United States Court of Appeals Fifth Circuit F I L E D REVISED FEBRUARY 10, 2006 UNITED STATES COURT OF APPEALS January 25, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 04-31163
JEFFREY TODD DEAN, ET AL.
Plaintiffs-Appellants,
VERSUS
THE CITY OF SHREVEPORT,
Defendant-Appellee.
Appeal from the United States District Court For the Western District of Louisiana ( 5:00-CV-2372 )
Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
INTRODUCTION
Plaintiffs-Appellants (“Appellants”) challenge the district
court’s grant of summary judgment in favor of Defendant-Appellee
City of Shreveport (the “City”) dismissing Appellants’ 42 U.S.C. §
1983, Title VII, and Louisiana constitutional and statutory claims.
We affirm in part, reverse in part, and remand the case for further
proceedings consistent with this opinion.
Appellants are white males who were denied employment after
applying to become City firefighters. At the time Appellants applied, the City used a hiring process that placed applicants into
separate lists according to race and sex. The City created its
race-conscious hiring process in an attempt to comply with a 1980
consent decree drafted to end discriminatory hiring practices in
the City’s fire department and to remedy the effects of past
discrimination. Appellants challenge both the decree and the
hiring process.
FACTUAL BACKGROUND
In 1977, the U.S. Department of Justice (“DOJ”) filed a
lawsuit against the City alleging its fire department used racially
and sexually discriminatory hiring practices. To settle the
lawsuit, the City signed a proposed consent decree providing a plan
to end then-current discriminatory practices and remedy the effects
of past discrimination. Although the City signed the decree, it
did not admit to any unlawful discrimination. Because the City
declined to admit to unlawful discrimination, the district court
initially refused to enter the decree. United States v. City of
Alexandria, No. 77-2040, 1977 WL 69 (E.D. La. July 22, 1977).
However, in 1980, this Court reversed the district court and
ordered the decree be entered. United States v. City of
Alexandria, 614 F.2d 1358 (5th Cir. 1980).1
1 We reviewed the decree at that time under a rat ional basis standard of review. City of Alexandria, 614 F.2d at 1363 (inquiring whether the decree was “reasonably related to the legitimate state goal of achieving equality of employment opportunity”). This standard of review no longer applies, and we now strictly scrutinize all race-conscious remedies to ensure they are narrowly tailored to achieve a compelling government interest. City of Richmond v. J.A. Croson Co., 488 U.S.
2 To remedy the effects of past discrimination, the decree sets
forth a long-term goal that the City achieve – subject to the
availability of qualified applicants – the same proportions of
blacks and women in its fire department “as blacks and women bear
to the appropriate work force in the particular jurisdiction.”2
However, the decree does not define “appropriate work force.” The
decree also requires the City to adopt an interim hiring goal of
filling at least fifty percent of all firefighter vacancies with
qualified black applicants and at least fifteen percent with
qualified female applicants. The interim goal remains in effect
until the long-term goal is achieved and maintained for one year.
The decree itself does not mandate any particular hiring
process for meeting its goals. Therefore, the City formed its own
process.3 Phase one requires all firefighter applicants to take
the Civil Service Exam. To pass, an applicant needs a score of at
469, 493-94 (1989). Thus, as we re-evaluate the decree under strict scrutiny, we are not bound by our prior approval of it under the rational basis standard. 2 The decree is published as an appendix to City of Alexandria, 614 F.2d at 1367-72. 3 The City’s hiring process remained substantially the same from the time the decree was entered until Appellants were denied employment between 2000 and 2002. In 2004, the City changed its hiring process. The City claims it continues to strive toward the interim and long-term goals in the decree, but that its new hiring process is race-neutral. Much to this Court’s dissatisfaction, the City has kept secret the details of its new hiring process. In addition, the City has failed to explain how it expects its new allegedly race-neutral hiring process to meet the goals of the decree when its old race-conscious process apparently did not. In any event, we limit our analysis to the hiring process the City used at the time Appellants were denied employment because it is that process Appellants argue violated their rights. We refer to the City’s old hiring process in the present tense in our opinion purely to avoid continuous, and possibly confusing, tense changes.
3 least seventy-five. Points are then added to the scores of
applicants with prior emergency medical or paramedic training or
military service. When the final numerical scores are calculated,
the applicants are separated into three lists: a white male list,
a black male list, and a female list. Each list is ranked by exam
score from highest to lowest. The City then determines how many
firefighter positions it needs to fill. Finally, starting with the
highest exam score on each list, the City selects approximately
twice as many applicants as vacant spots to proceed to phase two of
the hiring process. Of those selected to proceed, fifty percent of
the males are white and fifty percent are black. Every female who
receives a seventy-five on the exam usually proceeds to phase two
because of the extremely low number of female applicants.
Phase two includes six additional steps an applicant must pass
to become a firefighter: (1) an agility test; (2) a general
preliminary interview, screening for disqualifying conduct, such as
drug use; (3) a criminal background check; (4) a polygraph exam;
(5) a psychological exam and interview; and (6) a medical exam. An
applicant who fails any step is immediately denied employment. An
applicant who passes each step is immediately awarded employment.
Under this hiring process, Appellants’ exam scores in phase
one were too low on the white male list to proceed to phase two.
