Pulaski County Special School District No. 1 v. Little Rock School District Response to Petitions for Writs of Certiorari

    No.

Jtt %  i&ujxrottr (tort uf %  Wnxttb
October Term, 1985

United States of A merica, petitioner 

v.

Phillip Paradise, Jr., et al .

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

Charles Fried 
Solicitor General

W m . Bradford Reynolds 
Assistant Attorney General

W alter W. Barnett 
M ichael Carvin 

Attorneys
Department of Justice 
Washington, D.C. 20530 
(202) 633-2217



QUESTIONS PRESENTED

1. Whether the district court’s provision of sup­
plemental relief to private plaintiffs in the form of 
a one-black-for-one-white promotion quota for state 
troopers constitutes a modification of the promotion 
requirements o f two existing consent decrees and is 
justified by any post-decree discrimination or other 
changed circumstances.

2. Whether the one-black-for-one-white promotion 
quota imposed by the district court is permissible 
under Title VII of the Civil Rights Act of 1964, 42 
U.S.C. 2000e et seq., inasmuch as it accords prefer­
ential treatment to black applicants for promotion 
who have not been identified as actual victims of 
racial discrimination.

3. Whether the one-black-for-one-white promotion 
quota is permissible under the equal protection guar­
antees of the Fourteenth and Fifth Amendments to 
the United States Constitution. *

* The questions presented in this petition all relate to the 
first of two consolidated appeals decided together by the court 
of appeals; the parties are therefore listed above according 
to their status in that appeal, No. 84-7053. The other appeal 
was not a cross-appeal, as the court of appeals’ caption sug­
gests, but rather an appeal from a later district court order 
not involved in this petition; in that appeal, No. 84-7564, the 
defendants-intervenors were appellants and the other parties 
were all appellees.

(i)



II

PARTIES TO THE PROCEEDINGS

The parties to the proceedings before the court of 
appeals were as follows: the United States of Amer­
ica, plaintiff-appellant; Phillip Paradise, Jr., and the 
class he represents, plaintiffs-appellees; the Alabama 
Department of Public Safety and its director, Byron 
Prescott, defen dants-appellees; and V. E. McClellan, 
William M. Bailey, D. B. Mansell, Dan Davenport, 
and the class they represent, defendants-intervenors- 
appellees.



TABLE OF CONTENTS
Page

Opinions below ....................................................................  1

Jurisdiction ........................................................................... 1

Statement ................... .................................................... _____ 2

Reasons for granting the petition...............       9

Conclusion ............................................................................  14

Appendix A .................................    i a

Appendix B _____________        55a

Appendix C ..... .........               57a

Appendix D ...........................................................................  65a

Appendix E .........  74a

Appendix F ........................................................................... 80a

Appendix G ...............................................................    82a

TABLE OF AUTHORITIES
Cases:

Firefighters Local Union No. 178U v. Stotts, No.
82-206 (June 12, 1984) ......... .......................8,10,12,13

Local 28, Sheet Metal Workers’ International As­
sociation v. EEOC, cert, granted, No. 84-1656
(Oct. 7, 1985) ...........................................10, 11, 12, 13, 14

Local No. 93, International Association of Fire- 
fi,ghters v. City of Cleveland, cert, granted No
84-1999 (Oct. 7, 1985) ............. ...................l 0, 11, 12, 14

Milliken v. Bradley, 418 U.S. 717 ........... 13
NAACP v. Allen, 340 F. Supp. 703, aff’d, 493 F.2d

614 ..............................................  2
United States v. Swift & Co., 286 U.S. 106_____  10
Wygant v. Jackson Board of Education, cert, 

granted, No. 84-1340 (Apr. 15, 1985)___ 11, 12,13,14

( i n )



IV

Constitution and statutes: Page
U.S. Const. Amend. XIV (Equal Protection

Clause) ..........................................-.........-.......- 8, 9,11,13
Civil Rights Act of 1964, Tit. VII, 42 U.S.C.

20.00e et seq. --------- ----------- -------------------- -------  9
§ 706(g), 42 U.S.C. 2000e-5 (g) - - - ...............  10,13

Miscellaneous:
Uniform Guidelines on Employee Selection Proce­

dures, 43 Fed. Reg. 38290-38309 (1978) .............. 3, 9



3tt %  Bnpmnt (Emtrt at %  Xtttteft §>tate
October Term, 1985

No.

United States of A merica, petitioner

v.

Phillip Paradise, Jr., et al .

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

The Solicitor General, on behalf of the United 
States o f America, petitions for a writ of certiorari 
to review the judgment o f the United States Court 
of Appeals for the Eleventh Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 
la-54a) is reported at 767 F.2d 1514. The order and 
memorandum opinion of the district court (App., 
infra, 55a-64a) are reported at 585 F. Supp. 72.

JURISDICTION

The judgment of the court of appeals (App., infra, 
80a-81a) was entered on August 12, 1985. On No­

ll )



2

vember 5, 1985, Justice Powell extended the time to 
petition for certiorari to and including December 10, 
1985. The jurisdiction of this Court is invoked under 
28 U.S.C. 1254(1).

STATEMENT

This employment discrimination case involves a 
challenge to a one-black-for-one-white promotion quota 
imposed by a district court, ostensibly pursuant to 
earlier consent decrees in this litigation.

1. The NAACP brought this class action suit 
against the Alabama state trooper force in January 
1972. The United States was made a party plaintiff, 
and Phillip Paradise, Jr., was permitted to intervene 
on behalf of a class of black plaintiffs (Paradise) 
shortly thereafter.

In the initial phase of the suit, the district court 
determined that the Alabama Department of Public 
Safety and other state defendants (the Depart­
ment) had engaged in a pattern and practice of 
discrimination in hiring; enjoined them from engag­
ing in employment practices for the purpose or with 
the effect o f discriminating on the basis of race or 
color; and ordered them to hire one black trooper for 
each white trooper hired until blacks comprised 25 
percent of the state trooper force. NAACP  v. Alien, 
340 F. Supp. 703 (M.D. Ala. 1972), aff’d, 493 F.2d 
614 (5th Cir. 1974).1 Three years later, in August 
1975, the court granted supplemental relief after con­
cluding that the Department had artificially re­

1 The former Fifth Circuit explicitly limited its approval 
of the quota relief granted to the hiring context, “ pretermit- 
[ting] any intimation of a position as to promotion practices” 
(493 F.2d at 622 n.12).



3

stricted the size o f the trooper force and the number 
of new troopers hired in order to frustrate the 
court’s 1972 order (see App., infra, 7a-8a). Further 
supplemental relief was granted in two consent de­
crees, one entered in February 1979 (id. at 71a-79a) 
and the other in August 1981 (id. at 65a-70a).

2. The 1979 consent decree resolved several issues 
then before the court, including the matter of promo­
tions. The Department agreed to “have as an ob­
jective * * * an employment and promotion system 
that is racially neutral”  (App., infra, 72a), and “ not 
to engage 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.). With respect to 
promotions, the Department specifically agreed “ to 
have as an objective the utilization of a promotion 
procedure which is fa ir 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 corporal”  (id. at 74a). 
The Department also agreed, pursuant to that objec­
tive, to develop within one year from entry of the 
decree, and to submit for the other parties’ review 
and the court’s approval, a procedure for corporal 
promotions conforming with the 1978 Uniform Guide­
lines on Employee Selection Procedures, 43 Fed. Reg. 
38290-38309, and having little or no adverse impact 
on blacks (App., infra, 74a-75a). Upon completion 
of validation of the promotion procedure for corporal 
promotions, the Department was to begin validation 
of promotion procedures for the positions of sergeant, 
lieutenant, captain, and major, in turn (id. at 75a). 
In the interim, the Department was to use the state 
merit system for all corporal promotions and to pro­



4

mote at least three black troopers to- the rank of cor­
poral {ibid.). More detailed interim procedures were 
set forth in an agreement between the parties and, 
pursuant to the consent decree and that agreement, 
four black troopers and six white troopers were pro­
moted to corporal positions in February 1980.

Over two years after entry of the first consent 
decree, the Department moved for approval o f a 
written examination for promoting corporals. Be­
cause the examination had not been validated in ac­
cordance with the standards set forth in the Uni­
form Guidelines, Paradise and the United States took 
the position that its use would not be justified if  the 
results had an adverse impact on black applicants. 
However, in a second consent decree entered in Au­
gust 1981 (App., infra, 65a-70a), the parties agreed 
that the examination would be administered and 
scored; that the scores would be used in conjunction 
with other factors to rank applicants on a promotion 
register; and that the promotion register would then 
be reviewed “ to determine whether the selection pro­
cedure has an adverse impact against black appli­
cants” {id. at 68a), either as to the initial group of 
promotions to be made or as to all promotions an­
ticipated during the life o f the register. I f the selec­
tion procedure had little or no adverse impact on 
blacks, selections were to be made in rank order 
from the promotion register; i f  the selection proce­
dure did have an adverse impact on blacks, the De­
partment was to propose an alternative procedure for 
promotions to be made “ in a manner that does not 
result in adverse impact for the initial group of pro­
motions or cumulatively during use of the procedure” 
{id. at 69a). I f  the parties could not agree on an 
appropriate promotion procedure, the matter was to- 
be submitted to the court for resolution {ibid.).



5

The Department’s 1981 examination was admin­
istered and scored, and a promotion register was pre­
pared. In June 1982, the Department advised the 
United States that there was a current need for 8-10 
promotions to corporal, and that it was anticipated 
that a total of 16-20 corporal promotions would be 
made from the 1981 promotion register. We re­
sponded by advising the Department that, in our 
view, rank-ordered use of the unvalidated 1981 pro­
motion procedure would result in a substantial ad­
verse impact on black applicants for promotion, and, 
accordingly, the Department should submit an alter­
native proposal for making promotions in conformity 
with the 1979 and 1981 consent decrees. No such 
proposal was submitted to us, and no promotions were 
made, during the next nine months.

3. In April 1983, Paradise filed a “motion to en­
force”  the terms of the 1979 and 1981 consent de­
crees, seeking a court order requiring the Depart­
ment to' promote qualified black troopers to all upper 
rank positions in equal numbers with white troopers 
until either approximately 25% of each rank above 
entry level is black or promotion procedures comply­
ing with the consent decrees have been developed and 
implemented.

The United States agreed that the consent decrees 
should be enforced, but opposed imposition o f a one- 
black-for-one-white promotion quota. V. E. McClel­
lan and three other white troopers were permitted to 
intervene on behalf of a class composed of the top- 
ranked white applicants for promotion to corporal on 
the 1981 promotion register (McClellan). McClellan 
and the Department also opposed imposition o f a pro­
motion quota.

In an order entered October 28, 1983, the district 
court found that use o f the Department’s 1981 selec­



6

tion procedure would have an adverse impact on 
blacks, prohibited its use, and ordered the Depart­
ment to submit a proposal for making at least 15 
corporal promotions in a manner that would not have 
an adverse racial impact. 580 F. Supp. 171 (M.D. 
Ala. 1983). The court indicated that, if  the parties 
could not agree on a promotion plan, the issue of 
corporal promotions would be deemed submitted for 
resolution by the court pursuant to the 1981 consent 
decree. When the other parties objected to the pro­
posal submitted by the Department pursuant to the 
court’s October 1983 order, the court took the matter 
under advisement.

4. On December 15, 1983, the district court issued 
an order and memorandum opinion granting Para­
dise’s “motion to enforce” and the relief requested. 
585 F. Supp. 72 (App., infra, 55a-64a). The court 
found that as of the date of decision there were still 
only four blacks among the Department’s upper ranks 
(id. at 60a), and that the Department was still “with­
out acceptable procedures for advancement of black 
troopers”  into these ranks (ibid.). Based on these 
findings, the court entered an order enjoining the 
Department “ from failing to promote from this day 
forward, 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 to 
the rank”  (id. at 56a).2 The court further ordered 
this promotion quota to “ remain in effect as to each 
trooper rank above the entry-level rank until either 
approximately 25% of the rank is black or the [De­
partment has] developed and implemented a promo­
tion plan for the rank which meets the prior orders 
and decrees of the court and all other relevant legal

2 On February 6, 1984, eight black and eight white troop­
ers were promoted to corporal pursuant to this order.



7

requirements” (ibid.). Finally, the court gave the De­
partment 35 days to submit for the court’s approval 
a schedule for the development of promotion proce­
dures for all ranks above the entry-level rank (ibid.).s

5. The United States, the Department, and Mc­
Clellan appealed to the United States Court of Ap­
peals for the Eleventh Circuit. On August 12, 1985, 
the court of appeals affirmed the district court’s or­
der imposing the one-black-for-one-white promotion 
quota. 767 F.2d 1514 (App., infra, la-54a). The 
court of appeals held that the quota, order did not 
constitute a modification of the 1979 and 1981 con­
sent decrees, as those decrees are concerned with the 
impact of proposed promotion procedures “ on blacks, 
and blacks alone,”  do not prohibit procedures ad­
versely impacting on whites, and expressly authorize 
plaintiffs to apply for an order enforcing their terms 
or providing any other appropriate relief (id. at 
26a).

The court of appeals also held that the quota order 
did not exceed the district court’s remedial authority 3

3 The Department submitted such a schedule, and as of this 
date has developed promotion procedures for corporals and 
sergeants. Both procedures have been approved for use on 
a temporary basis for a limited number of promotions, and 
the one-black-for-one-white quota has been temporarily sus­
pended for purposes of those promotions. The district court’s 
order approving the procedure for corporals was appealed by 
McClellan, and was affirmed by the court of appeals along 
with the quota order (App., infra, 45a-54a). Pursuant to the 
temporary promotion procedures approved by the district 
court, the Department has promoted twelve troopers, of whom 
three (25%) are black, to corporal and four troopers, of 
whom one (25%) is black, to sergeant. This case is not 
moot, however, since no promotion procedures have been ap­
proved for permanent use, and the one-black-for-one-white 
quota remains in effect with respect to all other promotions.



8

under Title VII (id. at 28a-35a), rejecting our read­
ing o f this Court’s decision in Firefighters Local 
Union No. 178U v. Stotts, No. 82-206 (June 12, 
1984), as prohibiting the award of any affirmative 
equitable relief that benefits persons not found to 
have been actual victims of discrimination. While 
conceding that “ a superficial reading of Stotts sup­
ports [the government’s] position”  (App., infra, 
31a), the court viewed that case as “ limited to its 
own facts, and factually and legally distinguishable 
from the one at bar” (ibid.). Specifically, it distin­
guished the instant case from Stotts on the grounds 
that here (1 ) the challenged order does not require 
overriding a bona fide seniority system; (2 ) there 
were judicial findings of past intentional discrimina­
tion against blacks, and the consent decrees being 
enforced were intended to overcome that discrimina­
tion; (3 ) the case was brought primarily under the 
Fourteenth Amendment rather than under Title V I I ; 
and (4 ) the case involves the enforcement o f a volun­
tarily negotiated consent decree rather than the mod­
ification of such a decree over the objection of one of 
the parties.

Finally, the court of appeals held that the quota 
order does not violate the Equal Protection Clause 
(App., infra, 35a-42a), because of “ the long history 
of discrimination in the Department”  (id. at 39a), 
and because of “ the fact that the relief now at issue 
was designed to remedy the present effects of past 
discrimination” (id. at 40a) and “ is substantially 
related to the objective of eradicating [those effects] 
and extends no further than necessary to accomplish 
[that] objective” (id. at 41a). The court of appeals 
agreed with the district court that the promotion 
quota “ is a temporary measure designed only To



9

eliminate a manifest and chronic racial imbalance’ 
caused by the Department’s conduct”  (ibid.), and 
noted that “ the district court’s order does not require 
the discharge or demotion of a white trooper or the 
replacement of a white trooper with a black trooper,” 
or the promotion of any unqualified black trooper 
(ib id .); the court of appeals also reasoned that “ white 
troopers are not barred by [the district court’s or­
der] from advancement through the ranks” (ibid.).

REASONS FOR GRANTING THE PETITION

This case presents questions of substantial and re­
curring importance regarding the limitations upon 
the remedial authority o f the federal courts in liti­
gation involving public employers brought under 
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
2000e et seq., and the Fourteenth Amendment to the 
United States Constitution. At issue here is the valid­
ity under these provisions of a racial preference ac­
corded to individuals who have not been identified as 
actual victims of racial discrimination at the expense 
of innocent third parties. Because this Court has 
agreed to hear several cases raising these issues this 
term, we suggest that the petition for certiorari be 
held pending disposition of those cases.4

4 In our view, the quota order we challenge here constitutes 
a modification of the earlier consent decrees in this case (see 
Question Presented # 1 ) .  The court of appeals, however, con­
cluded that this quota order simply enforces the consent de­
crees rather than modifying them (see page 7, supra). That 
determination involves an incorrect interpretation of the con­
sent decrees, which prohibit only procedures with an adverse 
impact and require the development of valid promotion pro­
cedures in accord with the Uniform Guidelines on Employee



10

1. This Court recently discussed the limitations 
that Section 706(g) of Title VII, 42 U.S.C. 2000e- 
5 (g ) , imposes upon a court’s remedial authority in 
Firefighters Local Union No. 178U v. Stotts, No. 82- 
206 (June 12, 1984). This petition seeks review of 
one of a series of recent lower court decisions uphold­
ing quota relief and giving the Court’s decision in 
Stotts what we regard as an overly narrow and im­
proper interpretation. The Court has recently agreed 
to hear two of those cases, Local No. 93, International 
Association of Firefighters v. City of Cleveland, cert, 
granted, No. 84-1999 (Oct. 7, 1985), and Local 28, 
Sheet Metal W orkers’ International Association v. 
EEOC, cert, granted, No. 84-1656 (Oct. 7, 1985). 
Also pending before the Court is a case challenging 
the validity of a similar racial preference scheme un­

Selection Procedures. Although it was contemplated by the 
earlier consent decrees that specific numbers of blacks would 
be promoted, the one-for-one quota was greatly different, 
in kind and degree. Accordingly, the one-for-one quota is 
clearly a modification of the prior decrees because it requires 
more of the Department than simply avoiding such adverse 
impact. Thus, the issue here, as in Stotts, is whether a “ dis­
puted modification of a consent decree” (slip op. 13 n.9) may 
require racial quotas.

In any event, the modification issue is inextricably inter­
woven with the Title VII issue presented here because the 
court of appeals purported to distinguish Stotts on the basis 
that the quota order enforced, rather than modified, the ear­
lier consent decrees. Finally, if there was no modification of 
the order, this case would present the issues before this Court 
in Local 93, International Association of Firefighters v. City 
of Cleveland, cert, granted, No. 84-1999 (Oct. 7, 1985), and 
the court of appeals’ decision is erroneous for the reasons we 
state in our amicus brief filed there.



