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

    No. 85-999

IN THE

Suprem e Court of tj)e flUmteb s t a t e s
October Term, 1986

United States of America,
Petitioner,

v.

Phillip Paradise, Jr., et a l
Respondents.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Eleventh Circuit

BRIEF OF RESPONDENTS, ALABAMA DEPARTMENT 
OF PUBLIC SAFETY AND COLONEL BYRON 

PRESCOTT IN SUPPORT OF PETITIONER

E dward L. Hardin, Jr.

Post Office Box 11328 
Attorneys for Respondent 
Alabama Department of 
Public Safety

Of Counsel:
Hardin & Hollis 
Birmingham, Alabama 
35202-1328
Telephone: (205) 328-2675

PRESS OF BYRON S. ADAMS, WASHINGTON. D.C. (202) 347-8203



1

QUESTIONS PRESENTED

1. Whether the Equal Protection guarantees of the 
Fourteenth and Fifth Amendments to the United 
States Constitution permits the imposition of a one- 
black-for-one-white promotional quota without a in­
dependent, correlative finding of discrimination.

2. Whether the use of affirmative action in the form 
of racial preference by the District Court as a means 
of enforcing the terms of valid consent decrees having 
a racially neutral objective is permissible under the 
Equal Protection Clause of the fourteenth Amend­
ment.



11

TABLE OF CONTENTS

Questions Presented ............................................. i
Table of A uthorities ...................................................  iii

Interest of the Department of Public Safety 
and Byron Prescott ...................................................... 1

Opinions Below ................................................................ 2

Jurisdiction ........................................................................  2

Statement of the Facts .............................................  2

Rationale of the Courts Below ............................ 8

Introduction and Summary of the A rgument .. 13

A rgument:

Court ordered race conscious quota relief in 
the present case is impermissible under the 
equal protection clauses of the Fourteenth 
and Fifth Amendments .................................  16
I. Strict scrutiny is the only standard of re­

view applicable to determine whether court 
ordered race conscious relief is constitu­
tional ...................   16

II. The promotion quota ordered by the court
cannot pass strict scrutiny ....................  19

III. The court ordered quota relief contrav­
enes other compelling governmental in­
terests........................................................  33

Conclusion ..........................................................................  36



Ill

TABLE OF AUTHORITIES
Cases: Page
Albermarle Paper Co. v. Moody, 442 U.S. 405,

(1975) ................................................................ 26
Franks v. Bowman Transportation Company, 424

U.S. 747, (1976)   30
Fullilove v. Klutznick, 448 U.S. 448,

(1980) ........................................................  11, passim
Hampton v. Mon Sun Wong, 426 U.S. 88,

(1976) ................................................................ 21
Harris v. Birmingham Board of Education, 712

F.2d 1377 (11th Cir. 1983)   31
Hirabayaski v. U.S., 320 U.S. 81, (1943)   16
International Bro. of Teamsters v. U.S., 431 U.S.

324, (1977)   31
Kirkland v. New York St. Department of correc­

tional Services, 711 F.2d 1117, 1130 L.2d Cir.
1983) .................................................................  26

Local 28 Sheet Metal Workers’ International Asso­
ciation v. EEOC, et al. (slip opinion) No. 84- 
1656, July 2, 1986 ............................................ 29-30

Local 93 v. City of Cleveland,___U.S.___ ,106 S.
Ct. 3063, 3073, n.8 (1986) .............................. 27, 34

Loving v. Virginia, 388 U.S. 1, (1967) ................  16, 19
McDonnell-Douglas Corporation v. Green, 411 U.S.

792, (1973)   32
Mississippi University for women v. Hogan, 458

U.S. 718, (1982) ...................................................... 18
NAACP v. Allen, 340 F.Supp. 703 (M.D. Ala.

1972) A ff ’d, 499 F.2d. 614 (5th Cir.
1974) ................................................................ 3, 8, passim

Palmore v. Sidoti, 466 U.S. 429, (1984) ................  19, 35
Paradise v. Prescott, 580 F.Supp. 171 (M.D. Ala.

1983) ............................................................................  6
Paradise v. Shoemaker, 470 F.Supp. 439 (M.D.N.D.

Ala. 1979) .................................................................. 25



IV

Table of Authorities Continued
Page

Pasadena City Board of education v. Spangler, 427
U.S. 424, (1976) .............................................. 29

Regents of the University of California v. Bakke,
438 U.S. 265, (1978) ................................  11, passim

Rios v. Enterprise Association Steamfitters, 501
F.2d. 622 (1974) .............................................. 27, 28

Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d.
1002 (9th Cir. 1972) ................... ................... 29

Setser v. Novak Investment co., 657 F.2d. 962 (8th
cir. 1981) (en banc) ......................................... 26

Shapiro v. Thompson, 394 U.S. 618, (1969) .......  29
South Florida Chapter of the Association General 

Contractors v. Metropolitan Dade County,
Florida, 723 F.2d 846 (11th Cir.) cert, denied 
___U.S.___ ,105 S.Ct. 220, (1984) .......... 11, passim

Swann v. Charlote-Mecklenburg Board of Education,
402 U.S. 1 (1971)   29

Thompson v. Sawyer, 678 F.2d. 257 (C.A.D.C.
1982) .................................................................  28

United States v. City of Alexandria, 614 F.2d 1358
(5th Cir. 1980) .................................................  11, 12

United Steel Workers v. Weber, 443 U.S. 193,
(1979) ................................................................  9

Valentine v. Smith, 654 F.2d. 503 (8th Cir.), cert
denied, 454 U.S. 1124, (1981) .......................  11, 12

Washington v. Davis, 426 U.S. 229, (1976)   31
Wygant v. Jackson Board of Education,

___U.S. ___ , 106 S.Ct. 1842, (1986)
100 ............................................................. 17, passim

Constitution, statutes and rules:
U.S. Const.:

Amend. V .................................................  12, 13



Table of Authorities Continued
Page

Amend. XIV .....................................  10, passim
Civil Rights Act of 1964, Title VII, 42 U.S.C.

2000e. et seq.: .........................................  13, 14

703(j), 42 U.S.C. 2000e-2(j) ...................................  28

706(g), 42 U.S.C. 2000e-5(g) ........................... 13, passim

Miscellaneous:
Legislative History of Title VII and XI of

the Civil Rights Act of 1964, United States 
Equal Employment Opportunity Commission,
U.S. Government Printing Office. (1969) p.
3189...................................................................... 33
Uniform guidelines on Employee Section Pro­
cedures, 43 Fed. Reg. 38290-38309 (1978) ... 3, 4



IN THE

Suprem e Court of tf)c linttetr s t a t e s
October Term, 1986

No. 85-999

United States Of America,
Petitioner,

v.
Phillip Paradise, JR., ET AL.

Respondent.

On Writ Of Certiorari To The United States Court Of 
Appeals For The Eleventh Circuit

BRIEF OF RESPONDENTS, ALABAMA DEPARTMENT 
OF PUBLIC SAFETY AND COLONEL BYRON PRESCOTT 

IN SUPPORT OF PETITIONER

INTEREST OF THE DEPARTMENT OF PUBLIC
SAFETY

AND BYRON PRESCOTT

The Alabama Department of Public Safety is a gov­
ernmental agency of the Sate of Alabama and Bryon 
Prescott is director of the Alabama Department of 
Public Safety. Both are named as party-defendants in 
the action below. The challenged promotional quota 
has been imposed on this entity and has a continuing 
effect on the Department.



