United States v. Paradise, Jr. Brief Amici Curiae in Support of Respondents

    No. 85-999

IN THE

Supreme dmtrt of tlj? ^ntt^ States
OCTOBER TERM, 1986

U nited States of A merica, 

v.

P hillip P aradise, Jr., et al.,

Petitioner,

Respondents.

On W rit of Certiorari to the 
U nited States Court of A ppeals for the Eleventh C ircuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW, THE AMERICAN CIVIL 
LIBERTIES UNION, THE AMERICAN JEW ISH 

CONGRESS, THE MEXICAN AMERICAN LEGAL 
DEFENSE AND EDUCATIONAL FUND,

THE NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE,

THE NATIONAL WOMEN’S LAW CENTER,
THE PUERTO RICAN LEGAL DEFENSE AND 

EDUCATION FUND, WOMEN EMPLOYED, AND THE 
WOMEN’S LEGAL DEFENSE FUND 

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS 
PHILLIP PARADISE, JR., E T AL.

Harold R. Tyler, Jr.
James Robertson 

Co-Chairmen 
N orman Redlich 

Trustee
William L. Robinson 
Richard T. Seymour 
Stephen L. Spitz 

Lawyers’ Committee for 
CrviL Rights U nder Law 

1400 Eye Street, N.W.
(Suite 400)
Washington, D.C. 20005 
(202) 371-1212

September 30, 1986

R obert D. Joffe 
Counsel o f Record
T homas D. Barr 
Robert F. M ullen 
D aniel J. Leffell 
A lden L. A tkins 
M ark A. S irota

Cravath , Swaine & M oore 
One Chase M anhattan Plaza 
New York, New York 10005 
(212) 422-3000

Attorneys fo r  Amici Curiae 

Counsel continued on inside cover



Jack D. N ovik 
American Civil 
Liberties Union 

132 West 43rd Street 
New York, New York 10036 
(212) 944-9800

Theresa Fay Bustillos 
Antonia Hernandez 

Mexican American 
Legal D efense and 
Educational Fund, Inc.

634 South Spring Street 
(11th Floor)
Los Angeles, California 90014 
(213) 629-2512

Suzanne E. Meeker 
Marcia D. Greenberger 

N ational Women’s Law 
Center

1616 P Street, N.W. 
Washington, D.C. 20036 
(202) 328-5160

D onna R. Lenhoff 
Women Employed 

5 South Wabash 
(Suite 415)
Chicago, Illinois 60603 
(312) 782-3902

Lois Waldman 
Marc D. Stern 

American Jewish Congress 
15 East 84th Street 
New York, New York 10028 
(212) 879-4500

Grover Hankins
N ational Association 
for the A dvancement 
of Colored People 

4805 Mount Hope Drive 
( Room 501)
Baltimore, Maryland 21215 
(301 ) 358-8900

Linda Flores 
Kenneth Kimerling 

Puerto Rican Legal D efense 
and Education Fund, Inc.

99 Hudson Street
New York, New York 10013
(212) 219-3360

Judith L. Lichtman 
Claudia W ithers

Women’s Legal D efense Fund 
2000 P Street, N.W.
(Suite 400)
Washington, D.C. 20036 
(202) 887-0364



TABLE OF CONTENTS

Table of Authorities ............................................................... iii
Consent of the Parties............................................................  1
Interest of Amici Curiae......................................................... 2
Statement of the Case........................................................... 4
Summary of Argument.........................................................  6
Argument....................................................................................  9

I. The Continued Exclusion of Blacks from the 
Upper Ranks of the State Police Is an Effect of 
Prior D iscrimination Against Blacks. Eradica­
ting Such Lingering Effects of D iscrimination
Is a Compelling G overnmental Interest............... 9
A. The Governmental Interest Is Not Merely in 

Stopping Discrimination, but Also in Eradicat­
ing the Lingering Effects of Past Discrimination. 11

B. The Record Demonstrates That the Depart­
ment Is Permeated with Discrimination................  13
1. Discrimination in hiring limits the promo­

tional opportunities of blacks, particularly 
when the employer promotes solely from 
within............................................................... 14

2. The record contains findings of dis­
crimination in promotions.............................  15

3. The Department has a pervasive in­
stitutional bias against blacks.......................... 16

C. An Additional Effect of Discrimination Is a Less
Responsive and Less Effective Police Force.......  18

II. The December 1983 Order Is a Sufficiently
N arrowly Tailored Means to Effectuate the 
Compelling Governmental Interest in Eradica­
ting the Lingering Effects of Past D is­
crimination...................................................................  19
A. The December 1983 Order Is More Efficacious

than a 25% Ratio in Eradicating the Effects of
Past Discrimination.................................................. 20
1. The December 1983 order is aimed at

eradicating the institutional bias.....................  20

PAGE



2. The December 1983 order is properly de­
signed to encourage the Department to 
implement a lawful promotional procedure 24

B. The December 1983 Order Is Less Intrusive on
the Department and Less Burdensome on 
Whites than the Alternatives Proffered by the 
Government............................................................ 25

C. The December 1983 Order Does Not Unneces­
sarily Trammel the Legitimate Interests of 
Whites.....................................................................  27

Conclusion.............................................................................  30

ii

PAGE



Ill

TABLE OF AUTHORITIES
Cases page

Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975).....................................................................  17,21

Association Against Discrimination in Employment,
Inc. v. City o f Bridgeport, 647 F.2d 256 (2d Cir.
1981), cert, denied, 455 U.S. 988 (1982)............  11

Berkman v. City o f New York, 705 F.2d 584 (2d 
Cir. 1983)...............................................................  11

Boston Chapter, NAACP v. Beecher, 504 F.2d 1017 
(1st Cir. 1974), cert, denied, 421 U.S. 910
(1975) ................................................................... 23

Boston Chapter, NAACP  v. Beecher, 679 F.2d 965
(1st Cir. 1982)........................................................  19,28

Bratton v. City o f Detroit, 704 F.2d 878 (6th Cir.
1983), cert, denied, 464 U.S. 1040 (1984)..........  23

Bridgeport Guard, Inc. v. Bridgeport Civil Serv.
Comm., 482 F.2d 1333 (2d Cir. 1973)................... 19

Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971)
(en banc), cert, denied, 406 U.S. 950 (1972)........  23

Detroit Police Officers’ Ass’n v. Young, 608 F.2d 
671 (6th Cir. 1979), cert, denied, 452 U.S. 938 
(1981)...................................................................... 14,19,29

Ensley Branch, NAACP  v. Seibels, 13 Empl. Prac.
Dec. (CCH) H 11,504 (N.D. Ala. 1977), aff’din  
relevant part, 616 F.2d 812 (5th Cir.), cert, 
denied, 449 U.S. 1061 (1980)................................  9

Franks v. Bowman Transp. Co., 424 U.S. 747
(1976) ................................................................... 22,29

Green v. County School Bd., 391 U.S. 430 (1968)... 11
Griggs v. Duke Power Co., 401 U.S. 424 (1971).....  15
Guardians Ass’n o f the New York City Police Dep’t,

Inc. v. Civil Serv. Comm., 630 F.2d 79 (2d Cir.
1980), cert, denied, 452 U.S. 940 (1981)............. 11, 24



IV

Hazelwood School Dist. v. United States, 433 U.S.
299 (1977)..................................................... .......-  16,17,23

Houser v. Hill, 278 F. Supp. 920 (M.D. Ala. 1968) 17
International Bhd. o f Teamsters v. United States,

431 U.S. 324(1977).............................................. 7,16,22,
23

Keyes v. School Dist. No. 1, 413 U.S. 189 (1973).... 14
Kirkland v. New York State Dep’t o f Corrections,

711 F.2d 1117 (2d Cir. 1983), cert, denied, 465
U.S. 1005 (1984)...................................................  29

Local 93, In t’l Ass’n o f Firefighters v. City o f
Cleveland, 106 S. Ct. 3063 (1986)........................  8

Local 35, In t’l Bhd. o f Elec. Workers v. City of 
Hartford, 462 F. Supp. 1271 (D. Conn. 1978), 
aff’d, 625 F.2d 416 (1980), cert, denied, 453
U.S. 913 (1981).....................................................  29

Local 28, Sheet Metal Workers’ In t’l Ass’n v.
EEOC, 106 S. Ct. 3019 (1986).............................  8-13, 16,

20-23
Louisiana v. United States, 380 U.S. 145 (1965).... 7, 21
McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973).....................................................................  12
Morgan v. Kerrigan, 530 F.2d 431 (1st Cir.), cert.

denied, 426 U.S. 935 (1976).................................  23
NAACP  v. Allen, 340 F. Supp. 703 (M.D. Ala.

1972), aff’d, 493 F.2d 614 (5th Cir. 1974).........  4, 6, 14
NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974)......  13, 19, 29
Paradise v. Prescott, 580 F. Supp. 171 (M.D. Ala.

1983)........................................................................ 5,15
Paradise v. Prescott, 585 F. Supp. 72 (M.D. Ala.

1983), a ff’d, 161 F.2d 1514 (11th Cir. 1985),
cert, granted, 106 S. Ct. 3331 (1 9 8 6 )................... 5, 6, 12,

15,21,24
Paradise v. Prescott, 767 F.2d 1514 (11th Cir.