PROCEDURAL HISTORY
In October 2000, Appellant Jeffery Todd Dean (“Dean”), an
4 unsuccessful white male applicant, sued the City under 42 U.S.C. §
1983, alleging the decree and the hiring process violate the Equal
Protection Clause of the Fourteenth Amendment. Dean and the City
filed cross-motions for summary judgment. In 2002, during the
pendency of those motions, eight additional white male applicants
brought similar discrimination suits against the City. In addition
to Dean’s equal protection claim, they asserted claims under Title
VII, the Louisiana Constitution, and a Louisiana anti-
discrimination employment statute.4 The cases were consolidated
with Dean’s, and all eight joined his pending motion for summary
judgment. All parties stipulated to proceed before a magistrate
judge. In October 2004, the magistrate judge denied Dean’s motion
for summary judgment and granted the City’s, dismissing all claims
against the City. This timely appeal followed.
DISCUSSION
I. Applicable Standard of Review
We review a district court’s grant of summary judgment de novo
and apply the same standards as the district court. Daniels v.
City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Summary
judgment is proper only “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
4 We address a total of four claims on appeal. However, not all nine Appellants brought each of these claims below. Therefore, on remand the district court’s first order of business will be to determine the effects of our decision today on each individual Appellant.
5 material fact and that the moving party is entitled to judgment as
a matter of law.” FED. R. CIV. P. 56(c); see also Priester v.
Lowndes County, 354 F.3d 414, 419 (5th Cir. 2004). “If the moving
party meets the initial burden of showing there is no genuine issue
of material fact, the burden shifts to the nonmoving party to
produce evidence or designate specific facts showing the existence
of a genuine issue for trial.” Priester, 354 F.3d at 419. We
resolve doubts in favor of the nonmoving party and make all
reasonable inferences in favor of that party. Id.
II. Appellants’ Equal Protection Clause Claim
Appellants first contend that the consent decree and the
City’s hiring process violate their right to equal protection under
the United States Constitution.
a. Strict Scrutiny
The Equal Protection Clause of the Fourteenth Amendment
provides that “[n]o State shall . . . deny to any person within its
jurisdiction the equal protection of the laws.” U.S. CONST. amend.
XIV, § 1 (emphasis added); see also City of Richmond v. J.A. Croson
Co., 488 U.S. 469, 493 (1989). “Classifications based on race
carry a danger of stigmatic harm . . . [and] may in fact promote
notions of racial inferiority and lead to a politics of racial
hostility.” Croson, 488 U.S. at 493. Thus, all race-conscious
measures receive strict scrutiny review under the Equal Protection
Clause. See id. at 493-94; see also Black Fire Fighters Ass’n v.
6 City of Dallas, 19 F.3d 992, 995 n.6 (5th Cir. 1994) (explaining
that this standard applies to consent decrees). Strict scrutiny
review demands that a race-conscious measure be (1) justified by a
compelling government interest and (2) narrowly tailored to further
that interest. Police Ass’n ex rel. Cannatella v. City of New
Orleans, 100 F.3d 1159, 1167 (5th Cir. 1996).
1. Compelling Interest
It is well settled that the government has a compelling
interest in remedying its own past discrimination. See United
States v. Paradise, 480 U.S. 149, 167 (1987). However, a general
assertion of past societal discrimination is insufficient. See
Croson, 488 U.S. at 499. Rather, the government must justify its
action with a showing of past discrimination by the governmental
unit seeking to use the race-conscious remedy. See id. at 495-97;
see also Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986);
Police Ass’n, 100 F.3d at 1168.
The Supreme Court has offered little guidance as to how much
evidence of past discrimination is required. Id. However,
“[t]here is no doubt that ‘[w]here gross statistical disparities
can be shown, they alone in a proper case may constitute prima
facie proof of a pattern or practice of discrimination.’” Croson,
488 U.S. at 501 (alteration in original) (quoting Hazelwood Sch.
Dist. v. United States, 433 U.S. 299, 307-08 (1977)). The relevant
statistical comparison is between the number of minorities in the
7 work force of the governmental unit and “the number of minorities
qualified to undertake the particular task.” See Croson, 488 U.S.
at 502.
Appellants argue that even in 1980, the City had no compelling
interest to justify the decree or a race-conscious hiring process.
Appellants point out that the decree is not based on any formal
factual finding of past discrimination. Further, the City’s hiring
process was adopted solely to comply with the goals of the decree.
Appellants urge us to hold that a governmental unit may use a race-
conscious remedy only after a formal judicial, legislative, or
administrative finding of past discrimination. The City maintains
that in 1980 it clearly had a compelling interest. The City
concedes that a formal finding of past discrimination was never
made, but insists that one was not required.
