Birmingham's Employment Discrimination War : A Clarion Call for Strict Meritocracy in Government Employment
Contrary to the allegations of some opponents of this Title, there is nothing in it that will give any power to any Commission or to any court to require hiring, firing or promotion of employees in order to meet a racial "quota" or to achieve a certain racial balance. That bugaboo has been brought up a dozen times; but it is nonexistent. In fact, the very opposite is true. Title VII prohibits discrimination. In effect, it says that race, religion and national origin are not to be used as a basis for hiring and firing. [1] - Senator Hubert H. Humphrey
I. INTRODUCTION
This article reviews a long series of federal court cases dealing with allegations of discrimination by the city of Birmingham, Alabama, between 1974 and the present. The cases culminate in two decisions issued by separate panels of the United States Court of Appeals for the Eleventh Circuit in 1994 -- In Re Birmingham Reverse Discrimination Employment Litigation, [2] and Ensley Branch, N.A.A.C.P. v. Seibels. [3] The decisions jointly take the city of Birmingham to task for having used two civil rights consent decrees entered into in 1981 as the justification for a personnel system whose overriding objective was racial balancing of the work force through the use of precisely defined quotas. The use of racial balancing and the quotas that enforced the system were found to have created a pattern and practice of discrimination against Caucasians. As will be dealt with in more detail below, the city of Birmingham has been ordered to implement a system of nondiscriminatory, race and gender blind civil service tests, and then hire and promote employees based upon merit. While the Birmingham employment discrimination litigation is legally significant in and of itself, this article uses that litigation to analyze a larger debate in America. This debate involves the long running philosophical struggle between two schools of thought as to what constitutes discrimination and how civil rights should be defined. The first school is composed of the advocates of what is defined as the "quota ideal." As will be discussed more fully later, the advocates of this concept assert that it is appropriate, indeed desirable as a matter of social justice, for governments to use various preferences to mold the racial, ethnic, religious and gender composition of the work force. The objective of the quota ideal concept is to create a work force that in its racial, ethnic, religious and gender composition mirrors the percentages of those groups as they exist in American society. The second school of thought is built around the concept of "meritocracy," a belief that rights under the Constitution and civil rights statutes vest in individuals not groups. Going hand in glove with this position is the belief that it is possible to establish objective criteria that define merit for employment actions, and such criteria should be used as the defining force in employment actions. The position of this article is that the city of Birmingham's long-running use of quotas to racially balance its work force is deeply flawed both legally and as social policy. It is, in fact, a formula for injustice and the exacerbation of racial tension in the city's work force. The city's use of quotas offers a classic study of the marked difference between how the quota ideal works in theory, and how it operates in reality.
II. THE HISTORY OF THE CIVIL RIGHTS ACT OF 1964
After a long and bitter struggle, the Eighty-Eighth Congress passed the most comprehensive civil rights legislation in the nation's history, the Civil Rights Act of 1964. [4] Title VII of this Act prohibits discrimination in employment based upon race, color, religion, sex, or national origin. However, the principal engine which successfully pulled the Civil Rights Act of 1964 through a hail storm of opposition was not concern over employment opportunities (important as that was), but a growing revulsion with the rigid segregation practiced in the Southern states and the increasingly brutal tactics needed to enforce that segregation in the face of ever more organized opposition by the African-American population. Then Vice President Lyndon Johnson articulated the emotional essence of support for the Civil Rights Act when he stated: "It's just not right for a man to risk his life in Vietnam or somewhere and then find he can't buy a cup of coffee in a roadside restaurant. Nobody can deny that, in the South or elsewhere, and the President ought to say it." [5] The Civil Rights Act of 1964 has, in fact, been almost universally successful in ending discrimination in public accommodations. Segregated train and bus stations have all faded into history along with whites only restaurant and hotel signs. As emotional as it was at the time, the desegregation of public accommodations has proven to be the least complex, most easily obtainable goal on the road to making America into a truly integrated society. The principal reason is the absence of legitimate competing interests. The owners of segregated restaurants may have resented serving blacks, just as the owners of previously restricted resorts may have chafed at having to accept Jewish guests, but integration did not require them to give up any economic privileges or diminish their future opportunities. If anything, integration should have brought them additional income from the previously excluded class of customers. Far more than the issue of equal access to public accommodations, the decisions made in the field of equal employment opportunity (who shall be hired, trained, promoted, or laid off), create very real winners and losers. Since the passage of the 1964 Civil Rights Act, the two diametrically opposed philosophical schools -- meritocracy and the quota ideal -- have consistently clashed over what core objectives federal civil rights laws should have in the employment arena. The meritocratic model holds that hiring and promotions should be conducted strictly on the basis of individual merit, as defined by objective criteria. Because of its focus on individual worth and achievement, it views any effort to manipulate outcomes based upon race, religion, gender, or ethnicity as contrary to a just society. The proponents of the 1964 Civil Rights Act represented their legislation as the ideal embodiment of meritocratic principle during the debates on Title VII. The quote by Senator Humphrey from the Congressional Record at the beginning of this article was typical of those made to beat back allegations that the 1964 Civil Rights Act could create massive racial and ethnic balancing in the American work-place. [6] The other competing model is the "quota ideal," named by David Brion Davis, the Sterling Professor of History at Yale University. [7] This school holds that as a matter of fundamental justice each ethnic group in society should be represented in the work force -- especially in privileged or desirable positions -- in roughly the percentage which they comprise in the population at large. However, by the 1980s the very term "quota" had fallen into disrepute with the general public. The advocates of the quota ideal came to defend both the justice and efficacy of this concept under the general rubric of affirmative action or diversity in the work place. [8] However, whether one defines these programs as the quota ideal, goals, fair share, or work place diversity, they all share a common ideological thread: The belief that mirror imaging between the composition of the work force and the general population in all career fields is a desirable social goal and the use of various forms of affirmative action to help mold the complexion of the work force is a legitimate use of governmental power. It is useful, for the purposes of this article, to describe the concept of affirmative action. Affirmative action is normally divided into two separate categories. The first is voluntary affirmative action, usually conducted in the name of diversity, the second is court-ordered affirmative action directed as remedial relief for specific acts of prior discrimination. There is also a hybrid between the two -- affirmative action conducted pursuant to a judicially- approved consent decree "voluntarily" entered into by an employer as the quid pro quo for the settlement of a lawsuit. It is this hybrid form, consent decrees, and the legal standards by which they should be judged, especially for their impact on third parties, that forms the basis of Birmingham's twenty years of litigation over its personnel system. As will be developed further on in this commentary, the federal courts have elected to judge affirmative action programs initiated pursuant to a consent decree for an unlawful impact on the individuals not given preferential consideration (reverse discrimination) by the same basic legal standards and tests which have been developed to review voluntary affirmative action programs. However, the issues involved are far from settled in either the legal or political arena, and the radically different philosophical orientation of the proponents of the quota ideal and meritocracy have made this a passionately litigated field of American law. In the years between the passage of the 1964 Civil Rights Act and the Supreme Court's 1989 decision in City of Richmond v. J.A. Croson Co., [9] it was difficult to decipher accurately which school was even in the legal ascendancy. During this period, a majority of the Supreme Court attempted to balance two often diametrically opposed ideals: a desire to overcome the nation's history of discrimination by upholding various racial preferences to minorities, while pursing the long-term goal of making race or ethnicity a prohibited factor in employment decisions. The resulting case law was neither clear nor consistent. [10] However, with the decision in Croson, a majority of the Court came down clearly on the side of meritocracy. In this case, the Court struck down a set aside program that required nonminority prime contractors [11] to subcontract at least thirty percent of the dollar value of each contract to approved minority business enterprises. The Court struck down this remedial program for violating the Equal Protection clause of the Fourteenth Amendment. The city failed to establish there had been acts of discrimination against black businesses seeking contracts with Richmond which would justify effectively fencing off thirty percent of the value of the city's contracts from white subcontractors. A majority of the Court appeared to reach the conclusion this set-aside program had little to do with "remediating" specific acts of discrimination and everything to do with what could be termed classic "Chicago style" ward politics. [12] A majority of the Court definitively rejected the proposition that discrimination which is applied against members of the majority (i.e., Caucasian) community should be given a lower standard of review than discrimination against minorities. [13] Croson made clear that race-based voluntary affirmative action plans are subject to strict scrutiny. The Croson Court acknowledged that affirmative action plans are themselves a form of discrimination. As such, they cannot stand merely on the constitutionally infirm foundation of seeking diversity in the work force or generalized allegations of societal discrimination. To be lawful, post-Croson affirmative action plans must be narrowly tailored and designed to compensate for specific acts of prior unlawful discrimination. Croson thus established the constitutional framework which the Eleventh Circuit has now used to deal with some of the most historically convoluted litigation and the attendant issues related to civil rights consent decrees.
III. BIRMINGHAM FROM 1963 TO 1993 Perhaps no other American city has played such a pivotal role in defining individual civil rights in America as Birmingham, Alabama, even if that role has been unintentional and undesired by a succession of city administrations both white and black. [14] By the early 1960s, Birmingham was Alabama's largest city -- one of the most comprehensively segregated in the South. [15] In the summer of 1963, the city gained international notoriety when Public Safety Commissioner (Chief of Police) Bull Connor unleashed high pressure fire hoses and police dogs against peaceful demonstrators on Birmingham's streets. This was followed by what surely was one of the most wretched and heartless attacks on the civil rights movement when on September 15, 1963, Robert Edward Chambliss dynamited Birmingham's 16th Street Baptist Church, killing four African-American children preparing for services. [16] However, the very senselessness of the bombing and the widespread revulsion it engendered marked the beginning of the end for Birmingham's old social structure. Within one year of the bombing white voters had rejected Bull Connor's bid to become Mayor. [17] In 1965, the city adopted multi-faceted changes in the personnel system designed to bring blacks into government and in particular the police department. [18] Starting in 1974, the city changed the scoring system used for hiring new police officers to increase its validity for black applicants. At the same time the examination fees were waived, the overall passing score was reduced, and other changes were made in who was eligible to take the tests -- all to encourage black applicants. [19] These changes in the personnel system were supported by Mayor David Vann, a white Democrat who supported integration and had previously served as a clerk for Supreme Court Justice Hugo Black. [20] Mayor Vann served from 1975 to 1979. In 1979 Richard Arrington, a black city councilman, was elected mayor with the support of twenty percent of the city's white electorate. Mr. Arrington has remained Birmingham's mayor for the ensuing fifteen years and is the current incumbent. The demographics of the city have changed since Mr. Arrington's first election and Birmingham now has a majority black electorate.