11

der the Equal Protection Clause, Wygant v. Jackson 
Board of Education, cert, granted, No. 84-1340 (Apr. 
15, 1985). The views of the United States as to the 
validity of such racial preferences under Title VII 
and under the Equal Protection Clause have been ex­
pressed in a brief as amicus curiae supporting the 
petitioner in Local 93 (at 6 -20); in a brief on behalf 
of the EEOC in Local 28 (at 21-34); in a brief 
as amicus curiae supporting petitioners on the merits 
in Wygant (at 6 -30); and in our petition for certi­
orari in Orr v. Turner, No. 85-177 (filed July 31, 
1985) (involving statutory and constitutional chal­
lenges to a racially preferential consent judgment) 
(at 12-25).

The instant case presents questions similar to those 
raised in Local 93, Local 28, and Wygant. In Local 
93, petitioners challenge a racial preference incorpo­
rated in a Title VII consent judgment; in Local 28, 
another Title VII case, the racial preference was 
awarded by the court; and in Wygant, the racial 
preference under review is incorporated in a collec­
tive bargaining agreement and is challenged under 
the Fourteenth Amendment. In this case, we seek 
review of a racial preference imposed on nonconsent­
ing parties as part of a court order purporting to 
enforce earlier decrees entered by consent.

The decisions in Local 93, Local 28, and Wygant 
are likely to provide substantial clarification o f the 
principles bearing on the resolution o f the second and 
third questions presented in this petition, so that a 
remand after this Court has decided these cases is 
likely to be merited. Alternatively, this case itself 
may provide the Court with an opportunity for fu r­
ther clarification of those principles in the wake of 
its decisions in the three cases it has already agreed



12

to hear. Accordingly, we suggest that the Court hold 
this petition pending disposition of Local 93, Local 28, 
and Wygant.

2. W e  do not repeat the discussion of the Title 
VII and constitutional questions contained in our 
briefs in Local 93, Local 28, Wygant, and Orr,5 and 
add only the following observations pertaining to this 
case.

a. As noted earlier,6 the court of appeals held the 
district court’s order to be within its authority under 
Title VII and attempted to distinguish this case from 
Stotts on four grounds. Regarding the first “ distinc­
tion,”  our briefs in Local 93 (at 10-11) and Local 28 
(at 24) respond to the court of appeals’ argument 
that Stotts does not apply unless seniority rights are 
abridged. Second, as we discuss in our brief in Local 
93 (at 12-20) and our petition in Orr (at 19-21), 
Stotts cannot be distinguished on the basis that the 
race-conscious relief is embodied in a consent decree.7 
Third, the fact that the district court here, unlike the 
court in Stotts, predicated its order on findings of

5 We have served copies of these filings on counsel for each 
of the other parties to the proceedings below.

6 See pages 7-8, supra.

7 As discussed earlier (see note 4, supra), the one-to-one 
promotion quota entered here was, in our view, “ a disputed 
modification of [the earlier] consent decree[s]” (Stotts, slip 
op. 13 n.9 (emphasis added)) and thus is factually indistin­
guishable from Stotts. In any event, even if the quota order 
is deemed to enforce the earlier consent decrees rather than 
modify them, the order is nonconsensual because the decrees 
that were negotiated by the parties did not include promotion 
quotas and all parties except Paradise objected to “ enforcing” 
the decrees in this manner.



13

past intentional discrimination is plainly beside the 
point, as we discuss in our brief in Local 28 (at 
26). Section 706(g) broadly governs all relief en­
tered in Title VII cases. Nothing in Title VII, in 
Stotts, or in any other decision o f this Court even 
remotely suggests that the remedial power of a Title 
VII court differs depending upon whether the dis­
crimination is intentional. Finally, the court of ap­
peals’ conclusion that the relief here was entered pur­
suant to the Fourteenth Amendment, as well as Title 
VII, and that this affords a basis for avoiding Stotts’ 
victim-specific remedial principle is both factually 
and legally unsound. It seems apparent that the 
1979 and 1981 promotion consent decrees that were 
modified (or enforced) here, unlike the initial 1972 
quota order governing hiring, were premised exclu­
sively on Title VII.8 In any event, the court of ap­
peals’ distinction ignores the principle that equitable 
remedies must be tailored to fit the scope o f the con­
stitutional violation they are imposed to correct by 
“ restor[ing] the victims of discriminatory conduct to 
the position they would have occupied in the absence 
of such conduct.”  Milliken v. Bradley, 418 U.S. 717, 
746 (1974).

b. The court of appeals here also found the district 
court’s quota order to be consistent with the Equal 
Protection Clause of the Fourteenth Amendment. 
Our views on why such orders violate the Equal Pro­
tection Clause are stated in our amicus brief in 
Wygant (at 6-30). Although the quota order chal­

8 See App., infra, 74a-75a (discussing only adverse impact 
and the development of a valid “ promotion procedure which 
is in conformity with the 1978 Uniform Guidelines of Selec­
tion Procedure [sic], 43 Fed. Reg. 38290 * * *” ) ; and App., 
infra, 68a-69a (same).



14

lenged here represents the action of a federal court 
rather than the voluntary action o f a state or local 
agency, as in Wygant, it nevertheless violates the 
Constitution’s equal protection guarantees. As we ar­
gued in our brief on the merits (at 31) in Local 28 
in relation to a quota imposed in part as a civil rem­
edy for contempt by a defendant found guilty of in­
tentional discrimination, a federal court is no less 
subject to these constitutional constraints and protec­
tions of the rights of innocent third parties.

CONCLUSION

The petition for a writ of certiorari should be held 
pending the Court’s disposition of Local 93, Local 28, 
and Wygant.

Respectfully submitted.

Charles Fried 
Solicitor General

W m . Bradford Reynolds 
Assistant Attorney General

W alter W. Barnett 
M ichael Carvin 

Attorneys

December 1985



APPENDIX A

UNITED STATES COURT OF APPEALS 
ELEVENTH CIRCUIT

Nos. 84-7053, 84-7564

Ph il l ip  P aradise , Jr ., et a l ., p l a in t if f s -appellees

U nited  States  of A m e ric a , 
Pl a in t if f -am icu s  curiae-a ppe lle e ,

CROSS-APPELLANT

V.

B yro n  Presco tt , as Director of the 
Alabama Department of Public Safety, 

DEFENDANT-APPELLANT, CROSS-APPELLEE

V .E . M cCl e l l a n , et  a l ., d efen d an ts-in terven o rs ,
APPELLANTS-CROSS-APPELLEES

Aug. 12, 1985

Before FA Y  and ANDERSON, Circuit Judges, and 
GIBSON *, Senior Circuit Judge.

PER CURIAM.

In 1972, then Chief District Judge Frank M. John­
son, Jr., found that the Alabama Department of Pub-

* Honorable Floyd R. Gibson, U.S. Circuit Judge for the 
Eighth Circuit, sitting by designation.

(la)



2a

lie Safety (the Department) “ engaged in a blatant 
and continuous pattern and practice o f”  discriminat­
ing against blacks in hiring. NAACP v. Allen, 340 
F. Supp. 703 (M.D. Ala. 1972), aff’d, 493 F.2d 614 
(5th Cir. 1974). Thirteen years later, the unfortu­
nate effects of that unconstitutional discrimination 
still persist. These consolidated appeals involve the 
district court’s latest attempts to integrate the Ala­
bama state trooper force.

In case number 84-7053 (Paradise I) all parties, 
save the plaintiffs, appeal the December 15, 1983 or­
der of Judge Thompson 1 enjoining the Department to 
promote one black trooper for each white trooper pro­
moted to a higher rank until either 25% of the rank 
is comprised of black troopers or the defendants have 
in place a promotion plan for the rank conforming to 
the law and to all prior court orders and consent de­
crees. As a result of that order, the Department de­
veloped and implemented a plan for promotions to the 
rank of corporal. The court thereafter suspended op­
eration of the December 15 order to such corporal 
promotions and instead allowed the Department to 
use its long-awaited promotional plan for that rank. 
Only the intervenors, in case number 84-7564 (Para­
dise II) ,  appeal this order. Having carefully reviewed 
the record and the numerous briefs submitted by the 
parties and amicus curiae, we affirm the district court 
in both cases.

1 For the most part, then Chief Judge Johnson presided over 
this litigation until he assumed his position on the former 
Fifth Circuit in 1979. The case was then transferred to the 
docket of District Judge Varner. The case was reassigned to 
Judge Thompson in October, 1980, shortly after his appoint­
ment to the district court.



3a

I. PROCEDURAL HISTORY
(a) NAACP v. Allen: “ blatant and continuous . . . 

discrimination in hiring” .
In January, 1972, the NAACP brought a class ac­

tion suit against the Department and the Alabama 
Personnel Department, alleging violations of the four­
teenth amendment and 42 U.S.C. §§ 1981 and 1983. 
The NAACP contended that the Department “ sys- 
temically exclud[ed] Negroes from its employees,”  
R.E. at 39, and that because the Department had “ not 
abandoned its racially discriminatory hiring practices 
. . . the constitutional rights of the Plaintiff, its mem­
bers, and the class”  were abridged. Id. at 41. There­
after, the United States was made a party plaintiff, 
and the motion by Phillip Paradise, Jr., to intervene 
as a party plaintiff, individually and on behalf o f the 
similarly situated class, was granted.

After a hearing was held, the district court con­
cluded :

Plaintiffs have shown without contradiction that 
the defendants have engaged in a blatant and con­
tinuous 'pattern and practice of discrimination in 
hiring in the Alabama Department of Public 
Safety, both as to [state highway patrol] troop­
ers and supporting personnel. In the thirty- 
seven-year history of the patrol there has never 
been a black trooper and the only Negroes ever 
employed by the department have been nonmerit 
system laborers. This unexplained and unex­
plainable discriminatory conduct by state officials 
is unquestionably a violation of the Fourteenth 
Amendment, (citations omitted).

Under such circumstances . . . the courts have 
the authority and the duty not only to order an



4a

end to discriminatory practices, but also to cor­
rect and eliminate the present effects of past dis­
crimination. (citations omitted). The racial dis­
crimination in this instance has so permeated the 
[Department’s] employment policies that both 
mandatory and prohibitory injunctive relief are 
necessary to end these discriminatory practices 
and to make some substantial progress toward 
eliminating their effects.

N AACP v. Allen, 340 F. Supp. at 705 (emphasis 
added).

The district court entered a comprehensive injunc­
tive order (1972 Order). The court enjoined the de­
fendants from engaging in any employment practices 
— including promotion— for the purpose or with the 
effect of discriminating against any employee or ap­
plicant for employment on the basis of race. Id. at 
706. The court, inter alia, also ordered the defendants 
to hire one black trooper for each white trooper hired 
until the state trooper force was comprised of ap­
proximately 25 % blacks.2 Id.

12 In a supplemental opinion the court also awarded plain­
tiffs attorney’s fees because of the defendants’ bad faith 
defense of the lawsuit. The court reasoned: “ [D]efendants 
unquestionably knew and understood that their discriminatory 
practices violated the Fourteenth Amendment . . ., see United 
States v. Frazer, 317 F.Supp. 1079 (M.D.Ala. 1970), [thus] 
their defense of this lawsuit amounts to unreasonable and 
obdurate conduct which necessitated the expense of litigation.” 
NAACP v. Allen, 340 F.Supp. at 708.

In Frazer, then Chief Judge Johnson held that the Alabama 
Personnel Department, which administered the state merit 
system and supplied employees to all state agencies, including 
the Department, unconstitutionally discriminated against 
blacks. This finding was predicated on, among other things; 
(1) the defendants’ systematic refusal to appoint qualified



5a

On appeal to the former Fifth Circuit, the defend­
ants did not challenge the finding of “ blatant and 
continuous”  discrimination in hiring; rather, they 
contended that the quota hiring relief ordered by the 
district court unconstitutionally discriminated against 
eligible white applicants and improperly forced the 
Department to pass over whites who had fared better 
in the testing process in favor of less qualified blacks. 
NAACP v. Allen, 493 F.2d 614, 617 (5th Cir. 1974).* 3 
The Fifth Circuit disagreed.

The court first addressed the constitutional issues 
raised by affirmative hiring relief. The court held 
that white applicants who had higher eligibility 
rankings than blacks were not denied equal protection 
or due process rights because unvalidated selection 
procedures which disproportionately exclude blacks 
“have not been shown to be predictive of successful job 
performance.”  Id. at 620. Absent validated selection 
procedures, the court reasoned, “ it is illogical to ar­
gue that quota hiring produces unconstitutional ‘re­
verse’ discrimination, or a lowering of employment 
standards, or the appointment of less or unqualified 
persons.”  Id. The court further held that temporary 
affirmative hiring relief which resorted to racial cri­

black applicants; (2) the defendants’ practice of appointing 
and preferring low-ranking white applicants; (3) the defend­
ants’ discriminatory recruiting and advertising practices; and 
(4) the defendants’ practice of segregating state employees by 
race in the use of facilities. Frazer, 317 F.Supp. 1089-90.

3 The Eleventh Circuit, in Bonner v. City of Prichard, 661 
F.2d 1206, 1209 (11th Cir. 1981) (en banc), adopted as 
precedent decisions of the former Fifth Circuit handed down 
prior to October 1, 1981. We also are bound by decisions of 
Unit B of the former Fifth Circuit rendered after that date. 
Stein v. Reynolds Secs., Inc., 667 F.2d 33, 34 (11th Cir. 1982).



6 a

teria, if it were the only rational, nonarbitrary means 
of eradicating the present effects of past discrimina­
tion, denied no one their constitutional rights and was 
justified by the governmental and social interest in 
effectively ending unconstitutional discrimination. Id. 
at 619.

Having rejected the defendants’ constitutional ar­
guments, the court next proceeded to determine 
whether the district court abused its discretion in 
ordering quota hiring. Id. at 620. The court recog­
nized that the district court was faced with “ (1) 
clear evidence of a long history of intentional racial 
discrimination, (2 ) a paucity, i f  not a total absence 
of any positive efforts by the [Department] to recruit 
minority personnel, and (3 ) utilization of unvali­
dated employment criteria and selection procedures 
and other discriminatory practices.”  Id. Because the 
fourteenth amendment violation was “ so clearly dem­
onstrated,”  the district court was obliged “ to render 
a decree which will so far as possible eliminate the 
discriminatory effects of the past as well as bar like 
discrimination in the future.”  Id. at 617 (quoting 
Louisiana v. United States, 380 U.S. 145, 154, 85 
S.Ct. 817, 822, 13 L.Ed.2d 709 (1965)) .  The court 
accordingly upheld the district court’s conclusion that 
quota hiring relief “ was essential to make meaning­
ful progress towards eliminating the unconstitutional 
practices and to overcome the patrol’s thirty-seven 
year reputation as an all-white organization.”  493 
F.2d at 620-21.4

4 The court relied heavily on Morrow v. Crisler, 491 F.2d 
1053 (5th Cir.) (en banc), cert, denied, 419 U.S. 895, 95 S.Ct. 
173, 42 L.Ed.2d 139 (1974), a factually similar case involving 
the Mississippi Highway Patrol (MHP). In Morrow, a panel 
of the Fifth Circuit affirmed the district court’s finding that



7a

(b) 1975 Order: The defendants purposefully
frustrate or delay full relief to the plaintiff 
class.

The plaintiffs, in 1974, moved the district court for 
further relief. The hearing which was held on that 
motion focused on two issues: (1 ) whether the de­
fendants had artificially restricted the size of the 
trooper force to frustrate the 1972 hiring order; and 
(2) the disproportionate failure of blacks hired un­
der that order to achieve permanent trooper status. 
Record, Vol. 1, at 41.

The district court found that at the time it entered 
the 1972 Order, and at all material times thereafter, 
the responsible state officials recognized that there 
was a “ critical shortage of troopers”  in Alabama. Id. 
at 42. The court further found that since the 1972 
Order, the Department hired fewer troopers than was 
necessary to offset even normal attrition. Id. Addi­
tionally, examination of the Department’s pre- and 
post-1972 Order fund allocation and expenditure pat-

the MHP unconstitutionally discriminated against blacks in 
hiring and employment. Morrow v. Crisler, 479 F.2d 960, 962 
(5th Cir. 1973). The panel also upheld the district court’s 
refusal to order affirmative hiring relief, finding that the court 
did not abuse its discretion. Id. at 963-65. In light of a 
supplemented appellate record, however, the en banc Court 
held that the district court’s injunction did not order sufficient 
injunctive relief to eradicate the effects of the defendants’ 
discriminatory employment practices. The Court therefore 
remanded the case to the district court to fashion a decree 
which would have the “ certain” result of integrating the MHP. 
Morrow v. Crisler, 491 F.2d at 1055. The Court further held 
that the district court would have to order some affirmative 
hiring relief, such as “ temporary one-to-one or one-to-two 
hiring, the creation of hiring pools, or a freeze on white hir- 
ing,” id. at 1056, until the residual effects of past discrimina­
tion were eliminated.



8a

terns revealed that the Department had either not 
spent or had diverted to other uses funds which could 
have been used for salaries and ancillary expenses for 
new troopers. Id. at 42-43. The court concluded:

These findings, when combined with the consider­
able testimony regarding the defendants’ reluc­
tance to implement the court’s remedial order by 
placing black troopers on the state’s highways, 
necessitate the conclusion that the defendants 
have, for the purpose of frustrating or delaying 
full relief to the plaintiff class, artificially re­
stricted the size of the trooper force and the num­
ber of new troopers hired.

Id. at 43.
The district court further found that the compara­

tively high black attrition rate (o f the 40 blacks 
hired since the 1972 Order only 27 were still on the 
force, while all 29 whites hired in that period re­
mained) was not coincidental. Indeed, the court 
found that the high attrition rate among blacks re­
sulted from : (1 ) failure to select the best qualified 
blacks from the eligibility rosters; (2 ) official and 
social discrimination against blacks at the trooper 
training academy; (3 ) preferential treatment of 
white new hires in training and testing; and (3) 
harsher discipline for blacks than whites for similar 
misconduct while on the force. Id. at 44. Based on 
these findings, the court enjoined the defendants from 
artificially restricting the size of the troopers force 
for the purpose or with the effect of delaying or frus­
trating achievement of the goal of having blacks com­
prise 25% of the trooper force (1975 Order). Id.



9a

(c) The 1979 Partial Consent Decree: The defend­
ants obligate themselves to develop a promo­
tion procedure within one year that will have 
little or no adverse impact on blacks.

