir. 1971) ..................................................106, 107, 143, 144
Federal Cases: Page No.
XXI.
Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971) . .137, 139, 140, 141, 142, 143, 145, 146
Sweatt v. Fainter, 339 U.S. 629 (1950) .............................. 129
Taylor v. Canadian National By. Co., 301 F.2d 1 (2d
Cir. 1962) ......................................................................... 63
Thompson v. McDonnell Douglas Corp., 416 F.Supp.
972 (E.D. Mo. 1976) ..................................... 64, 113, 118
Thompson v. McDonnell Douglas Corp., 552 F.2d 220
(8th Cir. 1977) ................................................................ 113
Tillman v. Wheaton-Haven Recreation Assn., Inc., 410
U.S. 431 (1973) ......................................... .................... 94
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63
(1977) ............................................76, 82, 98, 99, 108, 125
United Air Lines v. Evans, 431 U.S. 553
(1977) ......................................................... 108, 115, 125
United Broadcasting Co., Inc. v. Armes, 506 F.2d 766
(5th Cir. 1975) ................................................................. 63
United Jewish Organizations v. Carey, 430 U.S. 144
(1977) 137, 139, 141
United States v. City of Alexandria, 16 FEP Cases 930
(E.D. Va. 1977) ............................................................... 81
United States v. City of Chicago, 549 F.2d 415 (7th
Cir. 1977) ............................................. 58, 76, 96, 118, 135
United States v. City of Milwaukee, 395 F.Supp. 725
(E.D. Wis. 1975) ............................................................... 109
United States v. City of Philadelphia, 17 FEP Cases
168 (3rd Cir. 1978)
Federal Cases: Page No.
85
XXII.
United States v. International Brotherhood of Electrical
Workers, Local No. 38, 428 F.2d 144 (6th Cir. 1970) .. 100
United States v. Masonnj Contractors Assn., 497 F.2d
871 (6th Cir. 1974) ......................................................... 85
United States v. Montgomery Board of Education, 395
U.S. 225 (1969) ........ ........................................... ...142, 146
United States v. N.L. Industries, 479 F.2d 354 ( 8th
Cir. 1973 ) ........................................... . . ......... ... 85
United States v. Scotland Neck City Board of Educa
tion, 407 U.S. 484 (1972) ......................................... 144
United States v. State of New Hampshire, 539 F.2d 227
(1st Cir. 1976) .................. ............. ................................. 109
United States v. State of New Hampshire, 429 U.S. 1023
(1976) 109
United States v. State of North Carolina, 425 F.Supp.
789 (E.D. N.C. 1977) .................................... .. 132
United States v. State of So. Carolina, 15 FEP Cases
1196 (D.S.C. 1977) .............................., . . . - ............... 96, 123
United States v. State of South Carolina, 434 U.S. 1026
(1977) ..................... 123
United States v. Trucking Employers, Inc., 561 F.2d
313 (D.C. Cir. 1977) ...................................................... 126
United States v. United States Gypsum Co., 333 U.S.
364 (1948) .................................'....................................... 58
United States v. University of Maryland, 438 F.Supp.
742 (D. Md. 1977) ....................................................... 114
Veizaga v. National Board of Respiratory Therapy, 13
EPD 1T11, 525 (N.D. 111. 1977) .......................................... 96
Village of Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S.
252 (1977) ....................109, 110, 133, 134, 135, 136, 137
Federal Cases; Page No.
xxm.
Washington v. Davis, 426 U.S. 229
(1976) ......................95, 96, 109, 120, 132, 134, 135, 136
Watkins v. United Steelworkers of America, 369 F.
Supp. 1221 (E.D. La. 1974) ..........................................70, 71
Watkins v. United Steelworkers of America, 516 F.2d
41 (5th Cir. 1975) ......................................................... 70
Weber v. Aetna Casualty & Surety Co., 406 U.S. 164
(1972) ......................................................................... . , 1 4 6
Weber v. Kaiser Aluminum Co., 563 F.2d 216 (5th
Cir. 1977) ..................................................... 76, 79, 100, 101
Weeks v. Southern Bell Telephone Co., 408 F.2d 228
(5th Cir. 1969) ..........................................................106, 143
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) .............. 130
Weinhart v. Aetna Insurance Co., 249 F.2d 40 (6th Cir.
1957) ......................................................... ................. . . 63
Weise v. Syracuse University, 522 F.2d 397 (2d Cir.
1975) H4
White v. Carolina Paper Board Corp., 564 F.2d 1073
(4th Cir. 1977) ..................................................... 74, 77, 81
Wiggins v. Spector Freight System, Inc., Nos. 77-1107
and 77-1108 (6th Cir. Sept. 6, 1978) .. , . .......... 115, 125
Williams v. Southern Union Gas Co., 529 F.2d 483
(10th Cir. 1976) ................................................................ 58
Wipper v. Great Lakes Engineering Works, 340 F.2d
727 (6th Cir. 1965) ....................................... 60
Woods v. North American Rockwell Ccrrp., 480 F.2d
644 (10th Cir. 1973) ........................................................... 58
Tick Wo v. Hopkins, 118 U.S. 356 (1886) ..................135, 141
Federal Cases: Page No.
xxrv.
State Cases: Page No.
Chmill v. City of Pittsburgh, 375 A.2d 841
(Pa. 1977) .............................................................. .. . .80, 81
Lige v. Town of Montclair, 72 N.J. 5; 367 A.2d 833
(1976) ............................................................... .............. 74
Rand v. Civil Service Commission, 71 Mich. App. 581;
248 N.W.2d 624 (1976) .............................................. ... 116
Administrative Decisions:
EEOC Dec. No. 74-106, 10 FEP Cases 269 (April 2,
1974) 101
EEOC Dec. No. 75-268, 10 FEP Cases 1502 ( May 30,
1975) ............................................................................. 83, 101
Constitutions:
U.S. Const, amend. XIV ................................................. 94, 131
Statutes:
Federal Statutes:
28 U.S.C. Ǥ 1291 .......................................... 3
28 U.S.C. § 1292(a) ............................................................. 3, 59
Fair Labor Standards Act, c. 676, 52 Stat. 1060 (1938),
as amended, 29 U.S.C. § 201 et. seq................................ 109
Equal Pay Act of 1963, Pub. L. No. 88-38, ■§ 3, 77 Stat.
56 (1963), as amended, 29 U.S.C. § 206(d) .............. 109
42 U.S.C. ■§ 1981 ..........................60, 91, 92, 93, 94, 95, 97, 98
42 U.S.C. § 1982 ................................................................. 94
42 U.S.C. § 1983 Passim
XXV,
Statutes: Page No.
42 U.S.C. § 1985(3) ........................................................... 94
Civil Rights Act of 1964, Title VI, 42 U.S.C. § 2000d
et seq. (1964) ........................................... ... . 82, 86, 87, 90
42 U.S.C. § 2000d ............................................................. 60, 88
42 U.S.C. § 2000d-3 .......................................................... 60,86
Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e
et seq. (1964) ..........64, 78, 82, 93, 97, 98, 106, 114, 144
42 U.S.C. §2000e(b)(1) (1964) (amended 1972) .......... 114
42 U.S.C. § 2000e-l ............................................................Passim
42 U.S.C. '§2000e-2(a)(l) ................................................. 98
42 U.S.C. §2000e-2(e) ....................................................... 105
42 U.S.C. §2000e-2(h) ................................................. 108, 125
42 U.S.C. § 2000e-2(j) ........................................... 99, 100, 102
42 U.S.C. § 3766 ................................................................... 89
Public Works Employment Act of 1976, Pub. L. No. 95-
28, 91 Stat. 116, 42 U.S.C. § 6701 et. seq......... ........... 139
Michigan Statutes:
M.C.L.A. 37.2201 et. seq.; M.S.A. 3.548(201) et. seq................. 81
M.C.L.A. 37.2210; M.S.A. 3.548(210) .............................. 81
Municipal Ordinances:
Charter of the City of Detroit, art. VII, ch. 11,
§7-1114 .......................................................................107, 124
Federal Regulations:
28 C.F.R. § 42.203 ................................................... .......... 90
29 C.F.R. § 60-3.4(b) ......................................................... 118
XXVI.
Federal Regulations: Page No.
29 C.F.R. § 1604.1(a) (1) (iii) ...................................107, 144
29 C.F.R. § 1604.2(a) .......................................................... 106
29 C.F.R. § 1604.2(a) (1) ..........................................106, 143
29 C.F.R. ■§ 1606.1(a) ......................................................... 106
29 C.F.R. § 1607.1 et. seq. (EEOC Guidelines on Em
ployee Selection Procedures) ...................................... 77, 120
29 C.F.R. § 1607.1(b) ......................................................... 119
29 C.F.R. ■§ 1607.3 ............................................................... 119
29 C.F.R. § 1607.3(a) ......................................................... 119
29 C.F.R. § 1607.5 .......................................................... 119, 120
29 C.F.R. § 1607.5(a) ................................................. 120, 121
29 C.F.R. § 1607.5(b) (2) ................................................. 119
29 C.F.R. § 1607.14(c) (1) ..........................................120, 124
29 C.F.R. ■§ 1607.14(c) (9) .............................................. 124
EEOC Proposed Guidelines, 42 Fed. Reg. 64826
(December 28, 1977) ..................................................... 82
Federal Rules of Civil Procedure:
F. R. Civ. P. 52(a) ....................................... ..................... 58
Miscellaneous:
Legislative History:
110 Cong. Rec. 988 (1964) 82
110 Cong. Rec. 2578 (1964) 82
110 Cong. Rec. 7212 (1964) 100
110 Cong. Rec. 7213 (1964) ....................................... 82, 100
Page No.
110 Cong. Rec. 7218 (1964) ............................................ 82
110 Cong. Rec. 8912 (1964) ........................................... 82
110 Cong. Rec. 8921 (1964) ......................................... 82, 99
110 Cong. Rec. 9881 (1964) ............................................ 100
H.R. Rep. No. 914, 88th Cong., 1st Sess. (1963) ............. 99
H.R. Rep. No. 238, 92d Cong., 1st Sess. (1971) ............. 109
S. Rep. No. 415, 92d Cong., 1st Sess. (1971) ................ 109
1972 U.S. Code Cong. & Ad. News 2 1 3 7 ......................... 94
1972 U.S. Code Cong. & Ad. News 2 1 5 4 .............. 109
Interpretative Memorandum of Title VII, H.R. 7152 . .99, 100
Books:
A. Bickel, The Morality of Consent (1975) ...................... 147
N. Glazer, Affirmative Discrimination (1975) .................. 147
Larsen, Employment Discrimination Law, Vol. I ll
(1975) 105
Schlei & Grossman, Employment Discrimination Law
(BNA, 1976) ..................................................................... 105
Periodicals:
Burke and Chase, Resolving the Seniority-Minority Lay
offs Conflict: An Employer-Targeted Approach, 13
Harv. Civ. Rts. - Civ. Lib. L. Rev. 81 (1978) .............. 72
Rostow, The Japanese-American Cases - A Disaster, 54
Yale L.J. 489 (1945) ......................................................... 132
Briefs:
Brief of Amicus Curiae, NAACP Legal Defense and
Education Fund, Inc., in International Brotherhood
of Teamsters v. United S ta te s ..................................... 71
XXVII.
XXIX.
COUNTER-STATEMENT OF ISSUES PRESENTED
(1) WHETHER THE FINDINGS OF FACT OF THE DIS
TRICT COURT ARE CLEARLY ERRONEOUS.
(2) WHETHER DEFENDANTS MAY FOIST THE ECO
NOMIC AND SOCIAL BURDENS OF THE ALLEGED
PAST WRONGDOING UPON THE INDIVIDUAL
PLAINTIFFS.
(3) WHETHER THE CITY’S RACIAL PREFERENCE
PROGRAM CONSTITUTES UNLAWFUL RACIAL
DISCRIMINATION REGARDLESS OF DEFEN
DANTS’ CLAIM OF PAST DISCRIMINATION
AGAINST MINORITIES.
(4) WHETHER THE DISTRICT COURT CORRECTLY
HELD THE VOLUNTARY, NON-JUDICIAL RACIAL
QUOTA UNLAWFUL.
(5) WHETHER THE CITY’S RACIAL QUOTA VIO
LATED TITLE VI OF THE CIVIL RIGHTS ACT
OF 1964.
(6) WHETHER THE CITY’S RACIAL QUOTA VIO
LATED PLAINTIFFS’ RIGHTS UNDER 42 U.S.C
§ 1981.
(7) WHETHER THE CITY’S RACIAL QUOTA VIO
LATED TITLE VII OF THE CIVIL RIGHTS ACT
OF 1964, AS AMENDED IN 1972.
(8) WHETHER THE CITY FAILED TO ESTABLISH
ANY DISCRIMINATION AGAINST MINORITIES IN
VIOLATION OF TITLE VII, AS AMENDED IN 1972.
(9) WHETHER THE CITY’S RACIAL QUOTA VIO
LATED THE FOURTEENTH AMENDMENT RIGHTS
OF THE PLAINTIFFS.
COUNTER-STATEMENT OF THE CASE
I .
I. Procedural Background.
On June 10, 1974, the Detroit Police Officers Association
(hereinafter referred to as the “Plaintiff’ and the “DPOA”)
brought this action in the United States District Court for
the Eastern District of Michigan. Named as Defendants were
the City of Detroit, Mayor Coleman Young, The Board of
Police Commissioners, its individual members, and the Chief
of Police (hereinafter referred to as the “Defendants” and the
“City”). The Complaint alleged that the Detroit Police Depart
ment’s voluntary program of racial preference in promotions,
adopted in July of 1974, passed over white officers seeking pro
motion to the rank of sergeant solely because of race. The
DPOA alleged violations of 42 U.S.C. §§ 1981, 1983, 1985,
2000e and the Fourteenth Amendment.
On August 9, 1976, the Honorable Lawrence Gubow granted
the City’s Motion to Dismiss as to claims asserted against all
Defendants under Title VII of the Civil Rights Act of 1964
and against the City under 42 U.S.C. § 1983. Summary Judg
ment was denied as to the Plaintiff’s claims against individual
Defendants under 42 U.S.C. § 1983 and against all Defendants
under 42 U.S.C. § 1981.
On July 22, 1975, the individual Plaintiffs, William Morgan,
Brian Brunett, and Donald Prince filed a class action against
the Mayor, the Chief of Police, the members of the Detroit
Board of Police Commissioners and the City of Detroit. This
suit incorporated the DPOA’s federal claims and further
claimed violations of the Michigan Fair Employment Practices
Act, M.C.L.A. 423.301 et seq, and Article I, Section 2 of the
Michigan Constitution. This action was assigned to Judge
Fred W. Kaess. Judge Kaess denied Motions to Dismiss and
for Summary Judgment (except as to the individual Plaintiffs’
claim under 42 U.S.C. § 1985).
1
2
On November 18, 1976, Judge Kaess certified the individual
Plaintiffs’ Request for a Class Action and defined the class
as follows:
“All past, present and future qualified white Detroit
Police Officers below the rank of Sergeant who, since
April of 1974, have been or will be denied, because they
are white, their timely promotions to the rank of Ser
geant.”
On March 23, 1977, the DPOA action was reassigned to
Judge Kaess, and both actions were subsequently consolidated
for trial. Thereafter, on May 4, 1977, the Plaintiffs sought a
Preliminary Injunction to restrain promotions authorized pur
suant to the City’s voluntary racial preference program. Testi
mony on the motion was taken from May 25th through May
27th, 1977, when Judge Kaess entered an Order and Prelim
inary Injunction restraining further promotions under the racial
preference program.
The City appealed the Preliminary Injunction and an Ex-
Parte Stay was issued by Judge Edwards on May 28, 1977.
After oral argument, this Court vacated the Injunction on June
23, 1977, and directed that an immediate trial be held on the
merits.
Trial commenced on August 8, 1977 before Judge Kaess and
concluded with oral arguments on December 22, 1977 after
consuming approximately sixty (60) days of trial.
On October 21, 1977, Judge Kaess reinstated the claims of
the individual Plaintiffs under § 1985(3) and the claims of the
DPOA under Title VII of the Civil Rights Act of 1964. Judge
Kaess further allowed Plaintiffs to amend their Complaints
to include a claim under Title VI of the Civil Rights Act of
1964.
By Memorandum Opinion of February 27, 1978, Judge Kaess
found that the City had violated the Plaintiffs’ rights under
42 USC §§ 1981, 1983, 2000d et seq, 2000e et seq, the Four
teenth Amendment to the United States Constitution, Article
I, Section 2 of the Michigan Constitution of 1963, the Michigan
Civil Rights Act of 1977, M.C.L.A. § 37.2101 et seq, and the
Michigan Fair Employment Practices Act, M.C.L.A. § 423.301
et seq. Judge Kaess entered an Order and Permanent In
junction which required Defendants to cease their discrimina
tion on the basis of race and directed that promotions be
made in rank order established under the Charter of the City
of Detroit, §7-1114 (effective July 1, 1974). The issues of
attorneys’ fees, back pay, and other remedies were deferred
to a future date.
On March 16, 1977, the City filed a Notice of Appeal claim
ing an Appeal from a Final Judgment. Plaintiffs deny that
this Court has jurisdiction under 28 U.S.C. § 1291 for the
reason that the February 27, 1978 Order and Permanent
Injunction does not constitute a “Final Order.” Moreover,
jurisdiction does not lie under 28 U.S.C. § 1292(a) for the
reason that the February 27, 1978 Order is not an “Injunction”
within the meaning of that Section, since it merely requires
the City to cease its discrimination based on race. A motion to
dismiss for lack of jurisdiction is now pending in tins court.
Also pending is a Motion to Strike a series of references in
the City’s Brief and in the Brief of Amicus United States to
materials and statistics not in the record on appeal.
II. Discovery History.
In its Brief, the City contends that Plaintiffs failed to carry
their burden of proof on issues of labor market and discrimi
nation in promotions prior to 1973. In light of these argu
ments, Plaintiffs believe that this Court must have an accurate
description of (1) the Defendants’ repeated refusal to comply
with Plaintiffs’ requests for discovery, and (2) the many
Orders entered by the Court to obtain discovery from the City.
(See Exhibit I of this brief for a history of Defendants’ in
transigence in this regard).
The City’s argument that various burdens of proof have
not been met should be examined in the context of the City’s
failure to produce evidence within its exclusive control, as
4
established by Exhibit I. Despite these handicaps, the fol
lowing Statement of Facts demonstrates a record which, with
out a doubt, supports the trial court’s findings of fact.
COUNTER-STATEMENT OF FACTS
The Statement of Facts contained in the Brief for Appellants
Coleman A. Young, et al, and the Brief for the United States
and the Equal Employment Opportunity Commission (EEOC)
as Amicus Curiae, contain many inaccuracies, distortions, and
references to facts and opinions never made part of the record.1
These Briefs do not provide an accurate and complete analysis
of the facts adduced in the court below. This failure of the
Defendants and of Amicus Curiae, United States and EEOC,
necessitates the fifing of this Counter-Statement of Facts.
I
I. THE PROMOTIONAL MODEL OF THE DETROIT
POLICE DEPARTMENT.
A. The Components of the Model.
The record clearly demonstrates that from the years 1969
through 1976, the City of Detroit made a substantial and suc
cessful effort to remove the impact of culture and race from
the criteria used by the Detroit Police Department in pro
moting patrolmen to the rank of sergeant. In fight of these
efforts, the District Court properly held that the implementa
tion of a racial quota in place of a racially neutral and job
related promotional model unlawfully violated the rights of the
Plaintiffs. A demonstration that the promotional model was
racially neutral requires a detailed review of (1) its com
ponents and the weight accorded to them, and (2) the City’s
i T he P la in t if fs have file d , in th is C o urt, a M o tio n to S tr ik e P o rtio n s
o f the S ta tem e n t o f Facts in th e B r ie f fo r A p p e lla n ts and in the B r ie f
fo r the U n ite d S tates and EEO C as A m icu s C uriae . T h e m a tte rs th a t
a re de hors the re co rd are set fo r th in P aragraphs 3 and 4 o f th a t
M o tio n .
5
efforts from 1969 through 1976 to remove any and all disparate
impact upon racial minorities.
Promotions to the rank of sergeant have traditionally been
based upon a weighted promotional model in the Detroit
Police Department. In 1965, the weighted model consisted of
the following elements: written examination (50%); service
rating (35%); seniority (15%); veteran’s preference (2%).
(1233b). In the years 1965 to 1970, the seniority component
was reduced from 15% to 10%. (893a). In 1970, the com
ponents of the promotional model were again changed so that
the written examination was 60%, service ratings were 30%,
seniority was 8%, veteran’s preference was 2%. College educa
tion was added at a weight of 2%. ( 1233b).
In 1971, the DPOA2 requested that the City bargain over
the criteria for promotion to the rank of sergeant. (1912a).
Both Commissioner John Nichols3 and Commissioner Phillip
Tannian4 refused such requests. (878a-879a; 1318a; 1548a-
1549a). During Tannian’s tenure, the DPOA never agreed to
revisions in the promotional components; rather, Tannian uni
laterally implemented the changes without union participation,
(1319a-1320a), merely notifying the Union of proposed
changes in the model. (1913a).
The DPOA filed an unfair labor practice charge with the
Michigan Employment Relations Commission on December
14, 1972 regarding the City’s refusal to bargain. (526b). On
September 28, 1973, Administrative Law Judge James P. Kurtz
2 T he D e tro it P o lice O fficers A ssoc ia tion is the d u ly ce rtif ie d co llec
t iv e b a rg a in in g re p re se n ta tive fo r a l l sw o rn po lice officers b e lo w the
ra n k o f sergeant u n d e r th e M ic h ig a n P u b lic E m p lo ym e n t R e la tions
A c t, M .C .L .A . § 423.201 et seq ; M .S .A . § 17.455(1) et seq.
3 John N ich o ls com m enced h is em p lo ym e n t w i th the D e tro it P o lice
D e p a rtm e n t as a po lice o ffice r in 1942 and rose to the ra n k o f C om
m issioner, w h ic h he h e ld f ro m 1970 u n t i l S ep tem ber 23, 1973. (790a).
4 P h ilip T a n n ia n was E xe cu tive A ss is tan t and E xe cu tive S ecre ta ry
to M a y o r R om an G rib b s fro m N o vem b er 1969 u n t i l S ep tem ber 1973.
(1300a-1301a). In Septem ber, 1973, T a n n ia n was appo in ted P o lice
C om m issioner b y M a y o r G ribbs. (1302a). H e served as C om m is
sioner u n t i l J u ly 1, 1974, w h e n he was appo in ted C h ie f o f P o lice
un de r the n e w D e tro it C ity C h a rte r b y M a y o r C o lem an A . Y oung ;
he con tinu ed in th a t p o s itio n u n t i l S ep tem ber 20, 1976. (1302a).
found that the City had engaged in an unfair labor practice,
and required the City to bargain with the Union over promo
tional criteria. (538b-539b). His Order was ultimately af
firmed by the Michigan Court of Appeals. See, DPOA v. City
of Detroit, 61 Mich. App. 487, 233 N.W.2d 49 (1975), leave
denied, 395 Mich. 756 (1975), rehearing denied, 396 Mich. 989
(1976). Thereafter, in November of 1975, the City began to
negotiate promotional criteria.
While the DPOA was litigating its right to negotiate changes,
the requirements for application for promotion to the rank of
sergeant were dramatically liberalized prior to the December
16, 1973 written examination. (30b-38b). The new require
ments for sitting for the examination substituted college credits
for in-service time as follows:
(1) 12/i years of in-grade service was required for those
officers with less than 15 quarter hours (10 semester
hours) of college credit;
(2) 3 years of in-grade service time was required for
those with at least 15 quarter hours of credit;
(3) 2% years of service time was required with 2 years
of college;
(4) 2 years of service was required with a Bachelor’s
Degree. (30b-38b; 1155a-1156a; 1323a). DPOA
v. Young, 446 F.Supp. 979, 989 (E.D. Mich. 1978).
The reduction in the in-grade service requirements was
intended to (1) give greater opportunity to those who had
recently been hired, including minorities; and to (2) improve
the quality of those officers who were sitting for the promo
tional examination. (795a; 855a-856a; 1055a). DPOA v. Young,
supra, at 490 n.10.
The reduced in-grade service requirement clearly benefited
minorities, since many were hired after 1968. (893a). But
the time and eligibility requirements were the same for black
and white candidates.5 ( 1279a).
5 T he w e igh ts, fo r the 1973 e x a m in a tio n and subsequent p ro m o tio n a l
m od e l w ere the same as in 1970, - (1233b; 36 b). ■ - - -
6
7
A further revision in the components of the promotional
model occurred prior to the examination held on November
17, 1974, as follows: (1) service ratings were reduced from
30% to 15%; (2) an oral board was added constituting 10%;
(3) the written examination was increased from 60% to 65%;
(4) seniority was reduced from 8% to 6%; (5) a veteran’s
preference was no longer placed on top but was included in
the promotional model. (42b; 1153a; 613b-615b). DPOA v.
Young, supra, at 988.
The seniority component was reduced in order to minimize
any adverse impact upon recently hired minorities. (1267a-
1267a.l; 620b-621b). The oral board was added in 1974
to measure factors that had not been measured in other facets
of the promotional model (1107a) and was designed to benefit
those applicants who were not good test writers. (1045a-
1046a). Tannian did not bargain with the Union regarding
the implementation of the oral board and testified that he could,
and did, eliminate any factors in the model that he thought
would be discriminatory. (1455a-1456a).
Except for some tightening of the educational requirements,
the promotional model for the May 23, 1976 test was the
same as in 1975. DPOA v. Young, supra, at 989. (49b; 1425a;
2284a.2) A The history and content of each of the components
of the promotional model wil Inow be discussed.
B. The Written Examination.
1. Richard Caretti and the Development of the
Promotional Examination.
Since 1969, all promotional examinations for the rank of
sergeant have been prepared by Commander Richard Caretti,
Deputy Director of Personnel. (890a-891a; 1014a) 7 In the 6 7
6 T here has n e ve r been any re q u ire m e n t th a t an o ffice r serve in
a specific d e p a rtm e n t o r bu rea u be fo re b e in g ab le to a p p ly fo r p ro
m otion. (81?a-818a).
7 C a re tti rece ived h is B .A . f ro m th e U n iv e rs ity o f D e tro it (1958)
and a M .B .A . f ro m M ic h ig a n S ta te U n iv e rs ity (1968). (886a). H e
8
course of his experience, Caretti has become familiar with at
least 25 promotional models, including those of New York,
Chicago, Omaha, Philadelphia, Indianapolis, Boston and San
Francisco. ( 1122a-1123a). As stated by the District Court,
Caretti’s:
“Competency as the preparer of these examinations and
his qualifications as an expert, has never been disputed by
the defendants.” DPOA v. Young, supra, at 990.
Caretti began Iris career in the Detroit Police Department as
a patrolman. After nine years, he was promoted to Detective,
7th Precinct and later the Robbery Bureau. In 1960, he was
promoted to Detective-Sergeant, at which rank he served
until 1966. (886a-887a). After obtaining his Masters Degree
in 1968, he was assigned as a Lieutenant to the Personnel Ex
aminer’s Office. (886a-887a; 1160a).
In 1969, Commander Caretti was asked by then Commis
sioner Johannes Spreen* S * * 8 to develop a fair and valid promo-
tionel examination. (699a-702a). Caretti consulted with the
New York Civil Service Commission, Pennsylvania State
College and the New York Police Academy in developing
the promotional exam in 1969. (711a-712a)9.
has g ive n num erous w o rk shops a t the U n iv e rs ity o f Chicago, N o r th
w e s te rn U n iv e rs ity , and Case W este rn Reserve U n iv e rs ity , re la te d
to po lice p ro m o tio n a l practices. (886a; 1122a). H e has ta u g h t courses
on personne l a d m in is tra tio n fo r po lice execu tives a t N o rth w e s te rn
U n iv e rs ity and has le c tu re d to p o lice a d m in is tra to rs a t the F .B .I.
A cadem y. (1123a). H e has developed and ana lyzed the p ro m o tio n a l
e xa m in a tio n fo r the ra n k o f sergeant fo r the M ia m i P o lice D e p a rt
m en t. (901a; 1124a).
S Spreen has been S h e rif f o f O a k la n d C o un ty , M ic h ig a n since 1972
and was C om m issioner o f th e D e tro it P o lice D e p a rtm e n t f ro m J u ly
22, 1968 to J a n u a ry 5, 1970. (695a-696a). H e has a B .A . in P o lice
Science and a M aste rs Degree in P u b lic A d m in is tra t io n . Id. M r.
Spreen has in s tru c te d on te s tin g procedures a t the N e w Y o rk
C ity P o lice A cad em y and p re p a re d p ro m o tio n a l exa m in a tio n s fo r the
N e w Y o rk C iv i l S erv ice C om m ission f ro m 1960 to 1970. (709a-710a).
H e w as w i th the N e w Y o rk C ity P o lice D e p a rtm e n t fo r 25 yea rs and
rose to th e p o s itio n o f C om m and ing O ffice r o f O pera tions, a po s itio n
he h e ld f ro m 1964 to 1966. (707a-708a).
9 C om dr. C a re tti te s tifie d tha t, he d id n o t k n o w h o w the p ro m o tio n a l
e x a m in a tio n was developed p r io r to 1969. (1238a). H e n e ve r con-
9
Commander Caretti stated that the 1969 exam and subse
quent exams did not contain I.Q. sections.10 (1049a).
Caretti also eliminated rigid time limits during the exam
because he believed that minorities had a tendency to perform
less well in a restricted time environment. (1049a-1050a).
Caretti prepared the job content areas part of the 1969
exam. (1238a). Mr. Spreen reviewed the 1969 exam
and believed that it was objective and unbiased.11 (712a).
The 1969 format was used in preparing the 1971 promo
tional examination. (1146a). In preparing that exam,
the Department utilized the services of Sim Bernstein & Asso
ciates,12 Dr. Jack Seitzinger, Professor of the Criminal Justice
Program at Wayne State University, Professor Robert Lothian,
and Joseph Eckleberry.13 ( 1015a-1016a; 1145a-1146a).
The changes in the 1969 and 1971 tests were significant.
But even more extensive efforts were made in 1973, 1974 and
1976 to remove cultural bias, if any, from the promotional
test. The District Court found that:
“The objective and charge of Caretti in preparing the
1973, 1974 and 1976 written examinations was to elimi
nate any existing cultural or racial bias of former ex
ducted _ a s tu d y to de te rm in e w h e th e r o r n o t the p ro m o tio n a l e x
am inations w e re d is c r im in a to ry and has n e v e r exam ined o r s tud ied
any o f the p r io r exam ina tions. (1239a-1240a). C a re tti s tated he
d id no t re v ie w any o f the te s tin g procedures p r io r to 1969 and his
o n ly kn o w le d g e o f such p r io r p rocedures w as o b ta in ed fro m the
p ro m o tio n a l exam he to o k in a p p ro x im a te ly 1960. (1242a).
lO T h e 1969 p ro m o tio n a l exam was a c tu a ly p re pa red a t P enn State
by D o c to r N ew m an, (1145a-1146a), head o f th e U n iv e rs ity ’s C r im in a l
Justice P rog ram , and b y P ro fessor H e w it t , head o f th e C r im in a l
Justice P ro g ra m a j the U n iv e rs ity o f W isconsin. T w o exp erts fro m
the N e w Y o rk P o lice D e p a rtm e n t also p a rtic ip a te d . (1014a; 1146a).
11 Com dr. C a re tti tes tifie d th a t th e C ity had records re g a rd in g the
resu lts o f the 1969 and 1971 p ro m o tio n a l exam ina tions. (1174a).
T h is in fo rm a tio n , th o u g h sub jec t to a d iscove ry o rder, was never
rece ived b y P la in tiffs .
12 S im B e rn s te in had p re v io u s ly developed the p ro m o tio n a l e xa m -
Mru710nS Kansas C ity and N e w Y o rk P o lice D epartm ents .
13 D o c to r D e lm o re Landon, D ire c to r o f the G enera l M o to rs P sy
cho log ica l T e s tin g In s titu te , was also a resource person fo r th e 1971
exam and subsequent exams. (1213a).
10
animations by making the examinations as ‘content
valid’ as possible. Caretti was intent upon complying
toith existing federal testing guidelines and totally com
mitted to eliminating old barriers, if any, which curbed
the upward mobility of any racial or ethnic group. DPOA
v. Young, supra, at 990. (Emphasis added.)
In 1973, Comdr. Caretti again called upon his own experi
ence to identify the knowledge and ability necessary to do the
job of sergeant. ( 1011a.l-1021a). He also consulted with
Mr. John Furcon, of the University of Chicago Industrial
Relations Center. ( 1136a-1138a). Mr. Furcon conducted
a systematic examination of the occupational requirements
of the position of sergeant. (616b). The objective of the
project, the District Court found, was “to define the cur
rent essential knowledge, skills or behaviors required for
satisfactory performance in the position of sergeant.” DPOA
v. Young, supra, at 990. (616b). During the course of
the analysis, 300 management employees were administered
a questionnaire which provided detailed content analysis of
supervisory functions. (616b-617b). The results yielded a sci
entifically based occupational analysis that identified necessary'
skills and attributes and provided operational definitions of the
relevance and importance of the many functions involved in
the position. (616b-617b).
Caretti also consulted additional experts, black and white,
on a 50/50 racial basis. (1050a). As found by the
District Court, Caretti also “attempted to achieve a staff
racially composed of both whites and blacks in an effort to
achieve input from both racial groups.” DPOA v. Young, supra,
at 990.
The resulting exams dealt with general orders, training and
information bulletins, Michigan Liquor Control Act provisions,
traffic ordinances, general ordinances, criminal law, funda
mentals of criminal investigation, constitutional law, and super
visory and administrative concepts. These elements repre
11
sented major or critical areas of knowledge required of a
sergeant. ( 1078a-1091a).
For the December 16, 1973 promotional exam, Caretti
employed Dr. Lewis Freedland and Captain Thomas Ross-
man, Chief of the Sterling Heights Police Department, both
of whom had done promotional examinations for a large
number of police departments including Garden City, Michi
gan. (1146a-1147a). Dr. Reginald Wilson, a psychometri
cian, prepared the sections on supervision and community
relations. ( 1069a-1070a; 1148-1149a).14 Comdr. Caretti again
employed the Furcon Job Analysis. ( 1354b). (1148a-1149a).
The November 17, 1974 examination was again prepared
by Comdr. Caretti with additional assistance from Lewis
Freedland, Captain Rossman, Dr. Reginald Wilson, various
lieutenants of the Department, and Joseph Eckleberry.
(1150a). Again, Comdr. Caretti had the benefit of the Furcon
Analysis study. ( 1020a).
In preparing the 1976 examination, Comdr. Caretti had the
assistance of a second job analysis prepared by Dr. Andres
Inn of Wayne State University. (1286b; lOlOa-lOlla; 1148a-
1149a). Dr. Inn analyzed two groups of 20 sergeants and
lieutenants to ascertain the abilities required to perform the
job of sergeant. ( 1011a). A survey form was prepared from
these discussions and forwarded to more than 250 sergeants,
lieutenants and inspectors. (1011a). In addition to the job
analysis by Dr. Inn, the 1976 examination was again prepared
by a broad-based and racially balanced team including the
Wayne State University Criminal Justice Institute, Dr. Reg
inald Wilson, Joseph Eckleberry, and two female lieutenants.
(1151a).
,4 Joe E c k le b e rry , S im B ern s te in , G rea r M itc h e ll, a b la c k lie u te n a n t
in the D e tro it P o lice D e p a rtm e n t, and L t. P a t M a te la n d and tw o
representa tives o f the W ayne S tate U n iv e rs ity C r im in a l Justice
P rog ram assisted in p re p a rin g the exa m ina tion . (1070a-1071a; 1147a-
1148a).
2. The Resulting Examinations Were Content Valid.
Comdr. Caretti testified that, in his opinion, the December
16, 1973, November 17, 1974 and May 16, 1976 exams were
content valid and job related. (1017a; 1061a-1076a; 1121a).15
Caretti intended throughout to comply with the standards
set forth by the EEOC and the American Psychological Associ
ation. (890a-891a). He further defined the process of establish
ing content validity as (1) the identification by job analysis of
the knowledge, skills and abilities required to do the job and
(2) the development of an exam which related to the job
analysis. (1010a). He testified that the exam questions re
lated, inter alia, to the preparation of evidence, Department
procedure, staff and tactical procedure, leadership and com
mand requirements. These subjects related to the jobs a
sergeant would be required to perform. ( 1022a-1029a, 1050a).
Caretti testified that the exam consisted of essential knowl
edge that could not be acquired in a brief orientation. ( 1051a;
1076a). The 1973, 1974 and 1976 exams were the result of
data relating to the job of sergeant received from the special
committee, the Furcon Analysis, the analysis by Dr. Andres
Inn, and Caretti’s own knowledge. (1065a, 1067a, 1073a,
1077a). These job analyses also supported proportional distri
bution of examination questions among the various subjects
tested, ( 1093a), thereby satisfying § 1607.5 of the EEOC
is O n th e D ecem ber 16, 1973 e x a m in a tio n the fo llo w in g sta tis tics
w e re presen ted b y D e fendan ts : 43% o f w h ite m ales passed; 28% o f
b la c k m ales passed; 74% o f w h ite fem ales passed; 67% o f b la ck
fem ales passed. (749b). O n the N o vem b er 17, 1974 e xa m in a tio n
53% o f w h ite m ales passed; 39% o f b la ck m ales passed; 77% o f w h ite
fem a les passed and 100% o f b la c k fem ales passed. (746b). O n the
M a y 23, 1976 e xa m in a tio n , 51% o f th e w h ite m ales passed; 42%
o f the b la ck m ales passed; 79% o f w h ite fem ales passed and 67%
o f b la c k fem ales passed. (743b). C om dr. C a re tti te s tifie d th a t
th e re was no adverse im p a c t u n d e r th e a p p ro p ria te gu ide lines fo r
th e M a y 16, 1976 exam . (1154a). H e fu r th e r stated th a t the p a s s /fa il
s ta tis tics m ig h t n o t show the s ig n ifica n t n u m b e r o f fa ilu re s b y persons
w h o signed in , w ro te the exam fo r o n ly an ho ur, and th e n tu rn e d in
th e exam . (1252a-1254a). C a re tti fu r th e r sta ted th a t a lth o u g h
m in o r ity candidates ten ded to do less w e ll on the e xa m in a tio n , the re
cou ld be reasons o th e r th a n c u ltu ra l b ias and th ere w ere no studies
w h atsoever that indicated job bias in the prom otional exam . (1092a-
1093a).
13
guidelines and the standards of the American Psychological As
sociation. ( 1063a-1064a). The bibliographies used in pre
paring the examinations were selected through a national sur
vey prepared by the University of Chicago. (1070a).
Philip Tannian, who later instituted the promotional quota,
also agreed that the examination was content valid. (1459a).
And, that the Detroit exam was among the best in the country.
(1322a).
In fact, the City represented (boasted) the content validity
of the exam in its EEOP program, (616b), which stated:
“The Department has expended considerable effort and
resources to gain a promotional test that measures up to
the standards mandated under Title VII of the Civil
Rights Act of 1964, the Equal Employment Opportunity
Act of 1972, and the policy guidelines of L.E.A.A. and
E.E.O.C.”16
Commander Caretti’s finding of content validity was sup
ported by the testimony of two expert witnesses, Dr. Stephen
Wollack 17 and Dr. Robert Ebel.18 Dr. Wollock extensively
T he EEO P p ro g ra m was su b m itte d to the M ic h ig a n C iv il R igh ts
Com m ission, the L E A A , the EEOC, and th e D e tro it C o m m u n ity R e la
tions C om m ission a f te r b e ing approved b y T ann ian. (1324a-1325a).
The EEO P was su b m itte d to th e B o a rd o f P o lice C om m issioners and
approved in D ecem ber o f 1975. (1378a-1379a).
i r D r. W o lla c k rece ived h is B a ch e lo r’s Degree and M a s te r’s Degree
in P sycho logy f ro m T e m p le U n iv e rs ity and h is Ph.D. in P sycho logy
fro m B o w lin g G reen U n iv e rs ity . (1998a). H e is a licensed psycho lo
g ist in th e S ta te o f C a lifo rn ia and is P res iden t o f W o lla c k and
Associates, a psych o lo g ica l co rp o ra tio n . (1997a-1998a). W o lla c k has
developed te s tin g procedures on b e h a lf o f num erous in s titu tio n s in
c lu d in g : T he M u n ic ip a l and C o u n ty P o lice D e p a rtm e n ts fo r th e S tate
o f W ash ing ton ; T he Texas C om m ission on L a w E n fo rce m e n t; 150
police de partm ents in the S ta te o f C a lifo rn ia , and a p p ro x im a te ly 30
departm ents in M ich iga n . (1999a-2000a). He has p re v io u s ly tes tified
as an e x p e rt w itness in l i t ig a t io n in v o lv in g th e v a l id ity o f e n try
le ve l tests in f ire and po lice departm ents. (2001a; 1127b).
18 D r. R o b e rt E be l is p re s e n tly em p loyed b y M ich ig a n S tate U n i
v e rs ity as a P ro fe ssor o f E duca tio n and P sycho logy. He ho lds a Ph.D.
degree in E d u ca tio n a l P sycho logy f ro m the U n iv e rs ity o f Io w a (1974).
(1937a). He was Ass’t D ire c to r and D ire c to r o f the U n iv e rs ity o f
Iow a E x a m in a tio n S erv ice f ro m 1945 to 1957. In 1957, he became
V ice -P res id en t o f the E d u ca tio n a l T es ting Service. (1938a). D r.
Ebel was P re s id e n t o f D iv is io n 5 o f the A m e rica n P sycho log ica l
14
examined and statistically analyzed the December 16, 1973
and November 17, 1974 sergeant’s examinations, eligibility
lists, and job analyses, as well as the previous testimony of
Comdr. Caretti. (2014a). He testified that the development
process of the examination was in conformance with the stand
ards of the American Psychological Association, (2015a), and
that the examination dealt directly with the tasks which must
be performed by a sergeant. (2015a-2022a). Dr. Wollack
further testified that the job analysis prepared by Dr. Inn
established a high degree of correlation between the content
of the 1973 and 1974 exams and the requirements of the ser
geant’s job. (2016a-2017a, 2024a). Dr. Wollack further testi
fied that the failure to prepare a validation study was not cri
tical to a claim of content validity because there was sufficient
data available to make a satisfactory validity study. (2025a,
2026a. 1).
Dr. Wollack stated that the 1973 and 1974 sergeant’s exam
inations were substantially job related and, therefore, content
valid, because they measured the kind of knowledge and ability
a sergeant must possess. (2074a). He found nothing in
the exams which would have a discriminatory impact upon
any racial group. (2026a.I).19
Based upon the review of the 1973 and 1974 examinations,
Dr. Wollack stated that there was a good chance that the 1976
examination was also content valid.20 (2075a).