IV. THE BIRMINGHAM EMPLOYMENT DISCRIMINATION SUITS: PHASE ONE, THE EARLY YEARS
Since 1975, the city of Birmingham has remained in constant litigation in the federal courts with first black and then white employees. Both groups alleged -- with some degree of success -- that the system for hiring and promoting city employees, particularly firefighters and police officers, violates both Title VII's prohibition against racial discrimination in employment and the Constitution. This litigation has to date produced six published federal circuit court decisions (one of which was withdrawn four months after its publication) and one Supreme Court decision. [21] Beginning in 1945, the city of Birmingham (the city) made hiring and promotion decisions using a merit system operated by the Jefferson County Personnel Board (Personnel Board or Board), an independent civil service agency. [22] The core of the system was a series of written exams tailored to the occupations and/or promotion being applied for. Seniority also was recognized and factored into the final ranking of applicants. For example, firefighters seeking promotion to the supervisory ranks took written tests which measured knowledge of fire-fighting and management techniques. One point was added to the test score for every year of seniority the applicant possessed. [23] Following nonpartisan civil service principles, the city consistently filled vacancies by hiring candidates off the resulting merit listing in order of the applicants' final scores. In 1974, four separate federal suits were filed alleging that the city's employment practices discriminated against blacks. These four cases were consolidated and trial was held on the issue of whether the tests used to rank applicants for police and firefighter positions discriminated against blacks. The district court found that the tests were not intended to discriminate against any group, were used in good faith, and did not violate the Constitution. Nevertheless, the court also found that the tests did have a disparate impact on blacks (e.g., blacks, as a group, consistently scored lower on the tests than did whites) and had never been properly validated (e.g., professionally established to be statistically relevant to the occupations being applied for). Their use was thus found to have violated Title VII. [24] Given the prevailing case law, the district court's decision was not unsupported. Under the standard that had been established by the Supreme Court in Albemarle Paper Co. v. Moody, [25] a prima facie Title VII case is established against any written employment test that is shown to have a disparate racial impact. Under Albemarle, the burden then shifts to the employer to prove that the criterion and content of the test can successfully measure likely future job performance in a statistically significant manner and that alternative screening methods would not be effective. In January 1977, the district court found that the Personnel Board had failed to carry this burden and entered a final judgment holding that the test violated Title VII. Nevertheless, the Board continued to defend its occupational tests as valid under Title VII and immediately appealed. The Fifth Circuit subsequently upheld the district court's decision in Ensley Branch NAACP v. Seibels [26] (Ensley I). During this early stage of the discrimination litigation, the Personnel Board was clearly driving the strategy, while the city of Birmingham largely played the role of interested bystander. This was soon to change. With Mayor Arrington's election in 1979, the plaintiffs gained a defendant far more sympathetic to their position. In fairness to the new mayor, however, the city opened settlement negotiations from a less than ideal position. The heart and soul of its civil service system, the Personnel Board's battery of nonpartisan occupation specific tests and the subsequent ranking of candidates, had been declared in violation of Title VII. To the uninitiated in Title VII litigation the solution might appear simple: contract with a professional testing service to draft new tests that can be validated. In reality, validation under the standards of the late 1970s and early 1980s was often a Sisyphusian task. First, it is extremely expensive to design occupation specific tests and establish that the results of the tests will accurately predict job performance with the painstaking statistical significance required by the Equal Employment Opportunity Commission guidelines. [27] It is not legally sufficient that the tests are facially neutral, designed in good faith, and used consistently for all applicants. Validation requires that the tests also be shown to predict job performance to a degree that is statistically significant -- a requirement that is often of daunting complexity and expense, especially for a small corporation or governmental entity of limited resources. [28] Finally, the fact that the employer has negotiated the maze of professional validation creates no immunity from Title VII suits by any protected class of test takers who can show that the test has had a disparate impact on their selection rate. Plaintiffs are sure to have their own experts to challenge the methodology as "flawed," all of which will then be heard by a federal judiciary that until recent years cast a jaundiced eye toward merit systems that did not produce racial/ethnic proportionality in hiring rates. Regardless of who was at the helm of authority, the Personnel Board's reluctance to embrace validation as the road out of its employment discrimination litigation fifteen years ago was regrettable, but very understandable. [29] The city also had a second objective in entering settlement negotiations. This was to whittle down the economic liability hanging over the city budget. Because the civil service tests used by the city had been found to violate Title VII, each of the unsuccessful black applicants would have a right to seek the equitable relief then authorized by the 1964 Civil Rights Act -- retroactive promotions, back pay, and attorney fees. After the district court's decision on the legality of the tests, the city's outside counsel estimated their total exposure at over $5 million dollars. [30] The final element in the consent decree solution was, however, the election of a liberal mayor who was ideologically comfortable with creating a system of goals for increasing black employment that was in reality a racial quota system for employment. [31] The end result was a sweeping settlement, memorialized in two separate consent decrees, that effectively disposed of the colorblind merit selection system that had been in place since the mid 1960s. The settlement embraced the quota ideal -- that the city's work force should be a mirror image of the county's ethnic makeup. The settlement thus established a goal that the city's work force in all departments be twenty-eight percent black. To ensure this goal would be met the settlement established a strict racial quota for personnel actions: fifty percent of all entry level hires as firefighters and police and fifty percent of all promotions to fire lieutenant and police sergeant would be reserved for blacks until the goal (quota) of twenty-eight percent representation had been achieved. [32] The plaintiffs settled for a modest backpay award of $300,000. In return, they gained what amounted to a racial protection system that strongly discriminated in favor of blacks, and exempted them from competing against white candidates. The individuals to be given preferential treatment were not required to establish they had ever been the victim of discrimination by the city. [33] With the stroke of a pen the new administration transferred the burden of compensating the victims of previous discrimination from the people of Birmingham at large (through the use of tax monies to pay backpay awards) to a relatively small pool of white, working-class firefighters and police officers, none of whom were shown to have ever engaged in discrimination themselves. The adverse impact of the consent decree on the career aspirations of the city's nonblack work force was substantial. At the time the decree was entered into, ten percent of the fire and police departments employees were black. By establishing a goal (in actual effect and implementation a quota) that fifty percent of the promotions be given to blacks, it meant that blacks would be promoted at nine times the rate for white applicants. [34] Stuart Taylor Jr., a senior writer with the American Lawyer magazine, analyzed the promotions made in the fire department for a one-year period as follows:
In 1983 for example 95 white and 18 black Birmingham fire fighters took the lieutenant's test; 89 whites and nine blacks passed. Two of the whites and three of the blacks were promoted to lieutenant. In making the promotions, the city chose the whites who ranked first and second in combined scores (test scores plus seniority points), then passed over 76 other whites to promote the blacks who ranked eightieth, eighty-third, and eighty-fifth. If seniority points had not been added, the highest-ranking black would have been sixty-third. [35]
The operation of the consent decree on promotions to captain produced similar results: "In the same year, 29 white and three black Birmingham fire lieutenants took the captain's test; 27 whites and one black passed. The city promoted the top ranking whites and passed over the next 24 other whites to promote the black. He had the lowest passing score." [36]
V. MARTIN V. WILKS: DEFINING WHO GETS TO COMPETE ON THE CONSENT DECREE PLAYING FIELD AND WHO SITS ON THE BENCH
On August 18, 1981, following a fairness hearing, the district court approved the consent decrees negotiated by the city. On August 4, 1981, the union representing the firefighters, the Birmingham Firefighters Association (BFA), which had previously submitted an amicus curiae brief opposing the settlement, had attempted to intervene in the suit as a party. The BFA, representing two white firefighters, objected to the promotion goals. The essence of their position was that white firefighters would be severely and unjustly penalized for future promotions because of their race. However, the district court, at the city's urging, ruled that the BFA's objections were untimely and that the organization thus would not be permitted to intervene. After the city began to implement the quotas, a separate suit was filed by seven white firefighters against the city alleging that unlawful reverse discrimination would result if the consent decree's goals were enforced. [37] The plaintiffs sought a preliminary injunction to prevent the city's implementation of the promotion goals until their case could be heard on the merits. The district court refused to order an injunction on the grounds that the plaintiffs had failed to establish that enforcement would result in any irreparable injury. This was based upon the fact that as Title VII is universal and covers all races, the new white plaintiffs would have all the equitable remedies then authorized for the original black plaintiffs if it was ultimately determined that the consent decree had resulted in new unlawful discrimination. The plaintiffs could thus not establish they would suffer any irreparable injury if the consent decrees were allowed to go into operation. The seven firefighters promptly appealed this ruling. The decision of the district court not to grant an injunction was subsequently upheld by the Eleventh Circuit in the third appellate decision concerning this litigation -- United States v. Jefferson County. [38] In the meantime, the three additional suits alleging that the consent decree's terms would produce unlawful reverse discrimination were consolidated as the Birmingham Reverse Discrimination Employment Litigation. [39] The shifting legal positions of the litigants and their legal representatives for this action bears mentioning. With the exception of the white firefighters, the philosophical positions of the other parties as to what constitutes a just promotion system had markedly changed over the years. The city government under Mayor Arrington was now unequivocally aligned with the original plaintiffs. These original black plaintiffs, now the beneficiaries of the racial preference given black employees and applicants, intervened in defense of the consent decree and the city. (hereinafter the Martin intervenors). The Department of Justice (DOJ), which had supported the original black plaintiffs and signed the consent decree as a party, switched sides. [40] Just as the election of a new administration in the city of Birmingham had brought about a fundamental shift in the city's position on the appropriateness and justice of using racial quotas for promotion, so a change in national leadership had brought a fundamental shift in the Department of Justice's position on these same issues. In 1981, President Reagan named William Bradford Reynolds Assistant Attorney General to head the DOJ's Civil Rights Division. Reynolds came to the position with a firm conviction that affirmative action had been corrupted from an honest attempt to recruit the best employees from all sections of society, to a cynical racial spoils system that violated both the spirit and letter of American civil rights laws. [41] Both the positions Mr. Reynolds took and the unapologetic fire with which he delivered them ultimately cost him Senate approval of his nomination to become an associate Attorney General. [42] Even though the Carter administration's Justice Department had signed the consent decree as a party, it clearly represented the type of nonvictim specific, sweeping, judicially-sanctioned reverse racial discrimination that Reynolds found so repugnant. The United States thus brought an action within the context of the BRDEL line of cases against the city alleging that it was engaging in a pattern and practice of unlawful racial discrimination against whites in violation of both Title VII and the Equal Protection Clause of the Fourteenth Amendment. In its answer to the plaintiffs, the city acknowledged that it had made numerous promotion and hiring decisions predicated upon race, but defended on the grounds they were made in accordance with the terms of the consent decree and were thus immunized from legal challenge. [43] In numerous pretrial conferences, the plaintiffs requested guidance from the district court as to what standard of proof would be required to establish unlawful discrimination when the employment actions were admittedly being taken pursuant to a duly approved consent decree which purports only to be compensating for past discrimination. [44] This question goes to the core of all the employment litigation by the city concerning the consent decree. The district court treated the white plaintiffs as if they were lawfully bound by the terms of the consent decree every bit as much as the city. The court thus elected to narrowly define the reverse discrimination suit as an assertion that the city had violated paragraph 2 of the consent decree. This paragraph stated that the city would not be required to hire or promote the unqualified:
Nothing herein shall be interpreted as requiring the city to hire unnecessary personnel, or to hire, transfer or promote a person who is not qualified, or to hire, transfer, or promote a less qualified person, in preference to a person who is demonstrably better qualified based upon the results of a job related selection procedure. [45]
The district court treated the plaintiffs' far more fundamental challenge, whether the consent decree itself was lawful, as a matter already resolved in the initial fairness hearing and thus res judicata and immunized from collateral attack. Even though the firefighters were not permitted to intervene in 1981, the district court effectively bound them to the terms of the decrees and thus converted an action based upon Title VII and the 14th Amendment, into a breech of contract suit, with the added novelty that the plaintiffs had never been parties to the contract in question -- the consent decree. The district court subsequently found that the city had not violated paragraph 2 of the consent decree. Indeed, using a circular logic reminiscent of the surreal justice dispensed by governments in the novels of Kafka, the court reasoned that as the city had abandoned the use of any job related selection criteria it would thus be impossible for the plaintiffs to show that selection criteria were being used in a discriminatory manner. As the Eleventh Circuit noted when reversing this decision: "Since the city did not use a job related selection criteria, the court apparently reasoned, paragraph 2 imposed no obligations on it." [46] In the fourth appellate decision to be issued concerning Birmingham's employment practices, In re Birmingham Reverse Discrimination Employment Litigation [47] (BRDEL I), the district court's decision was thus set aside. The Eleventh Circuit noted that the district court's decision violated the strong public policy of including all affected parties in settlement negotiations to prevent precisely the type of retrograde litigation that had arisen in this case. The court also made short work of the city's argument that it had fairly represented the interests of all the employees of the city when negotiating the consent decree:
Indeed, the city's interests were antagonistic in that it had every reason to avoid a determination of liability and little reason to object to the promotion aspect of the settlement. The settlement did not require the city to make any additional promotions, only to reallocate the promotions it would have made in any event. In real terms, the relief contemplated by the decrees was not to come from the city, but from the hands of the employees who would have otherwise received the promotions. [48]
The Eleventh Circuit remanded the case to the district court with instructions to hear the plaintiffs' allegations of unlawful discrimination on the merits. The court further instructed that the consent decree should be judged for validity using the same analysis and standard of review which would be appropriate for a voluntary affirmative action plan. The court declined to embrace the city's position that a consent decree, as a judicially approved document disposing of discrimination claims, should receive greater deference than voluntary affirmative action plans. In rejecting this contention the court noted:
We perceive no reason for treating a consent decree entered pursuant to a voluntary settlement differently from a voluntary affirmative action plan. In both instances the employer has embarked on a voluntary undertaking; we reject any notion that the memorialization of that voluntary undertaking in the form of a consent decree somehow provides the employer with extra protection against charges of illegal discrimination. [49]
In a warning that has come back to haunt the city in later litigation, the court expressed grave concern that the consent decree permitted the city to make race conscious promotions free of any professional, job-related selection criteria and further advised that this aspect of the decree alone required the district court to review the document with "heightened scrutiny." [50] Finally, the court ruled that because the United States had signed the consent decree as a party, it was not free to now switch sides and collaterally attack the legitimacy of the decree. However, the court left the United States with wide latitude to separate its position from that of the city by holding that the DOJ could request modification of the decrees based upon changed circumstances or case law. [51]
Consistent with the winner-take-all attitudes and strong personal enmity the key parties now felt for each other, [52] the city sought and was granted certiorari. What was at stake was not merely the handful of promotions currently being contested. If the reverse discrimination complaints were heard on the merits, then the city could anticipate a string of similar suits by unsuccessful white employees alleging that but for the disadvantageous treatment they received because of their race they clearly would have been promoted. For even if the city prevailed on the current suits by establishing that the race conscious promotions were lawful, compensatory actions for past discrimination, this would not authorize the city to run what could be called a perpetual compensatory racial spoils system unless the consent decree was given absolute protection from collateral attack by the nonblack employees negatively affected by that decree. Furthermore, the decision of the Eleventh Circuit was directly contrary to the holding in the majority of federal circuits. [53] When the Supreme Court subsequently issued its decision in Martin v. Wilks, [54] the majority, led by Chief Justice Rehnquist, unequivocally embraced the position of the Eleventh Circuit. In its arguments before the Supreme Court, the city had again raised its impermissible collateral attack theory, arguing that the strong congressional policy favoring settlement of civil rights suits, and the importance (at least for the first group of plaintiffs), of achieving finality in the settlement, dictated that consent decrees be immunized from challenge once they had been approved by the district court. In rejecting this theory, the Court noted: "A voluntary settlement in the form of a consent decree between one group of employees and their employer cannot possibly settle voluntarily or otherwise, the conflicting claims of another group of employees who do not join in the agreement." [55] The effect of the Supreme Court's decision was not to invalidate the consent decree. What it did mean was that fourteen years after the original suit by the black plaintiffs and eight years after the consent decree was signed, the impact of the consent decree on the rights and interests of all the city's employees must be considered in weighing what is appropriate and truly remedial relief for the original plaintiffs. Lastly, and undoubtedly most important to the Wilks class, the Court's decision meant that the nonblack employees would be able to represent their own interests before the district court, rather than rely on any putative representation by the city.
VI. BENNETT V. ARRINGTON: THE DISTRICT COURT REAFFIRMS THE VALIDITY OF THE CONSENT DECREES
After a period for additional discovery, the white employees' reverse discrimination claims returned to the same court (Northern District of Alabama) and same Judge (Chief Judge Pointer) who had first approved the consent decrees, now for a trial on the merits. The trial began on October 21, 1991, a decade after the original approval of the consent decrees. In Bennett v. Arrington [56] the court subsequently reaffirmed its original decision after the fairness hearing and found the consent decree was lawful. Citing the Supreme Court's decision in Croson as authority, the court applied a strict scrutiny standard of review to the city's decision making process. [57] The court analyzed the decree using the two-prong test set forth in Johnson v. Transportation Agency. [58] The first prong of Johnson is to determine whether a race-biased promotion plan was justified by a manifest imbalance in the work force that could be shown to flow from historical segregation. If this first test is met, the second prong is to determine whether the race biased promotion system unnecessarily tramples the rights of white employees or acts as an absolute bar to their advancement. Reviewing the city's historical use of written occupational tests, which the opinion characterized as having a "severe adverse impact on blacks," and the failure of earlier voluntary affirmative action plans to significantly increase the number of blacks employed by the municipal departments in question, the court found that the city was justified in entering into the consent decree. [59] The court went on to find that the decree was narrowly tailored and thus met the second prong of Johnson based upon the following factors: nothing required the city to promote unqualified blacks; [60] the decree only required the hiring of blacks and women in proportion to their percentages in the civilian labor force of Jefferson County; [61] the decree contained a provision authorizing modifications in its terms in accordance with changes in the makeup of the work force. [62] As for the requirement that set aside promotions for one race vastly greater than its percentage of the current employee work force of the city, the court gave its approval by stating: "The promotions within the Fire Department to Captain and battalion Chief were tied to the black representation within the Department, albeit accelerated by the original interim goal to twice the representation of blacks in the Department." [63] Finally, the district court found that the decree did not act as an absolute bar to promotions for any group as nonblack employees could still compete for fifty percent of the promotions. [64] Thus, after ten years of litigation, including one appeal to the Supreme Court on the collateral issue of whether the claims of reverse discrimination should even be heard on the merits, the claims of the white plaintiffs were dismissed by the district court with prejudice. However, the Eleventh Circuit had earlier left the door open for both the United States and the white plaintiffs to seek modifications to the consent decrees based upon changed circumstances. Independent of the Bennett case, the plaintiffs had sought extensive modifications of the consent decrees before the district court.
VII. THE WILKS CLASS AND THE UNITED STATES BOTH SEEK MODIFICATIONS TO THE DECREES
In accordance with the guidance from the Eleventh Circuit in BRDEL I, [65] the United States moved the district court to modify the decrees on May 3, 1990. The court set forth the gist of the modifications sought as follows:
1. To replace the existing long-term goals (which [were]... based on civilian labor force figures) with the long-term goal of developing lawful selection procedures.
2. To replace current interim goals with interim goals based upon applicant flow data, that would terminate upon the implementation of lawful selection criteria.
3. To require the Personnel Board to develop nondiscriminatory selection procedures in a timely manner....
4. To require the city of Birmingham to cooperate with the Board in the Board's development of nondiscriminatory selection procedures and for the city to demonstrate that any selection procedures it has implemented in addition to those of the Personnel Board are lawful; and
5. To strengthen the current recruitment procedures. [66]
In a proposed allied order, the United States also recommended that the city and the Board be given three years to develop and implement valid, race blind selection procedures that would objectively measure the relative merit of applicants and candidates for promotion. [67] The Wilks class (white plaintiffs) also put forth their own recommended modifications, designed to eliminate the goals and bring about the termination of the decree in four years. [68] The city and the Bryant class (original black and female plaintiffs), acknowledged that some modifications were in order, including the eventual creation of valid, nondiscriminatory selection and promotion procedures, but -- in the words of the Eleventh Circuit -- "vehemently opposed" the three-year timetable proposed by the United States as unnecessary. [69] In reviewing the appropriateness of continuing the consent decrees, the court first acknowledged the obvious: A city administration elected by a black majority had over the last decade certainly reduced, if not completely eliminated, any residual discrimination against blacks in government employment. [70] After reviewing the historical employment trends, and noting that the city work force was now forty-five percent black, the district court ordered the following modifications in the decree:
1. The city must stop using annual goals for any promotional position once the long-term goal is met for the position from which the promotional candidates are normally chosen, except that the city should continue to promote blacks and women to high-level police and fire positions in proportion to those groups' representation in the position from which promotions are normally made until the long-term goal is reached with respect to the high-level positions.
2. The city must stop using annual goals for any particular job classification once the Board develops lawful screening procedures for that job.
3. The city should group similar jobs together for the purpose of determining whether a particular goal has been met.
4. The district court will, in 1996, reconsider the appropriateness of continuing the city decree. [71]
The district court made only one modification to the companion decree for the Personnel Board. This modification dictated that until the Board developed lawful (i.e., validated) tests for a given occupation, it must certify black and female candidates for the occupation or position in question in proportion to their representation among the applicants, even if the long-term goals for the position had already been met. [72] The intention of the court was to forbid the Board from providing the city lists of candidates based upon discriminatory (i.e., invalidated) tests. The court's single most important holding in its review of the consent decrees was its refusal to require any time standards for the Personnel Board to develop valid, race and gender blind testing procedures. Undoubtedly cognizant of the historically difficult task of drafting meaningful, objective, written tests that could pass the judicial review typically used in the 1970s and early 1980s for disparate impact, the court stated that setting out specific test development and review (validation) requirements would be "unrealistic, unworkable and unwise." [73] The net effect of the court's decision was to leave intact a personnel system that operated as a precisely defined spoils system, philosophically based upon the quota ideal, with no planned termination date.
