149 Opinion of BRENNAN, J. JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion in which JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE POWELL join. The question we must decide is whether relief awarded in this case, in the form of a one-black-for-one-white promotion requirement to be applied as an interim measure to state trooper promotions in the Alabama Department of Public Safety (Department), is permissible under the equal protection guarantee of the Fourteenth Amendment. In 1972 the United States District Court for the Middle District of Alabama held that the Department had systematically excluded blacks from employment in violation of the Fourteenth Amendment. Some 11 years later, confronted with the Department's failure to develop promotion procedures that did not have an adverse impact on blacks, the District Court ordered the promotion of one black trooper for each white trooper elevated in rank, as long as qualified black candidates were available, until the Department implemented an acceptable promotion procedure. The United States challenges the constitutionality of this order.' I Because the Department's prior employment practices and conduct during this lawsuit bear directly on the constitution city of Birmingham, Alabama, by James P. Alexander and James K. Baker; for the NAACP Legal Defense & Educational Fund, Inc., by Julius L. Chambers, Ronald L. Ellis, Eric Schnapper, and Clyde E. Murphy; and for the Lawyers' Committee for Civil Rights Under Law et al. by Robert D. Joffe, Thomas D. Barr, Robert F. Mullen, Harold R. Tyler, Jr., James Robertson, Norman Redlich, William L. Robinson, Richard T. Seymour, and Stephen L. Spitz. Daniel B. Edelman, James R. Murphy, Charles L. Reischel, Frederick N. Merkin, and Robert Cramer filed a brief for the city of Detroit et al. as amici curiae. 'The Department and its Director, Colonel Byron Prescott, and the intervenors, a class of white applicants for promotion within the Department, have filed briefs in support of the United States, but they did not themselves petition for certiorari. Opinion of BRENNAN, J. 480 U. S. ality of any race-conscious remedy imposed upon it, we must relate the tortuous course of this litigation in some detail. A In 1972 the National Association for the Advancement of Colored People (NAACP) brought this action challenging the Department's longstanding practice of excluding blacks from employment. The United States was joined as a party plaintiff, and Phillip Paradise, Jr., intervened on behalf of a class of black plaintiffs. District Judge Frank M. Johnson, Jr., determined: "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 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." NAACP v. Allen, 340 F. Supp. 703, 705 (MD Ala. 1972). He concluded: "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. 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." Id., at 705-706 (citations omitted). As a result, the court issued an order (1972 order), enjoining the Department to hire one black trooper for each white 149 Opinion of BRENNAN, J. trooper hired until blacks constituted approximately 25% of the state trooper force. Judge Johnson also enjoined the Department from "engaging in any employment practices, including recruitment, examination, appointment, training, promotion, retention or any other personnel action, for the purpose or with the effect of discriminating against any employee, or actual or potential applicant for employment, on the ground of race or color." Id., at 706 (emphasis added). The court further required that "eligible and promotional registers heretofore used for the purpose of hiring troopers be and they are hereby abrogated to the extent necessary to comply with this decree." Id., at 707. The defendants appealed, but the Fifth Circuit upheld the hiring requirement: 'In United States v. Frazer, 317 F. Supp. 1079 (MD Ala. 1970), Judge Johnson found that certain state agencies, including the personnel department, which supplies support staff to the department, were engaged in systematic violations of the constitutional rights of black applicants and employees. In NAACP v. Allen, 340 F. Supp. 703 (MD Ala. 1972), the decree in United States v. Frazer was amended to require the personnel department to ensure that, until blacks constituted 25% of the Department's support personnel, 50% of the individuals hired for those positions were black. 340 F. Supp., at 706. 3 The court awarded attorney's fees to the plaintiffs. Judge Johnson found that the defendants “unquestionably knew and understood that their discriminatory practices violated the Fourteenth Amendment" and that, as a consequence, "their defense of th[e] lawsuit amount[ed] to unreasonable and obdurate conduct which necessitated the expense of litigation." Id., at 708. 