Dr. Ebel likewise became familiar with the duties and re
A ssoc ia tion (A .P .A .) and P re s id e n t o f the N a tio n a l C o un c il on
M easurem ent and E ducation . (1938a). He was a m e m b e r o f the
co m m itte e th a t d ra fte d th e f irs t S ta te m e n t o f T est S tandards p u b
lish e d b y th e A .P .A . and has con su lte d in th e area o f te s tin g fo r
the N a tio n a l B o a rd o f M e d ica l E xa m in e rs and the A m e ric a n In s t itu te
o f C e rtifie d P u b lic A ccountan ts . (1939a-1940a). He has developed
e xa m ina tion s fo r th e C ity o f L a n s in g P o lice D e p a rtm e n t and fo r the
F e d e ra l C iv i l S e rv ice C om m ission (1941a-1942a; 1124b.l-1124b.13).
19 D r. W o lla c k stated, re la t iv e to th e concept o f adverse im p act, th a t
th e ra c ia l im p a c t o f th e p ro m o tio n a l exm in a tio n s was caused b y the
lo w standards th a t ex is ted a t th e e n try le ve l. (T h is co n trib u te d to
ra c ia l d is p a r ity .) (2074a).
20 In fac t, as com pared to o th e r exam ina tions, D r. W o lla c k fo u n d
th a t the exam was v e ry w e ll p repared, re fle c tin g the th o ro u g h te ch
n ic a l process b y w h ic h th e e xa m ina tion s w e re developed. (2026a.l).
15
sponsibilities of a police sergeant in the City of Detroit by
examining the job analyses by Mr. John Furcon and Dr.
Andres Inn, (1942a), and thereby formed an opinion as to
the content validity of the 1973 and 1974 promotional exams.
(1944a-1948a).
Dr. Ebel found that the examinations were developed pro
fessionally, adequately, and carefully, (1987a), and were con
tent valid and job related. ( 1948a, 1957a, 1984a, 1986a). Dr.
Ebel also stated that, based on the various components of the
promotional model, the higher ranking officers had better
demonstrated a recognized and measurable possibility of job
success than lower ranked officers. (1956a, 1957a). Dr. Ebel
further stated that the entire promotional model was content
valid and job related. (1957a).
The District Court placed reliance upon the uncontradicted
testimonial opinions of Doctors Wollack and Ebel that the
exams were content valid and that “there was no suitable al
ternative to the written examination which would have less
adverse racial impact.” DPOA v. Young, supra, at 991.
From these facts of record, the District Court was clearly
justified in holding:
“All the evidence in the record demonstrates, and this
Court finds as fact, that these examinations were in con
formity with American Psychological Association Testing
Standards and EEOC Guidelines of Employee Selection
Procedures.
# 9 #
The Court accepts the testimony of Caretti, Wollack and
Ebel and finds, as fact, that the 1973-76 written examina
tions were professionally developed, tested areas which
closely approximated the tasks to be performed on the
job by the promotional candidates and were content valid
in all respects.” DPOA v. Young, supra, at 981.
16
C. Service Ratings.
The promotional model considered only the two most recent
service ratings of a police officer. (1163a-1164a). There was
no requirement that a minimum service rating be achieved
in order to take the promotional examination. ( 1266a; 1425a,
1426a).
The concept of service ratings came into existence by City
ordinance in 1940, after a grand jury had discovered certain
unsavory personnel practices in the Department. (800a).
Although he opposed the rating process, Commissioner Spreen
could not testify that racial discrimination arose from service
ratings, nor could he find a pattern of racial discrimination in
the results of the ratings. (737a).21
Mr. Nichols, former Deputy Superintendent and Commis
sioner, testified that no claim of racial discrimination in r a t i n gs
was made during his tenure. (811a). Nichols, however,
changed the service ratings, not because of any racial bias, but
because (1) higher ratings went to the day shift; (2) the Union
had alleged that the ratings were being used for punishment;
and (3) officers complained that supervisors were not being
rated. (815a 816a). After canvassing 35 departments, (833a),
Nichols ordered the preparation of new performance evaluation
guidelines, (147b), which were implemented on December 4,
1972. (145b).
The new rating system rated all police personnel, including
ranks of sergeant and above, by two officers of superior rank.
Counseling was provided after the rating process and an
Appeals Board was established. ( 132b, 136b, 141b).22
21 Spreen opposed th e o p e ra tio n o f the service ra tin g s because m en
in specia lized u n its g e n e ra lly re ce ived lo w e r serv ice ra tin g s . The
v a r ia t io n was u n re la te d to race. (737a, 740a). F o rm e r C om m issioner
N ich o ls te s tifie d th a t th e re w e re m a n y b lacks in specia l bureaus such
as V ice , In te llig e n ce , P re c in c t C lean U p, and R a cke t and C onsp iracy.
(834a). [E ven D e fe nd an ts ’ o w n w itness, D e p u ty C h ie f Jam es Bannon,
a d m itte d th a t th e re was no d is c r im in a tio n in jo b assignm ents b y the
la te 1960’s. (2366a).]
22 A n o fficer, w h o fe l t th a t he was aggrieved b y the serv ice ra tin gs ,
cou ld also appeal b y g rievance p ro ced ure u n d e r th e C o lle c tive B a r
g a in in g A gre em e n t. (805a-806a).
17
At trial, Commander Caretti testified that his own study of
service ratings showed no adverse impact against minorities.
DPOA v. Young, supra, at 992. (897a; 1043a-1051a; 1119a,
696b). In addition, the statistics prepared by the Special Proj
ects Section, in drafting the 1975 Equal Employment Oppor
tunity Plan, revealed that service ratings had no adverse impact
on minorities. DPOA v. Young, supra, at 992. (1376a). In fact,
the Department boasted to the LEAA that: “A careful analysis
has shown that the Performance Evaluation Rating does not
have any systemically disparate effects on the promotional
opportunities of minorities.” (619b).23
Caretti testified that service ratings are a reasonable meas
urement of the level of performance provided by the indi
vidual officer and are a test of quality and quantity of service
over the last two rating periods. (1045a). Thus, the Per
formance Evaluation Rating was an integral and necessary
part of a promotional selection model. ( 1159a). 24
Dr. Wollack testified that the Detroit Police Department’s
service rating procedure has gone farther than most police
departments in specifying methodology and procedure, and
in defining the relevant areas of performance to be evaluated 25
(2011a-2012a). Further, Dr. Wollack found that the service
ratings were a necessary part of a professionally acceptable
examination system, because it was impossible to make a pro
motional decision without considering the candidate’s past
23 i n m e A u g u s t 6, 1975 correspondence, M r. H e rb e rt Rice, o f the
L E A A , also in d ica te d th a t th a t agency d id n o t f in d any d ispara te
im p act w i th re g a rd to p e rfo rm a n ce eva lua tions. (159b).
24 T he EEO P stated, w i th re g a rd to the P e rfo rm a nce E va lu a tio n
Ratings, th a t: “ T he P e rfo rm a n ce E v a lu a tio n R a tin g is an in te g ra l and
necessary p a r t o f the p ro m o tio n a l se lection m od e l used fo r the ra n ks
o f . . . sergeant.” (619b).
25 The ra tin g s in co rp o ra te d 20 fa c to rs o f equa l w e ig h t: appearance,
cooperation, en thusiasm , f le x ib il i ty , good ju d g m e n t, la ck o f p re ju d ice ,
le ve l o f genera l know ledge , le v e l o f specia lized know ledge , m a tu r ity ,
m o ra l courage, m o tiv a tio n , pa tience, q u a lity o f w o rk , q u a n tity o f w o rk ,
re l ia b il ity , resourcefu lness, s e lf- im p ro v e m e n t, speaking a b ility , ta c t
and w r it in g a b ility . D P O A v. Y oung, supra, a t 991.
18
job performance. (2012a). Wollack concluded that there
was no abuse of the service ratings. (2013a, 2014a).
From these facts, the District Court was justified in conclud
ing:
“[T]hat service ratings, through the period of 1973 to the
present date, have not been shown to have any disparate
impact upon blacks or to discriminate against blacks in
any manner in the promotional process.” DPOA v. Young,
supra, at 992.
D. Seniority.
Since 1968, when collective bargaining for public employees
was allowed by virtue of the Michigan Public Employment
Relations Act, a seniority clause has been in every Collective
Bargaining Agreement negotiated between the Union and the
City. DPOA v. Young, supra, at 993. (1432a; 1911a; 67b-70b;
77b-78b; lllb-113b). The District Court found that the in
troduction of seniority into the collective bargaining process
was the result of arms length, good faith collective bargaining.
DPOA v. Young, supra, at 993.
No minority officer has filed a grievance alleging that the
seniority clause was discriminatory or had been negotiated
because of race. (809a-810a; 1919a). Nor have the Michigan
Civil Rights Commission or the EEOC found that the seniority
provision has been used in a racially discriminatory manner.
(810a). The District Court therefore found there was no
intent shown by inclusion of a seniority factor to discriminate
against blacks. DPOA v. Young, supra, at 993. Naturally,
the white officers hired in more recent years by the Depart
ment have suffered the same impact of a seniority requirement
experienced by black officers. ( 1053a-1054a, 1056a; 1279a).
DPOA v. Young, supra, at 993.
Seniority had also been a factor in the promotional model
since at least 1965. (1233b). However, the Department re
duced the impact of seniority through unilateral adjustments
of the promotional model. (1233b; 1911a). The seniority
19
component was reduced from 10% to 8% in 1970, and to 6% in
1974. DPOA v. Young, supra, at 993.26
As found by the District Court, one purpose of the reduction
of seniority was the elimination of adverse impact on minorities.
DPOA v. Young, supra, at 993. (733a-734a). As a result of
these adjustments, the present formula, operative since 1974,
has no adverse impact on the promotional opportunities of
minorities. (620b). Caretti stated that the officer’s experi
ence, indicated by seniority, was an important factor in any
promotional decision because seniority is job related. ( 1260a-
1262a).
As noted by the District Court, the City represented
(boasted) to the LEAA that “the present formula that com
putes seniority to a maximum of six percentage points has
no adverse effect on the promotional opportunities of minori
ties.” (621b). DPOA v. Young, supra, at 993.
From these facts, the District Court was justified in con
cluding that there was “not one scintilla of evidence to show
intentional discrimination against either race regarding the in
sertion of seniority” into the promotional model or the Collec
tive Bargaining Agreement. DPOA v. Young, supra, at 993.
E. College Credit.
The promotional model has, since at least 1973, provided for
a 2% credit for college education based on a computation of
% point for each year of credit. (39b; 46b; 54b). DPOA v.
Young, supra, at 993. In addition, the Department further
stressed college by reducing the time-in-grade requirement for
promotion based on college credit and by a tuition refund policy
2<s F o r th e 1973 p ro m o tio n a l m odel, s e n io r ity was g ive n a w e ig h t o f
8%, com puted on the basis o f one h a lf o f one p e rcen t p e r y e a r fo r th e
years 1 th ro u g h 10 o f service, one q u a rte r o f one p e rcen t p e r y e a r
fo r th e 11th th ro u g h 20 th years o f service, and one e ig h th o f one
percent fo r th e 21st th ro u g h th e 24th years o f service. (3 0 b ). F o r
the 1974 p ro m o tio n a l m odel, s e n io r ity w as reduced to 6% and com
puted on th e basis o f one pe rcen t fo r th e f irs t th ro u g h 5 th years
o f serv ice and one h a lf p e rce n t fo r th e 6 th and 7 th years o f serv ice
s ta rtin g w ith th e date o f ap po in tm en t. (39b; 46b).
2 0
applied regardless of race. (818a-819a; 862a; 896a). Both
Caretti and Tannian testified that college credit was a valid
consideration in the promotional process. College education
exposed the candidate to varying points of view. (862a; 896a)
and helped a candidate acquire the higher level of skills re
quired in contemporary police work. (1427a).
As stated by the District Court, “No evidence has been pre
sented . . . either statistical or testimonial, showing racial
discrimination by the inclusion of a college credit component
in the promotional model.” DPOA v. Young, supra, at 993.
The Court was, therefore, justified in finding the educational
factor to be non-discriminatory. (896a-896a.l).
F. Veteran’s Preference.
The veteran’s preference credit was established by City
ordinance.27 There was no empirical data which would tend
to show that veteran’s preference had any adverse impact on
minorities. (895a; 1159a-1160a). And, the District Court
found that the veteran’s preference was not a source of racial
discrimination. DPOA v. Young, supra, at 993.
G. Oral Board.
The oral board was inserted as a 10% portion of the promo
tional model with the November 17, 1974 examination. (39b).
DPOA v. Young, supra, at 992.
The oral boards were professionally developed to test the
practical knowledge of candidates, especially those persons
who were not good test takers.28 (1045a-1046a). The oral
board was intended to judge an officer’s sensitivity to human
27 D e tro it C ity Code, § 16-8-14; D P O A v. Y oung, supra, a t 993 n.25.
28 T he o ra l bo a rd was com posed o f th re e officers, above th e ra n k
o f lie u te n a n t, chosen f ro m m a jo r p o lice agencies ou ts ide o f the
D e p a rtm e n t to in su re fa ir and im p a r t ia l eva lua tion . (124b; 622b).
T he pa ne l considered o n ly th e in te rv ie w s and was n o t a llow ed
to consider ou ts ide m a te r ia l such as serv ice ra tin g s . (622b). A t
least one o f th e m em bers o f the o ra l bo a rd w o u ld be a m in o r ity . (617b;
128b; 1109a). A d d it io n a lly , an e labo ra te appeal p rocedure was
established. (126b).
21
and racial considerations. (1106a-1107a). Its primary ob
jective was to provide a fair evaluation of minority members
and of the intangible abilities not readily evaluated by written
tests. (621b). This objective was confirmed by statistical
analysis of the oral board results, showing a racial impact in
favor of minorities. (1112a; 1277a-1278a, 164b). DPOA v.
Young, supra, at 992.
H. Cumulative Effect of the Promotional Model.
After the candidate had taken the written examination, the
various components were integrated and the candidates were
placed in a rank order on an eligibility register. ( 1200a-1205a,
lb-6b, 14b, 24b). Commissioner Spreen testified that the
rank order measured the individual capabilities of each officer
and the the number one officer was better qualified to per
form the duties of sergeant than a lower ranking officer.
(700a, 717a, 741a-743a, 758a). Commissioner Nichols and
Comdr. Caretti corroborated this fact (799a-800a; 809a, 820a,
844a; 862a; 863a; 1184a; 1299a), as did DPOA’s experts, Dr.
Wollack (2027a-2030a, 2031a; 2072a, 2073a, 2077a) and Dr.
Robert Ebel (1956a, 1957a).
The City of Detroit never prepared a validation study of
its officer-to-sergeant promotional model. (1051a). Yet, the
Plaintiffs offered ample testimony to justify the District Court’s
conclusion that the model was both racially neutral and job
related. As stated by the District Court “Caretti, Wollack,
Guenther and Ebel consistently testified that the promotional
models were job related and content valid.” DPOA v. Young,
supra, at 994.29 Caretti, who still is employed by the City,
stated that Detroit had the best promotional model in the
country. (1167a). He was unaware of any alternative pro
29 C om dr. C a re tti and E be l tes tifie d th a t the o v e ra ll p ro m o tio n a l
m odel was co n te n t v a lid and jo b re la ted . (1050a.2; 1062a; 1277a;
1957a).
22
cedures for promotion which would remain job related but
would have less racial impact. (1047a).30
The expert testimony offered by the Plaintiffs and unrebutted
by the City clearly supports the findings of the District Court,
as follows:
“The testimony consistently was, and this Court finds to
be fact, that the higher a candidate stood on the eligibility
register the better qualified and equipped he was to
assume the position of Sergeant.
* * *
Further, these witnesses testified, and this Court accepts
as fact, that the candidates positioned on the register
were not as defendants claimed, equally qualified or a
pool’ of qualified candidates.” DPOA v. Young, supra,
at 994.
II. THE IMPLEMENTATION OF THE CITY’S RACIAL
PREFERENCE PROGRAM
A. Promotions to the Rank of Sergeant
Prior to July 31, 1974
Commissioner Spreen testified that, during his tenure, from
July 22, 1968 to January 5, 1970, all promotions were in rank
order, because the rankings demonstrated relative profes
sional competence among those ranked. (698a, 716a; 793a).
John Nichols, who was Commissioner from 1970 until Septem
ber 2, 1973, also testified that he made promotions strictly in
rank order. (800a; 820a, 844a).31 Comdr. Caretti confirmed
30 D r. W o lla c k stated a s im ila r o p in io n a t 2073a.
31 T he fa c t th a t C om m issioner N ich o ls p ro m o te d in ra n k o rd e r is
co n firm ed b y an e x a m in a tio n o f E x h ib it 187 w h ic h consists o f the
e l ig ib i l i t y re g is te r fo r sergeant based up on th e p ro m o tio n a l e xa m in a
t io n o f A p r i l 9, 1972, and th e subsequent p ro m o tio n a l o rders based'
up on th a t reg is te r.
23
that Commissioners Spreen, Murphy, and Nichols promoted
officers in rank order. (1177a, 1189a, 1190a).32
This practice of promotion by rank order was confirmed in
the new City Charter, effective on July 1, 1974. Section 7-
1114 of the Charter provided that:
“No person who has taken an examination and has been
placed on a register of employees eligible for promotion
may be passed over in favor of an employee with a lower
examination score unless the Chief of Police files with
the Board and Division of Police Personnel written reasons
acceptable to the Board. Any person having been passed
over may appeal to the Board.” Charter of the City of
Detroit, art. 7, ch. 11, § 7-1114.
The practice of promoting in rank order was carried over
into the Tannian administration. The notice for the 1973
examination provided: “Officers will be selected to attend
school [officers’ candidate school] in the order of their position
on the promotional eligibility register, starting at the top of
the list.” (35b). DPOA v. Young, supra, at 986. The 1973
exam resulted in an eligible register for sergeant which was
designated as Personnel Order No. 74-108 and listed 298
names, ( lb ) . DPOA v. Young, supra, at 986-987. On
April 17, 1974, Commissioner Tannian issued Personnel Order
No. 74-121 which indicated that promotional candidates from
Order No. 74-108 would be selected in the order of their
position on the roster. (420b; 1331a). On May 9, 1974, the
first 30 promotions were made from Order No. 74-108 in
rank order. DPOA v. Young, supra, at 987. (5b; 1331a-
1332a). These 30 promotions had consisted of 29 white
officers and one black officer. Thereafter, Commissioner Tan
nian departed from the rank order system by issuing Personnel
Order No. 74-191 on June 7, 1974, deleting the reference to
rank order promotions in Personnel Order No. 74-121. (421b;
32 T he p re v io u s cases o f d ip p in g occu rred o n ly w h en the M a y o r ’s
o r C om m issioner’s d r iv e r was p ro m o te d to the ra n k o f sergeant, and
am ounted to less th a n 2% . (746a; 1189a-1190a),
24
1333a-1334a). DPOA v. Young, supra, at 987, The issuance
of this order signalled the commencement of the Defendants’
self-styled, non-judicial racial preference program.
B. The Creation of the Affirmative Action Program.
1. The Appointment of Philip G. Tannian as Commis
sioner of Police by Mayor Coleman A. Young
Philip Tannian was first appointed to the position of Police
Commissioner in September, 1973, by then-Mayor Roman
Gribbs. (1302a). The appointment came in the midst of
a mayoral election campaign in the City. Defendant Cole
man A. Young campaigned in that race on a pledge that the
racial composition of the City’s work force would reflect that
of the City’s population. (2377a-2378a; 1439a-1440a). Mr.
Tannian was fully aware of the mayor’s political commit
ment to reflect in the department the racial composition of
the community. (1440a). After Mr. Young’s victory, Tan
nian had a series of discussions with the Mayor from Novem
ber, 1973 through the Spring of 1974. One topic discussed
was the racial complexion of the Department. (1441a).
Tannian was reappointed as Commissioner of Police by the
new Mayor in January, 1974. (1314a). Simultaneously,
Tannian adopted as a priority the implementation of a 50/50
racial hiring policy as well as a 50/50 promotional policy for
personnel above the rank of lieutenant. ( 1315a-1316a).
In fact, Tannian testified that, as of January 1, 1974 (the
commencement of Mr. Young’s tenure as Mayor), his objec
tive was to reflect in his Department the racial composition
of the City.33 This remained his position until his termination
in September of 1976. ( 1315a-1317a). The 50/50 quota was
based upon the prevailing racial balance in the City’s popu
lation. (1388a; 1418a). DPOA v. Young, supra, at 995. The
minority quota was to be filled only by blacks, to the exclusion
33 C om m issioner L i t t le jo h n also shared th is ob jec tive . (2428a).
25
of other ethnic minorities. (2479a). DPOA v. Young, supra,
at 1001.
Chief Tannian’s motivations in adopting a policy of racial
quotas for his Department may have been best articulated by
Deputy Chief Bannon at trial:
“Q. While you were commander, what was the alter
native to accepting the policy as far as you were
concerned professionally within the Detroit Police
Department?
A. I don’t believe that in my particular case the al
ternative would have been leaving the department.
However, I think that one icould foreclose his
service or upward mobility or his potential for future
service to the department if he could not accept
and justify, not just accept but justify the affirma
tive action policy which was well known to have
been a political commitment, and we assume that
having been a political commitment that the major
ity of people of this city subscribed to that policy.
Q. Who made the political commitment?
A. The encumbent Mayor.” (2377a-2378a). (Emphasis
added).
A major obstacle to the fulfillment of Mayor Young’s political
obligation was the City’s own racially neutral promotional
model, which placed considerations of ability ahead of race
in selecting new sergeants for the Department.
After the initial thirty officers were promoted by Personnel
Order 74-160, Mayor Young expressed his displeasure with the
racial makeup of the new sergeant class. (1333a; 1439a).
This resulted in discussions between Tannian and the Mayor
regarding a 50/50 promotional policy for the rank of sergeant.
(2053a). DPOA v. Young, supra, at 994.
2. Hearings Before the Board of Police Commissioners.
Section 7-1114 of the new Charter for the City of Detroit,
effective July 1, 1974, vested final authority for police promo
2 6
tions with the Board of Police Commissioners. DPOA v.
Young, supra, at 995. ( 1243b);34
The first major item of business for the new Board was
the Mayor’s proposal of “affirmative action.” DPOA v. Young,
supra, at 994. The Board met to discuss the proposal on
July 22, 26 and 31, 1974. (2399a, 2400a-2402a). In his pres
entation, Tannian identified certain “mandates for affirmative
action” and referred to certain graphs and charts purporting
to show the historical hiring patterns in the Detroit Police
Department, comparing them to City population demographics.
DPOA v. Young, supra, at 994. Tannian used general popu
lation statistics for his comparison, (1389a), rather than
statistics showing the relevant labor market for the City of
Detroit.35
The District Court found that:
“. . . the BPC relied heavily upon Tannian’s work force/
general population statistics to show ‘de facto discrim
ination’ against blacks as reason for adoption of the
affirmative action plan. However, the facts in evidence
show that no labor market statistics or analysis were
presented to the BPC.” DPOA v. Young, supra, at 995.
(Emphasis added).
During his oral presentation at the July 22, 1974 meeting,
Tannian further represented that the seniority and service
ratings provisions in the promotional model discriminated
against minority candidates.36 (993b-994b). DPOA v. Young,
supra, at 994. Tannian failed to offer proof in the form of a
34 T he o r ig in a l B o a rd o f P o lice C om m issioners consisted o f D ouglas
F raser, C harles W . B u tle r , Susan M . Cooper, A le x a n d e r B. R itch e y
and E d w a rd J. L it t le jo h n .
35 T a n n ia n la te r a d m itte d th a t th e M ic h ig a n C iv i l R ig h ts C om
m iss io n G u ide lines, w h ic h he presen ted to the BPC , re fe rre d to r e l
e va n t la b o r m a rk e t ra th e r th a n genera l p o p u la tio n data. (2048a-
2049a).
35 A n o th e r a lleged m andate fo r a ffirm a tiv e a c tio n was § 6.506 o f the
D e tro it C ity C h a rte r. Y e t, th a t section re fe rre d to classified service
em ployees, w h ic h g ro up exc luded officers o f the D e p a rtm e n t.
( 2052a. 1).
27
racial impact analysis of the service ratings, even though
Caretti had previously prepared such a study revealing no
adverse impact by the ratings. (1461a; 696b).
The District Court was particularly critical of Tannian and
the Board for the subterfuge involved in the claim of adverse
impact by service ratings and seniority. The District Court
noted its own findings that these components had no discrim
inatory intent or effect and stated:
“This conclusion could have, indeed should have, been
reached by the BPC had Tannian revealed certain facts
he conveniently failed to communicate to the BPC or
if the BPC had investigated the truth of the assertions as
was their duty.
• ® *
The most significant failure to fully represent the effect
of seniority or service ratings was made by Tannian’s
failure to produce Caretti before the BPC or at a minimum
consult with him regarding these elements prior to the
presentation to the BPC.”37 DPOA v. Young, supra, at
996.
During this initial meeting, Tannian also stated that certain
black officers ranked as Nos. 36, 69 and 54, on Order 74-108,
had written excellent exams, but had lost position on the
register because of seniority and/or service ratings. (1442a-
1443a, 1445a-1446a). Tannian failed to disclose that many
white officers had written high exam scores, only to lose nu
merical positions because of seniority and/or service ratings.
(1447a-1448a).
A second meeting was held on July 26, 1974 before an
audience of approximately 50 to 100 people. (1339a-1342a).
These individuals attempted to relate past experiences of dis
crimination with the Department.38 Yet neither Tannian nor
37 R e ga rd in g the fa ilu re to con su lt w i th C a re tti, see 2456a, 2459a-
2460a.
4® T a n n ia n a d m itte d th a t he d id n o t k n o w a ll o f th e people in the
audience. (1343a).
28
the Board attempted to verify the incidents described by
members of the audience. ( 1343a-1345a; 2401a-2404a). Al
though § 7-1103 of the City Charter vested the Board with the
power to subpoena witnesses, administer oaths, take testimony,
and require the production of evidence, (1243b), the state
ments of the unknown “witnesses” were not taken under oath.
Commissioner Littlejohn admitted that the Board of Police
Commissioners did not sit as a body and evaluate the testi
mony. (2401a-2404a; 1343a-1345a). In fact, this public
hearing was no more than window dressing, orchestrated to
support a decision already made.
There was no effort by Tannian or the Board to determine
whether the black officers who would be preferentially pro
moted had ever been discriminated against by the Department.
(1352a; 1161a-1163a; 2440a-2441a). Further, there were no
findings by the Michigan Civil Bights Commission, the EEOC,
or the LEAA, let alone a court, that the Defendants had ever
discriminated against minorities.39 (1546a.l; 2469a.l).
On July 31, 1977, the Board of Police Commissioners passed
its first affirmative action resolution. (186b; 2399a-2400a). It
called for promotions on a 50/50 racial basis, creating separate
black and white lists where once there had been a single eligi
bility register. (1389a; 2406a; 2441a; 2320a; 2469a). The
resolution had no numerical or time limitation. (1458a).
Nor, did it mention the operational needs of the Department.
(1463a-1465a).40 The resolution, as have all subsequent reso
lutions, did confess to past and present discrimination in hiring
and promotions. Yet, there was no evidence before the Board
justifying the conclusion that the City had engaged in employ
ment discrimination against minority applicants and personnel.
Instead, the Board had before it a politically charged program
sponsored by the Mayor and supported only by the unsub
39 T he o n ly w r it te n le g a l o p in io n ob ta in ed b y th e B o a rd was the
m e m o ra n d u m o f M r. Jam es A n d a rv . (2426a-2427a; 2438a-2439a; 897b;
2469a.l, 2476a).
40 S ubsequent re so lu tio n s m ade no re fe re nce to o p e ra tio n a l needs
ju s t i fy in g a ra c ia l quota. (2284a).
stantiated "mandates” offered by Mr. Tannian. The circum
stances justified the District Court’s finding that:
. . Tannian neglected to paint the full picture in his
presentations to the board regarding these factors and
that the BPC failed to fulfill their duty to investigate
the factual matters as presented by Tannian.” DPOA
v. Young, supra, at 997.
The resulting findings of the Board should be accorded no
weight by this Court.
C. Promotions from Personnel Order No. 74-108.
A total of 150 promotions were made from Personnel Order
No. 74-108, which ranked 298 candidates after the December
16, 1973 promotional examination. (2045a). Following the
initial 30 promotions made in rank order, (10/14/77, Vol. II,
p. 28), on August 1, 1974 (one day after passage of the
affirmative action resolution), the Department promoted 27
blacks and 3 white females, supposedly to counter-balance the
rank order promotions made in April. (2405a-2406a; lb & 6b).
DPOA v. Young, supra, at 987. The 25 black males promoted
ranked from # 36 to # 264 on the eligibility register. DPOA
v. Young, supra, at 987. Thereafter, Personnel Order No. 74-
108 was extended by Personnel Order No. 74-193 and 75-6,
(5b-6b), because there were no more black officers on the
original eligibility register. ( 1268a; 1391a-1393a). Only black
officers were promoted from the extended group of rankings.
(1268a).
The District Court found that:
“The true reason why the eligibility register was extended
was to have more black male officers available for pro
motion since the prior promotions had exhausted all
eligible black male candidates. It was not to insure the
department that there would be ‘sufficient’ officers avail
able.” DPOA v. Young, supra, at 987.
30
Promotions made after August 1, 1974 were made pursuant
to a 50/50 racial quota — with the top ranking blacks and the
top ranking whites taken in equal numbers. The District
Court found that: “There was, in actuality, two lists, one for
white males and one for black males.” DPOA v. Young, supra,
at 987.
The last white officer promoted on Personnel Order No.
74-108 and its extensions was ranked No. 81 and the last
minority officer promoted was ranked No. 494.41 (1179a-
8/19/77, p. 21). As a result, 58 identifiable white officers,
ranked from 81-150, were passed over for promotion on the
basis of their race. Their names are listed as Exhibit II of this
Brief.
Under the racial preference program, the Department dipped
only for black officers. (1178a; 1179a; 1350a; 1351a). The
record clearly established that Plaintiff officers were fully
qualified to perform the duties of sergeant, but were passed
over due to the non-judicial racial quota adopted by Defen
dants.42 (1179a.l, 1181a-1183a; 1395a-1396a; 1466a). Car-
etti testified that, as best as could be determined, every
white officer up to 150 was better qualified to perform the
duties of sergeant than was officer No. 494 who received a
preferential promotion because of his race. The record clearly
shows a significant difference between rankings No. 80 and
No. 494 as to the relative probability of job success as a
sergeant. ( 1103a-1104a).
Each member of the Plaintiff Class who was passed over
41 O n th e o th e r hand, th e fo llo w in g m in o r ity officers, as designated
b y th e ir n u m e ric a l ra n k in g on No. 74-108 and its extensions, w e re
p ro m o te d : 166, 170, 171, 174, 183, 185, 190, 194, 197, 200, 203, 204,
206, 216, 217, 218, 220, 226, 239, 240, 256, 264, 272, 276, 280, 286, 288,
289, 291, 297, 302, 304, 314, 335, 342, 370, 372, 375, 376, 381, 383, 384,
388, 401, 406, 414, 417, 419, 426, 428, 438, 440, 447, 449, 461, 465‘,
467, 471, 493 and 494. ( lb -6 b , 8b, 10b).
42 T a n n ia n a d m itte d th a t i f the in d iv id u a l P la in t if fs had been b lack,
th e y w o u ld have been p rom oted . (1396a-1397a). T a n n ia n fu r th e r
a d m itte d th a t a l l “ pass ove rs” w e re caused so le ly b y the a ffirm a tiv e
ac tio n p lan . (1393a; 1466a- 1467a).
31
for promotion received a letter by Departmental mail, which
stated that:
“In an effort to create racial balance among supervisory
personnel . . . the DPD . . . adopted an affirmative action
plan on July 31, 1974. Implementation of the affirmative
action plan caused your name to be passed over’ on the
promotional list for sergeants.” (Personnel Order No.
74-221).43 (427b; 1397a-1398a, 1424a).
Section 7-1114 of the City Charter provides that “Any per
son having been passed over [for promotion] may appeal to
the Board [of Police Commissioners]. (1243b).
On September 27, 1974, the Board of Police Commissioners
resolved that a pre-requisite to an appeal regarding promotions
was a showing that the “pass over” was not due to affirmative
action. (926b). Thus, there could be no appeal arising from
the racial preference quota. ( 1401a-1406a; 2408a-2409a
2411a; 2464a.3).
Under Order No. 74-108, 150 officers were promoted to
the rank of sergeant. Tannian admitted that, after these
promotions, he could no longer continue his racial preference
program since only 500 officers had passed the December
16, 1973 examination and all blacks on the resulting register
had been promoted. Therefore, further promotions from the
current register would have involved white males already
passed over. (2047a). As an alternative to promoting these
eligible white officers, the existing register was abandoned by
the City and a new test was administered on November 17
1974.
43 A ppea ls b ro u g h t b y in d iv id u a l officers such as W ill ia m M organ ,
Kenneth S ch ih l and C harles E ve le th w ere s u m m a rily d ism issed be-
5 ™ th e y cha llenged th e a ffirm a tiv e action p ro g ra m . (1603a; E x. 137;
1707a, 1713a-1715a; 426b-429b; 1864a). T he p o lic y re g a rd in g p ro m o -
l i 0 - , appeals f ro m 1974 to th e p resen t is set fo r th in P ersonnel O rd e r
-No. 74-133, 75-57, 77-38 w h ic h are in c lu d e d in E x h ib it 239.
32
D. Promotions from Personnel Order No. 75-352,
To provide the Department with more black candidates for
Sergeant, a new promotional exam was noticed on September
10, 1974. (39b-45b). The notice represented that positions
on the new register would be based on merit, but deleted
previous language stating that promotions would occur in
rank order. (39b-45b). DPOA v. Young, supra, at 987.
The new eligibility register for promotions to sergeant was
designated as Personnel Order No. 75-352, and was predicated
on the November 17, 1974 promotional exam. (14b-20b).
DPOA v. Young, supi'a, at 988. A total of 127 promotions
were made to the rank of sergeant from that register. (21b-
23b; 1185a-1187a).44
As found by the District Court:
“As with the 1974-1975 promotions, the process of select
ing officers to be promoted was not by true or strict
numerical rank but was in fact done by coding the
eligibility register by race and sex and then, in a descend
ing order, selecting an equal number of black males and
white males from each group.” DPOA v. Young, supra,
at 988. (1188a-1190a).
The last white male to be promoted on the 1974 register
was ranked as No. 70, but the last black promoted under
the preferential quota was ranked as No. 342.4S ( 1189a,
1191a, 1193a-1195a). The names of the white officers passed
over on the 1974 register are listed on Exhibit III of this Brief.
44 T he 127 p ro m o tio n s w e re m ade on th re e dates. O n J a n u a ry 14,
1976, (O rd e r No. 76-26), (2 1 b ); on A p r i l 5, 1976 (O rd e r No. 76-134),
(2 2 b ); and on June 22, 1976 (O rd e r No. 76-245). (23 b ). O f a to ta l
127 p ro m otion s , 59 w e re b la c k m ales, 59 w e re w h ite m ales, and 9 w ere
fem ales o f b o th races. (21b-23b). D PO A v. Y oung, supra, a t 988.
45 The b la c k candidates w i th the fo llo w in g n u m e rica l ra n k in g s w ere
p ro m o te d f ro m No. 75-352: Nos. 74, 76, 90, 102, 103, 104, 113, 117,
143, 144, 149, 151, 154, 158, 159, 167, 169, 173, 189, 191, 192, 194,
195, 198, 199, 201, 202, 211, 213, 214, 229, 234, 237, 242, 243, 259,
262, 267, 270, 273, 283, 285, 296, 300, 302, 304, 305, 315, 316, 319,
321, 325, 329, 332, 334, 335, 342. (14b-20b).
33
They were passed over under the affirmative action program
because of their race. (1189a-1192a; 1420a-1423a).
As under Order No. 74-108, the Board of Police Commis
sioners denied any appeal based on the affirmative action
policy. (Personnel Order No. 75-57; 913b).
E. The Promotions From Personnel Order No. 76-441.
On December 28, 1976, Chief William Hart issued the
eligibility register for sergeant, designated as Personnel Order
No. 76-441, which resulted from the May 23, 1976 exam.
(24b-29b). A total of 70 promotions were later made from
that register by Order No. 77-279 in the following manner:
30 white males, 30 black males, 5 black females, 5 white
females. (742b; 2074a.l). The last black promoted was No.
116, and the last white promoted was No. 42.44 * 46 (1199a).
The 19 white officers passed over on the 1976 register are
identified on Exhibit IV of this Brief. Again, the white
officers were passed over solely because of their race. (2320a,
2324a; 1466a; 2464a; 2359a).
This record shows continued use of the 50/50 quota through
the December 29, 1976 promotional register. (2469a; 2441a;
2320a, 24b-29b).
III. THE CITY’S AFFIRMATIVE DEFENSE
OF PAST DISCRIMINATION
A. Promotion and Hiring Policies of the Detroit
Police Department Prior to 1968.
The City now confesses that its long practice of racial dis
crimination justifies a promotional quota. Yet at trial the City
failed to come forth with meaningful proof of any significant
pattern of intentional discrimination. The Department has
44 The fo llo w in g b la c k officers w ith the fo llo w in g n u m e ric a l designa
tions rece ived p re fe re n tia l p ro m o tio n s : Nos. 76, 81, 88, 85, 91, 94,
99, 103, 106, 111, 114 and 116. (2 4 b -2 9 b ).
34
always applied the same qualifications to blacks and whites
seeking entry level positions, both before and after 1968.
(1239b; 764a; 772a; 2119a). There was testimony by
Deputy Chief Bannon that in 1949 there were black beats
and white beats. (2351a). However, Bannon testified that
he did not know whether this was a result of policy, tradition,
a lack of black personnel, or the desire to avoid mixing races.
(2351a). In the mid 1960’s, the Department integrated scout
cars (2351a-2352a), causing some hostility between black and
white officers, which arose in part from widespread fears by
blacks that white partners inhibited their actions in the black
community. (2351a-2352a, 2355a). There was no written
policy against the transfer of blacks to specialized units,
although Bannon testified, blacks were not often transferred
to these units. (2351a). On the other hand, Commissioner
Nichols testified that there were many blacks in specialized
units including Robbery, Vice, Narcotics, and Intelligence.
(834a). In fact, Chief William Hart, who is black, testified
that he was assigned to the Racket and Conspiracy Bureau
from the period from 1958 to 1970. (2269a).
Bannon did not know why, for many years, blacks were not
assigned white partners. (2355a). The Department his
torically had an unwritten policy which allowed officers to
choose their own partners, but Bannon denied that this policy
was the result of an intent to discriminate. (2355a, 2370a-
2371a).
Robert Bullock testified that, during his 25 year tenure
with the Department, the same beats were, on occasion, walked
by black and white officers.47 Moreover, Mr. Bullock denied
that assignments were ever based on race. (2585a). Mr.
Bannon, who testified that there were race-based job assign
ments, admitted that no job in a Precinct was closed to black
47 M r. B u llo c k is a S pecia l A g e n t w i th th e I l l in o is D e p a rtm e n t o f
L a w E nfo rcem en t. (2572a). H e was ap po in ted to th e D P D in J u ly
o f 1949 and rose th ro u g h the ra n ks f ro m d e te c tive and sergeant to
C h ie f o f In sp e c tio n a l Services. (2572a-2573a). H e te s tifie d th a t he
w o rk e d in th e same scout car w i th H a r t on m a n y in ves tiga tions .
(2585a).
personnel and that there were black doormen, clerks, desk
officers, and phone operators by the late 1960s. He felt there
had been no institutional decision to discriminate based on
race. (2369a).
The City offered no testimony regarding the hiring or
recruiting policies of the DPD from 1940 to 1968. Nor did
the City introduce any evidence relative to: (1) promotional
examinations to the rank of sergeant from 1940 to 1973; (2)
the components of the promotional model prior to 1965;
(3) statistics showing applicants for promotion and their pass/
fail statistics by race; (4) statistics regarding the racial per
centage of sergeants from 1940 to 1973; and (5) any statistics
relative to the effect of the promotional model on any group
from 1940 to the present.
Deputy Chief Bannon testified that there had always been
upward mobility in certain areas for black officers. Blacks
were detective captains as early as 1890 to 1900. (2354a).
Commissioner Nichols confirmed that he never observed any
incidents that prohibited upward mobility for blacks. (829a).
Nichols further confirmed that seniority had been in the pro
motional process during his entire tenure and that he never
saw any documentation that seniority discriminated on the
basis of race in addition to length of service. (859a).
The record does reflect that black officers, who were Chief
Hart’s contemporaries at the patrolman level and on the Clean-
Up Squad and undercover beats were promoted to higher
ranks.48 In fact, since the mid 1960’s, the Department has
systematically attempted to promote minorities. (2365a).
Jessie Stewart49 became a detective on September 5, 1946
based upon a competitive examination and promotional model
48 These officers, in a d d itio n to C h ie f H a rt, in c lu d e C harles D.
H am m ond (S e rg e a n t) ; E a r l G ra y (P ersonne l D ire c to r ) ; F re d W illia m s
(L ie u te n a n t) ; G eorge B e n n e tt (D e p u ty C h ie f) . (2330a-2331a). A v e ry
Jackson was an In sp ec to r b y 1969, G eorge H a rge was an Insp ec to r
by 1965, and A1 Evans was a D e p u ty Insp ec to r in the 1960s. (2363a-
2364a).
49 S te w a rt was h ire d on June 16, 1941, and was p ro m oted fro m
detective to u n ifo rm sergeant in 1954. (2503a, 2507a-2508a).
36
administered without regard to race. (2507a-2508a). He
testified that he never received assignments that were dif
ferent from those of his white counterparts. (2503a).
B. The Department’s Hiring and Recruitment from
1968 to Present.
As society changed in the late 1960’s, the standards and
expectations of the Department also changed. ( 1290a). Prior
to 1968, the City followed the “Chairman of the Board”
theory, expecting every applicant hired by the Department
to be qualified for advancement to the highest ranks. ( 1291a;
910a). In the 1960’s hiring standards focused on college
education as a result of the President’s Task Force Reports.
This focus had an adverse impact on the less educated.
(1291a). Between 1968 and 1971, a collective judgment was
made by the City to abandon the “Chairman of the Board”
approach. (1291a; 1536a). New hiring standards sought
applicants capable of becoming good police officers without
regard to promotional potential. (911a; 1293a; 1295a-1296a).
These changes in expectation, as intended, opened the doors
for new and differently qualified applicants. ( 1292a-1294a).
