149 Opinion of BRENNAN, J. gest that in 1983 the District Court was constitutionally required to settle for yet another promise that such a procedure would be forthcoming "as soon as possible." 2 Record 358. Moreover, the Department's proposal ignored the injury to the plaintiff class that resulted from its delay in complying with the terms of the 1972 order and the 1979 and 1981 Decrees." As the Eleventh Circuit pointed out, no blacks were promoted between 1972 and 1979; the four blacks promoted in 1979 were elevated pursuant to the 1979 Decree and not as a result of the voluntary action of the Department; and, finally, the whites promoted since 1972 "were the specific beneficiaries of an official policy which systematically excluded all blacks." 767 F. 2d, at 1533, n. 16. To permit ad hoc decisionmaking to continue and allow only 4 of 15 slots to "The Government contends that "the Department in reality had acted with reasonable diligence to devise a new corporal's examination" and that both Paradise and the District Judge "failed to appreciate how difficult it is to develop and implement selection procedures that satisfy the rigorous standards of the Uniform Guidelines" because "the validation of selection procedures is an expensive and time-consuming process usually extending over several years" and because the tests, besides being validated, had to be without adverse impact. Brief for United States 24-25, n. 13. This argument is without merit. Since the District Court order at issue here was rendered, the Department has timely proposed and the court has tentatively approved, procedures for promotion to corporal and sergeant. App. 163-164, 176-177. Although these procedures have not yet been validated (and, according to the Government, may not be for some time, Tr. of Oral Arg. 41-42), the use of the one-for-one promotion requirement was suspended by the court both times the Department proposed a procedure that appeared to be without adverse impact. It is therefore clear that any inevitable delay in validating the procedures will not result in reimposition of the one-for-one requirement so long as the Department implements a procedure without apparent adverse impact. The difficulties of validating a procedure do not excuse the Department's delay in developing a test without adverse impact. In addition, it was the Department that initially proposed to implement a validated procedure within one year; this time period was not imposed by the court. Surely the Department was in the best position to assess the practicality of its own proposal. Opinion of BRENNAN, J. 480 U. S. be filled by blacks would have denied relief to black troopers who had irretrievably lost promotion opportunities." Thus, adoption of the Department's proposal would have fallen far short of the remedy necessary to eliminate the effects of the Department's past discrimination, would not have ensured adoption of a procedure without adverse impact, and would not have vitiated the effects of the defendant's delay." 23 The Government suggests that the trial judge could have imposed heavy fines and fees on the Department pending compliance. This alternative was never proposed to the District Court. Furthermore, the Department had been ordered to pay the plaintiffs' attorney's fees and costs throughout this lengthy litigation; these court orders had done little "JUSTICE O'CONNOR's dissent suggests that the District Court's order could not have been intended to eradicate the effects of the Department's delay since it was suspended once the Department developed a promotion procedure that did not have an adverse impact on blacks. Post, at 197– 198. But JUSTICE O'CONNOR's dissent overlooks that the District Court balanced its several goals, none of which was permitted to dominate at the expense of the others. The court ordered the immediate promotion of eight blacks to the rank of corporal, eliminating in part the ill effect of the Department's past delay, and required further promotions of qualified blacks, indicating its willingness to order such promotions unless the Department implemented a fair promotion procedure. The court's order was carefully constructed to ensure that some qualified black candidates would be promoted immediately and that other promotions would follow in the near future, preferably by a procedure of the Department's own design. The conditional or limited nature of the remedial order does not raise doubts about whether the District Court intended to eliminate so far as possible the effects of past delay and discrimination; rather it reveals that the District Court sought to achieve this goal while interfering as little as possible with the rights of nonminority troopers. "The merit of the District Court's determination in 1983 that it could not accept the Department's promise to develop a promotion procedure without adverse impact is illustrated by the Department's petition for reconsideration of the court's order enforcing the consent decrees. The Department argued that it was without legal authority to comply with the court's order; the District Court stated that this argument was yet another delaying tactic. See supra, at 164-165, and App. 139. 149 Opinion of BRENNAN, J. to prevent future foot-dragging." See, e. g., United States v. Frazer, 317 F. Supp. 1079, 1093 (1970); NAACP v. Allen, 340 F. Supp., at 708-710. In addition, imposing fines on the defendant does nothing to compensate the plaintiffs for the long delays in implementing acceptable promotion procedures. Finally, the Department had expressed an immediate and urgent need to make 15 promotions, and the District Court took this need into consideration in constructing its remedy.25 As we observed only last Term, "a district court may find it necessary to order interim hiring or promotional goals pending the development of nondiscriminatory hiring or promotion procedures. In these cases, the use of numerical goals provides a compromise between unacceptable alterna "Indeed, the Department had shown itself willing to sacrifice a great deal of money to avoid the court's orders. See Paradise v. Dothard, Civ. Action No. 3561-N (MD Ala., Aug. 5, 1975) ("The evidence outlined above establishes and this Court now finds that, at the time of and in the years following the Court's 1972 order, the administration and the heads of the Department of Public Safety perceived a need for additional troopers—a need characterized as critical; that there were appropriated and available to the defendants funds in excess of $3 million, a substantial portion of which could have been used for salaries and ancillary expenses for new troopers; and that this money was not spent for the critically needed additional troopers but went unspent or was diverted to other uses. 