Opinion of BRENNAN, J. 480 U. S. on Employee Selection Procedures, 28 CFR §50.14 (1978).* Once such a procedure was in place for the rank of corporal, the decree required the defendants to develop similar procedures for the other upper ranks-sergeant, lieutenant, captain, and major. The decree expressly provided that the plaintiffs might apply to the court for enforcement of its terms or for other appropriate relief. App. 41.' Five days after approval of the 1979 Decree, the defendants sought clarification of the 1972 hiring order. The Department maintained that its goal-a 25% black trooper force-applied only to officers in entry-level positions and not to the upper ranks. The court responded: "On this point, there is no ambiguity. The Court's [1972] order required that one-to-one hiring be carried out until approximately twenty-five percent of the state trooper force is black. It is perfectly clear that the order did not distinguish among troopers by rank." Paradise v. Shoemaker, 470 F. Supp. 439, 440 (MD Ala. 1979) (emphasis in original). The Department also argued that because the 25% objective could not be achieved unless 37.5% of entry-level positions were held by blacks, "more qualified white applicants" were passed over than was constitutionally permissible. Id., at 441. The District Court rejected the argument, stating: "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 hir "The Uniform Guidelines are "designed to provide a framework for determining the proper use of tests and other [employee] selection procedures consistent with Federal law." 28 CFR § 50.14, pt. 1, § 1 (1978). 'In the interim the parties agreed to utilize the existing state merit system for promotions to the rank of corporal, provided that at least three black troopers were promoted. The details of this procedure were set forth in an "Agreement of Counsel for the Parties." App. 46. 149 Opinion of BRENNAN, J. ing 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. . . . The order in this case is but the necessary remedy for an intolerable wrong." Id., at 442 (emphasis added). In April 1981, more than a year after the deadline set in the 1979 Decree, the Department proposed a selection procedure for promotion to corporal and sought approval from the District Court. The United States and the plaintiff class both objected to implementation of the procedure, arguing that it had not been validated and that its use would be impermissible if it had an adverse impact on blacks. To resolve this dispute the parties executed a second consent decree (1981 Decree) which the District Court approved on August 18, 1981. In the 1981 Decree, the Department reaffirmed its commitment made in 1979 to implement a promotion procedure with little or no adverse impact on blacks. The parties then agreed to the administration of the proposed promotion procedure and that its results would be "reviewed to determine whether the selection procedure has an adverse impact against black applicants." App. 51. Whether there was adverse impact was to be determined by reference to the "fourfifths" rule of §4 of the Uniform Guidelines. See 28 CFR § 50.14 (1978).10 If the parties proved unable to agree on 10 10 According to §4 of the Uniform Guidelines, "[a] selection rate for any racial, ethnic or sex group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally Opinion of BRENNAN, J. 480 U. S. a procedure, its determination would be submitted to the District Court. No promotions would occur until the "parties... agreed in writing or the Court. . . ruled upon the method to be used for making promotions with little or no adverse impact." App. 53. The defendants administered the test to 262 applicants of whom 60 (23%) were black. Of the 60 blacks who took the test, only 5 (8.3%) were listed in the top half of the promotion register; the highest ranked black candidate was number 80. Id., at 119. In response to an inquiry from the United States, the Department indicated that there was an immediate need to make between 8 and 10 promotions to corporal and announced its intention to elevate between 16 and 20 individuals before construction of a new list. 1 Record 222. The United States objected to any rank-ordered use of the list, stating that such use "would result in substantial adverse impact against black applicants" and suggested that the defendants submit an alternative proposal that would comply with the requirements of the 1979 and 1981 Decrees. Id., at 220-221. No proposal was submitted, and no promotions were made during the next nine months. In April 1983, plaintiffs returned to District Court and sought an order enforcing the terms of the two consent decrees. Specifically, they requested that defendants be required to promote blacks 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 112. The plaintiff class contended that such an order 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 be regarded as evidence of adverse impact." 28 CFR § 50.14, pt. 1, §4 (1978). In other words, if 60% of the white troopers who take a promotion test pass it, then 48% of the black troopers to whom it is administered must pass. 149 Opinion of BRENNAN, J. ranks of the Department" "-an underrepresentation caused by the Department's past discrimination and exacerbated by its continuing refusal to implement a fair procedure. Ibid. 99 Although it opposed the one-for-one promotion requirement, the United States agreed that the consent decrees should be enforced. It stated that defendants had failed to offer "any reason[s] why promotions should not be made,' nor had they offered an explanation as to why they had halted "progress towards remedying the effects of past discrimination." Id., at 199-201. The United States further observed that the Department's failure to produce a promotion plan in compliance with the 1979 and 1981 Decrees "suggests that a pattern of discrimination against blacks in the Department .. may be continuing." Id., at 200.12 After the motion to enforce was filed, four white applicants for promotion to corporal sought to intervene on behalf of a class composed of those white applicants who took the proposed corporal's examination and ranked number 1 through number 79. App. 81-87. They argued that the 1979 and 1981 Decrees and the relief proposed by the plaintiffs in their motion to enforce were "unreasonable, illegal, unconstitutional or against public policy." Id., at 99. In an order entered October 28, 1983, the District Court held that the Department's selection procedure had an adverse impact on blacks. Paradise v. Prescott, 580 F. Supp. 171, 174 (MD Ala.). Observing that even if 79 corporals 13 "In fact, the only black candidates who had been promoted since 1972 were the four promoted pursuant to the counsels' sidebar to the 1979 Decree. See n. 9, supra. 12 2 The Department opposed the motion to enforce, arguing that the relief sought by the plaintiffs was unconstitutional. The Department requested an opportunity to demonstrate that the proposed procedure was valid and that it did not adversely impact upon black candidates within the meaning of the consent decrees and the Uniform Guidelines. "In a separate order issued that same day, the District Court permitted the white intervenors to participate in the case on a prospective basis only. The court held that intervention was untimely as to prior orders, judgments, and decrees. App. 116. Opinion of BRENNAN, J. 480 U. S. were promoted in rank order, rather than the 15 contemplated, none would be black, the court concluded 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." Id., at 173." The Department was ordered 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." Id., at 175. The Department subsequently submitted a proposal to promote 15 persons to the rank of corporal, of whom 4 would be black. In addition, the Department requested that the department of personnel be given more time to develop and submit for court approval a nondiscriminatory promotion procedure. The United States did not oppose the Department's proposal, but the plaintiffs did. They argued that the proposal "totally disregards the injury plaintiffs have suffered due to the defendants' four-and-a-half year delay [since the 1979 Decree] and fails to provide any mechanism that will insure the present scenario will not reoccur." 2 Record 382. On December 15, 1983, the District Court granted the plaintiffs' motion to enforce the 1979 and 1981 Decrees. Paradise v. Prescott, 585 F. Supp. 72 (MD Ala.). Confronted with the Department's immediate need to promote 15 troopers to corporal and the parties' inability to agree, the court was required by the 1979 and 1981 Decrees to fashion a promotion procedure. The District Judge summarized the situation: "On February 10, 1984, less than two months from today, twelve years will have passed since this court condemned the racially discriminatory policies and practices of the Alabama Department of Public Safety. Never 14The District Court also rejected the Department's argument that the one-for-one hiring order was a "special program" within the meaning of the Uniform Guidelines that would insulate the Department from any finding of adverse impact in its promotion procedures. 580 F. Supp., at 174. |