As the record shows, the primary goal of these and other
changes in hiring policies was intended to substantially in
crease minority presence in the department.
1. The Vickery Committee and The Development
of a New Entry Level Written Examination.
In 1967, the Department felt that it did not have enough
qualified black applicants for appointment. (825a). To address
this problem, Mayor Jerome Cavanaugh established the
Vickery Committee, chaired by Mr. Larry Vickery. The
Committee was to determine the reason for the high exclusion
rate of black and white applicants for the position of police
officer, and to develop methods of attracting qualified black
candidates. (837a; 902a; 1217a-1218a).50
so T he V ic k e ry C o m m itte e consisted o f p ro m in e n t in d u s tr ia l psy-
37
The Vickery Committee developed a new program to attract
black candidates with a better chance of success. (839a).
Further, numerous changes were made in the entry level
examination from 1967 to 1973 to enhance the opportunity
of black candidates. (889a-890a; 841a). The first change
made by the Vickery Committee was to substitute a 12 minute
Wonderlich examination for the three hour test then in use.
The Committee believed that the longer test was an ordeal
for minorities and that the Wonderlich examination would be
easier for them. (899a.3-899a,5; 1125a-1126a; 1220a.2).
The Wonderlich examination was a stop-gap exam, to be
used while the Committee collected data to develop a vali
dated entry level examination. (1220a.2), As stated by the
District Court, the Committee’s objective:
“was to find an entry level examination which would be
a reasonable predictor of potential job success, free from
cultural bias. . . .” DPOA v. Young, supra, at 999.
In 1971, upon recommendation of the Vickery Committee,
the Department hired Mr. John Furcon and the University of
Chicago to develop an entry level testing battery.* 51 (797a;
1472a-1473a). DPOA v. Young, supra, at 999. Mr. Furcon
evaluated the duties of a police officer and established a
coordinating committee in order to determine a level of per
formance required by a successful officer. ( 1230a-1232a;
1886a, 1903a-1904a). From this data, Mr. Furcon developed
an examination which contained a differential regression equa
tion which utilized different average scores for blacks and
whites. It sought to measure one standard of performance
chologists in c lu d in g D r. L a n d o n o f G enera l M o to rs Corp., D r. W ieb iosc
of F ord M o to r Co., Jo h n K e n d a ll o f C h ry s le r Corp., and the in d u s tr ia l
psychologist f o r th e B e n d ix Corp. (899a.3-899a.4). T he V ic k e ry C om
m ittee d id n o t in ve s tig a te pre-1968 h ir in g practices.
51 F o r a p e rio d o f tim e , th e D e p a rtm e n t had used a com b ina tion
W on d e rlich -O tis e x a m in a tio n (1168a-1169a; 1268a-1269a), supp le
m ented w ith th e S R A P ic to r ia l R easoning Test, g ive n to candidates
in the g ra y area, and designed to so ften the c u ltu ra l bias, i f any, on
black candidates b y s u b s titu tin g p ic to r ia l re c o g n itio n fo r a ce rta in
level o f re a d in g com prehension. (1220a-1220a.l).
38-
but utilized two cut-off scores, based on the race of the
candidate. (907a). The Furcon exam sought to select can
didates capable of becoming good police officers, but was not
intended to predict promotional potential. (911a).
As Mr. Furcon worked on his exam from 1971 through 1973,
the Department used the “Chicago Battery Test” developed by
him for entry level selection on the Chicago force. This exam
contained a similar differential regression equation. (1169a;
1208a). In 1973, Furcon completed his work and the De
partment began using what remains the entry level exam
ination, with its race-conscious method of scoring. (1136a-
1137a; 1235a).52 Those persons who failed the entry level
examinations were given remedial reading comprehension
courses. (765a; 2257a).
While the Furcon examination has been used since 1973,
no validation reports have been submitted to the Department.
(915a; 1136a; 1535a; 1557a-1567a). In fact, expert testimony
established that the dual scoring technique invalidated the new
exam.53
52 A lso , in 1973, the U n iv e rs ity o f Chicago and th e P ro fess iona l
A d v is o ry C o m m itte e sub s titu te d the B ro w n /G a rls o n lis te n in g test
fo r th e O tis -W o n d e rlic h test. (2175a).
53 D r. W o lla c k and D r. E be l exa m ine d the e n try le v e l exam and
te s tifie d w ith o u t co n tra d ic tio n th a t the e n try le v e l exam v io la te d the
EEO C G u id e lines and w as n o t jo b re la te d , because the m u lt ip le
reg ress ion techniques, based upon race, w e re to ta lly im p ro p e r.
(1959a-1970a; 2036a-2043a). D r. W o lla c k sta ted th a t th e d iffe re n t ia l
regression eq u a tio n eva lua tes tes t scores d if fe re n t ly de pe nd ing on
th e race o f th e ap p lica n t. (2041a). D r. W o lla c k fu r th e r concluded
th a t (1 ) th e re was no fa c tu a l s u p p o rt in the l i te ra tu re o f psycho
m e tr ic s fo r th e use o f d iffe re n t s tandards b y race; and (2) th e e n try
le v e l exam w o u ld have v e ry l i t t le va lu e in se lecting p o lice officers.
(2042a-2Q43a). W h e th e r o r n o t th e te s t was v a lid , the s ta tis tics sub
m it te d b y th e C ity (750b-751b; 1236b) as to p a s s /fa il ra tes c le a r ly
in d ica te th a t, as a re s u lt o f th e F u rco n test, any d ispara te im p a c t was
e lim in a te d b y th e end o f 1973. T he re c o rd evidence, ho w e ver, reveals
th a t these s ta tis tics are o f l i t t le , i f any, va lue. W h e n a candidate
in i t ia l ly applies, th e re is no des ign a tio n w h atsoe ver id e n t ify in g h im
o r h e r b y race. (782a-785a; 8/19/77, p. 7, 1171a; 1030a-1033a).
A d d it io n a lly , p a r t o f th e re c ru itm e n t e ffo r t w as to have b la c k a p p li
cants, w h o had p re v io u s ly fa ile d th e exam , re -a p p ly and. re - ta k e the
exam . E x h ib it 201 does n o t in d ica te the exam re su lts fo r re -a p p li
cants. (1236a-1237a). Thom as Ferrebee, D ire c to r o f R e c ru itin g , also
sta ted fh a t s ta tis tics w e re d e riv e d f ro m E x h ib it 201, ( th e m o n th ly
re p o r ts ) , and th a t any d isp a ritie s on th a t .E x h ib it w o u ld be ca rr ie d .
39
The City has asserted that the Furcon entry level test is
valid and job related. Yet the record establishes just the
reverse. As stated by the District Court:
“. . . the record shows, and this Court finds as fact, that
the Furcon examination was not a job related exam
and resulted in random hiring as opposed to hiring the
most qualified. No contrary evidence was presented
regarding this finding. Accordingly, the Court finds from
the foregoing facts that the department’s primary con
cern was not in attempting to determine who were the
best suited for employment with the department. Rather,
the concern was to racially have the police department
reflect the composition of the population of the City of
Detroit.” DPOA v. Young, supra, at 999.
2. Accelerated Recruiting Efforts of the
Department from 1968 to Present.
As stated by the District Court “since 1968, the point in
time when Caretti arrived at personnel, the department has
taken many steps to advance black recruitment efforts.” DPOA
v. Young, supra, at 997.54 Commissioner Spreen, who became
Commissioner on July 22, 1968, stated that the policy of the
Department was to attract blacks as police officers (697a),
and he informed Departmental personnel that he would not
tolerate racial discrimination. (704a). Steps to encourage
black applicants included open recruiting in the innercity
rather than at police headquarters because blacks were
supposedly intimidated by the awesome presence of police
headquarters. (704a-705a; 1139a-1142a).
Richard Caretti and Lt. Avery Jackson, a black, visited
churches, schools and colleges in black neighborhoods.
over to the C ity ’s graphs, charts, and percentages. (2250a-2251a).
Comdr. F errebee a d m itte d th a t th e re w e re num erous discrepancies
on E x h ib it 201. (2193a-2217a).
54 T he num erous and repeated e ffo rts m ade b y th e C ity to re c ru it
and h ire q u a lifie d b lacks are set fo r th in th e ir E q u a l E m p lo ym e n t
O p p o rtu n ity P rog ram . (569b-609b).
40
(705a). The City hired an advertising agency to design and
erect billboards to encourage minority applicants (705a), and
instituted the scooter program, pairing black and white officers
in black communities. (728a). Task Force officers, who were
primarily black, covered block clubs, church groups, and
public gatherings to spread the City’s message (762a-763a),
and the City advertised for recruits in the Detroit News, the
Free Press, the Michigan Chronicle, and in the black media.
(766a). Recruiters sought black applicants at colleges
throughout Michigan. DPOA v. Young, supra, at 997. As
a result, black representation on the force increased from 5%
in 1968 to 10% on January 5, 1970, without the erection of
barriers preventing the advancement of white officers. (703a-
706a).
Efforts to recruit blacks were accelerated by Commissioner
John Nichols, who affirmed that he knew of no discrimination
against minorities during his tenure.53 ( 829a). The Depart
ment appointed a black as Director of Recruiting.55 56 The
City expanded its recruiting budget (796a), continued its
extensive advertising campaign (881a.3) and formed a steering
committee of business, ethnic and religious groups including
the Urban League and the NAACP. (797a-798a; 904a).
When the Department determined that too many whites
were applying, a management-consulting firm was hired to
determine what areas and types of recruitment efforts would
bring in more black applicants. (1139a).
To increase the number of minority applicants (2229a), Mr.
Ferrebee acted to equalize the racial complexion of the De
partment’s Recruiting Task Force, which, from 1968 to 1970,
consisted of approximately 6 blacks out of 15 recruiters. (774a).
55 C om dr. C a re tti co n firm ed th a t th e re was no o ffic ia l p o lic y against
b la cks and, in fac t, th e D e p a rtm e n t was d o in g e v e ry th in g possible
to b r in g in b la ck app lican ts . (1142a.l-1143a).
56 Thom as Ferrebee, w h o had p re v io u s ly been in charge o f m in o r ity
re c ru it in g fo r F o rd M o to r C om pany. (796a-797a).
41
These changes were made on the theory that a black staff
could relate better to black candidates (2167a-2168a).57
Various witnesses, including Mr. Ferrebee, stated that the
City has recruited beyond the Detroit SMSA, and throughout
the State of Michigan since 1968, because there were not
enough qualified black applicants from the City. (764a, 788a,
789a.6-789a.7; 1129a; 2144a, 2155a). Additionally, the De
partment went to minority colleges outside of the State and
to other police departments, such as New York City, which
had a surplus of black applicants. (1131a). Many black
candidates were hired from beyond the City. (2184a-2185a).
After reviewing this evidence, the District Court stated:
“These efforts demonstrate, and this Court finds as fact,
that from 1968 to the present date, the department has
made every possible effort to attract qualified black appli
cants . . .” DPOA v. Young, supra, at 998.
The results of these herculean recruiting efforts are best
evidenced by Exhibit 269 which shows the following rates
of applications by blacks and whites from 1968 through 1975:
Year 1968 1969 1970 1971 1972 1973 1974 1975
White Applicants 50% 53% 57% 56% 47% 46% 36% 19%
Black Applicants 50% 47% 43% 44% 53% 54% 64% 81%58
3. Revisions of Entry Level Qualifications.
Changes were also made in qualification standards to en
courage minority applicants. In 1968, the requirements for
hire as a Detroit Police Officer were preliminary screening,
37 These re c ru it in g e ffo rts in c lu d e d re c ru it in g a t a rm y separa tion
centers (7 6 3 a ); colleges th ro u g h o u t th e S tate o f M ich ig a n . (763a,
787a, 789a.4-789a.5, 1128a-1129a; 2145a).
58 N a tu ra lly , no steps have been ta ke n to cou n te ra ct the d ra m a tic
decrease in w h ite app lican ts. (2227a-2229a). C a re tti a d m itte d th a t
me Pre -e m p lo y m e n t res iden cy re q u ire m e n t, established in A u g u s t o f
1974, has had an adverse im p a c t on w h ites . (1276a).
4&
written examination, background investigation, physical exam
ination, and oral board. (2252a-2253a).
(a) Preliminary Screening
The preliminary screening process of the Department was
intended to insure that an applicant met the age,59 * height
and weight,50 education,61 vision,62 residence,63 and traffic
record64 requirements. Since 1968, the earliest date for which
statistics are available, black and white applicants have been
rejected at equal rates. (2186a-2193a). Thus, the preliminary
qualifications were applied equally to both races. (772a).
Moreover, the preliminary screening was done by Clarence
Brodnax, a black. (777a, 789a.3; 1135a).
(b) Criminal Record.
Since 1967, the Detroit Police Department has not accepted
an applicant convicted of a felony or a misdemeanor. (789a.l-
789a.2). However, black and white applicants were told how
to expunge criminal records, and were given a reasonable op
portunity to correct traffic violations. (789a.l, 789a.2; 1493a-
1494a; 2253a. 1; 319b).
59 F ro m 1954 to 1964, the age re q u ire m e n t was 21 to 27 years old.
F ro m 1969 to 1973, th e age re q u ire m e n t was 21 to 32 years o ld . F ro m
1973 to the present, th e age re q u ire m e n t has been 18 to 32 years of
age. (1239b).
50 F ro m 1954 to 1964, an a p p lic a n t had to be a t least 5' 8 % " ta l l
and w e ig h a m in im u m o f 148 lbs. S ince 1973, th e D e p a rtm e n t has o n ly
re q u ire d th a t the a p p lic a n t’s w e ig h t be in p ro p o r tio n to he igh t.
(1239b).
61 S ince 1954, the D e p a rtm e n t has re q u ire d th a t an a p p lica n t have
a B A , a h ig h school d ip lo m a, o r a G .E.D. (1239b).
62 The v is io n re q u ire m e n ts o f th e D e p a rtm e n t have been: 1954 —
20/20 u n co rre c te d ; 1964 — 20/30; 1969 — 20/40; 1973 to th e p resen t —
co rre c ta b le to 20/20. (1239b).
63 F ro m 1954 to A u g u s t 21, 1974, an a p p lica n t had to be a res iden t
o f th e S ta te o f M ic h ig a n fo r one y e a r p r io r to a p p lica tio n and a
re s id e n t o f D e tro it p r io r to g ra d u a tio n . A f te r A u g u s t 21, 1974, an
a p p lic a n t had to be a re s id e n t o f the C ity o f D e tro it fo r 60 days prior
to the date o f ap p lica tio n . (1239b).
64 F ro m 1954 to 1973, an a p p lica n t had to have a v a lid license w h ich
was n o t revoked , suspended, o r re s tr ic te d . F ro m 1973 to th e present,
a tra ffic re co rd has been considered on ah in d iv id u a l basis. (1239b).
c. Background Investigation.
The rates of disqualification on background investigations
are approximately the same for minorities as for white appli
cants. (599b). Eugene Mangum, who was a background
investigator in the 1960’s, testified that he was ordered
by the Personnel Examiner to conduct background investiga
tions in a completely neutral manner. (770a). The Depart
ment also eliminated the emphasis on credit ratings. ( 1225a).
As part of the minority recruiting effort in the years 1970-73,
a background investigation could no longer reject a person by
recommendation without objective and documented evidence.
(1226a-1228a; 2138a; 1492a-1493a; 2254a).
Ferrebee testified that in 1971, the average time for back
ground investigation for whites was 8 to 10 weeks, and was
10 to 12 weeks for blacks. But he had no statistics to estab
lish that the time differential did not result from real differ
ences. (2158a-2160a). In the November, 1975 Equal Employ
ment Opportunity Program, Defendants admitted (boasted)
that the background investigation was fair and impartial.
(598b-601b).
d. Medical.
One alleged area of disparate impact was the City’s blood
pressure test. ( 1687a-1689a),65 Tannian decreased the im
portance of blood pressure because of an impact on blacks,
but would not state that blood pressure excluded more blacks
than whites. ( 1687a-1689a). Blood pressure tests were taken
by physicians (1537a), and Ferrebee and Tannian specifically
stated that there was no evidence or suspicion of improperly
recorded blood pressures. ( 1552a-1555a; 2156a). Tannian
admitted that cardio-vascular and cerebral-vascular accidents
are more prevalent in black males and that their severity may
43
, 6S'T h e b lood pressure, re q u ire m e n t changed fro m 130/80 in 1945
(752b) ° in 1973 n ° ^ u i r e m e n t re la t iv e to lo w b lood pressure.
44
be amplified by a stressful occupation such as police work.
( 1540a-1541a).
Another alleged medical disparity arose from the psychiatric
examination, which allegedly excluded a greater percentage
of blacks. (2128a). In an attempt to alleviate this problem,
the Department used a new psychiatric questionnaire pre
pared by the University of Chicago. (2129a-2130a, 2157 a-
2158a). The Department also retained a new psychiatrist,
Dr. Kenneth School. (2130a). He gave more interview
time to the applicants, taped the interviews, and provided
documentation for rejections. As a result, the rate of rejection
was reduced. (2132a).66
(e) Oral Boards
The procedure of the oral boards is set forth in (603b, 604b).
The only major change in the Board occurred in 1971, when
questionnaires were filled out in advance by all applicants
prior to interview to eliminate any impact upon minorities.
(2140a-2141a). Each oral board panel consisted of at least
one minority individual. (604b). And, as of 1972, all persons
who sat on the oral board underwent psychological counselling
at Wayne State University by Dr. John Teehan, in order to
determine their fitness and freedom from racial bias. (2258a-
2259a). The City makes no allegation that this aspect of the
process was a source of discrimination.
C. The Changing Racial Composition of the
Detroit Police Department.
1. Reasons for Under-utilization.
The City relies, as a basis for its promotional quota, upon
purported evidence of a pattern and practice of discrimination
66 D r. S co tt A lle n , th e p re v io u s p sy c h ia tr is t, d id n o t docum ent
h is re je c tio n s because he d id n o t w a n t h is e va lu a tio n to fo llo w the
a p p lica n t th ro u g h o u t h is career. (2260a).
45
in hiring by the Department. It offers statistics in the hope
of establishing such discrimination. The District Court dis
missed that evidence as follows:
“[T]he Court has found that although the statistics show
that from 1944 to 1968 the number of whites appointed
far outdistanced the number of blacks appointed there
is no evidence in the record regarding the number of ap
plicants from each racial group during this period of time.
Nor is there evidence showing what the relevant labor
market was during this period of time and the number or
percentage of qualified blacks in this market. Without
this information the naked numbers of black and white
hired is susceptible to a multitude of conclusions.**7
DPOA v. Young, supra, at 998.
The Plaintiffs also offered unrebutted expert testimony
establishing alternative explanations for under-representation
of minorities.
Mr. Charles Guenther, an expert witness called by Plain
tiffs,68 testified that under-utilization or under-representation
of a specific group could be caused by: (1) the degree of staff
changeover; (2) the fact that minorities do not apply in repre
sentative numbers,69 and (3) the fact that the given group
does not have certain qualifications required for selection.
(1690a-1696a).
, 67 T he D is tr ic t C o u rt also no ted th a t the m a n y e rro rs in the re p o r t
ing process fro m w h ic h th e C ity ’s s ta tis tics w ere d e rive d “ have to ta lly
ob lite ra ted an y s ta tis tic a l v e r i ty to be accorded th e m . . . and are
the re fo re e n tit le d to, and rece ive, no w e ig h t b y th is C o u rt.” DPO A
v. Young, supra, a t 998.
. 63 M r. G u e n th e r rece ived h is B .A . fro m C a lifo rn ia S ta te U n iv e rs ity
m 1970; he subsequently com ple ted 45 sem ester u n its o f g raduate
study in psycho logy and p u b lic a d m in is tra tio n . H e has been em ployed
by the C ity o f Santa A na , C a lifo rn ia as a personne l ana lys t and as a
personnel m anagem ent consu lta n t, w h e re he has p e rfo rm e d num erous
labor m a rk e t analyses. (1614a-1615a, 1618a.l-1623a).
69 M r. G u e n th e r te s tifie d th a t, in a l l th e data sup p lied b y the C ity ,
there was no evidence to de te rm in e w h a t the rep re se n ta tive ap p lica
tion ra te fo r m in o r it ie s was fo r 1940 to th e present. (1692a). The
Defendants n e ve r o ffe re d any evidence to show the a p p lica tio n rates
p rio r to 1967, w h e n th e acce lera ted p e rio d o f m in o r ity re c ru itm e n t
commenced.
Jacquelyn DeYoung, employed by the City in the Special
Projects Section, stated that under-utilization could be caused
by: (1) rapid changes in the ethnic characterization of the
labor market; (2) the absence in the relevant labor market of
people with the required skills; or (3) the dissemination of
adverse information about the employer to an unusual number
of people within the labor market. (1306a). Commissioner
Nichols also confirmed the fact that an under-representation
could be due to (1) lack of interest; or (2) the public percep
tion in the black community that the Police Department was
not responsive to the public need. (823a-824a).
The Defendants provided no data to show that blacks
applied in representative numbers for the period from 1940 to
1967. (1692a). Commissioner Nichols and other witnesses
did testify that there were not enough qualified black appli
cants applying for available positions. (752a-753a; 825a).
Further, numerous witnesses called by Defendants testified
regarding the racial polarization of the City during the 1960’s
and early 1970’s, and of the alienation of the black population
towards the Department. (826a-827a). Commissioner Spreen
testified that a black who joined the Department was viewed
as an “Uncle Tom” in the black community. (752a).
Moreover, there were opportunities in private business for
blacks. (752a). And, many blacks preferred “other types of
work, than police work.” (767a).
Finally, Exhibit 271, which concerns the City’s population,
indicates rapid demographic changes within the City of De
troit from 1940 to the present. In fact, for the period from
1940 to 1970, the white population decreased from 90.7% to
53.5%.
47
2. Hiring Rates Within the Detroit Police
Department from 1968 to the present.
Since 1968, black applications have been expedited. (715a-
716a). As a result of this policy and the black recruitment
program, blacks are now being hired in substantially greater
numbers than white applicants. ( 1275a-1277a). At the time
of his testimony, Commander Ferrebee maintained a separate
list for black and white applicants. All eligible black appli
cants were routinely hired, and only the remaining Police
Academy space was filled from the white applicants’ list.
(2181a-2183a; 2237a-2249a). Ferrebee admitted that this prac
tice could discourage white applicants. (2235a-2238a).
For purposes of statistical analysis, Dr. Mark Rosenblum70 71
testified that the Detroit SMSA was the relevant labor market.
(2597a). (Corroboration by Guenther at 1690a).7’
A comparison of the hiring data of the Department from
1968 to the present with black representation in the SMSA
and the City reveals that blacks have been hired in a far
greater percentage than their availability in the relevant labor
market would suggest:
70 D r. R osenb lum has been the s ta ff econom ist w i th the N a tio n a l
Com m ission on E m p lo ym e n t and U n e m p lo ym e n t S ta tis tics since A u g
ust o f 1977. H e rece ived a M as te r’s Degree in Econom ics a t N e w
Y o rk U n iv e rs ity and rece ived a Ph.D. in In d u s tr ia l R e la tions fro m
the U n iv e rs ity o f M in neso ta in 1972. (2591a-2594a; 1366b-1370b).
71 B o th D r. R osenb lum and M r. G u e n the r exp ress ly sta ted th a t a
com parison w ith th e genera l p o p u la tio n was im p ro p e r because genera l
popu la tion figu res in c lu d e da ta on the n u m b e r o f people w h o are
in s titu tio n a lize d , disabled, n o t a va ila b le fo r w o rk , un d e r the age o f
16, housewives, school ch ild re n , etc. (1690a-1696a; 2624a).
48
Percentage
of Blacks
Year Hired*
Percentage
of Blacks
in SMSAb
Percentage
of Blacks
in Detroit®
1968 35% 15.4% 31.3%
1969 23% 15.6% 32.3%
1970 20% 15.9% 33.2%
1971 26% 16.2% 34.1%
1972 30% 16.4% 35.1%
1973 30% 16.6%a 36.0%
1974 48% 37.0%
1975 64% 37.9%
1976 e 38.9%
1977 80%
Dr. Rosenblum testified that, based upon these hiring pat
terns, it was his opinion that the Department denied equal
opportunity to persons other than members of the black race.
(2617a). Certainly these statistics rebut any allegation of
racial discrimination in hiring that would justify a promotional
quota.
IV. THE CITY’S AFFIRMATIVE DEFENSE
OF OPERATIONAL NEEDS.
A second affirmative defense offered by the City alleges
an “operational need” for additional black sergeants to ef
fectively deal with the black community. As stated by the
District Court:
a E x h ib it 269 (1236b).
h E x h ib it 242, T ab le 2a (1349b).
c E x h ib it 242, T ab le la (1348b).
a 1778a. (L im ite d to th e C ity o f D e tro it as o f 1974 due to the
in tro d u c tio n o f the p re -re s id e n cy re q u ire m e n t.)
e T he D e tro it P o lice D e p a rtm e n t d id n o t h ire any officers in 1976
because o f a shortage o f funds.
49
“Stripped to its barest form this argument rests upon
the premise that blacks can communicate and cooperate
better with blacks than can whites.” DPOA v. Young,
supra, at 1001.
Plaintiffs consistently objected to the offer of evidence
relative to the City’s “operational need” for blacks on grounds
that a “BFOQ” based solely on race was irrelevant under Title
VII or the Equal Protection Clause. ( 1495a-1497a; 2062a;
2115a; 2525a).
Plaintiffs’ Motion In Limine to exclude all evidence of a
business necessity for black sergeants was denied by the
District Court. (2104a-2105a). Yet the evidence ultimately
placed of record simply failed to support the City’s operational
needs justification for a racial quota.
A. The Alleged Need to Racially Balance
the Department.
Commissioner Spreen did not believe that only blacks could
serve the black community, and feared that such a theory
would ghettoize the Department. (703a). He believed that
an effective Department needed professional officers, without
regard to color. (730a).
Commissioner Nichols acknowledged that there was no
empirical data to show that minority officers or sergeants were
better equipped to serve minority communities. (807a-808a).
As a professional police administrator, Nichols stated that the
goal of achieving a racial balance should not be pursued if
it results in the promotion of less qualified individuals.
(881a,4). Commissioner Nichols concluded by stating that
a racial balance of sergeants would not have any effect what
soever on the community. (881a.4-881a.5).
On the other hand, Tannian stated that, in his opinion,
race was a bona fide occupational qualification for 50% of the
sergeants’ positions. (1495a). However, Tannian admitted
50
that, in many instances, qualified white officers could effec
tively communicate with members of the black community.
He never attempted to determine whether any of the individual
white officers, passed over for promotion, had records revealing
effective work in the black community. (2055a-2056a, 2058a).
Indeed, Tannian admitted that he had issued citations of merit
to white officers who had worked in black communities and,
conversely, had issued similar citations to black officers for
work in white communities. (2061a).
Chief Hart flatly stated that he believed that an effective
police agency must reflect the racial composition of the popu
lation. (2279a). Hart, however, did state that “it’s all a
matter of attitude” on the question of an officer’s ability to
relate to the black community. (2321a-2322a). Hart also
confirmed the obvious fact that, in some cases, black officers
can relate better to whites than can a white officer, and, con
versely, that some white officers can relate better to blacks.
(2321a-2322a). Hart had no reluctance to admit that there
was no investigation of the passed over candidates to determine
their ability to communicate with the black community. Chief
Hart stated:
“I didn’t pass him over because he couldn’t relate to the
black community or the white community for that matter.
He got passed over because of some other compelling need
to reflect the community.” (2323a).
The alleged compelling need, was based on the fact that, be
cause the community was 50% black, the Department should
reflect the community. (2325a-2326a). Incredibly, Chief Hart
stated that, because Dearborn, Michigan was 100% white, a
policy of operational needs could result in exclusion of black
officers from the Dearborn Police Department. (2326a). How
ever, he admitted that a qualified black officer could do a good
job in white communities such as Dearborn, Grosse Pointe, or
Bloomfield Hills, Michigan:
“but as public servants we have to reflect what the people
would like. That’s one of the problems in Detroit. It
51
has nothing to do with the officers professionalism.”
(2327a-2328a). (Emphasis added).
He concluded by stating that if the City of Dearborn wanted
to reflect its population, it would not have to hire any black
policemen. (2329a).
Robert Bullock denied that only blacks could effectively deal
with the black community, and stated that, depending on
the ability of the officer, a white officer could effectively work
with blacks in many situations. (2586a).
Dr. Erik Beckman,72 called as an expert witness by the
Plaintiffs, stated that, in his opinion, the quality of service
provided, rather than the race of the officer providing the
service, should be the primary consideration of a police em
ployer. (2681a). He stated that the key to providing police
service satisfactory to the citizenry is a professional depart
ment which crosses racial lines and chooses its employees
without regard to race. (2683a-2684a).
Dr. Beckman stated that a promotional system which by
passed qualified persons solely because of their race would
severely damage the morale of the Department by reducing
work quality of the passed over individuals and by promoting
resentment and hostility. (2686a). Such a promotional policy
would clearly be detrimental to employee relations. (2693a).
The fact that white officers could effectively deal with the
black community was illustrated particularly well by the testi
mony of two individual white officers who were passed over at
least once before obtaining the rank of sergeant.
Sergeant Donald Prince, one of the named Plaintiffs, was
first hired by the Department on June 29, 1970. (1887a).73
72 D r. B eckm an h o lds a Ph.D . fro m W ayne S tate U n iv e rs ity in
Educational P sycho logy, S ocio logy and C rim in o lo g y ; he was an officer
fo r 8 years in Los Angeles and O range C ounty, C a lifo rn ia , and has
been em ployed as a p ro fessor in the C r im in a l Justice P ro g ra m a t
M ich igan S ta te U n iv e rs ity since 1975. (2677a-2679a; 1302b-1305b).
73 O fficer P rin ce o r ig in a lly appeared on P ersonnel O rd e r 74-108
( lb -4 b ) as n u m b e r 87 b u t was n o t p ro m oted because o f the ra c ia l
preference p ro g ra m . (1888a). S ergeant P rin ce subsequently app lied
fo r p ro m otion and appeared on P ersonnel O rd e r 75-352 as n u m b e r
52
As a police officer, Sgt. Prince was assigned to the 11th Precinct
which changed over several years from a population of 60%
white to 60% black. ( 1900a-190la ) . He was required to work
the car booster squad in primarily black neighborhoods.
(1901a). His work in the 11th Precinct involved surveillance
and the use of informants. Throughout his TA years of police
work, he has had only one white informant. The rest have
been black. ( 1901a-1902a). Prince’s record demonstrates that
he had no trouble communicating with informants, victims, or
potential witnesses of a different race. (1902a).
After his promotion to sergeant on April 5, 1976, Prince was
assigned to the 10th Precinct, which is 99% black, as a plain
clothes officer. (1897a, 1904a). Sgt. Prince has worked the
cruiser detail, narcotics, bar inspections, and has made liquor
write-ups in black bars without any problems of a racial nature.
(1904a-19Q5a.l).
In return for exemplary service, Sgt. Prince has received a
Chief of Police Citation, seven regular citations (one as a
sergeant), and eleven commendations. He has even received a
plaque of appreciation from a community citizens group in
the 10th Precinct. ( 1898a-1899a). (902b-912b). Sgt. Prince
is now within the top three officers of the 10th Precinct in
categories of arrest and conviction rate. (1905a.l).
Dr. Harvey Harris,74 a white officer among the Plaintiff Class
who was passed over once and later promoted, testified that
as a police officer in the Internal Affairs Division he partici
34, and was f in a lly p ro m oted to S ergeant on A p r i l 5, 1976. (1895a-
1896a).
74 D r. H a rr is rece ived a B .A . w i th a m in o r in psycho logy fro m the
U n iv e rs ity o f R ichm on d in 1961. H e a ttended th e U n iv e rs ity of
R ich m o n d L a w School fo r 2 years. H e rece ived a M.S. fro m M ich iga n
S tate U n iv e rs ity and its School o f P o lice A d m in is tra t io n in 1966; and
rece ived h is Ph.D. f ro m M ic h ig a n S ta te U n iv e rs ity in M a rc h o f 1976
in h ig h e r educa tion and po lice a d m in is tra tio n . H e has ta u g h t at
M ic h ig a n S ta te U n iv e rs ity . (1867a-1873a, 1877a). D r. H a rr is was
f irs t appo in ted as a p o lice o ffice r on Jan. 4, 1971; he ap p lie d fo r p ro
m o tio n to sergeant in 1973, appearing on P.O. 74-108 as n u m b e r 113,
b u t was n o t p ro m oted (1878a-1879a). He ap p lied fo r p ro m o tio n in
1974, appearing on P.O. 75-352 as No. 11. H e was p ro m o te d to the
ra n k o f sergeant and is n o w assigned to th e H o m ic id e D iv is ion .
(1868a, 1874a, 1884a-1885a).
53
pated in surveillance. (1874a). When he was with the Nar
cotics Division, Sgt. Harris worked primarily in black neigh
borhoods, yet his race never inhibited his performance.
(1876a). He also did surveillance work in predominantly
black neighborhoods, worked with black partners, and in
terrogated black suspects, all without racial problems. ( 1876a).
Since his assignment to the Homicide Section, he has often
worked effectively in black neighborhoods and interrogated
black suspects without experiencing any racial problems.
(1877a).
The City’s racial preference scheme was, in fact, an insult
to dedicated officers like Harvey Harris and Donald Prince,
who sought to serve the citizens of Detroit without regard to
race. The City’s argument of operational need is clearly over
come by the devastating impact upon department morale
caused by racial preference. As stated by the District Court,
relying specifically on the testimony of Drs. Ebel, Wollack,
and Beckman:
“. . . the Court accepts as fact, that the inclusion of race
as a promotional criterion damages departmental morale
and the quality of work of all officers. The record evi
dence demonstrates . . . that a police officer’s effectiveness,
as a professional law enforcement officer both within
the department and the community in which he serves,
is dependent upon his education, skill, training, attitude
and sense of professionalism. The unalterable pigmenta
tion of his skin has no bearing upon these facts and neither
enhances nor depreciates his professional enforcement
effectiveness. Defendants’ claim that operational needs
of the department required more blacks on the police
force is rejected by the Court as being factually unsup
ported by any competent evidence.” DPOA v. Young,
supra, at 1002.
54
1. The Alleged Need for Black Officers
In Surveillance Work.
Chief Tannian stated that he needed blacks for surveillance
of black gambling and narcotics operations. (1531a). How
ever, Tannian did not deny that white officers had done sur
veillance in black areas and black neighborhoods often with
the same results as black officers. (2059a).
Deputy Chief Bannon also admitted that, in some cases,
white officers could use informants if black officers were not
available. (2342a-2343a). Chief Hart stated that, prior to
July 31, 1974, white officers below the rank of sergeant acted
as plainclothes investigators, and that the Department could
conduct plainclothes investigations with personnel other than
sergeants by transferring officers from precincts to investigative
units. (2302a-2303a).
This testimony by Chief Hart was confirmed by Robert
Bullock who stated that black officers with special qualifica
tions could be transferred regardless of rank to investigative
units. Bullock never had any problem getting sufficient black
officers for special tasks. (2588a-2589a). Specifically, he
testified:
“Q. In a department consisting of upwards of five
thousand sworn officers is it necessary to have any
method of 50/50 racial balancing to provide an
adequate number of surveillance officers, under
cover officers, and supervisors in any sort of racial
balance?
A. Not in my opinion, sir.” (2587a-2587a.l).
2. The Alleged Reduction in Citizen Complaints
Chief Hart and Deputy Chief Bannon testified that pro
fessional standards complaints by citizens went down with
the implementation of the promotional quota. (2277a; 2328a;
2367a-2368a).
In 1970, any and all complaints filed with the Citizens Com
55
plaint Section were counted. (2334a). In 1974, two types
of complaints went to the New Professional Standards Section
(2335a): one originated with the citizen and the other dealt
with alleged violations of the department’s professional stan
dards. (2335a). The number of complaints was thereby
increased by including matters which were not genuine citi
zens’ complaints. (2335a). Contrary to the City’s argu
ment, a study revealed that citizens complaints actually rose
in 1975. (2436a-2437a).
That study, entitled Citizens’ Complaints of Police Miscon
duct from January, 1975 to June, 1976 (1241b-1242b), indi
cated that a number of reasons could account for any reduction
in complaints, including, inter alia, the fact that: (1) persons
violating department rules have been charged and disciplined
appropriately; (2) Department members have been made
more aware of their duties and responsibilities relative to
citizen inquiries; and (3) each member of the Department
has been put on notice that violations of the law or regulations
will not be tolerated. (1241b-1241b.l; 2437a.l).
3. The Purported Decrease in Crime.
With regard to a decrease in crime, the record indicated that
many factors can cause a reduction, including:
(1) Density and size of population;
(2) Composition of the population relative to age, sex,
and race;
(3) Economic status;
(4) Relative stability of population;
(5) Seasonal weather conditions;
(6) Education, recreational and religious characteristics
of communities;
(7) Effective strength of the Police Department;
(8) Standards governing appointment to the Police
Department;
56
(9) Public Attitudes;
(10) Administrative and investigative efficiency.
(2310a-2311a).
Preliminarily, it should be noted that, in June of 1974 there
was an increase in all major crimes in the City of Detroit.
(1506a). Further, there were more major crimes in 1976
than there were in 1974. (2309a).
Chief Hart admitted that a major reason for the reduction
in crime, claimed by the City, was an increase in the overall
strength of the Department. (2314a). As crime was escalating
in 1974 and 1975, the Department’s strength was declining.
(2318a). In 1975, budget constraints prevented the De
partment from filling vacancies. (2313a). On or about June
30, 1976, budget restraints required the Department to lay
off 972 police officers. (2313a; 2332a). These officers were
recalled in September of 1976 and the crime statistics began
to decrease in October of 1976 or immediately thereafter.
(2314a, 2332a). In 1975, the police department hired 651
additional new officers, with an actual gain of 450 after
attrition. (2312a). Thus, the effective strength of the De
partment changed, in the following manner, from the years
1973 through 1977:
1973 - 5,541 1976 - 5,052
1974 - 5,383 1977 - 5,643
1975 - 5,458
(2317a-2318a; 1234b, 1235b).
Additionally, Chief Hart admitted that when economic con
ditions improve, crime goes down. (2319a). Both Hart and
Deputy Bannon confirmed the fact that, in 1977, the City of
Detroit was far better off economically than it was 18 months
previously. This fluctuation also reduced crime. (2319a;
2371a). Chief Hart also identified special efforts to control
gang activity during the years 1975-77. (2282a-2283a).
Whether or not related to these efforts, gang activity decreased
57
in 1977. (2283a; 2332a). Finally, in 1977 the City of Detroit,
in conjunction with other municipal bodies, hired about 18,000
youths for public service work. The removal of these un
employed young people from the streets was said to have
a profound effect on the crime rate. (2319a).
Finally, Chief Hart admitted that the population in Detroit
has decreased since 1970. (2307a-2308a). Therefore, the
record established several potential causes for the decrease
in crime — including reduction in population, improved eco
nomic conditions, youth employment programs, and increased
police strength. The City offered no proof to tie any reduc
tions in crime to racial quotas. The District Court justifiably
found that:
On the whole, the evidence in the record reveals and
this Court finds to be fact, that neither the quantity of
crime nor the number of citizen complaints dropped with
the advent of the department’s affirmative action plan.
More importantly, however, is the fact that there is no
evidence indicating that if such a decrease in crime and
citizen complaints did exist that the decreases were
attributable to the affirmative action plan.”
DPOA v. Young, supm, at 1002.
This finding, as well as the other findings of fact of the District
Court, are abundantly supported by the record. They may
not be set aside as clearly erroneous.
ARGUMENT
I. INTRODUCTION
The City asks this Court to review the findings and con
clusions of the District Court that the City’s voluntary racial
preference program violated the rights of the Plaintiff Class.
The findings of the District Court were made after the presen
tation of approximately 5,000 pages of testimony and nearly
300 Exhibits during the sixty day trial.
58
In light of this extensive record, it is crucial that this Court
keep in mind several basic principles of appellate review in
reaching its decision:
A. The Findings of the District Court Must Be Affirmed
Unless Shown to be “Clearly Erroneous.”
In their Brief, Defendants (at pp. 46-47) attempt to per
suade this Court that the clearly erroneous rule, as set forth
in Rule 52(a) of the Federal Rules of Civil Procedure, is
inapplicable. Rule 52(a) provides in pertinent part, that:
“Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given the opportunity
of the trial court to judge the credibility of the wit
nesses. . . .”
This Circuit has consistently applied the clearly erroneous
rule when reviewing Title VII actions. See, e.g., Shipp v.
Memphis Area Office, Tennessee Department of Employment
Security, No. 76-1515 (6th Cir. Aug. 7, 1978); Senter v. Gen
eral Motors Corp., 532 F.2d 511, 526 ( 6th Cir. 1976).75
In Smith v. South Central Bell Telephone Co., 518 F.2d 68,
69 (6th Cir. 1975), this Court stated: “But even with claims
of racial discrimination we can overturn a district court’s
findings of fact only if ‘clearly erroneous’.”
Under this test, a finding is clearly erroneous when “the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.”
United States v. United States Gypsum Co., 333 U.S. 364, 395
(1948). See also, Chance v. Board of Examiners, 458 F.2d
1167 (2d Cir. 1972).
While the clearly erroneous principle is inapplicable to a
S ee also, Heard v. M ueller Co., 464 F.2d 190, 193 (6 th C ir. 1972);
H arrison v. G oodyear T ire & R ubber Co., 508 F.2d 678, 679 (5 th C ir.
1975) ; W illiam s v. S outhern Union Gas Co., 529 F.2d 483, 488 (10 th C ir.
1976) ; See also, U.S. v. C ity o f Chicago, 549 F.2d 415, 425 (7 th C ir.
1977) ; W oods v. North A m erican R ockw ell Corp., 480 F.2d 644, 646
(10 th C ir. 1973).
59
material error on a question of law by the district court,
Senter, supra, 532 F.2d at 526, the Briefs of the City and the
Justice Department preliminarily attack the District Court’s
findings of fact. Plaintiffs’ Statement of Facts demonstrate
that there is abundant evidence on the record as a whole to
support the findings of the District Court under the clearly
erroneous standard.
The City and the Justice Department have attempted to
distract this Court from the material of record by citing
opinions, authorities, and statistics regarding the City and
its Police Department never admitted into evidence. This
Court must exercise great care in limiting its review of the
District Court’s findings to the record presented to the District
Court.76
This Court’s review is further limited by the status of this
litigation. As a result of the District Court’s Order of Bifurca
tion, the February 27, 1978 Opinion and Injunction found
liability but deferred the issue of remedy for later proceed
ings.77
Thus, the appeal is only from the grant of an injunction.
The limitations on this Court’s review under § 1292 of an
order granting an injunction were recently set forth in Alex
ander v. Aero Lodge No. 735, 565 F,2d 1364, 1370 (6th Cir.