We agree with the City. Nothing in Supreme Court or Fifth
Circuit precedent compels us to require a formal finding of
discrimination prior to the use of a race-conscious remedy. To the
contrary, in Police Ass’n, 100 F.3d at 1167-68, we stated that
“Croson does not require a city to incriminate itself by proving
its own participation in past discrimination.” It is when a
remedial program is challenged that a trial court must make a
factual determination that there was a strong basis in evidence for
the conclusion that remedial action was necessary. Thus, what we
meant in Police Ass’n was that the government need not incriminate
8 itself with a formal finding of discrimination prior to using a
race-conscious remedy, but if the remedy is later challenged, a
court must determine there was a strong evidentiary basis for its
enactment. This approach is consistent with pre-Croson Supreme
Court precedent. See Wygant, 476 U.S. at 277 (explaining that
“[e]videntiary support for the conclusion that remedial action is
warranted becomes crucial when the remedial program is challenged
in court by nonminorit[ies]” (emphasis added)); see also id. at 289
(O’Connor, J., concurring) (agreeing that “a contemporaneous or
antecedent finding of past discrimination . . . is not a
constitutional prerequisite . . . to an affirmative action plan”
(emphasis added)). This approach is also in line with other
circuits that have addressed the issue. See, e.g., Aiken v. City
of Memphis, 37 F.3d 1155, 1162-63 (6th Cir. 1994) (“No formal
finding of past discrimination by the government unit involved is
necessary . . . .”); see also In re Birmingham Reverse
Discrimination Employment Litig., 20 F.3d 1525, 1539 (11th Cir.
1994) (explaining that the government “was not required to make
formal findings about its own past discrimination--it merely had to
have a strong basis in evidence”(emphasis added)). Thus, to the
extent our prior decisions were unclear, we now clarify that when
a governmental unit employs a race-conscious remedy, it need not
have already made a formal finding of past discrimination.
Nevertheless, if the remedy is later challenged, the reviewing
9 court must ensure there was strong evidence of past discrimination
warranting the remedy. We turn now to whether strong evidence of
discrimination existed in this case, such that in 1980 the City had
a compelling interest in remedying it.
The district court concluded that the City made an adequate
showing of past discrimination. We agree. Prior to 1974, the
City’s fire department had never hired a black employee. In 1974,
after it was sued by black applicants alleging racially
discriminatory hiring practices, the City hired three black
firefighters. After the lawsuit was settled, the City hired no
black employees in 1975, just one black firefighter in 1976, and no
black employees in 1977. In 1977, another lawsuit was brought
against the City, this time by the DOJ, alleging racially and
sexually discriminatory hiring practices. In the time between the
1977 lawsuit and the 1980 decree, the City hired only six
additional black firefighters. Thus, when the decree was entered
to settle the DOJ lawsuit, only 10 of the City’s 270 firefighters
were black.5 At that time, blacks accounted for approximately
forty percent of the general population in the City of Shreveport.
Further, the City now admits it systematically excluded all black
applicants prior to 1974 and hired the few it did between 1974 and
1980 in response to pending lawsuits. Appellants do not contest
these statistics and offer no alternative explanation for them,
5 By 1980, the City still had not hired a single female firefighter.
10 expert or otherwise.
We recognize that the relevant comparison when determining
whether discrimination existed is between the number of black
firefighters in the City’s fire department and the “number of
[blacks] qualified to undertake the particular task,” see Croson,
488 U.S. at 502, not the number of blacks in the general
population, see id. We are also aware that the City has not
presented a precise calculation of how many black applicants were
qualified to become firefighters in the years leading up to the
1980 decree. Nevertheless, we find it inconceivable that the
number of qualified blacks was an “emphatic zero.” See Dean v.
City of Shreveport, No. 00-2372, slip op. at 14 (W.D. La. Oct. 22,
2004) (quoting Guice v. Fortenberry, 661 F.2d 496, 505 (5th Cir.
1981) (en banc)).
In most cases, a governmental unit’s failure to provide
statistical data comparing the number of minorities in its work
force with the number of minorities qualified to undertake the
particular task, rather than the number of minorities in the
general population, will prove fatal to an attempt to show past
discrimination. See, e.g., Croson, 488 U.S. at 501-02 (finding no
compelling interest in remedying past discrimination because the
government failed to show how many minorities in the relevant
market were qualified to undertake the particular task). But in
rare cases, the statistical disparity may be so great between a
11 particular work force and the general population that, along with
other overwhelming evidence, it may provide us with an adequate
basis to conclude no genuine factual issue remains regarding the
existence of past discrimination.
This is such a case. In addition to the fact that the City
hired no black employees prior to 1974 and only 10 black
firefighters as of 1980, the overwhelming evidence shows that (1)
the City now admits that for over 100 years it systematically
excluded all minorities from its fire department; (2) the City has
been sued numerous times for racial and sexual discrimination; and
(3) Appellants have failed to offer any alternative explanation,
expert or otherwise, for the gross statistical disparity.
Therefore, the district court properly concluded that the City had
a compelling interest in 1980 to enter into the decree and
implement a race-conscious hiring process.6
The City argues that this conclusion ends our compelling
interest inquiry. We disagree. In addition to showing past
6 Again, we do not intend to suggest a statistical disparity between a work force and the general population, without additional overwhelming evidence, is enough to show past discrimination. Had the City not admitted to systematically excluding blacks from its work force and twice previously been sued for racial discrimination, our decision today might have been different. See Paradise, 480 U.S. at 169 (taking into account that the governmental unit systematically excluded minorities and had previously faced numerous allegations of racial discrimination). Similarly, our decision might have been different had Appellants rebutted the City’s evidence or offered an alternative explanation, thereby raising some genuine factual issue. See Priester v. Lowndes County, 354 F.3d 414, 419 (5th Cir. 2004) (explaining that after the moving party meets it initial burden of showing no genuine issue of material fact remains, the burden shifts to the nonmoving party to raise one by producing evidence or by pointing to specific facts).
