Paradise v. Prescott
| Decision Date | 12 August 1985 |
| Docket Number | Nos. 84-7053,84-7564,s. 84-7053 |
| Citation | 767 F.2d 1514 |
| Parties | 38 Fair Empl.Prac.Cas. 1094, 37 Empl. Prac. Dec. P 35,484 Phillip PARADISE, Jr., et al., Plaintiffs-Appellees, United States of America, Plaintiff-Amicus Curiae-Appellee, Cross-Appellant, v. Byron PRESCOTT, as Director of the Alabama Department of Public Safety, Defendant-Appellant, Cross-Appellee, V.E. McClellan, et al., Defendants-Intervenors, Appellants-Cross-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Edward L. Hardin, Jr., Sp. Asst. Atty. Gen., Theresa Jo. Hanson, Birmingham, Ala., for Alabama Dept. of Public Safety.
James S. Ward, Birmingham, Ala., for V.E. McClellan, et al.
Louise A. Lerner, William Bradford Reynolds, Walter W. Barnett, Civil Rights Div., Washington, D.C., for U.S. Dept. of Justice.
John C. Bell, U.S. Atty., Kenneth E. Vines, Asst. U.S. Atty., Montgomery, Ala., Charles J. Cooper, Deputy Asst. Atty. Gen., Alexandria, Va., for amicus curiae U.S.
Dennis N. Balske, Deborah A. Ellis, Montgomery, Ala., for Phillip Paradise, et al.
Daniel J. Leffell, Robert D. Joffe, New York City, for amici curiae Lawyer's Committee for Civil Rights under Law and NAACP Legal Defense and Educational Fund, Inc.
Appeals from the United States District Court for the Northern District of Alabama.
Before FAY and ANDERSON, Circuit Judges, and GIBSON *, Senior Circuit Judge.
In 1972, then Chief District Judge Frank M. Johnson, Jr., found that the Alabama Department of Public Safety (the Department) "engaged in a blatant and continuous pattern and practice of" discriminating against blacks in hiring. NAACP v. Allen, 340 F.Supp. 703 (M.D.Ala.1972), aff'd, 493 F.2d 614 (5th Cir.1974). Thirteen years later, the unfortunate effects of that unconstitutional discrimination still persist. These consolidated appeals involve the district court's latest attempts to integrate the Alabama state trooper force.
In case number 84-7053 (Paradise I) all parties, save the plaintiffs, appeal the December 15, 1983 order of Judge Thompson 1 enjoining the Department to promote one black trooper for each white trooper promoted to a higher rank until either 25% of the rank is comprised of black troopers or the defendants have in place a promotion plan for the rank conforming to the law and to all prior court orders and consent decrees. As a result of that order, the Department developed and implemented a plan for promotions to the rank of corporal. The court thereafter suspended operation of the December 15 order to such corporal promotions and instead allowed the Department to use its long-awaited promotional plan for that rank. Only the intervenors, in case number 84-7564 (Paradise II), appeal this order. Having carefully reviewed the record and the numerous briefs submitted by the parties and amicus curiae, we affirm the district court in both cases.
In January, 1972, the NAACP brought a class action suit against the Department and the Alabama Personnel Department, alleging violations of the fourteenth amendment and 42 U.S.C. Secs. 1981 and 1983. The NAACP contended that the Department "systematically exclud[ed] Negroes from its employees," R.E. at 39, and that because the Department had "not abandoned its racially discriminatory hiring practices ... the constitutional rights of the Plaintiff, its members, and the class" were abridged. Id. at 41. Thereafter, the United States was made a party plaintiff, and the motion by Phillip Paradise, Jr., to intervene as a party plaintiff, individually and on behalf of the similarly situated class, was granted.
After a hearing was held, the district court concluded:
Plaintiffs have shown without contradiction that the defendants have engaged in a blatant and continuous pattern and practice of discrimination in hiring in the Alabama Department of Public Safety, both as to [state highway patrol] troopers and supporting personnel. In the thirty-seven-year history of the patrol there has never been a black trooper and the only Negroes ever employed by the department have been nonmerit system laborers. This unexplained and unexplainable discriminatory conduct by state officials is unquestionably a violation of the Fourteenth Amendment. (citations omitted).