1977) as follows:
We recognize that a court of appeals should ordinarily
limit its review to the narrow question of whether the
district court abused its discretion in issuing the injunc
tion, intruding into the merits of the case only to the
76 P la in t if fs have file d a M o tio n to S tr ik e the n o n -re co rd m a te ria l
contained m th e S ta te m e n t o f Facts o f th e D efendan ts and the Justice
departm ent. In re v ie w in g the D is tr ic t C o u rt’s decision, th is C o u rt
must confine its e lf to the reco rd in d e te rm in in g w h e th e r o r n o t a
p a rticu la r f in d in g w as c le a r ly erroneous. (See a u th o ritie s c ited in
M em orandum m S u p p o rt o f M o tio n to S t r ik e ) .
77 Phe P la in t if fs have file d a M o tio n to D ism iss the A p p e a l in th is
?n the gro u nd s th a t the F e b ru a ry 27, 1978 O rd e r and P erm a ne n t
TT QUn C «?onWas no^ an “ ^ ju n c t io n ” w i th in the con te m p la tio n o f 28
i ̂ -‘■292(a) and th a t th is C o u rt th e re fo re lacks ju r is d ic t io n o f the
60
extent necessary to decide that issue. See, Blaylock v.
Cheker Oil Co., 547 F.2d 962, 964-65 (6th Cir. 1976) . . ”
Under Alexander, this Court must confine its review to a
determination of whether the District Court properly issued
the permanent injunction.78
B. This Court May Not Reverse on Issues or Arguments
Never Presented by the City to the District Court.
The City’s Brief has also raised numerous issues and defenses
never presented to the District Court.79 Since the District
Court was never given the opportunity to review these new
issues (identified throughout this Brief) they should not be
considered by this Court.
It is the settled law of this Circuit that issues not raised in
the trial court cannot be raised for the first time on appeal.
See Schneider v. Electric Auto-IJte Co., 456 F.2d 366, 375
(6th Cir. 1972).80
78 T he A m icu s B r ie f o f the U n ite d States and the EEOC v ir tu a lly
ad m its th e p ro p r ie ty o f th e issuance o f th e in ju n c tio n , p. 90, b y sta ting
th a t “ fu tu re p ro m otion s to sergeant m a y th re a te n le g a l v io la tions,
depend ing on w h a t t im e l im i t o r u lt im a te goal is a p p ro p ria te .”
79 T he le g a l positions o f the D efendan ts w e re set fo r th in th e ir
Proposed F in d in g s o f F act and Conclusions o f L a w file d in the low er
c o u rt on D ecem ber 22, 1977. A re v ie w o f D e fendan ts ’ B r ie f shows
th a t num erous a rgum ents are ra ised in th is C o u rt fo r th e f irs t tim e.
These n e w m a tte rs in c lud e , b u t are n o t lim ite d to, the fo llo w in g : (1)
th e c la im th a t in te n t is n o t a re q u ire m e n t fo r a f in d in g o f d is c r im i
n a tio n un d e r 42 U.S.C. § 1981 (B r ie f, pp. 55 -5 6 ); (2 ) th e argum ent
th a t th e use o f fa c ia lly n e u tra l se lection procedures am ounted to
in te n tio n a l d is c r im in a tio n because o f the n a tu ra l, p ro ba b le and fo re
seeable re su lts o f those practices, (B r ie f, p. 76 ); (3) con s ide ra tio n of
th e adverse im p a c t o f the p ro m o tio n a l m od e l ra th e r th a n the adverse
im p a c t o f the e xa m in a tio n (B r ie f, pp. 101-104); (4 ) c la im s th a t the
C ity ’s ow n p ro m o tio n a l e x a m in a tio n w as im p ro p e r due to the alleged
la ck o f a jo b analysis, p ro p e r w e ig h tin g , and la ck o f questions on
su p e rv iso ry re s p o n s ib ility (B r ie f, pp. 112-116); and (5 ) c la im s that
P la in t if fs fa ile d to estab lish a cause o f ac tion u n d e r 42 U.S.C. § 2000d
due to th e excep tion con ta ined in 42 U.S.C. § 2000d-3. (B r ie f, pp. 84-
85).
80 S ee also, W ipper v. G reat L akes E ngineering W orks, 340 F.2d
727, 731 (6 th C ir. 1965); Gibson v. First F ederal Savings & Loan
A ssociation o f D etroit, 504 F.2d 826, 830 (6 th C ir. 1974); Bannert v.
A m erican Can Co., 525 F.2d 104, 111 (6 th C ir. 1975).
61
The rationale behind this settled principle was best stated
by Justice Black in Horrnel v. Helvering, 312 U.S. 552, 556
(1941):
“[0]ur procedural scheme contemplates the parties shall
come to issue in the trial forum vested with authority to
determine questions of fact. This is essential in order that
parties may have the opportunity to offer all the evidence
they believe relevant to the issues which the trial tribunal
is alone competent to decide; it is equally essential in
order that litigants may not be surprised on appeal by
final decision there of issues upon which they have had
no opportunity to introduce evidence.”
Comparison of Defendants’ Brief with Defendants’ Proposed
Findings of Fact and Conclusions of Law filed below reveals
that a preponderance of the arguments presented to this Court
was never presented in the trial court.8’ This “sandbagging”
of the District Court should be condemned, rather than
condoned, by this Court.
C. This Court May Confirm the Decision of the District
Court on any Ground that Appears in the Record.
Plaintiffs submit that the District Court was correct in each
and every ruling and finding contained in its Opinion and
Order. If the District Court made an erroneous finding of
fact or conclusion of law, this Court may nevertheless affirm
the District Court’s correct result. See, Helvering v. Gowran,
302 U.S. 238, 245 (1937); ]. E. Riley Investment Co. v. Com
missioner of Internal Revenue, 311 U.S. 55, 59 (1940); SEC
v. Chenery Corporation, 318 U.S. 80, 88 (1943); Sapp v.
81 I t is also w e ll se ttled th a t the A m ici Curiae canno t in tro d u ce
new issues on appeal and are bound b y the issues ra ised b y the
parties to the lit ig a t io n in the t r ia l cou rt. S ee, M offet Tunnel Im -
Vroyement D istrict v. D en ver & St. Louis Railway Co., 45 F.2d 715,
122 d o th C ir. 1930); K n etch v. United States, 364 U.S, 361, 370 (1960);
Sanders v. John N u rveen & Co., Inc., 554 F.2d 790 (7 th C ir. 1977).
62
Renfroe, 511 F.2d 172, 175 n.2 (5th Cir. 1975); Jurinko v.
Wiegand Co., 477 F.2d 1038, 1046 (3rd Cir. 1973).
In Cleveland v. Cleveland Electric Illuminating Co., 570
F.2d 123, 128 (6th Cir. 1978), this Court stated that “if the
judgment of the District Court was correct on any ground,
it is entitled to affirmance.” Likewise, the decision of the
lower court may be affirmed on any ground in the record,
whether or not relied upon by the lower court. See, Dandridge
v. Williams, 397 U.S. 471, 475 (1970); Keyes v. School District
No. 1, Denver, Colo., 521 F.2d 465, 472 (10th Cir. 1975);
Milwaukee v. Saxhe, 546 F.2d 693, 704 ( 7th Cir. 1976).
D. The Failure of the City to Present Any Direct
Evidence of its Own Discrimination Justifies a
Conclusive Presumption in Favor of the Plaintiffs.
As set forth in Exhibit I of this Brief, Plaintiffs’ discovery
efforts were consistently and significantly frustrated by the
Defendants’ refusal to respond even to the reasonable orders
of the District Court. The City and the Justice Department
now argue that isolated portions of the record, as well as
material outside of the record, show that past and present
discrimination existed in hiring and promotions. Yet the
City failed to present evidence at trial which presumably
would have supported its position (if true), and which was
in its exclusive custody and control. This default requires
a conclusive presumption, in Plaintiff’s favor, on the issue of
past discrimination.82
82 A g la r in g exam ple o f the n o n -p ro d u e tio n o f w itnesses was the
fa i lu re o f D e fendants to c a ll Joh n F urcon , w h o p re pa red the en try
le v e l e xa m in a tio n and th e 1973 jo b ana lys is used fo r the p ro m otion a l
exams. M r. F u rco n w as m ore th a n 100 m ile s fro m th e ju r is d ic tio n
o f th e C o u rt and, thus, n o t a va ila b le b y subpoena. A lth o u g h Defen
dants endorsed M r. F u rco n as an e x p e rt w itness, he was n e ve r called
to te s tify . A n o th e r exa m p le o f D e fendan ts ’ fa ilu re to produce evi
dence in th e ir c o n tro l re la te d to p ro m o tio n a l practices p r io r to 1973.
P la in t if fs requested, and th e C o u rt o rdered, th a t D e fendan ts provide
a l l in fo rm a tio n re la t iv e to p ro m o tio n a l e xa m ina tion s p r io r to 1973.
D e fendan ts s im p ly re fused to com p ly . D e fendan ts n o w re ly on an
63
The failure to produce evidence within the control of a
party raises the presumption that, if produced, the evidence
would operate against that party. Therefore, a disputed
issue of fact arising from that evidence should be resolved
in favor of the opposing party.83
The fact that the employer has absolute control over evi
dence relative to a claim of past discrimination was recently
recognized by the Court in International Brotherhood of
Teamsters v. United States, 431 U.S. 324 (1977).84 In dis
cussing the rationale for requiring the employer, rather than
the plaintiff, to disprove the specific facts constituting alleged
discrimination, the Court reasoned:
”[T]he employer was in the best position to know why
any individual employee was denied an employment op
portunity. Insofar as the reasons related to available
vacancies or the employer’s evaluation of the appli
cant’s qualifications, the company’s records were the
most relevant items of proof. If the refusal to hire was
based on other factors, the employer and its agents knew
best what these factors were and the extent to which
they influenced the decision-making process.” 431 U.S.
at 359, n. 45.
In this case, the City is in sole and exclusive possession
of all direct evidence of discrimination in its hiring and
promotions. Having failed to produce that evidence, the
City is estopped from supporting its racial quota with
an unsubstantiated confession of discrimination against
minorities.
isolated s ta tem e nt o f R ich a rd C a re tti th a t the p ro m o tio n a l e xa m ina
tions w e re IQ o rien te d , a s ta tem ent based so le ly on one sergeant’s
exam ination ta ke n b y C a re tti m o re th a n fifte e n yea rs ago. D e fendan ts ’
Brief, pp. 18-19, 28.
83 See, Shuell v. London A m usem ent Co., 123 F.2d 302, 306 (6 th C ir.
1941); W einhart v. A etn a Insurance Co., 249 F.2d 40, 41 (6 th C ir.
1957); Taylor v. Canadian National Ry. Co., 301 F.2d 1, 3 (2d C ir.
1962); United Broadcasting Co., Inc. v. A rm es, 506 F.2d 766, 770 (5 th
Cir. 1975); M ilbank M utual Insurance Co. v. W entz, 352 F.2d 592, 597
(8th C ir. 1965); M am m oth Oil Co. v. United States, 275 U.S. 13, 52
(1927).
84 H e re in a fte r id e n tif ie d as Team sters.
64
E. The Elements in a Prima Facie Case and the
Proper Allocation of the Burden of Proof.
In McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973), the Court identified the elements of a prima facie case
of racial discrimination under a theory of disparate treatment.
The basic elements are also applicable to a case involving a
discriminatory denial of promotional opportunity. See, Meyer
v. Missouri State Highway Commission, 567 F.2d 804, 808
(8th Cir. 1977). A prima facie case of promotional discrimi
nation is established by showing: (1) that the plaintiff belongs
to a protected group; (2) that he was qualified for promotion
and might have reasonably expected selection for the promo
tion under the defendant’s competitive promotion system; (3)
that the was not promoted; and (4) that some supervisory
judgment betrayed a predisposition towards discrimination
against members of the involved minority. See, Pettit v.
United States, 488 F.2d 1026 (Ct. Cl. 1973); Thompson v. Mc
Donnell Douglas Corporation, 416 F.Supp. 972 (E.D. Mo.
1976).
The foregoing standards have been met by the Plaintiffs:
1. Since Plaintiffs are Caucasians, they are members of a
protected class under Title VII.85
2. It is undisputed that the white officers who were passed
over were fully qualified to perform the duties of sergeant
within the Department.
3. The members of the Plaintiff class were not promoted
at the time they would have been promoted under a racially
neutral model.86
85 S ee, M cDonald v. Santa F e Trail Transportation Com pany, 427
U.S. 273 (1976); H aber v. K lassen, 540 F.2d 220 (6 th C ir. 1976); Hicks
v. A B T Associates, Inc., 572 F.2d 960, 967 (3 rd C ir. 1978); Herrm an v.
Colem an, 428 F.Supp. 447 (D . D.C. 1977).
86 T h e re a fte r, severa l officers w e re p ro m o te d f ro m a d d itio n a l lists
such as Sergeants W ill ia m M organ , D o n a ld P rin ce , and B r ia n B runett.
H o w eve r, num erous officers, in c lu d in g K e n n e th S c h ill and Charles
E ve le th , have n e ve r been p ro m o te d to the ra n k o f sergeant and, in
fac t, have been passed o ve r on m ore th a n one occasion. Indeed,
O ffice r K e n n e th S c h ill has been passed o ve r on th re e separate
occasions.
65
4. The witnesses unequivocally testified that the Plaintiff
officers were not promoted solely because of race.
Therefore, Plaintiffs clearly have presented a prima facie
case of racial discrimination in promotions.87
Numerous amici curiae attempt to argue that a different
standard of proof should be applied since white Plaintiffs
are claiming discrimination by virtue of an Affirmative Action
Program. However, the McDonnell Douglas, supra, standards
clearly apply to discrimination actions brought by whites. As
stated by the Court in McDonald v. Sante Fe Transportation
Co., supra:
“We therefore hold today that Title VII prohibits racial
discrimination against the white petitioners in this case
upon the same standards as would he applicable were they
Negroes . . (Emphasis added) 427 U.S. at 280.
Once a prima facie case has been established by the Plain
tiffs, the burden then shifts to the employer to articulate some
legitimate, non-discriminatory reason for the employee’s re
jection. See, McDonnell Douglas Corporation v. Green, supra,
at 802.
87 Since th is m a tte r proceeded as a Class A c tio n , the b u rd e n was
upon P la in t if f to es tab lish a p a tte rn a n d /o r p ra c tice o f d is c r im in a tio n
against Caucasians in the area o f p ro m o tio n . T h is b u rd e n was c le a r ly
met by P la in t if fs . H o w eve r, since th is was a b ifu rc a te d t r ia l, the re
was no need fo r P la in t if fs to estab lish th a t each in d iv id u a l class
m em ber was a c tu a lly d is c rim in a te d against. S ee International B roth
erhood o f Team sters v. United States, 431 U.S. 324 (1977); Franks v.
Bowman Transportation Co. Inc., 424 U.S. 747, 772 (1976).
66
II. • DEFENDANTS MAY NOT FOIST THE ECONOMIC
AND SOCIAL BURDENS OF ITS ALLEGED PAST
WRONGDOING UPON THE INDIVIDUAL
PLAINTIFFS
It is beyond dispute that the individual Plaintiffs were denied
their promotions solely on the basis of race. In an attempt to
justify their actions, Defendants have alleged the existence of
discrimination against minorities, allegedly occurring over a
28 year period. The Defendants simply failed to prove any
illegal or unlawful past discrimination.
Yet the District Court’s finding of liability must be affirmed
even if Defendants had established past discrimination. For
if discrimination had been proven, it would have required de
fendants to provide a remedy for its past unlawful conduct.
Defendants would have a duty to provide each victim of
discrimination appropriate relief in the form of money dam
ages, retroactive seniority, or both. Instead, the City has
chosen to pass the professional and economic burden of its
own misconduct to the Plaintiff class, with all of the attendant
economic and social dislocation. The cynical and calculated
result is the fulfillment of a political promise by the Defend
ants, to the economic disadvantage of the Plaintiffs.
The City has provided the black officers a remedy though
none of them are identified as the victims of the alleged past
discrimination. Defendants have fulfilled the political commit
ment of the present administration to reflect, in the police
department, the racial composition of the community. The
white officers have carried the entire burden for Defendants’
alleged wrongdoing. Even those eventually promoted have
lost rank, salary, and seniority.
This basic inequity requires that the white officers be pro
vided with some remedy. At best, that remedy would include
promotion, retroactive seniority, and back-pay. See, Franks
v. Bowman Transportation Co., Inc., 424 U.S. 747 (1976) and
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). At the
least, the white officers would be entitled to a monetary remedy
if promotion is impossible due to the Defendants’ alleged past
67
mischief. For purposes of liability it is inconsequential
whether or not the City once discriminated against minorities.
Defendants would still be required to provide the individual
Plaintiffs with a remedy. At this stage, the District Court has
not yet been given an opportunity to balance the interests
of all parties and to formulate a remedy for the individual
white officers.
In Franks v. Bowman Transportation Co., Inc., 424 U.S. 747
(1976), a majority of the Court held that minority employees
who have suffered post-Act discrimination could be awarded
retroactive seniority, even if this tended to disadvantage white
employees with higher seniority. Only the proven victims of
discrimination would be awarded retroactive seniority. How
ever, the majority of the Court recognized that the employer,
and not innocent employees, must bear the burden of any
past wrongdoing. The Court found that in order to shift
“to the employer the burden of past discrimination” the trial
court must consider the possibility of an award of monetary
damages (sometimes designated ‘front pay’) in favor of each
employee and discriminatee. 424 U.S. at 777 n.38.
Chief Justice Burger, in his concurring and dissenting opin
ion confirmed the fact that innocent employees may not be re
quired to carry the burden of the employer’s past wrongdoing:
“I agree generally with Mr. Justice Powell, but I would
stress that although retroactive benefit-type seniority re
lief may sometimes be appropriate and equitable, com
petitive type seniority relief at the expense of wholly
innocent employees can rarely, if ever, be equitable if
that term retains traditional meaning. More equitable
would be a monetary reward to the person suffering the
discrimination. An award such as ‘front pay’ could re
place the need for competitive type seniority relief. Such
monetary relief would serve the dual purpose of deterring
wrongdoing by the employer or union — or both — as well
as protecting the rights of the innocent employees. In
every respect an innocent employee is comparable to a
‘holder-in-due-course’ of negotiable paper or a bona fide
purchaser of property without notice of any defect in the
6 8
seller’s title. In this setting I cannot join in judicial ap
proval of robbing Peter to pay Paul.’
I would stress that the Court today does not foreclose
claims of employees who might be injured by this holding
from securing equitable relief on their own behalf.”
424 U.S. at 780-81. (Emphasis added).
Under this rationale, the proper remedy would have been
to pay the black employees, who had been victims of past
discrimination, rather than to discriminate and disadvantage
a new class of innocent employees. In any event, Chief Justice
Burger makes it clear that the innocent white employees can
not be required to shoulder the burden of the employer’s
wrongful conduct.
Justice Powell rendered a dissenting opinion, joined by
Chief Justice Burger and Justice Rehnquist, noting:
“[Cjompetitive seniority benefits, as the term implies,
directly implicate the rights and expectations of perfectly
innocent employees. The economic benefits awarded
discrimination victims would be derived not at the expense
of the employer but at the expense of other workers . . .
(who) are not the wrongdoers, who have no claim to the
Chancellor’s conscience, but rather are innocent third
parties.” 424 U.S. at 788-89.88
Whether one reads the majority opinion by Justice Brennan,
the concurring and dissenting opinion of Chief Justice Burger,
or the dissenting opinion of Justice Powell, the inescapeable
conclusion is that innocent white employees cannot be re
88 Justice P o w e ll also re je c te d the co n te n tio n th a t w h ite employees
are n o t d isadvantaged b y a c o m p e tit iv e -b e n e fit re m e d y w hen they
o b ta in th e ir jo b due to th e e m p lo y e r’s d is c r im in a tio n against m in o r
ities. Indeed, in th is case, m a n y o f th e w h ite officers passed ove r fo r
p ro m o tio n w ere h ire d d u r in g the accelerated p e rio d o f m in o rity
h ir in g a fte r 1968. (S t. a t 47-48). A n e x a m in a tio n o f E x. 194 reveals
th a t 19 o f the w h ite o fficers passed ove r on O rd e r 74-108 w ere hired
a fte r 1968. (699b-708b).
69
quired to bear the employer’s burden for past discrimination.
The rationale of Franks is even more compelling, in this case,
since the white officers were: (1) better qualified to perform
the duties of sergeant based on a merit system; (2) had ex
pended a minimum of two years service before being allowed
to sit for promotion; and (3) were hired during the accelerated
period of minority hiring, long after the City claims its discrim
ination ended. The City may not be allowed to “rob Peter
to pay Paul” by paying for its alleged wrongdoing to minorities
at the sole expense of the careers of the individual white of
ficers, while collecting a significant political dividend for the
incumbent Mayor.
This type of injustice has led courts both before and after
Franks to require that the employer, not innocent employees,
pay the burden of past discrimination.
Judge Gerhard Gesell applied the Franks standards in Mc
Aleer v. American Telephone and Telegraph Co., 416 F.Supp.
435 (D.D.C. 1976). In McAleer, white males were denied
their promotions under a consent judgment entered in EEOC
v. AT&T Co., 556 F.2d 167 (3rd Cir. 1977), cert, denied, 98
S.Ct. 3145 (1978). The consent judgment required a promo
tional quota for minorities and females. McAleer was a white
male denied a promotion under the Consent Judgment. In
awarding the Plaintiff a monetary award, Judge Gesell stated:
“Apparently common to the various opinions in Franks
was a recognition of the need to share among the respec
tive parties the burden of eradicating past discrimination
and achieving equality of employment opportunities. In
particular, it was agreed that courts should attempt to pro
tect innocent employees by placing this burden on
the wrongdoing employer whenever possible, (citations
omitted). This Court, agreeing with these sentiments,
sees no reason why in equitably distributing the burden
among the concerned parties the onus should be shifted
from the employer responsible for the discrimination to
the blameless third-party employee any more than is, as
a practical matter, unavoidable.”
416 F. Supp. at 439-440.
70
Judge Gesell awarded monetary damages to the plaintiff as
a form of compensation for the lost promotional opportunity.
Germann v. Kipp, 429 F.Supp. 1323 (W.D. Mo. 1977),
vacated as moot, 572 F.2d 1258 (8th Cir. 1978), a case con
sistently cited by the City to the lower court, supports Plain
tiffs’ position. In Germann, the Plaintiffs sought only injunctive
relief against a voluntary affirmative action program for pro
motions from the rank of firefighter to the rank of captain and
battalion chief. There was no claim under Title VII nor any
claim to monetary relief. However, Judge Hunter specifically
recognized the correctness of the holdings in Franks and Mc-
Aleer by stating: “While a remedy in damages might be pur
sued under the rationale of the Franks and McAleer cases that
issue is not before this Court and need not be decided herein.”
429 F.Supp. at 1338 n. 25.
In other instances, courts have burdened the employer,
rather than either group of employees, by establishing one
worker’s right to a particular position and requiring the cor
poration to pay the other worker the wage he or she would
have received had he or she been placed in that position. In
Patterson v. American Tobacco Co., 8 FEP Cases 778 (E.D.Va.
1974), the District Court required the displacement of in
cumbents in favor of discriminatees, but ordered that both
groups receive the higher rate of pay. The Fourth Circuit
reversed, but merely reversed the positions — that is, it ordered
that the incumbent be retained in the higher position and
that “the discriminatee received a higher level of pay.” See,
Patterson v. American Tobacco Co., 535 F.2d 257 (4th Cir.
1976), cert, denied, 429 U.S. 920 (1976).
In Watkins v. United Steelworkers of America, 369 F.Supp.
1221 (E.D. La. 1974), rev’d on other grounds, 516 F.2d 41 (5th
Cir. 1975),89 the district court deferred determination of a
remedy to give the parties an opportunity to negotiate one and
noted, “[I]t seems appropriate that the Company, rather than a
89 T he F if th C irc u it reversed on the grounds th a t the sen iority
system d id n o t v io la te T it le V I I because none o f the in d iv id u a ls laid
o ff w e re v ic tim s o f past d is c r im in a tio n .
71
few white employees, should bear the primary burden of
correcting the discrimination that has occurred since 1971.”
369 F. Supp. at 1232.
Defendants have never refuted the merit of this argument.
Indeed, counsel Barry L. Goldstein, O. Peter Sherwood, and
Jack Greenberg, attorneys for the Defendants on appeal, ex
pressed similar views when they filed a Brief as Amicus Curiae
on behalf of the NAACP Legal Defense and Education Fund,
Inc., in Teamsters, supra. Their brief states:
“We note that, whatever the injunctive remedy, an inno
cent white whose present or future position is adversely
affected by tardy compliance with Title VII may, in an
appropriate case, seek monetary relief against the em
ployer or union responsible for the discrimination.”
Amicus Curiae Brief at 9, Citing Franks v. Bowman
Transportation Co., 47 L.Ed 2d 444, 471 (1976).
(Burger, C.J. concurring and dissenting).
A remedy that requires innocent employees to bear the bur
den of the employers alleged past wrongdoing clearly vio
lates essential principles of justice and equity. It also fosters
racial hostility between members of the employer s work force.
The social consequences of requiring employees, rather than
the guilty employer, to pay the cost of a remedy were recently
stated as follows:
“Such a result creates anger and resentment that is likely
to be directed at those whom whites perceive to be the
beneficiaries to their misfortune — the minority workers
retained on the job. The displacement remedy, then,
exacerbates minority-majority tensions which are already
explosive, especially in the blue collar neighborhoods that
experience industrial slowdowns accutely. Put differ
ently, displacement of whites lends credence to the idea
that majority-minority interests are inherently opposed
. . . . While insulating the employer, it pits majority against
minority labor interest, stoking the fires of anti-union
sentiment as well as sexism and racism. That the courts
72
have adopted this as the most viable alternative is in-
excuseable; that civil rights and union advocates have
permitted themselves to be placed in this alignment is
inexplicable.”90
Thus, without regard to the alleged past discrimination, this
Court may affirm the District Court’s conclusion that Defend
ants were liable to the individual Plaintiffs. The extent and
nature of the remedy required will be determined at a later
date by the District Court.
III. THE CITY’S RACIAL PREFERENCE PROGRAM
CONSTITUTES UNLAWFUL RACIAL DISCRIMINA
TION REGARDLESS OF TPIE DEFENDANTS’ CLAIM
OF PAST DISCRIMINATION AGAINST MINORITIES
The District Court found that the City’s voluntary racial
quota was invalid, despite the City’s confession of past dis
crimination, because it denied readily identifiable individuals
a promotional opportunity otherwise theirs under a racially
neutral promotional model. (Mem. Op. pp. 46-49). The Dis
trict Court ruled that promotional quotas, are an acceptable
remedy only when they do not impact upon readily identifiable
individuals. Even if the City had proved its unsubstantiated
claim of prior discrimination in promotions and hiring, the
imposition of its quota in promotions is improper and unlawful.
90 B u rk e and Chase, “ R eso lv ing the S e n io r ity -M in o r ity L a y -O ffs
C o n flic t: A n E m p lo ye r-T a rg e te d A p p ro a ch ” , 13 Harv. Civ. Rts.-Civ.
Lib. L .R ev. 81, 94, 116 (1978). T he t r u th o f these re m a rk s is best
ev idenced b y the fa c t th a t the G uard ians o f M ich ig a n , w h ic h has
“ a p p ro x im a te ly 700 o f its b la c k m em bers . . . em p loyed b y th e C ity
o f D e tro it w i th in the D e tro it P o lice D e p a rtm e n t . . .” have file d an
am icus curiae b r ie f on b e h a lf o f the Defendants. B r ie f fo r the G u a rd
ians o f M ich ig a n , p. 2. T he G uard ians state th e ir in te re s t to be:
“ M a n y o f th e G ua rd ia ns ’ m em bers a re the a c tu a l and p o te n tia l bene
fic ia rie s o f the A ff irm a tiv e A c tio n P la n approved b y th e D e tro it Board
o f P o lice Com m issioners d u r in g J u ly , 1974. A s such, th e y have a
d ire c t in te re s t in th e d ispos ition o f th e in s ta n t appeal.” Id. at 2.
Thus, D e fendan ts ’ actions have p laced b o th b la c k and w h ite officers
on opposite sides o f th is issue, w h e n b o th groups are m e re ly seeking
e q u a lity o f o p p o rtu n ity fro m the w ro n g d o e r em p loye r.
73
A distinction between quotas in hiring and quotas in pro
motions was recognized by the Second Circuit in Bridgeport
Guardians, Inc. v. Members of the Bridgeport Civil Service
Commission, 482 F.2d 1333 (2d Cir. 1973), cert, denied, 421
U.S. 991 (1975). The plaintiffs, black patrolmen, sought to
restrain the City’s discriminatory employment practices. The
District Court imposed hiring and promotion quotas. The
Second Circuit, in reversing the promotional quota, reasoned as
follows:
“[T]he imposition of quotas above the rank of patrolman
constitutes an abuse of discretion and is clearly erroneous.
Initially, we observe that there has been no finding that
the promotion exam is not job related. While past
exclusionary hiring examinations do justify the quota
remedy on entrance, there is no justification in our view
for extending the remedy to higher ranks. . . .
[T]he imposition of quotas will obviously discriminate
against those Whites who have embarked upon a police
career with the expectation of advancement only to be
now thwarted because of their color alone. The impact
of the quota upon these men would be harsh and can
only exacerbate rather than diminish racial attitudes.
(Citations omitted). We see no purpose in curing a
past mischief by imposing a new one which is deliberately
tainted.” 482 F.2d at 1341. (Emphasis added).
Defendants argue that the ruling of the Second Circuit in
Bridgeport was based on the failure to prove discrimination in
promotion.9’ Yet recent decisions by the Second Circuit and
other courts rebut this argument.
In Kirkland v. New York State Department of Correctional
Services, 520 F.2d 420, 429 (2d Cir. 1975), the Second Circuit
again refused to affirm a promotional quota which denied pro
motions to white officers: 91
91 T h is reco rd dem onstra tes no evidence o f p r io r d is c r im in a tio n in
the p ro m o tio n a l process. T he find ing s o f the D is tr ic t C o u rt th a t the
prom otiona l m od e l was jo b re la ted , con ten t v a lid , and ra c ia lly n e u tra l
are supported b y su b s tan tia l evidence.
74
“A hiring quota deals with the public at large, none of
whose members can be identified individually in advance.
A quota placed upon a small number of readily identifiable
candidates for promotion is an entirely different matter.
Both these men and the Court know in advance that re
gardless of their qualifications and standing in a competi
tive examination, some of them may be by-passed for
advancement solely because they are white.” 520 F.2d at
429.
The Second Circuit has affirmed its decision in Kirkland
on at least two occasions. In Chance v. Board, of Examiners,
534 F.2d 993 (2d Cir. 1976), cert, denied, 431 U.S. 965 (1977),
the Court set aside a quota as to the “excessing” of supervisory
personnel employed in the New York City Schools,92 despite
a finding that the promotional examination was not job related.
534 F.2d at 998-99. See also, EEOC v. Local 638, Sheetmetal
Workers International Association, 532 F.2d 821 (2d Cir. 1976).
The fact that a promotional quota must be adjudged under
different standards than an entry level quota has been recog
nized by numerous courts. In White v. Carolina Paper Board
Corp., 564 F.2d 1073 (4th Cir. 1977), the Fourth Circuit
unanimously invalidated a promotional quota. The District
Court, after a specific finding of promotional discrimination,
had ordered that 25% of future promotions be awarded to mi
norities. The Fourth Circuit reversed after recognizing the
effect of a quota on existing employees, specifically relying on
Bridgeport Guardians. See also, Lige v. Town of Montclair,
72 N.J. 5, 367 A.2d 833 (1976); Ortiz v. Bach, 14 FEP Cases
1019 (D. Colo. 1977), and Pennsylvania v. O’Neill, 348 F.Supp.
1084 (E.D. Pa. 1972), aff’d in pertinent part, 473 F.2d 1029
(3rd Cir. 1973) (en banc).
Indeed, the case of NAACP v. Allen, 493 F.2d 614 (5th Cir.
1974), cited in the City’s Brief at pp. 83, 84, 131 & 141, sup
ports Plaintiffs’ argument. Judge Johnson found significant
92 Excessing ru le s p ro v id e d th a t w h en a p o s itio n in a school system
was e lim in a te d , the least sen ior em p loyee in the jo b classification
w o u ld be tra n s fe rre d , dem oted, o r te rm in a te d .
75
racial discrimination within the Alabama State Police,93 in
cluding discrimination at each stage of the employment selec
tion process, and specific instances of racial discrimination
against individuals. 493 F.2d at 616. The Fifth Circuit, after
affirming the existence of unconstitutional racial discrimina
tion and upholding an interim hiring quota, noted the differ
ence between hiring and promotional quotas, recognizing the
validity of the Bridgeport Guardians rationale:
“The problems inherent in quota relief assume different
parameters in the promotion, rather than hiring, context.
See, Bridgeport Guardians, Ine., supra; Pennsylvania v.
O’Neil, supra. We deal here solely with hiring and ex
pressly pretermit any intimation of a position as to pro
motion practices.” 493 F.2d at 622 n. 12.94 *
Defendants rely on several decisions that have approved
promotion quotas, but are factually distinguishable. For ex
ample, in EEOC v. A.T.&T, 556 F.2d 167 (3rd Cir. 1977),
the plaintiffs and defendants entered into a consent judgment
admitting a pattern and practice of race and sex discrimination.
The decree incorporated a quota which allowed less senior
minority employees to bypass more senior white employees
for promotion.93 The Third Circuit’s decision significantly
conflicts with the decision of the Supreme Court in Teamsters,
93 I t is indeed curious th a t D e fendants c ite a decision in i t ia l ly
decided b y Judge Johnson w ho re c e n tly fo llo w e d Judge Kaess’ de c i
sion in f in d in g reverse d is c r im in a tio n a t A la b a m a S tate U n iv e rs ity in
Craig v. Alabam a U niversity, 451 F.Supp. 1207 (D . A la . 1978).
94 S im ila r ly , in Ortiz v. Bach, 14 FE P Cases 1019 (D . Colo. 1977),
the C o u rt fo u n d d is c r im in a tio n in the e n try and p ro m o tio n a l exam
but declined a p ro m o tio n a l quota because o f the p re ju d ice to in noce n t
w h ite candidates.
, 95 P re lim in a r ily , th a t case is fa c tu a lly d is tin g u ish a b le fro m the
instant case because: (1) th e re was a specific ju d ic ia l f in d in g o f past
d isc rim in a tio n ; (2 ) the quo ta was ju d ic ia l ly c o n tro lle d and approved ;
(3) a ll in te re s te d p a rtie s w e re g iven an o p p o rtu n ity to be heard p r io r
to the im p le m e n ta tio n o f th e quo ta system ; (4) the percentage was
based on the re le v a n t la b o r m a rk e t and n o t the genera l p o p u la tio n ;
and (5) th e re was no m e r it p ro m o tio n system th a t had been fo u n d
to be o b je c tive and jo b re la ted .
76
supra.96 The Third Circuit justified the quota by holding that
there was no need to demonstrate that minority members were
victims of past discrimination, or had ever applied for pro
motion. The Teamsters decision clearly required a showing
that the person provided a remedy had applied for and was
refused a job because of race. 431 U.S. at 362-S64.97
Further, unlike the Plaintiffs in this case, white males em
ployed by A.T.&T. were provided a remedy in the form of
front pay and money damages after Judge Gesell found that
the plaintiffs could not collaterally attack the consent judgment.
See, McAleer v. A.T.&T. Co., 416 F.Supp. 435-440 (D.D.C.
1976).98 For these reasons, the Third Circuit’s decision as to
A.T.&T. does not provide legal justification for the Defendants’
voluntary promotional quota.
Defendants also rely on the Seventh Circuit’s decision in
United States v. City of Chicago, 549 F.2d 415 (7th Cir. 1977),
cert, denied, sub nom. Arado v. United States, 434 U.S. 875
(1977) wherein a promotional quota was approved. In that
case, however, the quota was judicially imposed after a judicial
96 F ro m a le ga l s tan dpo in t, i t m ust be rem em bered th a t the T h ird
C irc u it decis ion preceded the C o u rt’s decisions in T ea m ste rs , supra
and T ra n s W o rld A ir lin e s v. H ardison , 432 U.S. 63 (1977). T he T h ird
C irc u it ren de red its decision on A p r i l 22, 1977 and the S uprem e C ourt
re n d e re d its op in ions on M a y 31, 1977 and Jun e 16, 1977. T h is is
re le v a n t g iven th e T h ird C irc u it ’s ex tens ive re lia n ce on F ra n ks v.
B o w m a n T ra n sp o rta tio n Co., 424 U.S. 747 (1976) as a u th o r ity fo r
m o d ify in g th e s e n io r ity p ro v is io n s in the la b o r con tra ct.
97 O n S eptem ber 8, 1978, th is C o urt, in M itc h e ll v. M id -C o n tin en t
S p r in g Co., 17 F E P Cases 1594 (1978) reve rsed a p ro m o tio n quota
w h e re the re had been no sho w in g th a t any o f the e x is tin g employees
had a p p lied fo r a pos ition . In te rp re t in g the decis ion o f the Suprem e
C o u rt in T ea m sters , supra , th is C o u rt s tated th a t th e D is tr ic t C ourt
“ m u s t d e te rm ine th e a p p lica tio n fo r a jo b asserted b y each in d iv id u a l
class m em ber.” 17 F E P Cases a t 1602. In th is case, i t is u n d isp u ted tha t
th e D efendan ts n e ve r de te rm in e d th a t any o f th e b la c k officers, who
rece ived a p re fe re n tia l p ro m o tio n , was ever a v ic t im o f past d is c r im i
n a tion , le t alone th a t the person had ap p lie d fo r p ro m o tio n to the
jo b o f sergeant.
98 See also, W eb e r v. K a iser A lu m in u m Co., 563 F.2d 216 (5 th Cir.
1977) w h ere the C o u rt h e ld th a t the p a rtie s to a co lle c tive ba rga in ing
agreem ent v io la te d T it le V I I b y im p os in g a quo ta system to the
d isadvantage o f w h ite em ployees. A p e tit io n fo r w r i t o f c e r t io ra r i is
p e nd ing be fo re the C o u rt as to W eb er. T he M cA le er case was settled
on appeal and ju d g m e n t was vaca ted b y s tip u la tio n .
finding of a long and egregious pattern of racial discrimination
in hiring and promotions. The District Court found that
the entry level and promotional examinations, as well as the
background investigations, discriminated against blacks and
were not job related." This history of discrimination is sim
ply not present in this record. Further, the judicially imposed
promotional quota was affirmed only because of the City’s
refusal to develop an alternative basis for remedying its past
discrimination. 549 F.2d at 437.99 100
In EEOC v. Detroit Edison Co., 515 F.2d 301 (6th Gir.
1975), remanded on other grounds, 431 U.S. 951 (1977), this
Court affirmed the imposition of a promotion quota without any
discussion whatsoever. However, the District Court had im
posed the quota only after finding that (1) the criteria for
promotion were totally subjective; (2) there was no evidence
as to the content validity of the promotional examination; and
(3) substantial numbers of blacks had been denied promotion,
despite superior qualifications. Further, this Court’s decision in
Detroit Edison did not consider the substantial precedent cited
earlier in this argument.101
The best authority available to this Court may be obtained
from Bridgeport Guardians, Kirkland, Chance, and NAACP
v. Allen. These cases unequivocally indicate that promotion
quotas should not be allowed to disadvantage readily identi
fiable employees — in this case the Plaintiff officers — based
99 In th is case, the experts , in c lu d in g R ich a rd C a re tti, the D e fe n
dants’ o w n em ployee, estab lished th a t the p ro m o tio n a l exa m in a tio n
was p ro fe ss io n a lly developed, com p lied w i th the EEO C G uide lines
on E m p lo ym e n t S e lection P rocedure, (29 C.P.R. § 1607) and was jo b
related and con ten t v a lid . M oreove r, the M ay, 1976 e xa m in a tio n d id
not have any d ispara te im pact. See, supra , pp. 12-15.
100 Judge P e ll, in h is dissent, ob jected on grounds o f the devasta ting
effect o f p ro m o tio n a l quotas upon e ffec tive po lice service. 549 F.2d
at 450.
101 A n o th e r case re lie d on b y the C ity , S h e r r il v. J . P. S te v e n s &
Co., Inc., 410 F.Supp. 770 (W .D . N.C. 1975) was a ffirm ed , w ith o u t
opinion a t 551 F.2d 308 (4 th C ir. 1977). P la in t if fs s u b m it th a t the
Sherrill decision is o f d o u b tfu l v a l id ity in l ig h t o f the F o u rth C irc u it ’s
subsequent r u l in g in W h ite v. C arolina P aper B oard Corp., 564 F.2d
1073 (4 th C ir. 1977) w h ic h exp ress ly approved the B rid g e p o r t G u a rd
ians ra tio na le .
78
upon race. Consistent with that authority, the District Court
merely required the City to stop visiting the burdens of its
confessed wrongdoing upon innocent victims who had em
barked upon a police career expecting advancement based
upon merit, rather than race.
Even if this Court were to reverse the District Court’s ruling
that there was no proof of past or present discrimination in
hiring and promotions, it must affirm the District Court’s order
enjoining a promotion quota operated against readily identifi
able individuals based upon their race.
IV. THE DISTRICT COURT CORRECTLY HELD THAT
A VOLUNTARY, NON-JUDICIAL, RACIAL QUOTA
WAS UNLAWFUL.
A. An Employer Has No Authority To
Voluntarily Impose a Racial Quota.
The Briefs of the City (pp. 90-100) and the Justice Depart
ment (at pp. 64-72) broadly attack the District Court’s f ind ing
that only the courts, and not the employer-wrongdoer, are
vested with the authority under Title VII and the Constitution
to impose racial quotas which practice a deprivation upon in
nocent employees.
The Plaintiffs do not dispute that voluntary compliance is
the central goal of Title VII. This litigation arises from the
City’s attempt to twist the term “voluntary compliance” into
an inflexible and unreasonable racial quota that deprives in
nocent employees of reasonable employment expectations. An
employer, without court order, consent judgment or adminis
trative sanction, may take numerous voluntary efforts to elimi
nate unfair employment practices. An employer may alter the
recruitment pattern so as to attract more minorities; may elim
inate certain employment practices, such as height, weight,
arrests, and credit rating standards suspected to have an ad
verse impact or may eliminate discriminatory employment
79
tests.102 This type of “voluntary compliance” is appropriate
without court order, for the simple reason that it works no de
privation upon any innocent employees. There is no “balanc
ing of interests or equities” that must occur when the employer
is simply eliminating discriminatory practices. But when an
employer attempts to voluntarily implement a racial quota,
depriving innocent employees of promotional opportunities,
the employer has invaded the exclusive province of the
courts.103
In this case, there was no legitimate finding of prior racial
discrimination by any judicial, legislative, or administrative
body prior to the institution of the racial quota. In Regents
of the University of California v. Bakke, 98 S.Ct. 2733, 2755
(1978), Justice Powell stated:
“We have never approved a classification that aids per
sons perceived as members of relatively victimized groups
at the expense of other innocent individuals in the absence
of judicial, legislative or administrative findings of con
stitutional or statutory violations.” ( Emphasis Added).