12 discrimination, the City must also convince us that when Appellants
were denied employment between 2000 and 2002, lingering effects of
past discrimination still necessitated a race-conscious remedy.
See Paradise, 480 U.S. at 169-70 (focusing repeatedly on whether
any remaining effects of past discrimination still warranted a
race-conscious remedy); see also Police Ass’n, 100 F.3d 1168-69
(same). If the effects of past discrimination no longer existed
when Appellants were denied employment, the City no longer had a
compelling interest to justify a race-conscious remedy. See
Paradise, 480 U.S. at 169-70; see also Police Ass’n, 100 F.3d 1168-
69. The district court in error focused solely on whether the City
had a compelling interest in 1980. See Dean, slip op. at 13-15.
Thus, we must determine on appeal whether any effects of the City’s
past discrimination still existed when Appellants were denied
employment, such that the City still had a compelling interest to
justify its race-conscious remedy at that time.
Again, as mandated by Croson, 488 U.S. at 501-02, the relevant
statistical comparison is between the number of blacks in the
City’s fire department and the number of blacks qualified to
undertake the particular task. Thus, in order to demonstrate that
its remedy was still necessary between 2000 and 2002, the City had
to show what percentage of its qualified applicant pool was black
during that time period. The City did not do so. The record is
entirely inconsistent regarding this issue, and the district court
13 failed to address it.
For example, Fire Chief Kelvin J. Cochran (“Chief Cochran”)
was asked in his deposition, “Do you know of any study or anything
that would indicate what the pool of available qualified applicants
might be blacks and women?” He responded, “No, ma’am.” Chief
Cochran was later asked, “To your knowledge, is there any kind of
study available . . . that would give some information on what the
actual demographics are for your fire district area or your hiring
area?” He again responded, “No, ma’am.”
Attempting to provide this crucial data, the City later hired
an expert statistician to calculate the demographics of its
qualified labor pool.7 The expert’s conclusions rested on the
assumption that the percentage of blacks passing the Civil Service
Exam established the percentage of blacks in the qualified labor
pool. We see numerous problems with this assumption, all of which
will require careful consideration on remand.
First, it is inappropriate to rely on an expert statistician
with a Ph.D. in Economics to determine what makes an applicant
qualified to become a firefighter. The City, its fire department,
or a vocational expert must make this determination. See Olson v.
Schweiker, 663 F.2d 593, 596-97 (5th Cir. 1981) (using a vocational
7 The DOJ also attempted to determine whether a statistical disparity existed between the fire department’s work force and its qualified labor pool. After an initial conclusion in 2002 that there was no disparity, the DOJ later concluded it “lacked [the] essential data necessary to render a determination.” This illustrates the need for further factual development on remand.
14 expert to determine whether plaintiff was qualified for particular
positions); see also New Orleans (Gulfwide) Stevedores v. Turner,
661 F.2d 1031, 1035 (5th Cir. 1981) (same); Simons v. Sullivan, 915
F.2d 1223, 1224 (8th Cir. 1990) (same); Noble v. Ala. Dep’t of
Envtl. Mgmt., 872 F.2d 361, 363 (11th Cir. 1989) (deferring to the
state agency when establishing what qualifications were required
for certain state positions). A statistician, after he is informed
what a qualified applicant is, may then calculate the demographics
of the qualified labor pool. Second, the fire department itself
contradicts its own expert’s definition of a qualified applicant.
The expert defined qualified applicants as those having passed the
Civil Service Exam. Yet the City maintains, and the district court
stated in its ruling, “there is no evidence that persons with
higher passing scores make better fire[fighters] than those with
low passing scores.” Dean, slip op. at 17. We fail to understand
how passing scores conclusively establish the demographics of the
qualified applicant pool if passing scores mean nothing with
respect to predicting the quality of future firefighters. Third,
logic cuts against equating the percentage of blacks who pass the
Civil Service Exam with the percentage of blacks in the qualified
labor pool. Equating the two percentages ignores the six
subsequent steps an applicant must successfully pass in order to
become a firefighter, including: (1) an agility test; (2) a general
preliminary interview, screening for disqualifying conduct, such as
15 drug use; (3) a criminal background check; (4) a polygraph exam;
(5) a psychological exam and interview; and (6) a medical exam.
Surely, an applicant who receives a passing score but then fails
one of these requirements is not qualified.
On remand, the City must properly define a “qualified
applicant.” It must then provide reliable statistical data showing
the percentages of blacks in its work force and in its qualified
labor pool between 2000 and 2002. Only when the district court has
this information can it properly decide whether a sufficient
disparity still existed. Until then, a genuine issue of material
fact remains, thereby preventing a legal analysis of whether the
City’s race-conscious remedy was still necessary between 2000 and
2002. Although this alone requires us to reverse the district
court’s judgment and remand the case for further factual
development, we will also review the court’s narrow tailoring
analysis.
