10 F.3d 207 (4th Cir. 1993), 92-2299, Hayes v. North State Law Enforcement Officers Ass'n

Docket Nº:92-2299, 92-2300.
Citation:10 F.3d 207
Party Name:Ronald M. HAYES; Randy L. Hagler; Darrell A. Price; David H. Holland; Robert A. Holl; Oswald D. Holshouser; Raymond T. Carlton; S. Vance Elstrom; Mark E. Corwin, Plaintiffs-Appellees, v. NORTH STATE LAW ENFORCEMENT OFFICERS ASSOCIATION, Defendant-Appellant, City of Charlotte, NC, Defendant-Appellee. Ronald M. HAYES; Randy L. Hagler; Darrell A. Pric
Case Date:October 27, 1993
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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10 F.3d 207 (4th Cir. 1993)

Ronald M. HAYES; Randy L. Hagler; Darrell A. Price; David

H. Holland; Robert A. Holl; Oswald D.

Holshouser; Raymond T. Carlton; S.

Vance Elstrom; Mark E.

Corwin, Plaintiffs-Appellees,



City of Charlotte, NC, Defendant-Appellee.

Ronald M. HAYES; Randy L. Hagler; Darrell A. Price; David

H. Holland; Robert A. Holl; Oswald D.

Holshouser; Raymond T. Carlton; S.

Vance Elstrom; Mark E.

Corwin, Plaintiffs-Appellees,


CITY OF CHARLOTTE, NC, Defendant-Appellant,

North State Law Enforcement Officers Association, Defendant-Appellee.

Nos. 92-2299, 92-2300.

United States Court of Appeals, Fourth Circuit

October 27, 1993

Argued May 5, 1993.

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[Copyrighted Material Omitted]

Page 209

Jim D. Cooley, Womble, Carlyle, Sandridge & Rice, Charlotte, NC, argued (F. Lane Williamson, on brief), for appellant City of Charlotte.

Geraldine Sumter, Ferguson, Stein, Watt, Wallas, Adkins & Gresham, P.A., Charlotte, NC, argued (James E. Ferguson, II, on brief), for appellant North State Law Enforcement Officers Ass'n.

Louis L. Lesesne, Jr., Lesesne & Connette, Charlotte, NC, for appellees.

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Before ERVIN, Chief Judge, and NIEMEYER and WILLIAMS, Circuit Judges.


WILLIAMS, Circuit Judge:

In this appeal, the City of Charlotte contends that its interest in effective law enforcement justifies the use of a race-based promotion policy to achieve diversity within its police department. Plaintiffs, a group of non-minority officers who allege they were not promoted because of their race, challenge the City's explicit use of racial preference in promotions to the rank of sergeant. The district court granted partial summary judgment for Plaintiffs after concluding that the police department's promotion practices violated the Equal Protection Clause of the Fourteenth Amendment. 1 Hayes v. City of Charlotte, 802 F.Supp. 1361, 1377 (W.D.N.C.1992). The district court also enjoined the City from using "a racial based criterion for its employment decisions." (J.A. at 169.)

We affirm the district court's grant of partial summary judgment to the Plaintiffs because we conclude that the City has not provided sufficient evidence to survive summary judgment on its claim that racial diversity is essential to effective law enforcement and constitutes a compelling state interest. Moreover, the City has utterly failed to establish that the means it has chosen, an explicit racial preference, was narrowly tailored to accomplish its asserted goal. However, we vacate the injunction issued by the district court as overbroad, and remand for entry of more precise injunctive relief.


In any case involving allegations of "reverse discrimination," the historical context of the allegations is of paramount significance. Since 1974, the promotion of patrol officers to the rank of sergeant in the City of Charlotte has been controlled by a consent order entered during litigation between the City and North State Law Enforcement Officers, an organization of African-American police officers who alleged race discrimination in the Charlotte police department. Both of these parties are defendants in the instant case. In the consent order, the City did not acknowledge any racial discrimination in the hiring or promotion of African-American officers and has never acknowledged any racial discrimination in the promotion process for sergeants.

