Order Code RL30470
CRS Report for Congress
Received through the CRS Web
Affirmative Action in Employment:
A Legal Overview
Updated April 20, 2006
Charles V. Dale
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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Affirmative Action in Employment: A Legal Overview
Summary
Affirmative action remains at the center of legal and political debate at the
federal, state, and local levels. Seeds of the current legal controversy may be traced
to the early 1960s as first the Warren, and then the Burger Court, grappled with the
seemingly intractable problem of racial segregation in the nation’s public schools.
Judicial rulings from this period recognized an “affirmative duty,” cast upon local
school boards by the Equal Protection Clause, to desegregate formerly “dual school”
systems and to eliminate “root and branch” the last “vestiges” of state-enforced
segregation. Soon after, Congress and the Executive followed the Court’s lead by
approving a panoply of laws and regulations which authorize, either directly or by
judicial or administrative interpretation, “race-conscious” strategies to promote
minority opportunity in jobs, education, and governmental contracting.
The historical model for federal laws and regulations establishing minority
participation “goals” may be found in Executive Orders which since the early 1960s
have imposed affirmative minority hiring and employment requirements on federally
financed construction projects and in connection with other large federal contracts.
Executive Order 11246, as presently administered by the Office of Federal Contract
Compliance Programs, requires that all employers with 50 or more employees, and
federal contracts in excess of $50,000.00, file written affirmative action plans with
the government. These must include minority and female hiring goals and timetables
to which the contractor must commit its “good faith” efforts.
The basic statutory framework for affirmative action in employment derives
from the Civil Rights Act of 1964. Public and private employers with 15 or more
employees are subject to a comprehensive code of equal employment opportunity
regulations under Title VII of the 1964 Act. The Title VII remedial scheme rests
largely on judicial power to order monetary damages and injunctive relief, including
“such affirmative action as may be appropriate,” to make discrimination victims
whole. Except as may be imposed by order of a court to remedy “egregious”
violations of law, however, or by consent decree to settle pending claims, there is no
general statutory obligation on employers to adopt affirmative action plans. But the
EEOC has issued guidelines to protect employers and unions from charges of
“reverse discrimination” when they voluntarily take actions to eliminate the effects
of past discrimination. In addition, federal departments and agencies are required to
periodically formulate affirmative action plans for their employees and a “minority
recruitment program” to correct minority “underrepresentation” in specific federal
job categories.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Judicial Affirmative Action Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Voluntary Affirmative Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Affirmative Action Consent Decrees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Affirmative Recruitment and Outreach Programs . . . . . . . . . . . . . . . . . . . . 12
Military Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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Affirmative Action in Employment: A Legal
Overview
Introduction
Affirmative action remains at the center of legal and political debate at the
federal, state, and local levels. Seeds of the current legal controversy may be traced
to the early 1960s as first the Warren, and then the Burger Court, grappled with the
seemingly intractable problem of racial segregation in the nation’s public schools.
Judicial rulings from this period recognized an “affirmative duty,” cast upon local
school boards by the Equal Protection Clause, to desegregate formerly “dual school”
systems and to eliminate “root and branch” the last “vestiges” of state-enforced
segregation.1 To remedy the legacy of past discrimination, courts eventually turned
to mandatory student reassignment and busing to overcome persisting patterns of
racially imbalanced schools.2 Soon after, Congress and the Executive followed the
Court’s lead by approving a panoply of laws and regulations which authorize, either
directly or by judicial or administrative interpretation, “race-conscious” strategies to
promote minority opportunity in jobs, education, and governmental contracting.
The basic statutory framework for affirmative action in employment derives
from the Civil Rights Act of 1964. Public and private employers with 15 or more
employees are subject to a comprehensive code of equal employment opportunity
regulations under Title VII of the 1964 Act.3 The Title VII remedial scheme rests
largely on judicial power to order monetary damages and injunctive relief, including
“such affirmative action as may be appropriate,”4 to make discrimination victims
whole. Except as may be imposed by order of a court to remedy “egregious”
violations of law, however, or by consent decree to settle pending claims, there is no
general statutory obligation on employers to adopt affirmative action plans. But the
EEOC has issued guidelines to protect employers and unions from charges of
“reverse discrimination” when they voluntarily take actions to eliminate the effects
of past discrimination. In addition, federal departments and agencies are required to
periodically formulate affirmative action plans for their employees5 and a “minority
1 See e.g. Green v. County Board, 391 U.S. 430 (1968); Swann v. Board of Education, 402
U.S. 1 (1971); Keyes v. Denver School District, 413 U.S. 189 (1973).
2 See CRS Report RL30410, Affirmative Action and Diversity in Public Education – Legal
Developments, by Charles V. Dale, for more detailed discussion.
3 42 U.S.C. §§ 2000e et seq.
4 Id. at § 2000e-5(g).
5 Section 717 of the 1972 Amendments to Title VII of the 1964 Civil Rights Act empowers
the EEOC to enforce nondiscrimination policy in federal employment by “necessary and
(continued...)

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CRS-2
recruitment program” to correct minority “underrepresentation” in specific federal
job categories.6
The historical model for federal laws and regulations establishing minority
participation “goals” may be found in Executive Orders which since the early 1960s
have imposed affirmative minority hiring and employment requirements on federally
financed construction projects and in connection with other large federal contracts.
Executive Order 11246, as currently administered by the Office of Federal Contract
Compliance Programs, requires that all employers with 50 or more employees, and
federal contracts in excess of $50,000.00, file written affirmative action plans with
the government. These must include minority and female hiring goals and timetables
to which the contractor must commit its “good faith” efforts. Smaller contractors are
bound by the nondiscrimination requirements of the Executive Order, but are not
required to maintain formal written programs.7 Judicial decisions early on had
upheld the executive order program as a constitutionally valid governmental response
to racial segregation in the construction trades and affected industries.
By the mid-1980s, the Supreme Court had approved the temporary remedial use
of race- or gender-conscious selection criteria by private employers under Title VII.
These measures were deemed a proper remedy for “manifest racial imbalance” in
“traditionally segregated” job categories, if voluntarily adopted by the employer,8 or
for entrenched patterns of “egregious and longstanding” discrimination by the
employer, if imposed by judicial decree.9 In either circumstance, however, the Court
required proof of remedial justification rooted in the employer’s own past
discrimination and its persistent workplace effects. Thus, a “firm basis” in evidence,
as revealed by a “manifest imbalance” – or “historic,” “persistent,” and “egregious”
underrepresentation – of minorities or women in affected job categories was deemed
an essential predicate to preferential affirmative action. Of equal importance, all
racial preferences in employment were to be judged in terms of their adverse impact
5 (...continued)
appropriate” rules, regulations, and orders and through “appropriate remedies, including
reinstatement or hiring of employees, with or without backpay.” 42 U.S.C. § 2000e-16(b).
Each federal department and agency, in turn, is required to prepare annually a “national and
regional equal employment opportunity plan” for submission to the EEOC as part of “an
affirmative program of equal employment opportunity for all . . . employees and applicants
for employment.” 42 U.S.C. § 2000e-16(b)(1).
6 Section 717 was reinforced in 1978 when Congress enacted major federal civil service
reforms, including a mandate for immediate development of a “minority recruitment
program” designed to eliminate “underrepresentation” of minority groups in federal agency
employment. 5 U.S.C. § 7201. The EEOC and Office of Personnel Management have issued
rules to guide implementation and monitoring of minority recruitment programs by
individual federal agencies. Among various other specified requirements, each agency plan
“must include annual specific determinations of underrepresentation for each group and
must be accompanied by quantifiable indices by which progress toward eliminating
underrepresentation can be measured.” 5 C.F.R. § 720.205(b).
7 See 41 C.F.R. §§ 60-1 to 999.
8 United Steelworkers v. Weber, 443 U.S. 193 (1979).
9 Local 28 Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986).