'While the appeal was pending, the Court of Appeals ordered the District Judge to supplement the record and to reconsider his decree. After discovery, Judge Johnson decided not to alter his order. He explicitly compared the results achieved by the injunction prohibiting discrimination in United States v. Frazer, supra, and the hiring order in NAACP v. Allen, supra: "The contrast in results achieved to this point in the Allen case and the Frazer case under the two orders entered in those cases is striking indeed. Even though the agencies affected by the Frazer order and the Department of Public Safety draw upon the same pool of black applicants that is, those who have been processed through the Department of Person Opinion of BRENNAN, J. 480 U.S. "The use of quota relief in employment discrimination cases is bottomed on the chancellor's duty to eradicate the continuing effects of past unlawful practices. By mandating the hiring of those who have been the object of discrimination, quota relief promptly operates to change the outward and visible signs of yesterday's racial distinctions and thus, to provide an impetus to the process of dismantling the barriers, psychological or otherwise, erected by past practices. It is a temporary remedy that seeks to spend itself as promptly as it can by creating a climate in which objective, neutral employment criteria can successfully operate to select public employees solely on the basis of job-related merit." NAACP v. Allen, 493 F. 2d 614, 621 (1974). The Court of Appeals also held that white applicants who had higher eligibility rankings than blacks were not denied due process or equal protection of the laws by the one-for-one hiring order. The Department's use of unvalidated selection procedures that disproportionately excluded blacks precluded any argument that "quota hiring produces unconstitutional 'reverse' discrimination, or a lowering of employment standards, or the appointment of less or unqualified persons." Id., at 618.5 In 1974, only shortly after the Court of Appeals' decision, the plaintiffs found it necessary to seek further relief from the District Court. Judge Johnson found that "defendants have, for the purpose of frustrating or delaying full relief to the plaintiff class, artificially restricted the size of the trooper nel-Allen has seen substantial black hiring, while the progress under Frazer has been slow and, in many instances, nonexistent. ... "[T]his Court's experience reflects that the decrees that are entered must contain hiring goals; otherwise effective relief will not be achieved." United States v. Dothard, 373 F. Supp. 504, 506-507 (MD Ala.), aff'd sub nom. NAACP v. Allen, 493 F. 2d 614 (CA5 1974). 'None of the parties sought certiorari review of the Court of Appeals' determination that the 50% hiring quota at issue was constitutional. 149 Opinion of BRENNAN, J. force and the number of new troopers hired." Paradise v. Dothard, Civ. Action No. 3561-N (MD Ala., Aug. 5, 1975). The court also addressed the disproportionate failure of blacks hired to achieve permanent trooper status: " "[T]he high attrition rate among blacks resulted from the selection of other than the best qualified blacks from the eligibility rosters, some social and official discrimination against blacks at the trooper training academy, preferential treatment of whites in some aspects of training and testing, and discipline of blacks harsher than that given whites for similar misconduct while on the force." Ibid. The court reaffirmed the 1972 hiring order, enjoining any further attempts by the Department to delay or frustrate compliance. B In September 1977 the plaintiffs again had to return to the District Court for supplemental relief, this time specifically on the question of the Department's promotion practices. Following extensive discovery, the parties entered into a partial consent decree (1979 Decree), approved by the court in February 1979.' In this decree, the Department agreed to develop within one year a promotion procedure that would be fair to all applicants and have "little or no adverse impact upon blacks seeking promotion to corporal." App. 40. In the decree, the Department also agreed that the promotion procedure would conform with the 1978 Uniform Guidelines 'At this time, 40 blacks had been hired as a result of the 1972 District Court order; only 27 remained on the force. All 29 whites hired during the same period had retained their positions. Paradise v. Dothard, Civ. Action No. 3561-N (MD Ala., Aug. 5, 1975). 'Judge Johnson presided in this litigation until he assumed his position on the former Fifth Circuit in 1979. At that time, the case was transferred to District Judge Varner; subsequently, it was reassigned to Judge Myron Thompson in October 1980. |