2

OPINIONS BELOW

The opinion of the United States Court of Appeals 
for the Eleventh Circuit (Pet. App., pp. la-54a) is 
reported at 767 F.2d 1514. The order reported at 585 
F. Supp. 72.

JURISDICTION

The judgment of the Court of Appeals (Pet. App., 
pp. 80a-81a) was entered on August 12, 1985. This 
Court granted the petition for writ of certiorari, lim­
ited to Question 3 presented by the petition, on July 
7, 1986. The jurisdiction of this Court is invoked un­
der 28 U.S.C. 1254 (1).

STATEMENT OF THE FACTS

This is an employment discrimination case which 
involves the validity of a one for one (black for white) 
promotion quota imposed by the district court as a 
means of enforcing earlier consent decrees in this 
litigation.

In January 1972, a class action was brought by the 
National Association for the Advancement for Colored 
People (NAACP) against the Alabama Department of 
Public Safety and the Alabama Department of Per­
sonnel. Phillip Paradise, Jr., was permitted to inter­
vene on behalf of a class of black plaintiffs and the 
United States intervened as a party plaintiff.

Initially, the district court determined that the Al­
abama Department of Public Safety along with the 
Alabama Department of Personnel had been involved 
in discrimination in hiring. The court enjoined the 
Department from engaging in employment practices 
with the effect of discriminating on the basis of race



3

or color, and further ordered them to hire one black 
state trooper for each white state trooper until the 
number of black troopers in the force was equal to 
25% of the total troopers NAACP v. Allen, 340 
F.Supp. 703 (M.D. Ala. 1972), a ffd , 493 F.2d 614 
(5th Cir. 1974). In August of 1975, the court granted 
additional relief after concluding the Department re­
stricted the number of new troopers hired and the 
size of the trooper force in order to frustrate the 
court’s 1972 order (See pet. App. 7a-8a). Additional 
relief was granted by consent decrees in February 
1979 (Id. at 71a-79a) and in August 1981 (Id. at 65a- 
70a).

The 1979 consent decree involved the issue of pro­
motions. The Departments agreed to “ have as an ob­
jective . . .  an employment and promotion system that 
is racially neutral”  (Pet. App., 72a), and “ not to en­
gage in any act or practice which has a purpose or 
effect of unlawfully discriminating against blacks . . 
[or] which discriminates on the basis of race in hiring 
[or] promoting”  (Ibid.) In dealing with promotions, the 
Department agreed “ to have as an objective the uti­
lization of a promotion procedure which is fair to all 
applicants and which promotion procedure when used 
either for screening or ranking will have little or no 
adverse impact upon blacks seeking promotion to cor­
poral”  (Id. at 74a). The Department further agreed 
to develop within one year from the decree, and to 
submit for the other parties’ review and the court’s 
approval, a procedure for corporal promotions con­
forming with the 1978 Uniform Guidelines on Em­
ployee Selection Procedure, 43 F. Reg. 38290-38309, 
and having little or no adverse affect on blacks (Pet. 
App., 74a-75a). When the validation of the promotion



4

procedure for corporal promotions was completed, the 
Department was to start the validation of promotional 
procedures for sergeants, lieutenants, captains, and 
majors {Id. at 75a). Until the validation was complete, 
the Department was to use the state merit system 
for all corporal promotions and to promote at least 
three black state troopers to the rank of corporal. 
Detailed procedures were to be followed by agreement 
between the parties as reflected by the consent decree 
approved by the district court. In February, 1980, 
four black troopers and six white troopers were pro­
moted to corporal positions pursuant to the 1979 Con­
sent Decree.

In April 1981 the Department of Public Safety and 
the Department of Personnel moved for approval of 
a written examination for the promotion of corporals, 
paradise and the United States objected contending 
the use of a test which had not been validated under 
the Uniform Guidelines would not be justified if the 
results had an adverse impact on black applicants. 
Whereupon hearings and discovery took place through 
August 18, 1981 when another consent decree was 
proposed by all the parties. This second consent de­
cree was approved (Pet. App. 65a - 70a), in which 
the parties agreed the Corporal examination prepared 
by the Alabama Department of Personnel would be 
administered and scored; that the scores would be 
used with other factors to rank applicants on a pro­
motion register; and that the promotion register would 
be reviewed “ to determine whether the selection pro­
cedure has an adverse impact against black applicants 
either as to the initial group of promotions to be made 
or as to all of the expected promotions during the 
life of the register. {Id. at 68a). If the procedure for



5

selection did not adversely impact the blacks, selec­
tions were to be made in rank order from the pro­
motion register; if the procedure for selection did 
adversely impact the blacks, the Department had to 
use an alternative procedure for promotions to be 
made”  in a manner that does not result in adverse 
impact for the initial group of promotion or cumu­
latively during use of the procedure”  (Id. at 69a). I f  
the parties agree, or the Court finds, that the selection 
procedure has an adverse impact, promotions shall be 
made in a manner that does not result in adverse 
impact for  the initial group o f promotions or cumu­
latively during use o f the procedure”  (Ibid.)

On June 2, 1982 the Alabama State Troopers As­
sociation moved to intervene and object to enforce­
ment of the consent Decree. On August 4, 1982, the 
Motion to Intervene was denied.

On April 1983, Paradise filed a “ Motion to En­
force”  the terms of the 1979 and 1981 consent de­
crees. They sought an order requiring the Alabama 
Department of Personnel and Public Safety to pro­
mote black troopers to all upper rank positions in 
equal numbers with white troopers until 25% of each 
upper level rank is filled by a black or procedures 
for promotion which follow the consent decrees have 
been developed.

The United States opposed imposing a one-black- 
for-one-white promotion quota, but agreed the consent 
decrees should be enforced. On April 15, 1983, V.E. 
McClellan and three other white troopers moved to 
be permitted to intervene on behalf of a class com­
posed of top-ranked white applicants for the corporal 
promotion. After a hearing the district court permit­
ted intervention by order dated October 28, 1983 on



6

prospective issues only, but denied intervention as to 
previously entered orders, judgments, and consent de­
crees on the ground of untimeliness.

Also on October 28, 1983, the district court entered 
an order finding the 1981 selection procedure would 
have an adverse impact on blacks, prohibited its use, 
and ordered all the parties to submit proposals for 
promoting at least 15 troopers to corporal in a man­
ner that would not have adverse racial impact. 580 
F. Supp. 171 (M. Ala. 1983). The court indicated that 
it would consider the promotion plans submitted to 
it for resolution if the parties could not agree on an 
equitable plan. The Department submitted a plan. (pp. 
125-127, Joint Appendix) When the other parties could 
not agree, the court took the matter under advise­
ment.

On December 15, 1983, the district court issued an 
order and memorandum opinion granting Paradise’s 
“ Motion to Enforce”  and the one-black-for-one-white 
quota relief requested. 585 F. Supp. 72 (Pet. App. 55a- 
64a). The court entered an order enjoining the De­
partment “ from failing to promote from this day for­
ward, for each white trooper promoted to a higher 
rank, one black trooper to the same rank, if there is 
a black trooper objectively qualified to be promoted” 1 
(Id. 56a). The Court did not enter an order requiring 
use of a promotional plan “ . . . that does not result 
in adverse impact for the initial group . . .” , as re­
quired by the consent decree. In other words, the Court 
did not devise a promotional plan for use by the De­
partment which did not have adverse racial impact.