1985), cert, granted, 106 S. Ct. 3331 (1 9 8 6 )......  6, 13, 17,
18, 23

Paradise v. Shoemaker, 470 F. Supp. 439 (M.D.
Ala. 1979)...............................................................  5,15,21

PAGE



V

Pennsylvania v. Rizzo, 13 Fair Empl. Prac. Cas.
(BNA) 1475 (E.D. Pa. 1975)..............................  29

Regents o f the Univ. o f California v. Bakke, 438 
U.S. 265 (1978).....................................................  10,11,29

Riles v. M.N.C. Corp., 750 F.2d 867 (11th Cir.
1985)........................................................................ 17

Rowe v. General Motors Corp., 457 F.2d 348 (5th 
Cir. 1972)...............................................................  17

Swann v. Charlotte-Mecklenburg Bd. o f Educ., 402 
U.S. 1 (1 9 7 1 ).........................................................  11

Talbert v. City o f Richmond, 648 F.2d 925 (4th 
Cir. 1981), cert, denied, 454 U.S. 1145 (1982).... 19

United States v. Bethlehem Steel Corp., 446 F.2d 
652 (2d Cir. 1971)................................................. 29

United States v. City o f Buffalo, 633 F.2d 643 (2d 
Cir. 1980)...............................................................  23

United States v. City o f Chicago, 549 F.2d 415 (7th 
Cir.), cert, denied, 434 U.S. 875 (1977)............... 23

United States v. City o f Chicago, 663 F.2d 1354 
(7th Cir. 1981) (en b an c)....................................  19

United States v. Jefferson County, 28 Fair Empl.
Prac. Cas. (BNA) 1834 (N.D. Ala. 1981), aff’d,
720 F.2d 1511 (11th Cir. 1983)............................  14

United States v. Louisiana, 225 F. Supp. 353 (E.D.
La. 1963), a ff’d, 380 U.S. 145 (1965).................. 9

United States v. N.L. Indus., Inc., 479 F.2d 354 
(8th Cir. 1973).......................................................  23

United Steelworkers o f America v. Weber, 443 U.S.
193 (1979)..............................................................  8,22,26

Williams v. Vukovich, 720 F.2d 909 (6th Cir.
1983)........................................................................ 14, 18, 19,

29
Williams v. Wallace, 240 F. Supp. 100 (M.D. Ala.

1965)........................................................................ 16
Wygant v. Jackson Bd. o f Educ., 106 S. Ct. 1842

(1986)...................................................................... 8-11,14,18
19, 25,27,28

PAGE



VI

PAGE

Other Authorities

D. Bell, Race, Racism and American Law (2d ed.
1980)........................................................................ 16, 17

President’s Commission on Law Enforcement and 
Administration of Justice, Task Force Report:
The Police (1967)..................................................  18,19

President’s Remarks to Congress, 1 Weekly Comp.
Pres. Doc. 52 (Aug. 6, 1965)................................  17

Remarks of Wm. Bradford Reynolds before the 
Committee on Employment and Labor Rela­
tions Law of the Litigation Section and the
Equal Employment Opportunity Committee of 
the Labor and Employment Law Section of the
American Bar Association (Aug. 12, 1986).......  8

Schwarzschild, Public Law By Private Bargain:
Title VII Consent Decrees and the Fairness o f 
Negotiated Institutional Reform, 1984 Duke L.J.
887............................................................................  22-24

S. Rep. No. 415, 92nd Cong., 1st Sess. (1971).......  18
U.S. Commission on Civil Rights, Who is Guarding 

The Guardians? (1981).......................................... 18



IN THE

Supreme (Eimrt at %  Wnxtvh Btntaa
OCTOBER TERM, 1986

United States of America, 

v.
Phillip Paradise, Jr., et al.,

Petitioner,

Respondents.

On Writ of Certiorari to the 
United States Court of Appeals for the Eleventh Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW, THE AMERICAN CIVIL 
LIBERTIES UNION, THE AMERICAN JEW ISH 

CONGRESS, THE MEXICAN AMERICAN LEGAL 
DEFENSE AND EDUCATIONAL FUND,

THE NATIONAL ASSOCIATION FOR THE 
ADVANCEMENT OF COLORED PEOPLE,

THE NATIONAL WOMEN’S LAW CENTER,
THE PUERTO RICAN LEGAL DEFENSE AND 

EDUCATION FUND, WOMEN EMPLOYED, AND THE 
WOMEN’S LEGAL DEFENSE FUND 

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS 
PHILLIP PARADISE, JR., E T  AL.

CONSENT OF THE PARTIES
Petitioner the United States of America (the “Govern­

ment” ) and Respondents Phillip Paradise, Jr., et al., the 
Alabama Department of Public Safety (the “Department” ) 
and Intervenors-Respondents ( “Intervenors” ) have consented 
to the filing of this brief. Their letters of consent are being filed 
separately herewith.



2

INTEREST OF AMICI CURIAE
The Lawyers’ Committee for Civil Rights Under Law 

(“Lawyers’ Committee” ) is a nationwide civil rights organiza­
tion that was formed in 1963 at the request of President 
Kennedy to provide legal representation to blacks who were 
being deprived of their civil rights. The national and local 
offices of the Lawyers’ Committee have represented the inter­
ests of blacks, Hispanics and women in hundreds of class 
actions relating to employment discrimination, voting rights, 
equalization of municipal services and school desegregation. 
The Lawyers’ Committee participated in this case as an amicus 
curiae below in the Court of Appeals.

The American Civil Liberties Union is a nationwide, 
nonpartisan organization of over 250,000 members dedicated 
to protecting the fundamental rights of the people of the United 
States.

The American Jewish Congress is a national organization 
of American Jews founded in 1918 and concerned with the 
preservation of the constitutional rights of all Americans. It has 
vigorously opposed racial and religious discrimination in em­
ployment, education, housing and public accommodations and 
has supported programs to increase opportunities for dis­
advantaged minorities to speed the day when all Americans 
may enjoy full equality without regard to race.

The Mexican American Legal Defense and Educational 
Fund, Inc., is a national civil rights organization established in 
1967. Its principal objective is to secure, through litigation and 
education, the civil rights of Hispanics living in the United 
States. Its attorneys have represented Hispanics in numerous 
employment discrimination cases.

The National Association for the Advancement of Colored 
People is a nonprofit corporation. Its principal objectives 
include promoting equality of rights, eradicating racial prej­
udice among the citizens of the United States and securing for 
them increased employment opportunities according to their 
ability.



3

The National Women’s Law Center is a nonprofit legal 
advisory organization dedicated to the advancement and 
protection of women’s rights and to the corresponding elimina­
tion of sexual discrimination from all facets of American life. 
Since 1971, it has worked to secure equal employment opportu­
nity through full enforcement of the civil rights laws and the 
implementation of effective remedies for racial and sexual 
discrimination.

The Puerto Rican Legal Defense and Education Fund, 
Inc., is a national organization dedicated to protecting and 
furthering the civil rights of Puerto Ricans and other Hispanics.

Women Employed is a national organization of working 
women. It assists working women facing sexual discrimination 
and monitors the enforcement activities and policies of the 
Equal Employment Opportunity Commission and the Office of 
Federal Contract Compliance concerning a broad range of 
employment discrimination issues.

The Women’s Legal Defense Fund is a nonprofit organiza­
tion founded in 1971 to advance women’s rights. It represents 
women in employment discrimination litigation, operates an 
employment discrimination counselling program, conducts pub­
lic education and represents women’s interests before the Equal 
Employment Opportunity Commission and other Federal 
agencies. A major priority for the fund is its project on Women 
of Color. In this pursuit of equality for both women and 
minorities, the Fund is committed to the use of affirmative 
action.

Amici conduct extensive litigation to eliminate employ­
ment discrimination, representing employees in both the gov­
ernmental and the private sectors. In some of these cases, 
courts have entered consent decrees or adjudicated decrees that 
provide race- and sex-conscious hiring and promotional goals to 
remedy employers’ past discrimination. The position argued by 
the Government, if adopted in full, would severely undermine 
the relief amici have obtained in these decrees. More impor­
tantly, such a result would straitjacket the courts and public



4

employers in their efforts to eradicate the lingering effects of 
prior discrimination. Although less drastic measures will in 
many cases be sufficient, some cases, including egregious cases 
like the instant one, have taught amici that the lingering effects 
of discrimination cannot always be eradicated without the very 
sort of race-conscious relief approved below.

STATEMENT OF THE CASE1
This case arises from litigation commenced in 1972 

challenging the discriminatory employment practices of the 
Alabama Department of Public Safety (the “Department” ) in 
the state police force. In 1972, the district court found that the 
Department had engaged in a “blatant and continuous pattern 
and practice of discrimination” which had “permeated [its] 
employment policies”. NAACP  v. Allen, 340 F. Supp. 703, 705 
(M.D. Ala. 1972), a ff’d, 493 F.2d 614 (5th Cir. 1974). This 
finding was based in part on the “unexplained and unexplain­
able” fact that the Department had never employed a black 
state trooper in its 37-year history. 340 F. Supp. at 705. The 
district court (1) enjoined the Department from discriminating 
against blacks in the future, and (2) ordered that 50% of all 
entry-level troopers hired be black until 25% of the state police 
force was black (the “ 1972 order” ). The race-conscious goals 
in the 1972 order are not the subject of this proceeding. After 
the 1972 order had been in effect for three years, the court 
found that the Department, “for the purpose of frustrating or 
delaying full relief to the plaintiff class, [had] artificially 
restricted the size of the trooper force and the number of new 
troopers hired”. Joint Appendix (“J.A.” ) 34.

