UNITED STATES OF AMERICA, PETITIONER V. PHILLIP PARADISE, JR., ET
AL.

   No. 85-999

   In the Supreme Court of the United States

   October Term, 1986

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

   Brief for the United States

                      PARTIES TO THE PROCEEDINGS

   The parties to the proceedings before the court of appeals were as
follows:  the United States of America;  Phillip Paradise, Jr., and
the class he represents;  the Alabama Department of Public Safety and
its director, Byron Prescott;  V. E. McClellan, William M. Bailey, D.
B. Mansell, Dan Davenport, and the class they represent.

            TABLE OF CONTENTS
   Parties to the proceedings
   Opinions below
   Jurisdiction
   Question presented
   Statement
   Introduction and summary of argument
   Argument:
      The one-black-for-one-white promotion quota ordered by
      the district court is not narrowly tailored to achieve
      a compelling governmental interest, and it is therefore
      unconstitutional under the equal protection guarantees
      of the Fifth and Fourteenth Amendments
      A. A racial classification must be narrowly tailored
          to achieve a compelling governmental interest in order
          to satisfy strict constitutional scrutiny
      B. The promotion quota ordered by the district
          court is not narrowly tailored to remedy the
          Department's past discrimination
      C. Promotion quotas like that ordered by the
          district court cannot be justified as "catch-up"
          measures designed to accelerate the achievement of
          racial proportionality or balance
      D. The one-for-one promotion quota, whatever its
          purpose, unnecessarily and severely burdens innocent
          persons, and it therefore fails to satisfy strict
          scrutiny
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-54a) is reported
at 767 F.2d 1514.  The order and memorandum opinion of the district
court (Pet. App. 55a-64a;  J.A. 128-137) are reported at 585 F. Supp.
72.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 83a-84a) was
entered on August 12, 1985.  On November 5, 1985, Justice Powell
extended the time within which to file a petition for a writ of
certiorari to and including December 10, 1985.  The petition was filed
on that date and was granted, limited to the third question presented,
on July 7, 1986 (J.A. 178).  The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   Whether the one-black-for-one-white promotion quota adopted by the
district court, and sustained by the court of appeals, is permissible
under the equal protection guarantees of the Fourteenth and Fifth
Amendments to the United States Constitution.

                              STATEMENTS

   1. This dispute arises from a lawsuit challenging discrimination in
hiring by the Alabama Department of Public Safety (the Department).
The original class action was brought by the NAACP in January 1972.
The United States was joined as a party plaintiff, and Phillip
Paradise, Jr., was permitted to intervene on behalf of a class of
black plaintiffs (Paradise) shortly thereafter (Pet. App. 3a).

   In 1972, the district court held that the Department had violated
the Fourteenth Amendment by "engag(ing) in a blatant and continuous
pattern and practice of discrimination in hiring." NAACP v. Allen, 340
F. Supp. 703, 705 (M.D. Ala.) (reprinted at J.A.23).  This finding of
discrimination was based in part upon the "unexplained and
unexplainable" fact that "(i)n the thirty-seven-year history of the
patrol there has never been a black trooper and the only Negroes ever
employed by the (D)epartment have been nonmerit system laborers."
Ibid.  The court ordered the Department to hire one black trooper for
each white trooper hired until blacks comprised approximately 25% of
the state trooper force.  340 F. Supp. at 706 (reprinted at J.A. 27).
The court directed that "eligible and promotional registers heretofore
used for the purpose of hiring troopers be * * * abrogated," and it
enjoined the Department from "engaging in any employment practices,
including * * * promotion * * *, for the purpose or with the effect of
discriminating against any employee * * * on the ground of race or
color." 340 F. Supp. at 706-707 (reprinted at J.A. 27-28).  The court
of appeals affirmed the district court's order.  493 F.2d 614 (5th
Cir. 1974).

   In 1975, the district court granted supplemental relief to the
plaintiffs.  It found that the Department, "for the purpose of
frustrating or delaying full relief to the plaintiff class, (had)
artificially restricted the size of the trooper force and the number
of new troopers hired" (J.A. 34).  The court enjoined the Department
from engaging in such conduct and ordered it to file status reports
concerning its progress in hiring blacks (id. at 35, 36).

   In 1979, the Department sought clarification of the district
court's 1972 order, "ask(ing) whether the (25%) hiring quota applies
to the entire state trooper force or just to entry-level troopers."
Paradise v. Shoemaker, 470 F. Supp. 439, 440 (M.D. Ala.).  The
Department pointed out that its "promotion policy prohibits lateral
hiring and requires advancement through the ranks." Because the 1972
order "did not impose promotional quotas," the Department said, "the
ratio of blacks in entry-level positions must approach 37.5 percent"
in order for the overall trooper force to be 25% black.  470 F. Supp.
at 441.  The district court responded that the 1972 order requiring
25% black representation in the trooper force unambiguously "refers to
the entire force of sworn officers, not just to those in the
entry-level rank," and it ruled that the "law of the case" doctrine
barred reconsideration of that issue (ibid.).  In this regard, the
court held:

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

   470 F. Supp. at 442 (emphasis in original).  See J.A. 63;  Pet.
App. 10a-12a.  The district court accordingly denied the Department's
motion for supplemental relief (470 F. Supp. at 442).  /1/

   2. In 1979, after Paradise had moved for supplemental relief, the
parties entered into a consent decree that for the first time
addressed the issue of promotions.  The Department generally agreed to
"have as an objective * * * an employment and promotion system that is
racially neutral" (J.A. 37) and "not to engage in any act or practice
which has a purpose or effect of unlawfully discriminating against
blacks * * * (or) which discriminates on the basis of race in hiring,
promotion, upgrading, training, assignment (or) discharge" (id. at
38).  With respect to promotions, the Department agreed "to have as an
objective the utilization of a promotion procedure which is fair to
all applicants and which promotion procedure when used either for
screening or ranking will have little or no adverse impact upon blacks
seeking promotion to corporal" (id. at 40).

   In pursuit of these general objectives, the Department specifically
agreed "to utilize a promotion procedure which is in conformity with
the 1978 Uniform Guidelines (on Employee) Selection Procedures, 43
Fed. Reg. 38290, and which, in addition, when used either for
screening or ranking will have little or no adverse impact on blacks
seeking promotion to corporal" (J.A. 40).  /2/ The Department pledged
to formulate a promotion procedure for the position of corporal that
would be submitted for the plaintiffs' review and the court's approval
"no later than one year from the signing of th(e) Consent Decree" --
that is, by February 16, 1980 (id. at 40, 45).  Once a new procedure
for promotion to corporal had been validated, the Department agreed
that it would "begin validation of a promotional procedure for the
position of sergeant and, in turn, for the positions of lieutenant,
captain, and major" (id. at 41).  As an interim measure, the parties
agreed to use the state merit system for all promotions to corporal
(ibid.).  The interim procedure was elaborated in a side agreement
among the parties (id. at 46-48), and, pursuant to the consent decree
and that agreement, we understand that four black troopers and six
white troopers were promoted to corporal in February 1980.  See id. at
46-48, 62.

   3. In April 1981, some two years after the signing of the consent
decree, the Department proposed a selection procedure for promotion to
corporal and requested that the district court approve it.  /3/ The
United States and Paradise filed a joint response objecting to the
Department's proposal, maintaining that the examination had not been
validated in accordance with the Uniform Guidelines and that its use
would not be justified if the results had an "adverse impact" on black
applicants (Pet. App. 12a;  J.A. 50).  In the hope of expeditiously
establishing an acceptable promotion procedure, however, the parties,
including the United States, entered into a second consent decree in
August 1981 (J.A. 49-54).  The parties thereby agreed that the
proposed corporal's examination would be administered and scored;
that the scores would be used in conjunction with other factors to
rank applicants on a promotion register;  and that the promotion
register would "be reviewed to determine whether the selection
procedure has an adverse impact against black applicants" (id. at 51).

   The parties further agreed that the determination of whether the
proposed procedure had an "adverse impact" would be "measured by the
'four-fifths rule' set forth in * * * the Uniform Guidelines" (J.A.
52).  Under the "four-fifths rule," the proposed promotion procedure
would be judged to have an adverse impact on blacks if it produced a
selection rate for black applicants that was less than 80% of the
selection rate for white applicants.  See 29 C.F.R. 1607.4(D).  If the
proposed procedure turned out to have such an "adverse impact," the
Department was to come up with an alternative procedure for making
promotions to corporal "in a manner that does not result in adverse
impact for the initial group of promotions or cumulatively" (J.A. 52,
53).  If the proposed procedure proved unsatisfactory and the parties
were unable to agree on a new procedure, the matter was to be
"submitted to the (c)ourt for resolution" (id. at 53).  No further
promotions to corporal were to be made until a satisfactory procedure
was put in place (ibid.).