In a case remarkably similar to this action, Reeves v. Eaves,
411 F.Supp. 531 (N.D. Ga. 1976), the court dealt with claims
of discrimination by white and black officers in the Atlanta
Police Department. In 1974, following suit by minority officers,
102 T he B r ie f fo r th e U n ite d States, a t pp. 69-70, e rro ne ous ly con
strues the D is tr ic t C o u rt ’s o p in io n as p re c lu d in g th e v o lu n ta ry re c
tification o f an in d iv id u a lize d act o f d is c r im in a tio n . In T ea m sters ,
supra, Justice S te w a rt no ted th a t, w i th re g a rd to the effects o f a r e
vised s e n io rity system on w h ite em ployees, the d isc rim ina te e w o u ld
secure a p o s itio n because o f th e b id d in g p o w e r in h e re n t in h is r ig h t
fu l place o f s e n io r ity and n o t because o f a pre fe rence based on race.
431 U.S. a t 324 n. 61. In the in s ta n t case, how ever, i t is u n d isp u ted
that the D e fendan ts n e ve r id e n tif ie d any o f th e officers w h o rece ived
pre fe ren tia l p ro m otion s as p r io r v ic tim s o f d is c rim in a tio n . S ee , S.F.
at p. 28.
103 P la in t if fs m ust also ta ke issue w ith the C ity ’s rep rese n ta tion s at
£>• 65, n. 236, th a t the F i f th C irc u it in W eb e r v. K a iser A lu m in u m
« C hem ical C orpora tion , 563 F.2d 216, 224 (5 th C ir. 1977), ind ica ted,
Py d ic tum o r o therw ise , th a t an e m p lo ye r m a y v o lu n ta r ily rem e dy
Past d is c r im in a tio n w ith n u m e rica l goals o r quotas. T he F if th
y ircu it c le a r ly in d ica te d th a t i t was n o t necessary to ru le on th a t
80
Atlanta changed its mayor and police chief from white to black.
As in Detroit in that same year, the hiring policies of the de
partment changed dramatically. The City eliminated its objec
tive promotional examinations and instituted a program of
racial preferences for minorities. White officers and can
didates then intervened.
Two years later, the District Court granted a Preliminary
Injunction that mandated a return to racially neutral hiring
and promotional policies, based on qualifications, rather than
race. 411 F.Supp. at 536. The Court recognized that, in 1973,
an affirmative action plan had been demanded of the City by
the Department of Justice but noted that:
. . But such affirmative action as suggested by the
Justice Department did not and should not include uni
lateral discrimination by the Department itself in favor
of less qualified applicants on the basis of race . . . if any
such preferential or discriminatory action is necessary to
overcome the effects of any prior discrimination, it must
come by court decree — not by a subjective individualized
selection process where there is no opportunity objec
tively to ascertain the extent of the discrimination or its
necessity within the requirements of the Constitution of
the United States.” 411 F.Supp. at 535. (Emphasis
added)
In Chmill v. City of Pittsburgh, 375 A.2d 841 (Pa. 1977),
eight white applicants brought suit to restrain a voluntary
minority quota of fifty percent (50%) for new fire fighters.
Pennsylvania’s highest court relied on Reeves v. Eaves, supra,
and stated:
“We must conclude that reverse discrimination designed
to grant a preference to a minority employee is as objec
tionable and unconstitutional when the preference is vol
untarily initiated by the employer as it would be if
compelled by a court. . . . [I]f such affirmative action
were necessary it would appear to follow that such action
would need be by court direction rather than by employer
whim. Preferential treatment under the guise of affirma-
81
five action is the imposition of one form of racial discrim
ination in place of another.” 375 A.2d at 848.104 (Em
phasis added)
In urging reversal, Defendants rely on cases that have ap
proved consent decrees including racial quotas. (Brief, p. 91).
The obvious distinction between a consent decree and the
City’s voluntary, non-judicial quota is that a consent decree is
judicially reviewed before it is approved. Indeed, in two re
cent cases, district courts have refused to approve racial quotas,
contained in consent judgments, which damaged incumbent
white employees. See, United States v. City of Alexandria,
16 FEP Cases 930, 932 (E.D. La. 1977) and Carson v. Ameri
can Brands, Inc., 446 F. Supp. 780 (E.D. Va. 1977).105
Nor can the school desegregation or voting rights cases relied
on by the Justice Department (pp. 68-70) justify a voluntary
quota. Those cases do not involve the creation of an oppor
tunity for one group at the expense of another.106
104 T he ra tio n a le o f R ee ve s , supra , and C h m ill, supra , w as ap
p a re n tly accepted b y the M ic h ig a n Le g is la tu re . T he M ic h ig a n C iv i l
R ights A c t o f 1977, M .C .L .A . 37.2201, e t seq; M .S.A . 3.548 (201), e t seq ,
provides th a t an a ffirm a tiv e action p ro g ra m m ay be used “ . . .
i f the p la n is file d w i th th e C om m ission u n d e r ru le s o f the C om m is
sion and the C om m ission approves th e p la n .” M .C .L .A . 37.2210;
M.S.A. 3.548 (210). Thus, in M ich ig a n , an e m p lo ye r c le a r ly m ust
obtain p r io r a p p ro va l o f the M ich ig a n C iv i l R igh ts C om m ission be fore
in s titu tin g any a ffirm a tiv e action p la n regard less o f w h e th e r such
plan conta ins a quota. D e fe nd an t Cohn, w h o was a fo rm e r C h a irm a n
of the M ic h ig a n C iv i l R ig h ts C om m ission, a d m itte d th a t D e fendan ts ’
racia l p re fe rence p ro g ra m had n e ve r been file d w i th o r approved
by the C om m ission. (2469a.l-2475a.l).
105 Indeed, even w ith co u rt-o rd e re d rem edies, in th e area o f p ro
motions, th e cou rts o f appeals, in c lu d in g th is C o urt, have con s is ten tly
reversed ju d ic ia lly im p o sed quo tas w h e n fo u n d to be in a p p ro p ria te .
See, M itch e ll v. M id -C o n tin e n t S p r in g C o m p a n y o f K e n tu c k y , 17 FE P
Cases 1594 (6 th C ir. 1978); P a tte rso n v. A m e r ic a n Tobacco C om pany ,
535 F.2d 257 (4 th C ir. 1976), cert. den. 429 U.S. 920 (1976); W h ite
v. Carolina P aper B oard C orporation , 564 F.2d 1073 (4 th C ir. 1977);
B ridgeport G uard ians, Inc. v. B rid g ep o rt C iv il S e rv ic e C om m ission ,
supra; K irk la n d v. N e w Y o r k S ta te D ep a r tm e n t o f C orrectiona l S e r
vices, su p ra ; P en n sy lv a n ia v. O’N e ill, supra.
’ 06 T he fa c t th a t desegregation cases do not, ge n e ra lly , w o rk a
depriva tion upon in d iv id u a ls has been recogn ized b y severa l courts.
See, C o m m o n w ea lth o f P e n n sy lv a n ia v. G lickm a n , 370 F.Supp. 724
(W.D. Pa. 1974); H a rp er v. M a yo r and C ity C ouncil o f B a ltim o re ,
359 F.Supp. 1187, 1214 (D . M d. 1973), a ff’d sub. nom . H arper v. K loster ,
486 F.2d 1134 (4 th C ir. 1973).
82
Defendants also ignore the fact that in Bakke, supra, five
Justices of the Court specifically held that a voluntary preferen
tial quota violated the prohibition of racial discrimination
contained in Title VI.
Finally, Defendants (Brief, pp. 91-93) and the Department
of Justice (p. 66) rely on various administrative guidelines,
particularly the EEOC Proposed Guidelines, 42 Fed. Reg.
64826 (December 28, 1977). These Guidelines, to Plaintiffs’
knowledge, have not been formally adopted.
Although the regulations enacted by the EEOC are entitled
to great deference, Griggs v. Duke Power Company, 401 U.S.
424, 434 (1971), the courts need not defer to an administrative
construction of a statute where there are compelling indications
that the regulation is improper. See, Espinoza v. Fanah Man
ufacturing Company, Inc., 414 U.S. 86, 94-95 (1973). In this
case, the regulation as drafted would allow racial preferences
without court approval or judicial sanction and would fore
close any liability on the part of the employer to innocent third
parties. This is clearly contrary to the legislative intent and
judicial construction of Title VII.’07
In light of the following standards set forth by the Court
in General Electric Co. v. Gilbert, 429 U.S. 125 (1976), the
proposed regulation is not entitled to deference. In General
Electric the Court relied on a rule of law provided in Skidmore
107 T he le g is la tiv e h is to ry o f T it le V I I c le a r ly in d ica te s th a t i t was
in te n d e d to p ro h ib it d is c r im in a tio n aga inst a l l persons o f any race,
w h ite o r b lack . S ee , 110 C ong.R ec. 2578, R e m arks o f Rep. C e lle r)
(1964); Id ., 7218 (m e m o ra n d u m o f Sen. C la rk ) ; Id ., 7213 (m em o ran
d u m o f Sens. C la rk and C a se ); Id ., 8912 (R e m arks o f Sen. W il l ia m s ) ;
110 C ong.R ec. 8921 (R e m arks o f Sen. W illia m s ) (1964); 110 Cong.Rec.
988 (1964) (R e m arks o f Sen. A l lo t t ) . A n in te rp re ta tiv e m em oran
d u m b y Senators C la rk and Case, s ta ted: “ H e [th e e m p loye r] w ou ld
n o t be ob lig e d — o r indeed, p e rm itte d — to f ire w h ite s in order
to h ire Negroes o r to p re fe r Negroes fo r fu tu re vacancies, or, once
Negroes are h ire d to g ive th e m specia l r ig h ts a t th e expense of
w h ite w o rk e rs h ire d e a r lie r .” 110 C ong.R ec. 7213 (1964). Thus, the
S uprem e C o u rt has con s is te n tly construed T it le V I I as p ro h ib it in g
d is c r im in a to ry pre fe rences fo r an y ra c ia l group, e ith e r m in o r ity or
m a jo r ity . S ee , M cD onald v. S a n ta F e T ra il T ra n sp o rta tio n C om pany,
supra; G riggs v. D u ke P o w er Co., supra , at 431 (1971); T ra n s W orld
A ir lin e s v. H ardison , 432 U.S. 63 (1977). Thus, a re g u la tio n w h ic h a l
lo w e d b la ta n t d is c r im in a tio n against w h ite s c le a r ly v io la tes the leg
is la t iv e in te n t and purpose o f T it le V I I .
83
v. Swift Co,, 323 U.S. 134, 140 (1940) in choosing to disregard
an EEOC guideline.
“The EEOC guideline in question does not fare well under
these standards. It is not a contemporaneous interpre
tation of Title VII, since it was first promulgated eight
years after the enactment of that Title. More importantly,
the 1972 guideline flatly contradicts the position which
the agency had enunciated at an earlier date, closer to
the enactment of the governing statute.”
General Electric Co., supra, 429 U.S. at 142.
Application of the Gilbert standards clearly indicates that
the proposed regulation is not entitled to deference. Adopted
13 years later, it was not a contemporaneous interpretation of
Title VII. More importantly, the proposed regulation flatly
contradicts prior interpretations by the EEOC. In EEOC Dec.
No. 75-268, 10 FEP Cases 1502 (May 30, 1975), cited with
approval by the Court in McDonald v. Santa Fe Trail Trans
portation Co., supra, at 280, n.7, the Commission found that
the employer violated § 703(j) by refusing to hire or interview
a white applicant, under its aflirmative action program.108
Only a court can equitably balance the interests of both the
allegedly aggrieved individual and innocent employees. This
principle was recently endorsed by a strong majority of the
Court in Teamsters, supra. The Court, in remanding the form
ulation of a remedy to the District Court, stated:
“Moreover, after the victims have been identified and
their rightful place determined, the District Court will
again be faced with the delicate task of adjusting the
remedial interests of discriminatees and the legitimate
expectations of other employees innocent of any wrong
doing.
# # #
Especially when immediate implementation of an equit
'08 See also, EEOC Dec. No. 74-106, 10 FE P Cases 269 ( A p r i l 2,
1974).
84
able remedy threatens to impinge upon the expectations
of innocent parties, the courts must look to the practical
realities and necessities inescapably involved in recon
ciling competing interests/ in order to determine the
‘special blend of what is necessary, what is fair, and what
is workable.’ ” 431 U.S. at 372, 375.
Typically an employer is more interested in balancing the
budget than balancing the equities. When confronted by a
claim of past discrimination by minority employees, whether
that allegation is true or false, the employer can insulate him
self from further liability by merely foisting the burden of his
own alleged wrongdoing on the white employees. He would
not be liable to minority employees and, under the rationale
of the Defendants and the Justice Department, could not be
sued by white employees.
In light of the above considerations described in Teamsters,
there can be no question that the District Court properly held
(446 F.Supp. at 1010) that the balancing of the equities be
tween two potentially damaged classes must be left to the
courts and not to the employer. For that reason the voluntary
racial quota adopted by the City was properly set aside by
the District Court.
B. The City’s Racial Quota Is Both
Unreasonable and Arbitrary.
The City’s racial quota was adopted without time limit or
numerical goal. The record shows no attempt by the City to
explore alternative methods of increasing the number of black
sergeants. Nor does the record indicate that the quota was
adopted as an interim measure, or with any concern for its
impact on white candidates.
The Court-ordered quotas cited to this Court in support
of the City’s voluntary quota have been imposed only with
the limitations and safeguards required to protect innocent
employees affected by the quotas.
As an example, in EEOC v. Detroit Edison, supra, where
85
there was substantive evidence of promotional discrimination,
this Court remanded for the imposition of time and maximum
percentage limits on the quota.109
In EEOC v. AT&T, 556 F.2d 167 (3rd Cir. 1977), cert,
denied, 98 S.Ct. 3145 (1978), the quota imposed by consent
decree provided for annual intermediate targets, and based the
quota percentage on the minority percentage in the relevant
labor market, rather than the minority percentage in the gen
eral population. Other cases cited by the Defendants placed
specific limits on any quotas imposed. See, Sims v. Local 65
Sheetmetal Workers, 489 F.2d 1023 ( 6th Cir. 1973); United
States v. Masonry Contractors Assn., 497 F.2d 871 (6th Cir.
1974). See also, Crockett v. Green, 534 F.2d 715 (7th Cir.
1976). 110
The absence of any limitation upon the City’s promotional
quota is further proof of the potential for abuse when em
ployers attempt to mold remedies without guidance from
neutral courts or agencies. Only the safeguard of judicial re
view can protect innocent employees from the type of unrea
sonable and arbitrary racial quota adopted by the City in this
case.
For these reasons, the District Court correctly overturned the
voluntary racial quota imposed upon the Plaintiffs.
109 i t is also n o te w o rth y th a t th e Suprem e C o u rt vacated th e D e
tro it E dison o p in io n in l ig h t o f Team sters. D e fe n d a n t-A p p e lla n ts ,
therefore, canno t re ly on D etro it E d ison fo r the im p o s itio n o f the
quota.
HO S ee also, C arter v. G allagher, 452 F.2d 315 (8 th C ir. 1971),
cert, den ied , 406 U.S. 950 (1972); N A A C P v. A lle n , 493 F.2d 614 (5 th
Cir. 1974); E rie H u m a n R e la tio n s C o m m itte e v. T u llio , 493 F.2d 371
(3rd C ir. 1974); B rid g e p o r t G uard ians, Inc., su p ra ; U n ited S ta te s v.
N. L . In d u s tr ie s , 479 F.2d 354 (8 th C ir. 1973); U n ited S ta te s v. C ity
of P h ilade lph ia , 17 F E P Cases 168 (3 rd C ir. 1978); H a yn ie v. C hupka ,
17 FEP Cases 267 (S.D. O hio 1976); M organ v. K errig a n , 509 F.2d
599 (1st C ir. 1975); O b u rn v. Schapp , 521 F.2d 142 (3 rd C ir. 1975).
8 6
V. THE RECORD ESTABLISHES A VIOLATION
OF TITLE VI OF THE 1964 ACT.
A. The Violation of Plaintiffs Rights Under Title VI.
The District Court correctly concluded that the 50/50 racial
promotional quota violated Title VI of the Civil Rights Act of
1964, 42 U.S.C. § 2000d et seq.111
For the years in question, the Department received sub
stantial federal assistance.112 The City’s conduct must there
fore conform to the mandate of Title VI.
“No person in the United States shall, on the ground of
race, color or national origin be denied the benefits of or
be subjected to discrimination under any program or activ
ity receiving federal financial assistance.”
In this case, it is undisputed that the individual plaintiffs
were denied promotions to the rank of sergeant solely because
of their race.
111 T he B r ie f o f A m icu s C uriae , N a tio n a l C onference o f B lack
L a w ye rs , a t p. 17, argues an issue th a t was n e ve r ra ised by the
p a rtie s to th e l i t ig a t io n o r ra ised b y the D e fe n d a n t-A p p e lla n ts on
th is appeal: th a t T it le Y I does n o t p ro v id e a p r iv a te cause o f action.
S ince th is issue was n o t ra ised in th e C o u rt b e lo w and was n o t arised
b y a p a r ty to th is appeal, i t is n o t p ro p e r ly be fo re th is C o urt. Supra,
pp. 60-61. T h is a rg u m e n t is spurious, a t best, since num ero us Courts
have h e ld th a t T it le V I p ro v id e s a p r iv a te cause o f action. See
B a k k e , su p ra , a t p. 2814 n.25 (O p in io n o f Stevens, J . ) ; B ossier Parish
Sch o o l B oard v. L e m m o n , 370 F.2d 847, 851-852 (5 th C ir. 1967),
cert, d en ied , 388 U.S. 911 (1967) and C ham bers v. O m aha Public
S ch o o l D istr ic t, 536 F.2d 222, 225 n.2 (8 th C ir. 1976).
" 2 A t pp. 84-85, n . l l l , o f the C ity ’s B r ie f, D e fendan ts argued for
th e f irs t t im e th a t T it le V I re l ie f is u n a va ila b le to P la in t if fs under
th e e xe m p tio n con ta ined in 42 U.S.C. § 2000d-3, on grounds th a t it
was n o t show n th a t a “ p r im a ry o b je c tiv e ” o f the fe d e ra l funds was
em p loym e n t. F irs t, th e D is tr ic t C o u rt g ra n ted P la in t if f ’s M o tio n to
add a c la im u n d e r T it le V I on O ctobe r 21, 1977. (2110a.l-2110a.3).
T h e re c o rd reve a ls th a t no a ffirm a tiv e defense u n d e r 42 U.S.C. § 2000d-
3 w as eve r ra ised b y D efendants. Thus, since th is issue was neither
ra ised n o r p le d b y D e fendan ts in the lo w e r co u rt, i t shou ld not be
considered b y th is C o u rt on appeal. S u p ra , pp. 60-61. M oreover, the
re c o rd ev idence revea ls th a t: (1 ) the D e p a rtm e n t, since a t least
1973, has rece ived su b s ta n tia l fu n d s f ro m L E A A , the Comprehensive
E m p lo y m e n t T ra in in g A c t and th e E q u a l E m p lo ym e n t A c t; (982b-
1113b; 2319a.l-2319a.2); and th a t (2 ) these fu n d s w e re used fo r the
salaries o f o fficers a t a ll levels, in c lu d in g sergeant. ( 2319a . l - 2319a.2).
87
The application of Title VI to a racial quota denying whites
equal access was recently considered by the Supreme Court
in Bakke, supra. In that case, the University of California
Medical School had a regular admissions program and a special
admissions program. Under the regular admissions program,
candidates were given a composite score which included col
lege grade point, grade point in science courses, scores on the
MCAT test, letters of recommendation, activities and biograph
ical data. 98 S.Ct. at 2740. A grade point cutoff score of 2.5
percent was also applied. Id. The special admissions program
considered special candidates who could not meet the 2.5
cutoff score. The preferential admissions program admitted
8 minority applicants out of the 50 student class in 1973 and
1974. 98 S.Ct. at 2741. The minority applicants were admitted
with grade point averages, MCAT scores and bench mark
scores significantly lower than Bakke’s. 98 S.Ct. at 2741-2742.
Four justices, in an opinion authored by Justice Stevens and
signed by Justices Rehnquist, Stewart and Chief Justice Burger,
specifically held that the preferential admissions policy de
prived Bakke of his rights under Title VI. After reviewing the
legislative history of Title VI Justice Stevens concluded that
Congress’ “answer to the problem of federal funding of seg
regated facilities stands as a broad prohibition against the
exclusion of any individual from a federally funded program
‘on the ground of race’.” 98 S.Ct. at 2811.
Justice Stevens then indicated that Title VI, as well as Title
VII, emphasizes individual rights rather than class-based rights:
“Both Title VI and Title VII express Congress’ belief that,
in the long struggle to eliminate social prejudice and the
effects of prejudice, the principle of individual equality,
without regard to race or religion, was one on which
there could be a meeting of the minds’ among all races
and a common national purpose. . . . This same principle of
individual fairness is embodied in Title VI.”
98 S.Ct. at 2813 n.19. (Citations omitted).
Justice Stevens concluded that the preferential admissions
8 8
policy violated the racial prohibition contained in 42 U.S.C.
§ 2000d:
“In short, nothing in the legislative history justifies the
conclusion that the broad language of § 601 should not
be given its natural meaning,
# fc #
In unmistakable terms the Act prohibits the exclusion
of individuals from federally funded programs because of
their race. As succinctly phrased during the Senate de
bate, under Title VI it is not permissible to say “yes” to
one person, but to say “no” to another person, only be
cause of the color of his skin/ ” 98 S.Ct. at 2814.
In a separate opinion, Justice Powell stated that “Title VI
must be held to proscribe only those racial classifications that
would violate the Equal Protection Clause or the Fifth Amend
ment.” Id. at 2747. Justice Powell then proceeded to hold
that the preferential admissions program, as presently consti
tuted, violated the equal protection clause and, thereby, Title
VI. Id. at 2764.
Thus, five members of the Court specifically held that Title
VI prohibited the reservation of a specific number of places
for black students.
The City’s preferential racial quota, which reserved 50% of
all promotions to black officers solely because of their race,
is far more invidious than the quota struck down in Bakke.
First, Bakke dealt with an applicant seeking entry to a medical
school. In this case, the City’s racial quota has deprived 112
readily identified officers of their promotions to the rank of
sergeant.113 It is undisputed that these were better qualified
officers passed over by lower rated officers solely because of
race. Each of these officers served at least two years as a
patrolman simply to sit for the exam. The years of service, in
513 O fficers G era ld B . B arba, W ill ia m C. G ra topp , M ich a e l C. Saad,
C a rte r A . H icks, R o b e rt C. M o rr is , W ayne M . P arlow e , W ill ia m F.
B irdseye , R o be rt S. Rachas, B ruce B. B a lm as and Le o n a rd Stano have
been passed ove r on tw o occasions. K e n n e th F, S c h ill has been
passed ove r on 74-108, 75-352 and 76-441.
89
reliance upon the expectation of an equal promotional oppor
tunity, establishes a deprivation of rights far greater than that
present in Bakke. Yet as in Bakke, the racial quota was not
designed, intended or enacted to redress individual acts of
discrimination against any specific minority candidates. Bakke
is clear precedent for the District Court’s ruling that the City’s
racial quota violates Title VI.
See also, Flanagan v. President & Directors of Georgetown
College, 417 F.Supp. 377 (D.D.C. 1976); and Anderson v.
San Francisco Unified School District, 357 F.Supp. 248 (N.D.
Cal. 1972).
The Title VI prohibition is further reinforced by other limi
tations on the use of federal funds provided by the LEAA.
That agency is authorized to distribute funds under the Omni
bus Crime Control and Safe Streets Act, P.L. 90-341, Title I,
§518 (June 19, 1968), 42 U.S.C. §3766, 82 Stat 208; as
amended by P.L. 94-503, 90 Stat 2407 (Oct. 15, 1976). 42
U.S.C. §3766 (b) and (c) provide:
(b) “Notwithstanding any other provision of law
nothing contained in this title shall be construed to au
thorize the Administration (1) to require, or condition
the availability or amount of a grant upon, the adoption
by an applicant or grantee under this Title of a percentage
racial, quota system or other program to achieve racial
balance or to eliminate racial imbalance in any law en
forcement agency, or (2) to deny or discontinue a grant
because of the refusal of an applicant or grantee under
this Title to adopt such a ratio, system, or other program.
(c) (1) No person in any State shall on the ground of
race, color, natural origin or sex be excluded from par
ticipation in, be denied the benefits of, or be subjected to
discrimination under any program or activity funded in
whole or in part with funds made available under this
Title.” (Emphasis added)
42 U.S.C. § 3766(b) and ( c ) (1 ) ." 4
11lJT he p ro h ib it io n s in 42 U.S.C. § 3766 (b ) and ( c ) ( 1 ) have been
incorporated in the fe d e ra l reg u la tion s , adopted on F e b ru a ry 16,
90
B. The Record Shows No Violation of
Minority Rights Under Title VI.
The City (at pp. 54-55) argues for the first time on appeal,
that its past conduct violated Title VI. In the District Court,
Defendants consistently stated that their pre-1974 actions
violated the Title VII and 14th Amendment rights of minorities.
There was no claim of prior discrimination under Title VI.
As a result, the District Court never considered the questions
of: (1) whether an adverse impact or disparate treatment
standard applied to Title VI; or (2) whether any conduct after
the effective date of Title VI violated the Act. Since these
issues were not presented to the lower court, they cannot be
raised on appeal.
Regardless, the Defendants have failed to place in the record
the key element required to show a Title VI violation — the
use of federal funds for employment by the Department prior
to 1974. Chief Hart merely testified that the Department is
presently using funds from federal agencies, for the employ
ment of officers, including sergeants. The record is devoid
of evidence as to whether: (1) the Department received any
federal funds from the period from 1964 to 1970; or (2) that
any funds received were used for employment.1,5
Finally, the record does not establish that Defendants in
tended to violate any Title VI rights of minorities. In Coates
v. Illinois State Board of Education, 559 F.2d 445 ( 7th Cir.
1977), the Court found that racial imbalance alone could not
establish a violation of Title VII:
• . [T]he discrimination must be the actual causative
resultant (sic) of the actions under scrutiny. (Citation
omitted). When, under state imposed standards, federal
and state money is spent on equality of treatment, by * 115
1977, re g a rd in g th e d is tr ib u t io n o f L E A A Funds. See 42 F.R. 9492;
28 C.F.R. § 42.203.
115 In the e ve n t th a t the C o u rt w e re to consider w h e th e r the De
fe n d a n ts v io la te d m in o r it ie s ’ r ig h ts u n d e r T it le V I , P la in t if fs w ould
in co rp o ra te th e ir a rgum ents, in fa v o r o f a re q u ire m e n t o f specific
in te n t.
91
providing students with the same facilities, textbooks,
teachers and curriculum, the ancillary fact of racial im
balance does not state a claim under Section 601. (Cita
tion omitted),” 559 F.2d at 449.
Under the Coates standards, it is clear that Defendants have
failed to show any pre-1974 violation of the Title VI rights of
any minority group. The record clearly establishes that: (1)
blacks were subjected to the same recruiting qualifications and
hiring standards as whites; and (2) all persons took the same
promotional examination and were subjected to the same
racially neutral promotional model. There was no showing
that any racial imbalance was due to discriminatory hiring.
The Defendants, in sole possession of the evidence, failed to
show statistically or otherwise any discriminatory hiring in
the years 1964 to 1974.
For these reasons, the District Court properly found that the
City’s quota violated Plaintiffs’ Title VI rights. The record
fails to support the City’s new argument that it previously
violated the Title VI rights of minority candidates.
VI. THE DISTRICT COURT CORRECTLY FOUND
THAT DEFENDANTS’ RACIAL QUOTA VIOLATED
PLAINTIFFS’ RIGHTS UNDER 42 U.S.C. § 1981
A. The Record Shows the Plaintiffs’ § 1981 Rights
Were Violated by the Promotional Quota.
42 U.S.C. § 1981, derived from the Civil Rights Act of 1866,
reads in pertinent part:
“All persons within the jurisdiction of the United States
shall have the same right in every State and Territory to
make and enforce contracts . . . as is enjoyed by white
citizens . . .”
Any doubt to the applicability of 42 U.S.C. § 1981 to racial
discrimination directed against whites was disspelled by the
92
Supreme Court’s decision in McDonald v. Santa Fe Trail
Transportation Co., 427 U.S. 273 (1976), and when the Su
preme Court ruled that a white employee could recover for
racial discrimination by his employer under 42 U.S.C. § 1981:
“[T]he Act was meant, by its broad terms, to proscribe
discrimination in the making or enforcement of contracts
against, or in favor of, any race.” 423 U.S. at 295-96.
The record clearly establishes that: (1) the plaintiff class
consists of members of a protected group; (2) the members
were better qualified to perform the duty of sergeant than the
lower ranked officers that were promoted; and (3) denial of
promotion occurred solely because of the affirmative action
program. Therefore, the district court was not clearly errone
ous when it determined that defendants had violated Plaintiffs’
Section 1981 rights.
McDonald clearly dictates that the provisions of Section
1981 flatly prohibit racial discrimination against any citizen
in the making of contracts. See also, Haber v. Klassen, 540
F.2d 220 ( 6th Cir. 1976).
This Court, in Long v. Ford Motor Company, 496 F,2d 500
(6th Cir. 1974), quickly laid to rest Defendants’ argument
that Section 1981 mandates the implementation of the racial
preference involved in defendants’ “affirmative action.” Spe
cifically this Court stated:
“Section 1981 is by its very terms, however, not an affirm
ative action program. It is an equalizing provision seek
ing to insure that rights do not vary according to race. It
does not require that persons be accorded preferential
treatment because of their race.” 496 F.2d at 505.
See also, Blount v. Xerox Corporation, 405 F.Supp. 849 (N.D.
Cal. 1975).
93
B. The City Has Failed to Show a Violation of § 1981
in its Pre-1972 Hiring and Promotional Practices.
1. § 1981 is a Separate and Distinct Equal
Protection Statute with Standards of
Liability Distinct from Title VII.
The City of Detroit has justified its discriminatory promo
tional quota by a self-serving confession of racial discrimina
tion during the years prior to 1972, when Title VII was first
applied to state and local government. The City claims that
its past discrimination violated § 1981, and attempts to prove
that discrimination through a series of confusing and often mis
leading statistical analyses. There is no proof of any pre-
Title VII intent by the City to discriminate on the basis of race.
The City’s offer of proof of disparate impact without dis
criminatory intent, disregards the clear operational distinction
between liability based upon Title VII and § 1981. The City
seeks to persuade this Court to disregard § 1981’s constitutional
basis, the historical foundations of the Civil Rights Acts of
1866 and 1870, and the substantial precedent requiring dis
criminatory intent to establish a violation of § 1981.
This issue is currently before the Supreme Court in Davis
v. County of Los Angeles, 566 F.2d 1334 ( 9th Cir. 1977),
cert, granted, 98 S.Ct. 3087 (1978). Since the Court may well
mle in Davis before this Court enters a decision in this case,
only a brief argument will be presented on this complex issue.
Section 1981 and Title VII are separate, distinct and inde
pendent statutes which afford different, though related, rights
and remedies. Johnson v. Railway Express Agency, Inc., 421
U.S. 454 (1975). Congress, in enacting Title VII in 1964 and
amending it in 1972, clearly intended Title VII to provide an
additional, independent cause of action, without affect upon
§§ 1981 and 1983:
“In establishing the applicability of Title VII to state and
local employees, the Committee wishes to emphasize that
the individual’s right to file a civil action in his own
94
behalf, pursuant to the Civil Rights Act of 1870 and 1871,
42 U.S.C. §§ 1981 and 1983, is in no way affected
1972 U.S. Code Cong. & Ad News 2137, 2154."*
See also, 1972 Senate Congressional Record, pg. 3372.
The similarities of Title VII and § 1981 do not require that
the same standard of liability be applied to each statute. Sec
tion 1981 is a Reconstruction Era statute originally enacted in
1866 to enforce the 13th Amendment to the Constitution (in
voluntary servitude). The Section was subsequently reen
acted, with minor changes, as part of the Civil Rights Act of
1870, designed to implement the 14th Amendment. There
fore, Sec. 1981 finds its roots in both the 13th and 14th Amend
ments, with emphasis on the 14th Amendment.
The broad equal protection principles applicable to all races
under Sec. 1981 have been recently emphasized by the Su
preme Court. McDonald v. Santa Fe Trail Transportation Co.,
supra; Runyon v. McCrary, 427 U.S. 160 (1976). If the em
ployer deliberately discriminates in making an employment
contract based on race, or specifies different terms and con
ditions thereof based on race, then § 1981, as well as the
United States Constitution, have been violated. See, Runyon
v. McCrary, supra at 175-176.
The Supreme Court has previously held that discriminatory
intent is required under 42 U.S.C. §§ 1982, 1983 and 1985(3).
Section 1981 must be similarly construed. In Tillman v.
Wheaton-Haven Recreation Assn., Inc., 410 U.S. 431 (1973),
the Court stated that Secs. 1981 and 1982 should be construed
together in light of their historical relationship.* 117 In Jones
v. Alfred Mayer Co., supra, the Court stated that the present
language of Sec. 1982 “was meant to prohibit all racially moti
U 6 S ee also, Jones v. A lfred H. M ayer Co., 392 U.S. 409 (1968),
re g a rd in g the re la tio n s h ip be tw een Sec. 1982, a com pan ion to Sec.
1981 in the C iv i l R ig h ts A c t o f 1870, and T it le V I I I o f th e 1968 Act.
117 T he p resen t language o f Sec. 1982 (purchase o r lease o f p ro p
e r ty ) is re m a rk a b ly s im ila r in its b ro ad scope to th a t o f Sec. 1981.
B o th fin d th e ir genesis in Sec. 1 o f th e 1866 C iv il R ig h ts A ct.
95
vated deprivations of the rights enumerated in the statute. . .
(Emphasis in original) Id. at 426.
Two statutes enacted at the same time, sharing the same
congressional goals, placed within the same Civil Rights Act,
and utilizing essentially the same language, particularly in
their operative phrases, must be construed similarly.118
2. Congress Intended by Section 1981 to Prohibit
Unconstitutional, Purposeful Discrimination,
Not to Create Liability Based on Disproportionate
Impact.
The discrimination addressed by Congress at the time of
enactment of Sec. 1981 was intentional, not consequential.
The adverse impact theory did not evolve until the EEOC
Guidelines of 1970 and the interpretive Title VII Griggs deci
sion of 1971. In fact, prior to the issuance of the 1970 EEOC
Guidelines, that agency had not adopted adverse impact as a
method of establishing prohibited racial discrimination.
The Supreme Court in Washington v. Davis, 426 U.S. 229,
238, 239 (1976) ruled the Griggs standard inapplicable to
employment discrimination cases under §§1981 and 1983 as
well as constitutional discrimination claims in other contexts.119
In discrimination actions alleging a violation of § 1981 prose
cuted against a wide variety of public and private activity, the
courts have uniformly applied the constitutional deliberate
intent standard, a fact emphasized by the Supreme Court in
Washington420 The majority in Washington specifically re-
1,8 In G riffin v. B rec ke n r id g e , 403 U.S. 88 (1971), the C o u rt he ld
tha t Sec. 1985(3) was prem ised on the 13th A m e n d m e n t and th a t
the s ta tu te re q u ire d : “ A s an e lem ent o f the cause o f action, . . .
in v id io u sly d isc r im in a to ry m o tiv a tio n .”
>19 See also, Jo n es v. A lfr e d H. M a yer Co., supra, (c o n s tru in g Sec.
1982 (d is c r im in a tio n in the sale and purchase o f re a l p ro p e rty ) as
being d ire c te d against ra c ia lly m o tiv a te d pra c tices).
128 R u n y o n v. M cC rary , supra , (d e n ia l o f adm ission to p u b lic ly ad
vertised p r iv a te schools so le ly because o f ra c e ) ; H ills v. G a u trea u x ,
425 U.S. 284 (1976) (d is c r im in a to ry hous ing practices to avo id p la c in g
blacks in w h ite n e ig h b o rh o o d s ); J e n n in g s v. P aterson , 488 F.2d 436
(5th C ir. 1974) (co n s tru c tio n o f road b a rricad e to d e lib e ra te ly b a r
jected authorities relying on anything less than a specific dis
criminatory intent:
“[W]ith all due respect, to the extent that those cases
rested on or expressed the view that proof of discrimi
natory racial purpose is unnecessary in making out an
equal protection violation, we are in disagreement.”
Washington v. Davis, supra at 245.* 121
In Arnold v. Ballard, 390 F.Supp. 723 (N.D. Ohio 1975),
the district court, upon remand subsequent to Washington v.
Davis, held that discriminatory intent is required under § 1981.
448 F.Supp. 1025 (N.D. Ohio 1978).
In fact, the majority of the Circuit and District Courts have
read the Washington v. Davis intent rule as encompassing both
§'§ 1981 and 1983 claims, since both statutes are governed by
constitutional principles.122
96
access to b la c k s ) ; O lzm a n v. L a k e H ills S w im C lub , Inc., 495 F.2d
1333 (2d C ir. 1974) ( ra c ia lly m o tiv a te d sw im c lu b e xc lu so ry p o lic y ) ;
B e ll v. S o u th w e ll , 376 F.2d 659 (5 th C ir. 1967) (segregated v o tin g lists
and b o o th s ). In each case w h e re l ia b i l i t y w as established i t was
p re d ica ted upon evidence o f de lib e ra te in te n t, n o t a n e u tra l p rac
tic e w i th a ra c ia lly d isp ro p o rtio n a te im pact.
121 In fo o tn o te 12, W a sh in g to n v. D avis , supra a t 244, the Court
lis te d th e num erous cases w ith w h ic h th e y disagreed in c lu d in g a
su b s ta n tia l n u m b e r d e a lin g w i th p u b lic em p loym ent.
122 C hicano P o lice O fficers Assn. v. S tove r, 552 F.2d 918, 920 (10th
C ir. 1977); U n ite d S tates v. C ity o f Chicago, 549 F.2d 415 (7 th Cir.
1977); C ity o f M ilw a u k e e v. S a xb e , 546 F.2d 693, 705 (7 th C ir. 1976);
Jo h n so n v. A le x a n d e r , 572 F.2d 1219 (8 th C ir. 1978); H a rkless v.
S w e e n y In d e p e n d e n t Sch o o l D istr ic t, 554 F.2d 1353 (5 th C ir. 1977);
L e w is v. B e th le h e m S te e l Corp., 440 F.Supp. 949, 963 (D . M d. 1977);
U n ited S tcites v. S ta te o f So. C arolina , 15 FE P Cases 1196 (D.S.C.
1977), (3 - ju d g e pane l th a t in c lu d e d tw o c irc u it ju d g e s ); C roker v.
B o ein g Co., 437 F.Supp. 1138 (E .D . Pa. 1977); D ickerso n v. U .S. S teel
C orp., 439 F.Supp. 55 (E .D. Pa. 1977); V eiza g a v. N atio n a l B oard of
R esp ira to ry T h era p y , 13 E P D 11, 525, 8875, 8881 (N.D.I11., 1977).
S e e also, D issent o f Judge W a lla ce in D avis v. C o u n ty o f L o s A ngeles,
supra , at 1348-49.
97
3. Contrary to Teamsters, The City' Seeks to
Disregard the Distinction Between Pre-
and Post-Title VII Hiring Practices.
The City’s reliance on pre-1972 proof of disparate impact,
if allowed, would require this Court to apply Title VII retro
actively to public agencies. Such a ruling would destroy any
distinction between pre- and post-Act hiring practices.
The City’s argument and the circuit court opinion in the
case of Davis v. County of Los Angeles, supra, ignore the
distinction recognized by the Court in Hazelwood School Dis
trict v. United States, 433 U.S. 299 (1977), and Teamsters,
supra, between liability predicated upon pre-and post-Title VII
hiring practices.
The Court noted in Hazelwood, supra, at 309 n.15, that a
public employer, even before the extension of Title VII in
1972, was subject to the command of the 14th Amendment
not to engage in purposeful discrimination. Therefore, con
stitutional standards governed liability for pre-Title VII hiring
practices.
In Teamsters, supra, the Court again noted that the em
ployer was governed by a different standard of proof for
activity before Title VII became applicable, and must be
afforded the opportunity to show:
“. . . that the claimed discriminatory pattern is a product
of pre-Act hiring rather than unlawful post-Act discrimi
nation ___ ” 431 U.S. at 360.
The Court’s distinction of pre- and post-Title VII hiring prac
tices is meaningful only if the standards of liability for pre-
and post-Title VII practices are different.123
For these reasons, the District Court was not clearly er
123 T he in te rp re ta tio n o ffe red b y th e C ity w o u ld also a llo w re co ve ry
under § 1981 fo r d ispara te im p a c t w ith o u t re g a rd to th e a d m in is tra tiv e
and s ta tu to ry p rocedures p ro v id e d b y Congress in T it le V I I . T he
resu lt w o u ld be th e choice b y m a n y p la in tiffs to fo resake the cum
bersome a d m in is tra tiv e steps re q u ire d b y T it le V I I .
98
roneous in ruling (1) that the City’s promotional quota vio
lated Plaintiffs’ rights under § 1981; and (2) that the City failed
to prove pre-Title VII discrimination against black officers in
violation of § 1981.
VII. THE CITY’S RACIAL PREFERENCE QUOTA VIO
LATED TITLE VII OF THE CIVIL RIGHTS ACT
OF 1964.
It is virtually uncontested that the plaintiff class members
were not promoted because of the overt racial classification
contained in the City’s promotional quota. From these facts,
the District Court correctly concluded that the Title VII rights
of the individual white police officers had been violated by the
City.
A. Title VII Prohibits
Discrimination Rased On Race.
Section 703(a) of The Equal Employment Opportunity Act
of 1972 (the 1972 Act) bars discrimination against an indi
vidual in employment “because of such individual’s race. . . .”
42 U.S.C. § 2000e-2(a) (1).
The prohibition of § 703(a) applies “[Rjegardless of whether
the discrimination is directed against majorities or minorities.”
See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63
(1977).124
The statute also prohibits the preference of any racial group.
In McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973), the Court specifically held that Title VII did not re
quire, or allow, the grant of a preference to minority employees.