In 1979, the parties entered into, and the district court 
approved, a consent decree (the “ 1979 decree” ) in which the 
Department promised to develop within one year a promo-

1 Because of the procedural and factual complexity of this case, 
amici summarize it here only briefly. Amici respectfully refer the 
Court to the Statement of the Case of Respondents Phillip Paradise, 
Jr., et al., and the opinion of the court below (767 F.2d 1514) for a 
comprehensive review of the facts.



5

tional procedure that had “little or no adverse impact on 
blacks”. J.A. 37-48. Shortly thereafter, the court held that the 
25% incumbency provision in the 1972 order applied to 
promotional positions as well as to entry-level trooper positions, 
emphasizing that “ [i]n 1972, defendants were not just found 
guilty of discrimination against blacks in hiring to entry-level 
positions” and that “past discrimination by the Department was 
pervasive, that its effects persist, and that they are manifest”. 
Paradise v. Shoemaker, 470 F. Supp. 439, 442 (M.D. Ala. 
1979).

Until 1981, more than one year later than promised in the 
1979 decree, the Department did not propose a selection 
procedure for promotions to corporal. The parties entered into 
a second consent decree (the “ 1981 decree” ), which provided 
that a proposed procedure would be administered and then the 
parties would determine if the procedure had an adverse 
impact. If the parties could not agree whether it did, they 
agreed to submit the dispute to the district court. J.A. 
49-54.

The Department administered its proposed procedure in 
1981, and, after the parties failed to agree, the district court 
found that the Department still had not complied with the 1979 
decree. Paradise v. Prescott, 580 F. Supp. 171, 174-75 (M.D. 
Ala. 1983). The court ordered the Department to submit a 
plan without an adverse impact on blacks to promote 15 
persons to corporal. Id.

The Department then proposed to promote eleven whites 
and four blacks. J.A. 125-27. The district court rejected this 
proposal because the Department “operated under a regime of 
racism” (J.A. 140), the effects of which “remain pervasive and 
conspicuous at all ranks above the entry-level position”. Para­
dise v. Prescott, 585 F. Supp. 72, 74 (M.D. Ala. 1983), aff’d, 
767 F.2d 1514 (11th Cir. 1985), cert, granted, 106 S. Ct. 3331 
(1986). The court found that:

“Of the 6 majors, there is still not one black. Of the 25 
captains, there is still not one black. Of the 35 lieutenants, 
there is still not one black. Of the 65 sergeants, there is still



6

not one black. Thus, the department still operates an upper 
ranks structure in which almost every trooper obtained his 
position through procedures that totally excluded black 
persons. Moreover, the department is still without accept­
able procedures for advancement of black troopers into 
this structure, and it does not appear that any procedures 
will be in place within the near future.” Id. (emphases in 
original).

Pursuant to the 1981 decree, the court ordered (the “December 
1983 order” ) that one black be promoted for every white 
promoted to each rank (subject to the availability of objectively 
qualified black applicants) until either (a ) 25% of the rank is 
black or (b ) the Department develops a lawful promotional 
procedure. J.A. 128-29.2 It is the constitutionality of the 
December 1983 order that is at issue here. See United States v. 
Paradise, 106 S. Ct. 3331 (1986) (granting certiorari).

SUMMARY OF ARGUMENT
This case exemplifies why race-conscious promotional re­

lief is necessary and appropriate in certain circumstances. 
Upon finding “blatant and continuous discrimination” in 1972, 
the district court ordered (1) that the Department stop dis­
criminating against blacks in hiring and promotions, and (2) 
that 50% of the entry-level troopers hired be black until 25% of 
the trooper force was black. NAACP  v. Allen, 340 F. Supp. at 
705-06. The Department has continuously frustrated that 
order. As of December 1983, nearly 12 years after the 1972 
order, only 4 of 197 persons above entry level were black, none 
of whom was higher than the rank of corporal, and all of whom 
were promoted pursuant to an interim agreement pending 
implementation of the 1979 decree. Paradise v.. Prescott, 585 F. 
Supp. at 74. The district court concluded that the effects of 
prior discrimination “will not wither away of their own accord” 
{id. at 75), and entered the provision presently at issue

2 The Department finally proposed a lawful selection procedure 
to the rank of corporal in June 1984. The district court approved this 
procedure and suspended the December 1983 order as it applied to 
promotions to that rank. See Paradise v. Prescott, 767 F.2d 1514, 
1534-36 (11th Cir. 1985), cert, granted, 106 S. Ct. 3331 (1986).



7

requiring a one-for-one promotional ratio. In short, it is 
difficult to conceive of a case in which race-conscious remedies 
are needed more.

The December 1983 order passes muster under any stan­
dard of scrutiny. The first prong of Equal Protection analysis is 
satisfied because there is a compelling governmental interest 
not merely in ensuring future compliance with the civil rights 
laws but also in eradicating the lingering effects of the Depart­
ment’s prior discriminatory practices. Where, as here, the 
employer’s discriminatory policies have permeated its organiza­
tion and its subsequent practices have perpetuated that dis­
crimination by tending to limit the supervisory and policy­
making positions to persons who were hired, trained and 
promoted under a “regime of racism” (J.A. 140), the in­
stitutional bias against blacks is an effect of discrimination that 
must be eradicated. The argument of the Department and of 
Intervenors that promotional relief requires a finding of prior 
discrimination in promotions, as distinguished from hiring, 
misconstrues the record of the Department’s discriminatory 
promotional practices and ignores the fundamental fact that the 
Department’s blatant and continuous discrimination in entry- 
level positions necessarily has precluded blacks from competing 
for promotions.

The second prong of Equal Protection analysis is likewise 
met because the means are narrowly tailored to serve this 
compelling governmental interest. When this interest is prop­
erly understood to include eradicating the Department’s in­
stitutional bias, a one-for-one promotional provision is clearly 
designed to effectuate that interest. The courts have a duty “so 
far as possible [to] eliminate the discriminatory effects of the 
past as well as [to] bar like discrimination in the future” 
(Louisiana v. United States, 380 U.S. 145, 154 (1965)), and 
the courts must be given latitude in fashioning remedies 
pursuant to this duty. The choice of an appropriate ratio, like 
any remedy for discrimination, “necessarily involve[s] a degree 
of approximation and imprecision”. International Bhd. o f 
Teamsters v. United States, 431 U.S. 324, 372 (1977). The



8

district court’s choice was based on its determination, after 
observing the Department’s recalcitrance for twelve years, that 
lesser measures could not adequately and expeditiously dis­
mantle the Department’s institutional bias. It is no more 
“extreme” than was the 50% ratio approved by this Court in 
United Steelworkers o f America v. Weber, 443 U.S. 193 (1979), 
or by lower courts facing similarly egregious circumstances. 
The alternatives proposed by the Government, compared with 
the relief ordered, are more intrusive on the Department, are 
more burdensome on whites and would not adequately address 
the need to eradicate the Department’s institutional bias.

Finally, the one-for-one promotional order does not unnec­
essarily trammel the legitimate interests of whites. The provi­
sion for promotions is akin to the hiring goals discussed with 
approval in Wygant v. Jackson Bd. o f Educ., 106 S. Ct. 1842 
(1986), Local 28, Sheet Metal Workers’ In t’l Ass’n v. EEOC, 
106 S. Ct. 3019 (1986) (“Sheet Metal Workers”) and Local 93, 
In t’l Ass’n o f Firefighters v. City o f Cleveland, 106 S. Ct. 3063 
(1986). Affected whites lose only the incremental benefits of a 
promotion rather than their livelihoods altogether, and even 
then the loss is often temporary.

In sum, the Department’s history of continued dis­
crimination far exceeds the level necessary to justify affirmative 
action. Although this Court unambiguously approved the use 
of race-conscious relief last term, the Government’s position 
would render such relief practically unavailable. Indeed, the 
Government has publicly admitted this purpose by asserting 
that “it is doubtful” that race-conscious relief “can any longer 
survive”, warning employers that legal challenges from private 
parties “ and, yes, from the Government itself’ are “ inevita­
ble”.3 This Court should not permit the Government to subvert 
its decisions nor remove race-conscious remedies from the 
arsenals of the lower courts.

3 Remarks of Wm. Bradford Reynolds before the Committee on 
Employment and Labor Relations Law of the Litigation Section and 
the Equal Employment Opportunity Committee of the Labor and 
Employment Law Section of the American Bar Association 10-11 
(Aug. 12, 1986).



9

ARGUMENT
I. THE CONTINUED EXCLUSION OF BLACKS FROM 

THE UPPER RANKS OF THE STATE POLICE IS AN 
EFFECT OF PRIOR DISCRIMINATION AGAINST 
BLACKS. ERADICATING SUCH LINGERING EF­
FECTS OF DISCRIMINATION IS A COMPELLING 
GOVERNMENTAL INTEREST.