   In accordance with the consent decree, the Department in October
1981 administered its written corporal's examination to 262
applicants, of whom 60 (or 23%) were black (Pet. App. 14a;  J.A. 119).
 A promotion register was prepared based on the examination results
and the other relevant factors.  See page 6 & note 3, supra.  Of the
60 blacks who took the test, only five were listed in the top half of
the register and the highest-ranked black was number 80 (Pet. App.
14a;  J.A. 119).  Rank-ordered use of the register would thus have
resulted in no blacks being promoted to corporal even if 79 troopers
were promoted (J.A. 120).  In June 1982, the Department advised the
United States that there was a current need for eight to ten
promotions to corporal, and that a total of 16 to 20 corporal
promotions were expected to be made from the 1982 register before the
formulation of a new list (Pet. App. 14a).  The United States objected
to rank-ordered use of the 1981 register, contending that "such use
would result in substantial adverse impact on black applicants," and
suggested that the Department should submit an alternative proposal
for making promotions in conformity with the 1979 and 1981 consent
decrees (id. at 14a-15a).  No such proposal was submitted, and no
promotions were made, during the next nine months.

   4. In April 1983, Paradise moved the district court for an order
enforcing the terms of the two consent decrees (Pet. App. 15a;  J.A.
58).  He urged that the selection procedure for corporals administered
in 1981 had had a demonstrably adverse impact on black applicants
(Pet. App. 15a;  J.A. 60), and he sought an order directing the
Department to comply with the consent decrees by implementing
acceptable promotion procedures, both for the rank of corporal and for
the higher ranks (id. at 58).  He also sought an order directing the
Department immediately "to promote qualified blacks to the corporal
position at a rate that does not result in adverse impact and which is
within the spirit of * * * the parties' consent decrees" (id. at 59).
Specifically, referring to the hiring quota imposed in 1972, Paradise
submitted that "blacks should be promoted to corporal at the same rate
at which they have been hired, 1 for 1, until such time as the
defendants implement a valid promotional procedure" (id. at 62).
Paradise argued that a promotion quota would "encourage defendants to
develop a valid promotional procedure as soon as possible" and would
"help to alleviate the gross underrepresentation of blacks in the
supervisory ranks of the Department" (ibid.).

   The United States agreed that the consent decrees should be
enforced by ordering some promotions, stating that the Department's
failure to come up with a promotion plan in conformance with the
consent decress "suggests that a pattern of discrimination against
blacks in the Department * * * may be continuing" (Pet. App. 15a-16a &
n.10).  The United States opposed, however, the imposition of a
one-black-for-one-white promotion quota as a method of enforcing the
consent decrees (ibid.).  Four white troopers moved to intervene on
behalf of a class (intervenors) composed of the top-ranked white
applicants on the 1981 promotion register (J.A. 81-87).  They urged
principally that the 1981 corporal's exam had been administered "in a
racially neutral and nondiscriminatory manner" and that its results
should be effectuated (id. at 107).

   In an order entered October 28, 1983, the district court agreed
with the United States and Paradise that the 1981 promotion procedure
was unacceptable under the consent decrees because it had an "adverse
impact" on black applicants.  Paradise v. Prescott, 580 F. Supp. 171
(M.D. Ala.) (reprinted at J.A. 117-124).  The court noted that the
Department "need(ed) additional corporals and * * * need(ed) at least
15 of them as soon as possible" (J.A. 119).  Applying the "four-fifths
rule" of the Uniform Guidelines, the court observed that, if the 1981
promotion register were used in rank order, "the success rate for
white persons would be 15/202 or 7.4%, and the success rate for black
persons would be 0/60 or 0%" (J.A. 120).  Pointing out that "(z)ero
is, of course, less than four-fifths of 7.4," the court suggested
that, "(s)hort of outright exclusion based on race, it is hard to
conceive of a selection procedure which would have a greater
discriminatory impact" (J.A. 129-121).  /4/ The court ordered the
Department to submit, by November 10, 1983, "a plan to promote to
corporal, from qualified candidates, at least 15 persons in a manner
that will not have an adverse racial impact" (J.A. 123).

   On November 10, 1983, the Department duly filed with the court a
proposal to promote 15 troopers to the rank of corporal, of whom 11
(or 73%) would be white and four (or 27%) would be black (J.A.
125-126).  In support of this proposal, the Department stated that it
had "an immediate need for at least fifteen * * * Corporals," that
"this percentage of blacks to whites reflects the percentage of blacks
to whites who took the Corporal's examination," and this proposal
would meet "the requirements of the four-fifths rule of the Uniform
Guidelines concerning adverse impact" (ibid.).  The Department pledged
to cooperate with the Alabama Department of Personnel to develop a
permanent procedure for promotion to corporal "as soon as possible"
(id. at 126).  The United States did not oppose the Department's
proposal, but Paradise continued to insist upon a one-for-one
promotion quota (Pet. App. 18a-19a).

   5. On December 15, 1983, the district court granted Paradise's
motion to enforce the consent decrees (J.A. 128-129).  As Paradise had
requested, the court imposed a quota requiring the Department "to
promote from this day forward, for each white trooper promoted to a
higher rank, one black trooper to the same rank, if there is a black
trooper objectively qualified to be promoted to the rank" (id. at
128).  The court ordered this promotion quota to "remain in effect as
to each trooper rank above the entry-level rank until either
approximately 25% of the rank is black or the (Department has)
developed and implemented a promotion plan for the rank which meets
the prior orders and decrees of the court and all other relevant legal
requirements" (ibid.).  The court found that the quota was necessary
to cure "racial imbalances in the upper ranks" (id. at 135) and that
it was "reasonable" under United Steelworkers v. Weber, 443 U.S. 193
(1979).  See J.A. 135-136.  The court said that the Department "ha(d)
the prerogative to end the promotional quotas at any time, simply by
developing * * * promotion procedures" in compliance with the consent
decrees, so that the quota might prove "to be a one-time occurrence"
(J.A. 136).  Finally, the court ordered the Department to submit
within 35 days "a schedule for the development of promotion procedures
for all ranks above the entry-level position" (J.A. 129).  The
Department, the intervenors, and the United States appealed from the
December 13, 1983, order.

   In February 1984, eight blacks and eight whites were were promoted
to corporal under the quota (Pet. App. 22a).  The Department filed its
schedule with the court as required, pledging to develop an acceptable
procedure for promotion to corporal within five months (Pet. App. 45a;
 J.A. 151).  The Department duly submitted its proposal on June 19,
1984, and moved the district court to approve it (Pet. App. 45a-47a;
J.A. 144-145).  The United States expressed the view that the proposed
procedure would not have an "adverse impact" upon black applicants and
hence was acceptable under the consent decrees (Pet. App. 48a;  J.A.
159-161).  The other parties, except for the intervenors, agreed with
that assessment (see Pet. App. 48a;  J.A. 159-161).  The other
parties, except for the intervenors, agreed with that assessment (see
Pet. App. 48a;  J.A. 146-150, 157).

   On July 27, 1984, the district court ruled that the Department
could promote up to 13 troopers to corporal in accordance with the
newly proposed selection procedure (J.A. 163-164).  The one-for-one
promotion quota was temporarily suspended for that purpose (id. at
164).  The court retained jurisdiction to decide whether future uses
of the selection procedure for corporals were similarly without an
"adverse impact" on blacks, and it ordered the parties to proceed with
discovery to determine whether the procedure could be validated as
job-related under the Uniform Guidelines (ibid.).  After the
intervenors' motion for a stay was denied (id. at 167-175), 13
troopers were promoted to corporal, of whom three were black and ten
were white.  See Pet. App. 47a;  J.A. 160.  The intervenors alone
appealed from the July 27, 1984, order (Pet. App. 48a;  J.A. 165).
/5/

   6. The court of appeals consolidated the various appeals from the
district court's December 15, 1983, order and the intervenors' appeal
from the July 27, 1984, order and affirmed the district court in all
respects (Pet. App. 1a-54a).  The court first rejected the appellants'
contention that the district court, in ordering the
one-black-for-one-white promotion quota, had "improperly modified,
rather than enforced, the 1979 and 1981 (Consent) Decrees" (Pet. App.
23a).  The court interpreted the consent decrees to bar an "adverse
impact" only against blacks, and not against whites, seeking promotion
(id. at 25a-26a).  The court accordingly held that "the district
court, faced as it was with the Department's representation that
promotions needed to be made immediately, did not * * * exceed the
relief authorized by those decrees when it granted plaintiffs' motion
to enforce" (id. at 27a (footnote omitted)).