1 Eight black and eight white troopers were promoted to cor­
poral in keeping with this order.



7

The Court ordered a plan which adversely impacted 
on white applicants.

The court also ordered that “ this promotion quota 
should remain in effect as to each trooper rank above 
the entry-level rank until either approximately 25% 
of the rank is black or the [Department] developed 
and implemented a promotion plan for the rank which 
meets the prior orders and decrees of the court and 
all other relevant legal requirements”  (Ibid.) The court 
then gave the Department 35 days to submit for the 
court’ s approval a schedule for promotional proce­
dures for all ranks above the entry-level rank.2 (Ibid.)

The Alabama Department of Public Safety then filed 
several motions seeking reconsideration or, in the al­
ternative a stay pending an appeal of the Court’s 
December 15, 1983 order imposing a temporary prom- 
itional quota. Oral argument was held on January 5, 
1984 but no evidence was permitted. These motions 
were denied by an opinion and order dated January 
13, 1984, after which Notice of Appeal was filed.

On August 12, 1985 the court of appeals affirmed 
the district court’s order imposing the one-black-for- 
one-white promotion quota. 767 F2d 1514 (Pet. App., 
la-54a). They held that the quota order was not a 
modification of the 1979 and 1981 consent decrees. 
It was viewed, rather as a proper means of enforce­
ment of these decrees and necessary to remedy the 
present racial imbalance in the ranks which the court 
considered “ present effects”  of the Department’s 
prior discrimination.

2 The Department did submit a schedule for the rank of cor­
poral and sergeant which were approved by the court for use 
on a temporary basis for a limited number of promotions.



8

RATIONALE OF COURTS BELOW

In fashioning a procedure the district court on De­
cember 15, 1983, recognized that twelve years prior 
to plaintiffs Motion to Enforce the Consent Decrees 
the Court condemned racially discriminatory policies 
and practices in the Department.3 The Court found 
that the effects of the Department’ s prior discrimi­
nation remain after 12 years noting that “ of the 6 
majors, there is still not one black. Of the 75 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.”  (Pet. App. 60a) Based on these factual 
findings the district court concluded “ the department 
still operates an upper rank structure in which almost 
every trooper obtained his position through proce­
dures that totally excluded black persons” .4 (ibid.) The 
Court agreed with the plaintiffs that for a period of 
time 50% of those promoted above entry-level must 
be black troopers “ in light of the severe racial im­
balances in the upper ranks.”  (Pet. App. 60a-61a). It 
reasoned that the one-black-one-white promotional 
quota was warranted to “ address the department’s 
delay in developing acceptable promotion procedures

3 The district court in 1972 found Department had discrimi­
nation against blacks in hiring only. NAACP v. Allen, 340 
F.Supp. 703 (M.P. Ala. 1972).

4 The Court obviously concluded that the findings of discrim­
ination in the Department in its hiring practices some 12 years 
prior to reaching this conclusion was related in some way to 
the procedure through which the existing corporals, sergeants, 
etc., obtained their ranks. The Court related no findings of fact 
in reaching this conclusion, however.



9

for all ranks” .5 (Pet. App. 61a). The court further 
reasoned that since there has been unlawful discrim­
ination the court had the responsibility to fashion race­
conscious relief which is “ necessary, reasonably and 
otherwise appropriate under the circumstances”  (Pet. 
App. 62a) to “ eliminate the discriminatory effects of 
past discrimination as well as bar like discrimination 
in the future.” 6 (Ibid.) Immediate, affirmative, race 
conscious relief was “ clearly necessary”  because the 
“ racial imbalances in the upper ranks . . . remains 
egregious and are now of long duration and because 
it is apparent the intolerable disparities will not dis­
sipate within the near future.”  (Ibid.)

After the court had taken judicial notice of racial 
imbalances in the upper ranks of the Department and 
noting the past discrimination in hiring the court con­
cluded the promotional quotas were “ reasonable”  and 
“ specifically tailored to redress the continuing effects 
of past discrimination”  noting further that the order 
met the test prescribed in United Steelworkers v. We­
ber, 443 U.S. 193, (1979), (Pet. App. 63a).

On appeal to the United States Court of Appeals 
for the Eleventh Circuit, the Department asserted 
that the one-black-for-one-white promotional quota

5 The Court at this point in the opinion appeared to loose sight 
that according to the 1979 and 1981 consent decrees it was 
being called upon to assist in approving a promotional procedure 
which was fair to all having little or no adverse impact upon 
blacks.

6 The Court never specifically indicated what discriminatory 
practices of the Department it was seeking to remedy. It ob­
viously was considering at this point the finding of unlawful 
discrimination in hiring practices of the Department found in 
1972.



10

constituted a modification of the existing consent de­
crees without justification by any findings of post de­
cree discrimination or other changed circumstances 
(Brief of D.P.S. pp. 19-25). it was also argued in brief 
that the promotional quota imposed by the District 
Court was unsupported by the evidence and amounted 
to unconstitutional reverse discrimination in violation 
of the Fourteenth Amendment of the United States 
Constitution (Brief of D.P.S., pp. 25-46).

On August 12, 1985, the Eleventh Circuit affirmed 
the district court’s order imposing the fifty percent 
(50%) promotion quota. 767 F.2d 1514 (Pet. App. la- 
5a). The Court of appeals held the promotional quota 
imposed did not constitute a modification of the 1979 
and 1981 consent decree but rather enforced them 
reasoning that the consent decrees concerned the im­
pact of proposed promotion procedures “ on blacks, 
and blacks alone,”  and did not specifically prohibit 
procedures adversely impacting on white. (Id. at 26a).

The opinion of the Eleventh Circuit expressed def­
inite uncertainty, however, as to what standard should 
be applied with respect to the claim that the pro­
motional quota ordered by the district court violates 
nonminority rights to equal protection as guaranteed 
by the Fourteenth Amendment of the United States 
of Constitution. The Court of Appeals clearly indi­
cated it needs additional guidance from the Supreme 
Court in order to adequately address this issue. It 
also expressed concern over the lack of consensus in 
this Court on the equal protection issues stating “ de­
termining what [equal protection reverse discrimina­
tion] ‘test’ will eventually emerge from the court is 
highly speculative” . (Pet. App. 35a).



11

The Court then reviewed the standards established 
in three previous decisions, United States v. City of 
Alexandria, 614 F.2d 1358 (5th cir. 1980); South Flor­
ida Chapter o f the Associated General Contractors v. 
Metropolitan Dade County, Florida, 723 F.2d 846
(11th Cir.), cert denied, ___U. S. ___ , 105 S.Ct. 220,
(1981), and Valentine v. Smith, 654 F.2d 503 (8th 
Cir.), cert denied, 454 U.S. 1124, (1981) holding that 
under the authority of either of these decisions the 
district court’s order does not deprive the intervenors 
of their right to equal protection.