It is now established beyond peradventure that a public 
employer is not constitutionally barred from considering race 
pursuant to an affirmative action plan, even though minority 
persons who are not identified victims of past discrimination 
may benefit from such consideration.4 See Wygant, 106 S. Ct. at 
1850 (plurality opinion); id. at 1852 (O ’Connor, J., con­
curring); id. at 1863 (Marshall, J., dissenting); cf. id. at 1867- 
68 (Stevens, J., dissenting); Sheet Metal Workers, 106 S. Ct. at 
3052-53 (plurality opinion); id. at 3054 (Powell, J., con­
curring). In an ideal society, race-conscious relief would be 
unneeded, but we have yet to achieve the ideal. Lesser relief, 
such as an injunction, is often adequate to remedy dis­
crimination. Amici’s experience has proven, however, that in 
some instances relief such as the December 1983 order must be 
used to move closer to the ideal. This is just such a case.

The issue presented is whether the December 1983 order 
violates the Equal Protection Clause. The first prong of Equal

4 Here, it would be impossible to grant meaningful relief if it 
were limited to identified victims of discrimination. Where, as here, 
there has been pervasive discrimination over a long period of time, it 
is impossible to prove who would have applied for a state trooper job 
but for the discrimination (see United States v. Louisiana, 225 F. 
Supp. 353, 397 (E.D. La. 1963), aff’d, 380 U.S. 145 (1965)), or 
which blacks would have received jobs but for a discriminatory 
examination procedure (see Ensley Branch, NAACP v. Seibels, 13 
Empl. Prac. Dec. (CCH) H 11,504 (N.D. Ala. 1977), aff’d in relevant 
part, 616 F.2d 812 (5th Cir.), cert, denied, 449 U.S. 1061 (1980)). In 
addition, those who suffered discrimination many years ago have 
probably obtained employment elsewhere, moved or otherwise are no 
longer in a position to embark upon a new career with the Depart­
ment. Nonetheless, a court that has made such findings of dis­
crimination has the duty to ensure effective integration of the Depart­
ment.



10

Protection analysis is an inquiry into the governmental interests 
being vindicated.5 Eradicating the lingering effects of prior 
discrimination is a sufficiently compelling governmental interest 
to justify race-conscious relief. See Wygant, 106 S. Ct. at 1848 
(plurality opinion); id. at 1853 (O ’Connor, J., concurring); id. 
at 1861-62 (Marshall, J., dissenting); id. at 1867-68 (Stevens, 
J., dissenting); Sheet Metal Workers, 106 S. Ct. at 3034, 3050 
(plurality opinion); id. at 3055 (Powell, J., concurring).

Although the Government pays lip service to the govern­
mental interest in remedying the effects of prior discrimination 
(Gov’t Br. at 19, 21-22, 31-33),6 it defines this interest so 
narrowly as practically never to justify the race-conscious relief 
that this Court unambiguously held last term may be necessary. 
Having redefined the governmental interest, the Government 
argues that the December 1983 order is supported only by 
notions of racial balancing, an inadequate governmental inter­
est. Gov’t Br. at 30-35. The governmental interest in eradicat­
ing the lingering effects of discrimination cannot, however, be 
so narrowly construed. This interest at times may include 
altering the institutional patterns that created and have perpet­
uated bias against blacks.

5 Although a majority of the Court has not agreed upon the level 
of scrutiny to be applied to affirmative action cases (see Sheet Metal 
Workers, 106 S. Ct. at 3052 (plurality opinion); Wygant, 106 S. Ct. at 
1852-53 (O’Connor, J., concurring)), the members of the Court agree 
that some level of heightened scrutiny (whether “strict” or “inter­
mediate”) is appropriate ( Wygant, 106 S. Ct. at 1852). Although all 
amici do not concede that affirmative action should be subjected to 
strict scrutiny (see Regents of the Univ. of California v. Bakke, 438 
U.S. 265, 357-63 (1978) (Brennan, J., concurring in part and 
dissenting in part)), this case does not raise the issue because the 
December 1983 order survives the strictest of scrutiny. See, e.g., Sheet 
Metal Workers, 106 S. Ct. at 3053 (plurality opinion).

6 Citations to briefs are as follows: “Gov’t Br.” is to the Brief for 
the United States; “Dep’t Br.” is to the Brief of Respondents Alabama 
Department of Public Safety and Colonel Byron Prescott In Support 
of Petitioner; and “Intervenors’ Br.” is to the Brief of Intervenors- 
Respondents Supporting the Petitioner.



11

A. The Governmental Interest Is Not Merely in Stopping 
Discrimination, but Also in Eradicating the Lingering Effects 
of Past Discrimination.

The governmental interest here is not merely “ to prevent 
discrimination in the future” but also “ to dismantle prior 
patterns of employment discrimination”. Sheet Metal Workers, 
106 S. Ct. at 3049 (plurality opinion). There is a governmental 
interest in eradicating “the lingering effects of pervasive dis­
crimination.” Sheet Metal Workers, 106 S. Ct. at 3050 (plural­
ity opinion). As the plurality in Sheet Metal Workers noted, 
“even where the employer or union formally ceases to engage 
in discrimination, informal mechanisms may obstruct equal 
employment opportunities”. Id. at 3036.

The Constitution requires affirmative relief which goes 
beyond merely ensuring future compliance with the law.7 As 
Justice Brennan observed in Bakke:

“At least since Green v. County School Board, 391 U.S. 430 
(1968), it has been clear that a public body which has 
itself been adjudged to have engaged in racial dis­
crimination cannot bring itself into compliance with the 
Equal Protection Clause simply by ending its unlawful acts 
and adopting a neutral stance. Three years later, Swann v. 
Charlotte-Mecklenburg Board o f Education, 402 U.S. 1 
(1971), and its companion cases . . . reiterated that racially 
neutral remedies for past discrimination were inadequate 
where consequences o f past discriminatory acts influence or 
control present d e c i s i o n s 438 U.S. at 362 (emphasis 
added; citations omitted).

Accord Wygant, 106 S. Ct. at 1856 (O ’Connor, J., concurring).
In cases where discrimination permeates the employer’s 

organization, eradicating the lingering effects of discrimination

7 The lower courts have distinguished between, on the one hand, 
“compliance” and “compensatory” relief, and, on the other, “affirma­
tive relief’. See, e.g., Guardians Ass’n of the New York City Police 
Dep’t, Inc. v. Civil Serv. Comm., 630 F.2d 79, 108-09 (2d Cir. 1980), 
cert, denied, 452 U.S. 940 (1981); Association Against Discrimination 
in Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 280-82 (2d 
Cir. 1981), cert, denied, 455 U.S. 988 ( 1982); Berkman v. City of New 
York, 705 F.2d 584, 595-96 (2d Cir. 1983).



12

extends to dismantling the barriers “which have fostered 
racially stratified job environments”. Sheet Metal Workers, 106 
S. Ct. at 3037 (plurality opinion) (quoting McDonnell Douglas 
Corp. v. Green, 411 U.S. 792, 800 (1973)). The Department’s 
discriminatory policies were born of persons to whom dis­
crimination was the status quo, and those practices have been 
perpetuated because the supervisory and policymaking posi­
tions are still almost uniformly occupied by whites who have 
benefitted from—indeed, many of whom may have imple­
mented—those policies.8 When the discriminatory policies 
have so permeated the institution, the governmental interest in 
eradicating discrimination includes eliminating this self- 
perpetuating institutional bias.

The district court recognized this governmental interest 
when it entered the December 1983 order. The court found 
that the Department had “operated under a regime of racism” 
(J.A. 140), and it said that the order was justified because of 
“ the department’s failure after almost twelve years to eradicate 
the continuing effects of its own discrimination”. Paradise v. 
Prescott, 585 F. Supp. at 75 n.l. The court recounted the 
history of the case and pointed out that the Department had 
stubbornly avoided hiring and promoting blacks for as long as 
possible, frustrating the spirit of the 1972 order and the letter of 
1979 and 1981 decrees. The court found that there were 
virtually no blacks in the upper ranks (id. at 74), clearly 
recognizing that the “regime of racism” would not cease until 
supervisory and policymaking positions were in part filled with 
blacks and court-approved nondiscriminatory policies were in 
effect.9

8 The district court found that “the j D ] epartment still operates 
an upper ranks structure in which almost every trooper obtained his 
position through procedures that totally excluded black persons.” 
Paradise v. Prescott, 585 F. Supp. at 74 (emphasis in original). 
Moreover, absent discrimination, some blacks should have been hired 
and promoted instead of some whites, and all of the whites continue 
to benefit from the institutional bias against blacks.

9 The district court enunciated a second interest furthered by its 
order: remedying the Department’s failure, in violation of the consent 
decrees, “to develop acceptable promotion procedures”. Paradise v. 
Prescott, 585 F. Supp. at 75 n.l. The Government characterizes the



13

B. The Record Demonstrates That the Department Is 
Permeated with Discrimination.

The evidence of discrimination in the present case is 
overwhelming. This Court has already recognized this as a case 
where the employer’s organization is permeated with dis­
crimination. In Sheet Metal Workers, Justice Brennan quoted 
NAACP  v. Allen for the proposition that “ [a ]ffirmative 
action . . . ‘provide[s] an impetus to the process of dismantling 
the barriers, psychological or otherwise, erected by past prac­
tices.’ ” 106 S. Ct. at 3037 (quoting 493 F.2d 614, 621 (5th Cir. 
1974)).