   The court of appeals then held that the one-for-one promotion quota
violated neither Title VII (Pet. App. 28a-35a), nor the Equal
Protection Clause (id. at 35a-42a).  On the constitutional issue, the
court upheld the quota because of "the long history of discrimination
in the Department" (id. at 39a) and because "the relief now at issue
was designed to remedy the present effects of past discrimination"
(id. at 40a).  The court concluded that the promotion quota was
"substantially related to the objective of eradicating (those)
effects" and that it extended no further than necessary to remedy the
"longstanding racial imbalances in the upper ranks of the Department"
(id. at 41a).  The court observed that the promotion quota was "a
temporary measure" which would "cease to exist when * * * the
Department succeeds in doing what it promised to do years ago"
(ibid.).  The court noted that the quota did not require the promotion
of any unqualified black trooper, did not absolutely bar qualified
white troopers "from advancement through the ranks," and did not
"require the discharge or demotion of a white trooper or the
replacement of a white trooper with a black trooper" (ibid.).  The
opinion contains no discussion as to whether there existed any less
intrusive or more narrowly tailored means of enforcing the
Department's compliance with its obligations under the consent
decrees.  /6/

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   Since 1972 the United States has stood with the plaintiffs and the
courts below in their efforts to end discrimination by the Alabama
Department of Public Safety.  We have urged and supported remedial
efforts in respect to promotion as well as hiring.  In our petition
for certiorari we objected to only one of the district court's
remedial provisions:  the 1983 imposition of a one-for-one promotion
quota for certain ranks, to remain in effect until the Department
comes forward with a proper long-term procedure that does not have an
adverse impact on black aspirants for promotion to each of these
grades.  That promotions be made according to the consent decrees and
that promotions should thus display approximate parity with the
applicant pool are propositions that are not in issue in this case.

   In seeking certiorari, the principal purpose of the United States
was to illuminate further the proposition we drew from Firefighters
Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984), that preferential
relief under Title VII was available only to the actual victims of
discrimination, a proposition we asserted had constitutional
dimensions as well.  In Sheet Metal Workers v. EEOC, No. 84-1656 (July
2, 1986), the Court stated last Term that race-conscious relief may be
available in certain instances of egregious discrimination.  We take
that holding as a premise for our argument here, which addresses only
the narrow question -- the only question on which the Court granted
review -- whether the one-for-one promotion quota imposed in addition
to and on top of the other relief (relief requiring a hiring quota and
a proportionate promotion remedy) violates the Constitution.  We
believe the one-for-one promotion quota to be plainly unconstitutional
in the light of the Court's recent pronouncements in Sheet Metal
Workers and Wygant v. Jackson Board of Education, No. 84-1340 (May 19,
1986).

   First, particularly in light of the specific context in which it
was superimposed, we believe this quota requires discrimination
against innocent white state employees for no independently
justifiable remedial purpose.  The district court appears to have
intended the one-for-one quota in part as an in terrorem device to
compel the Department to adopt proper promotion procedures.  In our
view this puts the wrong gun to the wrong head, holding innocent white
state troopers hostage for the purpose of ending the Department's
alleged recalcitrance.  The courts below appear also to have embraced
a purpose to attain numerical "balance" of races at each level of the
police force.  This we believe goes well beyond a proper remedial
purpose and cannot be justified under the Court's decisions in Sheet
Metal Workers, Wygant, and Regents of the University of California v.
Bakke, 438 U.S. 265 (1978).

   Second, even if either of these purposes were properly viewed as
part of the remedy for the Department's clear and intentional pre-1975
hiring discrimination, nonetheless the one-for-one promotion quota
imposes unnecessarily heavy burdens on a small number of identified
white competitors for promotions, and is therefore unconstitutional
for the same reason the layoffs in Wygant were found to be
unconstitutional.  Particularly in the context of civil service public
employment, the prospects of regular promotion and an orderly
progression through the ranks are an important aspect of a new
entrant's career expectations.  To diminish those prospects for a
defined group of individual white entrants as drastically as this
one-for-one quota would do is to blight those expectations -- and on
racial grounds -- as surely as did the denial of job security pursuant
to race-based lay-off quotas in Wygant and Stotts.

                               ARGUMENT

 THE ONE-BLACK-FOR-ONE-WHITE PROMOTION QUOTA ORDERED BY THE DISTRICT
COURT IS NOT NARROWLY TAILORED TO ACHIEVE A COMPELLING GOVERNMENTAL
INTEREST, AND IT IS THEREFORE UNCONSTITUTIONAL UNDER THE EQUAL
PROTECTION GUARANTEES OF THE FIFTH AND FOURTEENTH AMENDMENTS

 A. A Racial Classification Must Be Narrowly Tailored To Achieve A
Compelling Governmental Interest In Order To Satisfy Strict
Constitutional Scrutiny

   1. The proper standard by which to evaluate the constitutionality
of race-conscious governmental action under the Equal Protection
Clause is now clear.  "(R)acial classifications of any sort must be
subjected to 'strict scrutiny.'" Wygant, slip op. 1-2 (O'Connor, J.,
concurring in part and concurring in the judgment).  Strict scrutiny
applies regardless whether the purpose of the discrimination is
characterized as malevolent or benign, and regardless of the race of
its victims.  E.g., Bakke, 438 U.S. at 294 (opinion of Powell, J.);
Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).  As the plurality stated
in Wygant, "the level of scrutiny does not change merely because the
challenged classification operates against a group that historically
has not been subjected to governmental discrimination" (slip op. 5).
Any less stringent analysis, such as a "test of 'reasonableness(,)' *
* * has no support in the decisions of this Court" (id. at 10-11).
/7/

   Under strict scrutiny, "'(a)ny preference based on racial or ethnic
criteria must necessarily receive a most searching examination to make
sure that it does not conflict with constitutional guarantees.'"
Wygant, slip op. 5 (plurality opinion), quoting Fullilove v.
Klutznick, 448 U.S. 448, 491 (1980) (opinion of Burger, C.J.).  Thus,
"to pass constitutional muster, (racial classifications) must be
justified by a compelling governmental interest and must be 'necessary
. . . to the accomplishment' of their legitimate purpose." Palmore v.
Sidoti, 466 U.S. 429, 432-433 (1984), quoting McLaughlin v. Florida,
379 U.S. 184, 196 (1964).  In order to be deemed "necessary to the
accomplishment" of their purpose, moreover, laws employing racial or
other inherently suspect classifications "must be drawn with precision
* * * and must be tailored to serve their legitimate objectives." Dunn
v. Blumstein, 405 U.S. 330, 343 (1972) (original quotation marks
omitted).  If there are other reasonable ways to achieve those
objectives, the government "may not choose the way of greater
interference." Ibid.  See, e.g., Kramer v. Union Free School District,
395 U.S. 621, 627 (1969);  Shapiro v. Thompson, 394 U.S. 618 (1969).

   Strict scrutiny thus consists of "two prongs." Wygant, slip op. 5
(plurality opinion).  "First, any racial classification must be
justified by a compelling governmental interest.  * * * Second, the
means chosen by the (government) to effectuate its purpose must be
narrowly tailored to the achievement of that goal." Ibid. (original
quotation marks omitted).  In other words, unless both the end and the
means are permissible, a racial classification cannot stand.