The 1974 consent order provided specific goals for the promotion of African-American officers. In particular, for promotions to the rank of sergeant, Paragraph 5 of the consent order provided that:

Effective immediately at least six (6) of the next fifteen (15) promotions to the rank of Sergeant shall consist of qualified black Patrolmen. In the event that the next fifteen (15) promotions are not made simultaneously, the promotion of qualified black officers to meet this goal shall be made at the rate of one (1) qualified black officer for every two (2) qualified white officers. Thereafter, the percentage of qualified black officers promoted to the rank of Sergeant during each successive six-month period shall conform as nearly as possible to the percentage that black Patrolmen comprise of all Patrolmen employed by the Police Department at the commencement of each such six-month period, until the percentage of black Sergeants comprises at least twenty percent (20%) of the total number of Sergeants employed by the Police Department.

(J.A. at 19.) The consent order also required the police department to file yearly reports with the district court indicating its progress toward these goals. According to these reports, the City reached the 20% goal in 1987. 2

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The City has conceded that they have met the goal set forth in the consent order.

The City currently promotes officers to the rank of sergeant pursuant to an internal policy, General Order No. 18, which became effective in 1987. General Order No. 18 sets out a three-part process for determining which officers will be promoted. First, the officer must earn a passing score on a written examination. The officer's test score is scaled so that he can receive a maximum of 33 1/3 points for the written examination phase of the process. In 1990, the City received approval from the district court to use this written examination as part of the promotion process, "unless and until the Plaintiffs [North State Law Enforcement Officers Association] have shown that the use of the Promotion Examination and its results constitute unlawful racial discrimination." (J.A. at 31.) To date, no such challenge has been made.

Police officers who earn a passing score on the written examination then continue to the second and third phases of the promotion process. In the second phase, the officer's first and second level supervisors assess his potential for promotion. Using a "Promotional Potential Rating Form," the supervisors rate the officer in fifteen categories, on a range from one to five. These points are then scaled so that the officer may receive a maximum of 33 1/3 points for the evaluation phase. Finally, in the third phase the officer participates in an oral interview, lasting approximately thirty minutes, before a board that includes civilian and minority representatives. During the interview, the officer is questioned regarding problems relating to the operation of the department and presented with situational questions derived from case studies. The board members then rate the officer's responses. The maximum score for this phase is also 33 1/3 points.

The combined scores from all three phases are used to establish a promotion roster ranked in order of the officers' overall scores. According to General Order No. 18, this promotion roster "will determine the order of consideration for candidates, but not necessarily the order of promotions." (J.A. at 123.) General Order No. 18 grants the Chief of Police authority to promote any eligible applicant and allows him to consider the applicant's physical fitness and any other "relevant factor" in making his decision. General Order No. 18 does not define what "relevant factors" the Chief may consider.

In February 1991, the City of Charlotte promoted twenty-one officers to the position of sergeant from a promotion roster of seventy-four applicants. Of the twenty-one officers promoted, seventeen were white, and four were African-American. Chief D.R. Stone made the promotions after consultation with other members of the department. The promotions were generally made in rank order, with the only exceptions being consideration of disciplinary records, 3 the personal request of one officer (No. 16) that he not be promoted, and race.

Of the first twenty officers on the promotion roster, eighteen were promoted, including one African-American officer ranked No. 11. Two white officers ranked No. 8 and No. 21 were not promoted because of their disciplinary records. The remaining three officers promoted were African-American officers ranked No. 29, No. 62, and No. 74. Plaintiffs, two of whom were ranked above officer No. 29 and the rest who were ranked above officers No. 62 and No. 74, allege that these promotions violate the Equal Protection Clause.


The Equal Protection Clause of the Fourteenth Amendment provides that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, Sec. 1. In reviewing the constitutionality of state actions with regard to the standard embodied in the Fourteenth Amendment, the Supreme Court has "consistently repudiated 'distinctions between citizens solely because of their ancestry'

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as being 'odious to a free people whose institutions are founded upon the doctrine of equality,' " and has held that "[r]acial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination." Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273, 106 S.Ct. 1842, 1846, 90 L.Ed.2d 260 (1986) (plurality opinion) (quoting Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967) (quoting Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943), and Regents of the University of California v. Bakke, 438 U.S. 265, 291, 98 S.Ct. 2733, 2748, 57 L.Ed.2d 750 (1978) (Powell, J., plurality opinion))). The same "exacting judicial examination" is applicable to any classification on the basis of race, regardless of the type, purpose, or alleged victim of the racial distinction. "[T]he level of scrutiny does not change merely because the challenged classification operates against a group that historically has not been subject to governmental discrimination." Wygant, 476 U.S. at 273, 106 S.Ct. at 1846 (plurality opinion).

The City of...

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