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on “identifiable” non-minority group members. But the consideration of race or
gender as a “plus” factor in employment decisions, when it did not unduly hinder or
“trammel” the “legitimate expectations” of non-minority employees, won ready
judicial acceptance.10 Affirmative action preferences, however, had to be
sufficiently flexible, temporary in duration, and “narrowly tailored” to avoid
becoming rigid “quotas.”
A perennial aspect of the legal debate over affirmative action has centered on
the proper role of the remedy in employment discrimination litigation. One legal
theory emphasizes compensation for actual victims of discrimination, while another
focuses more upon the elimination of barriers to equal opportunity for all members
of a previously excluded class of individuals. In a series of cases during the 1980s,
the Justice Department argued, largely without success, that victim compensation
was the only proper remedial objective and that class-based affirmative action
remedies, which benefit women and minorities who are not themselves actual victims
of an employer’s past discrimination, are illegal. The employment cases to date have
yet to fully embrace this position, although it appears to have gained some footing
in the minority contracting arena.11
Judicial precedents on affirmative action in employment have developed along
two concurrent but not necessarily coterminous lines. One line of authority
delineates the permissible scope of affirmative action imposed by judicial decree to
remedy proven violations of Title VII or the Constitution. The other involves the
validity of voluntary affirmative action plans by public and private employers.
Several basic principles emerge from caselaw developments to date. A fundamental
prerequisite to the adoption of minority goals or preferences is a remedial
justification rooted in the employer’s own past discrimination and its persistent
workplace effects. Stricter probative standards mandated by the Constitution may
bind public employers in this regard than apply to private employers under Title VII.
Basically, a “firm basis” in evidence – as revealed by a “manifest imbalance,”
or “persistent” and “egregious” disparities in the employment of minorities or women
in affected job categories – has been viewed by the courts as an essential predicate
for affirmative action preferences. Secondly, beyond a record of past discrimination
by the employer, all affirmative action plans are judged in terms of the burden they
place on identifiable non-minorities. Thus, remedies that immediately result in the
displacement of more senior white male employees – like promotion preferences or
minority group protections against layoff – are most suspect and least likely to pass
legal or constitutional muster. At the other end of the spectrum, hiring or recruitment
goals or preferences that do not “unnecessarily trammel” the “legitimate
expectations” for advancement of non-minority candidates are more likely to win
judicial acceptance. Finally, all “race-conscious” affirmative action remedies must
10 United States v. Paradise, 480 U.S. 149 (1987); Johnson v. Transportation Agency, 480
U.S. 616 (1987).
11 In City of Richmond v. Croson, 488 U.S. 469 (1989), Justice O’Connor implied that
individual victimization may be the benchmark for any finely-tuned “waiver” procedure
necessary for salvaging Richmond’s minority business set-aside program. This aspect of the
decision was reinforced by Adarand Constructors Inc. v. Pena, 515 U.S. 200 (1995).

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be sufficiently flexible, temporary in duration, and “narrowly tailored” so as to avoid
becoming rigid “quotas.”
Judicial Affirmative Action Remedies
Even before the Supreme Court had spoken, every federal circuit court of
appeals, in cases dating back to the very inception of the 1964 Civil Rights Act, had
approved use of race or gender preferences to remedy “historic,” “egregious,” or
“longstanding” discrimination. This line of judicial authority was ratified by the
Court’s rulings in Local 28, Sheetmetal Workers v. EEOC12 and United States v.
Paradise.13 The former involved contempt proceedings against a union with an
established history of racial and ethnic discrimination for its willful violation of a
judicially imposed 29% minority membership goal. To remedy years of union
evasion, amounting to contempt of court, the Second Circuit had approved an order
reinstating the minority membership goal and requiring that job referrals be made on
the basis of one apprentice for every four journeyman. The Supreme Court affirmed,
five to four.
Justice Brennan wrote for a plurality of four Justices that Title VII does not
preclude race-conscious affirmative action as a “last resort” for cases of “persistent
or egregious” discrimination, or to dissipate the “lingering effects of pervasive
discrimination,” but that, in most cases, only “make whole” relief – in the form of
back pay or specific hiring orders – for individual victims is required. The plurality
also felt that by twice adjusting the union’s deadline, and because of the district
court’s “otherwise flexible application of the membership goal,” the remedy had been
enforced as a “benchmark” of the union’s compliance “rather than as a strict racial
quota.” Rounding out the five-Justice majority for affirmance was Justice Powell,
who emphasized the history of “contemptuous racial discrimination” revealed by the
record, and the temporary and flexible nature of the remedy. In separate dissents,
Justices White and O’Connor found the referral quota excessive because economic
conditions in the construction industry made compliance impracticable, while Chief
Justice Burger and Rehnquist read Title VII to bar all judicially-ordered race-
conscious relief for the benefit of nonvictims.
A parallel situation was presented by Paradise. In 1972, to remedy nearly four
decades of systematic exclusion of blacks from the ranks of the Alabama State
troopers, the district court ordered a hiring quota and enjoined the state from
discriminating in regard to promotions. Seven years later, a series of consent decrees
calling for new nondiscriminatory promotion procedures was approve to rectify the
total dearth of back troopers in the upper ranks. In the interim, however, the court
ordered a one-to-one racial quota for the rank of corporal and above, provided
sufficient qualified blacks were available, until 25% of each rank was black. Only
one round of promotions for corporal was made before the quota for that and the
sergeant rank was suspended. The Supreme Court granted review of the order under
the Equal Protection Clause.
12 478 U.S. 421 (1986)
13 480 U.S. 149 (1987).