   2. It is of course clear beyond peradventure that the government
has a "compelling interest" in remedying past discrimination practiced
by a public employer.  The standards for determining whether a
particular remedial measure is "narrowly tailored" to that end were
elaborated last Term in Wygant.  In holding racially based layoffs an
impermissible remedy, the plurality stated that the term "narrowly
tailored" in one sense "require(s) consideration whether lawful
alternative and less restrictive means could have been used" (slip op.
11 & n.6).  "Or, as Professor Ely has noted, the classification at
issue must 'fit' with greater precision than any alternative means"
(ibid., quoting Ely, The Constitutionality of Reverse Racial
Discrimination, 41 U. Chi. L. Rev. 723, 727 n.26 (1974)).  "'Racial
classifications are simply too pernicious to permit any but the most
exact connection between justification and classification'" (Wygant,
slip op. 11-12 (plurality opinion), quoting Fullilove, 448 U.S. at 537
(Stevens, J., dissenting)).  /8/

 B. The Promotion Quota Ordered By The District Court Is Not Narrowly
Tailored To Remedy The Department's Past Discrimination

   As we stated, there can be no doubt that the government has a
"compelling interest" in remedying racial discrimination practiced by
a public employer.  It is that interest which from the outset of this
protracted litigation has been urged to justify the various
race-conscious remedial measures ordered by the courts since 1972.
/9/ The United States has consistently maintained and the courts below
have correctly concluded that the hiring discrimination originally
practices by the Department was "unquestionably a violation of the
Fourteenth Amendment." NAACP v. Allen, 340 F. Supp. at 705.  And as
the courts below found, the Department's hiring discrimination for
almost four decades had excluded blacks from any jobs at all,
including jobs in the upper ranks (Pet. App. 10a-12a;  J.A. 63).  See
also Paradise v. Shoemaker, 470 F. Supp. at 442.  Given the pervasive
past discrimination practiced by the Department, we have no hesitation
in agreeing that the first prong of this Court's "strict scrutiny"
test is met here.  /10/

   Although we agree that there exists a "compelling governmental
interest" in remedying the Department's past discrimination, we cannot
agree that the one-for-one promotion quota sanctioned by the lower
courts is a "narrowly tailored" means of achieving that end.  As the
history of this litigation illustrates, the district court has already
imposed a series of race-conscious measures designed to cure the
effects of the Department's prior discrimination in hiring.  The
United States as plaintiff is a party to the 1979 and 1981 consent
decrees, which are the "law of the case," and we agreed with Paradise
that those decrees should be enforced and that promotions should be
ordered, consistently with the consent decrees, in a manner that would
have "little or no adverse impact upon blacks seeking promotion to
corporal." (Pet. App. 15a-16a & n.10;  J.A. 40).  We parted company
with Paradise below, and we part company with him here, on the
question whether a one-black-for-one-white promotion quota is "a
legally appropriate means" of accomplishing those objectives.  Wygant,
slip op. 9 (plurality opinion).  In approving that quota over our
objections, the courts below did not consider "whether lawful
alternative and less restrictive means could have been used" to
achieve the desired ends.  Wygant, slip op. 11 n.6 (plurality
opinion).  Indeed, besides failing to ascertain whether the promotion
quota is "narrowly tailored" within the meaning of this Court's
decisions, neither the district court /11/ nor the court of appeals
/12/ conducted "strict scrutiny" at all.

   1. The quota ordered by the district court appears to have been
intended in part as an in terrorem enforcement device, designed to
induce the Department's compliance with its obligation under the
consent decrees to develop and implement a permanent promotion
procedure that would have "little or no adverse impact upon blacks"
(J.A. 40).  The quota was first proposed by Paradise in a "motion to
enforce the terms of the * * * consent decree(s)" (J.A. 58, 62).  The
quota was defended by Paradise on the ground that it would "encourage
defendants to develop * * * as soon as possible" a promotion procedure
consistent with the consent decrees (J.A. 62).  Paradise conceded that
the quota would "perhaps not be necessary" if the defendants had
timely implemented an acceptable promotion plan, asserting that it was
"defendants' perennial non-compliance that necessitates this action"
(J.A. 62 n.3).  The quota was adopted by the district court in a
ruling that granted "the plaintiffs' * * * motion to enforce the terms
of the * * * consent decree(s)" (J.A. 128).  The in terrorem
enforcement purpose of the quota is evidenced by the nature of the
relief granted, for the quota was to remain in place until "the
defendants have developed a promotion plan * * * which meets the prior
orders and decrees of the court" (ibid.) and was to be abandoned when
the Department came into compliance.  This in terrorem threat,
moreover, would inevitably continue for many years, since the
Department would be able to demonstrate that a promotion procedure for
a particular rank had no "adverse impact" on blacks only when a
sufficient number of blacks, consistently with the time-in-grade
rules, had reached the next lower rank and thus qualified for
promotion.  As an enforcement device, therefore, the one-for-one quota
was designed to operate against the Department for a long time to
come.

   Insofar as the promotion quota was intended to coerce the
Department's compliance with its obligation to formulate acceptable
promotion procedures, or to punish it for its alleged delay in doing
so, /13/ that race-conscious relief was plainly not "narrowly
tailored" to achieve its end.  A racial classification is "narrowly
drawn" only if it "fit(s) with greater precision than any alternative
means" and if no "nonracial approach or * * * more narrowly tailored
racial classification could promote the (governmental) interest about
as well." Wygant, slip op. 11 n.6 (plurality opinion) (original
quotation marks omitted).  But plentiful alternatives were in fact
available to the district court.  The court could have imposed
stringent contempt sanctions, including heavy fines and attorneys'
fees, to remain in effect until the Department produced an acceptable
long-term promotion plan.  See, e.g., Sheet Metal Workers, slip op.
17-19.  The court could have considered appointing a trustee or
administrator to supervise the Department's progress, or even to make
the promotions himself by the proper standard.  See id. at 56-57.  And
if the court found that individual blacks would have been promoted
earlier but for the Department's alleged procrastination, and if the
court determined that specific relief was needed to remedy that fault,
competitive seniority could have been awarded.  See Wygant, slip op.
15 n.12 (opinion of Powell, J.);  Teamsters v. United States, 431 U.S.
324, 365-371 (1977).

   As an injunction that aimed to punish or coerce the Department, in
short, the quota ordered by the district court misses the mark by a
rather wide margin.  "(I)t is not the enjoined party," as the Seventh
Circuit has observed, "but rather the persons on the eligibility
roster passed over as a result of the quota who bear the real burden"
of such an order.  United States v. City of Chicago, 663 F.2d 1354,
1361 (1981) (en banc).  Nonminority troopers on the Department's
eligibility roster had strong and legitimate expectations that they
would be considered for promotion based on their merit and seniority,
and, as we explain in greater detail below (pages 38-42, infra), the
burden that the quota imposed upon them was considerable.  As an in
terrorem enforcement device, therefore, the promotion quota was the
wrong gun, and it was aimed at the wrong head.

   2.a. In support of the challenged promotion quota, Paradise
advanced, and the district court adopted, a second and distinct
justification for that race-conscious relief.  In his motion to
enforce the consent decrees, Paradise emphasized that no promotions to
corporal had been made in several years and that the Department
urgently needed new promotions to that rank (J.A. 61 & n.1).  He
argued that the promotion procedure proposed by the Department in 1981
had proven to have an "adverse impact" on blacks (id. at 60-61), with
the result that there currently existed no promotion mechanism that
complied with the consent decrees (id. at 63-64).  Paradise
accordingly requested that the Department be ordered, not only to
discharge its obligation to develop and implement the requisite
long-term promotional procedure, but also, on a more immediate basis,
"to promote qualified blacks to the corporal position at a rate that
does not result in adverse impact and which is within the spirit of *
* * the parties' consent decrees" (id. at 59, 64).  Paradise submitted
that, in view of the Department's delay in developing a long-term
solution, a one-for-one promotion quota was a "reasonable and
necessary" means of making promotions (id. at 62 & n.3).  The consent
decrees, in Paradise's words, required the court to decide "what
percentage of the forthcoming * * * promotions should be black" (id.
at 61).

   In response to Paradise's motion, the district court recited the
parties' understanding that the Department "need(ed) additional
corporals and * * * need(ed) at least 15 of them as soon as possible"
(J.A. 119).  The court refused to delay the impending promotions until
an acceptable long-term plan had been implemented by the defendants.
The court accordingly ordered the Department, within two weeks, to
"file with the court a plan to promote to corporal, from qualified
candidates, at least 15 persons in a manner that will not have an
adverse racial impact" (id. at 123).  The Department responded with a
proposal to promote four blacks and eleven whites, a proposal to which
the United States as plaintiff expressed no objection.  See id. at
125-126;  Pet. App. 18a-19a.