In so doing, the Court quoted with approval from its prior
decision in Griggs v. Duke Power Coal Co., supra, as follows:
“In short, the Act does not command that any person be
hired simply because he was formerly the subject of
124 S ee also, M cDonald v. Santa F e Trail Transportation Co., supra,
a t 280; Griggs v. D uke P ow er Co., 401 U.S. 424, 431 (1971).
99
discrimination, or because he is a member of a minority
group. Discriminatory preference for any group, minor
ity or majority, is precisely and only what Congress has
proscribed.” 411 U.S. at 800.125
Section 703(j) of the Act specifically prohibits an employer
from giving a preference to a member of any race in the name
of Affirmative Action.126 A review of the legislative history
clearly establishes that Congress intended §703(j) to mean
exactly what it says. The original legislation introduced in the
House did not contain the § 703 (j ) prohibition against prefer
ential treatment. See, H.R. Rep. No. 914, 88th Cong., 1st Sess.
(1963).
In the Senate, the opponents of Title VII expressed the fear
that the said legislation would impose upon employers a fed
erally-administered racial quota system. Even before § 703 (j )
was added to the bill, certain floor leaders acknowledged the
undesirability of racial quotas. Its proponents repeatedly
stated that Title VII prohibited the favoring of minorities:
“There is no requirement in Title VII that an employer
may maintain a racial balance in his work force . . . .
[A]ny deliberate attempt to maintain a racial balance,
whatever such balance may be, would involve a violation
of Title V II. . . .”127 Interpretative Memorandum of Title
'25 T he S uprem e C o urt, as w e ll as th is C o urt, have co n s is ten tly
reaffirm ed the G rig g s-M cD o n n ell m anda te th a t T it le V I I does n o t a llo w
the g ra n tin g o f a pre fe ren ce to any group. S ee also, T rans W o rld
A irlines, Inc. v. H ard ison , 432 U.S. 63 (1977); M cD onald v. S a n ta Fe
Trail T ra n sp o rta tio n Co., 427 U.S. 273, 280 (1976); B oard o f R eg e n ts
of th e U n iv e rs ity o f C a lifo rn ia v. B a k k e , 98 S. Ct. 2733, 2811 n. 12
(1978) (O p in io n o f Stevens, J . ) ; A y o n v. Sam so n , 547 F.2d 446 (9 th
Cir. 1976); L o n g v. F ord M otor Co., 496 F,2d 500, 505 (6 th C ir. 1974).
'26 42 U.S.C. § 20 00 e-2 (j) p rov ides:
“ N o th in g con ta ined in th is T it le sha ll be in te rp re te d to re q u ire
any e m p lo ye r . . , to g ra n t p re fe re n tia l tre a tm e n t to any in
d iv id u a l o r to any g ro u p because o f the race . . . o f such in
d iv id u a l o r g ro up on account o f an im ba lance w h ic h m a y e x is t
w i th respect to th e to ta l n u m b e r o r percentage o f persons o f
any race . . . em p loyed b y an em p lo ye r . . .”
'27 See also, com m ents o f S enator W illia m s , a t 110 Cong. R ec. 8921
(1964).
1 0 0
VII, H.R. 7152, submitted jointly by Senators Clark and
Case, Floor Managers, 110 Cong. Rec. 7212-13 (1964).
In debate, Senator Allott argued against racial quotas as
as follows:
"■ • . I do not believe that Title VII would result in the
imposition of a quota system. Further, I believe that a
quota system of hiring would be a terrible mistake, not
only from the viewpoint of the employer, but from the
viewpoint of the employee — from the viewpoint of the
minority as well as the majority.
But the argument has been made, and I know that em
ployers are also concerned with the argument. I there
fore, propose an amendment which I believe makes it
clear that no quota system would be imposed if Title VII
becomes law.” 110 Cong. Rec. 9881 (1964).
§ 703 (j ) was added by way of amendment to make clear that,
by enacting Title VII, Congress did not intend to allow
preferential treatment of any race.128
The principle that Title VII prohibits preferential treatment
based on race was recently reaffirmed in Weber v. Kaiser
Aluminum, and Chemical Corp., supra, wherein the majority
stated:
“We deny appellants relief, not unmindful of the delayed
opportunities for advancement this will occasion many
'2 8 N u m erou s courts, in c lu d in g th is cou rt, have he ld th a t § 703 (j )
bans th e use o f p re fe re n tia l h ir in g to change a com pany’s racial
ba lance w h e re th e re is no u n la w fu l d is c r im in a tio n . See, P atte rso n v,
A m e r ic a n Tobacco Co., 535 F.2d 257, 273 (4 th C ir. 1976); L ew is v.
Tobacco W o rk e rs U nion , 17 F E P Cases 622, 627 (4 th C ir. 1978);
U n ited S ta te s v. In te rn a tio n a l B ro th e rh o o d o f E lec tr ica l W orkers,
L oca l No. 38, 428 F.2d 144, 149 (6 th C ir. 1970). In F urnco C onstruction
C orpora tion v. W a ters , 98 S.Ct. 2943 (1978), th e S uprem e C o u rt re
c e n tly sta ted th a t: “ T it le V I I fo rb id s h im [th e em p lo ye r] f ro m hav
in g as a goal a w o rk fo rce selected b y a n y p ro sc ribe d d isc rim in a to ry
pra c tice . . . 98 S.Ct. 2950. C om m issioner T a n n ia n and C h ie f H art
c le a r ly in d ica te d th a t the goal o f th e D e p a rtm e n t was to assure that
the ra c ia l com p ositio n o f th e w o rk fo rc e re fle c te d the com m unity.
T h is b la ta n t ra c ia l b a lan c in g is c le a r ly p ro h ib ite d b y § 703 ( j ) especial
ly since any im b a la nce o ccu rred p r io r to th e e ffec tive date o f T itle
V I I .
1 0 1
minority workers but equally aware of our duty, in en
forcing Title VII, to respect the opportunities due to white
workers as well. Whatever the merits of racial quotas —
and the short term and obvious benefits must not blind
us to the seeds of racial animus such affirmative relief
undeniably sows — Congress has forbidden racial prefer
ences in admission to on-the-job-training programs and
under the circumstances of this case, we are not em
powered by the equitable doctrine of restorative justice
to ignore that proscription.” 563 F.2d at 227.129
Prior to its decision in Baumgarden v. City of Detroit,'30
the EEOC had consistently held that affirmative action pro
grams could not be used to deprive other individuals of their
Title VII rights. See, EEOC Dec. No. 74-106, 10 FEP Cases
269 (April 2, 1974) and EEOC Dec. No. 75-268, 10 FEP Cases
1502 (May 30, 1975).
'29 Judge W isdo m ’s d issent in W eb er is in a p p lica b le because: (1)
in Judge W isdo m ’s v ie w , past d is c r im in a tio n had been established,
563 F.2d a t 231; (2 ) the p la n was nego tia ted b y th e em p lo ye r and
union, 563 F.2d a t 232-233; (3 ) the t ra in in g p ro g ra m u n d e r con
sideration was a n e w r ig h t estab lished b y th e 1974 L a b o r C ontract,
563 F.2d a t 234; (4 ) a p r io r consent ju d g m e n t had been approved
by a c o u rt w h e re in the d e fend an t had been a nam ed de fendant, 563
F,2d a t 228-229; and (5 ) Judge W isdom recogn ized th a t a re a d ily
id en tifia b le in d iv id u a l was a p ro p e r sub ject o f ju d ic ia l concern,
563 F.2d a t 233-234.
j-30 In D ecem ber 9, 1977, th e la s t d a y o f t r ia l, th e C ity o ffe red in to
evidence the decis ion o f the EEOC in B a u m g a rd en v. C ity o f D etro it,
decided th a t day, even th o u g h a d m in is tra tiv e charges had been
pending a p p ro x im a te ly 40 m onths. T he D is tr ic t C o u rt rece ived said
decision in to evidence despite P la in t if fs ’ vehem ent ob jections as to
hearsay, su rp rise , and re levancy. (12 /9 /77, pp. 14-26). In its op in ion ,
the D is tr ic t C o u rt fo u n d th a t the EEO C ’s decision was n o t p ro b a tive
because i t was based on num erous e rro rs o f la w and fac t, as w e ll
as evidence th a t was n o t in the record . (446 F.Supp. a t 1002). P re
lim in a r ily , P la in t if fs reassert th a t the EEO C decision in B a u m g a rd en
was im p ro p e r ly in tro d u ce d in to evidence and shou ld n o t be con
sidered in any m anner. S ee , H eard v. M u elle r Co., 464 F.2d 190,
194 (6 th C ir. 1972); C ox v. B abcock and W ilc o x Co., 471 F.2d 13, 15
(4th C ir. 1972); M oss v. L a n e Co., Inc., 471 F.2d 853 (4 th C ir. 1973);
M cD onnell-D ouglas C orpora tion v. G reen , supra , a t 798-799; A le x
ander v. G a rd n er -D en v er Co., 415 U.S. 36, 38 (1974). N o r is th is de
cision e n title d to any deference since i t was n o t contem poraneous
w ith the enactm ent o f T it le V I I , and is in d ire c t co n flic t w i th p r io r
decisions o f th e C om m ission on th e id e n tic a l issue. See , G enera l
Electric Co. v. G ilb ert, 429 U.S. 125 (1976).
1 0 2
Thus, the clear and unequivocal thrust of the judicial in
terpretations, the statutory language and the legislative history
is that racial preferences are not allowed under Title VII.131
The Defendants have consistently stated that their objective
is to balance the Department to reflect the racial composition
of the City. Such a purpose is banned by the specific prohibi
tions contained in § 703 (j ) and the judicial interpretations of
that provision.
B. Title VII Does Not Allow The Granting Of Preferen
tial Promotions To Individuals Not Shown To Be
Victims Of Past Discrimination.
No evidence was offered to show that minority officers pro
moted under the quota had been subjected to discrimination
in either hiring or promotion. The record does show that the
racial preference quota deprived approximately 100 readily
identifiable white individuals of a promotional opportunity
because of their race. Thus, the City sacrificed the individual
rights of white officers in order to further the rights of an
amorphous class of minority officers never shown to have suf
fered discrimination at the hands of the City.
Title VII focuses on the rights of individuals, rather than
the rights of classes. As stated by Justice Stevens, in City of
Los Angeles, Department of Water and Power v. Manhart,
98 S.Ct. 1370 (1978):
“The statute’s [Title VII’s] focus on the individual is
unambiguous. It precludes treatment of individuals as
simply components of a racial, religious, sexual, or na
tional class. * * *
Even if the statutory language were less clear, the basic
r3 i P la in t if fs acknow ledge th a t num erous c irc u its have upheld
p re fe re n tia l re l ie f a fte r a f in d in g o f past d is c r im in a tio n . However,
P la in t if fs a lre a d y have established, in A rg u m e n t I I supra, th a t the
co u rts have co n s is te n tly re fused to o rd e r quo ta rem edies in T itle
V I I o r co n s titu tio n a l cases, w h e n id e n tif ia b le in d iv id u a ls , such as the
nam ed P la in tiffs , are in vo lve d .
103
policy of the statute requires that we focus on fairness
to individuals rather than fairness to classes. Practices
which classify employees in terms of religion, race, or
sex tend to preserve traditional assumptions about groups
rather than thoughtful scrutiny of individuals.” 98 S.Ct.
at 1375-1376.
Justice Stevens reaffirmed Title VIPs concern for individual
rights in Bakke, supra, when he stated:
“Both Title VI and Title VII express Congress’ belief that,
in the long struggle to eliminate social prejudice and the
effects of prejudice, the principle of individual equality,
without regard to race or religion, was one on which there
could be a meeting of the minds’ among all races and a
common national purpose.” 98 S.Ct. at 2813 n.19 (Op.
of Stevens, J ) .132
In Franks v. Bowman Transportation Co., Inc., 424 U.S. 747
(1976), the Supreme Court allowed the revision of a seniority
system but only to benefit identified victims of past discrimina
tion. In Franks, the Court required that an individual em
ployee establish that he previously applied for and was re
fused employment.
In Teamsters, supra, the court again stated that the remedy
required a showing “that an alleged individual discriminatee
unsuccessfully applied for a job and therefore was a potential
victim of the proven discrimination.” 431 U.S. at 362.
This Court, in Mitchell v. Mid-Continent Spring Co., 17
FEP Cases 1594 (6th Cir. 1978) recently applied the doctrine
set forth in Teamsters. In Mitchell, the District Court had
awarded back-pay to all current female employees who had
not been given the opportunity to transfer into a higher po
sition. Neither the District Court nor the special master ever
’ 32 T h e same em phasis on in d iv id u a ls was re c e n tly recogn ized in
Carson v. A m erican Brands, Inc., 446 F.Supp. 780 (E .D. Va. 1977).
In Carson, the D is tr ic t C o u rt re fused to e n te r a consent ju d g m e n t
w h ich in c lu d e d a re q u ire m e n t th a t o n e - th ird o f the su p e rv iso ry po
sitions w o u ld be f ille d b y b lacks b y D ecem ber 31, 1980.
104
required the female employees, as a condition upon the remedy,
to show that they had ever applied for promotion. This Court,
in reversing, stated that: “[o]n remand, the District Court must
determine the application for a job asserted by each indi
vidual class member.” 17 FEP at 1602.
In the instant case, minority officers were not identified as
having unsuccessfully sought promotion. Absent such a show
ing, they are not entitled to a remedy, even if there had been a
general finding of past discrimination.
In an attempt to justify an obvious violation of Plaintiffs’
Title VII rights, the City offers two legal justifications (1)
that race is a “business necessity” under Title VII because of
a need for more black officers; and (2) that the alleged past
discrimination in the Department justified the extreme remedy
of a racial quota. Plaintiffs will demonstrate that neither of
these defenses can justify the violation of Plaintiffs’ Title VII
rights.
C. Race Is Not a Rona Fide Occupational Qualification
Under Title VII.
Defendants raised a BFOQ defense in the trial court, but
appear to have abandoned that defense on appeal. As dem
onstrated below, the claim of a racial BFOQ is indefensible.
In considering the City’s BFOQ defense, it is essential to recog
nize the difference between theories of liability for disparate
impact as opposed to disparate treatment. Disparate impact
occurs when a facially neutral job requirement disparately
affects a protected group.133 Disparate treatment, on the other
hand, involves explicit or overt discrimination against a pro
tected group.134
The City’s racial preference resolution of July 31, 1974
overtly and explicity creates racial classifications. Thus, this
133 S ee e.g., Griggs v. D u ke P ow er Co., 401 U.S. -124 (1971); A l
bem arle P aper Com pany v. M oody, 422 U.S. 405 (1975). .
134 See, Dothard v. Raw linson, 433 U.S. 321 (1-977) ; Hazelwood
School D istrict v. United States, 433 U.S. 299 (1977); Team sters, supra,
431 U.S. a t 335 n.15 (1977).
105
case involves disparate treatment rather than disparate impact.
The City has ignored this distinction by attempting to justify
a racial preference quota on the ground of business necessity.
Yet the defense of business necessity applies only to an allega
tion of disparate impact. When disparate treatment is in
volved, the employer must justify its action, if at all, on the
ground that the classification constitutes a bona fide occupa
tional qualification.135 Therefore, any justification of the City’s
quota must be grounded on a bona fide occupational qualifi
cation.136
1. Section 703(e) Does not Provide for Race as
a Bona Fide Occupational Qualification.
Congress provided an exemption for an overt practice of
discrimination considered to be a bona fide occupational quali
fication. However, the express language of § 703(e) only
applies to religion, sex, and national origin. (42 U.S.C. § 2000e-
2(e)). The exemption does not show discrimination based
upon race.
In Diaz v. Pan American World Airways, Inc., 311 F.Supp.
559 (D. Fla. 1970), rev. on other grounds, 422 F.2d 385 (5th
Cir. 1971), the Court rejected an argument that the BFOQ
exemption contained in § 703(e) applies to race, stating:
“. . . the Congress did not include any such exception to
its general prohibition against discrimination on ground of
race or color.” 311 F.Supp. at 569.
The Clear language of Title VII demonstrates that the City
may not claim a BFOQ exemption for its racial quota. Yet
had § 703(e) included race within the BFOQ categories, the
City failed to establish at trial that there was a reasonable
'35 See , Larsen, E m p lo ym e n t D is c rim in a tio n L a w , V o l. I l l , § 7210,
Pp. 13-14 and Dothard. v. Rawlinson, supra.
S ee , S ch le i & G rossm an, E m ploym ent Discrim ination Law, Ch.
9, p. 244, n. 25.
106
BFOQ justification for a 50% quota of black sergeants. § 703(e)
is an extremely narrow exception.137 The employer would
bear the burden of proving that race is a bona fide require
ment of the position to be filled.138
Obviously, there are no regulations of the EEOC relative to
a racial BFOQ. The Commission’s guidelines on discrimina
tion because of sex reveal that a BFOQ is not allowed if it is
(1) based upon a stereotype; or (2) based upon a customer
preference. See, 29 C.F.R. § 1604.2(a)(1),
2. The City’s Claim of Operational Need is
Based Upon a Stereotype That White Officers
Cannot Perform in the Black Community.
The Defendants, in claiming necessity for black officers,
assert that only minority officers could deal effectively with
the minority community. Statement of Facts, supra, pp. 48-
51. However, Chiefs Hart and Tannian and other witnesses
testified that some white officers had proven an ability to
work in the black community better than some black officers.
The City failed to examine the ability of passed over white
officers to communicate effectively with the minority popula
tion. Rather, white officers, as a class, were presumed to be
unable to relate to the minority population. Substantial evi
dence clearly indicated that such a presumption was un
founded. Many courts have rejected BFOQ defenses based
upon similar stereotypes.139
’ 37 S ee, Dothard v. Rawlinson, 433 U.S. 321, (1977); 29 C.F.R. § 1604.-
2 ( a ) ; 29 C.F.R. § 1606.1 ( a ) ; F esel v. M asonic H om e, 428 F.Supp. 573,
578 (D . D e l. 1977); Diaz v. Pan A m erican W orld A irw ays, Inc., supra;
R u ckel v. E ssex International, Inc., 14 F E P Cases 403, 410 (N .D . Ind.
1976); M itchell v. Board o f Trustees o f P icken s County School District
“ A ” , 415 F.Supp. 512, 518 (D . S.C. 1976).
’ 38 S ee, W eek s v. Southern B ell T elephone Co., 408 F.2d 228, 232
(5 th C ir. 1969); D iSalvo v. Cham ber o f C om m erce o f G reater Kansas
C ity, 416 F.Supp. 844 (W .D . M o. 1976); F esel v. M asonic H om e, supra.
’ 39 S ee, C ity o f L os A n geles D epartm ent o f W ater and P ow er, supra,
a t 1375; M itchell v. M id-C ontinent Spring Co., supra; W eek s v. South
ern B ell T elephone Co., supra; Jurinko v. W iegand Co., i l l F.2d
1038 (3 rd C ir. 1973); R osen feld v. Southern Pacific Co., 444 F.2d 1219,
1224 (9 th C ir. 1971); Sprogis v. United A irlines, Inc., 444 F.2d 1194,
107
The District Court properly rejected the argument that the
City had some “operational need” justifying a 50% quota.
3, A Customer Preference Does not Warrant a
BFOQ Exemption.
The City also defends its racial quota by stating that the
community demanded more black sergeants. Chief Hart testi
fied that the compelling need was to give the community what
it desired, namely, 50% of all positions in the Department.
Customer preference cannot justify a racial, or any other,
BFOQ. See, 29 C.F.R. 1604.1(a)(iii); Sprogis v. United Air
lines, Inc., supra. In Diaz v. Pan American World Airways,
Inc., 422 F.2d 385 (5th Cir. 1971), the Fifth Circuit rejected
a claim of customer preference for female stewardesses as a
justification for sex discrimination.
For these reasons, the alleged preference of the City’s “cus
tomers” offers no valid legal justification for the racial prefer
ence program.
VIII. THE CITY FAILED TO ESTABLISH DISCRIMINA
TION AGAINST MINORITIES IN VIOLATION OF
TITLE VI OF THE EQUAL EMPLOYMENT OP
PORTUNITY ACT OF 1972.
A. A Bona Fide Merit System Does Not
Violate Title VII In The Absence Of
Intentional Discrimination.
Throughout its Brief (pp. 101-124), the City attacks its own
promotional model as having an adverse impact upon minori
ties. The promotional model used is based upon a merit
system existing in the same general form since at least 1965,
and is presently codified in Chapter 11, § 7-1114 of the City
Charter (July 1, 1974). (See, S.F. at pp. 4-5).
1199 (7 th C ir. 1971); Ridinger v. G eneral M otors Corp., 325 F.Supp.
1089 (S.D. O hio 1971), reversed on other grounds, 474 F.2d 949 (6 th
C ir. 1972) ; Rundle v. Hum ane S ociety of M issouri, 12 FE P Cases
444, 445 (E .D. M o. 1975); R uckel v. E ssex International Co., supra.
108
Since promotions are made under a merit system, the results
of such a system may not be overturned absent proof of inten
tional discrimination. Section 702(h) specifically provides
that:
“Notwithstanding any other provision of this sub-chapter,
it shall not be an unlawful employment practice for an
employer to apply different standards of compensation, or
different terms, conditions, or privileges of employment
pursuant to a bona fide . . . merit system . . . provided
that such differences are not the result of an intention to
discriminate because of race
42 U.S.C. § 2Q00e-2(h).
Plaintiffs are unaware of any specific case that has in
terpreted the merit system exclusion of § 702(h). But the Su
preme Court has recently considered the meaning of the seni
ority exemption in ■§ 702(h). In the seniority trilogy of Team
sters, supra, Trans World Airlines v. Hardison, 432 U.S. 63
(1977) and United Air Lines v. Evans, 431 U.S. 553 (1977),
the Court held that a bona fide seniority system, which per
petuated the effects of past discrimination, was immune under
§ 702(h), absent proof that the seniority system was intended
to discriminate against minorities.
In this case, the promotional model and its components
predate the application of Title VII to municipalities by ap
proximately seven years. The City never established that the
purpose of the promotional model was to discriminate against
minorities.
B. The Equal Employment Opportunity Act Of
1972 Requires A Showing Of Intent To Dis
criminate By A Public Body.
An independent question exists as to whether a public
employer can be shown to violate Title VII absent discrim
inatory intent.140
1 40 T he U n ite d States S uprem e C o u rt has re c e n tly dec lined to pass
109
In 1972 Congress debated Title VII before extending it to
public employers through the Equal Employment Opportunity
Act of 1972. These debates indicate that Congress extended
Title VII under the authority and scope of the Fourteenth
Amendment.’41
In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), the Supreme
Court held that the extension of Title VII coverage to local
government was a constitutional exercise of Congress’ power
under the Fourtenth Amendment. In the same year, the
Court held, in National League of Cities v. Usery, 426 U.S. 833
(1976), that similar Amendments to the Fair Labor Standards
Act, extending its terms to local governments, could not be
sustained under the Commerce Clause, and therefore violated
the Tenth Amendment. Since these two decisions, the lower
courts have upheld the 1972 Amendment of Title VII solely
on the basis of the Fourteenth Amendment.’42 No court has
relied on the Commerce Clause to support the passage of the
1972 Amendment.’43 Intentional and purposeful discrimina
tion, rather than statistical disparity, must be shown to estab
lish a 14th Amendment violation. See, Washington v. Davis,
426 U.S. 229, 239 (1976); Village of Arlington Heights v.
on th is issue on the grounds th a t i t was n o t p ro p e r ly be fore the
Court. S e e , D o th a rd v. R a w lin so n , supra , at 2724 n . l and H azelw ood
School D is tr ic t v. U nited S ta te s , 433 U.S. a t 301 n . l. T h is issue is again
before th e S uprem e C o u rt in th e m a tte r o f C o u n ty o f L o s A n g e les
v. D avis, Suprem e C o u rt D o cke t No. 77-1553.
141 See , L e g is la tiv e H is to ry , 1972 U.S. Code Cong. & A d. News, 2154:
H.R. Rep. No. 238, 92d Cong., 1st Sess., 19 (1971); S. Rep. No. 415,
92d Cong., 1st Sess., 24 n . l l (1971). T h is L e g is la tive H is to ry in d i
cates th a t a p r im a ry purpose o f e x te n d in g the coverage o f T it le
V I I to m u n ic ip a lit ie s was to a llo w p u b lic em ployees to ta ke advantage
of the a d m in is tra tiv e procedures con ta ined in T it le V I I w h ic h w ere
absent in the C iv i l R ig h ts A cts o f 1866 and 1871.
’ 42 See, U n ited S ta te s v. S ta te o f N e w H am p sh ire , 539 F.2d 277, 280-
281 (1st C ir. 1976), cert, den ied , 429 U.S. 1023 (1976); C urran v. P o r t
land Schoo l C o m m itte e , 435 F.Supp. 1063 (D . Me. 1977); U nited S ta te s
v. C ity o f M ilw a u k ee , 395 F.Supp. 725, 727-728 (E .D . W is. 1975)-
Howard v. W a rd C o u n ty , 418 F.Supp. 494, 501 (D . N .D . 1976).
'43 T h is C o urt, in M a rsh a ll v. O w en sb o ro -D a v iess C o u n ty H ospita l,
i fc o 77" 3069 C ir ’ A u g - 9> 1978L h e ld th a t the E qu a l P ay A c t o f
1963, 29 U.S.C. § 206 (d ) cou ld be susta ined un de r the F o u rte e n th
Am endm ent b u t expressed do u b t th a t i t cou ld be sustained un de r
the Com m erce C lause in l ig h t o f the U sery decision. S ee , S lip Op. at
P- 7, n.3.
110
Metropolitan Housing Development Carp., 429 U.S. 252, 265-
266 (1977).
Two Federal courts have recently held that purposeful intent
is also required to establish a Title VII violation by a state
agency or one of its political subdivision.144
This authority would require the City to show specific acts
of intentional discrimination, rather than statistics, in order
to prove past discrimination against minorities. The City
must also prove intentional discrimination if it asserts disparate
treatment of minority applicants.
The essence of the City’s defense is a confession that the
City treated blacks differently than whites prior to the Young
administration. This assertion involves claims of disparate
treatment rather than disparate impact. Title VII clearly
requires proof of discriminatory intent to prove disparate
treatment. See, Dothard v. Rawlinson, supra, Teamsters,
supra, 431 U.S. at 335 n.15 (1977); Hazelwood School District
v. United States, supra, 433 U.S. at 306 n.12 (1977).
Insofar as the City has confessed to disparate treatment,
proof of a statistical disparity or a disparate impact would be
woefully insufficient to justify its racial quota.
C. The Statistics Presented In The District
Court Are Insufficient To Show The
City’s Alleged Past Discrimination.
1. An Employer May Not Rely Solely on Statistics
To Prove a Title VII Violation.
Statistics have often been admitted by courts in Title VII
actions because employees do not have ready access to the
hard evidence of acts or policies of discrimination, See, Team
sters, supra, 431 U.S. at 339 n.20.
As recently stated by this Court in Senter v. General Motors
144 S ee, S cott v. City of A nniston. 430 F.Supp. 508 (N .D . A la . 1977);
Friend v. Leidinger, 17 EPD If 8392, 5978 (E .D . Pa. 1977).
I l l
Corp., 532 F.2d 511 (6th Cir. 1976), cert, denied, 429 U.S.
870 (1976):
"An employee is at an inherent disadvantage in gathering
hard evidence of employment discrimination particularly
when the discrimination is plant-wide in scope. It is
for this reason that we generally acknowledge the value
of statistical evidence in establishing a prima facie case
of discrimination under Title VII.” 532 F.2d at 527.
This rationale should not justify Defendants’ reliance on
statistics to prove past discrimmation. The City, not the Plain
tiff, was in full control of any relevant evidence, if any, of past
discrimination against minority officers. Rather than coming
forward with that evidence, the Defendants engaged in a
persistent and deliberate attempt to prevent reasonable dis
covery by the Plaintiffs. See, Exhibit I.
2. Limitations on the Use of Statistics in a
Title VII Case.
As a matter of law, there still appears to be substantial
doubt as to whether or not statistical evidence, in and of itself
is sufficient to establish a prima facie violation of Title VII.145
In Teamsters, supra, the Supreme Court affirmed a finding of
a pattern and practice of discrimination, where in addition to
statistical evidence the Plaintiffs introduced evidence of forty
alleged individual acts of hiring discrimination.
Although the Court recognized the probative value of sta
tistics in a Title VII case, the Court cautioned as follows:
“We caution only that statistics are not irrefutable; they
come in infinite variety and, like any other kind of evi
dence, they may be rebutted. In short, their usefullness
145 In N ashville Gas Co. v. Satty, 98 S.Ct. 347 (1977), Justice R e hn -
lu is t no ted: “ W e again need n o t decide w h e th e r, w h e n con fro n te d
w ith a fa c ia lly n e u tra l p lan , i t is necessary to p ro ve in te n t to es
tablish a prim a fa cie v io la t io n o f i 703(a) (1 ) .” 98 S.Ct. a t 352.
112
depend upon all the surrounding facts and circumstances.”
431 U.S. at 340.
See also, Hazelwood School District v. United States, 433 U.S.
299, 309, 310 (1977).146
In this case, the City relied almost solely on statistics. There
is virtually no evidence regarding hiring and promotion stan
dards prior to 1968. Nor is there evidence of specific dis
crimination against individual applicants. The absence of
substantive evidence of discrimination justifies the presumption
that the statistical disparity, demonstrated by the City, was not
caused by unlawful discrimination.
The absence of other evidence of discrimination diminishes
the credibility of the City’s statistical proof. As stated by the
Fourth Circuit in Roman v. ESB Inc., 550 F.2d 1343 ( 4th Cir.
1976):
“[T]he absence of other evidence of discrimination should
be considered in determining whether a prima facie case
is made, just as the presence of other evidence of dis
crimination should be considered in arriving at the same
conclusion.” 550 F.2d at 1350.
See also, Opara v. Modern Manufacturing Co., 434 F.Supp.
1040 (D. Md. 1977).
Under these circumstances, the City must not be permitted
to prove past discrimination with statistics, absent independent
evidence of discrimination.
146 In H azelw ood, a ease re lie d on h e a v ily b y de fendants and some
am ic i, th e C o u rt reve rsed a fin d in g o f d is c r im in a tio n a fte r ru ling
th a t th e s ta tis tics o ffe re d w e re in co m p le te and u n re lia b le . C ontrary
to D e fendan ts assertions, th e P la in t if fs in H azelw ood produced evi
dence o f (1 ) a h is to ry o f a lleged ra c ia lly d is c r im in a to ry practices,
(2 ) s ta tis tic a l d isp a ritie s in h ir in g , (3) a s tandard less and largely
su b je c tive h ir in g p rocedure , and (4) specific instances o f d isc rim ina
t io n against 55 unsuccessfu l m in o r ity applicants. S ee, 433 U.S. at 303.
113
3. The City’s Use of Genera! Population Data For the
City of Detroit Rendered the Statistics Legally
Irrelevant.
The City’s statistics compare the racial composition of the
Department (1238b) to the overall population of the City.
(Ex. 261, 1238b). Plaintiffs objected at trial, contending that
the proper comparison was between the Department and the
relevant labor market.147
The only labor statisticians to testify were Dr. Marc Rosen-
blum and Mr. Charles Guenther. They unequivocally testified
that, based upon the record, the relevant labor market was
the DSMSA.148 Supra at 39-41, 47-48. In Hazelwoodsupra,
the Court indicated that the appropriate statistical analysis
compares the workforce to the relevant labor market. 433
U.S. at 308, 313.149
In Perham v. Ladd, 436 F.Supp. 1101 (N.D. 111. 1977), the
District Court rejected statistics that did not constitute a
comparison with the relevant labor market:
“[T]he Plaintiff must, at the very least, make a compari
son between the sexual composition of the teaching staff
of Chicago State and the sexual composition of the quali
147 In fac t, the reco rd shows a n a tio n w id e re c ru it in g e ffo rt. P la in
tiffs u rg e o n ly a R eg iona l L a b o r m a rk e t fo r s ta tis tica l com parison.
148 D S M S A stands fo r D e tro it S tan dard M e tro p o lita n S ta tis tica l
Area.
149 D u r in g the la s t year, num erous courts, in c lu d in g th is C o urt,
have con s is te n tly he ld th a t the s ta tis tica l com parison m ust be w ith
the re le v a n t la b o r m a rk e t and n o t the genera l po p u la tio n , w h ic h
includes people w h o are o b v io u s ly d isq u a lifie d fro m e m p lo ym e n t be
cause o f age o r o th e r d is a b ility , as w e ll as persons th a t do n o t
have th e q u a lifica tio n s fo r the pos ition . S ee , T ea m ste rs , supra;
A le xa n d er v. A e ro L o d g e No. 735, 565 F.2d 1364 (6 th C ir. 1977);
EEOC v. L oca l 14, In te rn a tio n a l U n ion o f O pera ting E ng ineers , 553
F.2d 251 (2d C ir. 1977); G reen v. M cD onnell D ouglas Corp., 528 F.2d
1102 (8 th C ir. 1976); L ig h tfo o t v, G allo S a les Co., 15 FE P Cases 615,
624 (N .D . Cal. 1977) ; T h o m p so n v. M cD onnell D ouglas Corp., 416
F.Supp. 972 (E .D . M o. 1976), a ff’d , 552 F.2d 220 (8 th C ir. 1977);
Fort v. T rans W o rld A ir lin e s , 14 FE P Cases 208 (N .D . Cal. 1976);
L im v. C itizen s S a v in g s & L oan A ssn ., 430 F.Supp. 802 (N .D . Cal.
1976); K in se y v. F irs t R eg iona l S ecu ritie s . Inc., 557 F.2d 830 (D.C.
Cir. 1977).
114
fied teacher and administrative population in the relevant
labor market." 436 F.Supp. at 1106. (Emphasis added)
See also-, United States v. University of Maryland, 438 F.Supp.
742, 757 (D.Md. 1977).
The general population statistics for Detroit, relied on by
Defendants, are clearly irrelevant in this action since at least
from 1968, the relevant labor market extended far beyond the
City limits.
4. The City’s Statistics Do Not Distinguish
Between Pre-Act and Post-Act Discrimination.
As enacted in 1964, Title VII exempted from its coverage
a municipality or political subdivision. See, Pub.L.No. 88-352,
§702, 78 Stat. 253 (1964), 42 U.S.C. § 2000e(b) (1). These
entities were first covered by Title VII on March 24, 1972
under § 3 of the Equal Employment Opportunity Act of 1972.
Pub.L.No. 90-261, 86 Stat. 103 (1972). See, 42 U.S.C. § 2000e
(b )(2 ) (1972). The courts have unanimously held that the
1972 Amendments are not retroactive with regard to substan
tive rights.150 The Supreme Court, in Hazelwood, supra, held
that in a Title VII action, a court should focus its attention
on the post-Act conduct of the employer:
Racial discrimination by public employers was not made
illegal under Title VII until March 24, 1972. . . . For
this reason, the Court cautioned in the Teamsters opinion
that once a prima facie case has been established by sta
tistical work force disparities, the employer must be given
an opportunity to show that "the claimed discriminatory
pattern is a product of pre-Act hiring rather than unlawful
post-Act discrimination.” 433 U.S. at 309, 310. (Em
phasis added)
iso See, M onell v. D epartm ent o f Social S ervices, 532 F.2d 259 (2d
C ir. 1976), reversed on oth er grounds, 98 S.Ct. 2018 (1978); W eise v.
S yracuse U niversity, 522 F.2d 397, 410-411 (2d C ir. 1975); Patterson
v. A m erican T obacco Co., 535 F.2d 257 (4 th C ir. 1976), cert, denied,
429 U.S. 920 (1976).
115
See also, United Air Lines, Inc. v. Evans, 431 U.S. 553
(1977).
Thus, pre-1972 statistics and conduct cannot be grounds
for establishing that the City violated the Title VII rights
of minority employees.151
D. The District Courts Properly Found That There
Was No Past Or Present Discrimination
In Promotions.
1. The Manner and Means of Promotions Prior to 1973.
The record is devoid of meaningful evidence relative to
promotions to the rank of sergeant for the years prior to
1973. Defendants fail to offer any evidence to show: (1) the
number of blacks promoted to sergeant during that period;
(2) that any black officer was ever denied a promotion; (3)
the number of black sergeants for the years 1940 to 1963;
(4) the number of blacks applying for promotion for the
years 1940 to 1963; (5) the racial composition of promotions
made from 1940 to 1973; (6) the number of qualified minori
ties who applied for promotion prior to 1973; (7) the effect
upon any racial group of the promotional models used from
1940 to 1973.
In short, the City failed to offer any evidence relative to
promotions and promotional criteria prior to 1973.152 The
failure of Defendants to offer the exams, or any statistics rela
tive to promotions prior to 1973, precludes a finding of dis
crimination in promotions prior to 1973.153
151 S ee, T eam sters, supra, 430 U.S. a t 360; A lexa n d er v. A ero L odge
No. 735, 565 F.2d 1364 (6 th C ir. 1977); W iggins v. S pector Freight
System, Inc., Nos. 77-1107 and 77-1108 (6 th C ir. Sept. 6, 1978), S lip .
Op. a t 2.; Johnson v. L yb eck er , 15 FE P Cases 300, 304 n.21 (D . Ore.
1977); P resseisen v. S w arthm oore C ollege, 15 FE P Cases 1466, 1483
(E.D. Pa. 1977).
*52 C a re tti te s tifie d th a t, w r it te n exa m ina tion s w ere used p r io r to
1973. B u t th e e xa m ina tion s w ere n e ve r in tro d u c e d o r o ffe red b y the
C ity n o r w e re p a s s /fa il s ta tis tics p ro v id e d re la t iv e to the years fro m
1940 to th e present.
'S* * H ester v. Southern Railway Co., 497 F.2d 1374 (5 th C ir. 1974);
116
Further, statistical proof of racial imbalance in the super
visory ranks may not, of itself, create a presumption of promo
tional discrimination.
In Croker v. Boeing Co., 437 F.Supp. 1138 (E.D. Pa. 1977),
the plaintiffs claimed that a racial imbalance at the super
visory level established a violation of Title VIL The Court
relied upon the Teamsters decision and stated:
“The evidence showed that most [supervisory] positions
. . . were filled through promotions and transfers accord
ing to the seniority system. Consequently, the low per
centage of blacks in Quality Control is caused to a large
extent by the prior racial composition of the Company’s
workforce, and cannot be a basis for liability under the
doctrine of International Brotherhood of Teamsters,
supra.” 437 F.Supp. at 1188.
The large number of black officers hired since 1968 under
the affirmative action policies of the City may not be used
to create a supervisory “imbalance” justifying a finding of
past discrimination. Due to a legitimate and neutral in ser
vice requirement of 3 years before promotion, the imbalance
at the supervisory level arose from event prior to 1972. There
fore, this imbalance cannot be used to establish a Title VII
violation of minority rights.
2. The Promotional Model From 1973 to the Present.
Incredibly, the City also argues that there is ongoing dis
crimination in its promotional model. The City has attacked
its own promotional model, but has made no attempt to cure
its alleged deficiencies. The City’s current position must be
compared to that taken in November of 1975, when the City
represented to the EEOC, the LEAA and the Michigan Civil
Rights Commission that the promotional model was non
A da m s v. T exas and Pacific M otor Transport Co., 408 F.Supp. 156,
161-162 (E .D. La. 1975); Johnson v. L yd eck er , supra, a t 306; Rand
v. Civil S ervice Com m ission. 71 M ich . A pp . 581, 590; 248 N .W .2d 624
(1976).
117
discriminatory, job related and had no hostile impact on
minorities. (See 612b-627b).
Plaintiffs will briefly address the arguments raised by the
City in attacking its own promotional model.
(a). Adverse Impact.
The City contends on appeal that the promotional model,
as a whole, has an adverse impact upon minorities.154 The
alleged impact apparently arises from the 1973 and 1974
exams.155
Yet an examination of the rankings from Personnel Order
Nos. 74-108, 75-352 and 76-441156 reveal that if rank order
had been followed, minority officers would have been pro
moted in percentages comparable to their representation in
the lower ranks of the Department.157 The written examina
tion was the only component of the promotional model that
had any adverse impact. However, the impact is not unlawful
154 T h is issue is ra ised fo r the f irs t t im e in th is appeal.
1 55 T h e re was no evidence w hatsoever in tro d u c e d in the D is tr ic t
C ourt th a t se n io rity , college c re d it, ve te rans pre fe rence, o r service
ra tings had any adverse im p a c t on m in o rit ie s . R a ther, the EEO P
program c le a r ly ind ica tes th a t no d ispara te im p a c t ex is ted in those
components. (612b-627b).
'56 In 1970, the D e p a rtm e n t was 11% b lack. (1238b). D ue to the
accelerated h ir in g ra tes o f m in o r it ie s begun in 1968, th is fig u re
escalated to 22% m in o r ity in 1976 and 32% m in o r ity in 1977. (1238b).
I f ra n k o rd e r had been fo llo w e d on P ersonnel O rd e r 74-108, 16
of the 150 p ro m otion s , o r 10.6%, w o u ld have gone to m in o rit ie s .
( lb -4 b ) . O n 75-352, 14 o f 127 prom otions, o r 11%, w o u ld have been
granted to m in o r it ie s i f ra n k o rd e r had been fo llo w e d . F in a lly ,
on P ersonnel O rd e r 76-441, 20 o f th e 70 prom otions, o r 28.5%, w o u ld
have gone to m in o r it ie s i f ra n k o rd e r had been fo llo w e d .
'57 Any d is p a r ity be tw een th e ra te o f p rom otions, i f ra n k o rd e r
had been fo llo w e d , and th e rep re se n ta tio n o f officers in the po lice
officers le ve l, are re a d ily exp la ined . F irs t, th e in -g ra d e service
re q u ire m e n t w o u ld in i t ia l ly p ro h ib it some o f th e officers, bo th b la ck
and w h ite , f ro m s it t in g fo r th e e xa m in a tio n fo r a m a x im u m o f 3
years. Thus, th e in -g ra d e service re q u ire m e n t w o u ld p re c lud e
some o f the re c e n tly h ire d officers fro m s it t in g fo r the exa m ina tion .
S im ila r in -g ra d e service re q u ire m e n ts have been uphe ld . See, A fr o -
Am erican P atrolm en ’s L eague v. D uck, 503 F.2d 294, 302 (6 th C ir.
1974); Ortiz v. Bach, 14 F E P Cases 1019, 1023 (D . Colo. 1977). Sec
ondly, e x h ib it 272 revea ls th a t th e m in o r ity rep re se n ta tio n in the
D epartm ent tr ip le d f ro m 1970 to 1977 since, in 1970, th e D e p a rtm e n t
was 11% b la c k and rose to 32% b la ck in 1977.