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Justice Brennan, whose plurality opinion was again joined by Justices Marshall,
Blackmun, and Powell, considered several factors in determining whether the plan
violated the equal protection rights of white troopers: the necessity of the relief and
the efficacy of alternative remedies, the plan’s flexibility and duration, the
relationship between the plan’s numerical goals and the relevant labor market, and
the plan’s impact on the rights of third parties. Significant was the fact that the order
did not require the promotion of anyone and could be waived in the absence of
qualified minority candidates, as it already had been with respect to lieutenant and
captain positions. It was also tied to the percentage of minorities in the area
workforce, 25%. Finally, because it did not bar white advancement, but merely
postponed it, the plan did not impose unacceptable burdens on innocent third parties.
Justice Brennan therefore concluded that the promotion quota was “narrowly
tailored” and justified by the government’s “compelling” interest in eradicating the
state’s “pervasive, systematic, and obstinate exclusion” of blacks and its history of
resistance to the court’s orders. Justice Stevens, who provided the fifth vote for the
Court’s judgment, stated in a separate opinion that the district court did not exceed
the bounds of “reasonableness” in devising a remedy. Justice O’Connor, joined in
dissent by Justice Scalia and the Chief Justice, found the plan “cannot survive
judicial scrutiny” because the one-to-one promotion quota is not sufficiently tied to
the percentage of blacks eligible for promotion. Finally, Justice White, in a two
sentence dissent, stated simply that the district court “exceeded its equitable powers.”
Voluntary Affirmative Action
The remedial justification for voluntary affirmative action in employment was
explored by the Court’s constitutional analysis in Wygant v. Jackson Board of
Education.14 A collective bargaining agreement between the school board and the
teacher’s union in that case provided a hiring preference for minority teachers
coupled with layoff protection until the minority composition of the faculty mirrored
that of the student body districtwide. Seniority was to govern layoff except that in no
event were overall minority faculty percentages to be reduced. In the face of a
constitutional challenge by ten laid-off white teachers, the Court voided the minority
layoff provision, but no particular rationale commanded majority support.
Seven members of the Wygant Court agreed that some forms of voluntary
affirmative action may be constitutionally justifiable on the part of a governmental
entity itself guilty of past discrimination. However, neither the asserted interest in
the presence of minority teachers as critical “role models,” or to ameliorate “societal
discrimination,” provided “compelling” justification for the layoff plan absent
“convincing” evidence of the board’s own past discrimination. Moreover, while
innocent non-minorities could be made to share some of the burden, the remedy
could not intrude too severely upon their rights. Because the minority layoff
protection in Wygant “impose[d] the entire burden of achieving racial equality on
particular individuals,” Justice Powell concluded that innocent third parties were
impacted too heavily. In this respect, the layoff provision was distinguishable from
preferential hiring decisions, which “diffuse” the burden more generally. Reserving
14 476 U.S. 267 (1986).

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judgment on the hiring issue, Justice White concurred that the layoff remedy went too
far because it displaced more senior white employees in favor of minorities who were
not actual discrimination victims. In a separate concurrence, Justice O’Connor
aligned herself with the Powell view that societal discrimination will not justify
voluntary affirmative action remedies, and that the layoff plan was infirm because
overbroad and not “narrowly tailored” to the board’s past discrimination.15
Significantly, Wygant was a constitutional case decided on Fourteenth
Amendment equal protection principles. Corollary issues concerning voluntary
affirmative action plans adopted by private employers under Title VII reached the
High Court in United Steelworkers v. Weber.16 The Weber case upheld a voluntary
affirmative action plan by a private employer, including a minority quota for a craft
training program, to rectify “manifest racial imbalance in traditionally segregated job
categories.” The Court required no specific finding of past discrimination by the
employer, deciding the case instead on the basis of the historically well established
record of nationwide bias in trade union membership.
In 1974, the employer and union in Weber negotiated an affirmative action plan
to increase the percentage of blacks in skilled craft positions from 2% to the level of
their overall participation in the area workforce, or 39%. By reserving half of the
company’s craft training program slots for minorities, several white employees were
passed over in favor of less senior blacks. There was no evidence that the under-
representation of minorities in craft jobs was attributable to past discrimination by
the employer. Nonetheless, relying on general judicial and research findings relative
to nationwide patterns of minority exclusion from trade union membership, the
Supreme Court ruled five to two that “racial preferences” in the program were a
lawful means to combat “manifest racial imbalance” in craft positions resulting from
“old patterns of racial segregation and hierarchy.”
Conceding that Title VII could literally be read to bar all race-conscious
employment practices, the Court decided that the purpose of the act, rather than its
literal meaning, controlled. The legislative history and context from which the act
arose, Justice Brennan wrote, compelled the conclusion that the primary purpose of
Title VII was to “open employment opportunities for Negroes in occupations which
have traditionally been closed to them.” Accordingly, “[i]t would be ironic indeed”
to read the statute to preclude “all voluntary, private, race-conscious efforts” to
15 Sparring among the Justices over the requisite evidentiary basis for an informal finding
of past discrimination supplied a sub text for the Court’s decision. The plurality opinion
suggested “sufficient,” “convincing,” and “strong” evidence as benchmarks, while Justice
O’Connor considered a “firm basis” acceptable. None of the Justices seemed to view
“formal findings” of past governmental discrimination a constitutional prerequisite to
voluntary affirmative action. Justice O’Connor and three of the dissenters (Marshall J.,
joined by Brennan and Blackmun, JJ) noted that such a requirement would chill voluntary
efforts to end racial discrimination and purge its effects. Only Justice Stevens, in a separate
dissent, would have abandoned any requirement for showing past discrimination in favor
of the educational interest in “an integrated faculty.”
16 443 U.S. 193 (1979).