The Court of Appeals quoted from the opinion in 
City o f Alexandria, 614 F.2d 1358, which concluded 
that “ goals and targets are acceptable under the Con­
stitution . . .  so long as they are reasonably related 
to the legitimate state goal of achieving equality of 
employment opportunity.”  (id. at 1363) (footnote 
omitted) (emphasis added). The opinion defined the 
“ reasonableness”  requirement by taking three factors 
into account: (1) whether the remedial relief is tem­
porary and will terminate when the manifest [racial] 
imbalances have been eliminated;”  (2) whether the 
relief establishes “ an absolute bar to the advancement 
of white[s]” ; and (3) whether the relief will benefit 
only “ qualified”  persons. (Id. at 1366), (Pet. app. 36a- 
37a).

In South Florida Chapter, 723 F.2d 846, the Elev­
enth Circuit, recognizing the absence of a definitive 
Supreme Court standard for judging the constitution­
ality of affirmative action interpreted the common 
concerns in the decisions of Regents o f the University 
o f California v. Bakke, 438 U.S. 265, (1978) and Ful- 
lilove v. Klutznick, 448 U.S. 448, (1980), concluding 
the employment of benign racial classifications to be



12

constitutionally permissible if: (1) the governmental 
authority has authority to pass such legislation; (2) 
adequate findings have been made to ensure that the 
legislation is remedying the present effects of past 
discrimination; and (3) the use of the classification 
extends no further than the demonstrated need of 
remedying the present effects of the past discrimi­
nation. {Id. at 851-852). The Court in South Florida 
Chapter viewed the approach as an attempt “ to bal­
ance the legitimate objective of redressing past dis­
crimination with the concerns that the chosen means 
be ‘narrowly tailored’ to the legislative goals so as 
to not unfairly infringe upon the rights of third par­
ties.”  {Id. at 852) (Pet. App. 37a-38a). Finally, Val­
entine, 654 F.2d at 510, utilized a substantially related 
to a legitimate state interest test stating further that 
race-conscious affirmative action is substantially re­
lated to remedying past discrimination if “ (1) its im­
plementation results or is designed to result in the 
hiring of a sufficient number of minority applicants 
so that the racial balance of the employer’s work force 
approximates roughly, but does not unreasonably ex­
ceed, the balance that would have been achieved ab­
sent the past discrimination; (2) the plan endures only 
so long as is reasonably necessary to achieve its le­
gitimate goals; (3) the plan does not result in hiring 
unqualified applicants; and (4) the plan does not com­
pletely bar whites from all vacancies or otherwise 
unnecessarily or invidiously trammel their interest. 
{Id. at 510) (Pet. App. 38a-39a).

The Court of Appeals based on the standards just 
mentioned in City o f Alexandria, South Florida Chap­
ter, and Valentine held that the quota order of the



13

district court does not violate the Equal Protection 
Clause.

INTRODUCTION AND SUMMARY OF THE 
ARGUMENT

This Court has limited the review of the Petition 
for Certiorari to the issue of whether the one-black- 
for-one-white promotion quota is permissible under the 
equal protection guarantees of the Fourteenth and 
Fifth Amendments to the United States Constitution.

Even though Title VII is not the central issue be­
fore this Court, the statute cannot be ignored because 
it it here in which is found the authority for the courts 
to award affirmative race-conscious relief. The Elev­
enth Circuit expressed its concern over the specula­
tion which was going to be required to resolve the 
equal protection issue. To be sure, Respondent has 
found no decisions involving court ordered affirmative 
action in public employment in which Equal Protec­
tion was the dispositive issue, most challenges being 
based on the scope of authority contained in 706(g) 
of Title VII, 42 U.S.C. 2000e-5, leading to judicially 
determined limitations and policy considerations which 
must be exercised when any affirmative action is con­
templated. To this end, this court is now called upon 
to articulate the specific limitations which the equal 
protection guarantees of the Fourteenth and Fifth 
Amendments place on the form and effect of court 
ordered relief permitted under Title VII.

Any court which seeks to remedy employment dis­
crimination by creating racially preferenced, affirm­
ative action in the form of quota relief finds its



14

remedial authority in 706(g) Title VII, Civil rights Act 
of 1964. Specifically this section states:

“ If the court finds that the respondent has 
intentionally engaged in or is intentionally 
engaging in an unlawful employment practice 
charged in the complaint, the court may en­
join the respondent from engaging in such 
unlawful employment practice, and order such 
affirmative action as may be appropri­
ate . . (emphasis added)

Emphasis is added because it is precisely these words 
in the statute which are most important when it be­
comes necessary to scrutinize affirmative action which 
impinges on the rights of innocent nonminorities. As 
will be discussed, in Equal Protection analysis, the 
limitations on the authority given courts pursuant to 
706(g) is of considerable importance because these 
limitations serve the purpose of protecting the inter­
est of those who must bear the sacrifice any time 
affirmative action in the form of quota relief is 
awarded.

Pursuant to 706(g) of title VII the district court 
below has invoked its authority to order affirmative 
race-conscious relief at a time when no remedy for 
intentional discrimination was warranted. It has with­
out valid justification utilized race as the means of 
enforcement of consent decrees having racially neutral 
purposes. Whats worse, when called upon to assist in 
fashioning a promotional procedure which is “ fair to 
all applicants”  the court has seen fit to order pro­
motion of objectively less qualified individuals over 
others simply because of their race. Such a casual 
waving aside of fundamental Fourteenth Amendment



15

rights of individual members of one race was seem- 
iugly justified by a need to correct an obvious im­
balance in the ranks of members of the other race.

This distorted logic used by the Court of Appeals 
to uphold the actions of the district court can be 
traced to a wholly unwarranted connection of drawn 
by that court between the court’s 14 year old finding 
of discrimination in hiring and present statistical un­
derrepresentation of minorities in the higher ranks of 
the Department. Not a single promotion, however, 
awarded the individuals members of the preferred race 
under the courts order was at any time found to be 
denied those individuals by any actions attributable 
to the Department. Therefore, it is beyond all logic 
that the racial preferences ordered by the court can 
by justified under the guise of remedying present ef­
fects of the department’s discriminatory acts. Without 
such justification no purpose or objective of the court 
can be so overriding as to overwhelm the equal pro­
tection guarantees belonging to the innocent nonmi­
norities that necessarily must be sacrificed or at least 
set aside in the name of affirmative action.

Under the strictest of scrutiny and most exacting 
standards which all racial classification appropriately 
demand in equal protection analysis the quota relief 
awarding promotions on the basis of race alone cannot 
be countenanced.



16

ARGUMENT

COURT ORDERED RACE CONSCIOUS QUOTA RE­
LIEF IN THE PRESENT CASE IS IMPERMISSIBLE 
UNDER THE EQUAL PROTECTION CLAUSES OF 
THE FOURTEENTH AND FIFTH AMENDMENTS
I. STRICT SCRUTINY IS THE ONLY STANDARD OF 

REVIEW APPLICABLE TO DETERMINE WHETHER 
COURT ORDERED RACE CONSCIOUS RELIEF IS 
CONSTITUTIONAL.