In September of 1977, plaintiffs moved the district 
court for supplemental relief. A fter extensive dis­
covery, a Partial Consent Decree (1979 Decree) re­
solving most of the disagreements between the par­
ties was agreed to by all concerned and approved by 
the court on February 16, 1979. Record, Vol. 1, at 
50-57.

In the 1979 Decree, the parties explicitly recognized 
the continuing effect of the district court’s 1972 and 
1975 Orders. Id. at 50. The defendants also agreed 
not to engage in any act or practice which had the 
purpose or effect of unlawfully discriminating against 
blacks. Id. at 50-51. With respect to promotions, the 
defendants agreed to develop a promotion procedure 
which would be fair to all applicants and have “ little 
or no adverse impact on blacks seeking promotion to 
corporal.”  Id. at 53.5 The defendants obligated them­
selves to accomplish this within one year from the 
signing of the 1979 Decree.6 Id. Once the procedure

6 The defendants also agreed that the promotion procedure 
would conform with the 1978 Uniform Guidelines of Employee 
Selection Procedure, 28 C.F.R. § 50.14. These guidelines were 
adopted by the Equal Employment Opportunity Commission, 
the Department of Labor, the Department of Justice, and the 
Civil Service Commission, to satisfy “ [t]he Federal govern­
ment’s need for a uniform set of principles on the question 
of the use of tests and other [employee] selection procedures.” 
Id. § 1A.

6 During the period in which a new promotion procedure 
for the rank of corporal was being validated, the defendants 
agreed to use the existing state merit system for all promo­



10a

for promotion to corporal had been validated, the de­
fendants were to begin validation of promotion proce­
dures for the positions of sergeant, lieutenant, cap­
tain, and major, in turn. Id. The defendants further 
agreed to allow plaintiffs to apply to the court for an 
order enforcing the terms of the 1979 Decree, or to 
“ apply for any other relief which may be appropri­
ate.” Id. at 51.

(d) Paradise v. Shoemaker: The 1972 Order
means what it says and will not be modified.

Five days after the district court approved the 
1979 Decree, the defendants filed a motion to more 
fully define the quota relief set forth in the 1972 Or­
der, or, in the alternative, for supplemental relief. 
Interpreting the motion as one seeking “ clarification” 
of the 1972 Order, the district court gave short shrift 
to the defendants’ argument that “ state trooper”  re­
ferred only to arresting officers holding entry-level 
positions. See Paradise v. Shoemaker, 470 F. Supp. 
439, 440 & n. 1 (M.D. Ala. 1979). “ On this point, 
there is no ambiguity. The Court’s [1972] order re­
quired that one-to-one hiring be carried out until ap­
proximately twenty-five percent of the state trooper 
force is black.”  Id. at 440 (emphasis in original).

The district court likewise had little difficulty dis­
posing of the defendants’ alternative claim that they 
were entitled to supplemental relief in the form of 
modification of the 1972 Order.7 The defendants ar­

tions to that rank provided that at least three black troopers 
were promoted. Record, Vol. 1, at 53. Exactly how this was 
to be done was detailed in a document styled “Agreement of 
Counsel for the Parties.” Id. at 58-59.

7 The defendants asked the court to strike the 25% quota 
and to order that 1-for-l hiring continue only until (1) a valid



1 1 a

gued that the affirmative hiring relief ordered by the 
court exceeded what was necessary to eliminate the 
effects of past discrimination in that the Department’s 
promotion policy required advancement through the 
ranks and prohibited lateral hiring. Because, accord­
ing to the defendants, the 25% objective could not be 
achieved unless 37.5% of entry-level positions were 
filed by blacks, a greater number o f “ more qualified 
white applicants”  were excluded than was constitu­
tionally permissible. Id. at 441.

The district court, relying on the Fifth Circuit’s 
affirmance of the 1972 Order in NAACP v. Allen, 493 
F.2d 614, held that modification was precluded by the 
law of the case doctrine. Paradise v. Shoemaker, 470 
F. Supp. at 441. Even if the doctrine were not ap­
posite, however, the district court discerned no con­
stitutional reason for disturbing its prior order. Id. 
at 441-42. The court concluded:

To modify this order would be to do less than 
the law requires, which is to eradicate the con­
tinuing effects of past unlawful practices. In 
1972, defendants were not just found guilty of 
discriminating against blacks in hiring to entry- 
level positions. The Court found that in thirty- 
seven years there had never been a black trooper 
at any rank. One continuing effect of that dis­
crimination is that, as of November 1, 1978, out 
of 232 state troopers at the rank of corporal or 
above, there is still not one black. The quota 
fashioned by the Court provides an impetus to 
promote blacks into those positions. To focus only 
on the entry-level positions would be to ignore

examination was used to produce a new hiring list, or (2) 
25%, or (3) 15% of the entry-level positions were filled by 
blacks. Id. at 62.



12a

that past discrimination by the Department was 
pervasive, that its effects persist, and that they 
are manifest. As the Fifth Circuit has recog­
nized, the order in this case does not seek to 
grant proportional representation in public em­
ployment to the black citizens of Alabama. 
NAACP v. Allen, 493 F.2d at 621. The order in 
this case is but the necessary remedy for an in­
tolerable wrong. Accordingly, the motion for sup­
plemental relief will be denied.

Id. at 442 (emphasis in original).

(e) The 1981 Consent Decree.

More than two years after the 1979 decree was en­
tered, the defendants, on April 13, 1981, moved the 
district court for approval of a new examination to 
be used for promotions to the corporal rank. Record, 
Vol. 1, at 66. A fter reviewing the proposed promo­
tion procedure/ the plaintiffs and the United States 
filed a joint response objecting to approval of the pro­
posed examination and promotional procedure. Id. at 
83-97. They essentially maintained that the examina­
tion had not been validated in accordance with the 
Uniform Guidelines, see supra note 5, and that its 
use would not be justified if the results showed an 
adverse impact on blacks. A hearing was never held 
on the defendants’ motion, however, because the par­
ties executed another consent decree (1981 Decree), 
which was endorsed by the district court on August 
18, 1981. Record, Vol. 1, at 101. 8

8 The proposed promotion procedure was comprised of 
four components weighted as follows: written test— 60% ; 
length of service— 10 % ; supervisory evaluation—20 % ; serv­
ice ratings— 10%. Id. at 102 ; R.E. at 100.



13a

In the 1981 Decree, the defendants acknowledged 
their obligation under the 1979 Decree to utilize a 
promotion procedure having little or no adverse im­
pact on blacks. To avoid unnecessary liitgation, and 
to expeditiously establish a selection procedure for 
corporals, the parties agreed that defendants’ pro­
posed promotion procedure would be administered and 
scored. Thereafter, the promotion register would be 
“reviewed to determine whether the promotion proce­
dure has an adverse impact against black applicants.” 
Id. at 103. This determination was to be made by 
reference to the “ four fifths”  rule 9 set forth in Sec­
tion 4D of the Uniform Guidelines. Id. at 103-04; see 
28 C.F.R. § 50.14. If the procedure had little or no 
adverse impact on blacks, selections were to be made 
in rank order from the promotion register. Record, 
Vol. 1, at 104. I f the parties were unable to agree 
whether the procedure had an adverse impact, the 
matter was to be submitted to the district court for 
resolution. Id. at 104. No promotions to the corporal 
rank were to be made pending resolution of the ad­
verse impact issue. Id. I f the parties agreed, or the 
court found, that the procedure did have an adverse 
impact on blacks, promotions were to be made “ in a 
manner that does not result in adverse impact for 
the initial group of promotions or cumulatively dur­
ing use of the procedure.”  Id. The defendants were 
to submit an alternative proposed promotion proce­
dure, and if the parties failed to agree on the method 
for making promotions, then the matter was to be

9 Under Section 4D of the Uniform Guidelines, “ [a] selec­
tion rate for any race . . . which is less than four-fifths (4/5) 
(or eighty percent) of the rate for the group with the highest 
rate will generally be regarded . . .  as evidence of adverse 
impact.”  28 C.F.R. § 50.14.



14a

submitted to the court for resolution. Id. No promo­
tions to corporal were to be made unless the parties 
agreed on, or the court ruled upon, the method to be 
used for making promotions with little or no adverse 
impact. Id. at 104. In the event that the promotion 
procedure was deemed to have an adverse impact on 
blacks, the defendants agreed to examine the results 
to identify the sources of that impact and to revise 
the promotion procedure so as to avoid the problem 
in the future. Id. at 105. The defendants also agreed 
to give the plaintiffs data showing the impact of each 
component of the promotion procedure, as well as an 
item-by-item analysis of the impact of the written 
examination. Id. The parties were then to attempt 
to agree upon modifications in the promotion proce­
dures for future administrations. Id. Again, if  the 
parties were unable to resolve their differences, the 
matter was to be submitted to the district court for 
resolution. Id.

In accordance with the 1981 Decree, the defend­
ants administered their written examination on Oc­
tober 24, 1981. The resulting promotion register in­
dicates that of the 262 applicants for promotion to 
corporal, 60 (22.9% ) were black. Of the 60 blacks 
who took the test, only 5 (8 .3% ) were ranked among 
the top half of the candidates, and of these, the high­
est ranked was #  80. Id. at 117-28. On June 21, 
1982, the defendants, responding to an inquiry from 
the United States, stated that there was an immediate 
need for 8-10 promotions to corporal, and that 16-20 
promotions would ultimately be made from the pro­
motion list before the construction o f a new list. Id. 
Vol. 2, at 222. The United States, by letter, objected 
to rank-order use of the promotion procedure, con­
tending that, in its view, such use would result in 
substantial adverse impact on black applicants for



15a

promotion to corporal. Id. at 220-21. The United 
States suggested that the defendants abide by the 
terms of the 1981 Decree and formulate a “ proposal 
for making promotions in a manner that does not 
result in discriminatory impact on black troopers.”  
Id. at 220.

( f )  The Instant Proceedings.

Plaintiffs, on April 7, 1983, moved the district 
court for an order enforcing the terms of the 1979 
and 1981 Decrees. Plaintiffs sought an order requir­
ing the defendants to promote blacks to the corporal 
rank “ at the same rate at which they have been hired, 
1 for 1, until such time as the defendants implement 
a valid promotional procedure.”  Record, Vol. 1, at 
112. According to plaintiffs, such an order was justi­
fied by the terms of the decrees, would “ encourage 
defendants to develop a valid promotional procedure 
as soon as possible,”  and would “help alleviate the 
gross underrepresentation of blacks in the supervisory 
ranks of the Department.”  Id. Plaintiffs principally 
relied on the results of the October, 1981, corporal 
examination and the fact that since the 1979 Decree 
had been entered, no valid promotional mechanism 
had been developed. Indeed, the only blacks promoted 
since 1972 were the four promoted pursuant to the 
1979 Decree. Thus, even though blacks had been em­
ployed in the Department of 11 years, only four had 
advanced beyond the lowest rank.

The United States opposed imposition of a 1-for-l 
promotional quota, contending that such relief was 
inconsistent with the 1981 Decree, went beyond the 
district court’s remedial authority under Title VII, 
and was unconstitutional. Record, Vol. 2, at 195-202. 
The United States agreed, however, that the decrees



16a

should be enforced by ordering some promotions, un­
less the defendants could show cause why such pro­
motions should not be made.10

The defendants agreed with the United States that 
the relief sought by the plaintiffs in their motion to 
enforce was unconstitutional. The defendants also 
argued, however, that they should be given an oppor­
tunity to demonstrate that the proposed promotion 
procedure was valid and did not adversely impact on 
blacks, within the meaning of the consent decrees 
and the Uniform Guidelines.

Shortly after the motion to enforce was filed, four 
white applicants for promotion to corporal moved to 
intervene on behalf of a class composed of those white 
applicants who took the corporal’s promotion exami­
nation and ranked #  1 through #  79. Record, Vol. 1, 
at 130-35. The intervenors, inter alia, contended that 
the 1979 and 1981 Decrees, as well as the relief sought 
by the plaintiffs in their motion to enforce, were un­
constitutional, unreasonable, illegal, and against pub­
lic policy. Id. at 131-134.

10 In support of enforcement, the United States noted that:
(1) the defendants had yet to submit a proposal for making 
promotions in conformity with the 1979 and 1981 Decrees;
(2) no corporal promotions had been made, despite the de­
fendants’ representation the year before that there was a 
“ current need” for such promotions; and (3) the defend­
ants failed to offer any reasons why promotions should not be 
made, nor had they offered an explanation as to why they 
halted progress toward remedying the effects of past dis­
crimination. Record, Vol. 2, at 199-201. The United States 
maintained that the failure to promote corporals thwarted 
the purposes of the orders entered in the case, and that the 
failure to present a promotion plan in accordance with the 
1979 and 1981 Decrees “ suggests that a pattern of discrimina­
tion against blacks in the Department. . . may be continuing.” 
Id. at 200.



17a

The district court, on May 27, 1983, held a hearing 
on both the motion to enforce and the motion to inter­
vene. In an order filed October 28, 1983, the district 
court allowed the intervenors to participate in the 
case on a prospective basis only; the court held that 
as to prior orders, judgments, and decrees, interven­
tion was untimely. Record, Vol. 2, at 309-10. By 
separate order, also filed on October 28, the district 
court determined that, when judged against the 1979 
and 1981 Decrees, the defendants’ selection procedure 
adversely impacted on blacks. Paradise v. Prescott, 
580 F. Supp. 171 (M.D. Ala. 1983). The court noted 
that even if 79 corporals were promoted in rank or­
der, rather than just the 15 the defendants stated 
were needed as soon as possible, none would be black. 
Id. at 173. “ Short of outright exclusion based on 
race, it is hard to conceive of a selection procedure 
which would have a greater discriminatory impact.” 
Id.11

Having held that the promotion procedure ad­
versely impacted on blacks, the district court, pur­

11 The court rejected the defendants’ argument that section 
4D of the Uniform Guidelines entitled them to an opportunity 
to present evidence in support of their position that the selec­
tion procedure did not have an adverse impact. That section 
provides in part that “ [gjreater differences in selection rate 
may not constitute adverse impact. . . where special recruiting 
or other programs cause the pool of minority . . . candidates 
to be atypical of the pool of applicants from that group.” 28 
C.F.R. § 50.14. The defendants contended that the 1-for-l 
hiring quota was such a “ special program” resulting in an 
atypical pool, since black troopers scored lower on a hiring 
test than did white troopers. Paradise v. Prescott, 580 F.Supp. 
at 173. Accepting as true the defendants’ representation that 
blacks did not score lower on this test than whites, the court 
reasoned that such proof was “ an unacceptable basis to rest a 
claim of atypicality.” Id. at 174.



18a

suant to the 1981 Decree, enjoined the defendants 
from using that procedure for promotion purposes. 
Id. at 174-175. The court also ordered the defendants 
to submit a plan to promote to corporal, from quali­
fied candidates, at least 15 persons in a manner that 
would not have an adverse racial impact. Id. at 175. 
The court indicated that if  the parties to the 1981 
Decree were unable to agree on a promotion plan, 
“ the issue o f corporal promotions shall be deemed sub­
mitted for resolution by the court.”  Id.

On November 10, 1983, the Department submitted 
to the district court its proposed promotion procedure. 
Record, Vol. 2, at 356. The Department proposed to 
promote 15 troopers to the position of corporal, of 
whom 4 would be blacks. It urged that this proce­
dure, to be used on a one-time basis only, reflected 
the percentage of blacks to white who took the cor­
poral examination, and met the requirements of the 
four-fifths rule of the Uniform Guidelines. The De­
partment also requested an order permitting the De­
partment of Personnel a specified period of time 
within which to develop and submit for 'prior court 
approval a non-discriminatory corporal promotion 
procedure for use in subsequent promotions.

The plaintiffs vigorously opposed the Department’s 
proposal. Id. at 382-89. They contended that the 
proposal “ totally disregards the injury plaintiffs have 
suffered due to the defendants’ four-and-a-half year 
delay [a reference to the 1979 Decree] and fails to 
provide any mechanism that will insure the present 
scenario will not reoccur.”  Id. at 382. Plaintiffs rea­
soned that because of the defendants’ conduct, blacks 
were clustered at the lowest level of employment with 
no proper procedure for promotion to corporal in 
place, while the Department continued to promote 
whites from all-white rosters to the positions of ser­



19a

geant, lieutenant, captain, and major. Id. at 382-88. 
Approval of the Department’s procedure, the plain­
tiffs argued, would place the judicial imprimatur on 
the defendants’ obdurate conduct. Plaintiffs reiter­
ated their request for a 1-for-l promotion require­
ment until a valid promotion procedure is in place. 
Such relief would give the defendants “-an incentive 
to carry out their almost five-year-old obligation,”  id. 
at 385, and would “ make up for the additional in­
jury they have thrust upon plaintiffs for their non- 
compliance [with the 1979 and 1981 Decrees].”  Id. 
at 384.

The United States did not oppose the Department’s 
proposal to promote 11 whites and 4 blacks to cor­
poral; it did, however, oppose the entry o f an order 
which would sanction court approval of a promotion 
plan prior to its actual implementation. Such an 
order, according to the United States, would circum­
vent the 1981 Decree’s requirement that a selection 
procedure be actually administered to determine if  it 
adversely impacted on blacks. Id, at 423-26.

The intervenors opposed approval o f any promotion 
plan which imposed a promotion quota. They sub­
mitted that corporal promotions should be by rank- 
order use of the promotion register resulting from 
the 1981 corporal promotional examination. Id. at 
448.

On December 15, 1983, the district court granted 
the plaintiffs’ motion to enforce the 1979 and 1981 
Decrees. Paradise v. Prescott, 585 F.Supp. 72 (M.D. 
Ala.1983). Faced with the Department’s immediate 
need to promote 15 new corporals, and the fact that 
the parties were unable to agree on a promotion pro­
cedure, the court “ in accordance with”  the 1979 and 
1981 Decrees, id. at 73, undertook to “ fashion a [pro­
motion] procedure.”  Id. at 74.



20a

The court aptly summarized the situation as fol­
lows :

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 Depart­
ment of Public Safety. Nevertheless, the effects 
o f 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 pro­
cedures for advancement of black troopers into 
this structure, and it does not appear that any 
procedures will be in place within the near 
future. The preceding scenario is intolerable and 
must not continue. The time has now arrived 
for the department to take affirmative and sub­
stantial steps to open the upper ranks to black 
troopers.