VIII. THE ELEVENTH CIRCUIT REVISITS BOTH THE CONSENT DECREE MODIFICATIONS AND THE BENNETT CASE
Consistent with the history of Birmingham's employment discrimination litigation, the losing parties in both the above actions promptly appealed to the Eleventh Circuit. The United States, joined by the nonblack employees of the city (the Wilks class) appealed the district court's decision to leave the fundamental quota aspects of the consent decree intact. In a separate action, fourteen of the original nonblack Fire Department employees and one nonblack city Engineering Department employee brought a separate appeal. This appeal alleged that the district court erred when it ruled the city had not violated their rights under Title VII and the Equal Protection Clause when it made promotions based upon race. In separate opinions by two panels of the Eleventh Circuit, the system used by the city to divide up employment opportunity and the consent decrees which have been used to provide a lawful justification for that system, were found to have been used in an unlawful manner. While, as will be explained below, the Eleventh Circuit has given the city a "reasonable" period of time to create a new personnel system -- to be based upon merit principles -- the current system has been scuttled by two separate panels of the Eleventh Circuit.
IX. BRDEL II : CONFRONTING THE NEW SEGREGATION
The district court previously found the consent decrees did not produce unlawful reverse discrimination. [74] On May 4, 1994, the Eleventh Circuit issued the BRDEL II decision reversing the district court's findings of fact and analysis of law. [75] In BRDEL II, the court began its analysis of the district court's decision by recognizing the struggle that lower courts faced in extracting meaningful guidance from the Supreme Court's multi-opinioned decisions on government affirmative action plans prior to the Croson decision. [76] However, after that first conciliatory note the court went on to dissect the district court's analysis. The first error assigned was the decision to analyze the claims of reverse discrimination under Title VII alone, rather than under both Title VII and the Equal Protection Clause of the Fourteenth Amendment. [77] Before turning to the relevant case law the court defined the degree of racial segregation used for managing promotions under the consent decree:
For example, if the Board supplies the names of four blacks and four non--blacks for promotional openings, the black list contains the four highest-ranked blacks and the non-black list contains the four highest-ranked non-blacks on the eligible register, regardless of how high or low they actually rank on the register relative to each other. [78]
Further on in the same page, the court reiterates the fact that the separation is so complete under the decrees that blacks and non-blacks are never compared or allowed to compete against each other for promotions:
Under this system, then, employees who will eventually fill an opening in the BFRS are pre-selected by race. If four fire lieutenant positions are open two will be filled by blacks and two by non-blacks. No black employee ever competes for the two openings designated in advance to be filled by non-blacks. No non-black employee can compete for the two openings designated for blacks. [79]
The court found that the city had implemented and used the consent decrees to create a rigid racial quota system for promotions. [80] Under the Croson standard, this would not automatically be fatal if the decree could be shown to be truly a remedial action on behalf of identifiable victims of past discrimination. However, the next aspect of the decree to fail under the court's analysis was the scope of the quota system and its complete lack of a relationship to any identifiable class of victims. Normally, an employer/defendant will vigorously resist settling a class action suit on terms that severely restrict the operation of its personnel system. The reason for this is obvious. The senior leadership of both private sector and governmental organizations place a natural premium on the ability to hire, promote, transfer and fire personnel as the very essence of what it means to effectively manage an organization. Senior managers do not want to be under the thumb of a magistrate or special master who makes personnel decisions based not upon the needs of the organization, but in accordance with a rigid consent decree. It naturally follows, in a "normal" class action where the interests and objectives of the plaintiffs and defendant are opposed, the defendant would agree to a consent decree that blocked her control of fifty percent of the promotions, (with no set time-frame for ever returning control of the promotions to the organization), only if she believed a trial on the merits would produce evidence of such overwhelming discrimination that the judicially imposed remedy would be even more burdensome than the settlement. However, in this litigation it is reasonable to hypothecate that the Arrington administration viewed the consent decree as an extremely useful vehicle for implementing its own agenda. [81] It provided a shield of legality for the operation of a profoundly race conscious personnel system. In BRDEL II, the Eleventh Circuit repeatedly returned to the fact that the fifty percent quota represented a political decision made as part of the settlement process, rather than any mathematically justifiable figure designed to compensate any identifiable class of victims.
By virtue of the rigid manner in which the city has used race to determine promotions under the decree, 42 black firefighters, because of their race, gained an exclusive claim to half of all fire lieutenant promotions made under the plan, but lost any possibility of competing for the other half. On the other hand, the remaining 411 non-black firefighters saw the number of promotions to which they might aspire, absent the consideration of their race, cut from 100% to half of all lieutenant positions. The 50% promotion quota was to continue for the duration of the decree, subject to future modification, without regard to the number of lieutenant openings in any given year, the number of black firefighters eligible to become lieutenants at any particular time, or any factor other than race. As the decree operates, no non-black firefighter can even be considered for a promotional job reserved for blacks unless no blacks remain on the Board's eligible register.
We discern no legitimate basis for the 50% figure ultimately chosen for the annual fire lieutenant promotion quota. The 50% figure selected is completely uninfluenced by the percentage representation of blacks in the firefighter ranks, the feeder job from which promotions are filled. The 50% figure appears entirely arbitrary, set at 50% through the settlement bargaining process. [82]
As noted, the court analyzed the consent decree scheme not only under Title VII, but also under the Equal Protection Clause. Citing Croson, the court made clear it believed the Fourteenth Amendment requires the strictest scrutiny of any use of race by a governmental entity to "smoke out" illegitimate racial classifications. [83] For government-created racial classifications to survive such scrutiny they must be reasonable and appropriate actions to remediate past discrimination, through a narrowly tailored vehicle. The legal foundation upon which the massive racial quota system in the consent decree rested was the district court's finding of fact in Bennett [84] that alternative, more meritocratic measures to deal with residual discrimination had not and would not be effective. The BRDEL II panel rejected both the district court's analysis of the historical employment data and its opinion of the efficacy of race-neutral vehicles for ending residual discrimination. The court found that the city of Birmingham had made "significant progress" in integrating its work force (without using racial classifications) between 1974 and 1981. [85] Indeed, the degree of integration was found to have increased markedly through the years immediately before the consent decree. Referencing a chart published in BRDEL II showing the growth in the number of black employees between 1974 and 1981, the court stated:
As the chart demonstrates, between 1978 and 1981, the city increased the number of black firefighters from eight to forty-two -- a five fold increase that was achieved in the absence of the race-based affirmative action plan embodied in the decree. We regard this progress as encouraging, not ineffective. [86]
The court found the district court's conclusion that alternatives to quotas would be ineffective was "clearly erroneous." [87] The Eleventh Circuit could have ended its analysis at this point and remanded the case to the district court to modify or eliminate the consent decree consistent with the BRDEL II decision. However, the court went on to comment on the inherent constitutional and practical problems common to ethnic balancing systems that attempt to create a work force that is the mirror image of the society at large. In the real world, the court observed, members of each race, gender, and religious group do not "gravitate with mathematical exactitude" [88] to each occupation. The court commented as follows on the city's effort to use the consent decree to produce the quota ideal in its work-force:
The city's rigid approach, while administratively convenient, is not a narrowly tailored means to remedy prior discrimination. It is instead an approach designed to achieve government-mandated racial balancing-the perpetuation of discrimination by government. We can imagine nothing less conducive to eliminating the vestiges of past discrimination than a government separating its employees into two categories, black and non-black, and allocating a rigid, inflexible number of promotions to each group, year in and year out. [89]
In its conclusion, the BRDEL II court found the affirmative action provisions of the consent decree thus violated both Title VII and the Equal Protection Clause of the Fourteenth Amendment. The case was remanded, once again, to the district court to determine appropriate relief for the victims of Birmingham's new segregation.