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abolish workplace segregation. Moreover, the specific plan in question, mandating
a one to one racial ratio until a specific minority participation rate is achieved, was
permissible affirmative action because it did “not unnecessarily trammel the interest
of white employees.”17 Weber thus permitted private employers to implement certain
forms of temporary affirmative action to advance minority employment
opportunities, even where such measures have an incidental adverse impact on white
workers.
Johnson v. Transportation Agency18 reviewed a voluntary affirmative action
plan adopted by a public employer, the Transportation Agency of Santa Clara
County, California. That plan authorized the agency to consider the gender of
applicants as one factor for promotion to positions within traditionally segregated job
classifications in which women had been underrepresented. Women were
significantly underrepresented in the county’s labor force as a whole and in five of
seven job categories, including skilled crafts where all 238 employees were men.
The plan’s long range goal was proportional representation. However, because of the
small number of positions and low turnover, actual implementation was based on
short term goals which were adjusted annually and took account of qualified minority
and female availability. No specific numerical goals or quotas were used.
The petitioner in Johnson was a male employee who had applied for promotion
to the position of road dispatcher, only to be rejected in favor of a female competitor.
Both the petitioner and the woman who won the promotion were deemed well
qualified for the position, although the petitioner had scored slightly higher in the
first round interview. The appointing official for the agency indicated that in
reaching the decision to promote the female candidate, he had considered the
candidates’ qualifications, backgrounds, test scores, and expertise as well as gender
considerations.
The Supreme Court upheld the county’s action, six to three. Justice Brennan
decided for the majority that Title VII was not coextensive with the Constitution and
that, therefore, Weber not Wygant was controlling. The noted disparities in female
workforce participation satisfied the Weber requirement for a “manifest imbalance”
since to require any additional showing could expose the employer to discrimination
lawsuits and operate as a disincentive to voluntary compliance with the statute. The
Court likened the county plan to the treatment of race as a “plus” factor in the
“Harvard Plan”for higher educational admissions approved by Justice Powell in the
17 In this regard the Court emphasized:
The plan does not require the discharge of white workers and their replacement
with new black hires. Nor does the plan create an absolute bar to advancement
of white employees; half of those trained in the program will be white.
Moreover, the plan is a temporary measure; it is not intended to maintain racial
balance, but simply to eliminate manifest racial imbalance. Preferential selection
of craft trainees at the . . .plant will end as soon as the percentage of black skilled
craft workers in the . . . plant approximates the percentage of blacks in the local
labor force. 443 U.S. at 208-09.
18 480 U.S. 792 (1973).

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Bakke case.19 Because sex was but one factor in the decision-making process, no
applicant was excluded from participation on account of sex. In a caveat, however,
the Court warned that “[i]f a plan failed to take distinction in qualification into
account in providing for actual employment decision, it would dictate mere blind
hiring by the numbers,” and would be invalid because “it would hold supervisors to
achievement of a particular percentage of minority employment or membership . . .
regardless of circumstances such as economic conditions or the number of available
qualified minority applicants . . .”20
Justice White, dissenting, would have overruled Weber as a “perversion” of
Title VII, as would Justices Scalia and the Chief Justice, joining in a separate dissent.
The dissenters criticized the majority for using Title VII “to overcome the effect not
of the employer’s own discrimination, but of societal attitudes that have limited entry
of certain races, or of a particular sex, into certain jobs.” Noting the district court
finding of no past discrimination by the county agency, they argued in light of
Sheetmetal Workers (supra) that “there is no sensible basis for construing Title VII
to permit employers to engage in race- or sex-conscious employment practices that
courts would be forbidden from ordering them to engage in following a judicial
finding of discrimination.”
To date, therefore, the Supreme Court has permitted race-conscious hiring
criteria by private employers under Title VII, either as a remedy for past
discrimination or to redress a “conspicuous racial imbalance in traditionally
segregated job categories,” but refused to find that a state’s interest in faculty
diversity to provide teacher “role models” was sufficiently compelling to warrant a
race-conscious layoff policy. Lower courts are similarly divided, though a few have
applied an “operational need analysis” to uphold police force diversity policies,
recognizing “that ‘a law enforcement body’s need to carry out its mission effectively,
with a workforce that appears unbiased, is able to communicate with the public and
is respected by the community it serves,’ may constitute a compelling state
interest.”21
19 Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
20 Id. at 636 (citing Sheet Metal Workers v. EEOC, 478 U.S. 421, 495 (O’Connor, J.,
concurring in part and dissenting in part). Justice Stevens concurred that the plan was
consistent with Weber and Justice O’Connor, in a separate concurrence, provided a sixth
vote for the judgment. In her opinion, however, to support a voluntary affirmative action
plan, there should be “a statistical disparity sufficient to support a prima facie claim under
Title VII by the employee beneficiaries of the affirmative action . . . .” Equal Protection
standards, not Title VII, should govern public employee cases, and she was critical of the
majority for providing inadequate guidance as to the statistical imbalance standard. But
because there were no women in skilled craft positions, and gender was only a plus factor,
either standard was satisfied here.
21 Patrolmen’s Benevolent Assoc. v. City of New York, 310 F.3d 43, 52 (quoting Barhold
v. Rodriguez, 863 F.2d 233, 238 (2d Cir. 1988); Reynolds v. City of Chicago, 296 F.3d 524
(7th Cir. 2002). See also Cotter v. City of Boston, 323 F.3d 160, 172 n. 10 (1st Cir.
2003)(declining to address question of compelling interest but expressing sympathy for “the
argument that communities place more trust in a diverse police force and that the resulting
(continued...)

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A three-judge panel of the Seventh Circuit has pressed the legal debate one step
further by relying on the student diversity rulings in the Michigan cases22 to uphold
Chicago Police Department’s affirmative action hiring program. The decision in
Petit v. City of Chicago23 found that large urban police departments have an “even
more compelling need for diversity” than universities and affirmed the Chicago
police program “under the Grutter standards.” A “strong basis” for affirmative
action was provided by expert testimony that the city’s minority residents deeply
distrusted police, and that creating a diverse force at the sergeant rank would “set a
proper tone” in the department to earn the trust of the community. Outside of law
enforcement, however, courts generally allow for consideration of race in hiring and
promotion decisions only in response to demonstrable evidence of past
discrimination by the employer or within the affected industry. No rule of deference
like that extended to educational institutions has been recognized for employers, nor
is one necessarily implied by the Michigan cases.
Affirmative Action Consent Decrees
State and local programs mandating affirmative action in employment initially
met with greater judicial approval than public contracting preferences for minorities
in the wake of the Croson decision. This may be due, in part, to the fact that
employment preferences are frequently, though not always, linked to settlements of
individual or class action lawsuits. Depending on the stage of proceedings, a formal
record of past discrimination may already have developed when agreement is
reached. At the very least, there is usually some allegation of misconduct by the
public employer. In addition, there may be underlying judicial findings of
discrimination, or district court involvement in fashioning or approving the consent
decree, factors traditionally prompting deference by appellate courts when reviewing
affirmative action efforts.24
21 (...continued)
trust reduces crime rates and improves policing”); Wittmer v. Peters, 87 F. 3d 916 (7th Cir.
1996)(consideration of race permitted in promoting black corrections officer to supervisor
because prison could not accomplish its “mission of pacification and reformation” of
predominantly black inmates with nearly all white staff). See also Lomack v. City of
Newark, 2005 WL 2077479 (D.N.J.)(fire department had compelling interest in integrating
its firehouses since “exposure to other firefighters of different backgrounds, vocabularies,
and cultures better prepares a firefighter to work effectively with his colleagues . . . [by
promoting] tolerance and mutual respect.”
22 In Grutter v. Bollinger, 539 U.S. 506 (2003), a 5 to 4 majority of the Justices held that the
University of Michigan Law School had a “compelling” interest in the “educational benefits
that flow from a diverse student body,” which justified its race-based efforts to assemble a
“critical mass” of “underrepresented” minority students.
23 352 F.3d 1111 (7th Cir. 2003), cert. denied 124 S.Ct. 2426 (2004).
24 E.g. Majeske v. City of Chicago, 218 F.3d 816 (7th Cir. 2000)(city’s affirmative action
plan lawful because it remedies past discrimination and was narrowly tailored); McNamara
v. City of Chicago, 138 F.3d 1219, 1223-24 (7th Cir. 1998)(stating that raw statistics do not
prove intentional discrimination, but also finding that defendant had presented strong basis
in evidence of need to remedy discrimination, through combination of statistics, anecdotal
(continued...)