Id. (emphasis in original). The court agreed with 
plaintiffs that, temporarily at least, 50% of all pro­
motions to corporal and to higher ranks must be filled 
by qualified black troopers. Id. at 75. The court also 
shared the plaintiffs’ concern over the Department’s 
delay in developing acceptable promotion procedures 
for all ranks. Id. The court therefore ordered the 
Department to promote one black trooper for each



21a

white trooper promoted to a higher rank, if  there is 
a black trooper objectively qualified to be promoted to 
the rank, until either (1) approximately 25% of the 
rank is comprised of black troopers, or (2) the de­
fendants have developed and implemented a promo­
tion plan for the rank conforming with the prior 
orders and decrees in the case and all other legal re­
quirements. Record, Vol. 2 at 482-83; see Paradise v. 
Prescott, 585 F.Supp. at 75. The court also ordered 
the defendants to submit for the court’s approval a 
schedule for the development of promotion procedures 
for all ranks above the entry-level position. Record, 
Vol. 2 at 483.

The order was premised on the court’s belief that 
the effects of past discrimination “ will not wither 
away of their own accord.”  Paradise v. Prescott, 585 
F.Supp. at 75. Quota relief was appropriate, the 
court reasoned, because such relief was necessary and 
reasonable. The relief was necessary because the 
history of this case made it clear that the “ intoler­
able”  and “egregious”  racial disparities in the upper 
ranks o f the Department would not be eradicated ab­
sent “ immediate, affirmative, race-conscious action.” 
Id. The quota relief was reasonable because: (1 ) it 
was a temporary measure; (2) it did not require the 
discharge, demotion, or replacement of any white 
troopers; (3) it did not require the promotion o f any 
unqualified black trooper; (4 ) it did not unnecessarily 
trammel the interests of white troopers; and (5 ) it 
was specifically tailored to redress the present effects 
of past discrimination. Id. at 75-76. The court noted 
that the Department had “ the prerogative to end the 
promotional quotas at any time, simply by developing 
acceptable promotion procedures,”  Id. at 76.

The district court, after a hearing, denied all mo­
tions to reconsider the December 15, 1983 order, to



22a

alter or amend the judgment, and to stay enforce­
ment of the order pending appeal. Record, Vol. 3, at 
578-81. The intervenors also moved this court for a 
stay pending appeal. That motion was denied on 
February 10, 1984. The Department, the United 
States, and the intervenors all filed timely notices o f 
appeal. ( Paradise I ) .  It appears that on February 6, 
1984, eight black troopers and eight white troopers 
were promoted to the rank of corporal.

II. PARADISE 1

The principal issues on appeal are as follows : (1) 
whether the December 15, 1983, order of the district 
court constitutes an improper modification of the 
1979 and 1981 Decrees; (2 ) whether the district 
court’s order exceeds the district court’s remedial au­
thority under Title VII, as interpreted in Firefighters
Local Union No. 17'8U v. S to tts ,-------U.S. -------- , 104
S.Ct. 2576, 81 L.Ed.2d 483 (1984 ); and (3 ) whether 
the district court’s order unconstitutionally discrimi­
nates against, or unnecessarily trammels the interests 
of, white troopers.12 We address these issues seriatim.

(a ) Enforcement of the 1979 and 1981 Decrees
“A  consent decree, although founded on the agree­

ment of the parties, is a judgment.”  United States v. 
City of Miami, 664 F.2d 435, 439 (5th Cir.1981) (en

12 The intervenors and the Department raise a number of 
other arguments, most of which proceed from the erroneous 
assumption that the district court modified the 1979 and 1981 
Decrees. We have considered all of these arguments and 
find them to be without merit. We pretermit any discussion 
of them except as they directly relate to the principal issues 
set forth in the text of the opinion. See infra notes 14 and 
16.



banc). It therefore has the force of res judicata, and 
may be enforced by judicial sanctions, including a 
citation for contempt. Id. at 439-40. While a consent 
decree is a judgment, the decree also has many at­
tributes of a contract between the parties. United 
States v. I.T.T. Continental Baking Co., 420 U.S. 223, 
236, 95 'S.Ct. 926, 929, 43 L.Ed.2d 148 (1975). It 
therefore “must be construed in the light of tradi­
tional tenets of contract construction.”  Roberts v. St. 
Regis Paper Co., 653 F.2d 166, 171 (5th Cir. Unit B 
1981). In this regard, the “ scope of a consent decree 
must be discerned within its four corners, and not by 
reference to what might satisfy the purposes of one 
o f the parties to it.”  United States v. Armour & Co., 
402 U.S. 673, 682, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 
256 (1971); Stotts, 104 S.Ct. at 2586; Turner v. Orr, 
759 F.2d 817, 821 (11th C ir.1985); Roberts, 653 
F.2d at 171. Appellate review of a district court’s 
construction of a consent decree is akin to review of 
a district court’s contract interpretation; in this 
aspect of the case, we thus are not bound by either 
the clearly erroneous rule or the abuse o f discretions 
standard. See Turner, 759 F.2d at 821 (construction 
of consent decree is question of law subject to de novo 
review ); Eaton v. Courtaulds of North America, Inc., 
578 F.2d 87, 90 & n. 2 (5th Cir.1978) (interpreta­
tion of consent decree may be considered afresh by 
appellate court; Fed.R.Civ.P. 52 (a) not applicable 
and since issue is not whether trial court erred in 
approving consent decree, exercise of discretion is not 
in question). With these principles in mind, we have 
little difficulty rejecting the appellants’ arguments 
that the district court improperly modified, rather 
than enforced, the 1979 and 1981 Decrees.

We initially note the district court’s fidelity to the 
detailed procedural mechanism established in the

23a



24a

1979 and 1981 Decrees. The 1979 Decree, wherein 
the Department first obligated itself to develop within 
one year a promotion procedure having little or no 
adverse impact on blacks, allowed the plaintiffs to 
move the district court for an order enforcing the 
terms of the decree or for an order granting any 
other appropriate relief. See supra p. 1519. With 
the results of the 1981 corporal promotion examina­
tion in hand, the plaintiffs availed themselves of this 
provision. Because the parties were unable to agree 
on whether the examination adversely impacted on 
blacks, the district court was required, under the 
1981 Decree, to resolve that issue. See supra p. 1521. 
In its order of October 28, 1983, the court recognized 
the requirements of the decrees, applied the four- 
fifths rule to the results of the examination, and 
found that the proposed promotion procedure ad­
versely impacted on blacks. Paradise v. Prescott, 580 
F.Supp. at 172-74. Again in keeping with the 1981 
Decree, the court ordered the Department to submit 
a proposal for interim promotions. Id. at 175. The 
court stated that, under the 1981 Decree, the issue of 
promotions would be deemed submitted for resolution 
by the court if  the parties failed to agree on a method 
for making promotions. Id.

The parties again failed to agree. With the var­
ious proposals of the parties before it, the court is­
sued its ruling upon the method to be used for mak­
ing promotions. See Paradise v. Prescott, 585 F.Supp. 
72. The court specifically stated that “ as required 
by the 1981 consent decree, [the parties] have re­
quested that the court fashion a promotion proce­
dure.”  Id. at 74.

Despite the district court’s adherence to the proce­
dural provisions agreed to by the parties to the de­



25a

crees, the appellants claim that the December 15, 
1983, other constitutes a modification o f those de­
crees. In support of their position, they correctly 
note that the 1979 Decree provides that the Depart­
ment agreed: (1 ) to have “ as an objective . . .  an 
employment and promotion system that is racially 
neutral,”  Record Vol. 1, at 50; (2) “ not to engage 
in any act or practice which discriminates on the 
basis of race in . . . promoting;”  id. at 52; and (3) 
to have as an objective the use o f a “promotion pro­
cedure which is fair to all applicants.”  Id. at 53. 
We also agree with appellants that the 1981 Decree 
required the court to rule upon a promotion proce­
dure “ with little or no adverse impact.”  Id. at 104. 
The appellants reason that these provisions of the 
decrees prohibited the district court from ordering 
relief which was not racially neutral and resulted in 
adverse impact on whites.

Were we free to ignore the other provisions of the 
1979 and 1981 Decrees, we might agree that the dis­
trict court went beyond interpreting and enforcing 
the decrees. Our inquiry, however, is not confined to 
isolated provisions of the decrees. See Alliance to 
End Repression v. City of Chicago, 742 F.2d 1007, 
1011 (7th Cir.1984) (en banc) ( “ The relevant ‘four 
corners are those of the decree, not of one provision 
of the decree.” ). Indeed, we must “presume that all 
parts of the decree have meaning and must be con­
strued together.”  Roberts, 653 F.2d at 171. As we 
have seen, the 1979 Decree required the Department 
to implement a promotion procedure having little or 
no adverse impact on blacks seeking promotion. See 
supra p. 1519. The Department in that decree 
agreed to develop such a procedure within one year, 
and then to develop valid promotion procedures for



2 6 a

the upper ranks. See id. These upper rank promo­
tion procedures also were to have little or no adverse 
impact on blacks. Id. In the 1981 Decree, the De­
partment reiterated its commitment to develop a pro­
motion procedure having little or no adverse impact 
on blacks. See supra p. 1520. That decree also pro­
vided that “ [il]f the selection procedure has little or 
no adverse impact against black applicants, selections 
shall be made in rank order.”  Record, Vol. 1, at 
104 (emphasis added). All further references to “ lit­
tle or no adverse impact”  obviously are references to 
adverse impact against blacks seeking promotion. 
Wholly absent from either decree is a prohibition on 
promotion procedures adversely impacting on whites. 
Indeed, two of the appellants expressly concede that 
the gravamen of the 1981 Decree concerns the effect 
of proposed promotion procedures on blacks, and 
blacks alone. See Brief for the United States at 21 
( “ [T ]he primary concern of the 1981 Consent De­
cree is with promotion procedures as they affect 
blacks. . . .” ) (emphasis in original) ; Brief of Inter- 
venors at 20 ( “ Simply stated, the 1981 consent de­
cree strived to create a situation where promotions 
will be made to corporal in a way that would have 
little or no adverse impact on blacks.” ) .

Significantly, the parties to the 1981 Decree agreed 
“that it would be in the best interest of all [con­
cerned1] to avoid unnecessary litigation and to put a 
selection procedure for State Trooper Corporals in 
place as soon as possible.”  Record, Vol. 1, at 102. 
Moreover, the parties to the 1979 Decree agreed that 
plaintiffs could move to enforce the decree or “ for 
any other relief which may be appropriate.”  Id. at 
51. Fairly read, the 1979 and 1981 Decrees simply 
did not place the substantive limitation on the dis­



27a

trict court’s enforcement authority that the appel­
lants urge here. In our view, the district court, faced 
as it was with the Department’s representation that 
promotions needed to be made immediately, did not 
modify the 1979 and 1981 Decrees or exceed the re­
lief authorized by those decrees when it granted the 
plaintiffs’ motion to enforce.13

13 The Department and the United States cite United States 
v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932), 
as the Supreme Court benchmark governing modification of 
consent decrees. In that case, the Court recognized the in­
herent authority of a court to modify a consent injunction 
if that injunction “ has been turned through changing circum­
stances into an instrument of wrong.” Id. at 115, 52 S.Ct. at 
462. More specifically, the Court held that an injunction 
should not be modified at the instance of a defendant absent 
“a clear showing of grievous wrong evoked by new and un­
foreseen conditions.” Id. at 119, 52 S.Ct. at 464. A defendant 
accordingly bears a heavy burden to justify modification of a 
valid consent j udgment.

It appears, however, that a plaintiff seeking modification 
of a consent judgment generally bears a lighter burden. In 
United States v. United Shoe Mach. Corp., 391 U.S. 244, 88 
S.Ct. 1496, 20 L.Ed.2d 562 (1968), the Court drew a sharp 
distinction between a case where the defendant, as in Swift 
& Co., seeks to escape the impact of a decree, and a case where 
a plaintiff seeks modification of a decree to achieve the pur­
poses of the provisions of the decree. Id. at 249, 88 S.Ct. 
at 1499. In the latter situation, a court may have the duty 
to modify the decree to avoid frustration of the decree’s pur­
poses. See id. at 251-52, 88 S.Ct. at 1501 (“ If the decree has 
not, after 10 years, achieved its ‘principal objects’ . . . the time 
has come to prescribe other, and if necessary more definitive, 
means to achieve the result. A decade is enough.)” In short, 
were we to construe the plaintiffs’ motion to enforce as a mo­
tion to modify, we probably would not be constrained by the 
rigorous Swift & Co. standard. See Newman v. Graddick, 
740 F.2d 1513, 1520 (11th Cir. 1984) (consent decree may be



(b ) Firefighters Local Union No. 178U v. Stotts
The appellants argue that even i f  the district 

court’s December 15, 1983, order merely enforced the 
terms of the 1979 and 1981 Decrees, reversal is ap­
propriate because the district court exceeded its reme­
dial authority under Title VII. Appellants insist
that after S to tts ,-------U .S .-------- , 104 S.Ct. 2576, 81
L.Ed.2d 483, a district court may not award affirma­
tive equitable relief that benefits persons not found 
to have been actual victims of discrimination. Since 
in this case there never has been a finding of dis­
crimination in promotions, and, perforce, no specific 
victims of promotion discrimination have been iden­
tified, the appellants contend that the district court 
erred in granting plaintiffs’ motion to enforce the 
consent decrees. Having carefully reviewed the Stotts 
decision and cases interpreting it, we conclude that 
appellants read Stotts too broadly.

The Stotts case arose out of a class action filed in 
1977 by black employees of the Memphis, Tennessee 
fire department. Plaintiffs charged that the fire de­
partment engaged in a pattern or practice of making

modified if “ significant time has passed and objectives have 
not been met” ) .

Even if the district court’s December 15, 1983 order is 
properly viewed as a modification of the 1979 and 1981 De­
crees, a good case could be made for affirmance. When that 
order was issued, nearly five years had passed since the 1979 
Decree had been entered. Yet the 1979 Decree had not 
achieved its objectives of having in place promotion pro­
cedures for all ranks in the trooper force. Indeed, the Depart­
ment had failed to implement a promotion procedure having 
little or no adverse impact on blacks for the rank of corporal. 
In light of our holding that the district court did not modify 
the consent decree, however, we need not decide whether modi­
fication was warranted in the absence of an evidentiary 
hearing.

28a



29a

hiring and promotion decisions on the basis of race, 
in violation of Title VII, 42 U.S.C. § 2000e et seq., 
and 42 U.S.C. §§ 1981 and 1983. Stotts, 104 S.Ct. 
at 2581. Prior to trial, the case was settled by a 
consent decree wherein the fire department agreed 
to promote certain individual firefighters, and also 
agreed to eventually increase minority representa­
tion in all job classifications to reflect the proportion 
o f blacks in the relevant labor force. Toward this 
end, interim hiring and promotional percentage goals 
were established. The defendant did not, however, 
admit that any allegation in plaintiffs’ complaint was 
true, nor did the consent decree mention what would 
happen in the event of layoffs. Id.

A little more than a year after the consent decree 
was entered, the City announced the fiscal problems 
necessitated a reduction in non-essential personnel. 
Layoffs were to be made according to the “ last hired, 
first fired”  rule of the city-wide seniority system. 
Plaintiffs sought relief in the district court to pro­
tect the advances by blacks made since the entry of 
the consent decree. Because the court found that the 
City’s seniority system was not bona fide, and that 
the proposed layoffs would have a racially discrimina­
tory effect on blacks, it enjoined the City from apply­
ing the “ last hired, first fired” rule to the extent that 
it would decrease the percentage of blacks then em­
ployed in certain job classifications. Id. at 2582.

On appeal, the Sixth Circuit affirmed even though 
it disagreed with the district court’s finding that the 
seniority system was not bona fide. 679 F.2d 541, 
551 n. 6 (6th Cir.1982). The court of appeals rea­
soned that the district court’s injunction enforced 
the terms of a valid consent decree, id. at 561, and, in 
any event, was a valid modification of the decree. 
Id. at 562-64.



30a

The Supreme Court reversed. The Court stated 
that the issue at the heart of the case was “whether 
the District Court exceeded its powers in entering an 
injunction requiring white employees to be laid off, 
when the otherwise applicable seniority system would 
have called for the layoff o f black employees with 
less seniority.”  Stotts, 104 S.Ct. at 2585 (footnotes 
omitted).

The Court first rejected the Sixth Circuit’s hold­
ing that the injunction merely enforced the terms 
of the consent decree. Id. at 2585-86. The Court also 
found erroneous the Sixth Circuit’s confusion that 
the injunction was a proper modification of the con­
sent decree even though the modification conflicted 
with the City’s bona fide seniority system. The Court 
noted that Section 703(h) of Title VII, 42 U.S.C. 
§ 2000e-2(h), immunizes a bona fide seniority sys­
tem from a Title VII challenge absent proof of an 
intention to discriminate. Stotts, 104 S.Ct. at 2587. 
The Court also relied on Franks v. Bowman Trans­
portation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed. 
2d 444 (1976), and Teamsters v. United States, 431 
U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). 
Those cases, the Court stated, made it clear that: (1) 
individual members of a class may be awarded com­
petitive seniority if  they can prove that they have 
been actual victims of a discriminatory practice ; and 
(2 ) even where an individual proves that the dis­
criminatory practice had an impact on him, he is not 
automatically entitled to the displacement of a non­
minority employee to make room for him. Stotts, 
104 S.Ct. at 2588. The Court reasoned that since 
there was no finding that blacks protected from lay­
off had never been discriminated against, and since 
no blacks had been awarded competitive seniority, the



31a

Sixth Circuit “ imposed on the parties as an adjunct 
o f settlement something that could not have been 
ordered had the case gone to trial and the plaintiffs 
proved that a pattern or practice of discrimination 
existed.”  Id.

The Court also held that the injunction was not 
permissible as a valid Title VII remedial order. The 
Court stated that the Teamsters holding that com­
petitive seniority can be awarded only to actual vic­
tims of illegal discrimination is consistent with the 
policy behind § 706 (g ), 42 U.S.C. § 2000e-5(g). The 
policy o f that remedies provision “ is to provide make- 
whole relief only to those who have been actual vic­
tims of illegal discrimination.”  Stotts, 104 S.Ct. at 
2589.

We concede that a superficial reading of Stotts 
supports appellants’ position. We view that case, 
however, as limited to its own facts, and factually 
and legally distinguishable from the one at bar.

