Quinn v. City of Boston

United States Court of Appeals
For the First Circuit

No. 02-1727

JOSEPH E. QUINN, ET AL.,
Plaintiffs, Appellants,

v.

CITY OF BOSTON, ET AL.,
Defendants, Appellees,

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE,
Intervenor, Appellee.
____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.

Harold L. Lichten, with whom Pyle, Rome, Lichten & Ehrenberg,
P.C. was on brief, for appellants.
Christine M. Roach, with whom Roach & Carpenter, P.C. and
Merita A. Hopkins, Corporation Counsel, were on brief, for
defendants-appellees.
Toni G. Wolfman, with whom Foley Hoag LLP, Nadine M. Cohen,
Maricia Woodham, and Lawyers Committee for Civil Rights Under Law
were on brief, for intervenor-appellee.

March 27,2003
 SELYA, Circuit Judge. For over a quarter of a century,

the hiring of firefighters in the City of Boston (the City) has

taken place in the albedo of a federal court consent decree

designed to remedy the effects of past discrimination against

African-Americans and Hispanics. On April 11, 2001, five

candidates for employment (the Candidates) brought suit in the

federal district court alleging that the City had discriminated

against them on the basis of race when hiring new firefighters in

the fall of 2000. The City defended its hiring practices as

compliant with, and compelled by, the terms of the consent decree.

The district court granted summary judgment in the defendants'

favor. See Quinn v. City of Boston, 204 F. Supp. 2d 156 (D. Mass.

2002). The Candidates appeal. For the reasons that follow, we

reverse the judgment and remand to the district court for further

proceedings consistent with this opinion.

I. BACKGROUND

In considering an appeal from a grant of summary

judgment, this court, like the trial court, normally will "view the

entire record in the light most hospitable to the party opposing

summary judgment, indulging all reasonable inferences in that

party's favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.

1990). Here, however, the facts upon which our decision turns are

undisputed.

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 In the early 1970s, two suits were brought against a

number of municipalities subject to the Massachusetts Civil Service

law (now codified at Mass. Gen. Laws ch. 31, §§ 1-77). The suits

alleged that the municipalities engaged in discriminatory

recruitment and hiring practices whilst staffing their respective

fire departments. These actions culminated in the entry of an

omnibus consent decree that influenced the manner in which the

affected municipalities could recruit and hire firefighters.

Boston Chapter, NAACP, Inc. v. Beecher, 371 F. Supp. 507, 520-23

(D. Mass. 1974) (Beecher I). The decree was affirmed on appeal.

Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d 1017, 1028 (1st

Cir. 1974) (Beecher II), cert. denied, 421 U.S. 910 (1975). It has

been in effect for nearly thirty years.

The Beecher decree — courts consistently have used that

phrase to include the original decree and subsequent orders entered

to fine-tune it, see, e.g., Mackin v. City of Boston, 969 F.2d

1273, 1274 (1st Cir. 1992), and we emulate that example —

circumscribed the hiring of firefighters in much of Massachusetts

over the ensuing years. Its history up to 1992 is well chronicled

in the case law. See, e.g., id. at 1274-75. We urge readers who

thirst for a more complete understanding of the genesis and

operation of the decree to consult that opinion. For present

purposes, we are content to note that the Beecher decree was

intended to rectify a situation in which many fire departments

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within Massachusetts had remained lily-white, or nearly so, despite

dramatic increases in the African-American and Hispanic

populations. The decree sought to accomplish its goal by

affirmative action, i.e., by fostering a hiring regime that

accorded race-based preferences to blacks and Spanish-surnamed

individuals.1 Id. at 1274 n.2. Each of the affected fire

departments was to remain subject to the strictures of the decree

(and, thus, to accord race-based preferences) until such time as

that department met a general benchmark established by the decree:

the attainment of parity (or, at least, rough parity). See Beecher

I, 371 F. Supp. at 523 (providing for release from the decree "[a]s

a city or town achieves a complement of minorities commensurate

with the percentage of minorities within the community"). The

meaning of this criterion, and the manner in which it is to be

gauged, are questions that have permeated this litigation from the

outset. Not surprisingly, those questions are central to the case

at hand.

Unlike some forty-five other fire departments that

heretofore have met the goals of the decree and gained release from

1
Throughout the litigation, the parties have used the term
"blacks" as opposed to "African-Americans." For historical
coherence, we henceforth will adhere to that usage. For ease in
reference, however, we elect to use the term "Hispanics" as a proxy
for the more cumbersome "Spanish-surnamed individuals." Finally,
we use the words "minority" and "minorities" to refer to blacks and
Hispanics collectively, and the word "non-minority" to encompass
all other persons.

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its constraints, the Boston Fire Department (BFD) has operated

under the auspices of the Beecher decree since 1974. A decade ago,

a group of non-minority men, aspiring to appointments as

firefighters within the BFD, endeavored to bring the City out from

under the umbrella of the decree. See Mackin, 969 F.2d at 1275.

Although we affirmed the district court's rejection of that

attempt, we noted that the decree was not meant to operate in

perpetuity. To the contrary, it would remain in force as to any

particular municipality only until its stated goal had been

achieved. Id. at 1278. A decade has passed, but — despite

increased diversity within the BFD — the City still hires

firefighters in accordance with the Beecher decree.

That brings us to the events giving rise to the instant

case. In 1998, the Candidates — Joseph Quinn, Sean O'Brien, Robert

Dillon, Joseph Sullivan, and Roger Kendrick, Jr. — aspired to

firefighter appointments in the BFD. All five are white males; as

was required, they identified themselves as non-minority

applicants. Each took the firefighter entrance examination

administered by the Massachusetts Division of Personnel

Administration (MDPA) and scored ninety-nine out of a possible one

hundred points.

The Candidates' scores satisfied the threshold criterion

for employment. Along with all other qualifying applicants, they

were placed on a civil service eligibility list in rank order.

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This ranking made allowance for various statutory preferences

(e.g., veterans, residents, children of firefighters killed or

disabled in the line of duty), ceding pride of place to the holders

of such preferences in accordance with state law (even if those

persons had earned lower test scores than other qualified

candidates). See Mass. Gen. Laws ch. 31, §§ 26, 40. None of these

statutory preferences involve race or ethnicity, and none of them

are challenged in this proceeding.

Preparing to hire fifty new firefighters, the BFD

requested a certified list of eligible applicants from the

Massachusetts Human Resources Division (HRD). The HRD selected

individuals in rank order (based on statutory preferences and test

scores) and grouped them into a putative "hiring class." After

screening out those individuals who stumbled over a variety of

race-neutral preconditions (such as drug tests and physical

examinations), the HRD composed a slate of "hiring pairs" by

placing the highest ranking minority member and the highest ranking

non-minority member into a group of two and then repeating the

process until the hiring class had been exhausted.

In November 2000, the BFD, following this rank order,

chose twenty-five pairs from the eligibility list and appointed

those fifty individuals as entry-level firefighters.2 The

2
The parties skirmish over both the construction of the
eligibility list and what deviations, if any, the BFD entertained
from it. Although these disputes ultimately may prove material in

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Candidates were not among those selected. Although each received

a letter from the BFD stating that the vacancies had been filled by

persons who outranked him on the certification list, the record

suggests that, had the BFD followed a strict rank-order selection

process (without any consideration of race or ethnicity), the

Candidates (or some of them) likely would have been in the top

fifty.

The Candidates (other than Kendrick, who joined the

litigation at a later date) then sued the City. They argued that

the City impermissibly had used preferences based on race and

ethnicity to rank minorities ahead of them on the eligibility list.

In the Candidates' view, this constituted discrimination in

violation of the Fourteenth Amendment to the United States

Constitution and 42 U.S.C. § 1983 (count 1), Mass. Gen. Laws ch.

151B, § 4 (count 2), and 42 U.S.C. § 2000e et seq. (count 3). The

Candidates also attacked another aspect of the hiring process; they

argued that requiring them to submit to medical examinations

without a conditional offer of employment violated both federal and

state law (counts 4-6).3 The district court granted the motion of

addressing the relief to which the Candidates may be entitled, see
infra Part III(E), we leave them unresolved for purposes of this
appeal.
3
These counts are not in issue on this appeal, see infra Part
II, and we therefore omit any detailed discussion of them.

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the Boston Chapter of the NAACP to intervene as a party defendant.