The Equal Protection clause of the Fourteenth 
Amendment requires equal treatment of all persons 
under the law stating in pertinent part “ [n]o State 
shall . . . deny to any person within its jurisdiction 
the equal protection of the laws.”  The equal protec­
tion guarantees of the Constitution belong to all per­
sons regardless of race, color, creed, nationality or 
sex. “ Distinctions between citizens solely because of 
their ancestry [are] ‘odious to a free people whose 
institutions are founded upon the doctrine of equal­
ity” ’ . Fullilove v. Klutznick, 448 U.S. 448, 497, (1980) 
(concurring opinion of Powell, J.); quoting Loving v. 
Virginia, 388 U.S. 1, 11, (1967), quoting Hirabayaski 
v. United States, 320 U.S. 81, 100, (1943). Such “ ra­
cial and ethnic distinctions . . . are inherently suspect 
and thus called for the most exacting judicial exam­
ination.”  Regents o f University o f California v. Bakke, 
438 U.S. 265, 291, (1978). For these reasons, ‘ “ it is 
. . . firmly settled that any racial classification ema­
nating from [state action]’ , Loving v. Virginia, supra, 
388 U.S. at 10, ‘carries the heaviest possible pre­
sumption of unconstitutionality’ ” .

The one-for-one promotional quota imposed by the 
district court explicitly classifies the employees of the 
Alabama Department of Public Safety along racial



17

lines inherently raising issues of reverse discrimina­
tion. Because this relief awards promotion to individ­
uals based on racial criteria, such racial preference 
“ must necessarily receive a most searching exami­
nation to make sure that it does not conflict with 
constitutional guarantees” . Fullilove v. Klutznick, su­
pra, 448 U.S. at 491. According to Justice Powell 
concurring in the Fullilove opinion, these “ [rjacial 
classifications must be assessed under the most strin­
gent level of review because immutable characteris­
tics, which bear no relation to individual merit or 
need, are irrelevant to almost every governmental 
decision” . (Id. at 496).

The Court of Appeals for the Eleventh Circuit, how­
ever, employed a much lesser standard in reviewing 
the appellants equal protection challenge of the dis­
trict court’s imposition of a promotional quota.

The eleventh circuit appeared to justify the district 
court’s action primarily on the authority of South 
Florida Chapter, supra, in which it articulated its 
perception of this Court’s common concerns in the 
fragmented opinions expressed in Bakke and Fulli­
love: (1) that the governmental body have the au­
thority to pass such legislation; (2) that adequate 
findings have been made to ensure that the govern­
mental body is remedying the present effects of past 
discrimination rather than advancing one racial or 
ethnic group’s interests over another; and (3) that the 
use of such classifications extend no further than the 
established need of remedying the effects of past dis­
crimination. (Id. at 851-852). In accepting these per- 
ameters as the appropriate “ test”  to apply to an equal 
protection challenge of an affirmative action plan, the 
Eleventh Circuit in South Florida Chapter specifically



18

rejected the district court’s conclusion that strict scru­
tiny was the proper standard. In applying this “ test”  
. . .  to the facts of the present case, it is obvious the 
courts rejected strict scrutiny standard of review. It 
cannot be denied, however, applying anything less 
than “ strict scrutiny”  is clearly erroneous.

This conclusion is verified by this Court’s recent 
decision in Wygant v. Jackson Board o f Education, .
U.S. ___, 106 S.Ct. 1842, 91986) which was decided
on equal protection grounds. Inasmuch as the 
petitioners in that case challenged the constitution­
ality of racial preferences in a collective-bargaining 
agreement rather than court ordered racial prefer­
ences, the limitations and policy considerations im­
portant in Wygant are different from those presented 
here. Nevertheless, the constitutional standard appli­
cable in Wygant is equally applicable to the 
petitioner’ s present equal protection challenge. A c­
cording to Justice O’Connor, concurring specially:

“ the analysis and level of scrutiny applied to 
determine the validity of [a racial] classifi­
cation do not vary simply because the objec­
tive appears acceptable to individual members 
of the court. While the validity and impor­
tance of the objective may effect the outcome 
of the analysis, the analysis itself does not 
change.”  (Id., at 1853); quoting Mississippi 
University fo r  Women v. Hogan, 458 U.S.
718, 724, n.9, (1982).

The majority in Wygant specifically “ recognized that 
the level of scrutiny does not change merely because 
the challenged classification operates against a group 
that historically has not been subject to governmental



19

discrimination.”  {id. at 1846). Thus, the constitutional 
standard applicable to all equal protection challenges 
are the same.

According to Wygant, judicial review of any racial 
preference or classification must necessarily involve 
a “ most searching examination to make sure that it 
does not conflict with constitutional guarantees” . 
(Ibid), quoting Fullilove v. Klutznick, supra, 448 U.S. 
at 491, (1980) (opinion of BURGER, C.J.). This ex­
amination according to this Court involves two prongs.

First, any racial classification ‘must be jus­
tified by a compelling governmental interest’ . 
Palmore v. Sidoti, 466 U.S. 429, 432, (1984);
See Loving v Virginia, 388 U.S. 1, 11, (1971) 
(alienage). Second, the means chosen by the 
State to effectuate its purpose must be ‘nar­
rowly tailored to the achievement of that 
goal’ . Fullilove, 448 U.S., at 480.

Wygant, supra, at 1846. The court ordered racial 
preferences in the present case must unquestionably 
be examined under strict scrutiny. Furthermore, the 
judicial determination to be made in the present case 
is whether the promotional quota ordered by the dis­
trict court below is “ supported by a compelling state 
purpose and whether the means chosen to accomplish 
that purpose are narrowly tailored.”  {Id. at 1847). The 
court below failed to make this determination apply­
ing a “ reasonableness”  standard. For this reason the 
decision must be reversed.
II. THE PROMOTION QUOTA ORDERED BY THE 

COURT CANNOT PASS STRICT SCRUTINY

What facts or circumstances need be demonstrated 
for a court to order one individual promotion over



20

another solely on the basis of race without such an 
order violating the equal protection provisions of the 
Constitution?

To properly scrutinize the constitutionality of court 
ordered affirmative action which incorporates racial 
preferences, analysis must necessarily begin by fo­
cusing on the objective the court seeks to achieve. 
This is true because no classification based, on race 
can be justified unless it furthers a compelling gov­
ernment purpose and, even then, only i f  no less re­
strictive alternative is available. See eg. Bakke, supra, 
438 U.S., at 290-306. Thus, any racial preference or­
dered by a district court pursuant to its statutory 
authority under 706(g), 42 U.S.C. 2000e-5, must by 
necessity further a purpose which is “ compelling”  be­
fore such racial preference can pass constitutional 
muster.

The concurring opinion of Justice Powell in Fulli- 
love defined the appropriate criteria for determining 
a legitimate interest in the context of race-conscious 
remedial relief in the following manner:

Because the distinction between permissible 
remedial action and impermissible racial pref­
erence rests on the existence of a constitu­
tional or statutory violation, the legitimate 
interest in creating a race-conscious remedy 
is not compelling unless an appropriate gov­
ernmental authority has found that such a 
violation has occurred. In other words, two 
requirements must be met. First, the gov­
ernmental body that attempts to impose a 
race-conscious remedy must have the au­



21

thority to act in response to identified dis­
crimination. c.f. Hampton v. Mow Sun Wong,
426 U.S. 88, 103. (1976). Second, the gov­
ernmental body must make findings that 
demonstrate the existence of illegal discrim­
ination. (Id. at 499). (1980).

The majority in Bakke, stated the criteria thusly:
Before relying on . . . findings in establishing 
a racial classification, a governmental body 
must have the authority and capability to es­
tablish, in the record, that the classification 
is responsive to identified discrimination (ci­
tations omitted) (Id, 438 U.S., at 309, (1978).