First, as the Supreme Court itself was careful to 
note, the central issue in that case concerned the 
district court’s authority to override a bona fide sen­
iority system to require layoffs of more senior whites, 
in the absence of a showing of intentional discrimi­
nation. Here, the order under review involves promo­
tions, not layoffs pursuant to a bona fide seniority 
system. Section 703(h) of Title VII simply is not a 
controlling factor in this case. See Turner, 759 F.2d 
at 824 ( “ there is no contention that a bona fide sen­
iority system will be affected by the [remedy au­
thorized by the consent judgment] S t o t t s  is there­
fore distinguishable); EEOC v. Local 638 Sheet Metal 
W orkers’ International Ass’n, 753 F.2d 1172, 1186 
(2d Cir.1985) (remedies at issue were not “ in di­
rect conflict with a bona fide seniority plan that was



32a

protected by § 703(h) o f Title V II ;”  Stotts is there­
fore distinguishable), 'petition for  cert, filed, -------
U.S. -------, -------  S.Ct. -------, -------  L.Ed.2d -------, 53
U.S.L.W. 3842 (U.S. April 16, 1985); Vanguards of 
Cleveland v. City of Cleveland, 753 F.2d 479, 486 
(6th Cir. 1985) (consent decree did not have “ the 
direct effect of abrogating a valid seniority system to 
the detriment of non-minority workers;”  Stotts is 
therefore distinguishable); Kromnick v. School Dis­
trict, 739 F.2d 894, 911 (3d Cir. 1984) ( “ no over­
ride of a bona fide seniority plan, and no require­
ment of race-conscious layoffs;”  Stotts is therefore
distinguishable), cert, denied, ------- U.S. ------- , 105
S.Ct. 782, 83 L.Ed.2d 777 (1985); see also Deveraux 
v. Geary, 596 F.Supp. 1481, 1485 (D.Mass.1984) 
(Stotts “ opinion [is] limited to a discussion of lay­
offs made in violation of a bona fide seniority sys­
tem.” ).

Second, the defendant in Stotts never admitted that 
it had engaged in intentional discrimination. Here, 
there are judicial findings that the Department was 
so successful in its intentional exclusion of blacks 
from its ranks, that in the 37 years preceding the 
institution o f this action the Department did not have 
a single black on its state trooper payroll. See EEOC, 
753 F.2d at 1186 (Stotts distinguishable because 
there was a finding of intentional discrimination 
against nonwhites); NAACP v. Detroit Police Officers 
Ass’n (D PO A), 591 F.Supp. 1194, 1202 (E.D.Mich. 
1984) (same). Moreover, the 1979 and 1981 Decrees 
enforced by the district court were entered to over­
come the manifest and chronic effects of the outright 
and total exclusion of blacks.

Third, Stotts was primarily a Title VII action. Here, 
the case was brought under the Fourteenth Amend­



33a

ment. See Detroit Police Officers Ass’n (D PO A), 591 
F.Supp. at 1202 ( “Stotts and the Title VII cases re­
lied upon by the Supreme Court there rest on inter­
pretations o f Congressional intent in enacting Title 
VII, and contain no interpretation of the Fourteenth 
Amendment.” ).

Fourth, assuming this case is properly viewed as 
a Title VII case, Stotts did not involve the enforce­
ment o f a voluntary negotiated consent decree. 
Rather, that case “ dealt with the power of a court 
to modify a consent judgment over the objection of 
one of the parties.”  Turner, 759 F.2d at 824 (em­
phasis added); see Stotts, 104 S.Ct. at 2587 n. 9 
( “ [A ] district court cannot enter a disputed modi­
fication of a consent decree in Title VII litigation if  
the resulting order is inconsistent with that stat­
ute.” ). We have held here, however, that the district 
court’s order was fully authorized by the 1979 and 
1981 Decrees. See Turner, 759 F.2d at 824.

Regardless of the scope of section 706(g) of Title 
VII, relied upon by the Court in Stotts, that section 
“ does not limit the remedies to which parties may 
voluntarily agree under a consent judgment.”  Id . ; 
see Vanguards, 753 F.2d at 487-88. Several decisions 
since Stotts make this unmistakably clear. This court 
stated in Turner that neither Section 706(g) nor the 
Stotts case, prevents a court from approving a con­
sent decree that provides relief which is consistent 
with, but goes beyond, that authorized in the under­
lying statute. Turner, 759 F.2d at 824-26. Surely 
the district court’s order enforcing the terms of the 
1979 and 1981 Decrees is consistent with the pur­
poses of Title VII. See id. at 826. Similarly, in Van­
guards the Sixth Circuit had little difficulty uphold­
ing a voluntary affirmative action plan approved by



34a

the district court over the objection of a local union 
even though the seniority rights of non-minority em­
ployees were abridged. The court noted that Stotts 
did not hold that “ consent decrees must strictly con­
form to the scope of relief available to a court in a 
wholly coercive action.”  Vanguards, 753 F.2d at 488. 
To hold that Title VII forbids voluntary affirmative 
action by an employer to the detriment of seniority 
rights of white employees would be to hold that Stotts 
overruled United Steelworkers of America v. Weber, 
443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979). 
Vanguards, 753 F.2d at 487-88. This the Sixth Cir­
cuit was not prepared to do. The Vanguards decision 
is consistent with another post -Stotts Sixth Circuit 
case. In Wygant v. Jackson Board of Education, 746
F.2d 1152 (6th Cir.1984), cert, granted, ------- U.S.
-------, 105 S.Ct. 2015, 85 L.Ed.2d 298 (1985), the
court upheld a race-conscious layoff formula con­
tained in a collective bargaining agreement between 
the board of education and the teachers union. Re­
lying on Weber, the court characterized the formula 
as a valid “voluntary, race-conscious affirmative ac­
tion plan,”  id. at 1158, which was “ easier to defend 
in [court] than [a plan] mandated ab initio by fed­
eral trial courts.”  Id. at 1159; accord, Kromnick, 
739 F.2d 894; see also Britton v. South Bend Com­
munity School Corp., 593 F.Supp. 1223, 1230 (N.D. 
Ind.1984) (collectively bargained “ no minority lay­
off clause”  survives Stotts challenge).

Based on the foregoing, we conclude that the dis­
trict court’s order enforcing the 1979 and 1981 De­
crees is not rendered invalid by the Stotts decision. 
The district court’s order will not be reversed simply 
because black troopers promoted under it have not



been identified as specific victims of unlawful dis­
crimination.14

(c) The Fourteenth Amendment
The intervenors claim that the district court’s or­

der enforcing the 1979 and 1981 Decrees violate their 
constitutional right to equal protection. We disagree.

The Supreme Court squarely confronted the con­
stitutionality of race-conscious affirmative action 
plans in Regents of the University of California 
v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed. 
750 (1978). Unfortunately, “ [n ]o  clear consensus 
emerged from the Court’s decision.”  South Florida 
Chapter of the Associated General Contractors 
v. Metropolitan Dade County, Florida, 723 F.2d
846, 850 (11th C ir.), cert, denied, ------- U.S. -------,
105 S.Ct. 220, 83 L.Ed.2d 150 (1984). Nor did 
Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 
65 L.Ed.2d 902 (1980), produce a majority opinion 
on the equal protection issue. Hence, “ determining 
what [equal protection reverse discrimination] ‘test’ 
will eventually emerge from the Court is highly spec­
ulative.”  South Florida Chapter, 723 F.2d at 851; 
see also Bratton v. City of Detroit, 704 F.2d 878, 
885 (6th Cir.) ( “ The Supreme Court has not pro­
vided the kind of guidance in the constitutional con­
text that [it has] under Title V II” ), modified, 712
F.2d 222 (6th Cir.1983), cert, denied, ------- U.S.
- — , 104 S.Ct. 703, 79 L.Ed.2d 168 (1984 ); Valen­
tine v. Smith, 654 F.2d 503, 510 (8th Cir.) ( “ There 
is no [Supreme Court] consensus on what findings of

14 Given our holding, the district court’s failure to hold an 
evidentiary hearing to determine whether or not the black 
troopers to be promoted under the plaintiffs’ motion to enforce 
had in fact been discriminated against does not constitute 
reversible error.

35a



36a

past discrimination justify remedial action” ), cert, 
denied, 454 U.S. 1124, 102 S.Ct. 972, 71 L.Ed.2d 
111 (1981 ); United States v. City of Miami, 614 F.2d 
1322, 1337 (5th Cir.1980) ( “We frankly admit that 
we are not entirely sure what to make of the various 
Bakke opinions. In over [150] pages of United 
States Reports, the Justices have told us mainly that 
they have agreed to disagree” ), aff’d in part and va­
cated in part and remanded, 664 F.2d 435 (5th Cir. 
1981) (en banc). In spite of the absence of a defini­
tive Supreme Court standard on this issue, however, 
we recently stated with confidence:

“ At this point in the history of the fight 
against discrimination, it cannot be seriously 
argued that there is any insurmountable barrier 
to the use o f goals or quotas to eradicate the ef­
fects o f past discrimination.”  United States v. 
City of Miami, Fla., 614 F.2d 1322 (5th Cir. 
1980), modified 664 F.2d 435 (5th Cir. 1981).” 
“ Without race and sex consciousness, the effects 
of past racial and sexual discrimination cannot 
be eradictated. Many cases have held racial and 
sexual goals to be appropriate.”  United States 
v. City of Alexandria, 614 F.2d 1358, 1365 (5th 
Cir.1980).

Palmer v. District Board o f Trustees, 748 F.2d 595, 
600 (11th Cir.1984) (footnotes omitted).

In City of Alexandria, 614 F.2d 1358, this court’s 
predecessor held that the district court erred in not 
approving a consent decree which established long­
term and interim employment goals for blacks and 
women. The court concluded that “goals and targets 
are acceptable under the Constitution . . .  so long as 
they are reasonably related to the legitimate state



37a

goal of achieving equality of employment opportun­
ity.”  Id. at 1363 (footnote omitted). In fleshing out 
the “ reasonableness”  requirement, the court enumer­
ated three factors which should be taken into account: 
(1) whether the remedial relief is temporary “ and 
will terminate when the manifest [racial] imbalances 
have been eliminated;” (2) whether the relief estab­
lishes “ an absolute bar to the advancement of 
w h ite [s];”  and (3) whether the relief will benefit 
only “qualified” persons. Id. at 1366.

More recently, in a different context, this court 
enunciated a somewhat different standard. In South 
Florida Chapter, 122> F.2d 846, we had occasion to 
examine the constitutionality of a county ordinance 
granting preferential treatment to blacks in the con­
tract bidding process. We held that in the circum­
stances of that case, a minority “ set aside”  provision 
and a minority “goals”  provision were constitutional. 
For our purposes, the analysis employed in that case 
is more important than the result reached.

We recognized the absence of a definitive Supreme 
Court standard for judging the constitutionality of 
affirmative action. See id. at 850-52. A fter examin­
ing the various opinions found in Bakke and Fulli- 
love, we concluded that the appropriate standard of 
review should account for the concerns common to 
the various views expressed in those two fragmented 
decisions. Using this approach, we concluded that 
legislation employing benign racial clasifications gen­
erally will be upheld if : (1 ) the governmental au­
thority 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 classifications 
extends no further than the demonstrated need of



38a

remedying the present effects o f the past discrimina­
tion. Id. at 851-52. Although not a formal “ test,”  the 
approach used in South Florida Chapter was viewed 
as an attempt “ to balance the legitimate objective o f 
redressing past discrimination with the concerns that 
the chosen means be ‘narrowly tailored’ to the legis­
lative goals so as to not unfairly impinge upon the 
rights of third parties.”  Id. at 852.

A fter South Florida Chapter was handed down, we 
decided Palmer, 748 F.2d 595. Although in Palmer 
the constitutional issue was not the subject o f appeal, 
we suggested that an approach of the “ type” outlined 
in Valentine, 654 F.2d 503, might have been appro­
priate if  the constitutional issue had been presented. 
Palmer, 748 F.2d at 600 n. 14. In Valentine, the 
Eighth Circuit held that after a competent body has 
made findings of past discrimination, the constitu­
tional inquiry is “whether the affirmative action plan 
is ‘substantially related’ to the objective of remedying 
prior discrimination.”  Valentine, 654 F.2d at 510; 
see Palmer, 748 F.2d at 600 n. 14. More specifically, 
the Eighth Circuit stated:

A  race-conscious affirmative action program is 
substantially related to remedying past discrimi­
nation if  (1 ) its implementation 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 approxi­
mates roughly, but does not unreasonably exceed, 
the balance that would have been achieved ab­
sent the past discrimination; (2 ) the plan en­
dures only so long as is reasonably necessary to 
achieve its legitimate goals; (3 ) the plan does 
not result in hiring unqualified applicants; and 
(4 ) the plan does not completely bar whites from



39a

all vacancies or otherwise unnecessarily or in­
vidiously trammel their interests.

Valentine, 654 F.2d at 510.16
A  review of the foregoing authorities convinces us 

that the differences between the various approaches 
are more of phraseology than of substance. In any 
event, we need not choose among them since, under 
either the City of Alexandria, South Florida Chapter, 
or Valentine approaches, the district court’s order en­
forcing the 1979 and 1981 Decrees does not deprive 
the intervenors of their right to equal protection.

First, the long history of discrimination in the De­
partment cannot be denied. In 1972, when the dis­
trict court ordered quota hiring, the court noted that

lj The Sixth Circuit has adopted a similar approach, con­
cluding' that the only clear consensus to be garnered from 
Bakke and Fullilove is that an affirmative action must (1) 
serve some governmental interest, and (2) must somehow 
be directed toward the achievement of that objective. Bratton, 
704 F.2d at 885. The Sixth Circuit’s approach is essentially 
two-tiered. First, because the government has a significant 
interest in ameliorating the effects of prior discrimination, 
remedial action may be taken towards that end. Id. at 886. 
Second, remedial actions pass constitutional muster if the 
measures employed are reasonable. Id. at 887. “ Reasonable­
ness” is determined by examining the facts of the case to 
see whether any discrete group or individual is stigmatized 
by the program and whether racial classifications have been 
reasonably used in light of the program’s objectives.”  Id.-, 
see Detroit Police Officers’ Ass’n v. Young, 608 F.2d 671, 694 
(6th Cir. 1979), cert, denied, 452 U.S. 983, 101 S.Ct. 3079, 69 
L.Ed.2d 951 (1981) ; see also Wygant, 746 F.2d at 1157 (quot­
ing Wygant v. Jackson Bd. of Educ., 546 F.Supp. 1195, 1201 
(E.D.Mich 1982)) (“ The reasonableness test asks whether 
the affirmative action plan is ‘substantially related’ to the 
objectives of remedying past discrimination and correcting 
‘substantial’ and ‘chronic’ underrepresentation.” ).



40a

“ [i]n  the thirty-seven year history of the patrol there 
has never been a black trooper.”  NAACP v. Allen, 
340 F.Supp. at 705. In 1975, the district court found 
that “ the defendants have, for the purposes of frus­
trating or delaying full relief to the plaintiff class, 
artificially restricted the size of the trooper force and 
the number of new troopers hired.”  Record, Vol. 1, 
at 43. In 1979, when the defendants sought clarifica­
tion or modification of the 1972 Order, the district 
court found that the effects of defendants’ discrimi­
nation pervaded all levels o f the Department. Para­
dise v. Shoemaker, 470 F.Supp. at 442. The court 
noted that the quota relief it ordered in 1972 was 
designed to provide an impetus to promote blacks into 
positions above the rank of entry-level trooper. Yet, 
“ out of the 232 state troopers at the rank of corporal 
or above, there is still not one black.”  Id. (emphasis 
in original). To agree with defendants that the quota 
relief applied only to entry-level positions would be to 
“ ignore that past discrimination by the Department 
was pervasive, that its effects persist, and that they 
are manifest.”  Id; see supra p. 1520. Faced with 
this poor track record, as well as additional allega­
tions of discrimination, the Department agreed to the 
1979 and 1981 Decrees which were enforced by the 
district court in its December 15, 1983, order. As 
we have held, those decrees which were adopted as 
orders of the court, fully authorized the promotion 
quota now at issue. See supra Part I I .(a ). Just as 
clear is the fact that the relief now at issue was 
designed to remedy the present effects of past dis­
crimination. See Paradise v. Prescott, 585 F.Supp. at 
75.

The district court’s requirement that the promo­
tion quota remain in effect until either 25% of the



41a

rank is black or until a proper promotion procedure 
for that rank has been developed or implemented also 
was appropriate. The same ratio for hiring was 
ordered in the 1972 Order, and that ratio was affirmed 
on appeal. N AACP v. Allen, 493 F.2d 614. Addi­
tionally, the district court’s 1975 Order made it clear 
that the 25% requirement was applicable for all 
ranks of the trooper force. Paradise v. Shoemaker, 
470 F.Supp. 439; see supra p. 1519.

The district court’s order enforcing the consent de­
crees also is substantially related to the objective of 
eradicating the present effects of past discrimination, 
and extends no further than necessary to accomplish 
the objective o f remedying the “egregious”  and long­
standing racial imbalances in the upper ranks of the 
Department. Paradise v. Prescott, 585 F.Supp. at 75. 
As the district court observed, its order is a tempo­
rary measure designed only “  to eliminate a manifest 
and chronic racial imbalance” caused by the Depart­
ment’s conduct. Id. at 76. The promotion quota will 
cease to exist when the percentage figure has been 
met, or the Department succeeds in doing what it 
promised to do years ago. Additionally, the district 
court’s order does not require the discharge or de­
motion of a white trooper or the replacement of a 
white trooper with a black trooper. Id, Moreover, 
only qualified black troops may be promoted pursuant 
to the order, and white troopers are not barred by it 
from advancement through the ranks. Id. Finally, 
the promotion quota ordered by the district court ex­
tends no further than necessary to ameliorate the 
present effects of the Department’s past discrimina­
tion, effects which, as the history o f this case amply 
demonstrates, “will not wither away o f their own 
accord.”  Id. at 75.



42a

We conclude that the district court’s order enforc­
ing the consent decrees is eminently reasonable given 
the history of this case. While the concern of inter- 
venors’ is understandable, we are not prepared to 
upset the considered judgment o f the district court 
that “without promotional quotas the continuing 
effects of this [long-term, open and pervasive racial] 
discrimination cannot be eliminated.”  Id. at 76. In­
terveners have not been denied their constitutional 
rights to equal protection by the district court’s order 
enforcing the 1979 and 1981 Decrees.18

(d) Title VII

The intervenors also assert that the district court 
erred in not allowing them to present evidence on the 16

16 Similar to their contention regarding Title VII and the 
Stotts case, intervenors and the Department argue that the 
district court’s order enforcing the decrees is unconstitutional 
since there is no evidence in the record that the Department 
has intentionally discriminated against black troopers seeking 
promotions. We disagree for essentially two reasons. First, 
these appellants assume that the district court’s order amounts 
to a disputed modification of the 1979 and 1981 Decrees. We 
have held, however, that the district court merely enforced 
the terms of those decrees. See supra Part 11(a). Second, 
it is no answer in this case to say that plaintiffs have not 
proven that the Department has discriminated against blacks 
above the entry-level seeking promotions; there were no 
blacks holding such positions until 1979, and even then the 
only black troopers promoted obtained their promotions pur­
suant to the 1979 Decree, not the voluntary action of the 
Department. On the other hand, it cannot be gainsaid that 
white troopers promoted since 1972 were the specific bene­
ficiaries of an official policy which systematically excluded all 
blacks. We conclude that, in these circumstances, a finding 
of departmental discrimination against blacks in promotions 
was not a necessary predicate for granting the plaintiffs’ 
motion to enforce.