   Confronted with the two proposals that had been placed on the table
-- the one-for-one quota proposed by Paradise and the four-and-eleven
plan proposed by the Department -- the district court clearly erred in
opting for the former.  If one assumes arguendo that some form of
race-conscious relief was needed to promote 15 corporals consistently
with the consent decrees -- decrees that required promotions to be
made in a way that would have "little or no adverse impact on blacks"
(J.A. 40) -- the Constitution mandated that the district court choose
a means that was "narrowly tailored" to this end.  Wygant, slip op.
11, 15 (opinion of Powell, J.).  But the Department's proposal, as
compared with the extreme quota upon which Paradise insisted, plainly
represented the "less intrusive means," id. at 15, by which to make
the needed promotions within the spirit of the consent decrees (J.A.
59).  As the Department explained below, its proposal met "the
requirements of the four-fifths rule of the Uniform Guidelines
concerning adverse impact," the standard that the consent decrees
embodied (J.A. 40, 125-126).  And the Department's proposal
"reflect(ed) the percentage of blacks to whites who took the
Corporal's examination" (J.A. 126), and it was thus in harmony with
the remedial objective of proportional promotion that, under the
consent decrees, the procedure ultimately adopted was required to
implement.

   b. It cannot be argued, moreover, that the one-for-one promotion
quota was justifiable independently of the consent decrees in order to
remedy some Title VII violation.  No such violation was found or even
suggested by the district court as to promotions at this stage of the
proceedings (i.e., after 1979).  Although the district court did find
that the promotion procedure for corporals proposed by the Department
in 1981 had an "adverse impact" within the meaning of the consent
decrees, such a finding would clearly be insufficient, absent a
finding that those procedures failed to predict job performance, to
establish a "disparate impact" Title VII violation.  Indeed, the
district court declined to hear evidence on the question of
job-relatedness because it considered that question to be irrelevant
under the consent decrees.  /14/ And even if there had been a
"disparate impact" Title VII violation, the one-for-one quota ordered
by the district court would have been an unjustifiable remedy.  First,
quota relief of any sort is generally unjustified for a mere
"disparate impact" violation, since such a fault does not represent
either a violation of the Constitution or the kind of flagrant and
egregious discrimination that the Court in Sheet Metal Workers
strongly suggested was necessary to justify quota relief.  See, e.g.,
slip op. 50.  Secondly, even if numerical race-conscious relief were
appropriate for a "disparate impact" violation, a one-for-one quota
could not possibly be justified here because it greatly exceeded the
proportion of minorities that had applied for, or were eligible for,
promotion to the rank of corporal.  Thus, even if the district court
had found a Title VII violation, which it did not do, the Department's
proposal to promote four blacks and eleven whites represented the
extreme outer limit of any appropriate remedy.

   3. In sum, to the extent that the district court in awarding relief
to Paradise intended to enforce the Department's compliance with the
consent decrees, the court was clearly pursuing a legitimate
objective.  With respect to this objective, however, the court passed
over or failed to consider reasonable, efficacious, and less intrusive
means of accomplishing its desired ends.  The one-black-for-one-white
quota that it adopted thus cannot be said to have been "narrowly
tailored" under the second prong of the "strict scrutiny" test, and
the quota is for that reason violative of the Constitution's equal
protection guarantees.  /15/

 C. Promotion Quotas Like That Ordered By The District Court Cannot Be
Justified As "Catch-Up" Measures Designed To Accelerate The
Achievement Of Racial Proportionality Or Balance

   The courts below seem to have been pursuing a third purpose as well
in sanctioning the challenged promotion quota -- to redress the
"longstanding racial imbalances in the upper ranks of the Department"
(Pet. App. 41a, 62a).  Those courts appear to have posited the
objective of expediting the promotion of blacks in order to attain
more rapidly a desired "balance" of races at each level of the trooper
force.  The one-for-one quota may thus have been designed as a
"catch-up" quota that aimed, not simply to remedy the effects of the
Department's past discrimination, but to help bring about the "racial
mix" that theoretically would have existed in the upper ranks of the
Department if it had never discriminated in hiring at all.  But
discrimination against innocent white employees for the purpose of
expediting attainment of a "balance" of the races in our view goes
beyond a proper remedial purpose and is inconsistent with this Court's
decisions in Wygant and Bakke.

   1. We start with the general proposition, which we believe to be
noncontroversial, that a mere desire to obtain some preferred degree
of racial or gender balance is unacceptable under the Constitution.
As Justice Powell concluded in Bakke, "Preferring members of any one
group for no other reason than race or ethnic origin is discrimination
for its own sake.  This the Constitution forbids." 438 U.S. at 307.

   To be sure, eliminating the "effects" of prior discrimination is a
permissible remedial purpose, but the elimination of such effects
cannot be equated with the attainment of racial balance.  The
plurality opinion in Sheet Metal Workers stated that "affirmative
action may be necessary in order effectively to enforce Title VII"
because such measures are required either to remedy violations by a
defendant who "has engaged in persistent or egregious discrimination"
or "to dissipate the lingering effects of pervasive discrimination"
(slip op. 50).  At the same time, the plurality emphasized that
"race-conscious affirmative measures (should) not be invoked simply to
create a racially balanced work force" (ibid.; see also id. at 52).
/16/ As Justice Powell said in his concurring opinion, "(A) court may
not choose a remedy for the purpose of attaining a particular racial
balance;  rather, remedies properly are confined to the elimination of
proven discrimination.  A goal is a means, useful in limited
circumstances, to assist a court in determining whether discrimination
has been eradicated." Slip op. 5 (Powell, J., concurring).  See also
id. at 7 (O'Connor, J., concurring in part and dissenting in part)
("The imposition of a quota is therefore not truly remedial, but
rather amounts to a requirement of racial balance";  a "goal must be
intended to serve merely as a benchmark for measuring compliance with
Title VII and eliminating the lingering effects of past
discrimination").

   The plurality opinion in Sheet Metal Workers thus establishes that
there is a clear distinction between the effects of past
discrimination and racial imbalance, and that, even as to a flagrant
discriminator, only the former may be the object of remedial efforts.
The effects of past discrimination that may be addressed by remedial
orders include, for instance, those "informal mechanisms (that)
obstruct equal employment opportunities" even after "the employer or
union formally ceases to engage in discrimination." Slip op. 24.
Specifically, the Court identified as "lingering effects" barring
equal opportunity such factors as a reputation for discrimination that
discourages minority applicants (id. at 24, 51, 52) and an "old-boy"
network that restricts access and training to those whites who have
"informal contacts with union members" (id. at 52).  But the only
permissible purpose of class-based affirmative measures is to
"dismantle prior patterns of employment discrimination and to prevent
discrimination in the future" (id. at 48).  See also id. at 49 n.46.

   In upholding the membership goal at issue in Sheet Metal Workers,
the plurality also pointed out (slip op. 52) that the flexible goal
involved there was "not being used simply to achieve and maintain
racial balance, but rather as a benchmark" to measure efforts to
remedy past discrimination.  But the one-for-one quota sanctioned by
the courts below could not possibly be rationalized as a "benchmark"
of this sort.  There is generally no reason to assume that a
nondiscriminatory employer would select blacks (or whites) in greater
numbers than their availability, and hence any race-conscious
numerical relief designed to serve a prophylactic or "benchmark"
function must, at a minimum, necessarily be tied to the percentage of
minorities in the relevant labor market.  See Sheet Metal Workers,
slip op. 23 (plurality opinion);  id. at 4 (Powell, J., concurring in
part and concurring in the judgment);  id. at 7 (O'Connor, J.,
concurring in part and dissenting in part).  Here, of course, the
one-for-one quota greatly exceeds the percentage of blacks in the
relevant labor market -- viz., entry-level troopers eligible for
promotion -- and thus could not be justified as a flexible
"benchmark."

   2. Even in the school-desegregation context, this Court's decisions
demonstrate that a government which has adopted truly race-neutral
admissions policies need not assure a particular "racial mix" in order
to cure its prior segregation.  Those cases establish that the
Constitution does not require, either as a matter of substantive right
(e.g., Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 433-434
(1976);  Spencer v. Kugler, 404 U.S. 1027 (1972)), or as a matter of
remedy (Milliken v. Bradley (Milliken I), 418 U.S. 717, 740-741
(1974);  Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1,
22-25, 31-32 (1971)), any particular degree of racial balance in a
state's activities.  As the Court wrote in Swann, "(t)he
constitutional command to desegregate schools does not mean that every
school in every community must always reflect the racial composition
of the school system as a whole." 402 U.S. at 24.  Thus, even in the
school cases -- where insisting on racial balance would not
disadvantage any innocent nonminorities, since all school children
will receive a public education -- racial balance is not required.  A
fortiori here, the Constitution cannot require racial balance at the
severe expense of innocent nonminority persons.