See Fed. R. Civ. P. 24.

The Candidates moved for summary judgment on the first

three counts of their complaint or, in the alternative, for a

preliminary injunction forbidding the City from filling at least

five firefighter positions pending a resolution of the action.

They maintained, among other things, that the City should not have

applied the Beecher decree to the November 2000 hiring cycle

because, by that time, the City had achieved parity in the

firefighter force (and, therefore, had met the benchmark for

release from the strictures of the decree). The defendants did not

controvert the material facts, but, rather, opposed this motion as

a matter of law and cross-moved for summary judgment. The district

court denied the Candidates' motion and granted summary judgment

for the defendants on counts 1 through 3. This appeal followed.

Counts 4 through 6 remain pending before the district court.

II. APPELLATE JURISDICTION

It is too familiar a proposition to require citation of

authority that a federal court may not act beyond the scope of its

jurisdiction. As a logical corollary, parties cannot confer

subject matter jurisdiction on a federal court by waiver or

consent. See Prou v. United States, 199 F.3d 37, 42 (1st Cir.

1999); United States v. Horn, 29 F.3d 754, 767-68 (1st Cir. 1994).

Consequently, when a court senses a potential lack of subject

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matter jurisdiction, it ought to inquire further regardless of

whether the parties have raised the issue. BIW Deceived v. Local

S6, 132 F.3d 824, 828 (1st Cir. 1997). We must conduct such an

inquiry here.

In the usual case, an appeal must await the entry of a

final judgment, commonly regarded as a judgment that fully disposes

of all claims asserted in the action. See Curtiss-Wright Corp. v.

Gen. Elec. Co., 446 U.S. 1, 8 (1980); Spiegel v. Trustees of Tufts

Coll., 843 F.2d 38, 42 (1st Cir. 1988); see also 28 U.S.C. § 1291.

There are, however, exceptions to the classic final judgment rule.

One such exception, embodied in Rule 54(b) of the Federal Rules of

Civil Procedure, allows the immediate entry of a partial final

judgment as to fewer than all the claims in a multi-claim action

"upon an express determination that there is no just reason for

delay." The district court made such a determination here and

directed that a separate and final judgment enter as to counts 1

through 3.

Despite this explicit direction, a jurisdictional problem

looms. The law is firmly established in this circuit that a rote

recital of Rule 54(b)'s talismanic phrase is not enough, in and of

itself, to trump the wonted application of the final judgment rule.

See Spiegel, 843 F.2d at 42 (endorsing the "long-settled and

prudential policy against the scattershot disposition of

litigation"). To warrant recourse to the special procedure

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envisioned by Rule 54(b), the district court typically must make an

individualized assessment of the desirability and effect of an

immediate appeal. Id. at 42-43. Thus, if a district court wishes

to enter a partial final judgment on the ground that there is no

just reason for delay, it should not only make that explicit

determination but should also make specific findings and set forth

its reasoning. See id.

We have warned that the parties have an obligation to

bring this requirement to the district court's attention. See id.

at 44 n.5. In this instance, the parties did not fulfill this

obligation, and the court neither made the requisite findings nor

explicated the reasons underlying its Rule 54(b) certification.

Although this deviation from preferred practice is

troubling, it is not necessarily fatal. We have noted that there

are "infrequent instances" in which the record, on its face, makes

it sufficiently apparent that the circumstances support an appeal

from a partial judgment. Id. at 43 n.4. This is such a case.

Counts 1 through 3 of the complaint deal with the

obligations and protections afforded by the Beecher decree. In

contrast, counts 4 through 6 have very little to do with the decree

(and nothing to do with race or ethnicity). Moreover, one of the

principal parties — the NAACP — has no knowledge about (and, for

aught that appears, no interest in) the claims still pending in the

lower court. Given the discrete nature of the two sets of claims,

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the summary judgment decision appears to be "final in the sense

that it is an ultimate disposition of . . . individual claim[s]

entered in the course of a multiple claims action." Curtiss-

Wright, 446 U.S. at 7 (internal quotation marks omitted).

Equally as important, the proof needed to establish the

allegations of counts 1 through 3 is materially different from the

proof needed to establish the allegations of counts 4 through 6.

By the same token, the legal issues are separate and distinct.

Moreover, if the Candidates prevail on one or more of the first

three counts and obtain satisfactory relief, counts 4 through 6 may

well be rendered moot. This concatenation of circumstances means

that, in all probability, there will be no significant duplication

of effort in litigating one set of claims to a conclusion and then

addressing the remaining set of claims. Such a lack of overlap

strongly supports the finding of no just reason for delay (and,

thus, the entry of a partial final judgment under Rule 54(b)).

See, e.g., Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 580

(1st Cir. 1994); Feinstein v. Resolution Trust Corp., 942 F.2d 34,

40 (1st Cir. 1991).

The most important factor counseling in favor of allowing

an immediate appeal in this case is the public interest. As a

practical matter, a final resolution of the issues raised in counts

1 through 3 will have a broad impact on the future of all

applicants for firefighter positions in the City of Boston. This

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is a vital concern, as hiring is ongoing. The district court

recognized this consideration when it agreed to render an expedited

decision on counts 1 through 3. See Quinn, 204 F. Supp. 2d at 157

n.3. In short, the nature of the issue calls out for immediate

resolution: time is of the essence if for no other reason than

that race-based hiring preferences inevitably shift some of the

burden of remediation to innocent persons, Wygant v. Jackson Bd. of

Educ., 476 U.S. 267, 280-81 (1986) (plurality op.), and thus should

not remain in place for any longer than necessary to alleviate the

effects of past discrimination. See Regents of the Univ. of Cal.

v. Bakke, 438 U.S. 265, 308 (1978) (plurality op.) (cautioning that

such "remedial action [must] . . . work the least harm possible").

To sum up, the "findings" requirement that we have

superimposed on Rule 54(b) is important, but it is not to be

applied woodenly. When the record and the interests of justice

permit, we have on occasion relaxed the requirement. See, e.g.,

Maldonado-Denis, 23 F.3d at 580-81; Feinstein, 942 F.2d at 40.

Given the factors enumerated above — especially the substantial

public interest that attaches to an expeditious resolution of

whether the Beecher decree should continue to constrain the BFD's

hiring practices — we conclude that this is one of the rare cases

in which, despite the absence of detailed district court findings,

the conditions for the use of Rule 54(b) effectively have been met.

Accordingly, we have jurisdiction over the Candidates' appeal.

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III. ANALYSIS

Having assumed jurisdiction, we turn to the merits of the

appeal. We divide our discussion into five segments. First, we

frame the issue. We next describe how a court is to assess whether

the release point of the Beecher decree — parity — has been

achieved, outlining the required comparison and delineating how to

arrive at its component parts. Then, we do the mathematics.

Finally, we address the question of relief.

A. Framing the Issue.

Parity (or, at least, rough parity) is the key that

unlocks the restrictions of the Beecher decree as to a particular

community. The central issue in this appeal involves how parity

should be calculated for that purpose. The parties agree that the

relevant time frame is November of 2000. They also agree as to

what sources of data are appropriate for use in this context; all

parties accept the City's breakdown of the BFD's complement as of

the relevant dates and cite data derived from the 2000 census to

establish the appropriate labor pool. Their dispute revolves

around what categories of this data govern the measurement of

parity. The controlling algorithm has two components. One (which

we shall call the first variable) relates to how one measures

minority penetration within a particular fire department. The

other (which we shall call the second variable) relates to how one

measures minority representation in the community as a whole.

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 As to these points, the Candidates argue that, under the

Beecher decree, the first variable should be limited to the

percentage of firefighters in the BFD (not including officers).

This should be compared to the second variable, which they envision

as the percentage of minorities in the City's employment-eligible

population. On the other hand, the City and the intervenor contend

that the first variable should represent the percentage of

minorities in the BFD as a whole (including officers) and that the

second variable should comprise the percentage of minorities in

Boston's overall population.

The district court concluded that the doctrine of stare

decisis dictated the composition of both variables. In the court's

view, that doctrine required measuring parity by comparing the

percentage of minorities in all ranks within the BFD to the

percentage of minorities in the City's overall population. Quinn,

204 F. Supp. 2d at 161 (accusing the Candidates of "us[ing] a

different statistical method than the one used in the Beecher

decree"). Since this calculation did not show that parity had been

attained — the percentage of minorities within the BFD, including

all ranks, was 31.5%, whereas the percentage of minorities in the

overall population was slightly over 38% — the court granted the

City's motion for summary judgment. Id. at 163.

