Stuart v. Roache

Decision Date05 September 1991
Docket NumberNo. 91-1483,91-1483
Citation951 F.2d 446
Parties57 Fair Empl.Prac.Cas. (BNA) 902, 57 Empl. Prac. Dec. P 41,141 Anne G. STUART, et al., Plaintiffs, Appellants, v. Francis M. ROACHE, as he is Police Commissioner of the City of Boston, et al., Defendants, Appellees. . Heard
CourtU.S. Court of Appeals — First Circuit

Barbara A.H. Smith, with whom Regina L. Quinlan and Quinlan & Smith, Boston, Mass., were on brief for plaintiffs, appellants.

Jonathan M. Albano, with whom Marianne C. DelPo, Bingham, Dana & Gould, Alan J. Rom, and Lawyers Committee for Civil Rights Under the Law of the Boston Bar Ass'n, Boston, Mass., were on brief for defendant, appellee, Massachusetts Ass'n of Minority Law Enforcement Officers.

William W. Porter, Asst. Atty. Gen., with whom Scott Harshbarger, Attorney General, and Eleanor Coe, Asst. Atty. Gen., Boston, Mass., were on brief for defendant, appellee, Massachusetts Personnel Adm'r.

Before BREYER, Chief Judge, ALDRICH, Senior Circuit Judge, and SELYA, Circuit Judge.

BREYER, Chief Judge.

For the past eleven years the Boston Police Department, when promoting officers to the position of sergeant, has followed terms of a Consent Decree that require it to favor minority officers solely because of their race. The basic question on this appeal is whether, in light of a recent Supreme Court case, City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), those Consent Decree terms remain legally binding. We conclude that Croson has not radically changed applicable preexisting law and that the Consent Decree remains legally valid.

I Background

State law has long required the Boston Police Department (the Department) to follow a two-step process in promoting officers to the position of sergeant. First, officers who have served for three years may take a promotional examination. Those who pass the exam are placed on a promotion list, where they are ranked according to score. Mass.Gen.L. ch. 31, § 25. Second, the promoting official, the Police Commissioner, fills sergeant vacancies from this list of eligible officers, roughly according to rank order. To be more specific, the Commissioner follows a rule of "2n + 1," a rule that means that, if there are five sergeant vacancies (n = 5), the Commissioner fills them from the top 11 persons on the list ((2 X 5) + 1); if there are 15 vacancies, the Commissioner fills them from the top 31 persons on the list, and so forth. Mass.Gen.L. ch. 31, § 27; Personnel Administration Rule 9 (1988); Haley Aff. at 3.

In 1978 the Massachusetts Association of Afro-American Police, Inc. (MAAAP) sued the Boston Police Department claiming that Step One of its promotion system--the testing procedure--was biased against black officers. It argued that the tests, along with previous discrimination at the entry level, had created a virtually all-white cadre of sergeants. Cf. Castro v. Beecher, 334 F.Supp. 930 (D.Mass.1971), aff'd in part and rev'd in part, 459 F.2d 725 (1st Cir.1972) (finding that entry-level Police Department testing unlawfully discriminated against black applicants). The result of this discrimination, MAAAP said, was a Department where, in 1978, only one (or .45 percent) of 222 sergeants was black, although blacks comprised 5.5 percent of the roughly 2200 police officers in the force and 20 percent of the population of Boston as a whole.

In 1980, MAAAP and the Department settled their lawsuit. They entered into a Consent Decree in which (among other things) the Department promised to use only promotional tests specially validated as anti-discriminatory and fair. The Decree also says that the police "Commissioner shall make appointments to overcome any underutilization [of minorities] that may exist among sergeants in accordance with the goals set forth in Appendix B." Appendix B contains a Table entitled "Goals and Timetables." The Table sets forth a list (year by year) of the "projected number of sergeants," the "projected number of positions to be filled," and a set of related "goals" for the number of black sergeants in the Department. These goals, if achieved, would have meant 25 black sergeants by the year 1985, creating a Department with about 9 percent black sergeants. See Consent Decree, Appendix B. The Appendix also states that "the Department is to make a good faith effort to reach these goals." The Decree, by its terms, was to expire in 1985.