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"). * Fining the defendant lacks even the lone virtue of the Department's proposal to promote four blacks: that at least a step would be taken toward the eradication of past discrimination by elevating blacks in the hierarchy. Furthermore, it does nothing to compensate plaintiffs for the past and future delay in implementation of procedures without adverse effect. While fines vindicate the court's authority, here they would not fulfill the court's additional responsibility to "eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Louisiana v. United States, 380 U. S. 145, 154 (1965). Opinion of BRENNAN, J. 480 U. S. [or] con tives: an outright ban on hiring or promotions. tinued use of a discriminatory selection procedure," or, we might add, use of no selection procedure at all. 26 By 1984 the District Court was plainly justified in imposing the remedy chosen. Any order allowing further delay by the Department was entirely unacceptable. Cf. Green v. New Kent County School Board, 391 U. S. 430, 438, 439 (1968) (“[A] plan that at this late date fails to provide meaningful assurance of prompt and effective disestablishment of a dual system is intolerable. . . . The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now"). Not only was the immediate promotion of blacks to the rank of corporal essential, but, if the need for continuing judicial oversight was to end, it was also essential that the Department be required to develop a procedure without adverse impact on blacks, and that the effect of past delays be eliminated.27 "The United States also suggests that the District Court could have made the promotion decisions itself or appointed a trustee to supervise the Department's progress. Again neither of these alternatives were proposed to the judge. The suggestions appear rather beside the point as the United States would presumably object if the District Court or the trustee simply selected 50% blacks to be promoted each time vacancies occurred until a test without adverse impact was created, rather than ordering the Department to select 50% blacks. If the United States is actually suggesting that the court come up with an ad hoc proposal for each batch of promotions, this solution is subject to the same deficiencies noted with respect to the Department's proposal to the court. See supra, at 172-173. "The imposition of the District Court's requirement with respect to the ranks beyond corporal was also clearly justified. At the time the District Court imposed the corporal-promotion ratio, it had required the Department to submit for its approval a schedule for the development of promotion procedures for all ranks above the entry-level position "based upon realistic expectations." Paradise v. Prescott, 585 F. Supp. 72, 75 (MD Ala. 1983). The Department complied, proposing periods of time ranging from 5 months for the position of corporal to 24 months for the position of major. 2 Record 569-570. Thus far, all procedures have been submitted in a timely manner preventing any imposition of the one-for-one requirement in 149 Opinion of BRENNAN, J. We conclude that in 1983, when the District Judge entered his order, "it is doubtful, given [the Department's] history in this litigation, that the District Court had available to it any other effective remedy." Sheet Metal Workers, 478 U. S., at 486 (POWELL, J., concurring in part and concurring in judgment).28 B The features of the one-for-one requirement and its actual operation indicate that it is flexible in application at all ranks. The requirement may be waived if no qualified black candidates are available. The Department has, for example, been permitted to promote only white troopers to the ranks of lieutenant and captain since no black troopers have qualified for those positions. Further, it applies only when the Depart the upper ranks. The record indicates that, while the order itself is a continuing one, its application is entirely contingent on the repetition of the exact circumstances that prompted its initial formulation. The District Court will resort to the quota again only if confronted with further delay by the Department in implementing a neutral promotion procedure according to the schedule the Department itself proposed. Thus, any future use of the one-for-one requirement will be lawful for the same reason that justified the District Judge in ordering the promotion of eight blacks and eight whites to the rank of corporal: only in the event the Department fails to meet its court-approved commitments. We cannot anticipate that this will occur. JUSTICE O'CONNOR's dissent states that the District Court's order was issued "after no evident consideration of the available alternatives," post, at 201, and asserts that a trustee could have been appointed to develop an acceptable promotion procedure or that a combination of other penalties could have been imposed, achieving the same results without the imposition of race-conscious relief. Again we note that these "alternatives" were never proposed to the court. And, although we will not repeat the history detailed, supra, at 153-166, we think JUSTICE O'CONNOR's dissent overlooks the District Judge's patient accommodation of the Department's asserted needs and the long history of recalcitrance that preceded the race-conscious order. Finally, as noted in text, supra, at 173-174, any alternative that did not allow the Department to make immediate promotions and that did not compensate the plaintiffs for the delay in implementing the promotion procedure was inadequate. |