We address the nature of the two variables in the next

two sections of this opinion. Before doing so, however, we pause

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to mention two sets of legal principles. First, because this

litigation challenges a judicial decree affording race-based

relief, any interpretation of the decree or any application of it

in practice must survive strict scrutiny. See Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, 235 (1995) ("Federal

racial classifications, like those of a State, must serve a

compelling governmental interest, and must be narrowly tailored to

further that interest."); Stuart v. Roache, 951 F.2d 446, 449 (1st

Cir. 1991) (concluding that all race-based classifications must

pass strict scrutiny). This standard obliges an inquiring court to

make a binary finding that the race-based relief is not only

justified by a compelling governmental purpose but also narrowly

drawn to fit the contours of that purpose. Mackin, 969 F.2d at

1275; Stuart, 951 F.2d at 449.

Second, the district court ruled at the summary judgment

stage. The role of summary judgment is to pierce the boilerplate

of the pleadings and provide a means for prompt disposition of

cases in which no trialworthy issue exists. See Suarez v. Pueblo

Int'l, Inc., 229 F.3d 49, 53 (1st Cir. 2000). This device should

be employed only when 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

material fact and that the moving party is entitled to a judgment

as a matter of law." Fed. R. Civ. P. 56(c). We review an order

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granting summary judgment de novo. Suarez, 229 F.3d at 53. This

non-deferential review is particularly appropriate where, as here,

the district court's grant of summary judgment is based on its

application of abstract principles of law to essentially

uncontradicted facts. See Plumley v. S. Container, Inc., 303 F.3d

364, 369 (1st Cir. 2002).

B. The First Variable.

The district court concluded that the first variable to

be used for measuring parity under the Beecher decree was the

percentage of minority firefighters in the BFD as a whole. The

court did not reach this conclusion through independent analysis,

but, rather, premised it on the assumption that this issue had been

fully litigated and settled in earlier proceedings. See Quinn, 204

F. Supp. 2d at 162. Although we appreciate the district court's

sensitivity to the role of precedent, an examination of the prior

decisions touching upon the Beecher decree refutes the court's

assumption.

To the extent that the Beecher I court compared relative

racial representation using quantitative data, it did so only to

determine proper placement of the burden of proof as to what

discriminatory effects could be attributed to the defendants'

preexisting recruitment and hiring practices. See 371 F. Supp. at

514, 518-20. Thus, Beecher I did not mandate a particular parity-

measuring formula for future use. That omission is understandable:

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the minuscule number of minorities in the affected fire departments

at the time of the original Beecher decree negated any need for

precise definition of how to measure anticipated minority

penetration.4

This court's initial affirmance of the Beecher decree is

unhelpful on this point. In resolving that appeal, we stated that

the Beecher decree would "remain[] in force, for each local fire

department, until that department attains sufficient minority fire

fighters to have a percentage on the force approximately equal to

the percentage of minorities in the locality," Beecher II, 504

F.2d at 1027. This statement begs the question of who is a

"firefighter."

Our subsequent opinion in Mackin likewise left open the

issue of how to measure parity. That case rejected an argument

that the second variable was the racial composition of the City as

it existed in 1974 (when the Beecher decree was first entered).

Mackin, 969 F.2d at 1276. We disposed of that argument without

ruling on the significance of the figures presented vis-à-vis the

composition of the first variable. See id. Elsewhere in that

opinion, we addressed an overbreadth challenge and held that the

decree continued to survive strict scrutiny. Id. at 1278. In the

process, we cited the language of the decree itself as an indicium

4
By way of illustration, the BFD had a minority complement at
the time of less than 1%, while Boston had a minority population of
approximately 23%. Beecher I, 371 F. Supp. at 514.

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of its limited life. See id. (acknowledging that the decree would

"remain[] in force only until its requirements have been met").

Seen in this light, any elliptical references in Mackin as to how

parity might be measured cannot be deemed a holding.

Our determination that the district court erred in

concluding that stare decisis supplies an answer to the question of

how the first variable should be constructed brings us back to

square one. While we recognize that "district courts enforcing

public law consent decrees have, in general, broad discretion in

determining such matters as whether the objectives of the decree

have been substantially achieved," Navarro-Ayala v. Hernandez-

Colon, 951 F.2d 1325, 1337 (1st Cir. 1991), the court below did not

exercise any such discretion. Instead, it offered its

interpretation of judicial precedents dealing with the Beecher

decree. Having found that interpretation wanting, we owe no

particular deference to the district court's conclusion. See

Wessmann v. Gittens, 160 F.3d 790, 795 (1st Cir. 1998).

If a district court's adjudication of a public sector

consent decree does not warrant deference, "[o]rdinary contract

principles apply" to the same extent as they apply to other consent

decrees. Navarro-Ayala, 951 F.2d at 1339. This is especially true

when, as now, the question involves determining the parties'

original intent and, concomitantly, the scope of the arrangement to

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which they initially consented.5 Id. "Parties to a consent decree

are entitled to know that . . . [it] will not be treated as a mere

entering wedge which . . . gives a district court untrammeled

discretion to increase" the depth and breadth of judicial

supervision. Id. at 1339 n.17.

Against this backdrop, we turn to the parties' competing

interpretations of the term "firefighter." As said, the Candidates

view that term as encompassing only the lowest rank, that is,

entry-level members of the BFD.6 In contradistinction, the

defendants view the term as encompassing all uniformed BFD

personnel, including officers. In the abstract, it may seem

possible to stretch the term "firefighter" to fit the defendants'

vision — but this case does not deal with abstractions. Terms in

a consent decree cannot be construed in a vacuum; they must instead

5
Our dissenting colleague chastises us for giving the
Candidates too much credit. He says that the Candidates do not
argue that the parties' original intent encompassed only the entry-
level rank. That is literally true, but it overlooks the fact that
the Candidates place the scope of the decree squarely at issue and
argue that constitutional principles require such an
interpretation. To address that argument, our analysis necessarily
begins with a "determination of the parties' intent when they
entered into the stipulation." Navarro-Ayala, 951 F.2d at 1339.
6
Throughout, all references to "entry-level" positions should
be understood to mean post-probationary non-officer positions.
This qualification is compelled by explicit language in the Beecher
decree enjoining "further certifications of permanent appointments
. . . to the position of firefighter" until certain requirements of
the decree are met. Beecher I, 371 F. Supp. at 521 (emphasis
supplied). That reference is reinforced by language in the decree
that differentiates between permanent and provisional appointments.
Id.

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be read in the context of the decree as a whole. See Newport Plaza

Assocs. v. Durfee Attleboro Bank, 985 F.2d 640, 646 (1st Cir.

1993); see generally 5 Arthur L. Corbin, Corbin on Contracts §

24.21, at 204 (Joseph M. Perillo rev. ed. 1998). From that coign

of vantage, the Candidates' definition is much more compelling.

The litigation underlying the Beecher decree arose out of

discriminatory practices in recruitment and hiring into entry-level

positions. See Beecher I, 371 F. Supp. at 509 (describing the

focal point of the case as the municipalities' "overall hiring

policies for the position of firefighter"). Consistent with this

focus, the district court made specific findings of discriminatory

practices in recruitment and hiring, and the decree was tailored to

counteract the effects of that discrimination. Id. at 520. This

historical perspective sheds considerable light on the meaning of

the term "firefighter" as used in the Beecher decree. Logically,

the parties must have intended that term to refer to the class of

jobs open to external hiring: entry-level firefighter positions.

See Fleet Nat'l Bank v. H&D Entm't, Inc., 96 F.3d 532, 539 (1st

Cir. 1996) (interpreting terms of a settlement agreement in light

of the aim of the litigants at the time of settlement); see

generally 5 Corbin, supra § 24.20, at 193. Only by interpreting

the term "firefighter" in that manner is it possible to harmonize

the wording of the decree with its evident purpose.

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 Other language in the decree supports this reading. The

decree's first paragraph zeroes in on entry-level positions: it

enjoins activities that "discriminat[e] against any applicant or

potential applicant for employment." Beecher I, 371 F. Supp. at

521. The decree purports to regulate the recruiting, certifying,

and appointing of entry-level personnel and specifically refers to

this three-part process as the "hiring procedure." See id. at 522.