X. ENSLEY II: THE ELEVENTH CIRCUIT REJECTS THE ARGUMENT THAT CREATING LAWFUL WRITTEN TESTS IS "MISSION IMPOSSIBLE"
On the same date (May 4, 1994) the Eleventh Circuit released BRDEL II, a second panel of that court released the related case of Ensley Branch, N.A.A.C.P. v. Seibels [90] (hereinafter the withdrawn opinion). The appellants in this action were the United States and the Wilks class of employees, who challenged the district court's modifications of the consent decrees for the city and the Personnel Board. The two appellants were seeking similar but different relief from the Eleventh Circuit. As will be discussed more fully below, the panel found the consent decrees contain fundamental constitutional flaws. The city immediately requested a rehearing, and the court granted the request. By decision dated August 25, 1994, the court withdrew its original opinion and substituted a new decision on the same date, which retained the case style of Ensley Branch, N.A.A.C.P. v. Seibels [91] (hereinafter Ensley II). [92] It is this second substituted opinion which is analyzed below. The positions of the parties in Ensley II are as follows. The United States claimed that the district court's refusal to establish any time frame for the city and Board to develop valid gender and race blind selection criteria was an abuse of discretion. [93] The Wilks class, on the other hand, sought more sweeping relief, arguing there was insufficient evidence of past discrimination to justify any affirmative action plan. [94]
It is also helpful to understand the role the Board played in the operation of the personnel system. The Board acted much like a civil service authority for the city. The Board accepted applications for new hires and promotions, devised and administered occupational examinations to measure knowledge and competence, and certified lists of candidates to the city. In addition to the firefighter examinations referenced in BRDEL II, the original suit against the Board covered written tests for eighteen other positions, as well as challenges to the rules affecting promotion opportunity, the validity of educational requirements, and the validity of height and weight requirements for some positions that had a disparate impact on women. [95] The consent decrees for the Board and the city disposed of both these claims. The Board's consent decree was the philosophical twin of the city's consent decree. They were negotiated as a package deal. The Board's decree also set long and short-term race and gender quotas. [96] Like the city, the Board agreed to use long-term quotas to create a work force that mirrored the civilian work force in race and gender. The consent decree did not set any time frame for the creation and validation of new race and gender blind occupational tests. [97] This is not surprising if one assumes the actual, if unstated, objective of the decree was to provide a lawful vehicle to engage in long-term racial balancing of the work force. The court announced that it would use the test recently articulated by the Supreme Court in Rufo v. Inmates of Suffolk County Jail, [98] to determine if the consent decree should be modified. [99] Rufo established a two-prong test for determining when to modify an institutional reform consent decree which vindicates constitutional rights. The first prong requires the party seeking modification to prove that a significant change in the facts or law has occurred. If that first hurdle is met, the moving party must establish that the changes sought are in fact "suitably tailored" to the new factual or legal environment. After an extensive review of the case law defining the validity of affirmative action plans for public employers, the Ensley II court turned its analysis to the district court's findings of fact concerning both the initial approval of the consent decree and its rulings on the modification action appealed from. The Eleventh Circuit found that there was in fact sound statistical evidence before the district court of disparate impact on black applicants for the tests used for the fire and police departments -- the occupations which formed the heart of the original litigation. This evidence gave the Board and the city an "adequate basis" for entering into remedial consent decrees. [100] However, because the decrees were entered into before any trial on the merits for the other occupations, the Eleventh Circuit declined to decide if there ever was or is now a valid basis for race conscious remedies for them. [101] During the modification proceedings, the district court refused to permit the parties to delve into this issue, or allow presentation of evidence on the original discrimination (or lack thereof) by the Board and the city. The Ensley II panel found that this decision was an abuse of the district court's discretion and reversed. [102] On remand the appellants must be allowed to raise these core issues and the city and Board will have the burden of establishing that such discrimination existed and continues to be unremediated. The Ensley II panel thus found the appellants had met the first prong of the Rufo test. In addressing the second prong of Rufo (and Croson), that relief be narrowly tailored, the court assumed for its analysis that the city and Board would be able to establish additional evidence of discrimination for the other occupations and departments on remand. [103] Nevertheless, the court found that even if there was evidence of more widespread discrimination to form the legal foundation for some type of remedial action, both the long-term and short-term goals (quotas) set by the Board's consent decree were "fundamentally flawed." [104] The court wrote:
As written, the long term racial goals are fundamentally flawed. The flaw is that they are designed to create parity between the racial composition of the labor pool and the race of the employees in each job position. The constitution does not guarantee racial parity in public employment; instead, it forbids racial discrimination. A public employment consent decree's race conscious provisions are valid only to the extent that they promote the compelling government interest, anchored in the Constitution, of ending discrimination. [105]
In providing guidance to the district court on how modification should be approached, the court "looked behind the veil" of the language of the decrees indicating that the goals are remedial in nature by commenting on the Eleventh Circuit's perception of their real long-term objective:
On remand, the district court must rewrite the decrees to reflect that their true long-term purpose is to remedy past and present discrimination, not to achieve work force parity. The goal of eliminating discrimination may justify some interim use of affirmative action, but affirmative action selection provisions are themselves a form of discrimination that cannot continue forever. An end to racial discrimination demands the development of valid, non-discriminatory selection procedures. We hesitate to label this essential object "long-term," because it should be pursued with a sense of urgency. [106]
If fundamental employment/personnel actions are not to be made based upon racial or gender quotas, then it naturally follows that some type of objective criteria must be used as the measure of individual merit. Indeed, the Ensley II court reserved its sternest and most explicit admonitions for the issue of developing objective tests and evaluations to determine and rank the merit of competing candidates. The court repeatedly expressed its dismay that thirteen years after the consent decree went into effect the Board had yet to design and validate a single written exam. The court also noted that as of 1991 the Board was using thirty-five different written tests, not a single one of which had been validated. It did not escape the court's notice that this situation could provide the Board and city a perverse, bootstrap method of perpetually justifying a personnel system based upon quotas. The court commented on the possibility of a never-ending cycle of discrimination as follows:
Under its present decree, the Board may indefinitely administer racially discriminatory tests and then attempt to cure the resulting injury to blacks with race-conscious affirmative action. Federal courts should not tolerate such institutionalized discrimination. [107]
The Ensley II court concluded that this alternating cycle of using invalidated tests coupled with a quota system for promotions had remediated little but instead created entirely new groups of victims.
One color of discrimination has been painted over another in an effort to mask the peeling remnants of prejudice past, leaving a new and equally offensive discoloration rather than a clean canvas. The time has long passed for the Board and the city to strip away the past and adopt fresh, race-neutral selection procedures. And Court-approved racial preferences must end as soon as possible. [108]
Applying the same analysis as applied to the long-term goals, the court found that they were also unsupported by evidence of discrimination, arbitrarily set at figures unrelated to any rational mediation plan, and lacked the "flexibility that the Constitution requires." [109] However, the court also held that until valid job selection procedures are in place the city could continue to use some level of racial preferences to counteract the effects of the racially discriminatory tests still being used. [110] The consent decrees also created quotas for women. The court reviewed this part of the decrees using the lower, intermediate level of scrutiny set forth as appropriate by the Supreme Court for gender-based classifications in Craig v. Boron [111] and Mississippi University for Women v. Hogan. [112] The Ensley II panel expressly found that the Supreme Court had not meant to overturn this standard of review sub silentio, with its decision in Croson. [113] The court acknowledged that on its face it appears legally "odd" to apply different standards of review to affirmative action programs depending upon which group was the beneficiary of the preferences. [114] However, the court reasoned that the Supreme Court had come to the conclusion in Croson that using favoritism and preferences between racial and ethnic groups by employers was particularly odious and thus required the strictest standard of review. [115] Nevertheless the court found that even applying the lower intermediate standard of review, the operation of the decrees was not "substantially related" to the objective of eliminating gender discrimination in public employment. [116] The court found that it was also an abuse of the district court's discretion not to require the Board to create valid, gender neutral selection tests. [117] Reliance on perpetual quotas rather than valid selection criteria for employing women, the court stated, reinforced condescending stereotypes about female applicants: "Perpetual use of affirmative action may foster the misguided belief that women cannot compete on their own." [118] Given the tone and tenor of the Ensley II court's comments on the importance of developing objective criteria, it comes as no surprise the court also found the district court's refusal to set any time-table for the creation and validation of meritocratic selection procedures for all applicants, black and white, male and female, to have been a "serious flaw" in judicial oversight. [119] In fact, the Eleventh Circuit expressed grave concern at the district court's language that establishing a judicially-imposed timetable for developing valid tests would be "unrealistic, unworkable and unwise." [120] The Ensley II court listed a long series of recent federal decisions upholding the validation procedures used by employers to prove their meritocratic tests were "job-related," even though they had an adverse impact (i.e., a lower pass or selection rate) on one or more groups of employees. [121] Indeed, the court displayed no patience with the argument that existing Title VII case law made the validation of meaningful tests a futile undertaking:
We are loath to impute such a gross error to our nation's elected representatives. Had Congress shared the district court's belief that validation of selection procedures was "unrealistic, unworkable and unwise," then Congress would not have made a specific exception to Title VII for the proper use of professionally designed tests. [122]
In its conclusion, the court remanded the case to the district court to determine if there is specific evidence of discrimination against blacks that would justify continuing race conscious selection procedures. In those occupations where there is insufficient evidence, the race conscious relief is to be dissolved. Even in those occupations where there is sufficient evidence of past discrimination, the race conscious selection procedures must be specifically tailored to remediate the discrimination, not engage in racial balancing. Finally, the district court was required to set reasonably prompt deadlines for the Board and the city to create race-neutral selection procedures. [123] The Ensley II court expressed consternation for both the philosophical use the Board and The city had made of the consent decrees over the last decade, and the laissez faire attitude of the district court toward the development of a meritocratic selection model for the city's work force. The court wrote:
[T]he district court is directed to order the city and the Board to develop race-neutral selection procedures forthwith, not at the casual pace the Board has passed off as progress for thirteen years. The Board's decree is not a security blanket to be clung to, but a badge of shame, a monument to the board's past and present failure to treat all candidates in a fair and non-discriminatory manner. Federal judicial oversight should provide public employers no refuge from their responsibilities. [124]
Twenty years after the issue of discrimination in the city of Birmingham's work force was first put before the District Court for the Northern District of Alabama, the same basic issues with the same parties are once again before that forum for resolution.
XI. THE QUOTA IDEAL: THE UNIVERSAL OPIATE OF THE SOCIAL PLANNERS
A. Birmingham's Experience
Fifteen years ago Birmingham's new political leadership made a fateful decision to deal with allegations of discrimination, not by compensating the specific victims of that discrimination or by improving the meritocratic selection procedures, but by implementing an all-encompassing system designed to create racial balancing along the lines of the quota ideal. Given the deep historical discrimination against blacks in Birmingham before the passage of 1964 Civil Rights Act, the philosophical bent of the consent decrees is understandable, if regrettable. In addition to the lure of racial balancing, the consent decrees offered a vehicle for a massive "catch-up" in black employment to compensate for years of discrimination. The fact that the African-Americans who were made the beneficiaries of employment based upon race might not themselves have been the victims of racial discrimination was given very little consideration. Nor was there concern for the fact that the individual white city workers who were cast into a very real second class status might never had played a part in that discrimination. The city viewed the decrees as doing justice in the bigger equation of the community at large. The result of the operation of the decrees has not been a more just or harmonious community. The decree has polarized the city's work force into extremely litigious groups broken down along racial lines. Years of energy by the city's leadership and a steady stream of tax dollars that could have been used to design and validate objective civil service tests was instead devoted to defending what ultimately was indefensible. While African-Americans are the short-term beneficiaries of the consent decrees, the Ensley II court recognized the injustice that using invalidated tests in conjunction with quotas do by denigrating the achievements and abilities of the city's African-American employees:
Use of racial hiring quotas to mask the effects of discriminatory selection procedures places grievous burdens on blacks as well as whites. Whatever they measure, tests that are not job related do not predict future job performance, yet they may convince some persons that those who score lower are less qualified. As Justice Brennan once observed, "even in the pursuit of remedial objectives, an explicit policy of assignment by race may serve to stimulate our society's latent race consciousness, suggesting the utility and propriety of basing decisions on a factor that ideally bears no relationship to an individual's worth or needs." [125]
In addition to its other legal woes, the city is now facing a claim for $2.5 million dollars for attorney fees (authorized for prevailing parties in Title VII actions) from the plaintiffs/appellants who have (now successfully) challenged the consent decrees over the last fourteen years. [126] Finally, the compensation to individuals the district court finds have in fact been victimized by the consent decree, and the attorney fees for those actions may raise the final cost to the city far higher. The city's strategy to resolve its original litigation by focusing on groups rather than individuals was its fundamental flaw. However, when it comes to the implementation of the quota ideal, Birmingham's experience is not unique.