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Between 1972 and 1983, the Department of Justice sued 106 public employers;
of those, 93 were settled by consent decree. These court-approved agreements
typically set goals and timetables for increasing minority and female under-
representation in the workforce. Of the cases that the Justice Department still
monitors, many stem from litigation dating back to the 1970s, mainly against police
and fire departments.25 Under the Croson and Adarand, however, these orders and
consent decrees have come under “strict scrutiny.” A major ruling by the Eleventh
Circuit in 1994 invalidated a consent decree involving the Birmingham, Ala. fire
department for being an “entirely arbitrary” fixed quota that unduly restricted
opportunities for whites.26 Judicial rulings in Boston last year forced abandonment
of a 1980 consent decree, which established a race-based policy for promoting
sergeants.27 So far, nearly a dozen cities and states have successfully fought consent
decrees and ended federal monitoring of their minority hiring practices.
The Supreme Court declined to review a Fifth Circuit decision striking down
the Dallas Fire Department’s affirmative action plan. In City of Dallas v. Dallas Fire
Fighters Ass’n,28 the appellate panel held that there was insufficient evidence of past
discrimination in the Dallas Fire Department to justify the department’s policy of
promoting some women and minorities over white males who had achieved scores
within the same “band” on a civil service examination. Evidence of discrimination
in the record consisted of a 1976 consent decree between the City and the Justice
Department finding impermissible racial discrimination by the city under Title VII,
and statistical underrepresentation of minorities in the ranks to which the challenged
promotions were made. The court recognized that “out-of-rank promotions do not
impose as great a burden on non-minorities as would layoff or discharge.” But it
found that interference by the city with “legitimate expectations” of promotion based
on exam performance was unjustified where alternative remedies were not yet
exhausted, and there was no proof of “a history of egregious and pervasive
discrimination or resistance to affirmative action that has warranted more serious
24 (...continued)
evidence, and judicial findings); Boston Police Superior Officers Federation, 147 F.3d 13,
(1st Cir. 1998)(documentary evidence in relation to earlier consent decree supported
preferential promotion of black officer to rank of lieutenant). But cf. Crumpton v.
Bridgeport Education Ass’n, 993 F.2d 1023 (2d Cir. 1993)(refusing to equate parties’
stipulations as to existence of discrimination with judicial determination that such
discrimination existed); Reynolds v. Roberts, 202 F.3d 1303 (11th Cir. 2000)(consent decree
did not establish that state transportation department had discriminated against black
employees).
25 See “Backdraft, Courts are Lifting Decades-Old Consent Decrees Requiring Affirmative
Action, “ 86 A.B.A.J. 48 (April 2000).
26 In re Birmingham Reverse Discrimination Employment Litigation. 20 F.3d 1525 (11th Cir.
1994). See also Thigpen v. Bibb County Ga., Sheriff’s Department, 223 F.3d 1231 (11th Cir.
2000)(Croson controlled white police officers’ § 1983 action against sheriff’s department,
challenging constitutionality of consent decree, adopted to settle prior race discrimination
action, requiring that 50% of all annual promotions be awarded to black officers).
27 See Cotter v. City of Boston, 73 F. Supp. 2d 62 (D.Mass. 1999), vacated and remanded,
219 F.3d 31 (lst Cir. 2000).
28 150 F.3d 438 (5th Cir. 1998), cert. denied, 526 U.S. 1046 (1999).

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measures in other cases.”29 Even less evidence of past sex discrimination was found
by the court to justify the city’s gender-based discrimination. Justices Breyer and
Ginsburg dissented from the Supreme Court’s decision to deny review of the Fifth
Circuit’s decision.
In Ensley Branch, NAACP v. Seibels,30 the Eleventh Circuit rejected both long
term and annual goals imposed by consent decree for the hiring of firefighters and
police officers by the City of Birmingham, Alabama. The main fault with the city’s
affirmative action plan was that it had become a permanent alternative to the
development of nondiscriminatory tests and other valid selection procedures. Rather
than ending discrimination, the long-term goals in the plan were “designed to create
parity between the racial composition of the labor pool and the race of the employees
in each job position.” Annual hiring goals had been arbitrarily set at twenty-five to
fifty percent for minorities and had been “mechanically” applied as “rigid quotas,”
in the court’s view, without regard to “relative qualifications” of the candidates. On
remand, the district court was ordered to “re-write the decrees to relate the annual
goals to the proportion of blacks in the relevant, objectively qualified labor pool” and
“to make clear that the annual goals cannot last indefinitely.”31
An affirmative action promotional plan for the Maryland State police, agreed
to by the parties with consent of a federal district court, was subjected to strict
scrutiny review and found wanting by the Fourth Circuit in Maryland Troopers Ass’n
v. Evans.32 Specifically, goals linked to minority representation in the general
population, instead of the qualified labor pool, were found deficient under Croson
analysis, as was the failure to first exhaust all race-neutral alternative means of
increasing minority opportunity. The latter factor has frequently been determinative
of the constitutional question in the judicial mind.33 Croson was also applied by the
29 Id. at 440.
30 31 F.3d 1548 (11th Cir. 1994).
31 Id. at 1577. In addition, the court noted:
Once a valid selection procedure is in place for a particular position, neither the
City or the Board may continue to certify, hire, or promote according to a race-
conscious ‘goal’ absent proof of ongoing racial discrimination, or of lingering
effects of past racial discrimination, with respect to that position. Under no
circumstances may the City hire or promote, or the Board certify, candidates who
are demonstrably less qualified than other candidates, based on the results of
valid, job-related selection procedures, unless the district court finds that such
appointments are necessary to cure employment discrimination by the City or
Board. Id.
32 993 F.2d 1072 (4th Cir. 1993).
33 E.g. Alexander v. Estepp, 95 F.3d 312, 316 (4th Cir. 1996)(“The program is not narrowly
tailored because means less drastic than outright racial classification were available to
department officials); Middleton v. City of Flint, 92 F.3d 396, 410-11 (6th Cir.
1996)(rejecting race-conscious promotion plan because, inter alia, the City had successfully
used “less drastic, alternative ways” to increase percentage of minority police officers);
Boston Police Superior Officers Fed’n v. City of Boston, 147 F.3d 13, 25 (1st Cir.
(continued...)