Subsequent amendments, such as the interim consent decrees entered

on April 17, 1975, and November 25, 1975, continue this emphasis on

recruitment and hiring for entry-level positions.

Custom and usage within an affected industry or workplace

can be important aids to the construction of a contract or consent

decree. See, e.g., Boston Police Superior Officers Fed'n v. City

of Boston, 147 F.3d 13, 17-18 (1st Cir. 1998) (interpreting terms

with otherwise broad usage narrowly according to usage within the

relevant profession); Smart v. Gillette Co. Long-Term Disab. Plan,

70 F.3d 173, 179 (1st Cir. 1995) (noting that "usages of trade" are

relevant to interpreting terms of a contract). Here, the usage of

the BFD supports the Candidates' definition of the term

"firefighter."

In the court below, the evidence showing the composition

of the BFD differentiated the various ranks by specific title.

These records consistently referred to the entry-level rank as

"Firefighter" (sometimes written as "Fire Fighter" or "Fire

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fighter"). Corresponding to that term, the evidence showed the

number of persons serving in the entry-level rank, broken down by

race and ethnicity. That evidence referred to the other ranks —

the officers — by such titles as "Fire Lieutenant," "Fire Captain,"

and "District Fire Chief," giving the racial and ethnic composition

of each such rank. This indicates that, within the BFD, the term

"firefighter" carries with it specific duties, responsibilities,

pay, and privileges.

Lexigraphic insights are frequently helpful in

determining the meaning of specific words in consent decrees. See,

e.g., Guilday v. Dubois, 124 F.3d 277, 285-86 (1st Cir. 1997).

Here, the mine-run of dictionary definitions tends to support the

Candidates' version of the disputed term. A firefighter is said to

be "one who fights fires as a member of a municipal fire

department," Webster's Third New Int'l Dictionary 855 (1993)

(internal dictionary symbols omitted), or "a person who fights

destructive fires," Random House Dictionary of the English Language

722 (2d ed. 1987), or, simply, "a person who fights fires,"

Merriam-Webster On-Line Dictionary (2002), at http://www.m-

w.com/home.htm. These definitions uniformly emphasize the

principal activity that firefighters perform. They show quite

clearly that the term "firefighter," in its ordinary sense, applies

more naturally to those whose exclusive province is attempting to

extinguish conflagrations as opposed to those in the higher

-22-
echelons (who must handle a broader and more diversified range of

activities, including administration and supervision). While the

dictionary definitions of "firefighter" do not necessarily exclude

those whom the defendants seek to include, they argue persuasively

against their inclusion.

Our case law also militates against including higher

ranks under the appellation "firefighter." For example, in Boston

Police Superior Officers, 147 F.3d at 17-18, we held that the term

"police officers" used in a consent decree governing promotions

within the Boston Police Department did not include all police

officers, but, rather, encompassed only patrolmen. That case, like

this one, illustrates the importance of honoring contextual

constraints that may be placed on a word or phrase within the four

corners of a consent decree.

Last — but far from least — including higher ranks within

the compass of the term "firefighter" would mean that the Beecher

decree was not narrowly tailored to serve its stated purpose. Such

an interpretation would effectively transform an instrument

carefully crafted to eliminate discrimination in recruitment and

hiring into general leverage favoring minorities in a much wider

variety of matters. In most of those areas — promotion is a good

example — no justification for systematic preferential treatment of

minorities has been established. Thus, the transformation that

necessarily would accompany an acceptance of the defendants'

-23-
interpretive gloss would present an insurmountable constitutional

obstacle. See Bakke, 438 U.S. at 307. Because courts should avoid

construing a consent decree in a constitutionally offensive way if

a feasible alternative construction exists, this looming

constitutional quandary is itself a cogent argument for rejecting

the defendants' expansive view of the term "firefighter." Cf.

Walsh v. Schlecht, 429 U.S. 401, 408 (1977) ("[C]ontracts should

not be interpreted to render them illegal and unenforceable where

the wording lends itself to a logically acceptable construction

that renders them legal and enforceable.").

The opposite pan of the scale contains nothing of

sufficient weight to counterbalance this powerful asseverational

array. Insofar as we can discern, interpreting the word

"firefighter" to include higher ranks has no basis in the record.

The decree is utterly silent as to activities affecting higher

ranks, and the remainder of the record — both current and

historical — is devoid of any allegation or finding that the BFD

has ever discriminated against minorities in promotions or in other

personnel practices involving those in (or aspiring to reach) the

higher ranks. Indeed, the original Beecher plaintiffs would not

have had standing to allege discrimination in such respects.7

7
Beecher was a consolidated set of class actions in which the
district court certified two classes. The first class consisted of
"[a]ll black or Spanish-surnamed persons who have applied for the
position of firefighter in any fire department . . . subject to
Massachusetts Civil Service law, but have not become eligible for

-24-
Taking these facts into account, it unfairly belittles the Beecher

court to read "firefighter" as that term is used in the decree to

include all ranks (and, thus, to impute to the court the

injudicious crafting of a remedy that reaches beyond the scope of

the surrounding litigation).

The defendants, ably represented, nonetheless advance a

plethora of counter-arguments. Only four of them require

discussion.

First, the City and the intervenor point to paragraph 11

of the interim consent decree of November 25, 1975. That proviso

requires a municipality seeking to be released from the decree to

petition the MDPA, informing that agency "that the percentage of

post-probationary minority uniformed personnel equals the

percentage of minorities" in that municipality. We do not believe

that this casual (and wholly unexplained) linguistic switch from

"firefighter" to "uniformed personnel" can be accorded decretory

significance. This is especially so in light of two facts. First,

that same proviso incorporates by reference paragraph 7 of the

April 17, 1975 interim consent decree (which opens the way for

release from the decree "whenever a particular city or town has

appointment under existing requirements." Beecher I, 371 F. Supp.
at 510. The other class included "[a]ll black or Spanish-surnamed
persons who have never applied for the position of firefighter
because they have allegedly been deprived of information concerning
firefighter employment opportunities as a result of the allegedly
discriminatory recruitment practices of the defendants." Id.

-25-
achieved a complement of Black or Spanish-surnamed firefighters

commensurate with the percentage of minorities within the

community"). Second, the preamble to the November 25 decree — the

decree which introduced the term "uniformed personnel" into the

litigation — unequivocally declared that "the parties consent to

entry of this Agreement to permit . . . the establishment of an

eligibility list for the position of firefighter . . . ."

(Emphasis supplied). In the final analysis, then, the phrase upon

which the defendants rely leads us back to our starting point.

We add, moreover, that if the phraseology employed in the

November 25, 1975 decree was intended to clarify that the earlier

decrees affected more than the firefighter rank, it seems highly

likely that the Beecher court would have used more precise language

such as "of all ranks" or "of any rank." But the Beecher court

eschewed such language. What is more, the court demonstrated an

inclination to use general descriptors for specific subject matter.

See Beecher I, 371 F. Supp. at 523 (using the general phrase

"complement of minorities" to refer to the specific minority

"[g]roup of all eligible blacks and Spanish-surnamed persons"). In

our view, this proclivity undermines the inference that the

defendants (and the dissent) seek to draw from the phrase "post-

probationary uniformed personnel."

Before leaving this point, we note that our dissenting

colleague sees "no basis for concluding that 'firefighter' is the

-26-
operative word" in the Beecher decree and the two interim decrees

that followed. Yet that word appears no fewer than twenty-six

times in those decrees, while the term "uniformed personnel"

appears only once. This repeated emphasis, especially when coupled

with the fact that the litigation revolved around the position of

firefighter and did not concern other ranks, makes it perfectly

clear that "firefighter" is indeed the operative term.

Next, the defendants strive to convince us that we should

defer to a 1987 memorandum issued by the MDPA, which indicates

that, for Beecher purposes, the first variable should consist of

"the actual percentage of the authorized uniformed permanent full-

time force which is made up of tenured Black or Hispanic officers

of any rank." We are not persuaded.

The deference typically owed by a court to an

administrative agency derives from the fact that the agency has

been entrusted by a legislative body to administer a statute

enacted under that branch's separate constitutional authority. See

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837, 842-44 (1984); see also Fireside Nissan, Inc. v. Fanning, 30

F.3d 206, 212 (1st Cir. 1994) (reasoning that state officials'

interpretation of state statute is entitled to deference). If the

legislative branch has "left a gap for the agency to fill, there is

an express delegation of authority." Chevron, 487 U.S. at 843-44.