The Government is seemingly unable to decide the extent 
to which this discrimination needs to be eradicated. On the one 
hand, it admits that “the Department’s hiring discrimination for 
almost four decades had excluded blacks from any jobs at all, 
including jobs in the upper ranks” (Gov’t Br. at 21), and it 
concedes that it argued below that the Department’s continued 
refusal to implement lawful promotional procedures “suggests 
that a pattern of discrimination against blacks in the Depart­
ment . . . may be continuing” (Gov’t Br. at 9; see also Paradise 
v. Prescott, 767 F.2d at 1522 n.10.). On the other hand, it 
argues that the 1972 order is “designed to cure the effects of the 
Department’s prior discrimination in hiring” (Gov’t Br. at 22 
(emphases added)), suggesting that the discrimination is over 
and was limited to hiring.10 The Department and Intervenors

means used to effectuate this interest as “in terrorem”. See Gov’t Br. 
at 23-26. As Justice Powell noted in Sheet Metal Workers, however, 
there is a “societal interest in compliance with the judgments of 
federal courts.” 106 S. Ct. at 3055. More importantly, the alleged “in 
terrorem” effect arises only because the Department wants to avoid 
promoting blacks, a desire which is itself an effect of discrimination 
that must be eliminated. See p. 24, infra.

10 The Government also argues that Sheet Metal Workers estab­
lishes that there must be “flagrant and egregious discrimination” 
before race-conscious relief can be ordered. See Gov’t Br. at 28-29; 
see also Intervenors’ Br. at 14. The Government completely ignores, 
however, that the plurality in Sheet Metal Workers went on to say, 
“ [o]r, such relief may be necessary to dissipate the lingering effects of 
pervasive discrimination” (106 S. Ct. at 3050 (emphasis added)), 
which is certainly true here. Moreover, the cited portion of Sheet 
Metal Workers applies only to the lawfulness of nonconsensual race­



14

now adopt the latter view, simply denying that the record of 
discrimination demonstrates discrimination in promotions. The 
record of discrimination here, however, is limited neither to 
hiring nor to discrete employment decisions in the past.

1. Discrimination in hiring limits the promotional 
opportunities of blacks, particularly when the employer pro­
motes solely from within. Although the Government concedes 
that the Department’s hiring discrimination has necessarily 
excluded blacks from the upper ranks (Gov’t Br. at 21), the 
Department argues (as do Intervenors) that there has never 
been “a judicial determination that the racial disparity among 
the ranks were [sic] related in any way to the findings of 
discrimination in hiring in 1972” (D ep’t Br. at 25 (emphasis in 
original); see also Intervenors’ Br. at 11-12). Where, as here, 
the employer promotes only from within, the argument that 
“ blatant and continuous” discrimination that has “permeated 
the [Department’s] employment policies” (NAACP  v. Allen, 
340 F. Supp. at 705) can be so compartmentalized is untenable.

This Court has previously rejected the view that findings of 
discrimination “can be viewed in isolation” in the context of 
school desegregation ( Keyes v. School Dist. No. 1, 413 U.S. 189, 
200 (1973)), and several courts have recognized that a “natu­
ral consequence of discriminating against blacks at entry-level 
positions . . . would be to limit their opportunities for promotion 
to higher levels”. United States v. Jefferson County, 28 Fair 
Empl. Prac. Cas. (BNA) 1834, 1838 (N.D. Ala. 1981) 
(Pointer, J.), a ff’d, 720 F.2d 1511 (11th Cir. 1983)." The 
exclusion of blacks is reinforced by a policy of promoting only 
from within the Department. 11

conscious relief under Title VII (see id. at 3050), which is not 
presently at issue. Wygant makes clear that the constitutional 
standard for affirmative action is not “flagrant and egregious” dis­
crimination. 106 S. Ct. at 1848 (plurality opinion) (“sufficient 
evidence to justify the conclusion that there has been prior dis­
crimination” ); see also id. at 1856 (O’Connor, J., concurring). 
Finally, the blatant and continuous discrimination here would meet 
any standard, even “flagrant and egregious”.

11 See also Detroit Police Officers’ Ass’n v. Young, 608 F.2d 671, 
696 (6th Cir. 1979), cert, denied, 452 U.S. 938 (1981); Williams v. 
Vukovich, 720 F.2d 909, 924 (6th Cir. 1983).



15

2. The record contains findings of discrimination in 
promotions. This is not, however, a case in which the dis­
crimination was limited to hiring, a fact that the Department 
and Intervenors conveniently overlook. First, the district court 
found that the Department’s proposed procedure for promo­
tions (see J.A. 55-57) had an adverse impact against blacks 
(Paradise v. Prescott, 580 F. Supp. at 174), which would have 
established a prima facie case of discrimination if the Depart­
ment had used that procedure. See Griggs v. Duke Power Co., 
401 U.S. 424 (1971). Second, when the district court held that 
the 25% provision of the 1972 order applied to the Depart­
ment’s upper ranks, it said that “ [i]n 1972, defendants were 
not just found guilty of discriminating against blacks in hiring 
to entry-level positions”, that “ [o]ne continuing effect of that 
discrimination is th a t . . . there is still not one black” above the 
rank of trooper and “that past discrimination by the Depart­
ment was pervasive, that its effects persist, and that they are 
manifest”. Paradise v. Shoemaker, 470 F. Supp. at 442 
(emphasis in original). Third, before entering the December 
1983 order, the district court found:

“On February 10, 1984, less than two months from today, 
twelve years will have passed since this court condemned 
the racially discriminatory policies and practices of the 
Alabama Department of Public Safety. Nevertheless, the 
effects of these policies and practices remain pervasive and 
conspicuous at all ranks above the entry-level position. Of 
the 6 majors, there is still not one black. Of the 25 captains, 
there is still not one black. Of the 35 lieutenants, there is 
still not one black. Of the 65 sergeants, there is still not one 
black. And of the 66 corporals, only four are black. Thus, 
the department still operates an upper rank structure in 
which almost every trooper obtained his position through 
procedures that totally excluded black persons. Moreover, 
the department is still without acceptable procedures for 
advancement of black troopers into this structure, and it 
does not appear that any procedures will be in place within 
the near future.” Paradise v. Prescott, 585 F. Supp. at 74 
(emphases in original).



16

See also J.A. 139-40. These findings reveal that of the 197 
persons above the rank of trooper, only 4 (2.0%) were black 
(id.), which itself gives rise to an inference of discrimination in 
promotions. See Teamsters, 431 U.S. at 340 n.20; Hazelwood 
School Dist. v. United States, 433 U.S. 299, 307 (1977); 
Wygant, 106 S. Ct. at 1847 (plurality opinion); id. at 1856 
(O ’Connor, J., concurring). In short, the findings of dis­
crimination from 1972 to the present, and the governmental 
interest in eradicating the effects of that discrimination, are not 
limited to hiring.

3. The Department has a pervasive institutional bias 
against blacks. When an employer has been found guilty of 
discrimination, compensatory relief and an order requiring 
future compliance will often sufficiently remedy past dis­
crimination. Sheet Metal Workers, 106 S. Ct. at 3036 (plurality 
opinion). In cases where the employer’s discriminatory policies 
have instilled an institutional bias against blacks, and the 
policymakers who implemented those policies continue to make 
decisions that perpetuate the bias, affirmative relief may be 
necessary. This is such a case.

Before the 1972 order, the Department did more than close 
its ranks to blacks; it actively sought to prevent black citizens 
from exercising their constitutional rights. For example, in 
1965, when blacks marched in Montgomery, Alabama, to 
secure the right to vote, the marchers were brutally “prodded, 
struck, beaten and knocked down by members of the Alabama 
State Troopers”. Williams v. Wallace, 240 F. Supp. 100, 105 
(M.D. Ala. 1965) (Johnson, J.). The Department attacked the 
marchers even though they “had observed all traffic laws and 
regulations” and “had proceeded in an orderly and peaceful 
manner”. Id. The Department’s actions, which had “not been 
directed toward enforcing any valid law of the State of 
Alabama” (id.), were taken by troopers “acting upon specific 
instructions from [their] superior officers”, including the 
Department’s director. Id. The Department’s brutality pre­
cipitated the Voting Rights Act of 1965. D. Bell, Race, Racism



17

and American Law 147-48 (2d ed. 1980); President’s Remarks 
to Congress, 1 Weekly Comp. Pres. Doc. 52 (Aug. 6, 1965).12

The Department’s bias against blacks continues in its 
employment practices. The Department completely excluded 
blacks before the 1972 order, and it unfairly treated those 
blacks it hired under that order. From 1972 through 1975, the 
Department hired 69 entry-level troopers, 40 of whom were 
black and 29 of whom were white. After the one-year 
probationary period, during which all of the new troopers’ 
supervisors were white, the attrition rate for blacks was unusu­
ally high: only 27 of the 40 blacks (67.5%) remained, while all 
29 whites did. Paradise v. Prescott, 767 F.2d at 1519. This 
disparity is sufficient to create a prima facie case of dis­
crimination.13 In addition, the Department’s decision to weigh 
supervisors’ evaluations as 20% of the promotional score (J.A. 
56) would have provided a ready mechanism for racial dis­
crimination by the white supervisors. See Albemarle Paper Co. 
v. Moody, 422 U.S. 405, 432-33 (1975); Riles v. M.N.C. Corp., 
750 F.2d 867, 871 (11th Cir. 1985); Rowe v. General Motors 
Corp., 457 F.2d 348, 358-59 (5th Cir. 1972).