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Sixth Circuit to defeat a 50% minority goal for the rank of sergeant in the Detroit
Police Department, which had been in effect for nearly two decades, since “limiting
the duration of a race-conscious remedy which clearly impacts adversely on
[nonminorities] is a keystone of a narrowly tailored plan.”34 Failure to satisfy the
court as to the cause of apparent statistical disparities with respect to minority
employment,35 the scope or duration of the remedy,36 the absence of a provision for
waiver where qualified minority candidates were unavailable,37 and the consequent
undue burden placed on nonminorities38 are all factors that have led to judicial
invalidation of state and local affirmative action.
Affirmative Recruitment and Outreach Programs
The Court arguably has yet to precisely define “racial classification” for equal
protection purposes, but a plurality of Justices have described the concept in terms
of burdens or benefits placed on individuals because of race, or subjecting
individuals to unequal treatment. Race-conscious action by government or private
employers that neither confers a benefit nor imposes a burden on individuals may not
be subject to strict scrutiny or heightened judicial review. Thus, courts have not
found data collection activities concerning the racial or gender makeup of a
workforce to violate the Constitution. “Statistical information as such is a rather
neutral entity which only becomes meaningful when it is interpreted.”39 Similarly,
33 (...continued)
1998)(holding that one-time affirmative action promotion was narrowly tailored because
race-neutral measures “would not provide a timely remedy.”
34 Detroit Police Officers Ass’n v. Young, 989 F.2d 225, 228 (6th Cir. 1993).
35 Aiken v. City of Memphis, 37 F.3d 1155 (6th Cir. 1994)(promotion goals set by consent
decree were problematic because they were tied to goals for hiring black officers which
were, in turn, based on the minority population of the undifferentiated labor force); (Lalla
v. City of New Orleans, 1999 WL 138900 (E.D.La)(“gross statistical disparities” between
racial composition of fire department and community population did not establish “strong
basis in evidence” for racial hiring preference absent showing that black applicants were
rejected as “much higher” rate than whites); Ashton v. City of Memphis, 49 F. Supp.2d 1051
(W.D.Tenn. 1999)(testimony of expert for city overstated number of blacks in qualified
labor pool because wrong age group was considered, and it disregarded both the level of
minority group interest and relatively higher rates of criminal convictions among blacks,
disqualifying factors for police officers).
36 United States v. City of Miami, 115 F.3d 870 (11th Cir. 1997)(Report of city’s expert on
underrepresentation of women and minorities as firefighters lacked probative value where
it was based on general census data rather than proper comparisons between minority
composition of department and relevant labor market); Ashton, supra n. 82 at 1065(district
court “troubled” by city’s long-term operation under consent decrees – some fourteen years).
37 E.g. North State Law Enforcement Officers Ass’n v. Charlotte-Mecklenburg Police Dept.,
862 F. Supp. 1445 (W.D.N.C. 1994).
38 E.g. Crumpton v. Bridgeport Education Ass’n, 993 F.2d 1023, 1031 (2d Cir. 1993)(finding
preferential lay-off policy too burdensome on nonminorities).
39 Sussman v. Tanoue, 39 F.Supp.2d 13, 24 (D.D.C. 1999)(quotingUnited States v. New
(continued...)

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strict scrutiny has generally not been applied by the courts to minority outreach or
recruitment efforts that do not amount to an actual preference in employment
decisionmaking. A public university, for example, may be racially “aware” or
“conscious” by amassing statistics on the racial and ethnic makeup of its faculty and
encouraging broader recruiting of racial or ethnic minorities, without triggering strict
scrutiny equal protection review. These activities do not impose burdens or benefits,
it has been held, nor do they subject individuals to unequal treatment. If that
institution, however, then engages in race-preferential hiring, firing, or promotion,
that action is subject to strict scrutiny. This distinction between “inclusive” forms
of affirmative action – such as recruitment, advertising in minority media, and other
outreach to minority communities – and “exclusive” affirmative action – quotas, set-
asides, layoff preferences, etc. – has been central to several recent decisions.40
One of the first post-Adarand decisions, Shuford v. State Board of Education,41
upheld provisions similar to E.O. 11246 in the face of constitutional challenge. A
consent decree between the State Board of Education and separate classes of white
and black women had addressed issues of hiring and promotion within the Alabama
system. In addition to a standard nondiscrimination clause, the decree required yearly
reports tracking the number of new women hires, procedures for expanding the pool
of female applicants, numerical hiring goals, and parity for women in the personnel
selection process. Specifically prohibited by the decree, however, were set-asides,
quotas, and the selection of less qualified candidates based on race or gender.
Because expanding the pool of qualified minority or female candidates by
“inclusive” recruitment and outreach only added to the competition faced by non-
class members – in this case, white males – and did not result in lost job
opportunities and promotions, the court avoided the traditional Title VII and equal
protection analysis applied to “exclusive” affirmative action techniques. It upheld
the annual statistical report requirement of the decree since “the attempt to ascertain
whether there is a problem and whether progress is being made should be
encouraged.”42 Affirmative recruitment of qualified female candidates was similarly
acceptable so long as the recruitment did not exclude male applicants. Thus, “if the
39 (...continued)
Hampshire, 539 F.2d 277, 280 (1st Cir. 1976).
40 See Duffy v. Wolle, 123 F.3d 1026, 1038-39 (8th Cir. 1997)(“An employer’s affirmative
efforts to recruit female and minority applicants does not constitute discrimination.”); Allen
v. Alabama State Board of Education, 164 F.3d 1347, 1352 (11th Cir. 1999)(racially
conscious outreach efforts to broaden applicant pool not subject to strict scrutiny), vacated
216 F.3d 1263 (11th Cir. 2000); Ensley Branch, NAACP, supra n. 86, at p. 1571 (describing
efforts to actively encourage Blacks to apply for jobs, including waivers of application fees,
as “race-neutral”); Billish v. City of Chicago, 962 F.2d 1269, 1290 (7th Cir. 1992)(describing
aggressive recruiting as “race-neutral procedures”) rev’d on other grounds, 989 F.2d 890 (7th
Cir.1993)(en banc).
41 897 F. Supp. 1535 (M.D.Ala. 1995).
42 Id. at 1552.