B. The American History of the Quota Ideal: What They Don't Teach In Diversity Training
The debate over quotas tends to be viewed as a uniquely American struggle to define justice between blacks and whites. In truth, the current debate represents only the most recent twist on a long and rocky road. The quota ideal springs forth from the roots of prejudice. It first gained political force in the 1920s as a way for America to deal with its so called "Jewish problem." The "problem" was the phenomenal success of Eastern European Jewish immigrants after the First World War. Whether one attributes this success to the belief in hard work and sacrifice typical of immigrants in general, the respect and support for academic excellence in Jewish culture, or the talmudic tradition of analysis and intellectual rigor, a high percentage of Jewish immigrants and their children strove to join the professions through university training. By 1920, Jews comprised barely four percent of America's population, but they constituted seventy-three percent of the students at the City College of New York, forty percent at Columbia University and twenty percent at Harvard. [127] In 1922, Harvard's President Abbott Lawrence Lowell decided that Jews were changing the cultural complexion of Harvard and introduced the "silent quota" which cut Jewish attendance at Harvard from twenty-two percent to no more than ten percent. [128] Likewise, in a classic justification of the quota ideal, Dean William Rappleye of Columbia's medical college stated, "the racial and religious makeup in medicine ought to be kept fairly parallel with the population makeup" as justification for slashing Jewish enrollment to six percent of medical students. [129]
The effect in both cases was the same. White Christian applicants were exempted from having to compete with Jewish applicants on objective measures of competence and merit. Untold numbers of Jewish students who had made academic excellence their life's ambition were rejected in the name of ethnic balancing. The intolerance and chauvinism of some of America's oldest academic institutions brought the Jewish quotas into disfavor after the Second World War. This prejudice against excellence is intrinsic to the quota ideal. It has come back to life in the past decade with Asian immigrants. During 1993, San Francisco's elite public high school, the Lowell School, was under pressure to accept no more Asian students, regardless of their test scores. The school operates on a racial quota system that prohibits more than forty percent of the student body to belong to the same ethnic group. [130] Because of the success of Asian students in meeting the race blind, meritocratic standards of Lowell, they have committed the offense (at least under the quota ideal) of succeeding beyond the allotment for their ethnic group: Asian students now comprise 42.9 percent of the student body. [131] Admission to Lowell is based upon a battery of academic tests based upon a sixty-nine point scale. What constitutes a passing score is predicated upon the race or ethnic group of the applicant. The more successful the members of an ethnic group have been on the test, the higher the minimum passing score for acceptance is set. For example, in 1994 the minimum passing score for whites was fifty-eight. However, for those of Chinese heritage the minimum passing score was sixty-two. [132] University professor Andrew R. Heinze articulated the human price that the quota ideal extracts, as applied at Lowell:
The anti-Asian quota of Lowell High School is no less damaging because it was not specifically designed to keep Asians out. The effect is the same. It demoralizes families who have struggled, often against great odds, so that their children could advance and fulfill American ideals of work and achievement. It makes a person's racial or ethnic identity more important than his or her character and performance. It lowers the academic standards of our schools. It punishes the diligent and discourages the talented. [133]
Allegations have repeatedly surfaced that California's state university system discriminates against Asian applicants in pursuit of racial balancing. The University of California at Los Angeles (UCLA), was charged with giving illegal preference to Caucasian applicants over Asian. An internal memo from UCLA's admissions director stating the school would "endeavor to curb the decline of Caucasian students" [134] certainly gave credibility to the suspicion that UCLA was engaged in ethnic balancing at the expense of Asians. In one of the most notorious examples, an Asian-American applicant to the University of California Berkeley's Law School received a letter informing her that she had been placed on the "Asian waiting list." [135] In 1989, Berkeley acknowledged that "it is clear that decisions made in the admissions process indisputably had a disproportionate impact on Asians," [136] to which California Congressman Dana Rohrabacher commented, "That's academic gobbledygook for: we discriminated." [137] Once the quota ideal takes root in a culture, it tends to spread as relentlessly as the Kudzu vine in a denuded Southern field. While the most devoted collectivists embrace the quota ideal as a general principle of justice, this is not the typical justification used to create affirmative action programs. Entry into the spoils system is usually justified on the ability to demonstrate the group you represent has suffered a disadvantage from society at large, or from those in positions of authority. As the concept of group entitlement gains legitimacy, it spreads through the body politic. The degree to which this phenomenon has taken place in the United States during the last twenty years is evidenced by the recent proposal of conservative political columnist Cal Thomas that religious conservatives push the broadcasting and print industries to create an affirmative action program for the evangelical community. [138] Mr. Thomas' syllogism runs as follows: (A) All groups in society should have appropriate representation in the news media; (B) Religious conservatives are a definable group within society composed of millions of individuals; (C) The American mass media is dominated by aggressively secular individuals who maintain their control by hiring new journalists who share their secular agenda; (D) This has resulted in an ideologically narrow mass media that has consistently stereotyped, ridiculed and caricatured religious conservatives in a way that would never be tolerated about any other minority in American society; (E) Therefore, the just solution is for religious conservatives to bring organized pressure on the communications industry to create a remedial affirmative action program to hire religiously committed journalists in appropriate numbers. Mr. Thomas' bottom line justification for this preference is as follows: "Because religion is so intertwined with contemporary politics, newsrooms ought to conduct an affirmative action program to include people on their staffs who believe as millions of Americans do and who can report correctly and fairly on those beliefs in a way that will inform all of us." [139] While Mr. Thomas' proposal is no doubt producing a less than sympathetic -- if not "tight-jawed" -- response from the typical advocates of the quota ideal, his proposal is not outlandish if analyzed with intellectual consistency using the mantras of affirmative action and diversity. However, the constitutional and ethical fault in the proposition is that preferential rights to religious conservatives as a group should occur if discrimination against specific individuals can be shown. This is the classic springboard of the broad-brush "remedial" quota ideal: Viewing individual misconduct (alleged acts of discrimination against religiously inclined journalists) as the justification for sweeping judicially or legislatively imposed structural changes in society. If Mr. Thomas can establish in a court of law that even one applicant at the Washington Post or the CBS News Division has been discriminated against because of religious beliefs, then the full remedial force of the law should be brought to bear to vindicate the rights of those individuals. However, if Mr. Thomas' remedial proposal was implemented, it would mean that religiously inclined applicants for journalism and broadcasting positions, who had themselves never been the victims of unlawful discrimination, would receive preferential treatment in proportion to those equally innocent souls whose only "misconduct" was to proclaim a secular orientation on their application. Such is the nature of the collective justice of the quota ideal.
C. The International Experience
The quota ideal has not simply been an American illusion of social justice. The list of nations that have adopted the quota ideal in search of justice and social harmony are legion. In many instances, the quota ideal produced instead injustice and civil strife. The terrible carnage produced by the civil war in Rwanda is well known. What is less appreciated is the role that the quota ideal played in exacerbating historic ethnic animosity. The Hutu majority took control of the country from the previously dominant Tutsis in 1959. They subsequently implemented an affirmative action program (read quotas) to compensate for previous discrimination by the Tutsis. Under this system, employment in the civil service and military and admissions to educational institutions were made so that the work force/student body would mirror the ethnic makeup of the country: eighty-five percent Hutu, fifteen percent Tutsi. The now deposed government defended these quotas as "affirmative action steps to correct past inequalities against the Hutu." [140] However benign the Hutu might have seen this quota system, in effect, it meant that Tutsi youth who were themselves blameless, and had not even been born when the previous discrimination occurred, were only able to apply for one out of every ten university and government positions. It made individual achievement and merit a largely irrelevant consideration -- ethnic affiliation was the defining factor of life. It was a system The New Yorker described as "a sort of black-on-black apartheid, with tribal identity cards and an ethnic-quota system that limited Tutsis' access to schools and jobs." [141] Another example of the failure of the quota ideal in the international arena can be found on the island nation of Sri Lanka, where the Tamil Tigers, a guerrilla force of 10,000 or more insurgents, have battled government forces for the last decade. The industrious Tamil community, which constitutes seventeen percent of the island's population, believes that long standing efforts at ethnic balancing have had a pernicious effect on their development. It is thus not surprising when the Tamil Tigers issued their "six conditions for peace" in 1988, one of the six was " [u]niversity entrance only on merit, not by ethnic quotas." [142] At the other end of the Indian sub-continent in Pakistan, ethnic quotas for employment and education were the catalyst for a political movement that has brought the country near to civil war. In the strife and great human migration that took place after India's partition in 1947, more than nine million Muslims fled north to Pakistan. These were the Mohajirs, who lived primarily in urban areas of India, and were better educated as a group than the native born Pakistanis, the Sindis and Punjabis. With their orientation toward the professions and commerce, they settled in Pakistan's cities and began to rebuild their lives and fortunes. However, their success in the civil service and academia created resentment in the native born population. Prime Minister Zulfikar Ali Bhutto made the fateful decision in the 1950s to try to defuse the situation by embracing the quota ideal. He imposed strict quotas for admissions to colleges and government positions, effectively dividing Pakistanis between immigrants and the native born. [143] These distinctions, and the ethnic spoils system he created, carried over to the next generation of Pakistanis. In 1978, a group of Mohajirs, ironically students who could not get admitted to the School of Pharmacy because the quota for Mohajirs was filled, founded a new political party to represent their interests, the MQM. [144] The movement, with its focus on the injustice the quota system has worked on the Mohajirs, rapidly gained adherents. However, with the government rejecting meaningful change in the quota system, the strife between the two groups has consistently escalated. After a street battle between government security forces and MQM supporters left fifty dead on February 7, 1990, Pakistani political columnist Ayaz Amir stated, "Pakistan has never before seen the street power and fire power of this party. The MQM is not an organization. It's a monster." [145] The purpose of this article is not to provide a comprehensive review of the history of the quota ideal. [146] Nevertheless, the above anecdotal cases are useful to highlight the fact that Birmingham's results with racial balancing are not unique. Indeed, governments have consistently reaped a bitter harvest of injustice and social strife when they attempt to sow justice by dividing opportunities for success in employment, education, and government contracts into a spoils system between ethnic groups. Neither is it surprising that since World War II those nations and political movements which have been most enamored with socialism have also been the most fervent supporters of the quota ideal, for the quota ideal represents a classic collectivist notion of social justice. It dovetails nicely with the Marxist concept that human progress is not measured by the accomplishments of individuals, but by the actions of races, nations, and social classes. Under the collectivist mind-set, individual rights must always give way to the greater rights of the community, acting through state authority. Ergo, if confiscating private property without compensation is useful for the majority, or denying educational opportunity to an otherwise clearly deserving Asian student is necessary to support diversity, then the greater morality rests with the authority of the state, not the disadvantaged individuals. However, what the collectivists historically overlooked (usually with disastrous results for the societies they purported to care so deeply about) was that races, nations, and social classes do not attend medical school, invent polio vaccines, create Microsoft Corporations, or fight fires in Birmingham, Alabama -- individuals do. Individuals, in turn, collectively reach their greatest potential when they are secure in the knowledge their government will judge them in all things on their individual merit. A governmental entity, when it is acting in its capacity as an employer, especially one which presides over a multi-ethnic society, has a special duty to set the example of supporting meritocratic principles. This is important both to maintain the confidence of the governed in their leaders' dedication to justice, and to set a standard of conduct for the private sector. As Justice Brandeis observed: "In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example." [147]
XII. CONCLUSION
The Birmingham employment discrimination cases are a classic example of what happens when a government abandons the discipline, integrity, and justice of meritocracy for the siren song of the quota ideal. Once again the Birmingham employment discrimination litigation is before the District Court for the Northern District of Alabama. The court is now faced with the doubly vexing job of determining what, if any, discrimination is still taking place against African-Americans and to what degree the unlawful operation of the consent decrees has discriminated against Caucasians.