   The Constitution of course requires that the government refrain
from any action intentionally designed to exclude or segregate persons
on the basis of race.  Dayton Bd. of Educ. v. Brinkman (Dayton I), 433
U.S. 406, 413 (1977);  Washington v. Davis, 426 U.S. 229, 239 (1976).
And the Constitution requires that where, as here, the government has
discriminated on the basis of race, it undertake the remedial efforts
necessary to eliminate the constitutional violation and the conditions
that flow therefrom.  Milliken v. Bradley (Milliken II), 433 U.S. 267,
282 (1977).  See Dayton I, 433 U.S. at 417, 420.  But since the
condition that offends the Constitution is racial discrimination
(subtle or otherwise), not the lack of racial balance, the prior
constitutional violation is remedied by establishing a system that
"exclude(s) no (person) of a racial minority * * *, directly or
indirectly, on account of race." Swann, 402 U.S. at 23.  The
Constitution thus does not require that the government, in seeking to
eradicate the effects of its past discrimination, employ "catch-up"
quotas or similar race-conscious steps to accelerate progress toward
some preconceived notion of a desirable "racial balance."

   In Bazemore v. Friday, No. 85-93 (July 1, 1986), this Court applied
similar principles in a context not far removed from the present case.
 There, the Court was required to decide what actions were necessary
to cure a prior discriminatory admissions policy of 4H Clubs operated
by an agency of the State of North Carolina.  It was undisputed that
there remained a substantial racial imbalance among the Clubs, even
though the agency had adopted a nondiscriminatory admissions policy.
Slip op. 1 (White, J., for the Court).  It was equally clear that this
imbalance was traceable, at least in part, to the de jure segregated
period.  The Court nevertheless held that any constitutional or
statutory violation was cured when the agency "ha(d) taken affirmative
action to change its (segregative) policy and * * * establish(ed) what
is concededly a nondiscriminatory admissions system." Id. at 3;  see
also id. at 2.  Although nothing approaching racial balance had been
achieved, the Court concluded that the State had met federal
regulatory requirements "to take 'affirmative action" to overcome the
effects of prior discrimination in its programs." Id. at 3.  As the
Fifth Circuit wrote in an earlier phase of the instant litigation,
"equality of access satisfies the demand of the Constitution." NAACP
v. Allen, 493 F.2d at 621.  The Constitution does not require, and in
our view should not be interpreted to permit, "catch-up" quotas
designed to achieve racial balance.  /17/

 D. The One-For-One Promotion Quota, Whatever Its Purpose,
Unnecessarily And Severely Burdens Innocent Persons, And It Therefore
Fails To Satisfy Strict Scrutiny

   Whatever purpose is offered for the one-for-one promotion quota --
whether as a means of coercing compliance with the consent decrees, as
a method of allocating the 15 promotions immediately needed, or as a
way of attaining racial balance -- this quota was not a "narrowly
tailored" means of achieving the goal.  An extreme one-for-one quota
was not necessary to enable blacks to progress with deliberate speed
into the upper ranks of the Department.  And that quota seriously
disadvantaged identified nonminority individuals because of the color
of their skin.

   1. As we have noted above, the quota challenged here was
superimposed upon a bedrock of earlier race-conscious relief -- the
hiring quota ordered in 1972, and the proportional promotion remedy
set forth in the 1979 and 1981 consent decrees -- which had already
proven, or had the potential to prove, successful in eliminating the
effects of past discrimination.  The hiring quota had produced by 1983
a racially balanced trooper or "entry-level" force, and the results
had begun to manifest themselves in the upper ranks.  The district
court recognized that new black troopers would initially be clustered
in the lower echelons, until they gained sufficient time in grade to
earn promotions.  Paradise v. Shoemaker, 470 F. Supp. at 441.  Of the
ten troopers promoted to corporal after the 1979 consent decree, four
were black.  For the next set of promotions, the Department proposed
to promote four blacks and eleven whites, a proposal that would have
raised the percentage of black corporals from 6% to 9.8%.  See J.A.
62, 133.  The promotion procedures mandated by the consent decrees,
which were in fact implemented shortly after the district court acted,
have brought three additional blacks to the rank of corporal and two
to the rank of sergeant.  See pages 12-13 & note 5, supra.  As this
Court has observed in a somewhat different context, nondiscriminatory
hiring and promotion practices ordinarily "will in time result in a
work force more or less representative of the racial and ethnic
composition of the population in the community from which employees
are hired." Teamsters v. United States, 431 U.S. at 339-340 n.20.
Because the earlier race-conscious relief ordered by the district
court and implemented pursuant to the consent decrees had succeeded in
remedying the Department's past hiring discrimination and had already
made substantial progress in achieving "racial balance," the
one-for-one promotion quota was unnecessary no matter how the quota's
purpose is characterized.

   It is true, of course, that a one-for-one promotion quota may
succeed in integrating the upper levels of a work force more rapidly
than a nondiscriminatory policy embodying equality of access.  But
before seeking to advance "racial balance" in this way, a court must
consider that such quotas manifest racial discrimination in its least
subtle form.  When all promotions are allocated on a racial basis --
particularly when the basis is one black for every white -- promotion
decisions inevitably become suspect in the eyes of some.  If racial
preferences ever stigmatize their beneficiaries -- and various members
of the Court have recognized that they can and do /18/ -- then it is
precisely such "catch-up" quotas that courts should strive to avoid.
Indeed, the risk of stigma will be especially great where it is clear
that the quota's high-ranking beneficiaries have received preferential
treatment in both hiring and promotion.

   2. Besides being unnecessary, and perhaps being counterproductive,
in remedying the effects of past discrimination, the relief sanctioned
below fails "strict scrutiny" because of its exceptional and
unwarranted intrusiveness upon the rights of innocent third parties.
The district court ordered and the court of appeals approved the most
intrusive of all race-conscious remedies -- a rigid numerical quota.
As Alan Bakke was obviously excluded from competing for 16 out of 100
seats in medical school (see 438 U.S. at 315-316 (opinion of Powell,
J.)), application of the quota involved here absolutely excludes white
troopers from competing for one out of every two promotions.  And
while that quota in practice will probably be limited in time and
effect, the principle that such quotas are highly disfavored
nevertheless applies.

   A one-for-one promotion quota does considerable harm to a discrete
group of innocent non-minority individuals.  /19/ To achieve the
social good of ending racial discrimination, "innocent persons may be
called upon to bear some of the burden of the remedy." Wygant, slip
op. 12 (opinion of Powell, J.).  But whether that summons is
constitutionally permissible depends in part upon "the diffuseness of
the burden" to which nonminorities are subjected.  Sheet Metal
Workers, slip op. 6 n.3 (Powell, J., concurring in part and concurring
in the judgment), citing Wygant, slip op. 14-15 (opinion of Powell,
J.).  The loss of one's job, as contrasted with the failure to receive
a job offer to begin with, is an unacceptable result of affirmative
action in virtually all circumstances.  Compare Firefighters Local
Union No. 1784 v. Stotts (layoffs), and Wygant (layoffs), with Sheet
Metal Workers (hiring and training), and Weber (training).  This is in
part because a layoff or discharge works a grievous disruption of
identifiable individuals' previously settled expectations and is in no
sense "diffused" through society as a whole.

   The promotion quota involved here, like the layoff remedies that
the Court has previously addressed, "impose(s) the entire burden of
achieving racial equality on particular individuals, often resulting
in serious disruption of their lives." Wygant, slip op. 14-15 (opinion
of Powell, J.).  Unlike race-conscious hiring relief, a one-for-one
promotion quota casts its onus not on the general public, but on a
finite and often rather small number of identifiable individuals whose
opportunities for advancement are significantly reduced.  Particularly
in public service careers, where long tenure and regular advancement
are more the rule than the exception, an individual who contemplates
or has already invested years in his job has legitimate expectations
transcending those of an applicant for an entry-level position.  /20/
Eligibility for promotion is a major part of the "equity" in seniority
built up by an employee.  See Wygant, slip op. 14 (opinion of Powell,
J.);  Fallon & Weiler, Firefighters v. Stotts:  Conflicting Models of
Racial Justice, 1984 Sup. Ct. Rev. 1, 58, 60 & n.222, 67.  See also
Franks v. Bowman Construction Co., 424 U.S. 747, 787 (1976) (opinion
of Powell, J.) ("consideration for promotion" an element of
competitive seniority);  Hishon v. King & Spaulding, 467 U.S. 69,
76-77 (1984) (record reflected that the possibility of being made a
partner was a major inducement to accepting employment).  The
intrusiveness of a one-for-one promotion quota is particularly marked
where, as in the instant case, it is coupled with a previously
existing hiring quota.  For those troopers hired since 1972 -- and
many current applicants for promotion to corporal can be expected to
fall within that group -- this will be the second time that they have
encountered a racial quota, impeding first their access into, and then
their advancement through, the Department.  /21/

   We do not mean to suggest that an absolute constitutional line
should be drawn between hiring and promotional preferences.  All
race-conscious remedies are constitutionally suspect, and all must
meet the same exacting standards.  See Sheet Metal Workers, slip op. 6
(Poweel, J., concurring in part and concurring in the judgment).  But
a quota that thrusts its entire burden on a few nonminority
individuals, as the one-for-one promotion quota does here, will rarely
qualify as "narrowly tailored" to achieve its goal.  If nonminority
individuals, at each step in their careers, find themselves excluded
from employment opportunities because of the color of their skin,
"affirmative action" will come to resemble for them the systematic and
pervasive discrimination so long and so tragically directed at
generations of blacks.  "The ultimate goal must be to eliminate
entirely from governmental decisionmaking such irrelevant factors as a
human being's race." Fullilove, 448 U.S. at 547 (Stevens, J.,
dissenting).