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CRS-14
postsecondary system began recruiting at black and women’s colleges and stopped
recruiting at Auburn, this would be an instance of exclusion.”43
Since hiring goals could be applied either inclusively or exclusively, whether
the decree mandated appropriate “diagnostic goals that measure the efficacy of pool
expansion techniques such as affirmative recruitment” was treated as a question of
underlying intent. The Shuford goals did not require preferences for women, the
court found, and would not permit jobs to be set-aside for specific groups. Because
the goals played no role in the selection process, they served only to measure the
effectiveness of the recruitment programs and to “red flag” those positions where
women were underrepresented. As such, the goals were found to be inclusive and
lawful. Shuford has been cited with approval by several federal appellate courts.
Most recently, two separate appellate panels affirmed consent decrees requiring
public employers to devise race-conscious employment examinations so as to
minimize any racially discriminatory impact on minority candidates. “[N]othing in
Adarand requires the application of strict scrutiny to this sort of race
consciousness.”44
Other courts have disagreed, however, and applied strict scrutiny analysis to
facially inclusive affirmative action programs. In Monterey Mechanical Co. v.
Wilson,45 the Ninth Circuit considered a California affirmative action statute that
required bidders on state contracts either to subcontract a percentage of their work
to female- and minority-owned businesses or to document a “good faith effort” to do
so. The acknowledged low bidder in the case had been denied a contract with a state
university for failure to achieve the mandated goal or to document its outreach
efforts. The appeals court found that the statute treated classes unequally because a
minority prime contractor could avoid the necessity of subcontracting or
demonstrating good faith efforts simply by doing a percentage of the work itself, an
option not available to other bidders. In addition, the statute was found to encourage
quotas, even if it did not necessarily require them. Messer v. Meno46 challenged an
affirmative action program involving goals, statistics, and reporting requirements
within the Texas Education Agency. In vacating summary judgment for TEA, the
Fifth Circuit rejected any distinction between inclusive and exclusive affirmative
action, holding that strict scrutiny applies to all governmental racial classifications.
In dicta, the court noted that the “evidence . . . strongly suggests recruitment was not
the sole activity affected by the [affirmative action program], and that once an
applicant met the minimum requirements for a position, TEA employees considered
43 Id. at 1553.
44 Allen v. Alabama State Board of Education, supra n. 95, at p. 1353 (affirming consent
decree requiring that school board develop teacher certification exam that minimizes racially
discriminatory impact); Hayden v. County of Nassau, 180 F.3d 42, 49(2d Cir. 1999)
(“[A]lthough Nassau County was necessarily conscious of race in designing its entrance
exam [for police officer candidates], it treated all persons equally in the administration of
the exam.”).
45 125 F.3d 702 (9th Cir. 1997), reh’g en banc denied, 138 F.3d 1270 (9th Cir. 1998).
46 130 F.3d 130 (5th Cir. 1997).

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CRS-15
race or gender in employment decisions.”47 Although not disputing the applicability
of strict scrutiny, Judge Garza warned in a concurring opinion that “the tone of the
majority’s decision . . . will send the message out that affirmative action is, for all
intents and purposes, dead in the Fifth Circuit.”48
Similarly, in Schurr v. Resort Int’l Hotel,49 the Third Circuit disapproved a
casino’s goal-oriented affirmative action plan, which had been applied to deny
employment to a white light-and-sound technician in favor of an equally qualified
black applicant, because it had been implemented “in [t]he absence of any reference
to or showing of past or present discrimination in the casino industry.” The employer
argued that the affirmative action plan, and the Casino Control Commission
regulations on which it was based, did not create racial preferences, but simply
articulated goals aimed at recruiting members of minority groups and women. The
court, however, concluded that the regulations “have the practical effect of
encouraging (if not outright compelling) discriminatory hiring,” particularly because
Resorts International supervisors who made hiring decisions testified to a belief that
they had to take race into account when filling a position, if a particular job category
had a lower percentage of minority employees than the stated percentage goal for that
category. There was no “meaningful distinction,” the court found, between the
casino’s requirements and the minority participation goals for nongovernmental
contractors, which the Ninth Circuit invalidated in Bras v. California Public Utilities
Commission.50 In Bras, the goals had the effect of putting a non-minority contractor
on unequal footing in competing for business from Pacific Bell, which was subject
to minority hiring goals formulated by the California Public Utility Commission
pursuant to state law.
Another federal appellate court has applied strict judicial scrutiny as per
Adarand to defeat equal employment opportunity regulations of the Federal
Communications Commission (FCC) imposing affirmative minority outreach and
recruitment obligations on applicants for radio broadcast licenses. The D.C. Circuit
ruling in Lutheran Church-Missouri Synod v. FCC51 stemmed from a challenge by
the NAACP to the hiring practices of a Lutheran Church organization which holds
FCC licences for two radio stations broadcasting from a seminary in Clayton,
Missouri. Because of the stations’ religious mission, the church has a “Lutheran
hiring preference” requiring job applicants to possess “knowledge of Lutheran
doctrine.” The FCC imposes two basic requirements on radio stations: they must
refrain from discriminating in employment for racial, ethnic, or gender-based
reasons; and they must adopt an affirmative action program of targeted efforts to
recruit, hire, and promote women and minorities. Acting on the NAACP complaint,
the FCC ruled that the church’s Lutheran hiring preference was too broad, and that
while the stations had not discriminated, they violated agency regulation because of
47 Id. at 139.
48 Id. at 141 (Garza J., concurring).
49 196 F.3d 486 (3d Cir. 1999)
50 59 F.3d 869 (9th Cir. 1995), cert. denied, 516 U.S. 1984 (1996).
51 141 F.3d 344 (D.C.Cir. 1998).

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CRS-16
insufficient minority recruitment. The church was ordered to pay a $25,000 penalty
and to submit reports every six months listing all job applicants and hires, along with
the sex and race of each, as well as a statement of their efforts to recruit minorities.
A three judge appellate panel rejected FCC and Justice Department arguments
that a more lenient standard of review than strict scrutiny should apply since the FCC
regulations “stop[ped] short of establishing preferences, quotas, . . . set-asides” and
did not mandate race-conscious “hiring decisions.” Adarand required “[a]ll
governmental action based on race”– even when “the government’s motivation to aid
minorities can be thought ‘benign’”– to be narrowly tailored to meet a compelling
governmental interest. According to Judge Silberman, by requiring a “formal
analysis” by the employer of minority “underrepresentation” and “availability”
statistics, the FCC regulations “extend beyond outreach efforts and certainly
influence ultimate hiring decisions” because they “pressure stations to maintain a
work force that mirrors the racial breakdown of the ‘metropolitan statistical area.’”
For this reason, it mattered not to the court “whether a government hiring program
imposes hard quotas, soft quotas, or goals” since any such race-conscious technique
“induces an employer to hire with an eye toward meeting a numerical target.”
Rather than a remedy for past discrimination, the justification advanced by the
government for the FCC program was to foster “diverse” programming content, an
interest deemed “important” but not “compelling” by the appellate panel. Indeed, the
diversity-of-programming rationale “makes no sense,” said Judge Silberman, in the
“intrastation” context where the FCC’s “purported goal of making a single station all
things to all people” contradicts “the reality of the radio market, where each station
targets a particular segment: one pop, one country, one news radio, and so on.” Nor
could the FCC regulations be considered “narrowly tailored” because they affected
the hiring of even low-level employees whose impact on programming was
negligible. In conclusion, Judge Silberman observed:
Perhaps this is illustrative as to just how much burden the term diversity has
been asked to bear in the latter part of the 20th century in the United States. It
appears to have been coined both as a permanent justification for policies
seeking racial proportionality in all walks of life (‘affirmative action’ had only
a temporary remedial connotation) and as a synonym for proportional
representation itself. It has, in our view, been used by the Commission in both
ways. We therefore conclude that its EEO regulations are unconstitutional and
cannot serve as a basis for its decision and order in this case.
In a sequel, Broadcasters Assn. v. FCC,52 the appeals court voided a new FCC
rules designed to achieve “broad outreach” in recruiting women and minorities for
broadcasting careers. Broadcasters were given a choice between programs specified
by the FCC and station-initiated outreach programs. If the station designed its own
program, it had to report the race and sex of each applicant or person employed. But
the regulations specified that a company’s record in hiring women and minorities
would not be a factor in the license renewal decision. The alternative approach was
struck down, again because the recordkeeping and reporting of employment statistics
were deemed a coercive and “powerful threat,” almost certain to pressure companies
52 236 F.3d 13 (D.C.Cir. 2001).