-27-
Thus, a court must defer to the agency's reasonable construction of

a provision in the statute. Id. at 844.

Here, however, a state agency is helping to administer

compliance not with a legislative enactment but with a federal

judicial decree. A federal appellate court owes no deference to

such an agency when endeavoring to discern the meaning and

constitutional limits of such a decree. After all, if the

judiciary is the final arbiter as to questions of statutory

construction and must refuse to accept administrative

interpretations that contradict clearly ascertainable legislative

intent, see id. at 843 n.9, courts certainly have the power —

indeed, the duty — to reject an administrative construction that

runs contrary to the manifest intent of a judicial decree.

Third, the defendants posit a variation on the "trickle

up" theory. See, e.g., Stuart, 951 F.2d at 452 ("One obvious

reason . . . why there may have been few black sergeants in the

Boston Police Force in 1978 is that the Department had not hired

many black police officers before 1970. Since unjustified

discrimination accounted for the latter fact, [it] cannot excuse

the former."). They assert that not including higher ranks within

the term "firefighter" would diminish the efficacy of the decree

and reward appointing authorities for keeping minorities in the

firefighter rank (thus perpetuating underrepresentation in the

higher echelons). For that reason, they argue, it makes sense to

-28-
require parity department-wide before allowing a community to

escape from the constraints imposed by the Beecher decree.

This argument is specious. We have determined, and the

defendants concede, that the parties never intended the decree to

address promotions. On that basis alone, it would be improper to

extend the decree's reach by judicial fiat. See Boston Police

Superior Officers, 147 F.3d at 17-18. Furthermore, alleging that

unconstitutional hiring practices within the BFD have caused a

disparate impact on the number of minorities in the higher echelons

is a heavy charge. Such an allegation should not be addressed in

the abstract, but, rather, should be squarely propounded by an

injured party with standing to sue and litigated to a just

conclusion. Because the litigation giving rise to the Beecher

decree is of a different nature than the justification that the

defendants now offer, the decree is a constitutionally insufficient

vehicle for addressing that justification. See id. at 18; see also

Wessmann, 160 F.3d at 802 ("The mere fact that an institution once

was found to have practiced discrimination is insufficient, in and

of itself, to satisfy a state actor's burden of producing the

reliable evidence required to uphold race-based action.").

Finally, the City and the intervenor make an argument of

last resort. They contend that their interpretation of the term

"firefighter" is proper because they have assumed all along that

the term embraced more than entry-level personnel. In the

-29-
circumstances of this case, such a contention does not get them

very far.

In pressing this point, the defendants lean heavily upon

past practice of the MDPA and attempt to apply language derived

from Mackin to that practice. There, we rejected the argument that

static 1974 population figures controlled the measurement of

parity. In so doing, we wrote that "[f]ew things evidence a

decree's meaning more persuasively than an immutable, decade-old

pattern of past practice under the decree, consensually engaged in

by all sides in the underlying litigation that produced the

decree." 969 F.2d at 1276.

That language is inapposite here. In Mackin, we were

using a uniformly accepted past practice to validate a facially

plausible interpretation of the Beecher decree (i.e., that current

population figures would control). See id. We deemed that past

practice confirmatory of what appeared to be a commonsense reading

of the verbiage chosen by the parties and approved by the district

court. In contrast, the defendants here attempt to use an

administrative practice first inaugurated in 1987 (thirteen years

after the entry of the Beecher decree), and never directly

challenged, to change the meaning of plain language and thus to

validate an unlikely interpretation that is implausible in the

context of the underlying litigation (and one which, in the

bargain, would open the decree to constitutional attack). To the

-30-
extent that the MDPA's past practice points toward that suggested

interpretation, it lacks record support and therefore cannot

dominate the decisional calculus. See Wessmann, 160 F.3d at 802;

Stuart, 951 F.2d at 454-55.

To dwell on this issue would be pointless. It suffices

to say that the history and purpose of the litigation, the language

of the decree, and the usage of the BFD make manifest that the term

"firefighter," as used in the Beecher decree, was intended to

include only those persons serving in the entry-level rank.

Interpreting "firefighter" more broadly would rip the decree from

its constitutional moorings, twist its language into something

alien to its evident purpose, and violate settled principles of

contract law. Accordingly, the proper parity-measuring device —

what we have called the first variable — comprises the percentage

of minorities in the entry-level rank of the BFD as of the relevant

date (November of 2000).

C. The Second Variable.

As for the comparison that Beecher demands — the second

variable — the Candidates, citing cases decided after the entry of

the original Beecher decree, assert that in affirmative action

employment cases minority representation must be measured against

the specific adult population that comprises the qualified labor

pool. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 501-

02 (1989); Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC,

-31-
478 U.S. 421, 479 (1986); Stuart, 951 F.2d at 450, 453-54. They

insist that any other focus would be unconstitutional and that,

therefore, the relevant comparison in this case necessarily must be

to Boston's over-19 black and Hispanic population. See Mass. Gen.

Laws ch. 31, § 58 (requiring firefighters to be over 19 years of

age).8

The district court held that this point previously had

been resolved. Quinn, 204 F. Supp. 2d at 163. We agree that stare

decisis governs. The last time around, we addressed this aspect of

the standard for measuring compliance head-on and held that the

proper data are the "contemporaneous population figures [for] . .

. 'the percentage of minorities within the community.'" Mackin,

969 F.2d at 1276 (quoting the Beecher decree). At that time, we

considered the very authorities upon which the Candidates now rely

and specifically repudiated the notion that the pertinent language

of the decree was overbroad. Id. at 1277-78. Thus, principles of

stare decisis required the district court to reject the Candidates'

version of how the second variable should be constructed. See

Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992) (recognizing

that the doctrine of stare decisis embodies "[t]he obligation to

follow precedent").

8
This statute currently imposes an upper age limit (32) for
new firefighters. See Mass. Gen. Laws ch. 31, § 58. Because no
maximum age applied to the November 2000 hiring cycle, we do not
dwell on this feature.

-32-
 If more were needed — and we do not think that it is — we

note that the Beecher decree unambiguously requires the use of the

percentage of minorities in the general population as the second

variable for gauging discriminatory patterns in entry-level hiring.

See Beecher I, 371 F. Supp. at 523; see also Mackin, 969 F.2d at

1276 (enumerating portions of the Beecher decree that require, or

plainly contemplate, reference to the percentage of minorities in

the general population). That requirement is fully consistent with

the authorities cited by the Candidates. See Croson, 488 U.S. at

501 ("In the employment context, we have recognized that for

certain entry level positions requiring minimal training,

statistical comparisons of the racial composition of the relevant

population may be probative of a pattern of discrimination.").

Whether or not some other standard might be more precise, the fact

remains that the firefighter position is of the type contemplated

by the Croson Court. Thus, the parties' original bargain for a

community-wide pool and the district court's endorsement of that

concept are entitled to great weight.9 See Navarro-Ayala, 951 F.2d

9
We note that the district judge who actually entered the
Beecher decree (Judge Freedman) made specific mention that, in
1974, the BFD required applicants to be within an age range of 19-
35 years. Beecher I, 371 F. Supp. at 512. He also observed that,
prior to 1971, the minimum age had been 21. Id. Mindful of this
shift, he concluded that the community population as a whole would
be an appropriate measure of compliance. This seems supportable in
light of Judge Freedman's recognition that the enjoined party had
the power to reconfigure the contours of the labor pool. The
authorities cited by the Candidates involve parties without such
leverage vis-à-vis the reach of the remedy; where such leverage

-33-
at 1339 (reasoning that the district court is best able to decide

certain types of parameters in public institutional reform

litigation and, thus, is owed deference when the scope of the

parties' original bargain is not at issue).

We reaffirm, therefore, that the appropriate standard for

measuring compliance with the Beecher decree — what we have termed

the second variable — consists of contemporaneous population

statistics depicting the percentage of minorities within the

overall community. It follows that a fire department subject to

the Beecher decree will remain so until that department succeeds in

demonstrating that it has achieved "the decree's actual objective:

rough parity," Mackin, 969 F.2d at 1277, measured by establishing

the percentage of minorities among entry-level firefighters in the

particular department and comparing that ratio to the percentage of

minorities within the general population of the local community.