During the Decree's initial life--between 1980 and 1985--the Department failed to give any "validated-fair" examinations, and it failed to meet the Consent Decree's numerical goals. As a result, MAAAP successfully petitioned the court to extend the Decree's life until 1990 and to modify its "Goals and Timetables" to reflect the increasing number of qualified blacks in the Department. Between 1985 and 1990, the Department successfully administered one "validated-fair" examination. The number of blacks promoted during this time, however, still fell short of the Decree's numerical goals. Thus, in 1990, at MAAAP's and the Department's joint request, the court extended the Decree once more, until the Department gave one additional "validated-fair" examination--an examination that the Department had scheduled for later this year. Since the parties expected that, by December 1991, nearly 20 percent of promotion-eligible officers would be black, the court revised the Decree's numerical goal to 40, or 15.5 percent, of the Department's sergeants.

In October 1990, thirty-four white police officers filed this action against the Boston Police Department. The plaintiffs complain, and the Department concedes, that the Commissioner did not appoint them to the rank of sergeant, that they had higher test scores than a number of black officers whom the Commissioner did appoint to the rank of sergeant, that the scores of at least some of the promoted black officers placed those black officers below the ("2n + 1") civil service rule cut-off point that would have prevented their appointment in the absence of the Consent Decree, and that (in the Commissioner's words) the white plaintiffs "were all passed over because of ... compliance with the consent decree." Roache Dep. at 25. The plaintiffs argue that the law clearly would prohibit this type of "race-conscious" promotion in the absence of the Consent Decree. And, they add that, in light of Croson, the Decree is powerless to authorize or to require such discrimination.

The district court, after reviewing past and present Supreme Court opinions in this area, concluded that the Decree is lawful and may compel this kind of race-conscious activity as a remedial measure, correcting prior anti-black discrimination. The plaintiffs have appealed, asking us to re-examine the legality of the Decree in light of the Croson decision.

II The Legality of the Decree

The Consent Decree at issue classifies police officers according to race. It provides benefits based upon race. The Supreme Court has made clear that any court, in deciding whether such a classification is lawful, must subject it to "strict scrutiny." See Croson, 488 U.S. at 494, 109 S.Ct. at 721 (plurality of four Justices) ("reaffirm[ing] the view expressed by the plurality in Wygant [v. Jackson Bd. of Educ., 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) ] that the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification"); id., 488 U.S. at 519, 109 S.Ct. at 735 (Kennedy, J., concurring in part and concurring in the judgment) ("accept[ing] ... rule contained in Justice O'Connor's opinion"); id. at 520, 109 S.Ct. at 735 (Scalia, J., concurring in the judgment) ("agree[ing] ... that strict scrutiny must be applied to all governmental classification by race, whether or not its asserted purpose is 'remedial' or 'benign' "); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 279-80, 106 S.Ct. 1842, 1850, 90 L.Ed.2d 260 (1986) (plurality); id. at 285-86, 106 S.Ct. at 1852-53 (O'Connor, J., concurring in part and concurring in the judgment).

Although different members of the Court have described differently what they believe "strict scrutiny" means, see Croson, 488 U.S. at 518-19, 109 S.Ct. at 734-35 (Kennedy, J., concurring in part and concurring in the judgment) (contrasting strict scrutiny standard of plurality with that of Justice Scalia), we believe a majority of the Court has concluded that the standard requires us to make certain that any race-conscious relief is justified by a "compelling state interest," see, e.g., id. at 505, 109 S.Ct. at 727, and that any such relief is "narrowly tailored" to further that interest. Id. at 507-08, 109 S.Ct. at 728-29. See also United States v. Paradise, 480 U.S. 149, 167, 107 S.Ct. 1053, 1064, 94 L.Ed.2d 203 (1987) (plurality) (setting out both parts of strict scrutiny test); Wygant, 476 U.S. at 274, 106 S.Ct. at 1847 (plurality) (same); id. at 285, 106 S.Ct. at 1852-53 (O'Connor, J., concurring in part and concurring in the judgment) (same). The Court has also accepted an equally important proposition, namely that a compelling state interest "unquestionably" exists where a race-conscious employment program "remed[ies] past and present discrimination by a state actor." Paradise, 480 U.S. at 167, 107 S.Ct. at 1064 (plurality). See also Wygant, 476 U.S. at 274, 106 S.Ct. at 1847 (plurality) (to justify racial classification, need "showing of prior discrimination by the governmental unit involved"). In light of these propositions, the race-conscious relief before us is lawful if it represents a "narrowly tailored" effort to remedy past Police Department discrimination against minority groups.

A Compelling Interest

As we read the relevant Supreme Court opinions, the basic question before us is an evidentiary issue: Is there a "strong basis in evidence" for the conclusion that the Consent Decree here at issue serves a remedial purpose...

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