From the history of the court decisions to date (October 1994), there is certainly reason to believe the operation of the consent decrees will be found to have created a pattern and practice of unlawful discrimination against Caucasians. In addition, the city of Birmingham appears as determined as ever to defend the status quo. After twenty years of litigation, the methods used by the city of Birmingham to hire and promote employees appear no more resolved then they were in 1974. If it is the ultimate adjudication of the federal courts that the consent decrees have been used to create a pattern and practice of discrimination against whites, then the issue of appropriate remediation for this discrimination must ultimately be addressed. It no doubt will be tempting to make this new class of victims whole by sweeping, broad-brush relief that would benefit Caucasians as a class. [148] However, this would be just as unconstitutional a denial of equal protection to African-Americans as the consent decrees are a denial of equal protection to Caucasians. The just solution to Birmingham's employment discrimination litigation is the one that has been consistently ignored to date -- a laser precise focus on making the specific, identifiable victims of discrimination, black or white, whole through appropriate individual relief. This is never a simple task. In class action litigation it is an exhausting, continuous, expensive, and time-consuming endeavor for the court, counsel, and parties. Nevertheless, it is the only just and constitutional road out of this employment discrimination quagmire. Any broad-based, long-running remedial affirmative action (ergo quotas) for Caucasians would inevitably result in many members of that group receiving preferential employment and promotions who were never themselves disadvantaged by the consent decree. Likewise, it would inevitably and needlessly stifle the opportunities of numerous African-American employees who are themselves blameless for the current situation. It would perpetuate the cycle of victimization, ethnic polarization in the city's work force, and ceaseless litigation that have marked the last twenty years.
*Lieutenant Colonel R. Philip Deavel (B.S., Suffolk University; J.D., University of Mississippi; LL.M. (Labor Law), The George Washington University National Law Center) is the Chief, Civil Law Division, United States Air Force Judge Advocate General School, Maxwell AFB, Alabama. He is a member of the Mississippi Bar.
1. 110 Cong. Rec. 6549 (1964).
2. 20 F.3d 1525 (11th Cir. 1994) [hereinafter BRDEL II].
3. 1994 U.S. App. LEXIS 23275 (11th Cir. 1994) [hereinafter Ensley II].
4. 42 U.S.C.A. Secs. 2000e to 2000e-17 (West 1994 Supp).
5. Schlei and Grossman, Employment Discrimination Law xi (2d ed. 1983).
6. When Title VII was debated in Congress, opponents charged that the Act would set off a legal movement toward quotas in hiring, promotions, and lay-offs that would undermine merit principles in society at large. Title VII's impact on seniority systems was also of great concern. Creating and protecting seniority systems have been overriding objectives of the American labor movement. This flows from the belief that those workers who have invested the most years with a specific employer should be given the most security in employment. The supporters of Title VII expended a great deal of energy refuting arguments that the Act would largely place the economic burdens of integration on nonblack working-class Americans. In responding to these attacks, Senator Clark introduced into the congressional record a memorandum of law from the Department of Justice (DOJ) setting forth the department's interpretation of Title VII's impact on employment practices. The memorandum denied that Title VII could be used for racial balancing or would in any way undermine seniority rights. 110 Cong. Rec. 7207 (1964). Senator Humphrey, responding to the concerns of rank and file workers about the impact of Title VII, stated: "I would not support this fair and reasonable equal employment opportunity provision if it would have any harmful effects on unions." Id. at n.1. Finally Walter P. Reuther, then President of the United Auto Workers (UAW), wrote an open letter supporting Title VII which was read into the congressional record. The letter set forth the UAW's belief that it was not "the letter or intention of the law" that white workers would be discriminated against or have their opportunities diminished in the process of integration. 110 Cong. Rec. 7217 (1964).
7. See David Brion Davis, The Other Zion: American Jews and the Meritocratic Experiment, The New Republic, Apr. 12, 1993, at 29-50.
8. For a rendition of the arguments that affirmative action is necessary for promoting social justice, see Gertrude Ezorsky, Racism and Justice: The Case for Affirmative Action (1991).
9. 109 S. Ct. 706 (1989).
10. For a comprehensive review of the nine Supreme Court decisions on affirmative action before Croson, see Mary C. Daly, Some Runs, Some Hits, Some Errors-Keeping Score in the Affirmative Action Ballpark from Weber to Johnson, 30 B.C. L. Rev 1 (1988). This article categorized the affirmative action cases before Croson as "lengthy, incohesive, contradictory, and ambiguous." Both the article and the language above were referenced by the Eleventh Circuit in one of the Birmingham employment discrimination cases. BRDEL II, 20 F.3d 1525, (11th Cir. 1994).
11. Ironically, minority-owned prime contractors were exempt from this requirement and could hire free of any racial consideration. 109 S.Ct. at 713.
12. The majority opinion in Croson did not accept the city's argument that the burdens the "white majority" elects to place on itself through affirmative action programs should be viewed as most "benign," because whites were in actuality the minority in Richmond:
In this case, blacks comprise approximately 50% of the population of the city of Richmond. Five of the nine seats on the city council are held by blacks. The concern that a political majority will more easily act to the disadvantage of a minority based on unwarranted assumptions or incomplete facts would seem to militate for, not against, the application of heightened scrutiny in this case. Id. at 722.
In the same vein, when the Fourth Circuit reviewed this set aside program and found it constitutionally invalid, the majority commented that "remedial measures" cannot be used as a cover for what in reality is a "political transfer" of governmental benefits. J.A. Croson Co. v. Richmond, 822 F.2d 1355, 1360 (4th Cir. 1987).
13. The importance of Croson in bringing clarity to the reverse discrimination/affirmative action debate cannot be overstated. William Bradford Reynolds, now a distinguished fellow at the National Legal Center for the Public Interest and the former head of the Justice Department's Civil Rights Division during a critical phase of the Birmingham employment discrimination litigation, wrote of this decision:
To be sure, the court has struggled to reach this point, speaking more often than not with multiple voices, and in some instances, even with forked tongue. But a solid and reliable majority has emerged to provide the kind of clarity of thinking and purpose needed to fulfill Dr. Martin Luther King Jr.'s dream of a nation that will one day judge its children 'not by the color of their skin but by the content of their character.'
William Bradford Reynolds, Colorblind at Last! St. L. Post Disp., June 29, 1989, at B3.
14. See Henry Hampton & Steve Fayer, et al, Voices of Freedom, An Oral History of the Civil Rights Movement, from the 1950s Through the 1980s 123-30 ( 1990).
15. Id.
16. Chambliss, a member of the "Eastview 13 Klavern" of the Ku Klux Klan, was subsequently tried for the bombing and convicted of first degree murder on Nov. 18, 1977.
17. Hampton & Fayer, supra note 14, at 124.
18. Branch v. Seibels, 20 F.3d 1489, at 1494 (11th Cir. 1994).
19. Id.
20. Stuart Taylor Jr., Second-Class Citizens, Am. Lawyer , Sept. 1989, at 42-65.
21. The appellate cases are as follows: Martin v. Wilks, 490 U.S. 755 [cited at] (1989); In re Birmingham Reverse Discrimination Employment Litigation (BRDEL II), 20 F.3d 1525 (11th Cir 1994); Ensley Branch, N.A.A.C.P. v. Seibels, 20 F.3d 1489 (11th Cir. 1994) (opinion withdrawn after grant of rehearing); Ensley Branch, N.A.A.C.P. v. Seibels (Ensley II), No. 91-7799, 1994 U.S. App. LEXIS 23275 (11th Cir. 1994) (substituted opinion after rehearing). In re Birmingham Reverse Discrimination Employment Litigation (BRDEL I), 833 F.2d 1492 (1988)(rehearing and rehearing en banc denied; United States v. Jefferson County, 720 F.2d 1511 (11th Cir. 1983); Ensley Branch, N.A.A.C.P. v. Seibels (Ensley I), 616 F.2d 812 (5th Cir.), cert. denied, 449 U.S. 1061 [cited at] (1980). The district court's decision and order finding the civil service tests used for the fire and police departments violated Title VII is reported at 13 Empl. Prac. Dec. 11,504. The district court's subsequent decision reaffirming the validity of the consent decrees is reported as Bennett v. Arrington, 806 F. Supp. 926 (N.D. Ala. 1992).
22. For a detailed review of how the Personnel Board operates, see Taylor, supra note 20, at 46.
23. Id.
24. The district court's order was published at 13 Empl.Prac.Dec. 11,504.
25. 422 U.S. 405 [cited at] (1975).
26. 616 F.2d 812 (5th Cir.), cert. denied, 499 U.S. 1061 [cited at] (1980).
27. At the time of the settlement negotiations, the EEOC guidelines were set forth at 29 C.F.R. Sec. 1607.5 (c)(2). Under these guidelines, it is not sufficient that the proposed test be relevant and designed in good faith.
28. Municipalities have had difficulty in designing written tests for firefighter and police positions that are meaningful and occupationally relevant, yet do not run afoul of the EEOC's four-fifths rule (a test which produces a selection rate of less than four-fifths of the selection rate for any other group will generally be considered to have an adverse impact). See Doreen Canton, Adverse Impact Analysis of Public Sector Employment Tests: Can a City Devise a Valid Test?, 56 U. Cin. L. Rev. 683 (1987).
29. The Eleventh Circuit's frustration with the city and Personnel Board for failing to validate its selection procedures over the last 20 years is discussed later in this article.
30. Taylor, supra note 20, at 52.
31. Id.
32. Id.
33. Id.
34. Id. at 45.
35. Id. at 46.
36. Id.
37. Civil Action No. 82-P-850-S. (N.D. Ala. 1981)
38. 720 F.2d 1511 (11th Cir. 1983).