43a

“harsh impact”  that the imposition of a promotion 
quota would have on them. Brief of Intervenors at 
30. They argue that, notwithstanding the district 
court’s finding to the contrary, the order enforcing 
the consent decrees “unnecessarily trammel [s] their 
interests.” Id. The Department, whose standing to 
raise this issue is questionable, joins the intervenors 
on this issue.

The Supreme Court, in United Steelworkers of 
America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 
L.Ed.2d 480 (1979), upheld against a Title VII chal­
lenge a voluntary affirmative action plan established 
by the USWA and Kaiser Aluminum & Chemical 
Corp. The collectively-bargaining plan set percentage 
hiring goals for blacks, and established training pro­
grams which reserved a specified percentage of open­
ings for blacks. Id. at 198-99, 99 S.Ct. at 2724-25. 
The court held that “ Title V II’s prohibition in §§703 
(a) and (d) against racial discrimination does not 
condemn all private, voluntary, race-conscious affirm­
ative action plans.”  Id. at 208, 99 S.Ct. at 2729. 
The Court declined, however, to pronounce a bright 
line test for judging the permissibility of voluntary 
affirmative action plans. The Court simply held that 
the Kaiser-USWA plan was permissible under Title 
VII. The Court did, however, identify several fac­
tors it found important: (1 ) the purposes of the plan 
— to eliminate old patterns of racial segregation and 
hierarchy and to open to black jobs traditionally 
reserved for white only— mirrored those of Title 
V II; (2 ) the plan did not unnecessarily trammel the 
interests of white employees by requiring their dis­
charge and replacement with black employees; (3) 
the plan did not foreclose the advancement of white



44a

employees; and (4 ) the plan was a temporary meas­
ure. Id. at 208, 99 S.Ct. at 2729.

The district court concluded that the relief it or­
dered pursuant to the 1979 and 1981 Decrees was 
permissible under Weber. See Paradise v. Prescott, 
585 F.Supp. at 75-76. The intervenors complain, 
however, that the district court had before it an in­
adequate factual basis to make that conclusion. In­
tervenors’ position is untenable.

We initially note that intervenors failed to present 
this issue to the district court when the best oppor­
tunity to do so was presented. During the hearing 
on plaintiffs’ motion to enforce and the intervenors’ 
motion to intervene, held on May 27, 1983, the dis­
trict court made it clear that one purpose of the 
proceeding was to “ determine whether or not [the 
introduction of] evidence would be appropriate.”  Tr. 
at 34. Counsel for the intervenors, however, devoted 
the bulk of his argument to his clients’ contention 
that the motion to enforce could not be granted ab­
sent evidence that blacks to be promoted were actual 
victims of unlawful discrimination. We have seen, 
however, that such evidence was not necessary to 
justify enforcement of the 1979 and 1981 Decrees. 
See supra Part II. (b ) .  Counsel for intervenors did 
not at that time request an evidentiary hearing to 
determine whether the relief sought in plaintiffs’ 
motion would unnecessarily trammel their interests.17

17 We admit that intervenors were in a somewhat ambigu­
ous position at this hearing in that the court was hearing 
argument on the need for evidence vis a vis plaintiffs’ motion 
to enforce as well as on the motion to intervene. The fact 
remains, however, that intervenors were painfully aware of 
the motion to enforce and the relief sought therein for quite 
some time. We agree with the district court’s response to



45a

In any event, we conclude that the district court 
had before it an adequate factual basis to resolve the 
Weber issue. It is clear beyond cavil that the dis­
trict court’s order enforcing the 1979 and 1981 De­
crees is consistent with the purposes of Title VII does 
not unnecessarily trammel the interests of inter- 
venors by requiring their discharge and replacement 
with black troopers, does not absolutely bar their 
promotion to corporal, and is a temporary measure 
intended to eliminate a manifest racial imbalance. 
See Weber, 443 U.S. at 208-09, 99 S.Ct. at 2729-30. 
Under these circumstances, the district court was not 
required to hold an additional evidentiary hearing.

III. PARADISE II

Shortly after the district court entered the order 
appealed from in Paradise I, the Department, pur­
suant to that order, filed its schedule for developing 
promotion procedures for all ranks above the entry 
level position. Record, Vol. 3 at 569-70. That sched­
ule was approved by the district court. Id. at 627. 
Thereafter, on June 19, 1984, the Department filed a 
statement o f completion of selection procedure for 
promotion to the rank of corporal and a motion to 
approve the procedure. Record, Vol. 1, at 9 and 12, 
No. 84-7564. The court directed the other parties to 
submit written responses to the Department’s motion, 
and set the matter for a hearing, which was held on 
July 3, 1984.

intervenors’ suggestion that they were unable to respond to 
plaintiffs’ motion until the court had ruled on the motion to 
intervene: “ Haven’t you had the file before you? Haven’t 
you had an opportunity to go through it? This is not an evi­
dentiary hearing, you know the motion was filed, and you’ve 
read it. I’ll hear you on it.” Tr. at 25.



46a

Briefly put, the proposed selection procedure was 
comprised of the following: (1 ) administration of a 
written examination to all candidates for promotion; 
(2 ) preliminary ranking of all candidates based on 
examination scores and service ratings; (3 ) certifica­
tion o f the top-ranked candidates for structured oral 
interviews; and (4) evaluation of each certified can­
didate, based on his or her interview, as “best quali­
fied,”  “highly qualified,” “ qualified,”  or “ not qualified.” 
All candidates within each of these categories were 
to be equally eligible for promotion. The Department, 
which had administered the proposed selection pro­
cedure prior to the filing of its motion, wished to 
begin making promotions from among the 13 “best 
qualified” candidates.

The written examination was given to 256 candi­
dates, of whom 179 (69.9% ) were white and 77 
(30.1% ) were black. Before the examination was 
given, the Department had decided to use the written 
examination and service rating as a screening device 
to determine who would be certified for oral inter­
views, I f 15% of the top 25% of those participating 
in the initial portion of the promotion procedure were 
black, the Department planned to certify the top 25 % 
as eligible for oral interview. A  preliminary ranking 
of test scores and service ratings, however, revealed 
that of the top-ranked 64 (25%  of 256) candidates 
only three were black (4.7%  o f 64). To insure that 
15% of the top 25% were black, and to avoid passing 
over any white candidates to achieve this objective, 
the Department decided to certify the top 116 candi­
dates. Of these, 105 (90 .5% ) were white and 11 
(9 .5% ) were black. The difference in scores between 
the white candidate ranked #  64 and the black can­
didate ranked # 1 1 6  was 1.2 points out of a total of



47a

100 possible points (96.25 and 95.05, respectively). 
Intervenor Bailey ranked #  14 with a score of 98.37, 
intervenor McClellan ranked #  33 with a score of 
97.27, intervenor Davenport ranked #  53 with a 
score of 96.69, and intervenor Mansell ranked #  56 
with a score o f 96.62.

The oral interview panel consisted o f three per­
sons. The panel asked the candidates six structured 
questions. Each member o f the panel then inde­
pendently rated the responses of each applicant. As 
a result o f the interviewing process, 13 candidates—  
10 white and 3 black— were rated ‘ ‘best qualified;”  
51 candidates— 46 whites and 5 black— were rated 
“highly qualified;”  46 candidates— 43 white and 3 
black— were rated “ qualified;”  and 4 candidates, all 
white, were rated “ not qualified.”  Two white candi­
dates did not appear for their interviews. Of the 
three black candidates among the top-ranked 64 can­
didates in the preliminary ranking, one was rated 
“best qualified”  and the other two were rated “ highly 
qualified.”  Of the 61 white candidates among the 64, 
eight were rated “best qualified;”  29 (including in- 
tervenors Bailey and McClellan) were rated “highly 
qualified;”  22 (including intervenor Mansell) were 
rated “ qualified;” and 2 (including intervenor Daven­
port) were not rated in any of these three categories. 
The 3 black candidates among the “best qualified” 
candidates were originally ranked #  34, #  68, and 
# 7 6 .  The ten white candidates in this category 
originally ranged from #  2 to #  102. As is ap­
parent, there is no readily discernible correlation be­
tween a candidate’s preliminary ranking before the 
oral interviews and his or her final rating.

As we have seen, the Department indicated that it 
intends to promote only those in the “best qualified”



48a

list. When the “ best qualified” list is exhausted, the 
Department will administer a new examination and 
candidates will be interviewed.

The plaintiffs and the United States suggested that 
the Department be permitted to employ the proposed 
selection procedure, but that any approval of further 
use of the procedure be withheld pending discovery 
and a hearing on the validity of the procedure. The 
intervenors, however, objected to any use of the De­
partment’s proposed selection procedure pending dis­
covery and a final determination of the content va­
lidity of the procedure.

The district court, on July 27, 1984, ruled on the 
Department’s motion. The court allowed the Depart­
ment to select corporals in a nondiscriminatory man­
ner from the candidates rated “best qualified”  and 
suspended the 1-for-l corporal promotion quota as to 
any such promotions. Record, Vol. 1, at 116, No. 84- 
7564. The court ordered the defendants to give notice 
to all parties o f any proposed corporal promotions at 
least 5 days prior to the effective date of promotion. 
I f a party objects to a proposed promotion, the promo­
tion will be stayed until further order of the court. 
Id. The court gave the parties leave to conduct dis­
covery on the issue of whether the selection proce­
dure is valid as job-related under the Uniform Guide­
lines and in compliance with the 1979 and 1981 De­
crees. Id. at 117. The court indicated that it would 
conduct further proceedings to determine whether fu ­
ture administrations of the Department’s proposed 
selection procedure may be used without judicial in­
tervention, and enjoined corporal promotions other 
than from the 13 “best qualified”  candidates. Id.

Only the intervenors appealed the July 27, 1984 
order. Thereafter, the Department notified the other



49a

parties o f their intention to make nine corporal 
promotions from the “best qualified”  list. The inter- 
venors objected, and moved the district court to stay- 
operation of the July 27 order and any promotions 
made under it. Id. at 168-71. The district court 
denied the motion for stay, and the promotions sub­
sequently were made.

(a ) Issues

Although intervenors raise a number of issues on 
appeal, we agree with the United States that the only 
issue properly before this court is whether the dis­
trict court’s July 27, 1984 order exceeds the district 
court’s remedial authority or otherwise violates the 
law.18 For the reasons which follow, we affirm.

18 The intervenors devote most of their argument to an 
attack on the 1979 and 1981 Decrees. They argue that these 
decrees, which serve as “ charters” for all promotional pro­
cedures to be developed by the Department, Brief of Inter­
venors at 13, No. 84-7564, are unlawful in that they sanction 
prospective race-conscious relief to individuals who have not 
been shown to be victims of discrimination. Intervenors also 
argue that these decrees have been rendered invalid by Stotts, 
and violate their constitutional rights and rights under the 
state merit system. Intervenors finally contend that, in light 
of Stotts, the decrees must be modified. Although most of 
these arguments probably have been answered by our resolu­
tion of Paradise I, we agree with the appellees in this case 
that the validity of the 1979 and 1981 Decrees is not properly 
before this court.

Intervenors correctly note that since they were not parties 
to the 1979 and 1981 Decrees, it cannot be said that they 
consented to the terms of those decrees. See Stotts, 104 S.Ct. 
at 2586; Reeves v. Wilkes, 754 F.2d 965, 971 (11th Cir. 1985). 
The intervenors nonetheless have not appealed the district 
court’s ruling that they “may participate in these proceedings 
on a prospective basis only and may not challenge previously



50a

(b) Discussion
The intervenors argue that the district court’s ap­

proval o f the Department’s promotion procedure “ ex­
tends beyond the remedial authority allowed . . .  by 
§ 706(g) of Title VII, . . .  is inconsistent with 
. . . Stotts [,] and . . . violates the rights o f the 
intervenors guaranteed by the United States Consti­
tution and both federal and state law.”  Brief of In­
tervenors at 18. In their view, the promotion proce­
dure is unlawful because it was designed to guaran­
tee preferential treatment to persons not proven to 
be victims of discrimination. The intervenors suggest

entered orders, judgments, and decrees since intervention is 
untimely as to these.” Record, Vol. 2, at 309. The soundness 
of that ruling accordingly is not before us, though we would 
be hard-pressed to reverse it in light of recent circuit prece­
dent. See Reeves, 754 F.2d 965. It is one thing to say that the 
July 27, 1984 order violates their rights or exceeds the court’s 
authority; it is quite another to say the same about the 1979 
and 1981 Decrees.

Intervenors also argue that the 1979 and 1981 Decrees 
should be modified. Quite apart from the fact that the inter­
venors are in this action on a prospective basis only, curi­
ously absent from the record is any indication that a motion 
seeking modification has been submitted to the district court. 
In their proposed opinion and order submitted to the district 
court after the July 3, 1984 hearing on the Department’s 
motion, the intervenors proposed that they “ should be allowed 
the right to file appropriate pleadings seeking a modification 
of those consent decrees.”  First Supp. Record, Vol. 1, at 3. 
The intervenors, however, also expressly stated that consider­
ation should be given to modifying the decrees only at a future 
hearing, and then only “ if appropriate pleadings are filed.” 
Id. In the order appealed from, the district court neither 
acknowledged the intervenors alleged right to modify the 
decrees, nor did it deny them that right. Since no party has 
asked the district court to modify the decrees, that issue is not 
properly before us.



51a

that because the Department was operating under the 
1979 and 1981 Decrees, “ some number of promotions 
were . . . guaranteed or assigned for blacks.”  Id. 
at 9.

The intervenors identify two points in the promo­
tion procedure wherein impermissible quotas allegedly 
were imposed: when the Department decided to cer­
tify the top 116 candidates for oral interviews and 
the evaluation of certified candidates as “best quali­
fied.”  The intervenors suggest that 116 candidates, 
as opposed to the top 64 (2 5 % ), were certified for 
oral interviews to satisfy the adverse impact require­
ment o f the consent decrees. They also suggest that 
18, and only 13, candidates were rated “best quali­
fied”  in order to satisfy the immediate promotional 
needs of the Department while guaranteeing “ that a 
requisite number o f blacks, in this case three, would 
be promoted.” Id. at 17.

Defendants ignore the fact that by certifying 116 
candidates for oral interviews, no white candidates 
were passed over in favor of blacks scoring lower on 
the examination. Thus, the benefit of an oral inter­
view and the possibility of promotion was conferred 
equally on similarly situated candidates of both races. 
Moreover, contrary to intervenors’ suggestion, the 
decision to expand the class of candidates to be certi­
fied was not arbitrary. As we have seen, a large pool 
of candidates scored better than 95 out of 100 possible 
points, and numerical distinctions between the candi­
dates ranked #  64 through # 1 1 6  were insignificant. 
See supra p. 1585. All candidates certified for oral 
interview thus demonstrated substantial qualification 
for promotion by scoring better than 95 on this phase 
of the promotion procedure.

The Department also cannot be faulted for employ­
ing an oral interview component in its promotion pro­



52a

cedure when the scores of the top-ranked candidates 
were so closely grouped. The Department’s determi­
nation that “merit”  could best be measured by a 
combination o f factors rather than by rank order use 
o f scores on the written examination is also supported 
by the function performed by the oral interviews. As 
counsel for the Department stated in the district 
court: “ These [oral interview] questions were de­
signed to determine: one, how that candidate thought 
under stress, how he could think on his feet, com­
munication skills, his career objectives, knowledges 
and goals of the duties of the Department . . ., and 
his overall ability to perform as a supervisor in the 
Department. . . .”  Tr. at 16-17, No. 84-7564. Fur­
thermore, the decision to require candidates for pro­
motion to undergo oral interviews was particularly 
appropriate where the written examination had not 
been validated.

The interveners’ assumption that 13 “best quali­
fied”  candidates were selected to guarantee that a 
certain number of blacks would be promoted also is 
unwarranted. The intervenors introduced no evidence 
whatsoever in support of this charge. Indeed, the 
record indicates otherwise. Counsel for the Depart­
ment represented to the district court that the inter­
viewers were not “coached” or instructed on how the 
interviewees were to be graded. “ They were not told 
anything. They were told to select the best candi­
dates that appeared before them. There was no . . . 
they were not given any quotas or goals or any racial 
composition at all.”  Id. at 29-30. Additionally, since 
there were no limits on how many candidates could 
be rated “ best qualified,”  and since the Department 
intends to promote only from the “best qualified”  list, 
we fail to see how the intervenors’ chances for



53a

promotion have been materially affected by the certi­
fication of 116 candidates, rather than 64, for oral 
interview.

We conclude that, regardless of the wisdom of our 
various holdings in Paradise I, intervenors simply 
have failed to show that the Department’s promotion 
procedure imposes promotion quotas or otherwise ac­
cords preferences or benefits to black candidates for 
promotion at the expense of more qualified white can­
didates. Rather, the record shows that the Depart­
ment’s promotion procedure is fair to all applicants, 
white and black, and that only merit factors were 
considered in the selection of the 13 “best qualified” 
candidates from the 116 certified for oral interviews. 
The district court therefore did not exceed its reme­
dial authority under Title VII when it approved the 
Department’s promotion procedure. Moreover, since 
the promotion procedure approved by the district 
court does not involve “ reverse discrimination”  against 
white candidates for promotion, the intervenors’ other 
contention also must fail.19

10 When the district court overruled the motions to recon­
sider, alter or amend, and stay enforcement of the order 
enforcing the 1979 and 1981 Decrees, it predicted that use of 
the promotion quota might be a “ one-time occurrence” in 
light of the defendants’ pledge to promptly develop promo­
tional procedures conforming with the consent decrees. R.E. 
at 178. The reasonableness of the order enforcing the decrees 
and the accuracy of the district court’s prediction are attested 
to by recent events.