When this comparison demonstrates that parity (or, at least, rough

parity) has been attained, then the Beecher decree has outlived its

usefulness as to that community's firefighting force.

exists, however, measuring parity against general population
statistics prevents a public employer enjoined for discriminatory
practices in violation of federal law from manipulating the remedy
to suit its fancy. So viewed, Judge Freedman's shaping of the
second variable is a good example of why "broad judicial discretion
[is often] crucial for the district judge to secure complex legal
goals." Navarro-Ayala, 951 F.2d at 1338 (citations and internal
quotation marks omitted).

-34-
 D. Reworking the Algorithm.

From this analysis, it is evident that the district court

erred in constructing the first Beecher variable. In order to

determine whether that error affected the Candidates' substantial

rights, see Fed. R. Civ. P. 61, we rework the algorithm using the

proper variables. If that algorithm does not yield ratios that

show parity (or, at least, rough parity) between the percentage of

minorities in the entry-level rank of the BFD and the percentage of

minorities in the City of Boston as a whole, then the entry of

summary judgment in the City's favor must stand. See Houlton

Citizens' Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.

1999) (holding that a grant of summary judgment may be affirmed on

any independent ground revealed by the record).

On this issue, the parties urging that parity has been

achieved (here, the Candidates) bear the burden of proof. See C.K.

Smith & Co. v. Motiva Enter. LLC, 269 F.3d 70, 73 (1st Cir. 2001).

That is of purely academic interest in this case for the pertinent

facts are uncontradicted. The court below developed the factual

record sufficiently to demonstrate that, when the City recruited

the 2000 hiring class, blacks and Hispanics comprised approximately

40% of the firefighters within the BFD. At the same time, blacks

and Hispanics constituted slightly over 38% of Boston's overall

population. Quinn, 204 F. Supp. 2d at 162. Hence, parity had been

achieved, and the City had become eligible for release from the

-35-
strictures of the Beecher decree. See Beecher II, 504 F.2d at

1026-27.

Given these facts, the district court's error was not

harmless. After all, a public employer who consents to the use of

race as a factor in order to palliate the lingering effects of past

discrimination must maintain continuous oversight in order to

ensure that the decree works the least possible harm to other

innocent persons competing for employment. Bakke, 438 U.S. at 308.

Once parity has been achieved, the decree has served its legitimate

purpose, and the justification for it has abated. See id. at 309.

From that point forward, the employer has no basis to continue

preferring minorities. See id.; see also Mackin, 969 F.2d at 1276

("An intrusion by a federal court into the affairs of local

government should be kept to a bare minimum and not be allowed to

continue after the violation has abated and its pernicious effects

have been cured.").

We conclude, therefore, that the City's continued resort

to race-based preferences from and after the time when parity was

achieved fails the second prong of the strict scrutiny analysis.

See Bakke, 438 U.S. at 309. Thus, the City's adherence to the

Beecher decree during the 2000 hiring cycle was unconstitutional.

Consistent with the foregoing, we reverse the district court's

entry of summary judgment in favor of the City and direct the court

to enter judgment in the Candidates' favor.

-36-
 E. Relief.

Our holding does not end the matter: there remains the

question of what remedy is appropriate under the circumstances.

That is a highly ramified question, the answer to which is subject

to the push and pull of competing centrifugal and centripetal

forces.

On the one hand, a public employer's good faith reliance

on a consent decree entered to remedy the effects of past

discrimination should not lightly be disturbed. See, e.g., Boston

Police Superior Officers, 147 F.3d at 25. That proposition has

particular bite as to the firefighters who were appointed to the

BFD during the 2000 hiring cycle, for the Beecher decree does not

directly dictate hiring decisions, but, rather, simply directs

municipalities to take affirmative action concerns into account in

choosing among qualified applicants. See Mackin, 969 F.2d at 1278

(explaining that "only qualified minority candidates are specially

advantaged; no minority candidate is placed on the eligibility list

unless he or she has attained a passing score on the entrance

examination") (emphasis in the original). Constitutional

violations rarely, if ever, justify the reversal of specific

employment decisions previously made by government employers

insofar as those decisions affect innocent parties. See, e.g.,

Boston Police Superior Officers, 147 F.3d at 25; cf. Wygant, 476

U.S. at 282-83 ("Denial of a future employment opportunity is not

-37-
as intrusive as loss of an existing job."). The history of this

case offers a striking example of this truism: the Beecher court,

despite its finding of pervasive past discrimination, did not

disturb the livelihood of those firefighters who were on the force

in 1974. See Beecher I, 371 F. Supp. at 520 (noting the need to

"preserv[e] morale within the fire departments").

On the other hand, we have acknowledged that when job

applicants have been denied equal protection of the laws by a

public employer, "[t]he result, not the specific intent, is what

matters." Beecher II, 504 F.2d at 1021 (citation and internal

quotation marks omitted). In that spirit, the original Beecher

court invoked its equitable powers to fashion affirmative relief

for a perceived injury even after explicitly disavowing any finding

that the "exclusionary policy [giving rise to the litigation] ha[d]

been followed intentionally or by design." Beecher I, 371 F. Supp.

at 519.

Here, the Candidates have neither offered any evidence

that the City acted in bad faith nor otherwise set forth a

plausible basis that would justify a court in second-guessing the

specific decisions made by the City in the 2000 hiring cycle. In

a similar vein, they have not established that the persons actually

hired were either complicit in some scheme or somehow undeserving

of their appointments. Consequently, there is no principled basis

for turning back the clock and revoking those appointments.

-38-
 That does not mean, however, that the Candidates are

entitled to no more than a handshake or a tip of the hat. The fact

remains that they have succeeded in showing that the City applied

a consent decree, previously held to be constitutional, for too

long. The result was that the City infringed the Candidates'

constitutional rights when it acted upon their applications for

appointment to the BFD. They should at least have had the

opportunity to compete for the positions that they coveted free of

the constraints imposed by the Beecher decree. See Bakke, 438 U.S.

at 308. Balancing these competing considerations, we hold that

the BFD's decisions to appoint specific individuals during the 2000

hiring cycle were valid exercises of its responsibility to provide

the citizens of Boston with a full complement of qualified

firefighters. See Beecher I, 371 F. Supp. at 520. Nevertheless,

the application of the decree to the 2000 hiring cycle violated the

Candidates' constitutional rights by depriving them of an equal

opportunity to compete for positions on the BFD. See Bakke, 403

U.S. at 308. On remand, the district court must sort through this

tangle and determine, in its sound discretion, the appropriate

remedy for the Candidates' injury (excluding, however, any form of

relief that would require dismissal of any provisionally or

permanently appointed firefighter currently serving in the BFD).

-39-
IV. CONCLUSION

The goal of the Beecher decree was to eliminate

discriminatory practices in the recruitment and hiring of

firefighters in communities subject to the Massachusetts Civil

Service laws, and, relatedly, to remedy the effects of past

discrimination in recruitment and hiring. Remediation has taken

more than a quarter-century. At long last, however, that objective

has been achieved with respect to the BFD; parity has been reached

between the percentage of minority firefighters in the BFD and the

percentage of minorities in the City as a whole.10

Although this is a significant landmark along the road to

equality, we add a word of caution. We are not Pollyannas, and we

10
Our dissenting brother never squarely addresses the
Candidates' argument that "even assuming that general population
statistics are to be considered, the minority composition of the
Department's firefighters (39.9%) exceeded the minority composition
of the general population of Boston (38.3%). The examination of
parity should focus on minority representation in the firefighter
position alone . . . . The racial preferences at issue apply
solely to the firefighter position." Appellants' Brief at 23
(internal cross-references and paragraph structure omitted). This
is a changed circumstance requiring an examination into "whether
the goals of the litigation . . . have been completely achieved,"
Mackin, 969 F.2d at 1275, as well as a question posed for the first
time involving the decree's constitutional application. Viewed in
either fashion, the question warrants strict scrutiny. See Rufo v.
Inmates of Suffolk County Jail, 502 U.S. 367, 384 (1992); see also
Adarand, 515 U.S. at 235. Our dissenting brother, however, says
only that he "cannot imagine that the plaintiffs in the Beecher
litigation would have decided upon a remedy that provides
incentives [to keep minorities in the entry-level rank]." This is
the stuff not of strict scrutiny but of rational basis review.
See, e.g., FCC v. Beach Comm'ns, Inc., 508 U.S. 307, 315 (1993)
(upholding law under rational basis review "based on rational
speculation unsupported by evidence or empirical data").