Wygant indicated it another way:
In particular, a public employer must ensure 
that, before it embarks on an affirmative ac­
tion program, it has convincing evidence that
remedial action is warranted. Id. ___U.S. _
., 106 S.Ct. 1848.

While “ guarantee of equal protection”  was a com­
mon issue in Fullilove, Bakke, and Wygant none of 
these cases involved judicial review of court ordered 
affirmative action. Fullilove involved a Congressional 
Act requiring preferences for minorities in local public 
work projects.7 Whereas, in Bakke, white males chal­
lenged an admissions program adopted by a state ent­

7 In Fullilove, the Court consistently stressed the scope of 
review was limited because they were reviewing not the remedial 
decree of a court but rather the legislative authority of congress 
noting “ Although the discriminatory activities were not identi­
fied with the exactitude expected in judicial or administrative 
adjudications it must remembered that ‘Congress may paint with 
a much broader brush than may this Court.’ ”



22

ity which reserved certain positions for 
“ disadvantaged” minority students. In Wygant non­
minority school teachers contested the validity of a 
provision in a collective bargaining agreement be­
tween a teachers union and a county school board 
under which preferential protection against layoffs 
was extended to minority employees.

If Congressional acts, state university admission 
regulations, and union-county labor agreements which 
incorporate race-conscious preferences are violative of 
the equal protection clause if there is not identified 
racial discrimination, then it would certainly seem to 
follow that a court order imposing promotions based 
on race would be subject to at least the same, if not 
a higher, test.

Applying this criteria to the facts of the instant 
case under strict scrutiny there is no “ compelling”  
justification for ordering race-conscious affirmative 
action without making the most exact determination 
possible that discrimination exists. The Equal Protec­
tion Clause of the Fourteenth Amendment demands 
that before a district court invokes its equitable re­
medial authority under 706(g) of Title VII awarding 
racial preference to minority public employees at the 
expense of innocent nonminorities that court must 
make the most exact finding possible of specific, iden­
tifiable discrimination.

The last sentence of 706(g) limits the authority of 
the courts. It states: “ no order of the court shall 
require the . . . promotion of an individual as an em­
ployee . . .  if such individual was refused . . .  ad­
vancement . . . for any reason other than 
discrimination on account of race.”  Thus, without



23

finding specific, identifiable discrimination a district 
court has no authority to order a race-conscious rem­
edy, and no ‘ ‘compelling’ ’ governmental purpose ex­
ists to constitutionally permit such action.

The Court of Appeals speculated on appropriate 
standard it felt would be most applicable to the non­
minority’s equal protection claim. It decided the “ rea­
sonableness”  standard was most applicable. This 
standard, according to the Court, allow employment 
of racial classifications and goals to remedy the pres­
ent effects of past discrimination. The applicability of 
these standards, however, assume “ adequate findings 
have been made to ensure that the affirmative action 
is remedying the present effects of past discrimina­
tion.”  South Florida Chapter, supra, (Pet. Ap. 37a). 
To be sure, Justice O’Connor, concurring in Wygant, 
expressed a concensus among this Court that “ rem­
edying past or present racial discrimination by a state 
actor is a sufficiently weighty state interest to war­
rant the remedial use of a carefully constructed af­
firmative action program.”  (Id, at 1853). The same 
opinion, however, also stated: “ . . . remedying ‘socie­
tal’ discrimination, that is, discrimination [racial dis­
parities] not traceable to [the actor’s] own actions, 
cannot be deemed sufficiently compelling to pass con­
stitutional muster under strict scrutiny” . (Id, at 1854).

The opinions of the courts below strongly indicate 
the quota relief ordered was to correct racial imbal­
ance rather than to remedy actual effects of past 
discrimination. The district court remarked that out 
“ of the 6 majors, there is still not one blacks. 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



24

corporals, only four are black.”  (Pet. App. 60a). Thus, 
“ [i]n light of the severe racial imbalance in the upper 
ranks, the [district] court agrees . . .  at least 50% of 
all those promoted to corporal and above must be 
black troopers” . (Pet. App. 60a-61a). The eleventh 
Circuit agreed that the district court’s order would 
“ accomplish the objective of remedying the ‘egre­
gious’ and long-standing racial imbalances in the up­
per ranks of the Department. (Pet. App. 41a) and 
was “ designed only ‘to eliminate a manifest and 
chronic racial imbalance’ caused by the Department’ s 
conduct.”  (Ibid.) The court reasoned that in light of 
the manifest racial imbalance, due regard given to 
the history of discrimination in the Department, it 
had not only the power but the duty to impose af­
firmative race-conscious promotional quotas to rem­
edy the “ intolerable disparities.”  The one-for-one 
promotional quota according to the district court was 
“ necessary, reasonable, and appropriate under the cir­
cumstances”  to correct the present racial imbalance 
in the ranks.
However, there was _ never a finding by the district 
court that the Department’s promotional procedures 
or lack thereof constituted racial discrimination.

In the present case, the District Court on February 
10, 1972, found within the Alabama Department of 
Public Safety “ a pattern and practice of discrimina­
tion in hiring.”  NAACP v. Allen, 340 F.Supp. 703- 
705 (1972); a one-for-one hiring quota was imposed 
in that court order. Id., 340 F.Supp. at 706; in a later 
order defining the perameters of the hiring quota, the 
District Court specifically stated that the court was 
not imposing a promotional quota. The twenty-five 
percent (25%) hiring quota had been designed as “ an



25

impetus to promote blacks.”  Paradise v. Shoemaker, 
470 F.Supp. 439, 442 (M.D. N.D. Ala. 1979). There 
has never been a judicial finding of purposeful dis­
crimination in promotions, or an admission of such. 
Neither has there ever been a judicial determination 
that the racial disparity among the ranks were related 
in any way to the findings of discrimination in hiring 
in 1972. This particular history of discrimination in 
hiring along with the existence of “ severe racial im­
balance” , however, was obviously considered by the 
Court of Appeals as sufficient criteria to impose the 
one-to-one promotional quota in order to remedy the 
present effects of the Department’s past discrimina­
tion. The Department of Public Safety’ s repeated re­
quest for an opportunity to introduce evidence to 
support a contrary finding was denied by the district 
court. The Department of Public Safety was denied 
the right to show the reasons why acceptable pro­
cedures for promotion to corporal had not been 
adopted or presented. It is always important to re­
member no promotions had been made, black or white, 
during the period in question.

The line of demarcation with respect to when racial 
or ethnic criteria imposed by the Courts unconstitu­
tionally trammel s the rights of nonminorities remains 
undetermined. This court has stated however, “ racial 
classifications are simply too percunious to permit any 
but the most exact connection between justification 
and classifications” . Regents o f University o f Califor­
nia v. Bakke, 438 U.S. 265, 291, (1978) (opinion of 
POWELL, J., joined by WHITE, J.) Furthermore, it 
is well established that for remedial relief which “ con­
tains race-conscious relief affecting third parties, some 
well substantiated claim of racial discrimination



26

against the plaintiff class is necessary ‘to ensure that 
new forms of invidious discrimination are not ap­
proved in the guise of [race-conscious remedies].’ ” 
Kirkland v. New York St. Department o f Correctional 
Services, 711 F.2d 1117, 1130 (2d. Cir. 1983), quoting, 
Setser v. Novak Investment Company, 657 F.2d 962, 
968 (8th Cir. 1981) (en banc) See e.g., General Bldg. 
Contractors A ss ’n v. Pennsylvania, 458 U.S. 375, 
(1982).