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WM. BRADFORD REYNOLDS

      Assistant Attorney General

   ALBERT G. LAUBER, JR.

      Deputy Solicitor General

   MICHAEL CARVIN

      Deputy Assistant Attorney General

   ROGER CLEGG

      Assistant to the Solicitor General

   WALTER W. BARNETT

   DAVID K. FLYNN

   CLINT BOLICK

      Attorneys

   AUGUST 1986

   /1/ The Department since 1975 has consistently complied with the
one-for-one hiring quota.  As of April 1983, the overall trooper force
was "approximately 22%-23% black" (J.A. 62).  Since the opinion below
as issued, the percentage of blacks in the overall trooper force has
apparently reached parity (25%).  Accordingly, the defendants recently
filed with the district court a motion requesting rescission of the
hiring quota.  See Defendants' Motion for Relief of Judgment (May 12,
1986).

   /2/ The Uniform Guidelines, currently set forth at 29 C.F.R. 1607,
are a joint pronouncement of the EEOC, the Department of Justice, the
Department of Labor, and the Civil Service Commission.  The Guidelines
"are designed to provide a framework for determining the proper use of
tests and other selection procedures" to ensure nondiscrimination.  29
C.F.R. 1607.1(B).

   /3/ The proposed promotion procedure was composed of four
components, weighted as follows:  written examination (60%), length of
service (10%), supervisory evaluation (20%), and service ratings
(10%).  See J.A. 55-57;  Pet. App. 12a & n.8.

   /4/ The Department and the intervenors contended that rank-ordered
use of the 1981 promotion register would not work an "adverse impact"
under the four-fifths rule, noting the Guidelines' caveat that
"(g)reater differences in selection rate may not constitute adverse
impact * * * where special recruiting or other programs cause the pool
of minority * * * candidates to be atypical" (29 C.F.R. 1607.4(D)).
The Department argued "that the one-to-one hiring ratio for state
troopers is a 'special program' which has resulted in an atypical pool
because black troopers scored lower on a 'hiring test' than did white
troopers" (J.A. 121).  The district court rejected this argument,
agreeing with the United States and Paradise that a hearing was
unnecessary on this question and that the Department's proffered
evidence was "an unacceptable basis (on which) to rest a claim of
atypicality" (ibid.).  The court stated that "(t)he hiring test, to
which the defendants wish to link their promotion procedure, has not
been subjected to an adverse impact determination, nor has it been
validated" (ibid. (footnote omitted)).

   /5/ On August 16, 1984, after the district court had issued its
order respecting promotions to corporal, the Department, pursuant to
the agreed-upon schedule, submitted its proposed procedure for
promotion to sergeant (J.A. 176).  The district court ruled that the
Department could promote up to 13 sergeants pursuant to that
procedure, and it temporarily suspended the one-black-for-one-white
quota for that purpose (Pet. App. 53a-54a n.19;  J.A. 176-177).
Promotions were made to sergeant (as they were previously made to
corporal) from a "best qualified" list, on which two of thirteen
candidates for sergeant were black.  The one-for-one promotion quota
has thus been applied in actual practice only once, and the question
of the quota's constitutionality has limited retrospective importance
since its invalidation could not lead to demotion of the eight blacks
promoted under it.  See Firefighters Local Union No. 1784 v. Stotts,
467 U.S. 561, 579 n.11 (1984).  As we noted in our petition (at 7
n.3), however, the case is far from moot, because imposing the quota
has continuing prospective effects.  Although the quota has been
temporarily suspended for promotions to corporal and sergeant, it
could apply again if those selection procedures in the future produce
an "adverse impact" on blacks or if they cannot be validated under the
Guidelines.  And while the quota does not now apply to promotions to
ranks above sergeant because of the current absence of objectively
qualified black applicants for such positions (Pet. App. 53a-54a
n.19), the quota will eventually apply to such promotions unless the
Department develops acceptable selection procedures for those ranks.
We discuss the continuing effects of the quota at page 24, infra.

   /6/ The court of appeals also rejected (Pet. App. 45a-53a) the
intervenors' challenge to the district court's July 27, 1984, order
permitting the proportional promotion of three black and ten white
corporals.  See id. at 47a;  J.A. 160.  The intervenors have not
petitioned for review of that holding, and hence no question
concerning it is presented here.  The propriety of the subsequently
ordered promotions to sergeant (see page 13 note 5, supra) is likewise
not before this Court.

   /7/ Justice White concurred separately in Wygant and thus did not
join the opinion of the four Justices who explicitly stated that all
racial classifications are subject to "strict scrutiny." As the
plurality in Wygant noted, however, Justice White had previously
joined that portion of Justice Powell's opinion in Bakke which stated
that discrimination against nonminorities is to be assessed under this
standard.  See Wygant, slip op. 4, quoting Bakke, 438 U.S. at 291
(opinion of Powell, J., joined by White, J.) ("Racial and ethnic
distinctions of any sort are inherently suspect and thus call for the
most exacting judicial examination.").  Thus, at least five Justices
have subscribed to this position.  See also Fullilove v. Klutznick,
448 U.S. 448, 551 (1980) (Stevens, J., dissenting).  Three members of
the Court have recently expressed the view that a somewhat less
rigorous standard is appropriate where a racial classification
discriminates against white persons.  See, e.g., Wygant, slip op. 7
(Marshall, J., joined by Brennan and Blackmun, JJ., dissenting).
These Justices nevertheless have required a "'strict and searching' *
* * inquiry" in such instances.  See id. at 7 (Marshall, J.,
dissenting).  See also Wygant, slip op. 4 (Stevens, J., dissenting)
(distinguishing between inclusionary and exclusionary measures).

   /8/ The standards of "strict scrutiny" apply to the instant case
even though the court of appeals ruled that the one-for-one promotion
quota was designed to enforce the 1979 and 1981 consent decrees (Pet.
App. 22a-27a) and that "those decrees * * * fully authorized the
promotion quota" (id. at 40a).  Although this Court held in
Firefighters v. Cleveland, No. 84-1999 (July 2, 1986), that parties
may voluntarily enter into a consent decree that exceeds the
limitations of judicially ordered remedies provided by Section 706(g)
of Title VII, 42 U.S.C. 2000e-5(g), the Court emphasized that
"approval of a consent decree between some of the parties * * * cannot
dispose of the valid claims of nonconsenting intervenors."
Firefighters, slip op. 26.  As Justice O'Connor there stated,
"nonminority employees * * * remain free to challenge the
race-conscious measures * * * as violative of their rights under * * *
the Fourteenth Amendment." Firefighters, slip op. 1 (O'Connor, J.,
concurring).  And even if nonminority employees had not been present
as intervenors in the instant case, the Court "should not approve a
consent decree that on its face provides for racially preferential
treatment that would clearly violate * * * the Fourteenth Amendment"
(ibid.).  In any event, the challenge here is not to the consent
decrees per se, but to the district court's imposition of a
particularly rigid and burdensome racially based promotion quota as a
method of enforcing those decrees.

   /9/ Those prior race-conscious measures include the
one-black-for-one-white hiring quota implemented in 1972 and the
proportional promotion procedure required to be implemented under the
1979 and 1981 consent decrees.  The original hiring quota has long
since become "law of the case" (Paradise v. Shoemaker, 470 F. Supp. at
441), and the court of appeals below correctly held that "the validity
of the 1979 and 1981 (consent) Decrees (was) not properly before (it)"
(Pet. App. 49a n.18).  There is thus no occasion for the Court to
address the propriety of those earlier remedial measures.