-40-
recognize that achieving parity at the firefighter level is not

tantamount to saying that all is well in regard to racial and

ethnic issues within the BFD as a whole. To the extent that

inequalities remain, however, they are not within the compass of

either the Beecher decree or this litigation. Nor will we reach

out for them — issues of constitutional magnitude should not be the

subject of speculation, but, rather, should be litigated fully by

parties with standing to represent various pertinent points of

view. For today, we fulfill our responsibility by holding that the

City's appointment of firefighters ought no longer be subject to

the strictures of the Beecher decree. We need go no further.

The judgment of the district court is reversed and the

case is remanded for further proceedings consistent with this

opinion. Costs are to be taxed in favor of the appellants.

— Dissenting opinion follows —

-41-
 LIPEZ, Circuit Judge, dissenting. The majority frames

the critical issue as one involving "competing interpretations of

the term firefighter." I respectfully disagree that this is the

central issue in the dispute. Indeed, the majority attributes an

argument to the Candidates that they have not made in this

litigation -- that the court and the parties to the Beecher decree

understood as a matter of original intent that minority presence in

the fire departments subject to the decree would be calculated by

considering only the entry-level firefighter rank. The Candidates

acknowledge that "[w]hen the Beecher decree was originally

conceived, its apparent goal was to generate racial parity in the

Fire Department as a whole, as opposed to merely the firefighter

ranks." Instead, the Candidates argue that we should focus only on

the entry-level ranks because changed circumstances since 1974 and

1992, when we last reviewed the Beecher decree in Mackin v. City of

Boston, 969 F.2d 1273 (1st Cir. 1992), render the original intent

of the decree unconstitutional.

Moreover, even if the Candidates had asked us to

determine the original intent of the parties on the calculation of

parity, it is a mistake to frame the issue as a search for the

meaning of the term "firefighter." As I will explain in more

detail, there is no consistent use of the word "firefighter" as the

operative term in the calculation of parity. Instead, there are a

variety of terms used, only one of which is the word "firefighter."

-42-
The relevant question, then, is which of the early formulations of

the measurement of parity captures the intent of the parties and

the court.

This dissent proceeds in three parts. In Part I, I

address the majority's conclusion that the Beecher decree always

contemplated that the first variable, to use the majority's

language, would only consider the percentage of minorities in the

entry-level firefighter ranks. In Part II, I address the

majority's assertion that narrow tailoring requires this

interpretation of the decree to avoid constitutional problems. In

Part III, I evaluate the Candidates' argument that changed

circumstances since the entry of the Beecher decree require that

the decree now be read to measure parity by focusing only on the

firefighter ranks.

I. Interpreting the Decree

In the original Beecher decree issued on February 8,

1974, the court used the phrase "complement of minorities" in the

operative sentence explaining when a city's fire department could

receive an exemption.11 Boston Chapter, NAACP, Inc. v. Beecher, 371

11
In our first review of the decree, we paraphrased the parity
paragraph of the decree, saying that "[t]he decree remains in
force, for each local fire department, until that department
attains sufficient minority fire fighters to have a percentage on
the force approximately equal to the percentage of minorities in
the locality." Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d
1017, 1026-27 (1st Cir. 1974). While the use of the term "fire
fighters" may have been a shorthand description of the decree, it
certainly should not supplant the language of the original decree.

-43-
F. Supp. 507, 523 (D. Mass.), aff'd 504 F.2d 1017 (1st Cir. 1974).

In its Interim Consent Decree of April 17, 1975 (signed by the

parties), the court for the first time used the term "firefighter"

in explaining the process for obtaining an exemption: "The Director

[of Personnel Administration] shall notify the plaintiffs and

supply evidence to the plaintiffs whenever a particular city or

town has achieved a complement of Black and Spanish-surnamed

firefighters commensurate with the percentage of minorities within

the community . . . ." Boston Chapter, NAACP, Inc. v. Beecher, No.

72-3060-F, slip op. at 4 (D. Mass. Apr. 17, 1975) (emphasis added).

Soon thereafter, though, the parties signed the "Agreement to

Effectuate Interim Consent Decree," which again discusses

exemptions. Paragraph 11 of that Agreement states: "No fire

department . . . may be exempted . . . unless the appointing

authority has first petitioned the Division that the percentage of

post-probationary minority uniformed personnel equals the

percentage of minorities in the city or town served by said

department . . . ." Boston Chapter, NAACP, Inc. v. Beecher, No.

72-3060-F, slip op. at 6 (D. Mass. Nov. 25, 1975) (emphasis

added).12

12
The majority dismisses the city's reliance on the terminology
of the November 1975 Agreement because that Agreement "incorporates
by reference paragraph 7" of the April 1975 decree, which uses the
term "firefighters," and therefore "leads us back to our starting
point." The majority assumes that the April 1975 decree should be
the court's "starting point." The starting point of the analysis
should be the original Beecher decree -- which uses the phrase

-44-
 Presented with these three formulations, the majority

chooses to focus on the word "firefighter" in the April 1975

Interim Consent Decree as the critical word and dismisses the

formulation in the final agreement of the parties ("the percentage

of post-probationary minority uniformed personnel") as a "casual

(and wholly unexplained) linguistic switch." This dismissive

characterization seems odd, especially since the phrase "post-

probationary minority uniformed personnel" in the November 1975

Agreement is far closer to the general language of the original

Beecher decree ("complement of minorities") than the word

"firefighter" used in the April Interim Decree. The "complement of

minorities" and "post-probationary minority uniformed personnel"

formulations also seem to capture the purpose that the

Beecher court attributed to its own decree -- to remedy the

"exclusion of minorities from the fire department" -- than does

the word "firefighter." Beecher, 371 F. Supp. at 519-20.

However, there is support for competing views in the

shifting word choices of these three decrees. The language itself

does not tell us definitively what the court and parties intended

for the measure of the first variable. But the use of the word

"firefighter" is part of the ambiguity -- not the answer to it. In

the sequence of language in the three decrees, there is no basis

for concluding that "firefighter" is the operative word and that

"complement of minorities." Beecher, 371 F. Supp. at 523.

-45-
determining its plain meaning will answer the intent question.13

Instead, we must acknowledge that the competing formulations of the

first variable create an inescapable ambiguity which must be

resolved by resort to extrinsic evidence.

We have already opined in this litigation on the kind of

persuasive evidence that helps resolve such ambiguities. "Few

things evidence a decree's meaning more persuasively than [a] . .

. pattern of past practice under the decree . . . ." Mackin, 969

F.2d at 1276. The City and the NAACP produced evidence that

Massachusetts has required municipalities seeking exemptions from

the decree to compare the percentage of minorities in the

population of their city or town to the percentage of minority

personnel among their departments' entire uniformed personnel.

Using this formula, forty-five municipalities originally subject to

the decree have received exemptions. An affidavit in the record

explains that no department's appointing authority has objected to

this formula since it has been in place. This understanding of the

13
In support of its argument that "firefighter" is the
operative term for interpreting the decree, the majority notes that
the term "firefighter" is used "no fewer than twenty-six times in
the decrees, while the term 'uniformed personnel' appears only
once." While likely true, this statement is beside the point. For
example, the term "firefighter" is used no fewer than ten times
simply to describe the examination given to candidates, for example
"valid firefighter entrance examination" and "fire fighter
examination." As I indicated, one must focus on the operative term
of the decrees, i.e. the language which explains the meaning of
parity. In that context, the word "firefighter" is one of only
three formulations.

-46-
decree has been memorialized in a 1987 memorandum circulated by the

Massachusetts Department of Personnel Administration outlining "the

process and the criteria for seeking approval for exemption" from

the Beecher decree. This memorandum, using the same terminology as

the November 1975 Agreement, states that a municipality must

consider the "full-time uniformed force" and calculate the

percentage of "post-probationary (tenured) full-time permanent

Black or Hispanic members of the uniformed force" to determine

whether parity has been achieved.