39. Civil Actions Nos. 83-P-2116-S, 82-P-1852-S, 84-0903-S. (N.D. Ala. 1981).
40. At the time, the DOJ was severely criticized by both liberals and legal scholars for switching sides. The DOJ already had made numerous appearances in court on behalf of the original black plaintiffs and helped negotiate the consent decrees when Mr. Reynolds moved the position of the Civil Rights Division 180 degrees on the Birmingham litigation. It is interesting to note that Mr. Deval Patrick, the current Chief of the Civil Rights Division in the Clinton administration, has been responsible for the DOJ again switching sides in a civil rights case. The recent case of position switching came in Taxman v. Piscataway Board of Education, No. 94-5112. The plaintiff was Sharon Taxman, a white school teacher at Piscataway High School in New Jersey. The school board made the decision to abolish one of two business education teaching positions. Two incumbent teachers were in peril of losing their jobs, one white and one black. Rather than make the reduction in force (RIF) decision based upon merit principles, the board elected to keep the black teacher and terminate Ms. Taxman in support of its affirmative action program. The DOJ under the Bush Administration brought a civil rights action in federal district court on behalf of Ms. Taxman and prevailed. Ms. Taxman was awarded nearly $134,000 in backpay and damages for having been discriminated against because of her race. The school board appealed this decision. In July 1994, the DOJ surprised both sides by requesting permission from the Court of Appeals for the Third Circuit to file an amicus brief on behalf of the school board. In a news conference on Sept. 8, 1994, Attorney General Janet Reno defended the decision to switch sides because "it is important to make clear that diversity is a factor that employers can consider in developing voluntary affirmative actions plans." Reno Defends Justice Department Switch in New Jersey School System, Daily Labor Rep. (Sept. 9, 1994). Finally, the DOJ has again altered its position on the Birmingham discrimination cases. The DOJ filed an amicus brief in support of the city in the BRDEL II appeal, while continuing to support the white plaintiffs in the Ensley II appeal. All these cases of position switching reflect the deep chasm in America about what constitutes "discrimination." It is reflected in the lack of a bipartisan consensus on what position the DOJ should take in civil rights cases.
41. Reynolds, supra note 13, at 52-55. Mr. Reynolds' views and the clarity with which he articulated them tended to raise passionate responses from both supporters and opponents. The National Review commented that the debate over Mr. Reynolds' nomination for the position of associate attorney general "will be in essence a debate over whether the 1964 Civil Rights Act is finally going to mean what we were told it meant." Nat'l Rev., June 28 1985, at 17. At the other end of the spectrum, Benjamin Hooks of the NAACP labeled him a "right wing ideological fanatic." U.S. News & World Rep., June 17, 1985, at 11.
42. The Senate Judiciary Committee rejected Mr. Reynolds' nomination by a ten to eight vote. A sympathetic Senator Alan Simpson commented that the manner in which Reynolds' nomination was treated by the committee was analogous to "the ritual of being pecked to death by ducks." N. Y. Times, June 28, 1985, at A1.
43. In re Birmingham Reverse Discrimination Employment Litigation, 833 F.2d 1492, 1496 (11th Cir. 1987) [hereinafter BRDEL I].
44. Id. at 1496.
45. Id. at 1497.
46. Id.
47. 833 F. 2d at 1502.
48. Id. at 1499.
49. Id. at 1501 (footnotes omitted).
50. Id.
51. Id.
52. For a review of the bitterness and animosity this marathon litigation has created in the parties and their legal counsel, see Taylor, supra note 20, at 53-55.
53. The Court in Martin v. Wilks referenced this split in the circuits and cited cases from the 2d, 5th, 6th, and 9th Circuits to the contrary of the 11th Circuit position. 490 U.S. 755 [cited at] , 764 n.3 (1985).
54. Id. at 755.
55. Id. at 768.
56. 806 F. Supp. 926 (N.D. Ala. 1992).
57. Id. at 928.
58. 480 U.S. 616 [cited at] (1987).
59. 806 F. Supp. at 929-30.
60. Id. at 930.
61. Id.
62. Id.
63. Id. at 931.
64. Id.
65. While the United States was forbidden to change sides as a party, the totality of the modifications sought effectively placed the DOJ with the Wilks class.
66. Ensley Branch, N.A.A.C.P. v. Seibels, 1994 U.S. App. LEXIS 23275, at *33 (11th Cir. 1994).
67. Id.
68. Id. at *34.
69. Id. at *34, *35.
70. Id. at *36.
71. Id. at *38.
72. Id. at *39.
73. Id. at *40.
74. Bennett v. Arrington, 806 F.Supp. 926 (N.D. Ala. 1992).
75. In re Birmingham Reverse Discrimination Employment Litigation, 20 F.3d 1525 (11th Cir. 1994) [BRDEL II].
76. Id. at 1534.
77. Id.
78. Id.
79. Id.
80. Id. at 1541.
81. According to Stuart Taylor, "Mayor Arrington approved the deal even more heartily. The black plaintiffs had settled for what he called a 'modest amount' of backpay, giving up huge monetary claims to get strong affirmative action preferences over whites. Recalled Arrington in a 1985 deposition: 'I thought it was the best business deal we had ever struck.'" Taylor, supra note 20, at 43.
82. 20 F.3d at 1542.
83. Id. at 1544 (citing Croson, 488 U.S. at 493).
84. 806 F. Supp. 926, 929 (N. D. Ala. 1992).
85. 20 F.3d at 1546.
86. Id.
87. Id.
88. Id. (quoting from Int'l Bd. of Teamsters v. United States, 431 U.S. 324 [cited at] , 340 (1977)).
89. Id. at 1548.
90. 20 F.3d 1489 (11th Cir. 1994).
91. No. 91-7799, 1994 U.S.App. LEXIS 23275 (11th Cir. 1994).
92. The Ensley II panel reached the same basic legal conclusions after the rehearing. However, when comparing the two opinions, the withdrawn opinion has a harsher tone. The totality of the first decision sharply conveys the frustration of the court over Birmingham's perpetual inability or unwillingness to base employment actions on lawful, colorblind criteria. The original decision appears to repeatedly invite the district court to appoint a special master to take control of the personnel system and rebuild it on a constitutionally valid foundation. Ensley II, the substituted opinion, has a softer tone, with more advisory language on practical steps the Board and city could take to have their personnel system pass constitutional muster. In particular, the substituted opinion advises that if the city and Board really perceive the creation and validation of written tests to be an impossible undertaking (a position the Ensley II panel does not share) then they should seriously consider making employment actions (hiring and promotions) based upon a time-of-application system or a lottery. Id. at *86. While both systems would be useless in ranking applicants based upon merit, the court noted that at least the city would have a system that was not racially discriminatory. Id.
93. Id. at *40.
94. Id.
95. Id. at *16.
96. Id. at *18, *19.
97. Id.
98. 112 S. Ct. 748 (1992).
99. Ensley II, 1994 U.S. App. LEXIS 23275, at *43.
100. Id. at *57.
101. Id. at *61.
102. Id.
103. Id. at *63.
104. Id.
105. Id. at *64, *65.
106. Id. at *73, *74.
107. Id. at *78.
108. Id. at *80.
109. Id. at *90.
110. Id. at *98.
111. 429 U.S. 190 [cited at] (1977).
112. 458 U.S. 718 [cited at] (1982).
113. Ensley II, 1994 U.S. App. LEXIS 23275 at *107.
114. Id.
115. Id. at *108.
116. Id. at *114.
117. Id.
118. Id.
119. Id. at *76.
120. Id. at *81.
121. Id. at *81-*84.
122. Id. at *85.
123. Id. at *88.
124. Id. at *99.
125. Ensley Branch, N.A.A.C.P. v. Seibels, No. 91-7799, 1994 U.S. App. LEXIS 23275, at *78 (quoting Justice Brennan in United Jewish Orgs. v. Carey, 430 U.S. 144 [cited at] , 97 S. Ct. 996, 51 L. Ed. 2d 299 (1977) (J. Brennan concurring in part)).
126. The Wilks class was prepared to submit a claim of $2 million dollars for attorney fees (if they subsequently prevailed on the merits of their case) after the Supreme Court vindicated their ten-year struggle to gain legal standing to challenge the consent decrees. Taylor, supra note 20, at 52. According to the lead attorney for the Wilks class, Mr. Raymond Fitzpatrick Jr., the city has to date declined to settle attorney fees for any of the issues the plaintiff/intervenors have prevailed on in BRDEL II and Ensley II. He stated the total amount for attorney fees he will seek court ordered payment for is now $2.5 million. Telephone Interview with Raymond Fitzpatrick Jr., 17 Sept. 1994.
127. For a comparison of the impact of academic quotas on Jewish and Asian immigrants, see Andrew R. Heinze, Don't Punish Asians For Good Grades, S. F. Chron., Oct. 13, 1993, at A21.
128. Davis, supra note 7, at 31.
129. Id.
130. Heinze, supra note 127, at a21.
131. Id.
132. See Claire Cooper, School Integration Faces New Challenge in Court; Plaintiffs Urging a Return to Competition Based Upon Individual Merit, S. F. Exam., Aug. 1, 1994, at Al.
133. Heinze, supra note 127, at A21.
134. See Harold Johnson, Model Victims; Discrimination Against Asian Students in California's Public Universities, Nat'l Rev. West, July 20, 1992, at 7.
135. Id.
136. Id.
137. Id.
138. Cal Thomas, Media Gods Finally See The Light, L. A. Times Synd., July 28, 1994.
139. Id.
140. See Charles Onyango-Obbo, Rebellion Adds Momentum To Rwanda Reform, Africa News Serv., April 26, 1993.
141. Comment, New Yorker, July 18, 1994, at 4.
142. Hugh Pain, Sri Lanka's Tamil Tigers Will Fight and Talk, Reuters News Serv. Libr. Rep., Dec. 17, 1988.
143. Sheila Tefft, Karachi's Urban Warfare, Christian Science Monitor, Mar. 6, 1990, at 3.
144. Id.
145. Id.
146. For an analysis of the ever expanding list of groups seeking to convince courts and legislatures to grant them various forms of collective preference over the last twenty years, see Fredrick R. Lynch, Whose Diversity? Whose Consensus? Analysis of American Society, 30 Society 36-40, No. 5, July 1993.
147. Olmstead v. United States, 277 U.S. 438 [cited at] , 485 (1928) (Brandeis J., dissenting).
148. According to Mr. Fitzpatrick (the attorney for the Wilks class), his clients will not request broad-brush affirmative action for themselves now that the proverbial "shoe is on the other foot." Mr. Fitzpatrick states he will seek retroactive promotions and other appropriate relief only for the approximately 40 white employees who can clearly establish that they would have been promoted but for their race. Nevertheless, as the author has attempted to establish in this article, once a group has been granted "victim" status by the courts, and the remediation train gathers steam, the appeal of seeking group-wide, nonspecific preferences (ergo, affirmative action) tends to build momentum on its own. Mr. Fitzpatrick states that the city has made no overtures for settlement, and has in fact petitioned the eleventh Circuit to review BRDEL II en banc. He opines that the city of Birmingham will ultimately seek certiorari on both BRDEL II and Ensley II if its requests for rehearing en banc are unsuccessful. If this prediction proves accurate, the final resolution of this litigation may still be many years in the future. Telephone Interview with Mr. Raymond Fitzpatrick Jr. (Sept. 17, 1994).