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to seek proportional representation of women and minorities. Moreover, the entire
rule succumbed to the court’s analysis – the offending portion deemed non-severable
from the whole – perhaps limiting prospects for recasting FCC affirmative action
efforts.
Military Cases
The U.S. military has traditionally enjoyed considerable deference from federal
courts in decisions affecting military staffing and manpower needs. Nonetheless,
recent challenges to Army and Air Force equal opportunity policies have triggered
strict scrutiny of embedded racial classifications. In Berkeley v. United States,53 for
example, discharged white male officers from the Air Force brought a Fifth
Amendment equal protection class action challenging the basis for selecting officers
for a reduction in force. The litigation centered on the written instruction from the
Air Force Secretary concerning the evaluation of women and minority officers for
that purpose. The memorandum noted that such individuals may have been
disadvantaged in their careers by past societal attitudes and underutilization by the
service. The trial court found no racial classification drawn by the memorandum, and
was satisfied that it met minimal rational basis constitutional standards. However,
the federal circuit reversed and remanded.54 It found that strict scrutiny was triggered
because the evaluation instruction provided for a different standard based on race and
gender. The case was ultimately settled.55
The U.S. Court of Claims in Christian v. United States56 reviewed a U.S. Army
policy establishing retention goals for minority and female officers twice considered,
but passed over for promotion, who would otherwise have been subject to mandatory
early retirement. The percentage of minorities and women to be retired was set by
a special Army memorandum, which established different evaluation standards for
minorities and women than officers in general, ostensibly due to possible past
personal or institutional discrimination.
The claims court found that whether the Army program was viewed as a “goal,”
“quota,” or otherwise, the special procedures “pressure[d]” review board members
“into making racially tainted decisions,” thus amounting to “a racial classification
subject to strict scrutiny.” It also found that the purposes put forward by the
government in defense of the policy fell short of “compelling” for several reasons.
First, the Army’s desire to project a “perception” of equal opportunity and to address
the problem of “possible past discrimination” in previous training and assignments
was not equivalent to “finding that a particular minority officer was in fact
discriminated against.” Further undermining any remedial justification for the policy
was its focus on issues of “past personal discrimination” – in promotions,
assignments, and military school attendance – affecting minority members of the
Army, in general, rather than previous biased acts of the retirement board, the entity
53 48 Fed. Cl. 361 (Fed. Cl. 2000).
54 Berkley v. United States, 287 F.3d 1076 (Fed. Cir. 2002).
55 Berkley v. United States, 59 Fed. Cl. 675 (Fed. Cl. 2004).
56 46 Fed. Cl. 793 (2000).

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responsible for implementing the minority retention program. In this respect, the
court likened the policy to remedies for “societal discrimination,” which Croson and
Adarand rejected as a “compelling” governmental interest. The Army’s plan was
found to address mere “statistical disparities” in minority retention rates, whatever
the cause, rather than proven “present effects of past discrimination,” the only
constitutional justification for racial affirmative action.57
The Army procedure failed the additional constitutional requirement that
affirmative action measures be “narrowly tailored.” The minority retention goal was
not the “least intrusive means” to remedy discrimination by the Army in promotions.
Promotion or recruitment goals would accomplish the same purpose by “more exact
connection” to identified institutional discrimination with less burden on affected
nonminority officers. Moreover, the policy was of indefinite duration, with no built-
in time limitation, and no race-neutral alternatives were attempted by the government
before implementing its affirmative action plan. One alternative suggested by the
court was to increase educational and training opportunities for all officers from
underprivileged backgrounds, whatever their race. This, it was contended, would
expand the pool of minorities eligible for promotion and address the Army’s concern
for societal discrimination without employing a suspect classification. The
government successfully appealed the remedy portion of the court of claims decree,
which required reinstatement and backpay of involuntarily retired white male
officers.58 But the lower court’s threshold determination that the minority retention
program violated equal protection was neither appealed to nor addressed by the
Federal Circuit.
Similarly, in a legal action by a white officer who was twice denied promotion
to full colonel in 1996 and 1997, Saunders v. White,59 a federal district court has
ruled the Army’s equal opportunity promotion process in use at the time
unconstitutional. The Army’s written instruction to promotion boards required that
the possibility of personal or institutional discrimination be taken into account when
evaluating the promotion files of women and minority officers – both in initial
evaluation and any review or revote – and urged that the percentages promoted from
these groups match their proportion in the applicant pool. Because Army promotion
selection statistics for more than two decades demonstrated that minorities and
women were promoted at virtually the same rate as whites – if not slightly higher –
Judge Lambert found that there was no demonstrable record of discrimination to
justify the Army’s consideration of race or gender in its promotion policy. The fatal
defect in the Army policy was summed up by the district court: “Nowhere in the
Memorandum are selection board officers obliged to consider the possibility of past
discrimination for non-Nurse Corps males, whites, or any other group for which there
is not an equal opportunity selection goal. Thus, the Memorandum instructs selection
board members to, for example, account for an Hispanic applicant’s ‘past personal
or institutional discrimination,’ but not to account for a white applicant’s past
57 See also Sirmans v. Brownlee, 346 F.Supp.2d 56 (D.D.C. 2004).
58 Christian v. United States, 337 F.3d 1338 (Fed. Cir. 2003).
59 191 F.Supp.2d 95 (D.D.C. 2002).

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discrimination. This undeniably establishes a preference in favor of one race or
gender over another, and therefore is unconstitutional.”60
60 Id at 101.

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