The Department has perpetuated this atmosphere of dis­
crimination by limiting blacks to the lower ranks. It agreed in 
the 1979 decree to create a nondiscriminatory promotional 
procedure by 1980, but it failed to do so until 1984 despite 
repeated court orders. By 1983, the Department had promoted 
only 4 blacks, and then it did so only pursuant to the court- 
ordered 1979 decree. Paradise v. Prescott, 767 F.2d at 1533 
n.16; see also J.A. at 47. The Department’s continued attempts 
to avoid promoting blacks led even the Government to recog­
nize below “that a pattern of discrimination against blacks in 
the Department . . . may be continuing.” Gov’t Br. at 9;

12 The Department’s brutality toward black citizens described 
above is not an isolated instance. See, e.g., Houser v. Hill, 278 F. 
Supp. 920 (M.D. Ala. 1968).

13 The disparity in the attrition rates is, using a simple chi square 
analysis, significant at the .01 level, which exceeds the .05 level of 
significance sufficient to establish a prima facie case. See Hazelwood, 
433 U.S. at 308-09 n. 14.



18

Paradise v. Prescott, 767 F.2d at 1522 n. 10. The Department’s 
recalcitrance demonstrates that institutional bias against blacks 
perpetuates itself by limiting the upper ranks to persons to 
whom discrimination is the status quo. This is a case where the 
institutional bias will begin to crumble only by ordering 
affirmative relief to ensure that minority persons occupy some 
supervisory and policymaking positions.

C. An Additional Effect of Discrimination Is a Less 
Responsive and Less Effective Police Force.

The governmental interest in eradicating the effects of 
discrimination is not limited to eliminating discriminatory em­
ployment practices. A public employer’s discriminatory em­
ployment policies also affect the community it serves.

It is more important for a governmental employer than for 
a private employer to be free from even the appearance of 
excluding minorities. See e.g., Williams v. Vukovich, 720 F.2d 
at 923-24. In making Title VII applicable to the states, 
Congress recognized that the “exclusion of minorities from 
effective participation in the bureaucracy not only promotes 
ignorance of minority problems in that particular community, 
but also creates mistrust, alienation, and all too often hostility 
toward the entire process of government.” S. Rep. No. 415, 
92nd Cong., 1st sess. 10 (1971); see also Wygant, 106 S. Ct. at 
1855 (O ’Connor, J., concurring).

This mistrust undermines the effectiveness of the police 
force, because “ [i]n order to gain the general confidence and 
acceptance of a community, personnel within a police depart­
ment should be representative of the community as a whole.” 
President’s Commission on Law Enforcement and Adminis­
tration of Justice, Task Force Report: The Police 167 (1967) 
( “Task Force Report”); see also U.S. Commission on Civil 
Rights, Who Is Guarding the Guardians? (1981). Justice 
Stevens recognized in Wygant that an integrated police force is 
more likely to be publicly accepted and therefore more effective 
(106 S. Ct. at 1868), a proposition with which the First,



19

Second, Fourth, Fifth, Sixth and Seventh Circuits have 
agreed.14

II. THE DECEMBER 1983 ORDER IS A SUFFICIENTLY 
NARROWLY TAILORED MEANS TO EFFECTUATE 
THE COMPELLING GOVERNMENTAL INTEREST 
IN ERADICATING THE LINGERING EFFECTS OF 
PAST DISCRIMINATION.

The second prong of Equal Protection analysis is to 
determine whether the means chosen is sufficiently related to 
effectuating the governmental interest. Wygant, 106 S. Ct. at 
1846 (plurality opinion). The December 1983 order is well 
suited to eradicating the lingering effects of past discrimination, 
and it therefore satisfies the heightened scrutiny—be it charac­
terized as strict or intermediate (see n.5, supra ) —applicable to 
affirmative action.

This Court held unambiguously last term that race­
conscious means may sometimes be used to remedy past 
discrimination. The Government pays lip service to the Court’s 
approval of the use of race-conscious relief, but its analysis

14 See Boston Chapter, NAACP v. Beecher, 679 F.2d 965, 977-78 
(1st Cir. 1982); Bridgeport Guard, Inc. v. Bridgeport Civil Serv. 
Comm., 482 F.2d 1333, 1341 (2d Cir. 1973); Talbert v. City of 
Richmond, 648 F.2d 925, 931 (4th Cir. 1981), cert, denied, 454 U.S. 
1145 (1982); NAACP v. Allen, 493 F.2d 614, 621 (5th Cir. 1974); 
Detroit Police Officers’ Ass’n v. Young, 608 F.2d 671, 695-96 (6th Cir. 
1979), cert, denied, 452 U.S. 938 ( 1981); United States v. City of 
Chicago, 663 F.2d 1354, 1364 (7th Cir. 1981) (en banc). For 
example, the Sixth Circuit said:

“ [ E ] ffective crime prevention and solution depend heavily on the 
public support and cooperation which result only from public 
respect and confidence in the police. In short, the focus is not on 
the superior performance of minority officers, but on the public’s 
perception of law enforcement officials and institutions.” Detroit 
Police Officers’ Ass’n v. Young, 608 F.2d at 696.

Moreover, the Fourth Circuit has found “the attainment of racial 
diversity in the top ranks of the police department” to be a legitimate 
interest. Talbert v. City of Richmond, 648 F.2d at 931 (emphasis 
added); accord Detroit Police Officers’ Ass’n v. Young, 608 F.2d at 
695; Williams v. Vukovich, 720 F.2d at 923; Task Force Report at 172.



2 0

reveals that it seeks to so restrict the use of such relief as 
practically to remove it from the courts’ arsenal of weapons to 
combat the effects of discrimination. The flaw in the Govern­
ment’s analysis is its overly restrictive view of the governmental 
interest in remedying past discrimination. Once this govern­
mental interest is properly understood to include eradicating the 
lingering effects of discrimination, the means necessary to 
effectuate that interest can be seen to include sufficient 
promotional relief to eliminate the self-perpetuating bias of the 
institution. The December 1983 order is well suited to effec­
tuate this interest because it ensures that blacks will finally 
occupy some positions in the Department’s upper ranks from 
which the institutional bias was born. The alternative means 
suggested by the Government are less efficacious than the 
December 1983 order, would be even more intrusive on the 
Department and more burdensome on whites. Finally, the 
December 1983 order does not unnecessarily trammel the 
interests of whites because it does not interfere with their 
legitimate expectations.

A. The December 1983 Order Is More Efficacious than a 
25% Ratio in Eradicating the Effects of Past Discrimination.

The governmental interest in remedying past dis­
crimination, as shown above (see pp. 11-12, supra), goes 
beyond ensuring compliance with the law and extends to 
eradicating the “informal mechanisms [that] may obstruct 
equal employment opportunities”. Sheet Metal Workers, 106 S. 
Ct. at 3036 (plurality opinion). When the governmental 
interest is thus understood, the means may reach beyond 
ensuring mere compliance with the law to include affirmative 
relief.

1. The December 1983 order is aimed at eradicating the 
institutional bias. Clearly, eradicating the institutional bias 
against blacks that permeates the Department requires more 
than hiring blacks into entry-level positions. It requires promot­
ing qualified blacks into supervisory and policymaking posi­
tions. The December 1983 order accomplishes exactly this 
purpose.



21

The remaining question concerns the district court’s choice 
of a one-for-one ratio rather than a lower ratio. The Govern­
ment describes the ratio as a “catch up quota” aimed to create a 
racial balance for its own sake. Gov’t Br. at 30-31. In fact, 
however, the choice of a one-for-one ratio assures that more 
than a token few blacks will soon be promoted into the upper 
ranks. The district court’s choice of this ratio evinces a 
problem-solving approach based on its conclusion that in­
stitutional bias persists; it does not stem from an abstract, rigid 
conception of desired racial balance. See p. 12, supra.

The district court was faced with the Department’s re­
peated failure to establish “acceptable procedures for advance­
ment of black troopers into this [upper rank] structure” 
(Paradise v. Prescott, 585 F. Supp. at 74) and the Depart­
ment’s continued refusal to hire or promote blacks until it could 
avoid doing so no longer. In 1979, the district court concluded 
that “there is no ambiguity” that the 25% provision of the 1972 
order, roughly akin to a long term incumbency goal, applied to 
promotional positions. Paradise v. Shoemaker, 470 F. Supp. at 
440. Even so, although blacks had been hired to entry-level 
positions for seven years, none had then been promoted, and 
the four who were promoted subsequently were promoted only 
pursuant to the court-ordered 1979 decree. The court legitima­
tely concluded that more than a token number of blacks were 
needed in the upper ranks to make the institution’s attitudes 
race-neutral. As in Sheet Metal Workers, “in light of [the 
Department’s ] long record of resistance to official efforts to end 
[its] discriminatory practices, stronger measures were neces­
sary”. 106 S. Ct. at 3053 (plurality opinion).