After the district court entered the July 27, 1984 order, 
the defendants moved the court for approval of a proposed 
selection procedure for promotions to sergeant. The court 
thereafter entered an order similar to the July 27 order, 
suspending the 1-for-l promotion quota for that rank, allowing 
sergeant promotions from among the “ best qualified” candi­
dates for promotion to that rank, and prohibiting other ser-



54a

The district court’s orders in Paradise I  and Para­
dise 11 are AFFIRMED.

geant promotions until further order of the court. Addi­
tionally, the defendants have been allowed to promote only 
white troopers to the lieutenant and captain ranks since there 
apparently are no black troopers qualified for promotion to 
those ranks.

The recent progress made by the Department also reinforces 
our conclusion that the quota relief granted by the district 
court was necessary to commence the process of eliminating 
the present effects of the Department’s past discrimination. 
It seems that the 1-for-l promotion mandate, which has been 
used only once, has given the Department the incentive to 
comply now with its obligations under the law and the 1979 
and 1981 Decrees. It thus appears that the principal effect 
of the. order enforcing the decrees might be the development 
of acceptable promotion procedures for all ranks and the 
nullification of the promotion quota.



55a

APPENDIX B

IN THE DISTRICT COURT 
OF THE UNITED STATES 

FOR THE MIDDLE DISTRICT OF ALABAM A 
NORTHERN DIVISION

Civil Action No. 3561-N
P h il l ip  P aradise , Jr ., individually and on behalf of 

the class similarly situated, pla in tif f s

U n ite d  States  of A m e ric a ,
PLAINTIFF AND AMICUS CURIAE

V.

B y ro n  Prescott, as Director of the 
Alabama Department of Public Safety, e tc ., et  a l .,

DEFENDANTS

V . E. M cCl e l l a n , et a l ., d e fen d a n t -intervenors

[Filed Dec. 15,1983]

ORDER

In accordance with the memorandum opinion en­
tered this date, it is the ORDER, JUDGMENT, and 
DECREE of the court:

(1 ) That the plaintiffs’ April 7, 1983, motion to 
enforce the terms of the February 16, 1979, partial 
consent decree and August 18, 1981, consent decree, 
be and it is hereby granted to the extent hereafter 
set forth;



56a

(2) That the defendants and their agents and em­
ployees be and each is hereby enjoined and restrained 
from failing to promote from this day forward, 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 to the 
rank;

(3 ) That this promotion requirement shall remain 
in effect as to each trooper rank above the entry- 
level rank until either approximately 25% of the 
rank is black or the defendants have developed and 
implemented a promotion plan for the rank which 
meets the prior orders and decrees o f the court and 
all other legal requirements;

(4 ) That within 35 days from the date of this 
order the defendants shall submit to the court for the 
court’s approval a schedule for the development of 
promotion procedures for all ranks above the entry- 
level position;

(5) That the plaintiffs be and they are hereby al­
lowed 21 days from this date to file a request for 
interim attorney fees, which request shall be sup­
ported by affidavits and shall address each of the
criteria set forth in Hensley v. E ckerhart,-------U.S.
-------, 103 S.Ct. 1933 (1983), and Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714 (5th Cir. 
1974); and

(6) That all other relief requested by the plaintiffs 
in their motion and not specifically granted be and 
it is hereby denied.

DONE, this the 15th day of December, 1983.

,/s / Myron H. Thompson
UNITED STATES DISTRICT JUDGE



APPENDIX C

IN THE DISTRICT COURT 
OF THE UNITED STATES 

FOR THE MIDDLE DISTRICT OF ALABAM A 
NORTHERN DIVISION

Civil Action No. 3561-N

P h il l ip  P aradise , Jr ., individually and on behalf of 
the class similarly situated, pla in tif f s

U nited  States  of A m erica ,
PLAINTIFF AND AMICUS CURIAE

V.

B yro n  Prescott, as Director of the 
Alabama Department of Public Safety, e tc ., et  a l .,

defen dants

V . E. M cCl e l l a n , et  a l ., d e fen d a n t -intervenors

[Filed Dec. 15,1983]

MEMORANDUM OPINION
The present phase of the proceedings in this law­

suit began on April 7, 1983, when the plaintiffs filed 
a motion to enforce the terms of two previously en­
tered consent decrees. In accordance with these de­
crees and as a result of recent developments, this 
court must determine what procedure the Alabama



58a

Department of Public Safety must use in promoting 
troopers. The court understands that the depart­
ment is in need of at least 15 new corporals immedi­
ately.

I.

In 1972, then Chief District Judge Frank M. John­
son, Jr., remarked in this case that “ [i]n  the thirty- 
seven-year history of the patrol there has never been 
a black trooper and the only Negroes ever employed 
by the department have been nonmerit system labor­
ers.” N AACP v. Allen, 340 F. Supp. 703, 705 (M.D. 
Ala. 1972). The court found that the department had 
“engaged in a blatant and continuous pattern and 
practice of discrimination in hiring . . . both as to 
troopers and supporting personnel;”  and the court 
ordered that the department hire one black trooper 
for each white trooper hired “ until approximately 
twenty-five (25) percent of the Alabama state trooper 
force is comprised of Negroes.” Id. at 705, 706. The 
order was affirmed on appeal. 493 F.2d 614 (5th 
Cir. 1974).

In a later proceeding in this case, Judge Johnson 
was asked to clarify “ whether the twenty-five percent 
hiring quota applies to the entire state trooper force 
or just to entry-level troopers.”  Paradise v. Shoe­
maker, 470 F. Supp. 439, 440 (M.D. Ala. 1979). The 
court responded that “ there is no ambiguity”  and 
that the twenty-five percent quota applies “ to the 
entire force o f sworn officers, not just to those in the 
entry-level rank.”  Id. at 440-41. The court observed 
that the defendants were guilty of discrimination not 
just in hiring, but in all ranks of the patrol. The 
court then emphasized that,

One continuing effect o f that discrimination is
that, as of November 1, 1978, out of 232 state



59a

troopers at the rank of corporal or above, there 
is still not one black. The quota fashioned by the 
Court provides an impetus to promote blacks into 
those positions. To focus only on the entry-level 
positions would be to ignore that past discrimina­
tion by the Department was pervasive, that its 
effects persist, and that they are manifest.

Id. at 442 (emphasis in original).
On February 16, 1979, the parties entered into a 

consent decree which required that the department 
develop and implement a valid promotion procedure 
for the rank of corporal. The decree gave the depart­
ment a year to meet this objective, after which the 
department was to do the same, in turn, for the 
ranks of sergeant, lieutenant, captain and major. 
This time schedule was not met, and on August 18, 
1981, the parties entered into another consent decree 
which allowed the department to administer a newly 
developed promotion procedure for the rank of cor­
poral, but prohibited any promotions under the pro­
cedure until it had been first determined that the 
procedure had “ little or no adverse impact against 
black applicants.” According to the decree, adverse 
impact was to be determined and measured by the 
“ four-fifths rule”  set forth in Section 4 D of the 
Uniform Guidelines of Employee Selection Proce­
dures, 28 C.F.R. § 50.14 (1983).

On April 7, 1983, the plaintiffs filed a motion seek­
ing enforcement of the 1979 and 1981 consent de­
crees and, in particular, a determination whether the 
department’s promotion procedure for corporal had 
an adverse racial impact. The department needed at 
least 15 new corporals, and the parties were unable 
to agree whether the procedure developed in 1981



60a

could be used for the promotions. On October 28, 
1983, the court found that the procedure did have an 
adverse racial impact on black applicants and, in 
accordance with the 1981 consent decree, prohibited 
use o f the procedure.

The parties have been unable to agree upon an­
other selection procedure for the 15 needed corporals; 
and, as required by the 1981 consent decree, they have 
requested that the court fashion a procedure.

II.
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 o f the Alabama Department o f 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 ob­
tained his position through procedures that totally 
excluded black persons. Moreover, the department is 
still without acceptable procedures for advancement 
o f black troopers into this structure, and it does not 
appear that any procedures will be in place within 
the near future. The preceding scenario is intolerable 
and must not continue. The time has now arrived for 
the department to take affirmative and substantial 
steps to open the upper ranks to black troopers.

In light o f the severe racial imbalances in the upper 
ranks, the court agrees with the plaintiffs that for a



61a

period of time at least 50% of all those promoted to 
corporal and above must be black troopers, as long as 
there are qualified black troopers available.1 The 
court also agrees with the plaintiffs that if  there is to 
be within the near future an orderly path for black 
troopers to enter the upper ranks, any relief fashioned 
by the court must address the department’s delay in 
developing acceptable promotion procedures for all 
ranks. The court will therefore enter an order re­
quiring that, for each white trooper promoted to a 
higher rank, the department shall promote one black 
trooper to the same rank, if there is a black trooper 
objectively qualified for the promotion. This require­
ment shall remain in effect as to each rank above 
entry level until either 25% of the rank is black or 
the department has developed and implemented for 
the rank a promotion procedure which meets the re­
quirements o f the prior orders and decrees of this 
court and all other relevant legal requirements.2 The 
court will also require that the department submit to

1 In light of the department’s failure after almost twelve 
years to eradicate the continuing effects of its own discrimina­
tion and to develop acceptable promotion procedures and in 
light of the severity of the existing racial imbalances, a 
credible argument could be made that all 15 of the new cor­
porals should be black, followed perhaps by a one-to-one ratio. 
However, the plaintiffs are not seeking this relief.

2 According to the 1980 Census of Population published by 
the U.S. Department of Commerce, the State of Alabama is 
approximately 26% black. In International Brotherhood of 
Teamsters v. United States, 431 U.S. 324, 340 n. 20, 97 S.Ct. 
1843,1857 n. 20 (1977), the Supreme Court stated that “absent 
explanation, it is ordinarily to be expected that nondiscrimi- 
natory hiring practices will in time result in a work force 
more or less representative of the racial and ethnic composi­
tion of the population in the community from which employees 
are hired.”



62a

the court for the court’s approval a schedule for the 
development of promotion procedures for all ranks 
above the entry-level position. The schedule should be 
based upon realistic expectations.

III.
The relief fashioned by the court today is war­

ranted by law. Where there has been unlawful dis­
crimination, a district court has not only the power 
but the responsibility to fashion a remedy that will 
as much as possible eliminate the discriminatory 
effects of past discrimination as well as bar like dis­
crimination in the future. Albermarle Paper Co. v. 
Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372 (1972). 
As the evidence in the present case dramatically 
demonstrates, these effects will not wither away of 
their own accord. Furthermore, in fashioning relief, 
a court should include race-conscious requirements if 
they are necessary, reasonable, and otherwise ap­
propriate under the circumstances.3 United States v. 
City of Miami, 664 F.2d 435 (5th Cir. Dec. 3, 1981) 
(en banc) (former Fifth C ircu it); United States v. 
City of Alexandria, 614 F.2d 1358 (5th Cir. 1980).

The promotional quotas imposed by the court today 
are clearly necessary. The racial imbalances in the 
upper ranks o f the Alabama Department o f Public 
Safety remain egregious and are now o f long dura­
tion; and, furthermore, it is apparent from the 
history o f this lawsuit that without immediate, a f­
firmative, race-conscious action these intolerable dis­
parities will not dissipate within the near future.

3 In an earlier order this court demonstrated dramatically 
the efficacy of quotas, over other remedies, in instances where 
blacks have historically been completely excluded or almost 
completely excluded from employment. NAACP v. Dothard, 
373 F. Supp. 504 (M.D.Ala. 1974) (Johnson, C.J.).



63a

The promotional quotas are also reasonable. They 
are specifically tailored to redress the continuing 
effects o f past discrimination, but they do “not un­
necessarily trammel the interest of white employees.” 4 
United Steelworkers v. Weber, 443 U.S. 193, 208-09, 
99 S.Ct. 2721, 2730 (1979). They do not require the 
discharge or demotion of a white trooper or his re­
placement with a black trooper; nor do they create an 
absolute bar to the advancement of white troopers. 
Moreover, the quotas are but a temporary measure, 
designed not to maintain a racial balance, but simply 
to eliminate a manifest and chronic racial imbalance. 
Finally, only qualified black troopers will be con­
sidered for promotion under the quotas. See, e.g., 
United Steelworkers v. Weber, supra; United States 
v. City of Miami, supra; United States v. City of 
Alexandria, supra.

The quotas imposed by the court are also not with­
out legal precedent. In United States v. City of A lex­
andria, supra, the former Fifth Circuit approved a 
consent decree imposing on a municipality promo­
tional quotas ranging from 25 to 50%. Under the de­
cree, the quotas are to remain in effect until the 
municipality achieves the same percentages of blacks 
and women as are in the overall work force in the

4 The court has allowed four white troopers to intervene as 
defendant-intervenors. Their intervention is on a prospective 
basis only; they are not allowed to challenge prior orders, 
judgments, and decrees of the court. United States v. Cali­
fornia Co-operative Canneries, 279 U.S. 553, 556, 49 S.Ct. 
423, 424 (1929) ; Smith v. Missouri Pac. R. Co., 615 F.2d 683 
(5th Cir. 1980). See Thaggard v. City of Jackson, 687 F.2d 
66, 68 (5th Cir. 1982), cert, denied sub nom. Ashley v. City of
Jackson,------ U.S. --------, 104 S.Ct. 255 (1983). See also 3B
J. Moore & J. Kennedy, Moore’s Federal Practice If 24.16 [5] ; 
7A C. Wright & A. Miller, Federal Practice and Procedure 
§ 1920.



64a

affected localities. See also, e.g., E.E.O.C. v. Ameri­
can Telephone and Telegraph Company, 556 F.2d 167 
(3rd Cir. 1977), cert, denied, 439 U.S. 915, 98 S.Ct. 
3145 (1978).

Two factors in the present case make the claim for 
promotional quotas even stronger than it was in City 
of Alexandria. In contrast to the earlier case, here 
the court has made a specific finding o f long-term, 
open and pervasive racial discrimination. Moreover, 
this court has before it a record demonstrating that 
without promotional quotas the continuing effects of 
this discrimination cannot be eliminated. Neverthe­
less, the quotas imposed by this court are substan­
tially less constraining than those imposed in City of 
Alexandria. Under the order this court will enter 
today, the Alabama Department o f Public Safety has 
the prerogative to end the promotional quotas at any 
time, simply by developing acceptable promotion pro­
cedures. It is thus possible for the use o f quotas to be 
a one-time occurrence.

IV.
Finally, as this lawsuit moves into its twelfth year, 

it is clear that the court and the parties should now 
contemplate bringing this litigation to an end. The 
court therefore hopes that, in addition to achieving 
the above objectives, the remedy imposed today will 
hasten the day when the Alabama Department of 
Public Safety is no longer under the supervision of 
this court.

An appropriate order will be entered in accordance 
with this memorandum opinion.

DONE, this the 15th day o f December, 1983.

/ s /  Myron H. Thompson
UNITED STATES DISTRICT JUDGE



65a

APPENDIX D

IN THE DISTRICT COURT 
OF THE UNITED STATES 

FOR THE MIDDLE DISTRICT OF ALABAM A 
NORTHERN DIVISION

Civil Action No. 3561-N
P h il l ip  P aradise , J r ., individually and on behalf of 

the class similarly situated, pla in tiffs

U n ited  States  of A m e ric a ,
PLAINTIFF AND AMICUS CURIAE

V.

Jerry  Sh o e m a k e r , as Director of the 
Alabama Department o f Public Safety, e tc ., et  a l ., 

DEFENDANTS

[Filed Aug. 18,1981]

CONSENT DECREE
On February 16, 1979, this Court entered a Partial 

Consent Decree in resolution of certain issues raised 
in Plaintiffs’ Motion for Supplemental Relief. Part 
IV of the Partial Consent Decree provides in part as 
follows:

The defendants agree to have as an objective the 
utilization o f a promotion procedure which is 
fair to all applicants and which promotion pro­



6 6 a

cedure when used either for screening or rank­
ing will have little or no adverse impact on blacks 
seeking promotion to corporal . . .  In accord­
ance with that objective defendants agree to 
utilize a promotion procedure which is in con­
formity with the 1978 Uniform Guidelines [ on 
Employee] Selection Procedures, 48 Fed. Reg. 
88290, and which, in addition, when used either 
for screening or ranking will have little or no 
adverse impact on blacks seeking promotion to 
corporal.

Defendants have submitted to plaintiffs Paradise, 
et al., and the United States [hereinafter referred to 
collectively as plaintiffs] and to the Court a proposed 
selection procedure for State Trooper Corporal posi­
tions and a validity study for the written examina­
tion component of that selection procedure. Defend­
ants have presented no validity evidence in support 
o f the components of the proposed selection procedure 
other than the written examination. Plaintiffs and 
defendants disagree whether the proposed selection 
procedure is in conformity with the Uniform Guide­
lines on Employee Selection Procedures, 43 Fed. Reg. 
38290, 28 C.F.R. Sec. 50.14 (1978 [hereinafter, Uni­
form  Guidelines\. Because the selection procedure 
has not yet been administered, the adverse impact of 
the selection procedure, if  any, is not known.

Defendants recognize their obligation under the 
Partial Consent Decree to utilize a selection procedure 
which has little or no adverse impact on blacks seek­
ing promotion to corporal. The parties agree that it 
would be in the best interest of all parties to avoid 
unnecessary litigation and to put a selection proce­
dure for State Trooper Corporals in place as soon as 
possible. Accordingly, the parties have entered into



67a

this Consent Decree governing the use of the proposed 
selection procedure for promotion o f State Troopers 
to State Trooper Corporal positions.

NOW, THEREFORE, IT IS HEREBY ORDERED 
that the proposed selection procedure for State 
Trooper Corporal, submitted to this Court May 21, 
1981, shall be administered and used as follows:

1. The proposed selection procedure shall be ad­
ministered and scored as set out in defendants’ letter 
to plaintiffs and this Court dated May 21, 1981 and 
in the proposed selection procedure and validation re­
port accompanying that letter. Each of the four com­
ponents of the procedure shall comprise the percentage 
of the total score for the selection procedure that is 
set out in defendants’ May 21, 1981 letter.

2. Any State Trooper with permanent status for 
at least 24 months as of October 15, 1981 shall be 
permitted to take the written examination for State 
Trooper Corporal. It is recognized that the selection 
procedure provides for a score for length of service 
such that thirty months’ service at the time the selec­
tion procedure is administered shall equal seventy 
points and sixty months’ service (or more) shall equal 
one hundred points. Accordingly, one point more than 
seventy shall be awarded to each applicant for each 
month of service more than thirty months, up to a 
maximum of one hundred points.