2. Narrow Tailoring
The Supreme Court has focused on the following factors
(“Paradise factors”) when reviewing a race-conscious remedy to
ensure it is narrowly tailored: the necessity of the particular
relief and the efficacy of alternative remedies; the flexibility
and duration of the relief, including the availability of waiver
provisions; the relationship between the numerical goal of the
relief and the relevant labor market; and the impact of the relief
16 on the rights of third parties. See Paradise, 480 U.S. at 171; see
also Black Fire Fighters Ass’n, 19 F.3d at 995. Considering these
factors, it is clear that additional factual issues still remain,
such that we cannot properly conduct a narrow tailoring analysis on
this record. However, we briefly discuss each Paradise factor to
highlight legal errors in the district court’s analysis and
specific factual disputes that must be resolved on remand.
a. Necessity of the Particular Relief and Efficacy of Alternative Remedies
The district court concluded that the decree’s interim hiring
goal and the City’s hiring process were necessary remedies. The
court also decided that alternative remedies would have been
insufficient to remedy past discrimination. For the same reason
that we cannot complete our compelling government interest analysis
at this time--namely, the City’s failure to explain the
demographics of its qualified labor pool--we cannot properly review
and weigh the first Paradise factor. We will not be able to
determine whether the remedies in this case were necessary between
2000 and 2002, or whether alternative remedies would have sufficed,
until we know what statistical disparity still existed at that
time, if one still existed at all, between the fire department’s
work force and its qualified labor pool.
However, before moving on to the next Paradise factor, we must
point out numerous legal errors in the district court’s analysis of
this factor. The court reasoned that “[t]he absolute lack of black
17 or female fire[fighters] prior to the institution of [the 1973]
litigation, followed by a lapse in minority hiring until . . . the
[1980] consent decree,” made strong remedial measures necessary.
See Dean, slip op. at 16. This may have been true in 1980.
However, these events alone do not illustrate whether strong
measures were still necessary when Appellants were denied
employment. To the extent the district court focused on whether
the remedies were necessary in 1980, instead of between 2000 and
2002, it erred. There is no legal basis for the conclusion that
because a particular race-conscious remedy was necessary at one
point in time, it is still necessary two decades later. See
Paradise, 480 U.S. at 171-72 (focusing on whether the race-
conscious remedy was still necessary when plaintiffs were denied
promotions); see also Police Ass’n, 100 F.3d 1169 (same). On
remand, the City must show that the decree and hiring process were
necessary when Appellants were denied employment between 2000 and
2002.
The district court similarly erred in its analysis of the
efficacy of alternative remedies. By focusing on the time leading
up to the 1980 decree, the court could not have properly analyzed
whether alternative remedies would have sufficed when Appellants
were denied employment. The fact that alternative measures would
have been insufficient in 1980 does not indicate whether they would
have been insufficient when Appellants were denied employment. On
18 remand, the City must show that race-neutral or less intrusive
remedies would have been insufficient between 2000 and 2002.
In addition, the record is currently too inconsistent to
determine what alternative remedies, if any, the City has already
attempted and whether those or any others will suffice. For
example, one alternative to race-conscious hiring is increased
recruiting efforts targeting minorities. In his deposition, Chief
Cochran stated that when the City recruits, it “does not
specifically target black and female applicants.” But in the same
deposition he stated that the City specifically targets blacks by
“targeting the African-American churches.” When asked whether the
City’s recruiting policy is adequately geared towards attracting
minorities, Chief Cochran admitted, “the City has never done any
kind of self-evaluation to see if its recruiting efforts are
appropriate for recruiting minorities and women.” Thus, the
efficacy of alternative measures remains a genuine issue of
material fact that must be resolved on remand.
b. Flexibility and Duration
The district court found the decree and the hiring process
adequately flexible. The court also decided that their long
duration did not preclude finding the remedies narrowly tailored.
The primary question when analyzing a remedy’s flexibility is
whether its requirements may be waived. See Paradise, 480 U.S. at
177 (focusing its flexibility analysis solely on whether
19 requirements could be waived). If they may, the remedy is
adequately flexible. See id. The decree requires the City to
adopt the long-term goal of achieving, subject to the availability
of qualified applicants, the same proportions of blacks and women
in its fire department “as blacks and women bear to the appropriate
work force in the particular jurisdiction.” It also requires the
City to adopt an interim goal of hiring at least fifty percent
black and fifteen percent female employees until the long-term goal
is achieved and maintained for one year. The goal of the hiring
process parallels the interim goal in the decree. While the decree
does not allow the goals to be waived, it does specify that they
are “subject to the availability of qualified applicants.”
Despite this explicit exception, Appellants argue that the
decree and hiring policy require a rigid fifty percent racial
quota. The City, relying on the waiver provision, insists both are
flexible. The City also points out that since 1980, it has hired
less than fifty percent black employees in all but two hiring
classes. We agree with the district court that the remedies are
adequately flexible. We do so because the remedies here, as far as
their flexibility is concerned, parallel the flexibility of the
remedy in Paradise. In that case, the Alabama Department of Public
Safety was required to award half of all state trooper promotions
to black employees. Paradise, 480 U.S. at 153. However, the
requirement was contingent on the availability of qualified
20 candidates. Id. at 177. This alone satisfied the flexibility
requirement. Id. at 177-78. Like the remedy in Paradise, the
remedies here are contingent on the availability of qualified
applicants and are therefore adequately flexible.
The central theme of a duration analysis is that the shorter
the life-span of the remedy, the more likely it is narrowly
tailored. See Paradise, 480 U.S. at 178. The City’s obligations
under the decree end when it achieves its long-term goal, that is,
when the City achieves the same proportions of blacks and women in
its fire department “as blacks and women bear to the appropriate
work force.” In order to estimate when a particular goal might be
achieved, the goal must be clear. Thus, here it must be clear what
proportions “blacks and women bear to the appropriate work force.”