The courts have “not merely the power but the duty to 
render . . . decree [ s ] which will so far as possible eliminate the 
discriminatory effects of the past as well as bar like dis­
crimination in the future”. Louisiana v. United States, 380 U.S. 
at 154; see also Albemarle Paper Co., 422 U.S. at 418. To do so, 
they must be given wide discretion “ to fashion ‘the most 
complete relief possible’ to remedy past discrimination”. Sheet 
Metal Workers, 106 S. Ct. at 3036 (plurality opinion) (quoting



22

Franks v. Bowman Transp. Co., 424 U.S. 747, 770 (1976)). 
The selection of an appropriate remedy for discrimination “will 
necessarily involve a degree of approximation and impreci­
sion”. Teamsters, 431 U.S. at 372; see also Schwarzschild, 
Public Law By Private Bargain: Title VII Consent Decrees and 
the Fairness o f Negotiated Institutional Reform, 1984 Duke L. 
J. 887, 893 (“Public Law By Private Bargain”).

The district court’s choice of a one-for-one ratio is within 
this broad remedial discretion. The alternatives of an in­
junction against promotional discrimination and of the 1972 
order’s 25% incumbency provision as applied to promotions 
had proven ineffective. Under similar circumstances, this Court 
said:

“ [I]t is doubtful, given [the employer’s] history in this 
litigation, that the District Court had available to it any 
other effective remedy. That court, having had the parties 
before it over a period of time, was in the best position to 
judge whether an alternative remedy, such as a simple 
injunction, would have been effective in ending [the 
employer’s ] discriminatory practices. ” Sheet Metal Work­
ers, 106 S. Ct. at 3056 (Powell, J., concurring).

Indeed, the Sheet Metal Workers plurality cited NAACP  v. 
Allen, which involved the 50% hiring order, as an example of a 
case in which “alternative remedies” were unavailing because 
of the employer’s “long record of resistance to official efforts to 
end [its] discriminatory practices”. Id. at 3053.

The Government calls the one-for-one ratio “extreme”, 
arguing that a 25% ratio “ represented the extreme outer limit of 
any appropriate remedy”. See Gov’t Br. at 27-28. Far from 
extreme, however, the one-for-one ratio is comparable to the 
50% provision approved in Weber, which Justice Blackmun 
described as “moderate”. 443 U.S. at 216. The lower courts, 
faced with the difficult task of fashioning effective remedies for 
past discrimination in varying circumstances, have on occasion 
found ratios of 50% to be necessary.15

15 The plurality in Sheet Metal Workers cited with approval 
several cases that approved ratios of 50%, including the Eleventh 
Circuit’s decision below in this case. See 106 S. Ct. at 3037 n.28; see,



23

Moreover, the Government’s argument would restrict the 
courts to using the ratio which the employer would be expected 
to achieve if it stopped further discrimination against blacks. 
See Teamsters, 431 U.S. at 340 n.20; Hazelwood, 433 U.S. at 
307. In short, the Government seeks to restrict courts to 
ensuring future compliance with the law without providing any 
remedy for past discrimination. The plurality in Sheet Metal 
Workers made clear, however, that some cases may require 
more than mere compliance relief:

“ In most cases, the court need only order the employer or 
union to cease engaging in discriminatory practices, and 
award make-whole relief to the individuals victimized by 
those practices. In some instances, however, it may be 
necessary to require the employer or union to take affirma­
tive steps to end discrimination effectively to enforce Title 
VII.” 106 S. Ct. at 3036.

Similarly, lower courts have distinguished “compliance relief’ 
from “affirmative relief’, the latter of which may entail the use 
of higher short term goals designed to effectuate a long term 
goal approximating the racial composition of the available 
labor force. See n.7, supra. 16

Affirmative action plans, including those embodied in 
consent decrees, typically contain both long term goals and 
higher short term goals designed to effectuate expeditiously the 
long term goals. Public Law By Private Bargain, 1984 Duke

e.g., Boston Chapter, NAACP v. Beecher, 504 F.2d 1017, 1026-28 (1st 
Cir. 1974), cert, denied, 421 U.S. 910 (1975); Morgan v. Kerrigan, 
530 F.2d 431, 434-35 (1st Cir.), cert, denied, 426 U.S. 935 (1976); 
United States v. N.L. Indus., Inc., 479 F.2d 354, 377 (8th Cir. 1973); 
see also United States v. City of Buffalo, 633 F.2d 643, 646-47 (2d Cir. 
1980); Bratton v. City of Detroit, 704 F.2d 878, 892-98 (6th Cir. 
1983), cert, denied, 464 U.S. 1040 (1984).

16 Many of the cases cited with approval by the plurality in Sheet 
Metal Workers approved the use of higher short term goals to meet 
long term goals. See 106 S. Ct. at 3037 n.28; see, e.g., Paradise v. 
Prescott, 767 F.2d at 1530-33; United States v. City of Chicago, 549 
F.2d 415, 436-37 (7th Cir.), cert, denied, 434 U.S. 875 (1977), 
modified on other grounds, 663 F.2d 1354, 1362 (7th Cir. 1981) (en 
banc); Carter v. Gallagher, 452 F.2d 315, 331 (8th Cir. 1971) (en 
banc), cert, denied, 406 U.S. 950 (1972).



24

L. J. at 896. If short term goals could not exceed the expected 
racial composition of the employer’s work force, then employ­
ers who had previously excluded minorities would be unable to 
eradicate the lingering effects of discrimination until the work 
force had completely turned over, a period which could take as 
long as 40 years. See also p. 26 & n.18, infra.

2. The December 1983 order is properly designed to 
encourage the Department to implement a lawful promotional 
procedure. The district court designed the December 1983 
order both to eradicate the effects of discrimination and to 
encourage the Department to create a lawful promotional 
procedure. Paradise v. Prescott, 585 F. Supp. at 76. The 
Department’s continued failure to develop a lawful procedure 
violated the spirit of the orders dating back to the 1972 order 
and the letter of the 1979 and 1981 decrees, whereas the 
December 1983 order successfully encouraged the Department 
to comply with the prior orders.

The Government describes the December 1983 order as an 
“in terrorem” enforcement device, suggesting that the order 
goes beyond the governmental interests giving rise to it. Gov’t 
Br. at 23-26. The Government is wrong. The order resulted 
from the Department’s repeated failure to implement a lawful 
promotional procedure, which in turn resulted from the Depart­
ment’s institutional bias. The order is narrowly tailored to 
eliminating this bias because it gives the Department the 
opportunity to begin dismantling the bias itself—by developing 
lawful promotional procedures—and, if the Department fails, 
the order reduces the bias directly by requiring the promotion 
of qualified blacks. The lower courts have characterized 
comparable orders as “modest” “ interim relief’.17

17 E.g., Guardians Ass’n of New York City Police Dep’t, Inc. v. 
Civil Serv. Comm., 630 F.2d at 109.



25

B. The December 1983 Order Is Less Intrusive on the 
Department and Less Burdensome on Whites than the 
Alternatives Proffered by the Government.

The Government asserts that the courts below did not 
consider “whether lawful alternative and less restrictive means 
could have been used” to achieve the compelling governmental 
interest in remedying pervasive and egregious discrimination. 
Gov’t Br. at 23 (quoting Wygant, 106 S. Ct. at 1850 n.6 
(plurality opinion)). The Government then proffers “plentiful 
alternatives” that supposedly would be “less intrusive”. Id. at 
25-26. The Government’s alternatives, however, actually 
would be more intrusive on the Department’s employment 
practices and would be more burdensome on whites than is the 
December 1983 order.

First, the Government suggests that “ [t]he court could 
have imposed stringent contempt sanctions, including heavy 
fines and attorneys’ fees”. Gov’t Br. at 25. There is no reason 
to believe that such sanctions would have worked because the 
Department had repeatedly disobeyed prior court orders. In­
deed, the December 1983 order achieved in only seven months 
what prior court orders had failed to do after four years—to 
compel the Department to implement a lawful, nondiscrimina- 
tory promotional procedure. Money sanctions would harm only 
Alabama’s taxpayers and would not address the true prob­
lem—the Department’s entrenched institutional bias.

In addition, the December 1983 order more effectively 
accommodates the immediate interests of all interested parties 
than would contempt sanctions. The Department needs new 
corporals; black troopers are interested in being promoted and 
in seeing the effects of discrimination eliminated; and white 
troopers are interested in being promoted. Because the 1981 
decree bars promotions until the Department implements a 
lawful selection procedure (J.A. 53), all of these interests would 
have been frustrated by contempt sanctions. In contrast, the 
December 1983 order encourages the Department to develop a 
lawful selection procedure and it accommodates all of these 
interests by allowing promotions to proceed.



2 6

Second, the Government submits that “ [t]he court could 
have considered appointing a trustee or administrator to super­
vise the Department’s progress or even to make the promotions 
himself by the proper standard”. Gov’t Br. at 25. However, 
this alternative would be even more intrusive on the Depart­
ment’s employment practices than the one-for-one ratio be­
cause the district court would become embroiled in the merits of 
each promotional decision.

Moreover, the December 1983 order is both a temporary 
measure and allows for waiver of its requirements if there are 
not enough qualified black candidates or if the Department 
does not need more promotions. It thus accommodates “ legiti­
mate explanations for the [Department’s] failure to comply 
with the court’s orders”. Sheet Metal Workers, 106 S. Ct. at 
3051 (plurality opinion) (emphasis in original); id. at 3055-56 
(Powell, J., concurring); id. at 3061-62 (O ’Connor, J., con­
curring in part and dissenting in part).