It cannot be denied that the existence of illegal 
discrimination justifies the imposition of a remedy that 
will ameliorate the disabling effects of identified dis­
crimination. Such relief will necessarily “ make person 
whole for injuries suffered on account of unlawful . . . 
discrimination.”  Albermarle Paper Co. v. Moody, 422 
U.S. 405, 418 (1975). The critical inquiry, however, 
is whether the relief ordered is directed at redressing 
such discrimination. In the present case nothing what­
soever about the Department’s past discrimination in 
hiring was shown to have any disabling effect on 
promotions to members of the plaintiff class. There 
are many reasons other than discrimination for the 
racial imbalances in the ranks of the Department. 
Under the guise of remedying the “ present-effects- 
of-past-discrimination”  both courts below approved the 
existing racial imbalance in the ranks as criteria for 
ordering the 50% promotional quota. Such justifica­
tion is erroneous.

This court has recently expressed its disapproval in 
the use of “ societal discrimination”  as justification for 
affirmative action based on race:

Societal discrimination, without more, is too
amorphous a basis for imposing a racially



27

classified remedy. . . There are numerous ex­
planations for a disparity between the per­
centage^]. . ., many of them completely 
unrelated to discrimination of any kind. [A]s 
the basis for imposing discriminatory legal 
remedies that work against innocent people, 
societal discrimination is insufficient and over 
expansive. Wygant v. Jackson Board o f Ed­
ucation, 106 S.Ct. 1842, 1846 (1986).

Inasmuch as the facts of the present case involve 
a undisputed finding of discrimination in hiring within 
the Department almost fourteen years ago any dis­
cussion about the use of societal discrimination as the 
sole criteria for race-conscious relief would appear 
irrelevant. The relevance becomes evident, however, 
when it is understood that the promotional quota or­
dered by the court bears no relationship to the harm 
caused by prior discriminatory hiring practices. A c­
cording to Wygant, [i]n the absence of particularized 
findings, a court could uphold remedies that are age­
less in their reach into the past, and timeless in their 
ability to affect the future.”  (Ibid.)

“Where a racial imbalance is unrelated to discrimi­
nation, 703(j) [and the equal protection clause with re­
spect to public employees]8 recognizes that no justification 
exists for ordering that preference be given to anyone 
on account of this race” . Rios v. Enterprise Ass’n

8 See Local No. 93 v. City of Cleveland, ___ U .S.____ , 106
S.Ct. 3063, 3073, n.8 (1986).



28

Steamfitters, 501 F.2d 622 (1974).9 Furthermore, no 
case upholds any purported right of minorities to se­
cure “ proportional representation”  in a given rank 
where only a limited number of positions are available 
and where a performance test is the determining fac­
tor as to who attains these positions.

In this case, the court in keeping with the consent 
decrees was called upon to facilitate the implemen­
tation of racial neutral employment procedures which 
utilize objective, job related criteria for purposes of 
awarding an individual on merit. Instead, the court 
erroneously invoked its equitable authority to order 
promotions to individuals on the basis of race under 
the guise of remedying the effects of discrimination. 
On the record, there is no showing of any sort that 
the criteria used for promotions in the Department 
of Public Safety or the procedures developed by the 
Department of Personnel are not probative of quali­
fication and operate or have operated so as to dis­
criminate against certain racial or ethnic groups 
making up the plaintiffs class. There was no hearing

9 In Rios the 2nd Circuit determined § 703(j) does not prohibit 
the use of goals to eradicate the effects of past discriminatory 
practices but is intended to bar preferential quota relief as a 
means of changing a racial imbalance attributable to causes other 
than unlawful discriminatory conduct. Rios, which held the sub­
ject quota order in hiring did not violate § 703(j), is distinguish­
able from the case at bar because the court there made an exact 
determination that the imbalance was directly caused by past 
discriminatory practice. The hiring quota in that case remedied 
a history of de facto discrimination in union admissions found 
previously. In the present case, the promotional quotas ordered 
by the court to remedy the racial imbalance in the ranks bear 
no relationship to the unlawful hiring practices of the Depart­
ment 14 years ago.



29

designed to determine whether there was any evi­
dence or racial discrimination in promotion.

The rationale of the court below justifying use of 
the one-black-for-one-white promotional quota to cor­
rect the “ intolerable [racial] disparities”  in the ranks 
appears to contemplate a “ substantive constitutional 
right [to a] particular degree of racial balance or mix­
ing”  which this court has expressly disapproved in 
Swann v. Charlotee-Mecklenburg Board of Education, 
402 U.S. 1, 24, (1971). Pasadena City Board o f Ed­
ucation v. Spangler, 427 U.S. 424, 484. (1976). The 
promotional quota ordered by the district court which 
denies more qualified individuals their equal chance 
for promotion did not satisfy even the test of “ ra­
tional relationship”  to permissible state objective as 
articulated in Shapiro v. Thompson, 394 U.S. 618, 
634 (1969), let alone satisfy the test of “ compelling 
state interest.” .

Even if the objective which the district court sought 
to achieve by the affirmative action order meets the 
exacting standards required to uphold the validity of 
a racial classification insofar as remedying the effects 
of prior discrimination establishes a compelling gov­
ernmental interest, this does not mean the court or­
dered promotion quota was proper under the 
circumstances. The court should order affirmative ac­
tion only when such relief is appropriate. “ A court 
must balance the various equities between the parties 
and decide upon a result which is consistent with the 
purposes of the Equal Employment Opportunities Act, 
and the fundamental concepts o f fairness” . (emphasis 
added) Schaeffer v. San Diego Yellow Cabs, Inc., 462 
F.2d 1002, 1006 (9th Cir. 1972). This policy consid­
eration was recently emphasized in Local 28 Sheet



30

Metalworkers’ International Assoc, v. EEOC, et al., 
(slip opinion), No. 84-1656, July 2, 1986:

Although we conclude that 706(g) does not 
foreclose a district court from instituting 
some sorts of racial preferences where nec­
essary to remedy past discrimination, we do 
not mean to suggest that such relief is al­
ways proper. While the fashioning of “ ap­
propriate”  remedies for-a particular Title VII 
violation [assuming there is one] invokes the 
‘equitable discretion of the district courts’ , 
we emphasize that a courts judgment should 
be guided by sound legal principles. In par­
ticular, they should exercise its discretion 
with an eye towards congress’ concern that 
race-conscious affirmative measures not be 
invoked simply to create a racially balanced 
work force.”  (Id. at 50); quoting Franks v. 
Bowman Transportation Co., 424 U.S. 747,
770.

Many equitable considerations relevant in the pres­
ent case indicate that the district court’s one-black- 
for-one-white promotional quota was improper. Spe­
cifically it conflicts with compelling governmental in­
terests of the Department and contravenes the 
purpose of Title VII itself, the very statute it is au­
thorized to enforce.

As previously discussed, the last sentence of 706(g) 
states that no order of the court can require the 
promotion of an employee if it was denied for reasons 
other than discrimination. Thus, the Equal Protection 
Clause demands under the strict scrutiny standard of 
review the court to make the most exacting deter­



31

mination that discrimination persists before affirma­
tive action is warranted. According to Wygant, 
“ unless such a determination is made, an appellate 
court reviewing a challenge to remedial action by non­
minority employees cannot determine whether the 
race-based action is justified as a remedy for prior 
discrimination.”  (Id, at 1848-1849). Such a determi­
nation requires the judicial consideration and elimi­
nation of other possible reasons for the alleged 
discrimination for which relief is sought.