Determining this requires a precise definition of the phrase
“appropriate work force.” We have no precise definition.8
8 Contrary to Appellants’ contention, we did not define the “appropriate work force” in United States v. City of Alexandria, 614 F.2d 1358 (5th Cir. 1980). However, we did state that the decree “established long term goals of achieving . . . the same percentages of blacks and women as are present in the workforces in the various affected localities.” Id. at 1362. Appellants argue this statement conclusively established the goal of the decree as achieving a percentage of blacks in the fire department equal to that in the general population. Appellants also insist we are now bound by that statement. This would make the goal of the decree unconstitutional under Croson, 488 U.S. at 501-02. We disagree with Appellants for several reasons. First, by elevating the standard of review to strict scrutiny, Croson, 488 U.S. at 494, effectively overruled our holding in City of Alexandria. Second, the definition of the phrase “appropriate work force” was not at issue in that case. See generally City of Alexandria, 614 F.2d at 1361-67. Third, our statement referring to “the workforces,” id. at 1362, may have been shorthand for “the appropriate work forces,” to which the plain language of the decree refers. In any event, we are not bound today by our alleged interpretation of the decree, or our subsequent approval of it, in City of Alexandria.
21 Therefore, the City’s goal remains unclear, and we cannot properly
analyze duration.
When interpreting a consent decree, general principles of
contract interpretation govern. United States v. Chromalloy Am.
Corp., 158 F.3d 345, 349 (5th Cir. 1998). We begin by looking to
the “four corners” of the decree. Id. at 350. We will then look
to extrinsic evidence if the decree is ambiguous. N. Shore Lab.
Corp. v. Cohen, 721 F.2d 514, 519 (5th Cir. 1983). A decree “is
ambiguous when it is reasonably susceptible to more than one
meaning, in light of surrounding circumstances and established
rules of construction.” Id.
We find the phrase “appropriate work force” ambiguous as a
matter of law. The decree itself sheds no light on what the
adjective “appropriate” means in this context. Because we cannot
decipher its meaning within the four corners of the decree, we need
extrinsic evidence to aid our interpretation. We have none. For
example, we have no preliminary drafts of the consent decree or
correspondence between the parties during negotiations. This
evidence would help us determine what the parties meant by
“appropriate work force.” Without extrinsic evidence, we have no
reason to choose one possible definition over another. Because the
phrase “appropriate work force” was not defined by the district
court, and because we are unable to do so without extrinsic
evidence, the issue must be resolved on remand.
22 We also stress that regardless of the outcome of the issue on
remand, the duration component of this Paradise factor will favor
Appellants, at least to some degree. The durations of the remedies
in this case are breathtakingly long in comparison to others we
have reviewed.9 Edwards v. City of Houston, 78 F.3d 983, 1002
(5th Cir. 1996) (en banc), involved a consent decree that allowed
a police department to promote a certain number of minority
officers to sergeant and lieutenant.10 The remedy was to last no
longer than five years. Id. In Black Fire Fighters Ass’n, 19 F.3d
at 997, we struck down a consent decree that allowed a fire
department to promote a certain number of minorities to higher
ranking positions. We found the remedy not to be narrowly tailored
even though it lasted for only three years. Id. Finally, in
Police Ass’n, 100 F.3d at 1173, we again struck down a race-
conscious promotional plan. We found the remedy not to be narrowly
tailored even though it was a one-time set of promotions, not an
ongoing plan. Id. at 1169.
Therefore, the durations of the remedies in this case are
already considerably longer than those in any of our previous
cases. Thus, this factor will weigh in Appellants’ favor
9 In the midst of this litigation in 2004, the City changed its hiring process. Nevertheless, we cannot ignore the fact that when Appellants’ claims arose, the process had been used for over twenty years. The decree had been in effect for just as long, and continues to this day. 10 Although we did not reach the merits regarding the consent decree’s constitutionality in Edwards, we refer to the case to illustrate just how long the durations of the remedies in this case are in relation to others we have been confronted with in the past.
23 regardless of how soon the district court determines the remedies
might end. We point this out only to emphasize that in order for
these remedies to be upheld on remand, other Paradise factors must
strongly suggest they are narrowly tailored.
On remand, the district court must determine, using extrinsic
evidence, the decree’s precise long-term goal by defining the
“appropriate work force.” It must then estimate how long it will
take for the City to achieve that goal. When an approximate end
date is known, the district court can then re-weigh the duration
factor, keeping in mind the past precedent we have just
highlighted.
c. Relationship Between the Numerical Goal and the Relevant Labor Market
The district court conducted no meaningful analysis of this
factor. Nor could it have. The long-term numerical goal of a
race-conscious remedy must be closely tied to the relevant labor
market. See Paradise, 480 U.S. at 179. To weigh this factor,
common sense demands we first know the remedy’s numerical goal and
the relevant labor market. As discussed above, we know neither.