118
under the 80% rule. See 29 C.F.R. § 60-3.4(b).iS8 The rule
allows 20% variance in the selection rate but provides that:
“Greater differences in selection rate may not constitute
adverse im pact. . . where special recruiting or other pro
grams cause the pool of minority or female candidates to
be atypical of the normal pool of applicants from that
group.”
In this case, accelerated minority recruitment in the years 1968
to 1976 led to an influx of black officers which was atypical,
causing a greater than normal variance at the supervisory
level.
3. Performance Evaluations.
The City also argues that service ratings are discriminatory.
In fact, the evidence is clear that the service ratings have
no disparate impact on any minority group. Comdr. Caretti’s
study (696b), the EEOP plan (619b-620b) and correspon
dence from the LEAA (Exs. 54-56) confirm that service rat
ings have had no discriminatory effect. Moreover, the use of
performance evaluations is specifically authorized by the
EEOC’s Guidelines.
When objective factors have dominated service ratings, the
courts have consistently held that their use does not con
stitute a violation of Title VII. See, Thompson v. McDonnell
Douglas Corp., 416 F.Supp. 972, 982 (E.D. Mo. 1976); United
States v. City of Chicago, supra; and Frink v. United States
Navy, 16 FEP Cases 67, 70-71 (E.D. Pa. 1977).
Without evidence of discriminatory impact, this Court must
conclude that the performance evaluations are not a source of
discrimination.
4. The Promotional Exams.
(a) Compliance with Pertinent Guidelines.
The trial court found that the 1973, 1974 and 1976 promo-
’ 58 T h e 80% r u le has n o t been in co rp o ra te d in the A u g u s t 25, 1978
U n ifo rm G u id e lines O n E m ployee S e lection P rocedures.
119
tional exams “were in conformity with American Psychologi
cal Association testing standards.” DPOA v. Young, supra, at
990. In footnote 77, the lower court set forth specific relevant
guidelines which the court found that the Department com
plied with. A review of these guidelines and the evidence
relative to them demonstrates unequivocally that the 1973-
1976 promotional examinations were content valid and racially
neutral.
29 C.F.R. § 1607.1(b) cautions against the exclusive reli
ance by an employer on a written test.559 § 1607.3 provides
that an employment test having adverse impact on a pro
tected group constitutes discrimination unless:
“(a) The test has been validated and evidences a high
degree of utility . . and
(b) The employer can demonstrate that suitable alterna
tive procedures are unavailable.
The Statement of Facts demonstrates that the City’s promo
tional exams were content valid, thereby fulfilling the mandate
of § 1607.3(a).* 160 Experts established at trial that no suitable
alternative procedures, with less of an impact on blacks, were
available.161
29 C.F.R. § 1607.5(b) (2) requires that tests be administered
and scored under controlled and standardized conditions. Car-
etti described the elaborate precautions taken to insure the
integrity of these exams ( 1095a-1098a), in compliance with
§ 1607.5(b)(2).
’ 5 9 T he C ity com p lie d w ith § 1607.1(b) b y u t i l iz in g v a rio u s com
ponents o r “ tests” in its p ro m o tio n a l m odel.
160 C o n ten t v a l id i ty was th e a p p ro p ria te w a y to estab lish the p ro
p r ie ty o f the 1973 th ro u g h 1976 p ro m o tio n a l exams, 29 C.F.R. Chap.
X IV , § 1607.5 (1051a; 1062a, 1063a, 1076a). C a re tti’s te s tim o n y th a t
the exam s d id n o t tes t types o f kn o w le dg e o r s k ills th a t cou ld be
acquired in a b r ie f o r ie n ta tio n (1051a; 1076a) supports th e t r ia l c o u rt’s
findings.
161 Indeed, th e evidence dem onstra tes th a t any such a lte rn a tive s
were u n k n o w n n o t o n ly to th e C ity , b u t also to the experts in p e r
sonnel testing . Supra, p. 15 (1047a; 2073a-2074a).
1 2 0
The City complied with Title VII and all relevant guide
lines promulgated thereunder until it became apparent that
compliance with the law would not achieve the political ob
jectives of the defendants. It was at this point that the City
inserted race into its promotional model.
(b) Validity of the Promotional Exams.
There is no single method for appropriately validating pro
motional exams for their relationship to job performance.
See, Washington v. Davis, 426 U.S. 229, 247 n.13 (1976);
Jackson v. Nassau County Civil Service Commission, 424 F.
Supp. 1162 (E.D. N.Y. 1976). The EEOC Guidelines On
Employee Selection Procedures, 29 C.F.R. § 1607.1 et seq,
specifically authorize the use of a content validity analysis.
Content validity is found when the content of the employment
test approximates the job to be performed after selection or
promotion. See, 29 C.F.R. § 1607.14(c) (1); Washington v.
Davis, supra, at 247 n.13 (1976); clarified in Institute for
Racial Equality v. City of St. Louis, 549 F.2d 506 (8th Cir.
1977). As stated in Jackson v. Nassau County Civil Service
Commission, 424 F.Supp. 1162 (E.D. N.Y. 1976):
To prove content validation, the defendants must dem
onstrate that ‘they have formulated examination ques
tions and procedures based on an analysis of the job’s
requirements, usually determined through empirical
studies conducted by experts. An examination has content
validity, then, if it elicits from the candidate informa
tion that is relevant to the job for which it is given.’ ” (Ci
tation omitted). 424 F.Supp. at 1171.
Richard Caretti and Drs. Ebel and Wollack testified that
the 1973, 1974 and 1976 examinations were job related, con
formed with the job analyses of Mr. Fureon and Dr. Inn and
complied completely with the American Psychological Associ
ation standards, the EEOC Guidelines (29 C.F.R. § 1607.5
1 2 1
(a )), and the Federal Executive Agency Guidelines and all
experts agreed they were content-valid.
Indeed, the City never offered testimony to dispute the
content validity of its exams.
Dr. Andres Inn and Mr. Furcon, who each prepared job
analyses upon which the tests were predicated, were sched
uled as expert witnesses for the City but were never called.
The presumption must be that, if these witnesses had been
called, their testimony would have been favorable to the
Plaintiffs. See, supra, pp, 62-63.
(c) The Development of the Written Test.
At pp. 106-108, the City attacks the ability of its employee,
Richard Caretti, to properly prepare the examination. Yet
Caretti is still developing promotional examinations for the
City. Caretti has vast educational and practical experience
relative to the preparation of non-dis criminatory examina
tions. He also has recent experience in the jobs of sergeant and
lieutenant with the Department. Further, numerous experts
of national reputation, along with lieutenants and seregants
of both races assisted in the preparation of the exams. It
is incredible that the City now attempts to portray Caretti
as unqualified to prepare promotional examinations. It is a
further misrepresentation for the City to claim that the
bibliography for the exam was never changed.1*2
(d) The Job Analyses.
Despite the testimony of content validity by Caretti, Ebel
and Wollack, the City (pp. 108-116 of its Brief) attacks the
promotional examination by claiming that it did not test criti
cal areas of work behavior or conform to a job analysis. 162
162 A n e xa m in a tio n o f E x h ib its 21, 22, and 23 reveals th a t the
M ich igan L iq u o r C o n tro l A c t and the M o to r V e h ic le and T ra ffic
M a te ria l w e re rev ised each year. M oreove r, o th e r item s lis ted , w h ic h
included p u b lica tio n s on hum an re la tion s, fu n d a m e n ta ls o f c r im in a l
in ves tiga tion and po lice a d m in is tra tio n w e re changed and in some
cases d iffe re n t a d d itio ns w e re used on d iffe re n t exam ina tions. C le a rly
the b ib lio g ra p h y was rev iew e d , m od ified , and changed to m a in ta in
its effectiveness.
1 2 2
Caretti stated that he had the questionnaire prepared by
John Furcon and had the benefit of Furcon’s job analysis in
preparing the exams. The record establishes that numerous
job analyses were performed by the City in attempting to
prepare the promotional examination. Indeed. Dr. Wollack
indicated that the 1973 and 1974 promotional examinations had
a high degree of correlation with the job analyis performed
by Dr. Andres Inn:
“They were quite conscientious in putting together a
well-written examination and the subsequent job analysis
of Dr. Inn has borne out a very high degree of cor
respondence between the content of those examinations
and the requirements of a sergeant in his job in the
Detroit Police Department. This is really the essence of
content validity, this showing that the test measures what
the person does on the job. It’s simply a sample of the
areas of job knowledge which a Sergeant must possess.
There is no mystery or any bag of tricks associated with
this kind of job-related examination. It’s quite straight
forward. It simply is a measure or a sample of the areas
of knowledge the Sergeant must possess in order to per
form his job in a competent manner.
. . . The content of this examination corresponds to the
job analysis of Dr. Inn and corresponds to my notion of
what Sergeants, the types of knowledge a Sergeant most
any where in most any department, not merely in the
Detroit Police Department, but most anywhere would
need to know in order to perform his job in a fully com
petent manner.” (2024a).163
Dr. Wollack’s unrebutted testimony established that the pro
163 T h is s itu a tio n c le a r ly d is tingu ishes the jo b analys is th a t was
p e rfo rm e d in K irkland v. N ew Y ork State D epartm ent o f Correc
tional S ervices, 374 F.Supp. 1361 (S .D .N .Y . 1974). In Kirkland, the
o ffice r p re p a rin g the w r it te n e xa m in a tio n had no experience in the
area o f psych o lo g ica l te s tin g o r the he lp o f any p ro fess iona l experts,
le t alone a jo b analysis.
123
motional examination corresponded with the professionally
developed job analysis.
The City also claims that the examination did not test critical
areas of work behavior. This contention is contrary to the
unrebutted testimony presented in the District Court. All
experts agreed that the exams tested areas of major and critical
work behavior for the position of sergeant. Supra, pp. 12-15.
The City again misstates the record when it contends that
important job duties such as supervision and police community
relations were only marginally covered in the examination.
The testimony of Dr. Reginald Wilson, a witness called by the
City, unequivocally established that the written examination
encompassed areas of supervisory responsibility and community
relations. Moreover, Dr. Wilson stated that the oral boards
central purpose was to determine ability in the area of police-
community relations. (2550a-2551a).
This evidence of record supports the district courts finding
that the promotional test was job related.
In United States v. State of South Carolina, 15 FEP Cases
1196 (D.S.C. 1977), aff’d sub. nom. National Education Asso
ciation v. State of South Carolina, 434 U.S. 1026 (1977), the
Plaintiffs attacked a validity study which determined the cut
off score on the State teachers’ certification examination. In
rejecting the argument that the validity study did not conform
to EEOC Guidelines, a three-judge court stated:
“The design of the validity study is adequate for Title
VII purposes. The Supreme Court made clear once again
in Washington v. Davis that a content validity study that
satisfies professional standards also satisfies Title VII.”
15 FEP Cases at 1214. (Emphasis added.)
In that case, the State’s expert testified that the exam met APA
standards and EEOC guidelines, as a basis for an opinion of
content validity. Similar testimony has been offered in this
case, by Drs. Ebel and Wollack.164
164 T he C ity n o w a ttem p ts to im peach D r. W o lla c k b y c it in g fro m
124
(e) The Use of Rank Order.
The City, (pp. 118-121) and the Justice Department (pp.
77-84) attack the rank order aspect of the promotional model
as not job related.165 The ranking system was established by
City Charter effective July 1, 1974. (Chapter § 7-1114, Char
ter of the City of Detroit). It is part of a promotional model
unilaterally prepared and altered by the City over the years,
and not subjected to collective bargaining. In its EEOP
program the City claimed that the entire promotional process
was job related and not discriminatory.
The EEOC Guidelines on Employee Selection Procedures, in
effect at the time of the trial court’s decision, do not require
proportional representation. Similarly, the August 25, 1978
Uniform Guidelines on Employee Selection Procedures, adopt
ed by the EEOC, the Civil Service Commission and the
Departments of Labor and Justice provide that:
“Selection procedures which purport to measure knowl
edge, skill or abilities may in certain circumstances be
justified by content validity, although they may not be
representative examples, if the knowledge, skill or ability
measured by this selection procedure can be operationally
defined as provided in § 14(C) (4) below and if that
knowledge, skill, or ability is a necessary pre-requisite to
successful job performance.” 29 C.F.R. § 1607.14(c)(1)
Moreover, the new guidelines further state:
“If a user can show, by a job analysis or otherwise that a
higher score on a content valid selection procedure is
likely to result in better job performance, the results may
be used to rank persons who score above minimum levels.”
29 C.F.R. § 1607.14(c)(9)
a w r it te n v a l id ity s tud y fo r en try lev e l th a t ce rta in areas o f the
e xa m in a tio n w e re n o t p ro p e r ly w e igh ted . T h is is c le a r ly im proper.
I f th e C ity w ished to a tta ck D r. W o lla c k ’s conclusion, th e y should
have questioned h im on these issues d u r in g cross-exam ination .
1 65 This argum ent was never raised in the lower court and, thus, the
D istrict Court was never given an opportunity to consider the argu
m ents relative to the alleged im proper weighting of the promotional
model.
In this case, Dr. Wollack performed a specific item analysis
of the 1974 written examination which showed a much higher
degree of job suitability for those officers that were ranked
higher on the list. Moreover, Caretti, Wollack, and Ebel un
equivocally testified that the rank order established relative
suitability for performance of the job of sergeant. The higher
an officers rank, the better qualified he was for promotion.
Neither the Justice Department nor the City offer one
legal authority to support their argument that the lack of
proportional representation establishes that the promotional
rankings violate Title VII. More importantly, there is not one
scintilla of evidence indicating that the rank order system
mandated by the City Charter violates any of the EEOC
Guidelines or the American Psychological Association stand
ards.
Thus, a review of the record evidence unequivocally estab
lishes that the District Court was eminently correct when it
concluded that the examinations (and resultant rankings),
were content valid and job related.
5. Seniority.
The City further attacks its promotional model by alleging
that seniority has an adverse impact on the more recently hired
minority officers. The seniority component in the model has
been in existence since at least 1965. ( 1233b). As the District
Court found, the seniority provision of the collective bargain
ing agreement was the result of good faith labor negotiations,
and has been included in all collective bargaining agreements
since 1970.
Since the seniority system is bona fide and predates the
application of Title VII to municipalities, it is expressly immune
from attack under the provisions of § 703 (h ).166 Further,
>66 See, 42 USC § 20 00 e -2 (h ); Team sters, supra; Trans W orld A ir
lines v. Hardison, supra; United A ir Lines v. Evans, 431 U.S. 553, 560
(1977); A lexa n d er v. A ero L odge No. 735 International A ssociation o f
machinists and A ero Space W orkers, 565 F.2d 1364 (6 th C ir. 1977) •
Wiggins v. S pector Freight System s, Inc., Nos. 77-1107 and 77-1108
(6th C ir. Sept. 6, 1978, S lip . Op. a t p. 2 ) ; M yers v. Gilman Paper Co.,
126
seniority was only counted from 6-8% during the post-Act
period. In Ortiz v. Bach, supra, the court refused to alter a
seniority credit of 10% for promotion, because of minimal effect.
14 FEP Cases at 1023.
Finally, in its EEOP program, prepared in November of
1975, the City specifically stated that seniority had no adverse
impact on minorities. (542b-695b).
As demonstrated above, the District Court correctly found
that the City’s current promotional model presents no viola
tion of Title VII.
E. The District Court Properly Found That There
Was No Post-Act Discrimination In Hiring.
The City’s statistical “proof” of past discrimination in hiring
relies “almost” wholly upon Exhibit 201. That exhibit was
shown at trial to have virtually no probative value.* 167
The statistics derived from Exhibit 201 were flawed in sev
eral respects. First, the statistics offered for the years 1967
to 1972 are legally irrelevant, since Title VII was not made
applicable to municipalities until March 24, 1972.
Second, for the years 1970 to the present, Exhibit 201 used
gross numbers without distinguishing initial rejections from
those rejections flowing from re-applications by previously re
jected applicants. Caretti testified that there were numerous
re-applications by officers who had been previously rejected
by the Department. Dr. Marc Rosenblum stated that statistics
reflecting re-applications were necessary in order to accurately
556 F,2d 758, 760 (5 th C ir. 1977), cert, d ism issed , 434 U.S. 801 (1977);
D eG ra jfere id v. G enera l M o tors A s se m b ly D iv ision , 558 F.2d 480, 484
(8 th C ir. 1977); U n ited S ta te s v. T ru c k in g E m p lo yers , Inc., 561 F.2d
313, 319 n. 23 (D .C. C ir. 1977); E E O C v. U n ited A ir L ines, Inc.,
15 F E P Cases 310, 318 (7 th C ir. 1977); C ates v. T ra n s W o rld A irlines,
561 F.2d 1064, 1069-1074 (2d C ir. 1977).
167 T he C ity also in tro d u c e d E x. 269 w h ic h com pared the per
centage o f b la ck ap p lican ts w i th th e percen tage o f b lacks h ired
fo r th e years 1967 to 1975. H o w eve r, Ex. 269 was prem ised on Ex.
201 w h ic h w e re the y e a r ly re p o rts fo r the re c ru it in g divisions.
(S u p ra , pp. 38-39).
127
portray the actual applicant flow. (2630a). This failure to
differentiate between rejections of re-applicants and rejections
of new applicants seriously impaired the use of this data. See,
Robinson v. Union Carbide Corporation, 538 F,2d 652 ( 5th
Cir. 1976); Croker v. Boeing Co., supra.
Third, as the Exhibit reveals and as Comdr. Ferrebee con
firmed, Exhibit 201 contains gross disparities between the
number of persons appearing at a given entry level procedure
and the actual number of reported results at that level. Ferre
bee admitted that there could have been an unaccounted for
carryover of applicants from year to year. These disparities
render the statistics virtually useless for applicant flow pur
poses. (2630a-2637a).
Finally, the statistics show that as of 1973, there was abso
lutely no disparate impact at the entry level.
Indeed, as set forth in detail in the Statement of Facts,
supra, pp. 36-48, from 1968 on, the City did everything in its
power to recruit black applicants. The absence of discrimina
tion after 1968 is best evidenced through the analysis set forth
by the Supreme Court in Hazelwood School District v. United
States, supra. In that case the Court compared the percentage
of minorities hired after 1972 with the percentage of minorities
in the relevant labor market. This analysis applied to the
City’s statistics reveals the following:
Percentage of Percentage of Percentage of
Minorities Minorities Minorities
Year Hired in SMS A in Detroit
1972 30% 16.4% 35.1%
1973 30% 16.6% 36.0%
1974 48% 37.0%
1975 64% 37.9%
1976 none 38.9%
1977 80%
supra, p. 48
These statistics clearly rebut any allegation of racial discrim
128
ination at the entry level in violation of Title VII. As early as
1972 minorities were hired at a rate 2 times greater than their
representation in the relevant labor market.
IX. DEFENDANTS RACIAL PREFERENCE PROMO
TION QUOTA WHICH WAS DESIGNED TO
ACHIEVE A 50/50 RACIAL BALANCE BY EX
CLUDING IDENTIFIABLE WHITE POLICE OF
FICERS FROM PROMOTION, SOLELY BECAUSE
OF RACE, VIOLATES THE FOURTEENTH
AMENDMENT
A. This Court need Not Review the Fourteenth Amend
ment Issues Presented if it Affirms the District Court’s
Findings of Statutory Violations.
The District Court found violations of 42 U.S.C. ■§ 1981 and
1983, Title VI and Title VII of the Civil Rights Act of 1964 as
well as the Fourteenth Amendment. If this Court agrees that
the Defendants’ actions, in any respect, violated Titles VI and
VII or §§ 1981 or 1983, it need not consider the constitutional
questions that are raised by Defendants and several of the
Amicii.
An appellate court ought not pass upon a constitutional
question where there is a statutory ground on which the case
may be resolved See, Massachusetts v. Westcott, 431 U.S.
322, 323 (1976); Kremens v. Bartley, 431 U.S. 119 (1977);
Franks v. Bowman Transportaticm Co., supra, at 756 n.8
(1976); Spector Motor Co. v. McLaughlin, 323 U.S. 101, 105
(1944); Mohone v. Waddle, 564 F.2d 1018, 1025 (3rd Cir.
1977).
This rule was stated by Mr. Justice Brandeis in his classic
concurring opinion in Ashwander v. TV A, 297 U.S. 288 (1936)
as follows:
“The Court will not pass upon a constitutional question
although properly presented by the record, if there is
also present some other ground upon which the case may
129
be disposed of. This rule has found most varied applica
tion. Thus, if a case can be decided on either of two
grounds, one involving a constitutional question, the other
a question of statutory construction or general law, the
Court will decide only the latter.” 297 U.S. at 347.168
Likewise, this Court should only consider the Equal Pro
tection issue in the event that it holds that the Plaintiffs did
not establish a violation of their rights under Title VI, Title
VII or 42 U.SC. § 1981.
B. Classifications Based Upon Race Render the Classi
fication Constitutionally Suspect and Subject to the
Most Rigid Judicial Scrutiny
The decisions of the United States Supreme Court and
the various lower courts concerning the treatment of racial
classification requirements from Sipuel v. Board of Regents,
332 U.S 631 (1948) and Sweatt v. Painter, 339 U.S. 629 (1950),
reh. den., 340 U.S. 846 (1950) through Regents of the Uni
versity of California v. Bakke, 98 S.Ct. 2733 (1978) have one
common predicate: given a constitutional duty of equal pro
tection and a state imposed purposeful racial classification re
sulting in detriment solely on the basis of race, there is a
consequent violation of the Fourteenth Amendment, unless the
challenged classification is necessary to promote a substantial
or compelling state interest.
The fact that governmental officials claim a benign, com
pensatory purpose does not excuse or insulate the legal restric
tions imposed by the classification from the most exacting
judicial examination. Regents of the University of California
163 T he d ire c tiv e o f Justice B rande is was re c e n tly fo llo w e d b y fo u r
m em bers o f the U n ite d States Suprem e C o u rt in R egents o f th e
University o f California v. B akke, supra. Jus tice Stevens, in an
O p in ion signed b y Justices S te w a rt, R e hn qu is t and C h ie f Jus tice
B u rg e r, re fuse d to consider the co n s titu tio n a l question presented in
Bakke on th e fo llo w in g grounds:
“ O u r se ttled practice , how ever, is to avo id th e decision o f a con
s t itu t io n a l issue i f a case can be fa i r ly decided on a s ta tu to ry
g ro un d .” 98 S.Ct. a t 2811.
130
v. Bakke, supra, at 2748-2749 (Op. of Powell and White, JJ.);
and id. at 2782-2785 (Op. of Brennan, Blackmun, White and
Marshall, JJ.); Califano v. Webster, 430 U.S. 313, 317 (1977),
quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 648 (1975).169
While the City does not seriously dispute that purposeful
racial classifications in the area of promotions did exist and
operated to the detriment of whites, their brief has one constant
theme with several variations: the District Court erred in riding
that the racial classification was not justified on the ground
of serving a compelling state interest.
Both the argument and the rationalizations therefor fail.
The legal genesis of racial classification cases, sound logic and
settled law dictate that this is a proper case for a finding that
the City’s racial classification was unconstitutional.
The essence of the argument presented by the City is not
169 B o th th e C ity (B r ie f a t 124-126) and A m icu s C A A D E T (B rie f
a t 6 -7 ), acknow ledged th a t e ve ry ra c ia l c lass ifica tion , p u rp o rte d ly
b e n ig n o r o therw ise , shou ld be sub jected to a he igh tene d le ve l of
s c ru tin y . W h ile fo u r Justices in B a kke appeared to enunciate, fo r
the f irs t tim e , a m id d le t ie r o f s c ru tin y fo r ra c ia l classifications
established fo r os te ns ib ly b e n ig n purposes m ore d e fe re n tia l than
th e “ s tr ic t s c ru tin y ” re q u ire d in challenges to suspect classifications
and fu n d a m e n ta l r ig h ts , b u t m o re e xa c tin g th a n th e “ ra t io n a l basis’
tes t t ra d it io n a lly ap p lie d to econom ic and socia l w e lfa re leg is la
tio n , th e y concluded th a t the re v ie w u n d e r th e F o u rte e n th A m end
m e n t shou ld be “ s tr ic t and search ing nonetheless” . B a k k e , supra,
98 S.Ct. a t 2785. (O p. o f B ren na n , W h ite , M a rs h a ll and B lackm un
J J ) . Justices P o w e ll and W h ite also agree th a t s tr ic t s c ru tin y is
the s tan dard o f re v ie w . B a k k e , supra , at 2748-2749.
T he m id d le t ie r o f s c ru tin y fo r p u rp o r te d ly b e n ig n ra c ia l classifi
cations has n o t been endorsed b y a m a jo r ity o f th e C o urt. Indeed,
i t has n o t even been endorsed b y a m a jo r ity o f th e C o u rt fo r con
s t itu t io n a l re v ie w o f gender-based classifications w h e re i t f irs t ap
peared. T he m id d le t ie r o f s c ru tin y was a r tic u la te d b y Jus tice B ren
nan in h is O p in io n fo r the C o u rt in C raig v. B o ren , 429 U.S. 190
(1976), b u t a t least f ive Justices w h o te c o n c u rr in g and dissenting
op in ions e ith e r q u es tio n in g o r opposing a “ m id d le t ie r ” o f scru tiny
fo r the E q u a l P ro te c tio n Clause. C raig, supra , at 210 n .* (Op. of
P o w e ll, J . ) ; id. at 211-12 (O p. o f Stevens, J . ) ; id. at 220 (Op. of
R ehnqu is t, J . ) ; id. a t 215, 217 (O p. o f B u rg e r, J . ) ; and id . a t 215 (Op.
o f S te w a rt, J . ) . Justice B la c k m u n d id n o t jo in th e p lu r a l i ty opinion
w i th re g a rd to the conclus ion th a t the s ta tu te was a gender-based
d e n ia l o f equa l p ro te c tio n . C raig, supra , a t 214. Jus tice B lackm un
also jo in e d in the dissent o f Justice R e hn qu is t in C alifano v. G oldfarb,
430 U.S. 189 (1977), w h ic h he ld , in te r alia, th a t the gender-based
c lass ifica tion was ra t io n a lly ju s tifia b le . I t thus appears th a t a t least
five Justices, and poss ib ly s ix , w o u ld re fuse to endorse a “ m iddle
t ie r ” o f s c ru tin y fo r ra c ia l c lass ifica tions th a t have a b e n ig n purpose.
131
novel. It is often made by state officials in an attempt to
frustrate fundamental rights or the reasonable expectations
of identifiable persons singled out solely because of their race.
Cooper v. Aaron, 358 U.S. 1 (1958) (school desegregation);
Anderson v. Martin, 375 U.S. 399 (1964) (designation of
race in nomination papers and ballots); Loving v. Virginia,
388 U.S. 1 (1967) (privacy and travel); Regents of Univer
sity of California v. Bakke, supra, (racial school admission
quota). This argument consistently has been laid to rest as
quickly as it has been raised. Cooper, supra; Anderson, supra;
Loving, supra; Bakke, supra.
The fact that a racial classification is inherently suspect was
enunciated by the Supreme Court in McLaughlin v. Florida,
379 U.S. 184 (1964):
“But we deal here with a classification based upon the
race of the participants, which must be viewed in light of
the historical fact that the central purpose of the Four
teenth Amendment was to eliminate the racial discrimina
tion emanating from official sources in the States. This
strong policy renders racial classifications ‘constitutionally
suspect,’ Bowling v. Sharpe, 347 U.S. 497, 499, 98 L.Ed.
884, 886, 74 S.Ct. 693, and subject to the ‘most rigid
scrutiny.’ Korematsu v. United States, 323 U.S. 214, 216,
89 L.Ed. 194, 198, 65 S.Ct. 193. (Additional citations
omitted).” 379 U.S. at 191-192.
The guarantees of the Fourteenth Amendment extend to
persons.170 It his thus been settled beyond question that the
“rights created by the first section of the Fourteenth Amend
ment are, by its terms, guaranteed to the individual. They are
personal rights,” Shelley v. Kraemer, 334 U.S. 1, 22 (1948);
Bakke, supra, at 2748 (Op. of Powell and White, J.J.).
While not all legal restrictions growing out of a classifi
cation which turns on an immutable characteristic, such as
race, are unconstitutional, they are immediately suspect and
i r o “ N o state sh a ll . . . deny to a n y person w ith in its ju r is d ic t io n
the equa l p ro te c tio n o f the la w s.” U.S. Const, am end. X IV , § 2.
132
subject to the most rigid and exacting judicial scrutiny. Kore-
matsu v. United States, 323 U.S. 214, 216 (1944); Bakke,
supra, at 2749, 2785; McLaughlin v. Florida, supra, at 192-193
(1964); Dunn v. Blumstein, 405 U.S. 330, 342-343 (1972);
Loving v. Virginia, supra at 11 (1967).171
The City seeks to satisfy the rigid constitutional standards
and justify their 50% racial preference promotion plan on
primarily three grounds: (1) remediation for past discrimina
tion against blacks in the Detroit Police Department; (2)
achievement of a racial balance of supervisory police person
nel, roughly reflective of the general population of the City
of Detroit; and (3) a satisfaction of a certain “operational
needs” requirement premised upon the belief that the popula
tion of the City would be more cooperative with a racially
balanced police department supervisory staff.
The facts and the relevant law reveal that the City’s racial
classification fails to pass constitutional scrutiny.
C. Defendants Failed To Establish Any Prior
Constitutional Discrimination Against Blacks.
The law is well settled that statistical disparities alone are
insufficient to establish a violation of the Fourteenth Amend
ment.172 The Supreme Court has held that where a classifica
tion is racially neutral on its face, but has a disporportionate
racial impact, proof of a racially discriminatory intent or pur
pose is necessary to show a violation of the Equal Protection
Clause. Washington v. Davis, 426 U.S. 229 (1976); Village
171 I t has been m ore th a n th re e decades since any decision o f the
S uprem e C o u rt u p h e ld a ra c ia l c lass ifica tion w h ic h re su lte d in a det
r im e n t so le ly on the basis o f race: K o re m a tsu v. U n ited S ta tes , 323
U.S. 214 (1944), and H ira b a ya sh i v. U n ited S ta te s , 320 U.S. 81 (1943),
b o th o f w h ic h w e re w a r- t im e in s p ire d cases in v o lv in g curfew s and
re lo ca tio n s im posed upon Japanese-A m ericans and have suffered
severe c r it ic is m subsequently . E.g., Rostow, T h e Ja panese-A m erican
C ases — A D isaster, 54 Y a le L .J . 489 (1945).
172 S ee , C hicano P olice O fficers A sso c ia tio n v. S to v e r , 552 F.2d 918
(10 th C ir. 1977); U n ited S ta te s v. S ta te o f N o r th C arolina, 425 F.
Supp. 789 (E.D .N .C . 1977); A ch a v. B ea m e , 438 F.Supp. 70 (S.D.N.Y.
1977); B la k e v. C ity o f L o s A n g e le s , 435 F.Supp. 55 (C .D. Cal. 1977).
133
of Arlington Heights v. Metropolitan Housing Development
C o r p 429 U.S. 252 (1977).173
The City has neither contended nor attempted to prove that
the Detroit Police Department had an overt purposeful rule,
policy or plan which discriminated against blacks in either
hiring or promotions.174 Thus, the City’s justification for the
imposition of the racial preference plan as being responsive to
prior unconstitutional discrimination against blacks must stand
or fall under the examination of the record statistical evidence
of alleged prior discrimination.
Implicit, if not expressed, in the arguments of the City (Brief
at 49-100 ) supporting their contention that statistics raise the
inference of racially motivated discrimination against blacks,
is the concession that the hiring and promotional policies of the
irs See, P asadena C ity B oard o f E duca tion v. S p a n g le r , 427 U.S.
424, 435-437 (1976), w h e re the e q u ity ju r is d ic t io n o f the C o u rt to
con tinue a desegregation o rd e r was he ld to be ended because the re
was no sho w in g th a t changes in th e ra c ia l m ix o f th e schools w e re
in any m a n n e r caused b y segregative actions chargeable to the de
fendants. L ike w ise , in th is case, the s ta tis tica l im ba lance p u rp o rte d
ly dem onstra ted b y th e C ity cou ld be a ttr ib u ta b le to any n u m b e r
of fac to rs . D ue to the C ity ’s to ta l d e fa u lt in p re sen ting adequate
and accurate s ta tis tics and o th e r re le v a n t proofs, th e re is no show ing
tha t the ra c ia l m ix o f the D e tro it P o lice D e p a rtm e n t was in any
m anner caused b y d is c r im in a to ry actions chargeable to the D e
pa rtm ent.
174 D u r in g th e course o f t r ia l, the C ity ’s p re sen ta tion o f p ro o f o f
such d is c r im in a tio n was la rg e ly , i f n o t to ta lly , s ta tis tica l. D etro it
Police O fficer’s A sso c ia tio n v. Y o u n g , 446 F.Supp, 979, 1005 (E .D .
M ich. 1978). A n analys is o f the su ffic iency o f the s ta tis tica l p roofs
established b y th e C ity is tre a te d a t le n g th in A rg u m e n t V I I I , supra ,
at 110. In th e hearings be fo re the B o a rd o f P o lice Com m issioners
(B P C ), th e s ta tis tica l p re se n ta tio n was lim ite d to c e rta in graphs
and cha rts p u rp o r tin g to show the h is to r ic a l h ir in g p a tte rn s in
the D e p a rtm e n t and com p arin g th e m w i th genera l c ity p o p u la tio n
dem ographics ra th e r th a n the re le v a n t la b o r m a rke t. (S t. a t 29).
The B P C rece ived no ra c ia l im p a c t analysis concern ing service r a t
ings and s e n io r ity a lth o u g h a p re v io u s ly prepa red s tu d y revea led no
adverse im p a c t b y th e ra tin g s . (S t. a t 27) A t the t r ia l, th e C ity
offered no te s tim o n y re g a rd in g the h ir in g o r re c ru it in g po lic ies o f the
D e pa rtm e n t f ro m 1940 to 1968, n o r d id i t in tro d u ce any evidence
re la tive to the p ro m o tio n a l exam ina tions to the ra n k o f sergeant fro m
1940 to 1973; the com ponents o f the p ro m o tio n a l m od e l p r io r to 1965;
statistics re g a rd in g the ra c ia l pe rcen tage o f sergeants fro m 1940 to
1973; s ta tis tics sho w in g app lican ts fo r p ro m o tio n and th e ir p a s s /fa il
statistics b y race; o r any sta tis tics re la t iv e to the effect o f th e p ro
m otiona l m od e l on any g ro up fro m 1940 to the present.
134
Detroit Police Department were racially neutral on their face.
Cf., Bakke, supra, at 2748 n. 27.
In Washington, supra, a case dealing with black plaintiffs
who attacked the entry level examination of the District of
Columbia Metropolitan Police Department, as being racially
discriminatory based upon a statistical showing that blacks
failed the examination at a rate four times greater than the
failure rate for white applicants, the Court acknowledged the
statistical disparaties but ruled that plaintiffs failed to establish
a constitutional violation and stated:
“Nevertheless, we have not held that a law, neutral on its
face and serving ends otherwise within the powers of
government to pursue, is invalid under the Equal Protec
tion Clause simply because it may affect a greater pro
portion to one race than another. . . . Standing alone, it
does not trigger the rule, McLaughlin v. Florida, 379 U.S.
184, 12 L. Ed. 2d 222, 85 S. Ct. 283 (1964), that racial
classifications are to be subject to the strictest scrutiny
and are justifiably only by the weightiest consideration.”
426 U.S. at 242.
In Arlington Heights, supra, the Court restated that “official
action will not be held unconstitutional solely because it re
sults in a racially disporportionate impact.” 429 U.S. at 264-
265.175 Here as in Arlington Heights and Washington, there
is a record of prior actions by the Detroit Police Department
which appear to be racially neutral on their face. Thus, when
applying the Washington and Arlington Heights standard of
proof, this Court must remember that the City failed to offer
any valid statistical evidence relative to its hiring or promo
tional practices prior to 1968 much less objective evidence of
purposeful discrimination. There is a total absence of evidence
as to the percentage of black applicants or statistics relative to
the percentage of blacks that were allegedly excluded due to
the various entry level procedures. [The City had these facts
'75 Snow den v. H ughes, 321 U.S. 1, 8 (1944); K ey es v. School Dis
trict No. 1, 413 U.S. 189, 208 (1973); Austin Independent School
D istrict V. United States, 429 U.S. 990 (1976).
135
available but failed to produce them. See, fn. 11, supra at 9
and Ex. I.
As has been stated previously in this Brief, the pass/fail
statistics on the entry level examinations after 1968 cannot be
computed due to the faulty statistics contained in Exhibit 201.
In any event, mere proof that blacks failed the exam at a sub
stantially greater rate than whites would not establish a viola
tion of the Equal Protection Clause. See, Washington, supra,
at 242-246; United States v. City of Chicago, 549 F.2d 415,
435 ( 7th Cir. 1977), cert, den., sub nom. Arado v. United
States, 434 U.S. 875 (1977).176
The evidence regarding the Detroit Police Department’s
hiring and promotional policies prior to the implementation
of the racial preference promotion plan of 1974 was clearly not
such as would sustain, or support, a finding of purposeful and
intentional historical discrimination against blacks.177 This is
not the material from which a purpose to discriminate in hiring
or promotion prior to 1974 could be discerned under the stand
ards articulated in Washington and Arlington Heights. 429 U.S.
at 265-267.
This plainly is not one of those ‘“rare” cases where standards
have been so discriminatorily applied in a “stark pattern” that
the rule of Yick Wo v. Hopkins, 118 U.S. 356 (1886), comes
into play. There is no “historical background” of unconstitu
176 A d m itte d ly , a p p ro x im a te ly fo u r b la ck officers te s tified as to the
processing o f th e ir e m p lo ym e n t ap p lica tion s and tw o officers tes tified
as to e m p lo ym e n t practices in the 1940’s and 1950’s (Messrs. B a ld w in
and S te w a r t) . H o w eve r, n e ith e r B a ld w in n o r S te w a rt sta ted th a t
the y w e re eve r d isc rim in a te d against in the h ir in g o r p ro m o tio n a l
process and S te w a rt achieved a ra n k o f sergeant be fore h is r e t ire
m ent. Sgt. S te w a rt con firm ed th a t sergeants and lie u te n a n ts w ere
trea te d the same regard less o f th e ir race. C h ie f R o be rt B u llo c k , w ho
was h ire d in 1940, stated th a t he d id n o t k n o w o f any d is c r im in a to ry
w o rk assignm ents. A lth o u g h D e p u ty C h ie f B annon acknow ledged
th a t assignm ents o f b lacks w e re m ade to b la c k ne ighborhoods, he
in d ica te d th a t th is was due to the pre fe rences o f the b la ck and
w h ite officers. A l l w itnesses agreed th a t any d is c r im in a to ry assign
m ents w e re n o t the re s u lt o f a n y o ffic ia l p o lic y and, in any event,
ended a t least 15 years ago.
177 S ee, United States v. C ity o f Chicago, 549 F.2d 415, 435-436 (7 th
C ir. 1977). S ig n ific a n tly , th e re has n e ve r been a c la im o f ra c ia l
d is c r im in a tio n file d b y a b la ck re la t iv e to h ir in g o r prom otions.
136
tional racially motivated discrimination by the Detroit Police
Department.178 The doors of the Detroit Police Department
are and have been open to blacks.
Nor is there anything suspicious about the “specific sequence
of events leading up to” the Detroit Police Department’s hir
ing and promotion activities prior to 1974 or “[departures from
the normal procedural sequence.” Arlington Heights, supra,
at 267. The City’s citation of NAACP v. Lansing Board of
Education, 559 F.2d 1042 (6th Cir. 1977) and the argument
thereon work a pro tanto reversal of the intent requirement of
Washington, supra, and Arlington Heights, supra. Rather than
supporting an inference that the City should have known that
discrimination was the natural result of their racially neutral
policies, the record shows no pattern or practice and any
disparate impact, if any there be, cannot be said to not be the
result of permissible non-racial reasons. Cf., Smith v. South
Central Bell Telephone Co., 518 F.2d 68, 69-70 ( 6th Cir. 1975).
Indeed, the record demonstrates the Detroit Police Department
did and continues to select its police officers with a preference
for black applicants.179
Finally, there is nothing in the “legislative or administrative
history” of the way the Detroit Police Department carried
'7 8 St. a t 39-41, sho w in g an e ffo r t since 1968 to a c tiv e ly seek out
b la c k app lican ts . N e ith e r is th e re a n y th in g even re m o te ly related
to th e “ soph is tica ted” use o f v o te r re g is tra t io n re q u ire m e n ts in O kla
hom a as a “ m ode o f d is c r im in a tio n ” against b lacks th a t was in v a li
da ted in L a n e v. W ilson , 307 U.S. 268, 275 (1939); n o r s im ila r to the
“ V irg in ia p la n . . . c reated to accom plish . . . th e p e rp e tu a tio n of
ra c ia l segregation b y c los ing p u b lic schools and o p e ra tin g o n ly segre
gated schools supported d ire c t ly o r in d ire c t ly b y state o r county
fu n d s ” th a t was s tru c k d o w n in G riffin v. C o u n ty Sch o o l Board,
377 U.S. 218, 232 (1964); o r th e Texas k e y -m a n system o f g rand ju ry
se lection w h ic h was a rcha ic and in e ffic ie n t, was “ h ig h ly sub jective”
and “ susceptib le to abuse as ap p lie d on . . . persons w ith Spanish
surnam es” th a t was vo id e d in C astaneda v. P artida , 430 U.S. 482, 497
(1977).
>79 U n lik e , fo r exam ple , th e school d is tr ic t in D enver, w here fo r
m o re th a n a decade a fte r 1960 “ the school a u th o ritie s . . . carried
o u t a system atic p ro g ra m o f segregation a ffe c tin g a su b s tan tia l portion
o f the students, school, teachers, and fa c il it ie s w ith in the school
system ,” K e y e s v. Sch o o l D is tr ic t No. 1, supra , a t 201 (1973), the De
t r o i t P o lice D e p a rtm e n t has n e ve r opera ted an o v e r t ly d isc rim in a to ry
de pa rtm e nt.
137
out its hiring and promotional practices that implicates racial
motivation against blacks in any way. Arlington Heights,
supra, at 268.
The City clearly has not presented a prima facie case of
prior unconstitutional racial discrimination against blacks. It
must be emphasized that the paucity of relevant objective
evidence or statistical information tending to show a disparate
impact of racially neutral policies on blacks is not the fault of
a plaintiff trying to establish the discriminatory intent of third
parties by use of statistics. Rather this is the default of the
party who supposedly has the proof and is in a position to
know and to prove discriminatory intent. In effect, the City
has been unable to document and prove an intentional con
stitutional violation which they are trying to admit!