3. Defendants shall compile a list of candidates 
for promotion for State Trooper Corporal positions 
based upon the composite numerical scores of appli­
cants on the selection procedure. In determining eli­
gibility, defendants may apply the standards for 
length of service set out in the proposed selection 
procedure. Under this Decree, defendants shall not be



68a

required to promote any State Trooper who does not 
have at least 30 months’ service as a State Trooper 
at the time of the promotion, provided that the length 
of service requirement is applied consistently. De­
fendants shall provide a copy of this list, identifying 
each applicant by race, to plaintiffs.

4. The list o f candidates for promotion shall be 
reviewed to determine whether the selection proce­
dure has an adverse impact against black applicants. 
Adverse impact shall be determined by reference to 
the Uniform Guidelines, by comparing the numbers 
(by race) o f applicants with the numbers (by race) 
o f persons passing the procedure and by comparing 
the numbers (by race) o f applicants with the number 
(by race) o f persons ranking high enough on the 
selection procedure to be promoted if  promotions were 
made in rank order from the list of eligible candi­
dates. For purposes of this Decree, “ applicants”  shall 
include all persons who take the written examination 
for State Trooper Corporal. Adverse impact shall be 
determined for each of the following groups o f “per­
sons ranking high enough on the selection procedure 
to be promoted if  promotions were made in rank 
order:”  (a) the first eight corporal promotions, which 
are expected to be awarded as soon as selections based 
upon the proposed selection procedure are approved 
by the Court; (b) all corporal promotions expected 
within one year of the administration of the selec­
tion procedure, based upon the good faith estimate of 
the Department o f Public Safety; and (c) all corporal 
promotions expected during the life o f the list o f eli­
gible candidates, based upon the good faith estimate 
o f the Department of Public Safety as to the length 
of time the list will be used and the Department’s 
anticipated staffing needs during that time. Adverse



69a

impact shall be determined by reference to Section 
4D of the Uniform Guidelines, supra, and the answer 
to question 12 of the Questions and Answers to Clar­
ify  and Provide a Common Interpretation of the 
Uniform Guidelines on Employee Selection Proce­
dures, 44 Fed. Keg. 11996, March 2, 1979.

5. I f the selection procedure has little or no ad­
verse impact against black applicants, selections shall 
be made in rank order from the list described in para­
graph 2 of this Decree. Whether or not the selection 
procedure has “ little or no adverse impact”  will be 
measured by the “ four-fifths rule”  set forth in Sec­
tion 4 D of the Uniform Guidelines, supra. I f  the 
parties cannot agree whether the selection procedure 
has an adverse impact, the matter shall be submitted 
to the Court for resolution. No promotions to State 
Trooper Corporal positions shall be made pending res­
olution of the question of adverse impact.

6. 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 of promotions 
or cumulatively during use of the procedure. De­
fendants shall submit to plaintiffs their proposal for 
making promotions in conformity with the Partial 
Consent Decree and with this Decree. I f  the parties 
do not agree on the method for making promotions, 
the matter shall be submitted to the Court for resolu­
tion. No promotions to State Trooper Corporal posi­
tions shall be made until the parties have agreed in 
writing or the Court has ruled upon the method to be 
used for making promotions with little or no adverse 
impact.

7. I f the selection procedure has an adverse im­
pact against blacks seeking promotion to corporal, de­



70a

fendants shall examine the results of each component 
of the selection procedure to identify the source (s) 
of the adverse impact and shall revise the procedure 
so as to avoid adverse impact in the future. Defend­
ants shall provide plaintiffs with data showing the 
impact of each component of the selection procedure 
and an item-by-item analysis of the impact of the 
written test. The parties shall attempt to agree upon 
modifications in the selection procedure for  future 
administrations. I f the parties are unable to agree 
upon the procedure to be used after the first adminis­
tration of the selection procedure and the method of 
using that procedure, the matter shall be submitted 
to the Court for resolution.

ORDERED this 18th day o f August, 1981.

/ s /  Myron H. Thompson
UNITED STATES DISTRICT JUDGE

AGREED AND CONSENTED TO:



71a

APPENDIX E

IN THE DISTRICT COURT 
OF THE UNITED STATES 

FOR THE MIDDLE DISTRICT OF ALABAM A 
NORTHERN DIVISION

Civil Action No. 3561-N
P h il l ip  P aradise , Jr ., individually and on behalf of 

the class similarly situated, p la in tif f s

U nited  States  of A m erica ,
PLAINTIFF AND AMICUS CURIAE

Clifto n  B r o w n , p l a in t if f -in terven or

M. L. H ilyer , as Director of the 
Alabama Department of Public Safety, etc , ; et  a l .,

DEFENDANTS

PROPOSED PARTIAL CONSENT DECREE
Come the parties, plaintiff Phillip Paradise, Jr., 

individually and on behalf of the class similarly sit­
uated, plaintiff and amicus curiae the United States 
o f America (hereinafter referred to collectively as 
“plaintiffs” ) and defendants, M. L. Hilyer, as Direc­
tor o f the Alabama Department of Public Safety, his 
agents, assigns, etc., and Stanley Frazer, as Director 
of the Alabama Department of Personnel, his agents, 
assigns, etc., and enter into a consent agreement as 
to Plaintiffs’ Motion for Supplemental Relief as fol­
lows:



72a

I. STATEMENT OF PURPOSE
Defendants recognize the continuing effect of the 

orders issued by this Court on February 10, 1972 
and August 5, 1975. Defendants will have as an ob­
jective within the Department of Public Safety an 
employment and promotion system that is racially 
neutral. In this respect, defendants and their officers, 
agents and employees, successors and all persons act­
ing in concert with them or any of them, in the 
performance of their official functions, agree not to 
engage in any act or practice which has a purpose 
or effect of unlawfully discriminating against blacks. 
In addition, defendants agree not to engage in any 
act or practice which discriminates on the basis of 
race in hiring, promoting, upgrading, training, as­
signment, discharge or otherwise discriminate against 
any employee of, or any applicant, or potential ap­
plicant for employment with respect to compensa­
tion, terms and conditions or privileges of employ­
ment because of such individual’s race. Defendants 
agree that any time after entry of this partial con­
sent decree the plaintiffs may apply to this Court for 
an order which would enforce the terms of the par­
tial consent decree or apply for any other relief 
which may be appropriate.

II. (NEW DISCIPLINARY REVIEW  
PROCEDURES

Defendants will distribute the attached Notice of 
Disciplinary Review Procedures to all Department 
employees of the trooper rank. In this way, all 
troopers will be apprised of the availability of proce­
dures for them to obtain a review of certain discipli- 
naries contained within their files, including oral and



73a

written counseling, oral reprimands, written repri­
mands, suspensions, transfers and pay raise denials, 
which said troopers contend were the result of racial 
discrimination. These procedures are fully described 
in the attached Notice of Disciplinary Review Proce­
dures and are fully incorporated herein and agreed 
to by the parties.

This notice will be distributed to all employees of 
the trooper rank no later than thirty (30) days from 
the date of this decree. Plaintiffs and defendants will 
submit names of the persons they have selected for 
the Disciplinary Review Board within thirty (30) 
days of the date of this decree, and they request the 
Court to select the third Board member at its earliest 
convenience. Board members who are not members 
of the Department of Public Safety will be compen­
sated at a reasonable rate by the Department for 
Board service.

III. RACE RELATIONS PROGRAM
In order to further their objective of a racially 

neutral employment and promotion system, defend­
ants will establish a comprehensive Equal Employ­
ment Opportunity (EEO) Program. This program 
will be designed to provide a vehicle for airing griev­
ances concerning allegations of racially disparate 
treatment and to further and promote race relations 
within the Department. Defendants agree to ap­
point an employee of the Department of Public 
Safety as the Department-wide EEO officer. This of­
ficer will have responsibility for supervising the 
Equal Employment Opportunity Program within the 
Department and monitoring Departmental compli­
ance with this and other court decrees. This officer 
will also conduct a class or series of classes concern­



74a

ing race relations for each state trooper academy 
class and for each supervisory in-service training 
program held by the Department. This officer will 
also be responsible for instituting an EEO grievance 
procedure, which will provide all troopers with ac­
cess to specially trained EEO officers when such 
troopers have complaints of a racial nature. This 
grievance procedure will be implemented as an ad­
dition to present grievance procedures. The Depart­
ment-wide EEO officers will make recommendations 
to the Director concerning resolutions o f these racial 
grievances,

Defendants also agree to appoint an EEO officer 
for each state trooper district in the State and to pro­
vide him with special training in the field o f race 
relations. These district EEO officers will process 
racial grievances and forward them to the Depart­
ment-wide EEO officer for resolution, and will pro­
mote and further race relations within each individ­
ual district.

Defendants will, within 60 days, publish a com­
prehensive description o f the EEO program and dis­
tribute it to all state trooper personnel, along with a 
letter from the Director encouraging all personnel to 
utilize the program.

IV. PROMOTIONS
A. The defendants agree to have as an objective the 
utilization of a promotion procedure which is fa ir 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 corporal (hereinafter referred to as the “ objec­
tive”  or “ above-stated objective.” ) In accordance 
with that objective defendants agree to utilize a pro­



75a

motion procedure which is in conformity with the 
1978 Uniform Guidelines of Selection Procedures, 43 
Fed. Reg. 38290, and which, in addition, when used 
either for screening or ranking will have little or no 
adverse impact on blacks seeking promotion to cor­
poral.
B. In accordance with the above-stated objective de­
fendants agree to develop for the position of corporal 
a promotion procedure which (1) would be developed 
by defendants no later than one year from the sign­
ing of this Consent Decree, (2) would be submitted 
upon completion of the formulation of the promotion 
procedure to counsel for plaintiffs who would have at 
least 60 days to review the promotion procedure and 
would be able to request from defendants any infor­
mation relevant to the proposed promotion procedure, 
and (3 ) would be submitted upon completion of plain­
tiffs’ review to this court for approval on the basis 
of the above-stated objective.

In the interim, defendants agree to utilize the state 
merit system for all promotions to corporal, during 
which time defendants will promote at least three 
black troopers to the rank of corporal.

Upon completion of validation of a new procedure 
for promotion to corporal, defendants, in accordance 
with the above-stated objective, agree to begin valida­
tion of a promotional procedure for the position of 
sergeant and, in turn, for the positions of lieutenant, 
captain and major.

V. TERMINATIONS
Defendants agree to review all terminations of 

state troopers made from August 5, 1975 through 
March 1, 1979. I f the Department finds that any 
termination resulted in whole or in part from racial



76a

discrimination, each such person shall be offered re­
employment at the level at which he was terminated, 
unless such termination occurred prior to graduation 
from the trooper Academy, in which case such person 
shall be required to complete the entire Academy 
training course.

A  report of this review will be presented to coun­
sel for plaintiffs as soon as practicable, but not later 
than April 15, 1979. All reinstatements will be made 
by April 15, 1979, with the exception of any individ­
ual terminated during his Academy training, who 
shall be reinstated at the next Academy training 
session. Plaintiffs except from this portion of the 
decree with respect to class member Charles Gregory 
Potts. Plaintiffs contend that Mr. Potts should be 
reinstated irrespective of the review conducted by 
defendants.

VI. ATTORNEY FEES AND COSTS
The defendants hereby agree to pay all court costs 

and related expenses incurred by plaintiffs, as well 
as reasonable attorneys fees to counsel for the plain­
tiffs.



77a

T O : All Department Employees Holding the Rank
of State Trooper

FROM : M. L. Hilyer, Director

NOTICE OF DISCIPLINARY REVIEW  
PROCEDURES

Judge Frank M. Johnson, Jr. has approved of a 
new procedure whereby the Department of Public 
Safety will review certain disciplinary actions taken 
by the Department against its employees holding the 
rank of state trooper, which disciplines were given 
between August 5, 1975 and March 1, 1979.

All troopers are hereby given permission to re­
view their 201 files. Any trooper who, after review­
ing his file, feels that any discipline given him dur­
ing this period, including oral and written counsel­
ings, oral and written reprimands, suspensions, 
transfers and pay denials, was given him as a re­
sult o f racial discrimination, shall give notice thereof 
to the Department in writing. This written notice 
shall specify the dates and nature of the disciplinary 
which the trooper contends was racially motivated, 
as well as the name(s) o f the Department personnel 
whose conduct the trooper contends was racially 
motivated.

Each claim so presented will then be assigned a 
date, at which time each trooper will be given an 
opportunity to present his contentions to an impartial 
review board. This board will consist of three per­
sons, as follows: one private citizen chosen by Judge 
Frank M. Johnson, Jr.; one person chosen by the 
attorneys representing the plaintiff class; and one 
person chosen by the Department of Public Safety. 
Troopers presenting such claims may, on their own,



78a

obtain an attorney, who will be given an opportunity 
to participate in the hearing. The Department may 
respond to such claims through an attorney o f its 
choice.

Attorneys for both sides will be afforded an oppor­
tunity to present opening statements, to examine and 
cross-examine witnesses, to introduce documentary 
evidence and to give closing arguments. Although the 
hearing will be conducted in a trial-like manner, for­
mal rules of evidence will not be followed.

If after hearing both sides, a majority o f the 
Board finds the claim to be established by a pre­
ponderance of the evidence, any and all records re­
lating to such disciplinaries shall be removed from all 
three of said trooper’s personnel files and given to 
the trooper. No copies shall be retained by the De­
partment. I f the Board finds that a trooper has not 
established his claim, no action will be taken. Nei­
ther side has a right to appeal from the determina­
tion of the Board.

All written requests for review in accordance with 
this notice must be submitted within sixty (60) days 
of the date of this notice. The Department gives its 
assurance that no adverse action will be taken 
against troopers who utilize these procedures.

M. L. H ilyer

Date



79a

ORDER
Upon consideration of the foregoing proposed par­

tial consent decree executed and presented by all 
parties in this case, and with the specific understand­
ing by this Court that the orders made and entered 
herein on February 10, 1972, and August 5, 1975, 
continue in full force and effect, it is the ORDER, 
JUDGMENT and DECREE of this Court that said 
partial consent decree be and is hereby approved and 
the parties are hereby ORDERED to implement same 
in accordance therewith and in accordance with the 
orders of this Court of February 10, 1972, and Au­
gust 5, 1975.

Done, this the 16th day of February, 1979.

/& / Frank M. Johnson, Jr.
UNITED STATES DISTRICT JUDGE



APPENDIX F

80a

UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

Nos. 84-7053 and 84-7564 
D.C. Docket No. 72-3561

P h il l ip  P aradise , J r ., et a l ., p l a in t if f s -appellees  

U nited  States  of A m e ric a , p l a in t if f  am icu s
CURIAE-APPELLEE, CROSS-APPELLANT 

versus
B yro n  P rescott, as D irector of t h e  A l a b a m a  D e­

p a r t m e n t  of P ublic  Sa f e t y , et  a l ., d e fe n d a n t - 
a p p e l l a n t , cross-a ppe lle e

V. E. M cCl e l l a n , et  a l ., d e fen d a n ts-in terven o rs ,
APPELLANTS, CROSS-APPELLEES

Appeals from the United States District Court 
for the Middle District of Alabama

Before FA Y  and ANDERSON, Circuit Judges, and 
GIBSON*, Senior Circuit Judge.

JUDGMENT

These causes came on to be heard on the transcript 
o f the record from the United States District Court 
for the Middle District o f Alabama, and were argued 
by counsel;

* Honorable Floyd R. Gibson, U.S. Circuit Judge for the 
Eighth Circuit, sitting by designation.



81a

ON CONSIDERATION WHEREOF, it is now 
here ordered and adjudged by this Court that the or­
ders of the District Court appealed from, in these 
causes be and the same are hereby, A FFIR M E D ;

It is further ordered that defendant-appellant/ 
cross-appellee and defendants-intervenors, appellants/ 
cross-appellees pay to plaintiffs-appellees and plain­
tiff, amicus curiae appellee/cross-appellant, the costs 
on appeal to be taxed by the Clerk of this Court.

Entered: August 12, 1985
For the Court: Spencer  D. M ercer , Clerk
Issued as Mandate: Sept. 4, 1985

By: /&/ Jarren A. Godfrey 
Deputy Clerk



82a
APPENDIX G

L a w  Offices  of

EDW ARD L. HARDIN, JR., P.C.
A  Professional Corporation 

Attorneys at Law 
1825 Morris Avenue 

Birmingham, AL 35203 
(203) 320-2679

May 21, 1981

Hon. John Carroll 
Southern Poverty Law Center 
1001 S. Hull Street 
Montgomery, Alabama 36101

R e: Paradise v. Shoemaker
U.S. District Court of Alabama 
Case No, 3561-N

Dear J ohn:

As per the Court’s order o f May 16, I am enclosing 
to you one copy o f each of the following:

1. Proposed Examination of State Trooper Cor­
poral ;

2. Alabama Merit System Report of Validation 
Study State Trooper Corporal;

3. Alabama Department of Public Safety Service 
Rating Form ;

4. Procedure for Evaluating Length of Service 
State Trooper Corporal;

5. Supervisory Promotional Evaluation State 
Trooper Corporal Form ;



83a

6. Definitions of Evaluation Factors State Trooper 
Corporal;

7. Promotional Examination Rating Form (De­
fines terms used in form described in # 5  
above);

8. Information and Guides Supervisory Evalua­
tion State Trooper Corporal.

Our proposed promotional procedure accords the 
following weights to the above factors:

1. Written test 60%
2. Length of Service 10%
3. Supervisory Evaluation 20%
4. Service Ratings 10%

The Service Ratings score to be used in the above 
procedure would be the average of the candidate’s 
three most recent service ratings.

It is my understanding that we have agreed that 
our production o f this material relieves the Defend­
ant of the obligation to answer the Interrogatories 
and Request for Production filed by the Southern 
Poverty Law Center on April 16, and that, should 
you have any questions after your examination of 
the material we are producing today, you will pursue 
the answers to those questions thru depositions or 
additional interrogatories. Please inform me immedi­
ately if  I have misunderstood our agreement on this 
matter.

Regarding any questions you might have, if  you 
will convey them to me informally first via telephone 
or letter, it may be that I can get them answered 
for you without the necessity of formal discovery 
proceedings, thereby expediting this whole matter. ”



84a

If I can be of 
to call me.

further assistance, please feel free 

Yours truly,

/ s /  Buddy
L eon  (B u d dy ) K e l l y , J r .

L K jr/jw s
Enel.

c c : Honorable Myron Thompson 
U.S. District Judge
Mr. Tommy Flowers
State of Alabama Personnel Department

☆ GOVERNMENT PRINTING OFFICE; 1 9 8 5 4 9 1 5 0 7  2 0 0 4 2