The only evidence before the court when it ordered 
the promotional quota was the test results which in­
dicated if used in rank order would violate the four- 
fifths rule indicating that the test had an adverse 
impact. “ But [this court has never] embraced the 
proposition that a law or other official act, without 
regard to whether it reflects a racially discriminatory 
purpose, is unconstitutional solely because it has a 
racially disproportionate impact.”  Washington v. 
Davis, 426 U.S. 229, 239, (1976). At best the statis­
tical data established a prima-facie case creating an 
inference of discrimination. Once the plaintiff has met 
his initial burden of proof, however, the defendant is 
entitled to an opportunity to rebut plaintiff’s prima 
facie case. International Bro. o f Teamsters v. United 
States. 431 U.S. 324, (1977). Harris v. Birmingham 
Board o f Education, 712 F.2d 377 (11th Cir. 1983). 
Respondents in the case sub judice requested an ev­
identiary hearing in this regard, but were denied their 
opportunity to introduce any evidence. The court or­
dered the promotional quota in total disregard of the 
possibility plaintiffs prima facie case could be rebut­
ted.



32

The denial of a hearing requires reversal and re­
mand, since, “ [respondents] must . . .  be afforded a 
fair opportunity to show [no Title VII violation ex­
isted]” . McDonald-Douglas Corporation v. Green, 411 
U.D. 792 at 804.

The one-for-one promotional quota unquestionably 
operates against innocent nonminorities and in favor 
of blacks. The order has the effect of depriving more 
qualified applicants of their right to promotion while 
promoting others on the basis of their race. Such 
actions are repugnant to the Constitution in that the 
best qualified are treated unequally to others less 
qualified and are denied equal protection of the laws.

Inasmuch as a finding of adverse racial impact may 
have violated a policy provision of the consent decrees 
in this case, respondents submit that this alone does 
not justify such a drastic remedy as a one-black-for- 
one-white promotional quota. At the most, an injunc­
tion preventing the use of this procedure may have 
been warranted.

The imposition of such racial preferences at this 
juncture without a finding of intentional discrimina­
tion not only violates the Equal Protection guarantees 
of nonminorities but such relief is in direct contra­
diction of the statutory purpose of Title VII.

Title VII was designed by congress to achieve 
equality of employment opportunities. While Congress 
did not appear to dwell at length on the matter of 
the applicability of Title VII to white persons, vir­
tually every time the question was raised, the answer 
emphasized the Civil Rights Act prohibits all racial 
discrimination. One particular example can be found 
in Senator Williams’ remarks responding to the charge



33

that the Act seemed to compel an employer to grant 
preferential treatment to minorities:

“ Those opposed to H.R. 7152 should realize 
that to hire [or promote] a negro solely be­
cause he is a negro is racial discrimination, 
just as much as a ‘white only employment 
policy’ . Both forms of discrimination are pro­
hibited by Title VII of this Act. The language 
of that title simply states that race is not a 
qualification for employment. Every man 
must be judged according to his ability. In 
that respect, all men are to have an equal 
opportunity to be considered for a particular 
job. Some people charge that H.R. 7152 fa­
vors the negro, at the expense of the white 
majority. But how can the language of equal­
ity favor one race over another? Equality can 
have only one meaning, and that meaning is 
self evident to reasonable men” .

Legislative History of Title VII and XI of the Civil 
Rights Act of 1964, United States Equal Employment 
Opportunity Commission, U.S. Government Printing 
Office. (1969) p. 3189.
III. THE COURT ORDERED QUOTA RELIEF CON­

TRAVENES OTHER COMPELLING GOVERN­
MENTAL INTERESTS

Inasmuch as the Court of Appeals applied a “ rea­
sonableness”  standard to test the validity of the 
means chosen by the district court to enforce the con­
sent decrees, the decision below must be reversed 
because “ that standard has no support in the deci­
sions of this Court” . Wygant, at 1849. “ Under strict 
scrutiny the means chosen to accomplish the State’s



34

asserted purpose must be specifically and narrowly 
framed to accomplish that purpose” . (Id. at 1850).

The one-black-for-one-white promotional quota or­
dered by the district court appears to totally disre­
gard the purpose of the consent decrees entered into 
between the parties. Respondents respectfully submit 
at the time the court ordered the challenged racial 
preference the most compelling governmental need was 
a racially neutral promotion procedure. Thus, quota 
relief purportedly fashioned by the court to “ address 
the delay in developing acceptable promotional pro­
cedures for all ranks”  (Pet. App. 61a) was most in­
appropriate under the circumstances especially 
considering no promotions, white or black, had been 
awarded except pursuant to the consent decrees.

The order of the court also bears no relationship 
to the goal of the parties which is to devise proce­
dures “ fair to all” . Actually it frustrates the purpose 
of the consent decrees and contravenes the preferred 
means of achieving the objectives of Title VII and 
the Constitution. See e.g., Local Number 93, Inter­
national Association o f Firefighters v. City o f Cleve­
land, Slip opinion, No. 84-1999, July 2, 1986. Neither 
does the order reflect the good faith efforts made by 
the Department to accomplish the consent decree ob­
jectives.

The Department of Public Safety and the Depart­
ment of Personnel had no opportunity to offer evidence 
justifying the delay. Under the Consent Decrees the 
defendants had agreed to devise promotional proce­
dures which complied with the four-fifths rule, a much 
more stringent standard than normally required of pub­
lic or private employers. The difficulty involved in de­
signing such procedures was never permitted to be



35

illustrated to the district court. The Department of 
Public Safety was not even permitted to show that 
the Department of Personnel was the only state 
agency equipped to design promotional procedures 
from a staffing standpoint and under the provisions 
of the Alabama Employees Merit System Act. In sum­
mary, efforts to comply with the consent decrees were 
considered irrelevant. Now compliance has been 
achieved at all promotional levels to which blacks are 
eligible for promotion.

Wygant so aptly noted that public employers must 
act in accordance with a “ core purpose of the Four­
teenth Amendment”  which is to “ do away with all 
governmentally imposed distinctions based on race.”  
(Id, 1848); quoting Patmore v. Sidoti, 466 U.S., at 
432, 104 S.Ct., at 1881-1882. To this end, the parties 
in this dispute had executed voluntary consent decrees 
having as their objective the utilization of a promotion 
procedure which is “ fair to all applicants” . The agree­
ment consisted of the racially neutral purpose to im­
plement a method assuring equality in the 
Department’s promotion procedures. The district court 
was called upon to facilitate this purpose. Instead, 
the court interjected race as the means to “ enforce” 
the consent decrees. The promotions awarded solely 
on account of trace contradict the very purpose of 
Title VII and likewise, frustrate the purpose of the 
parties’ consent decrees and the compelling govern­
mental interest of the Department. It is respectfully 
submitted such action by the court cannot be coun­
tenanced under the Equal Protection Clause of the 
Fourteenth Amendment.



36

CONCLUSION

For the foregoing reasons, the judgment below 
should be reversed.

Respectfully submitted,

Edward L. Hardin, Jr.
Attorney for Respondents 
Alabama Department of 
Public Safety

August 1986