This is not surprising since the City refuses to accept the
consequences of its own finding by the Board of Police Com
missioners (BPC) of only de facto discrimination. De jure
discrimination violates the Constitution, but de facto discrim
ination does not. Keyes v. School District No. 1, 413 U.S. 189,
208 (1973); cf., Rizzo v. Goode, 423 U.S. 362 (1976); MiUiken
v. Bradley, 418 U.S. 717 (1974); Swann v. Charlotte-Mecklen-
burg Board of Education, 402 U.S. 1, 16, 28 (1971).
D. A Department-Wide Racial Balance Does Not Con
stitute A Compelling State Interest of Operational
Need.
While a state agency may have a legitimate and substantial
interest in ameliorating or eliminating, where feasible, the dis
abling effects of identified discrimination, the Supreme Court
has never approved a racial classification that benefits persons
perceived as members of a victimized group at the expense of
other identified innocent individuals in the absence of judicial,
legislative or administrative findings of constitutional or statu
tory violations. See, e.g., Regents of the University of Cali
fornia v. Bakke, supra, at 2757-2758; Teamsters v. United
States, 431 U.S. 324, 367-376 (1977); United Jewish Organiza
tions v. Carey, 430 U.S. 144, 155-156 (1977).
138
While the City now prefers to call its racial quota an opera
tional need for a “substantial representation of black officers”
(Brief at 131), at trial, they argued that the racial preference
promotion plan was primarily implemented to achieve a racial
balance within the Department to approximate the racial bal
ance in the community as a whole. (St. at 24-29).180
With no prior adjudication of unconstitutional discrimina
tion against blacks in either hiring or promotions, the legality of
the City’s racial preference promotion plan is dependent upon
either a finding by a governmental body (with the necessary
authority and capability) that the racial classification is re
sponsive to identified discrimination and tailored to remedy
it with due regard to the rights of others or that a substantial
and compelling state interest is being served by the classifica
tion. See, e.g., Regents of the University of California v.
Bakke, supra, at 2758-2759, 2785-2786; Califano v. Webster,
430 U.S. 313, 316-321 (1977); cf., Kramer v. Union School Dis
trict, 395 U.S. 621, 632 (1969).
The Detroit Police Department, under the facts of this
case, is a public safety organization. It is not a legislative
body in the traditional sense in either structure or function
nor is it possessed of a legislative mandate with sufficient
criteria to function in a legislative manner. Likewise, the
Detroit Police Department is not in a position to function in
the form of a recognized judicial or administrative body.181
Police Commissioner Littlejohn admitted that the BPC did
not sit as a lawfully constituted fact-finding body. (St. at
’ 80 Each m em b er o f th e P la in t if f class w h o was passed ove r fo r p ro
m o tio n rece ived a le t te r s ta tin g th a t th e pass-ove r was caused by an
e ffo r t “ to crea te ra c ia l ba lance am ong su p e rv iso ry personne l” under
th e a ffirm a tiv e action p lan . (S t. at 30-31). A d d it io n a lly , th e f irs t and
a l l subsequent a ffirm a tiv e ac tio n re so lu tio n s o f th e B P C made no
m e n tio n o f th e so-ca lled op e ra tio n a l needs o f the D e p a rtm e n t as a
fa c to r. (S t. a t 28). The C ity n o w argues th e p la n is a remedy,
p u rsu a n t to a fin d in g , o f p r io r in te n tio n a l o r de ju re d iscrim ina tion .
’ 81 Indeed, w h ile th e C ity C h a rte r vested the B P C w ith the power
to subpoena witnesses, a d m in is te r oaths, take te s tim o n y and require
th e p ro d u c tio n o f evidence, w i th re g a rd to th e d e te rm in a tio n herein
to im p le m e n t a ra c ia l p re fe rence p ro m o tio n p lan, i t chose no t to
u t i l iz e any o f those q u a s i- ju d ic ia l o r a d m in is tra tiv e powers. (St. at
28-29).
139
28). Therefore, the City has defaulted in meeting even the
standards of Justices Brennan, Blackmun, White and Marshall
for tolerating a racial classification which places burdens on
identified individuals. Bakke, supra, at 2783-2784.182 * Given
the factual record, it is difficult if not impossible for the City
to prove that, even assuming intentional hiring and promotional
discrimination in the past, the 50/50 racial preference pro
motion plan is justified and responsive to the identified dis
crimination.
It is now settled that the nature of the constitutional vio
lation determines the scope of any remedy. Milliken v. Brad
ley, 418 U.S. 717, 744 (1974); Swann v. Charlotte-Mecklen-
burg Board of Education, supra, at 16 (1971).’83 Thus, even
if the City had proven any past employment discrimination,
any remedy would necessarily be limited to the effects of that
discrimination and certainly would not include any right to
an implementation of a racial balance quota reflecting city
wide general population figures. Swann, supra, at 24.’84
182 T h is is n o t a s itu a tio n w h ere the re has been a le g is la tiv e f in d in g
o f past d is c r im in a tio n and abuse, such as in United Jewish Organiza
tions, supra, and w h e re a p re scribe d course o f re m e d ia l conduct was
le g is la t iv e ly a u th o rize d and n a r ro w ly ap p lie d so as n o t to ab ridge
r ig h ts o f others, Id. a t 155-158. S ee also, P u b lic W o rk s E m p lo ym e n t
A c t o f 1977, P .L . No. 95-28, 91 Stat. 116-121 (1977), and cases de
cided the re un de r. H ere th e re was no a tte m p t to g a th e r facts, test
c re d ib ility , w e ig h re le v a n t evidence, and th e n devise a p lan , a fte r
a find ing , th a t w h ic h gives due process to a ffected in d iv id u a ls b y
“ no t [h a v in g ] th e e ffect o f d e n y in g o r a b rid g in g [r ig h ts ]” . Id. a t 157.
The D e p a rtm e n t’s so -ca lled find ing s shou ld be g iven no ju d ic ia l
deference.
183 T he C ity m isconstrues the d ic tu m con ta ined in Swann, supra,
th a t the im p le m e n ta tio n o f an ed uca tiona l p o lic y w h e re b y a ce rta in
ra tio o f N egro to W h ite students is effected in each school v o lu n
ta r i ly in o rd e r to p re pa re students to liv e in a p lu ra lis t ic society, is
le g a lly s im ila r to the im p le m e n ta tio n o f a ra c ia l p re fe rence p ro m o
tio n p la n w h ic h bestows a b e ne fit upon ce rta in in d iv id u a ls so le ly
because o f th e ir race and places a consequent b u rd e n upon o th e r
id e n tifie d in d iv id u a ls , so le ly because o f th e ir race. I f th e re is one
teaching o f Swann w h ic h is re le v a n t to th e D e tro it P o lice D e p a rtm e n t
ra c ia l p re fe rence p la n i t is the ho ld ing , in sp ite o f the a fo re m en
tioned d ic tu m , th a t th e re is no c o n s titu tio n a l re q u ire m e n t o r r ig h t
to any p a r tic u la r degree o f ra c ia l balance re fle c tin g the p u p il con
s tituen cy o f a school system . 402 U.S. a t 24.
’ 84 A lth o u g h th e C ity tr ie s to estab lish h ir in g d is c r im in a tio n as a
pred ica te fo r a ra c ia l c lass ifica tion in p ro m otion s , the re co rd is u n -
140
While the City argues that the reason for the preferential
treatment given to black officers was remediation of past dis
crimination, the real reason advanced at trial and as revealed
by the record evidence was the City’s desire to achieve an
exact racial balance within the Detroit Police Department
approximating the population of the Detroit community as
a whole.* 185
There is neither a constitutional necessity for nor a right
to a racial balance. In fact, the Court has so held in the areas
of school desegregation,186 jury selection, 187 school admis
sions,188 and has upheld a prohibition against picketing to
gain proportional representation in employment.189 The
City’s racial preference promotion plan is a flat quota to
achieve 50% black supervisory representation. The result of
such an overt racial policy is that every black officer who passes
the promotional examination qualifies to obtain every promo
tional position available, whereas every white officer who
passes the promotional examination qualifies merely for one-
half of the promotion positions available.190
co n tra d ic te d th a t an a ffirm a tiv e ac tio n p ro g ra m fo r re c ru itm e n t and
h ir in g was com m enced in 1969 and is c o n tin u in g to the present. (St.
a t 36-44). Thus, any d is c r im in a tio n and its effects, i f any eve r existed,
ended in the la te 60’s — years b e fo re th e im p le m e n ta tio n o f the
C ity ’s ra c ia l p re fe rence p ro m o tio n p lan . Cf., Spangler, supra.
185 T he in cu m b e n t m a yo r m ade a p o lit ic a l c o m m itm e n t to have the
po lice d e p a rtm e n t re fle c t the ra c ia l com p ositio n o f th e C ity . (St.
a t 24-25). Each pass-over m em b er o f p la in t i f f class rece ived a De
p a rtm e n t le tte r in d ic a tin g th a t th e pass-over w as due to an effort
to crea te a “ ra c ia l ba lance” . (S t. a t 30-31). B o th fo rm e r Chief
T a n n ia n and C h ie f H a r t te s tifie d th a t a p r im a ry ob jec tive , i f n o t the
o n ly o b je c tive o f th e ra c ia l p re fe ren ce was to achieve a ra c ia l ba l
ance. (S t. a t 49-51).
186 M illiken v. B radley, supra, a t 740-741 (1974); Swann v. Char-
lo tte-M eck len bu rg Board o f Education, supra, a t 16, 24 (1971).
187 Cassell v. T exas, 339 U.S. 282 (1950).
188 R egents o f the U niversity of California v. B akke, 98 S.Ct. 2733
(1978); D eFunis v. Odegaard, 416 H.S. 312 (1974) (d isse n tin g opin ion
o f Douglas, J .) .
189 H ughes v. Superior Court, 339 U.S. 460, 463-464 (1950).
190 A d d it io n a lly , th e due process r ig h ts o f passed-over w h ite o f
ficers w e re ren de red nu g a to ry . T he C ity re fuse d to process any
appeal f ro m a ra c ia l p re fe ren ce pass-over. (S t. a t 31).
141
White officers are isolated and excluded from one-half of
the promotions available solely because they are white. Black
officers are preferred and given an employment benefit solely
because they are black. This process stigmatizes and iso
lates identifiable, individual white officers who are passed-over
and stigmatizes and insults blacks.19’
Unlike Swann, supra, where the Court corrected, “by a
balancing of the individual and collective interests, the con
dition that offends the Constitution” and acted “on the basis
of a constitutional violation” (402 U.S. at 16), the City has
not acted in response to a judicially determined constitutional
violation; and unlike United Jewish Organizations v. Carey,
supra, where the Court ruled that a state voter reapportion
ment plan implemented pursuant to a federal statute based
upon Congressional findings of the need for ameliorating voting
discrimination, was valid “as long as it did not violate the
Constitution, particularly, the Fourteenth . . . Amendment”
and where there was a determination that there was “no
fencing out of the white population from participation in the
political processes of the county” and where the plan “does
not have the purpose and will not have the effect of denying
or abridging the right to vote on account of racial color,” id,
at 245, 246, 241, the City did not act pursuant to legislative
findings and purpose, taking due care to safeguard the rights
of innocent identified people who would suffer adversely.
The City set as its goal a strict racial balance of 50/50 in
the police department, regardless of individual merit and
sought to achieve this goal by use of a racial classification.
The Equal Protection Clause commands the elimination of
racial barriers, not the creation of barriers to satisfy someone’s
theory as to how society ought to be organized. DeFunis v.
Odegarrd, supra, at 342 (1974) (Op. of Douglas, J. dissenting).
A racial balance program is merely a euphemism for invid
ious racial discrimination which prefers a specified percentage * •
’ 91 T h is p lacem e nt o f the “ w e ig h t o f g o ve rn m en t b e h in d ra c ia l
• • . separa tism ” can h a rd ly serve a b e n ig n o r co m p e llin g g o ve rn
m ent purpose. Yicfc W o v. H opkins, supra a t 374.
142
of a particular group merely because of its race. Such a
racial preference program is facially invalid and is discrimin
ation for its own sake. E.g., Loving v. Virginia, supra, at 11
(1967), Bakke, supra; Swann, supra; Spangler, supra.
Racial balance as both a cause of action and as a remedy
has been consistently rejected by the Supreme Court. In
Spencer v. Kugler, 404 U.S. 1027 (1972), a fg , 326 F.Supp.
1235 (D.N.J. 1971), the Court affirmed a three-judge district
court which held that a complaint, alleging that a failure to
achieve a racial balance among several school districts was a
violation of the Fourteenth Amendment, failed to state a claim
upon which relief could be granted. The lower Court held:
“[A] federal court is precluded . . . from imposing upon
school authorities the affirmative duty to cure racial im
balance in the situation of ‘de facto’ segregation described
herein.” 326 F. Supp. at 1243.
Similarly, the Supreme Court has ruled in Swann v. Char-
lotte-Mecklenburg Board of Education, supra, in rejecting the
concept that the Constitution requires any racial balance that:
“If we were to read the holding of the District Court to
require as a matter of substantive constitutional right,
any particular degree of racial balance or mixing, that
approach would be disapproved and we would be obliged
to reverse.” 402 U.S. at 24.192
In Cassell v. Texas, 339 U.S. 282, 286 (1950) the Court
rejected a theory that a jury, as a matter of constitutional right,
had to approximate the community as a whole. In Hughes
v. Superior Court, 339 U.S. 460, 463-464 (1950), the Court
reviewed a case where pickets sought to force an employer to
hire 50% black employees. In finding that a state could con
stitutionally enjoin the picketing involved there, the Court
determined that making the right to work dependent upon,
not the fitness for the work nor an equal right of opportunity,
192 M illiken v. B radley, supra, (1974); United States v. M ontgom ery
Board o f Education, 395 U.S. 225, 234-236 (1969).
143
but rather membership in a particular race would result in
a demand for discriminatory hiring on a racial basis by all
races.
The decisions in Spencer, Swann, Casselland Hughes which
unequivocally hold that there is no Constitutional right to
a racial balance approximating the community as whole,
thoroughly deny and render useless the City’s professed ra
tionale for use of the racial preference promotion plan, and
its corollary: perceived community relations.193
Once again, the City speaks in euphemisms. The so-called
compelling interest of better community relations is merely
a catch phrase for a form of stereotyping and “customer”
preference; whether or not black officers have a better rapport
with black citizens is constitutionally irrelevant and clearly
does not rise to the level of a compelling state interest.
First, there was no competent proof to support the claim
that white officers, as a class, were unable to relate to the
minority population194 or that blacks, by the sole virtue of
being black, could more effectively communicate with the
minority community and thereby gain greater cooperation
from the community. See, St. at 48-57. Secondly, the com
munity reaction or a “customer” preference does not justify
193 C ity B r ie f a t 133-144. O n appeal, the C ity equates th e ir “ op
e ra tiona l needs” w i th b e tte r “ c o m m u n ity re la tio n s ” . Thus, u n d e r the
C ity ’s lo g ic , b e tte r c o m m u n ity re la tio n s is an o p e ra tio n a l need w h ic h
the re fo re ju s tifie s th e d e n ia l o f equa l e m p lo ym e n t o p p o rtu n itie s to
w h ite c itizens w h o are presum ed to be un ab le to re la te to the b la ck
com m unity . T he n e t e ffect is th a t c o n s titu tio n a l r ig h ts are prem ised
upon an in fe ren ce upon an in ference.
194 T he C ity d id n o t exam ine th e a b il i ty o f passed-over w h ite o f
ficers to e ffe c tiv e ly com m unica te w ith the m in o r ity po pu la tio n . T h is
was a p re su m p tio n b y th e C ity . S ub s ta n tia l evidence c le a r ly in d ica te d
tha t such a p re su m p tio n was un founded. In th e co n te x t o f T it le V I I ,
such a s te reo type p re su m p tio n is n o t a llow ed. S ee , 29 C.F.R. § 1604.2
(a) (1 ) ; C ity o f L o s A n g e le s D ep a r tm e n t o f W a ter and P o w er, supra ,
98 S.Ct. 1370, 1375 (1978); M itch e ll v. M id -C o n tin e n t S p r in g Co.,
supra, at 1599; W e e k s v. S o u th e rn B e ll T e lep h o n e & T eleg ra p h Co.,
408 F.2d 228 (5 th C ir. 1969); J u r in k o v. W ieg a n d Co., 477 F.2d 1038
(3rd C ir. 1973); R o sen fe ld v. S o u th e rn Pacific Co., 444 F.2d 1219 (9 th
Cir. 1971); S p ro g is v. U n ited A ir lin es , Inc., 444 F.2d 1194, 1199 (7 th
Cir. 1971).
144
a racial classification.195 The stereotyping and reaction to
the presumed community preference is nothing more than a
mere fulfillment of the community’s presumed desires by
racially balancing the Department. However, consideration
of community reaction may not be used to vitiate or excuse
a violation of the Equal Protection Clause.
The City’s reliance upon the community reaction as a “com
pelling need” for a racial balance quota is nothing more than
an ingenious resurrection of the converse theory to the oft
interred argument by school officials in segregation cases that
a more effective desegregation plan cannot be implemented
for fear of community reaction which will result in a “white
flight” from the system.196
The courts have consistently ruled that while public in
terests should be taken into account in remedying unconsti
tutional conditions, public interest cannot override the vitality
of Constitutional principles. Brown v. Board of Education,
349 U.S. 294, 300 (1954); Monroe v. Board of Commissioners,
391 U.S. 450, 459 (1968).
As state in Cooper v. Aaron, 358 U.S. 1 (1958):
“ ‘It is urged that this proposed segregation will promote
the public peace by preventing race conflicts. Desirable
as this is, and important as is the preservation of the
public peace, this aim cannot be accomplished by laws
or ordinances which deny rights created or protected by
the Federal Constitution.’” 358 U.S. at 16.197
This Court has stated, “white flight . . cannot become
the higher value at the expense of rendering equal protection
195 U n d e r T it le V I I , custom er p re fe ren ce is n o t a ju s tifia b le oc
cu p a tio n a l q u a lifica tio n . S ee , 29 C.F.R. § 1604.1 (a ) (1 ) ( i i i ) ; Sprogis
v. U n ited A ir lin e s , Inc., supra , a t 1199 (7 th C ir. 1971); D iaz v. Pan
A m e r ic a n W o rld A irw a y s , Inc., 442 F.2d 385 (5 th C ir. 1971).
196 T he C o n s titu tio n condem ns “ d is c r im in a tio n , w h e th e r accom
p lish e d in g e n io u s ly o r in g e n u o u s ly ,” S m ith v. T exa s , 311 U.S. 128,
132 (1940).
1*7 S ee , U n ited S ta te s v. S co tla n d N e c k C ity B oard o f Education,
407 U.S. 484, 491 (1972); M organ v. K errig a n , 530 F.2d 401, 420-423
(1st C ir. 1976), cert, den., 426 U.S. 935, reh . den ., 429 U.S. 873 (1977).
145
of the laws the lower value.”198 Similarly, the Constitutional
rights of the white police officers to equal protection of the
law cannot be sacrificed due to a perceived reaction of the
minority community. Cf., Smith v. Board of Education of
Morrilton School District No. 32, 355 F.2d 770, 781-782 ( 8th
Cir. 1966), where the court rejected a claim by an all-white
school board that it should not have to hire black teachers
since they were perceived as not being able to have the same
rapport with white students as white teachers.
Indeed, the City also fails to show that there were no other
alternatives available that would have a lesser racial impact.199
As the Supreme Court stated in Kramer v. Union School Dis
trict, 395 U.S. 621 (1968), in reviewing classifications designed
to promote a state objective:
“[T]he classifications must be tailored so that the exclusion
of appellant and members of his class is necessary to
achieve the articulated state goal.” 395 U.S. at 632.200
There is no record evidence indicating that the flat numerical
quota for black promotions was tailored to serve the needs
of the black community. Indeed, there is no evidence or
198 M app v. B o a rd o f E duca tion o f C hattanooga , 525 F.2d 169, 171
(6 th C ir. 1975), q u o tin g 366 F.Supp. 1257, 1260 (E .D . Tenn. 1973).
199 T he S uprem e C o u rt has he ld th a t, a t least in school desegrega
tio n cases, a re m e d ia l p la n m u s t be fo rm u la te d in l ig h t o f “ o th e r
courses w h ic h appear open . . . to co n ve rt p ro m p tly to a system
w ith o u t a ‘W h ite school’ and a ‘N egro school’ , b u t ju s t as schools.”
G reen v. C o u n ty Sch o o l B oard o f N e w K e n t C o u n ty , 391 U.S. 430,
442 (1968); M onroe v. B oard o f C om m issioners, 391 U.S. 450, 459-460
(1968). L ike w ise , the C ity shou ld have re v ie w e d its a lte rn a tive s to
a rr iv e a t a p ro m o tio n a l system w ith o u t a b la c k l is t and a w h ite l is t
bu t one fa ir , n o n -d is c r im in a to ry p ro m o tio n lis t.
200 T he bu rdens p laced on the w h ite officers as a re s u lt o f the classi
fica tio n w e re n e ve r considered o r w ere c a v a lie r ly regarded. Even
in S w a n n , supra , w h e re an o v e rt v io la t io n was fou nd , a re m e d y
re q u ire d and bussing d e te rm ine d to be a “ n o rm a l and accepted to o l
of educa tiona l p o lic y ,” the C o u rt w a rn e d th a t th e burdens placed
on s tudents b y t ra v e lin g g re a t distances fo r extended tim es as p a r t
of a re m e d y m a y be ob jectionab le . 402 U.S. a t 29, 30-31. S ee , A u s tin
In d ep e n d en t Schoo l D istr ic t, supra , at 519. H e re th e re was a co m p le te
d e fa u lt b y the C ity to assess and redress the adverse im p a c t o f th e ir
quota.
146
assurance that the black officers so promoted under the quota
system are either trained, qualified or otherwise predisposed
for that goal or even serve the black community in a recog
nizable capacity. (St. at 49-53).
Certainly, there are more precise and reliable ways to
identify police officers who are genuinely interested in m in o r i ty
communities and their problems than by a racial classifica
tion.201
Further, the City’s racial classification quota makes no effort
to identify black officers as former alleged identifiable victims
of prior discrimination. Thus, the quota cannot even be
sustained as an attempt to “make whole” former victims of
discrimination.202
To justify the fiat racial quota at issue hereby invoking the
incantation that it serves a supposedly “benign” purpose of
remediation for a presumed “historical discrimination” ignores
the inherent unfairness of the burdens and stigmas which
accompany a system of allocating benefits and privileges solely
on the basis of race.
How can a system which has a purpose of preferring one
race, solely because it is a preferred race by those persons who
currently control that system, be said to be “benign”? How
can a racial classification system which deliberately and pur
posefully intends to exclude all members of one race from at
least one half of all supervisory employment positions be
deemed to have a “benign” purpose of remediation? At what
201 I t is iro n ic to no te th a t if , u n d e r the C ity ’s p lan , b lacks were
d e lib e ra te ly p laced on id e n tif ie d “ b la c k ” po lice p a tro ls in black
ne ighborhoods th e re is an a rg ua b le case th a t th is w o u ld constitu te
an e lem en t o f u n c o n s titu tio n a l ra c ia l d is c r im in a tio n . C f., U nited
S ta te s v. M o n tg o m ery C o u n ty B oard o f E duca tion , 395 U.S. 225 (1969);
S w a n n , supra , 402 U.S. 1 (1971).
202 T he reve rse o f th is th e o ry is also tru e . T h e re was no attem pt
b y the C ity to in su re th a t in noce n t, w h ite po lice officers w o u ld not
be b u rde ned b y the effects o f th e quota. C f., K ra m e r , supra , 395 U.S.
a t 632; W eb e r v. A e tn a C asu a lty & S u r e ty Co., 406 U.S. 164, 175
(1972); B a k k e , supra , at 2784 (o p in io n o f B ren na n , W h ite , M arshall
and B la c k m u n ).
147
point does remediation steal across the constitutional boundary
and become invidious retribution?203
The concept, that for white citizens of the United States,
both the promise and the protection of the Equal Protection
Clause is made dependent upon whether the discriminatory
exclusion and isolation practiced against them is for a “benign”
purpose is mind boggling at best and a perversion of the
Fourteenth Amendment at worst.
To enshrine some minorities as deserving of special benefits,
under the facts of this case, does not result in a defense of
minority rights against some presumed historic discrimination
but results in the judicial conundrum whereby the Equal
Protection Clause of the Fourteenth Amendment is interpreted
to favor the unequal treatment by some minorities over others.
Professor Bickel noted the self-contradiction of that view:
“The lesson of the great decisions of the Supreme
Court and the lesson of contemporary history have been
the same for at least a generation: discrimination on
the basis of race is illegal, immoral, unconstitutional,
inherently wrong, and destructive of democratic society.
Now this is to be unlearned and we are told that this is
not a matter of fundamental principle but only a matter
of whose ox is gored. Those for whom racial equality
was demanded are to he more equal than others. Having
found support in the Constitution for equality, they now
claim support for inequality under the same Constitution.
A. Bickel, The Morality of Consent, 133 (1975).204
203 T he m ere re c ita tio n o f a b e n ig n com pensatory purpose is no t
an au to m a tic sh ie ld against the u n d e r ly in g purposes o f th e scheme.
B akke, supra, a t 2783; Califano v. W ebster , supra, a t 317.
204 See also, N . G lazer, A ffirm a tiv e D is c rim in a tio n , 200-201 (1975).
CONCLUSION
The conclusion is inescapable that the City systematically
embarked on a scheme or plan to racially balance the Detroit
Police Department in proportion with the racial balance of
the Detroit community. The rationalizations advanced by
the City that the racial preference promotion plan was an
“operational need” of compelling state interest does not
escape the inexorable conclusion that the plan was purposeful,
deliberate exclusion of identifiable, better qualified white
officers from promotional positions which were freely given
to black officers because of their race, solely for the purpose of
pandering to community perceptions.
The employer cannot be allowed to foist the burdens of
real or imagined wrong-doings upon innocent, identified
white officers. The racial preference promotion plan cannot
be allowed to stand while the identified, white officers remain
without a remedy.
For all of the foregoing reasons, the Order of the District
Court of the Eastern District of Michigan should be affirmed.
Respectfully submitted,
NUSSBAUM, McEVOY & ADLER
By:
Walter S. Nussbaum
Sheldon H. Adler
Alan B. Posner
Attorneys for Plaintiff-Appellee
Detroit Police Officers Association
20833 Southfield Road, Ste. 100
Southfield, Michigan 48075
(313) 569-2666
149
RILEY AND ROUMELL
By:
John F. Brady
Thomas M. J. Hathaway
Attorneys for Plaintiff-Appellees
William Morgan, Brian Brunett,
Donald Prince and the Class
that they represent
720 Ford Building
Detroit, Michigan 48226
(313 ) 962-8255
OF COUNSEL:
PAXTON & SEASONGOOD
By:
Donald J. Mooney, Jr.
1700 Central Trust Tower
Cincinnati, Ohio 45202
(513 ) 352-6760
Dated: October 17, 1978
EXHIBIT I
THE CITY’S BAD FAITH IN RESPONDING TO THE
DISCOVERY ORDERS OF THE DISTRICT COURT
Throughout this litigation, the Plaintiffs were forced to
obtain orders compelling production to obtain even minimal
discovery.1 On July 1, 1976, the individual Plaintiffs filed a
Motion to Compel the production of various requested records,
including:
(1) All documents, records, reports and information
concerning the criteria for promotion to sergeant
used by the Detroit Police Department prior to
December of 1973;
(2) Any and all reports or studies regarding the validity
or racial bias of the promotion examinations ad
ministered in the years 1971-1976;
(3) Any and all records, reports and studies regarding
the validity of the promotional examinations ad
ministered from the years 1971 through 1976.
On August 17, 1976 the City was ordered by the District
Court to provide the Plaintiffs with this information. This
information was not supplied to the Plaintiffs prior to trial.
The next Discovery Order was entered after the consolida
tion. On October 29, 1976, the individual Plaintiffs filed a
second Request for Production of Documents which requested:
(1) The Minutes of the Executive Sessions of the
Board of Police Commissioners;
(2) Examinations for promotions from the rank of pa
trolman to the rank of sergeant given in December
1973 and on November 17, 1974;
1 See P la in t if fs ’ “ S ta tem e n t o f D iscove ry Ite m s Requested a n d /o r
O rdered T h a t H a ve N o t Y e t Been F u rn ish e d b y D e fendan ts” , pp. 2-3
file d on A u g u s t 15, 1977, a fte r t r ia l had begun. The C ity never
file d an y d e n ia l to th is s ta tem ent and any e xp la n a tio n o f the C ity
is con ta ined in th e A u g u s t 15, 1977 T ra n s c r ip t o f Proceedings.
i-Ex.
2-Ex,
(3) All statements and materials submitted to the Equal
Employment Opportunity Commission and the
Michigan Civil Rights Commission.
The City did not comply with this request and a Motion to
Compel was filed on February 7, 1977. On April 20, 1977,
Judge Kaess ordered the City to provide the requested infor
mation and, to further provide any and all documents sub
mitted to the Law Enforcement Assistance Administration
(LEAA) regarding the implementation of an “Affirmalive
Action” program relating to employment and promotion within
the Detroit Police Department. Yet, the Affirmative Action
program, submitted to the LEAA was not produced to Plain
tiffs until August 12, 1977, four (4) days after trial had
commenced. (1046a; 1001a.19).
In response to the request for any further correspondence
submitted to or received from the LEAA, the City provided
only three pieces of correspondence. (159b-l85b). Plain
tiffs’ counsel had also made a request of the LEAA, pursuant
to the Freedom of Information Act, to determine whether
the LEAA had further materials from the City. The response
of the LEAA (882b-893b), revealed that a large volume of
data supplied to the LEAA by the City had not been supplied
to Plaintiffs despite the Discovery Order.
On April 29, 1977, another Discovery Order was entered
that required the City to provide Plaintiffs:
(1) Entry level test materials for employment from
1971 through the present;
(2) Copies of entry level tests for employment in the
Detroit Police Department from 1971 to the present;
(3) Answer Sheets, scoring sheets, administration pro
cedures, computer scoring print-outs and any
general or technical descriptions of the tests for
employment in the Detroit Police Department from
1971 through the present.
3-Ex.
As of August 15, 1977 these items had not yet been fully
provided to Plaintiffs.2
An additional Discovery Order concerned Interrogatories
and Requests for Production which were submitted by Plain
tiffs on March 15, 1977. These Interrogatories requested
information relative to:
(1) Copies of the Department’s Affirmative Action pro
gram (Interrogatory 1J);
(2) Copies of any findings of fact or letters of determin
ation relating to racial discrimination in the Detroit
Police Department (Interrogatory IK);
(3) Information relative to the number of police offi
cers required to engage in undercover surveillance
(Interrogatories 9-14);
(4) Information relative to whether or not the promo
tional examinations for the rank of sergeant were
job related (Interrogatories 19-20);
(5) Any and all special census data available to the
City (Interrogatories 29-30);
(6) Information relative to the cut-off score in the
promotional examinations (Interrogatories 34-36).
In addition, the Interrogatories 25, 26 and 27 requested the
information and statistics relative to the number of applications
received from residents within the City of Detroit and outside
the City during the previous 10 years.
On May 17, 1977, the City filed its Answers to Interroga
tories Directed to Defendants. These Answers either stated
(erroneously) that the information had been provided by
the City, that the information was confidential, or that the
City was unwilling to provide same. In response to Interroga
2 S ee, P la in t if fs ’ S ta tem e n t o f D iscove ry Ite m s N o t Y e t F u rn ish e d by
Defendants, file d 8/15/77.
4-Ex.
tories Nos. 25-27, the City responded by stating that the
information was “unavailable”.3
On May 19, 1977, on motion of the Plaintiffs, Judge Kaess
entered another Order Compeling Answers to these Inter
rogatories or, in the alternative, limiting testimony and proofs,
to be offered by the City on issues relevant to the Interroga
tories.
As the trial date approached, Plaintiffs were again required
to file on June 29, 1977, a Motion to Compel Production or,
in the alternative to limit the testimony and evidence available
to Defendants. This request demanded, inter alia, materials
relative to:
(1) Documents regarding the testimony of William L.
Hart relative to service ratings and studies on
service ratings relative to any alleged racial impact
or bias;
(2) Service ratings and related materials of officers who
appeared on Promotional Personnel Orders, Nos.
74-108, 74-193, 75-6, 75-253, and 76-441;
(3) Material regarding educational components, vet
eran’s preference and oral board components of the
promotional models;
(4) Legal memoranda to the Board of Police Com
missioners relative to the propriety and compulsion
to conduct the racial preference program;
(5) Information relative to Defendants’ claimed defense
of business necessity and bona fide occupational
qualification;
(6) All information relative to the computerized test
scoring and weighting system in scoring entry level
and promotional examinations in the City of Detroit
since 1970;
(7) Census data relative to affirmative action in hiring.
3 S ee, P la in t if fs ’ S ta tem e nt o f D isco ve ry Ite m s N o t Y e t Furnished
b y D efendants, file d 8/15/77.
5-Ex.
On July 8, 1977, Judge Kaess was forced to enter a fourth
Order for Production, requiring Defendants to provide the
information previously set forth in its Orders of August 17,
1976, April 20, 1977, April 29, 1977, and May 19, 1977.
The July 8th, 1977 Order required that all information be
submitted no later than July 22, 1977. On July 22, 1977,
counsel for the City filed a Status Report which indicated that
much of the information could be obtained from the Depart
ment, even though the Order required the Defendants to
provide same to Plaintiffs.
As confirmed by the unrebutted testimony of Charles
Guenther, Plaintiffs’ expert, much of this information had not
been supplied by Defendants as ordered. (931a-948a, 957a).
On August 12, 1977, the Court again ordered that Defendants
produce requested information. (970a). In so ordering, the
Court stated: “I don’t understand why you won’t produce
certain things which you are requested to produce. I don’t
understand it.” (962a).
On August 15, 1977, the Plaintiffs filed a statement with
the Court describing the materials and information not yet
produced by the Defendants. The Defendants never re
sponded to this statement and never produced the preponder
ance of materials requested by the Plaintiff and ordered to
be produced by the Court. The City’s attitude is best demon
strated by the following dialogue regarding the information
relative to resident and non-resident employment applications
previously requested by the Plaintiffs. These materials were
covered by the May 19, 1977 Order. As indicated below,
the City still refused to make the information available during
the trial:
Mr. Nussbaum: (Item u), Your position is you can’t and/
or won’t provide the information in (u ), is that correct?
Mr. Andary: I think the relevancy is so tenuous at this
time, that I think we will have to have something before
the Court in terms of making a decision. Coincidently,
6-Ex.
Mr. Nussbaum, I have been informed that they may show
up in the monthly reports that were kept. So to that
extent, if they do, then we have that data and we will,
provide it to you.” (1001a.7-1001a.8).
On July 11, 1977, Plaintiffs also served upon the City a
Request for Admissions pursuant to Rule 36, asking Defen
dants to admit the authenticity of a letter from Mr. H. William
Rine, Acting Director of the Office of Civil Rights Compliance,
LEAA, relative to the purported cut-off of federal funds. Since
the City did not answer this request as required by the Rule,
the letter was admitted over Defendants’ objection. (877b-
879b, 1377a. l-1377a.2).
On August 31, 1977, Judge Kaess allowed Plaintiffs the op
portunity to amend their Request for Admissions. ( 1432a. 1-
1433a.2). The City thereafter answered these new requests
and, inter alia, effectively denied the authenticity of Mr. Rine’s
letter. This necessitated the taking of the deposition of Mr.
Rine in Washington, D.C. on October 4, 1977. The depo
sition was admitted on December 9, 1977 essentially to
authenticate the letter and establish that there had been, in
fact, no threat of cut-off of City funds. (12/9/77, p. 9).
The City’s refusal to cooperate in discovery placed Plaintiffs
at an unfair disadvantage throughout the trial. The record
is replete with evidence of materials improperly withheld by
counsel for the City. As an example, on August 10, 1977, Mr.
Andary sought to introduce at trial various promotional orders
for the year 1970 (844a.l-847a). The proposed Exhibits had
not been produced in response to the various Discovery Orders,
and had not been listed in the Pre-Trial Statement required
by the District Court.
On August 11, 1977, Inspector Caretti testified that he had
prepared a written study of the “impact of service ratings by
race” for the years 1968 through 1973. The report was in
7-Ex.'
the possession of counsel for the City, had been reviewed by
Mr. Caretti prior to his testimony, and was certainly relevant.
But, it was not produced under the various Discovery Orders
directed to the City. (897a). Mr. Caretti also described
other records in his files which were relevant to the litigation,
requested by the Plaintiffs, but not produced by the City.
(898a-899a). These records including the answers for the
various promotional exams and a written affirmative action
program submitted to the Federal Government, were improp
erly withheld or described as unavailable by the City .
Another example of the City’s attitude toward discovery
was the delay of Mr. Andary in producing either to Plaintiffs’
counsel, or to the Court for in camera inspection, various writ
ten legal opinions provided by him to the City regarding the
racial preference plan. After failing to produce the documents
prior to trial, despite the various discovery requests and
orders, Mr. Andary admitted at trial on September 15, 1977
that “I just neglected to bring them each time for the past
week-and-a-half.” ( 1542a-1544a). Other portions of the
trial transcript revealed that the City simply refused to pro
duce relevant materials readily accessible to counsel for the
City. (See e.g., 8/24/77, p. 58-59, Statistics Regarding Service
Ratings and Examinations prior to 1973; 8/24/77, p. 94, 750b-
751b, was not previously produced to the Plaintiffs; 916a-
917a, Regression Equation requested but not produced by the
City.)
The City even failed to disclose the existence of, let alone
produce, a transcript of a key Board of Police Commissioners
meeting. The existence of the transcript came to light only
after Chief Tannian described it in his testimony (8/26/77",
pp. 70-73).
The City’s repeated attempts to sandbag the Plaintiffs by
refusing to produce relevant information readily available to
it has clearly added to the expense and time consumed by
this litigation and has demonstrated a contempt for reasonable
8-Ex.
orders of the District Court. The City now argues on appeal
that the Plaintiffs have not met various burdens of proof in
the District Court. This argument should be examined in
the context of the City’s refusal to timely produce information
available only to the City which was required by the Plaintiffs
in the presentation of their case.
9-Ex.
EXHIBIT II
Caucasian Officers Ranked 81 to 150 Who
Were Passed Over For Promotion From
Personnel Order 74-108 (lb-4b)
Position Name
81 Deneweth, Edward A.
82 Saad, Michael C.
83 Dziuk, Leonard E.
87 Prince, Donald R.
89 Duda, Thomas R.
90 Beach, Charles F.
92 Maccarone, Ralph L.
93 Langewicz, Edward E.
94 Birdseye, William F.
95 Barba, Gerald B.
96 Morse, John I.
98 Carroll, Gerald R.
99 Klukowski, Anthony J.
100 Marshall, Evan P.
101 Lapum, Francis G.
102 Sumeracki, Gary F.
103 Gratopp, William C.
104 Ramsey, Stephen J.
105 Emerick, Thomas T.
106 Osbum, Neil H.
107 Hodak, Richard R.
108 Carlson, Richard A.
109 Sylvester, Donald W.
110 Long, Glen W.
111 Riddle, Harry G.
112 Yankovich, Mato J.
113 Harris, Jr., Harvey T.
114 Farris, Linnon C.
115 Stano, Leonard
Position Name
116 Stempin, Ronald J.
118 Osborn, Daniel R.
119 Par low, Wayne M.
120 Brunett, Brian J.
121 Gunderson, Elwood J.
122 Troost, Howard W.
123 Berger, Bruce C.
125 Morris, Robert C.
126 Kocis, Robert D.
128 Walker, Suzanne F.
130 Schihl, Kenneth J.
131 Vertin, Jr., William J.
132 Bolton, William J.
134 Eveleth, Charles F.
135 Belanger, James J.
136 Hix, Carter A.
137 Morgan, William A.
138 Schwartzberg, Jacob
139 Hall, Jon J.
141 Mager, John D.
142 Hope, John P.
144 Stroker, Edward M.
145 Fleming, Donald L.
146 Bach, Garry
147 Vukovich, Joseph J.
148 Vandermeulen,
Alphonse F.
149 Presley, William
150 Merte, Gary C.
EXHIBIT III
Caucasian Officers Ranked 71 to 127 Who
Were Passed Over For Promotion From
Personnel Order 75-352 (14b-19b)
10-Ex.
Position Name
71 Buterakos, Gust C.
72 Hunn, Thomas W.
73 Lindstrom, Jr., Paul A.
75 Connell, Ronald L.
77 iMeGuire, Herbert C.
78 Barba, Gerald B.
79 Gratopp, William C.
80 Saad, Michael C.
81 Kowalczyk, Bryan W.
82 Sauvage, Jr., Charles C.
83 McLean, Jr., Roger D.
84 Moore, Arthur F.
85 Hall, Jon J.
86 Purrington, James P.
87 Bajercius, Arvidas
88 Balmas, Bruce B.
89 Laube, Jr., Paul W.
91 Freigruber, Edward P.
92 Rachas, Robert S.
93 Hix, Carter A.
94 McKinnon, Donald W.
95 Pierce, Richard L.
96 Morris, Robert C.
97 Sieloff, Norman T.
98 Schihl, Kenneth J.
Position Name
99 Petrimoulx, Kevin J.
100 Thompson, Jerry W.
101 Howell, Larry W.
105 Lashbrook, James T.
106 Rizk, Raymond J.
107 Keck, James W.
108 Joseph, Jr., Martin
109 Parlow, Wayne M.
110 Coraci, Vito J.
111 Kopec, David L.
112 Martin, Kenneth
114 Collier, Thomas C.
115 Eveleth, Charles F.
116 VanDerMeulen,
Alphonse F.
118 Obidzinski, Robert G.
119 MacKenzie, Donald J.
120 Birdseye, William F.
121 Cockell, James F.
122 Graves, Richard A.
123 Craddock, Jordan F.
124 Yoakum, Hadley G.
125 Hudson, Rodney D.
126 Marvin, Ronald E.
127 Mestdagh, Ronald P.
11-Ex.
EXHIBIT IV
Caucasian Officers Ranked 43 to 70 Who
Were Passed Over for Promotion From
Personnel Order 78-441 (24b-29b)
Position Name
43 Ferency, Phillip j.
45 Rachas, Robert S.
46 Balmas, Bruce B.
47 Marcinkowski,
George P.
49 Maynard, Danny R.
51 Malinowski, David A.
52 Kopp, Kenneth W.
54 Schihl, Kenneth S.
56 Porter, William C.
Position Name
58 LeValley, Mark S.
60 Cesarz, Gerald J.
62 Croft, William R.
64 Pierzinski, James J.
66 Stano, Leonard
67 Hope, John P.
68 Williamson, Gary E.
69 Piersante, Vincent W.
70 Hamlin, Gary E.