   /10/ As we shall explain more fully below (pages 30-35, infra), the
district court and the court of appeals, in sanctioning the
one-for-one promotion quota, also seem to have been pursuing the
different and additional objective of attaining some numerical
proportion or "racial balance" in the Department's upper ranks.  To
the extent that the courts sought to justify the challenged quota on
that ground, rather than on the ground of remedying the Department's
past discrimination in hiring, those courts not only failed to
identify a "compelling governmental interest," but relied upon an
objective that we believe to be constitutionally impermissible.

   /11/ See Pet. App. 63a-64a (finding the promotion quota
"reasonable" under United Steelworkers v. Weber, supra).

   /12/ See Pet. App. 35a-42a & n.15 (employing a variety of tests,
none strict scrutiny, including whether "the measures employed are
reasonable" and whether they are "substantially related" to the
objective of eradicating the present effects of past discrimination).

   /13/ Although Paradise alleged that the Department had been guilty
of "perennial non-compliance," in the four years after the signing of
the 1979 consent decree, the Department in reality had acted with
reasonable diligence to devise a new corporal's examination, to
administer and evaluate it pursuant to the 1981 consent decree, and,
when objections were raised to the examination, to propose an
alternative plan to promote four blacks and eleven whites to corporal
on a proportional basis.  Since the district court's decision was
rendered, the Department has timely proposed, and the district court
has tentatively approved, procedures for promotion to corporal and
sergeant.  See pages 12-13 & note 5, supra.  Both Paradise and the
courts below failed to appreciate how difficult it is to develop and
implement selection procedures that satisfy the rigorous standards of
the Uniform Guidelines.  As the district court itself previously
recognized (NAACP v. Allen, 340 F. Supp. at 706), the validation of
selection procedures is an expensive and time-consuming process
usually extending over several years.  This is particularly true of
jobs, like the state trooper jobs here, that require skills not easily
measured by written exams.  See also Connecticut v. Teal, 457 U.S.
440, 463 (1982) (Powell, J., dissenting);  Albemarle Paper Co. v.
Moody, 422 U.S. 405, 449 (1975) (Blackmun, J., concurring);  Clady v.
City of Los Angeles, 770 F.2d 1421, 1431 (9th Cir. 1985);  Vuyanvich
v. Republic Nat'l Bank, 505 F. Supp. 224, 369-370 (N.D. Tex. 1980);
Baker v. City of Detroit, 483 F. Supp. 930, 971 (E.D. Mich. 1979).
The task was even more difficult and time-consuming here because the
Department also had to ensure that the tests, besides being properly
validated, were without an "adverse impact." In any event, despite the
absence of a validated long-term selection procedure, the Department
has made all promotions since 1980 on a basis that was proportional as
between blacks and whites.

   /14/ A fortiori, there can be no suggestion of a "disparate
treatment" Title VII violation as to promotions at this stage of the
proceedings (i.e., after 1979).

   /15/ We have not discussed so far the especially intrusive results
that flow from the fact that the quota challenged here is a promotion
quota, because, even without considering that additional factor, the
quota is not a "narrowly tailored" means to the ends discussed in the
text.  We elaborate below (pages 38-42) the particularly disruptive
effects of promotion quotas, and those effects are obviously an
additional factor that can be considered whatever the purpose of the
quota.

   /16/ The Court in Sheet Metal Workers noted the court of appeals'
rejection, even in the egregious context there, of a requirement by
the district court that one minority apprentice be indentured for
every white apprentice.  The court of appeals had concluded that a
rigid one-for-one hiring quota was not needed to ensure that a
sufficient number of nonwhites were selected for the apprenticeship
program.  See Sheet Metal Workers, slip op. 13-14 & n.18.

   /17/ Progress toward racial balance in the upper levels of the
Alabama Department of Public Safety could be substantially expedited
by a variety of race-neutral devices designed to eliminate arguably
arbitrary barriers to promotion.  For example, the Department's
time-in-grade requirement for promotion eligibility could be reduced.
And the Department could be ordered to modify its policy of promoting
only from within, a modification that would permit it to hire black
(or white) troopers laterally for upper-rank positions.

   /18/ See Fullilove v. Klutznick, 448 U.S. at 545, 547 (Stevens, J.,
dissenting);  id. at 531 (Stewart, J., dissenting);  United Jewish
Organizations v. Carey, 430 U.S. 144, 173-174 (1977) (Brennan, J.,
concurring in part);  Bakke, 438 U.S. at 298 (opinion of Powell, J.);
DeFunis v. Odegaard, 416 U.S. 312, 343 (1974) (Douglas, J.,
dissenting);  see also Posner, the DeFunis Case and the
Constitutionality of Preferential Treatment of Racial Minorities, 1974
Sup. Ct. Rev. 1, 17 & n.35.

   /19/ The displaced white applicants for promotion cannot be said to
have "acquiesced" in any sense.  Compare Fullilove, 448 U.S. at 479
(opinion of Burger, C.J.) (voluntary recipients of federal funds).
See also Wygant, slip op. 7 (Stevens, J., dissenting) (ratification of
union contract).  Nor is it likely that these individuals -- many of
whom are entry-level troopers hired since 1972, when the Department
ended its hiring discrimination -- have in the past "reaped
competitive benefit" relative to black promotional applicants.
Fullilove, 448 U.S. at 485 (opinion of Burger, C.J.).

   /20/ Figures compiled by the Bureau of Labor Statistics show that
32% of employees in the "protective service" category -- firefighters,
police, prison guards, etc. -- have held their jobs for 10 years or
more, whereas only 27% of the employed population at large have held
their jobs for that length of time.  Current Population Survey (Jan.
1983) (unpublished compilation).  A recent private-sector survey
concluded that seniority plays a significant role in both union and
nonunion promotions.  K. Abraham & J. Medoff, National Bureau of
Economic Research, Years of Service and Probability of Promotion
(1983).  And, "(o)n average, black workers now have accumulated
seniority roughly equal to that of whites." Fallon & Weiler,
Firefighters v. Stotts:  Conflicting Models of Racial Justice, 1984
Sup. Ct. Rev. 1, 65 & n.238.

   /21/ Although the Fifth Circuit in an earlier stage of this
litigation recognized that "(t)he problems inherent in quota relief
assume different parameters in the promotion, rather than hiring,
context" (NAACP v. Allen, 493 F.2d at 622 n.12), the Eleventh Circuit
below did not address that distinction in sustaining the promotion
quota now challenged.  Other courts of appeals, however, have joined
the Fifth Circuit in emphasizing the important differences between
preferences in hiring and promotion.  In reversing a promotion quota
in Kirkland v. New York State Dep't of Correctional Services, 520 F.2d
420 (1975), cert. denied, 429 U.S. 823 (1976), the Second Circuit
declared that "(s)o long as civil service remains the constitutionally
mandated route to public employment in the State of New York, no one
should be 'bumped' from a preferred position on the eligibility list
solely because of his race." Concluding that the promotion quota
represented "constitutionally forbidden reverse discrimination," the
court explained that where finite numbers of candidates are competing
for promotions,

      We can no longer speak in general terms of statistics and class
      groupings.  We must address ourselves to individual rights.

         A hiring quota deals with the public at large, none of whose
      members can be identified individually in advance.  A quota
      placed upon a small number of readily identifiable candidates
      for promotion is an entirely different matter.  Both these men
      and the court know in advance that regardless of their
      qualifications and standing in a competitive examination, some
      of them may be bypassed solely because they are white.

   520 F.2d at 429 (footnote omitted).  See also Sledge v. J.P.
Stevens & Co., 585 F.2d 625 (4th Cir. 1978), cert. denied, 440 U.S.
981 (1979);  Bridgeport Guardians, Inc. v. Members of Bridgeport civil
Service Comm'n, 482 F.2d 1333, 1341 (2d Cir. 1973) (invalidating a
promotion quota for ranks above patrolman, reasoning that "the
imposition of quotas will obviously discriminate against those Whites
who have embarked upon a police career with the expectation of
advancement only to be now thwarted because of their color alone");
United States v. City of Chicago, 663 F.2d 1354, 1361 (7th Cir. 1981).
 Cf. Firefighters v. Stotts, 467 U.S. at 579 n.11 (noting that, in the
layoff context, "(l)ower courts have uniformly held that relief for
actual victims does not extend to bumping employees previously
occupying jobs").