Third, the Government proposes a 25% ratio. Gov’t Br. at 
28. As shown above, a lower ratio would not as effectively 
further the compelling governmental interest. See, pp. 20-24, 
supra. In addition, a lower ratio would be more burdensome on 
whites in the sense that affirmative action plans would have to 
be in effect much longer to achieve the long term objective of 
25%. Cf. Sheet Metal Workers, 106 S. Ct. at 3053 (plurality 
opinion) (affirmative action must be temporary); Weber, 443 
U.S. at 208-09.18

Fourth, the Government suggests that “ [pjrogress toward 
racial balance in the [Department’s] upper levels” would be 
“substantially expedited” by (1) reducing time-in-grade 
eligibility requirements or (2) allowing lateral hiring of blacks 
and whites to upper-level positions. Gov’t Br. at 35 n. 17. Like 
the appointment of a trustee, these alternatives would be more 18

18 The Department recently submitted to the district court an 
estimate of the number of vacancies in its upper ranks for the next 
decade. In the lieutenant position, for example, the Department’s 
figures indicate that affirmative action would end in 1991 with a 50% 
ratio but not until 1997 with a 25% ratio.



27

intrusive on the Department. Moreover, because they would 
increase dramatically the number of candidates eligible for 
promotional positions, these alternatives would reduce the 
expectation of promotion held by present white employees 
(particularly Intervenors) at least as much as race-conscious 
promotional goals would.

C. The December 1983 Order Does Not Unnecessarily 
Trammel the Legitimate Interests of Whites.

In Wygant and Sheet Metal Workers, this Court made clear 
that under appropriate circumstances race-conscious hiring is 
permissible. See Wygant, 106 S. Ct. at 1851-52 (plurality 
opinion); id. at 1864 (Marshall, J., dissenting); id. at 1870 
n. 14 (Stevens, J., dissenting); Sheet Metal Workers, 106 S. Ct. 
at 3052-53 (plurality opinion); id. at 3057 (Powell, J., con­
curring). In contrast, four members of the Court in Wygant 
found that layoffs, under the circumstances presented, were 
unconstitutional. Wygant, 106 S. Ct. at 1851-52 (plurality 
opinion); id. at 1857-58 (White, J., concurring).19 The Govern­
ment tries to equate the promotional provision at issue here 
with the layoff provision in Wygant (Gov’t Brief at 32-35), but 
the often temporary denial of a promotion is far less bur­
densome than the loss of employment.

In Wygant, the plurality found the layoffs too burdensome 
because (1) employees “are typically heavily dependent on 
wages for their day-to-day living”, (2) the layoffs disrupted 
“ settled expectations in a way that general hiring goals do not”, 
and (3) the burdens were borne by identifiable individuals. 
106 S. Ct. at 1851-52. Each of these factors distinguishes race­
conscious promotional provisions from layoffs.

The denial of a promotion does not interfere with an 
employee’s day-to-day living in the way that a layoff does. The 
white employees keep their jobs and their sources of income.

19 Justice O’Connor said that it was not necessary “to resolve the 
troubling questions of whether any layoff provision could survive strict 
scrutiny”. 106 S. Ct. at 1857; see also id. at 1867 n.7 (Marshall, J., 
dissenting).



28

Although some whites may not receive the pay increase from a 
promotion, this incremental difference is very small compared 
to a complete loss of income. As with hiring provisions, the 
effect on whites of promotional provisions is the “ [ d ] enial of a 
future employment opportunity [that] is not as intrusive as 
[the] loss of an existing job.” Wygant, 106 S. Ct. at 1851 
(plurality opinion). Moreover, because the whites who are 
denied promotions remain free to compete for later vacancies, 
the loss of promotional pay is often of short duration.

Nor do employees’ expectations favor equating promotions 
and layoffs. Certainly the expectation of keeping one’s job is 
much greater than the expectation of receiving a promotion. As 
the First Circuit recently said:

“There is no blinking the fact that there is a significant 
difference between hiring and promoting in accord with a 
race-conscious ratio and insulating from discharge a per­
centage of employees because they are members of a 
minority group. In the former situation, there is only a 
postponement of expectations; in the layoff situation, em­
ployees with greater seniority lose their jobs.” Boston 
Chapter, NAACP  v. Beecher, 679 F.2d at 976.

Moreover, the expectation of a promotion is comparable to that 
of being hired because generally the candidate is merely one of 
a pool of applicants competing against others for a job or 
promotion.20

No individual white trooper has a settled expectation of 
promotion. When a selection procedure has an adverse impact

20 Both hiring and promotional procedures typically include 
factors such as a written examination and evaluations by interviewers. 
The distinguishing feature between them is that promotional proce­
dures often contain an additional seniority factor. The Government 
emphasizes this distinction, presumably to support the notion of 
whites’ expectations, arguing that “ [eligibility for promotion is a 
major part of the ‘equity’ in seniority”. Gov’t Br. at 39-40. In fact, 
although the promotional procedure that the Department proposed in 
1981 would have counted seniority as 10% of the promotional score 
(J.A. 56), differences in seniority could affect scores by no more than 
3% (see J.A. 50-51). Thus, greater seniority far from creates an 
expectation of promotion.



29

against blacks, as the Department’s proposed promotional 
procedure here did, whites have no legitimate expectation of 
promotion based on that procedure.21 As Justice Brennan wrote 
in Bakke, “ the expectations of non-minority workers are them­
selves products of discrimination and hence ‘tainted’ 438 
U.S. at 365 (quoting Franks, 424 U.S. at 776). In addition, any 
white trooper’s expectation of promotion should have been 
reduced by the existence of affirmative action since the 1972 
order setting forth a 25% incumbency provision. See Detroit 
Police Officers’ Ass’n v. Young, 608 F.2d at 696 n.12.

Finally, the Government’s argument that the burden of the 
December 1983 order falls “on a finite and often small number 
of identifiable individuals” (Gov’t Br. at 33) ignores that in 
making promotional decisions, Alabama uses a “rule of three” 
whereby the Department may select any one of the three 
candidates who scores highest. See J.A. 126. The white 
individual who would have been promoted but for affirmative 
action thus cannot be identified; rather, the burden is in this 
sense “diffused” among the three highest-ranking candidates. 
Furthermore, there was in place no lawful selection procedure 
that could identify a burdened individual. In any event, the 
basic inquiry is not whether the procedure allows affected white 
persons to be identified but whether their legitimate interests 
are unduly trammelled. See Local 35, In t’l Bhd. o f Elec. 
Workers v. City o f Hartford, 462 F. Supp. 1271 (D. Conn. 
1978), a ff’d, 625 F.2d 416 (1980), cert, denied, 453 U.S. 913 
(1981). Here they are not.

21 See NAACP v. Allen, 493 F.2d at 618; Kirkland v. New York 
State Dep’t of Corrections, 711 F.2d 1117, 1126 (2d Cir. 1983), cert, 
denied, 465 U.S. 1005 (1984); Williams v. Vukovich, 720 F.2d at 924- 
25; United States v. Bethlehem Steel Corp., 446 F.2d 652, 663 (2d Cir. 
1971); Pennsylvania v. Rizzo, 13 Fair Empl. Prac. Cas. (BNA) 1475, 
1481 (E.D. Pa. 1975).



30

CONCLUSION
For the foregoing reasons, amici curiae respectfully request 

that the decision of the Court of Appeals for the Eleventh 
Circuit be affirmed.

September 30, 1986

Harold R. Tyler, Jr.
James Robertson 

Co-Chairmen 
N orman Redlich 

Trustee
William L. Robinson 
Richard T. Seymour 
Stephen L. Spitz

Lawyers’ Committee for 
Civil Rights U nder Law 

1400 Eye Street, N.W.
(Suite 400)
Washington, D.C. 20005 
(202) 371-1212

Jack D. N ovik 
American Civil 
Liberties U nion 

132 West 43rd Street 
New York, New York 10036
(212) 944-9800

Theresa Fay Bustillos 
A ntonia Hernandez 

Mexican American 
Legal D efense and 
Educational Fund, Inc.

634 South Spring Street 
(11th Floor)
Los Angeles, California
(213) 629-2512

Suzanne E. Meeker 
Marcia D. Greenberger 

N ational Women’s Law 
Center

1616 P Street, N.W. 
Washington, D.C. 20036 
(202) 328-5160

Respectfully submitted,

R obert D. Joffe 
Counsel o f Record

Thomas D. Barr 
Robert F. Mullen 
D aniel J. Leffell 
Alden L. Atkins 
Mark A. Sirota 

Cravath, Swaine & Moore 
One Chase Manhattan Plaza 
New York, New York 10005 
(212) 422-3000

Attorneys for Amici Curiae

Lois Waldman 
Marc D. Stern 

American Jewish Congress 
15 East 84th Street 
New York, New York 10028 
(212) 879-4500

Linda Flores 
Kenneth Kimerling 

Puerto Rican Legal D efense 
and Education Fund, Inc.

99 Hudson Street
New York, New York 10013
(212) 219-3360

Grover Hankins 
N ational Association 
for the Advancement 
of Colored People 

4805 Mount Hope Drive 
(Room 501)
Baltimore, Maryland 21215 

90014 (301) 358-8900



31

D onna R. Lenhoff 
Women Employed 

5 South Wabash 
(Suite 415)
Chicago, Illinois 60603 
(312) 782-3902

Judith L. Lichtman 
Claudia Withers 

Women’s Legal D efense Fund 
2000 P Street, N.W.
(Suite 400)
Washington, D.C. 20036 
(202) 887-0364