Under such circumstances ... the courts have the authority and the duty not only to order an end to discriminatory practices, but also to correct and eliminate the present effects of past discrimination. (citations omitted). The racial discrimination in this instance has so permeated the [Department's] employment policies that both mandatory and prohibitory injunctive relief are necessary to end these discriminatory practices and to make some substantial progress toward eliminating their effects.
NAACP v. Allen, 340 F.Supp. at 705 (emphasis added).
The district court entered a comprehensive injunctive order (1972 Order). The court enjoined the defendants from engaging in any employment practices--including promotion--for the purpose or with the effect of discriminating against any employee or applicant for employment on the basis of race. Id. at 706. The court, inter alia, also ordered the defendants to hire one black trooper for each white trooper hired until the state trooper force was comprised of approximately 25% blacks. 2 Id.
On appeal to the former Fifth Circuit, the defendants did not challenge the finding of "blatant and continuous" discrimination in hiring; rather, they contended that the quota hiring relief ordered by the district court unconstitutionally discriminated against eligible white applicants and improperly forced the Department to pass over whites who had fared better in the testing process in favor of less qualified blacks. NAACP v. Allen, 493 F.2d 614, 617 (5th Cir.1974). 3 The Fifth Circuit disagreed.
The court first addressed the constitutional issues raised by affirmative hiring relief. The court held that white applicants who had higher eligibility rankings than blacks were not denied equal protection or due process rights because unvalidated selection procedures which disproportionately exclude blacks "have not been shown to be predictive of successful job performance." Id. at 620. Absent validated selection procedures, the court reasoned, "it is illogical to argue that quota hiring produces unconstitutional 'reverse' discrimination, or a lowering of employment standards, or the appointment of less or unqualified persons." Id. The court further held that temporary affirmative hiring relief which resorted to racial criteria, if it were the only rational, nonarbitrary means of eradicating the present effects of past discrimination, denied no one their constitutional rights and was justified by the governmental and social interest in effectively ending unconstitutional discrimination. Id. at 619.
Having rejected the defendants' constitutional arguments, the court next proceeded to determine whether the district court abused its discretion in ordering quota hiring. Id. at 620. The court recognized that the district court was faced with "(1) clear evidence of a long history of intentional racial discrimination, (2) a paucity, if not a total absence of any positive efforts by the [Department] to recruit minority personnel, and (3) utilization of unvalidated employment criteria and selection procedures and other discriminatory practices." Id. Because the fourteenth amendment violation was "so clearly demonstrated," the district court was obliged "to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Id. at 617 (quoting Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965)). The court accordingly upheld the district court's conclusion that quota hiring relief "was essential to make meaningful progress towards eliminating the unconstitutional practices and to overcome the patrol's thirty-seven year reputation as an all-white organization." 493 F.2d at 620-21. 4
The plaintiffs, in 1974, moved the district court for further relief. The hearing which was held on that motion focused on two issues: (1) whether the defendants had artificially restricted the size of the trooper force to frustrate the 1972 hiring order; and (2) the disproportionate failure of blacks hired under that order to achieve permanent trooper status. Record, Vol. 1, at 41.
The district court found that at the time it entered the 1972 Order, and at all material times thereafter, the responsible state officials recognized that there was a "critical shortage of troopers" in Alabama. Id. at 42. The court further found that since the 1972 Order, the Department hired fewer troopers than was necessary to offset even normal attrition. Id. Additionally, examination of the Department's pre- and post-1972 Order fund allocation and expenditure patterns revealed that the Department had either not spent or had diverted to other uses funds which could have been used for salaries and ancillary expenses for new troopers. Id. at 42-43. The court concluded These findings, when combined with the considerable testimony regarding the defendants' reluctance to implement the court's remedial order by placing black troopers on the state's highways, necessitate the conclusion that the defendants have, for the purpose of frustrating or delaying full relief to the plaintiff class, artificially restricted the size of the trooper force and the number of new troopers hired.
The district court further found that the comparatively high black attrition rate (of the 40 blacks hired since the 1972 Order only 27 were still on the force, while all 29 whites hired in that period remained) was not coincidental. Indeed, the court found that the high...
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