Croson mandates the number of minorities in the relevant labor
market be determined by the “number of minorities qualified to
undertake the particular task.” Croson, 488 U.S. at 502. As we
pointed out first in our compelling interest analysis, and again in
the necessity and efficacy portion of our narrow tailoring
analysis, the City has not provided us with the demographics of its
24 qualified applicant pool. Therefore, we cannot properly define the
“relevant labor market.” This alone prevents us from reviewing and
weighing this factor. Further, as discussed in our duration
analysis, the long-term goal of the decree is unclear. Until we
know the numerical goal of the decree and the relevant labor
market, the relationship between the numerical goal and the
relevant labor market remains a genuine issue of material fact to
be resolved on remand.
d. Impact of the Relief on Third Parties
The final Paradise factor ensures a remedy does “not impose
an unacceptable burden on innocent third parties.” Paradise, 480
U.S. at 182. The district court found the impact on third parties
“not overly significant” in this case. See Dean, slip op. at 18.
The Supreme Court has given little guidance on this factor, but has
made a few things clear. First, remedies requiring nonminorities
to be fired impose a severe, and possibly unacceptable, burden on
third parties. Paradise, 480 U.S. at 182. Hiring preferences are
less burdensome. See id. Second, remedies allowing unqualified
minorities to be hired are likely not narrowly tailored. See id.
at 183. Third, remedies merely postponing a benefit to third
parties are less burdensome than ones permanently denying a
benefit. See id.
We agree with the district court that the impact on
nonminorities is not significant enough to make the decree and
25 hiring policy unconstitutional per se. We do so because the
remedies in this case have all three characteristics the Supreme
Court has previously said favor a finding of narrow tailoring
within the context of this factor: (1) they do not require
nonminorities to be fired; (2) they do not require unqualified
minorities to be hired; and (3) they do not pose an absolute bar to
nonminority employment. Paradise, 480 U.S. at 182-83. This factor
alone does not prevent a finding of narrow tailoring.
In sum, the district court on remand must develop the record
further and re-evaluate both whether the decree and the hiring
process were still justified at the time of suit by a compelling
government interest and whether they were narrowly tailored to
further that interest.
III. Appellants’ Title VII Claim
Appellants also argue that the City’s hiring process violates
Title VII. Specifically, Appellants refer us to 42 U.S.C. § 2000e-
2(l), which was added to Title VII in 1991 and provides that “[i]t
shall be an unlawful employment practice . . . in connection with
the selection or referral of applicants or candidates for
employment . . . to adjust the scores of, use different cutoff
scores for, or otherwise alter the results of, employment related
tests on the basis of race, color, religion, sex, or national
origin.” § 2000e-2(l) (emphasis added) Appellants claim that by
separating applicants’ Civil Service Exam scores by race, the City
26 in effect uses different cutoff scores on the basis of race. We
agree that the City’s hiring process violates the plain language of
section 2000e-2(l).
First, we must point out that our decision that the City’s
hiring process violates section 2000e-2(l) will stand even if on
remand the district court finds that the hiring process passes
scrutiny under the Equal Protection Clause. That is, even if the
process is “upheld as a valid method of affirmative action,”
Chicago Firefighters Local 2 v. City of Chicago, 249 F.3d 649, 656
(7th Cir. 2001), it nevertheless violates the specific prohibitions
of section 2000e-2(l). See id. (recognizing that the practice of
“banding” test scores is an acceptable form of affirmative action
under other Title VII provisions and the Equal Protection Clause,
but continuing on to determine whether that practice violated
section 2000e-2(l)).
Appellants insist that the City violates section 2000e-2(l)
when, pursuant to its hiring policy, it ranks test takers from
highest to lowest exam score, but then separates those scores
according to race and sex. The City responds, and the district
court held, that the hiring process does not violate the statute
because “[e]very applicant, black or white, ha[s] to score at least
a seventy-five to pass the Civil Service Exam.” Dean, slip op. at
20. This conclusion is incomplete, however, because it focuses
only on the initial portion of phase one of the City’s hiring
27 process instead of on the entire process. The City is correct that
all applicants are subject to the same initial requirement at phase
one -- a score of at least seventy-five on the Civil Service Exam.
Our analysis, however, cannot stop there because the City uses the
test scores again at another important step in the hiring process.
A passing score of seventy-five only makes applicants eligible for
further consideration. Later in the process the City again uses
the exam scores to choose which applicants will proceed to phase
two of the hiring process. The City separates applicants’ exam
scores by race and sex and selects the same number of blacks and
whites to proceed, starting with the highest exam score on each
segregated list.
This method of selection between phase one and phase two
violates the plain language of section 2000e-2(l) because it has
the practical effect of requiring different cutoff scores, based
solely on race and sex, for continuing further in the hiring
process. We see no reason to ignore a clear violation of section
2000e-2(l) between phase one and phase two simply because at the
outset of phase one the same cutoff score is required of all
applicants. Compliance with section 2000e-2(l) is required at all
times during employment activities carried out “in connection with
employment.” See 42 U.S.C. § 2000e-2(l).
We find that the City’s hiring process violates Title VII.
28 Therefore, we reverse the district court’s dismissal of Appellants’
Title VII claim.
IV. Appellants’ Louisiana Constitutional Claim
Appellants’ next contention is that the City’s hiring process
violates the Louisiana Constitution. Appellants point to Article
I, Section 3, which states not only that “[n]o person shall be
denied the equal protection of the Laws,” but also that “[n]o law
shall discriminate against a person because of race.” The district
court, after determining that the City’s hiring process survived
scrutiny under the United States Constitution, held that regardless
of whether the hiring process violates the Louisiana Constitution,
“Louisiana law must bow to federal law, which is the supreme law of
the land.” Dean, slip op. at 21. On appeal, the City simply
states that even if its hiring process violates the Louisiana
Constitution, the consent decree shields the City from liability
because it “preempts state law.” We disagree and find that the
district court erred in determining that preemption affords the
City any form of protection from possible violations of state law.
Clearly, had the City been required by federal law to
implement its hiring process to redress a past federal
constitutional violation, federal law would preempt the Louisiana
Constitution. See In re Birmingham Reverse Discrimination
Employment Litig., 833 F.2d 1492, 1501 (11th Cir. 1987). But that
is not the situation we face here. The City originally denied that
29 it had engaged in intentional discrimination and was not found to
be in violation of the United States Constitution. More
importantly, the City was never ordered by a federal court, nor
mandated by any other federal law, to enter into the consent
decree. Rather, the City did so voluntarily. Thus, in the eyes of
the law the City’s hiring process is nothing more than a voluntary
affirmative action program.
As the Eleventh Circuit has stated:
We perceive no reason for treating a consent decree entered pursuant to a voluntary settlement differently from a voluntary affirmative action plan. In both instances, the employer has embarked on a voluntary undertaking; we reject any notion that the memorialization of that voluntary undertaking in the form of a consent decree somehow provides the employer with extra protection against charges of illegal discrimination . . . . It should be emphasized that there has been no judicial determination that the City is liable for past discrimination . . . . Thus . . . we are not presented with a case in which the defendant was required by law to implement an affirmative action program designed to remedy the effects of past discrimination.
In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d
at 1501 (11th Cir. 1987). We think the Eleventh Circuit’s
reasoning is sound. As far as preemption is concerned, a voluntary
consent decree has the same effect on state law as does a voluntary
affirmative action program--none.
Therefore, we need only decide whether the City’s practice of
separating applicants by race during its hiring process violates
the Louisiana Constitution. We think it is beyond dispute that it
30 does. Decisions of the Supreme Court of Louisiana bind us with
regard to the meaning of Louisiana constitutional provisions.
Those decisions make abundantly clear that Article I, Section 3 of
the Louisiana Constitution provides far greater protection against
racial discrimination than does its federal counterpart. See,
e.g., La. Associated Gen. Contractors, Inc. v. State, 669 So. 2d
1185, 1196 (La. 1996). Under the United States Constitution,
classifications based on race are permissible if they are narrowly
tailored to serve a compelling government interest. See Paradise,
480 U.S. at 166-67. However, under the Louisiana Constitution,
classifications based on race “shall be repudiated completely,
regardless of the justification.” La. Associated Gen. Contractors,
Inc., 669 So. 2d at 1198. Under Louisiana law, once it is
determined that a classification based on race has been drawn, the
inquiry is over--Article I, Section 3 of the Louisiana Constitution
has been violated. See id. Here, the City’s hiring process
unquestionably classifies according to race. The City separates
white and black firefighter applicants when deciding which
applicants will proceed to phase two of the hiring process. The
City’s actions violate Article I, Section 3 of the Louisiana
Constitution. Also, even if on remand the district court
determines that the consent decree survives strict scrutiny under
the United States Constitution, an outcome which is far from
certain, the Louisiana Constitution is not preempted because the
31 decree was entered into voluntarily. Therefore, we reverse the
district court’s dismissal of Appellants’ Louisiana constitutional
claim.
V. Appellants’ Louisiana Statutory Claim
Appellants’ final argument is that the City’s hiring process
violates a Louisiana anti-discrimination employment statute.
Appellants note that LA. REV. STAT. ANN. § 23:332(A)(2) (1998) makes
it unlawful for employers in Louisiana to “[i]ntentionally limit,
segregate, or classify . . . employees or applicants . . . in any
way which would deprive or tend to deprive any individual of
employment opportunities, or otherwise adversely affect his status
as an employee, because of the individual’s race, color, religion,
sex, or national origin.”
The district court granted summary judgment in favor of the
City dismissing this claim. We agree with the court’s ruling on
this claim because Appellants’ argument is foreclosed by the plain
language of another subsection of the statute they rely upon, which
provides that “[n]othing contained in [section 23:332] shall be
construed so as to create a cause of action against an employer .
. . for employment practices pursuant to any affirmative action
plan.” LA. REV. STAT. ANN. § 23:332(G) (emphasis added). The
statute make no distinction between valid and invalid affirmative
action plans. See id. Therefore, regardless of the outcome on
remand of Appellants’ remaining claim, the City’s practice of
32 classifying applicants according to race and sex does not violate
this statute. We affirm the district court’s dismissal of
Appellants’ Louisiana statutory claim.
CONCLUSION
Based upon the foregoing, we AFFIRM the district court’s
dismissal of Appellants’ Louisiana statutory claim; we REVERSE its
dismissal of Appellants’ equal protection claim and REMAND the case
for further factual development of the equal protection claim; and
we REVERSE its dismissal of Appellants’ Title VII and Louisiana
constitutional claims, and with respect to the Title VII and
Louisiana constitutional claims, we REMAND the case for further
proceedings concerning the entitlement of each individual Appellant
to relief.
AFFIRMED in part; REVERSED in part; and REMANDED for further