The majority dismisses the importance of this memorandum,

concluding that "a federal appellate court owes no deference to [a

state agency helping to administer compliance with a federal

judicial decree] when endeavoring to discern the meaning and

constitutional limits of such a decree." As a generality this

point is a fair one. But this memorandum from the Massachusetts

Department of Personnel Administration demonstrates much more than

a reasonable interpretation of ambiguous language in a federal

decree by a helpful state agency. This memorandum describes a

"pattern of past practice" of the application of language in the

November 1975 Agreement by one of the parties to the original

litigation.

The Commissioners of the Massachusetts Division of Civil

Service were some of the named defendants in the consolidated

Beecher litigation. At some point, the Department of Personnel

-47-
Administration became the successor to the Division of Civil

Services and responsible for carrying out the remedial provisions

of the decree. Paragraph 1 of the April 1975 decree describes how

the "Director of Civil Service [hereinafter Director shall mean the

Director, his successors, or after July 1, 1975, the Personnel

Administrator]" should implement the original Beecher decree.14

Paragraph 1 of the November 1975 Agreement refers to "The Division15

of Personnel Administration (formerly known as the Division of

Civil Service, and hereinafter, the 'Division') . . . ." Paragraph

11 of the November 1975 Agreement designates the "Division" as the

agency to which municipal fire departments should apply for

exemptions from the decree. The November 1975 Agreement was also

signed by counsel for the "Director of Personnel Administration."

The memorandum in question, then, was not issued by an agency that

was a stranger to the underlying litigation. Instead, it was

crafted by a party to the Beecher litigation with the court-ordered

responsibility to review the petitions of municipal fire

departments for exemption from the decree. Under these

circumstances, the insistence in Mackin on the persuasive value of

14
The bracketed words are in the April 1975 decree.
15
Although the Beecher court referred to the Division of
Personnel Administration, the agency calls itself the Department of
Personnel Administration. I assume that the agencies in question
are one and the same. There does not currently exist a
Massachusetts agency with the official name Division of Personnel
Administration.

-48-
a pattern of past practice under the decree is particularly apt.

See also Navarro-Ayala v. Hernandez Colon, 951 F.2d 1325, 1353 (1st

Cir. 1991) (Cyr, J., concurring in part and dissenting in part)

(analogizing a consent decree to a contract: "Under a well-

established rule of contract interpretation, the court may look to

the parties' post-contract course of conduct and performance to

ascertain the 'practical interpretation and application' that the

parties themselves attached to the ambiguous contract language.")

(emphasis in original).

The majority says that Mackin's directive to consider

post-execution practice to interpret the decree's meaning is

"inapposite" in this case because the evidence of the practice in

question is being used "to change the meaning of plain language and

thus to validate an unlikely interpretation" of the Beecher decree.

However, there is no plain language in the decrees on the issue of

the first variable, and the "unlikely interpretation" was one

adopted by one of the parties to the underlying litigation and

complied with by many other municipalities subject to the decree.

Therefore, the majority's interpretation of the decree runs

contrary both to Massachusetts's demonstrated understanding of it

and to the lengthy history of its application in granting many

exemptions from the decree over a period of at least sixteen years

(that is, since 1987).

-49-
 It is also difficult to reconcile the majority's

interpretation of the decree with incentives that would have seemed

sensible to the parties to the decree. If, at the time the decree

was entered, a city fire department knew that it needed to show

parity only in its entry-level class to receive an exemption from

the decree, it could achieve its goals more quickly by keeping all

the minority firefighters it hired at the entry level -- that is,

by selecting for promotion only non-minority firefighters. The

majority's interpretation would have provided an incentive for fire

departments not to promote the black and Hispanic firefighters it

hired under the terms of the decree. Every minority firefighter

promoted to an officer position would have been another black or

Hispanic member of the department that did not count towards the

calculation of parity.

Although there is no evidence in the record that the

Boston Fire Department ("BFD") has ever discriminated against black

and Hispanic firefighters in its previous promotion decisions, the

majority's interpretation of the decree creates an incentive for

discriminatory behavior for those municipalities still subject to

the decree after the resolution of this case. I cannot imagine

that the plaintiffs in the Beecher litigation and the district

-50-
court would have decided upon a remedy that provides incentives so

at odds with the purpose of the litigation and the relief ordered.16

II. Narrow Tailoring

To support its interpretation of the Beecher decree, the

majority contends that the interpretation advanced by the city and

the NAACP "would mean that the Beecher decree was not narrowly

tailored to serve its stated purpose." In elaborating on this

point, the majority raises another argument that was not raised by

the Candidates:

Such an interpretation would effectively
transform an instrument carefully crafted to
eliminate discrimination in recruitment and
hiring into general leverage favoring
minorities in a much wider variety of matters.
In most of those areas -- promotion is a good
example -- no justification for systematic
preferential treatment of minorities has been
established.

As I understand it, the majority reasons that the interpretation of

the Beecher decree advocated by the NAACP and the city would

impermissibly benefit minority firefighters by somehow giving them

preferences for promotions even though the Beecher court made no

16
In a footnote to its opinion, the majority cites this point
as evidence that I do not understand the difference between strict
scrutiny and rational basis review. Self-evidently, I make this
point only in support of the original meaning of the decree
advanced by the defendants and acknowledged by the Candidates. I
do not proffer it as a constitutional basis for upholding the
decree. My conclusion that this original interpretation of the
decree is constitutional, or more specifically, that it is narrowly
tailored to a compelling government interest, is presented in the
section that follows.

-51-
findings regarding the constitutionality of the promotion policies

of the fire departments subject to the decree. This effect of the

Beecher decree, the majority concludes, would render it

unconstitutional.

I disagree with this conclusion because the decree does

not in fact have the effect of granting minorities preferential

treatment in promotions. That is, I fail to see how merely

calculating parity by taking the entire department into

consideration leads to a "systematic preferential treatment of

minorities" in the promotion process. First, there is no evidence

in the record that minority firefighters hired in accordance with

the Beecher decree have received preferences for promotions.

Therefore, the majority's conclusion about such an effect is

entirely speculative. Second, the logic of the majority's

"preferential treatment" argument is problematic. By its terms,

the Beecher decree does not explicitly address the promotion

policies of the BFD or any other fire department in any way.

Whether parity is calculated by taking into consideration merely

entry-level firefighters, or by also including lieutenants,

captains, and chiefs, the decree does not mandate changes in the

department's promotion practices. Because the criteria for

promoting firefighters, whatever they may be, are independent from

the hiring criteria, the Beecher court's alterations to the BFD's

hiring criteria have no effect on its promotion criteria.

-52-
Therefore, whether or not the Beecher decree continues to direct

the method by which the department hires new firefighters, we can

only assume, without any evidence to the contrary, that the

department will continue to decide promotions in the same way it

always has.

True, by design, the decree results in an increase in the

diversity of the class from which the BFD selects the firefighters

for promotion. However, this consequence of the decree cannot be

"general leverage favoring minorities." In any organization that

promotes from within, the application of a hiring decree that

results in the employment of minorities that otherwise would not

have been hired necessarily increases the possibility that some of

those minorities will be promoted to officers and thereby change

the racial makeup of the officer ranks. Just because the decree

has the consequence of changing the racial composition of the pool

of those eligible for promotions does not mean that it is

unconstitutional.

III. Changed Circumstances

As noted, the Candidates concede that, "[w]hen the

Beecher decree was originally conceived, its apparent goal was to

generate racial parity in the Fire Department as a whole, as

opposed to merely the firefighter ranks." However, they argue that

after twenty-eight years, "a different analysis must be used if the

decree is to be implemented in a constitutionally acceptable

-53-
manner." Specifically, the Candidates point to three changed

circumstances that they claim require a revised interpretation of

the decree. First, they say that it has become evident over time

that the decree is ineffective for the purpose of generating racial

diversity in the upper ranks of the BFD. Second, the Candidates

remind us that twenty-eight years have elapsed since the entry of

the Beecher decree, and argue that this is simply too long to wait

for the realization of rough parity. Third, when the scope of the

inquiry is restricted to consideration of only entry-level

firefighters, statistics show that the percentage of minority

firefighters exceeds the percentage of minorities in the community,

resulting in an "excess of parity" at the entry level.

Frankly, I am at a loss to understand this third "changed

circumstance" as a discrete argument. The Candidates offer two

variations of "excess of parity." In the first, the Candidates use

a computation of parity that the majority has rightly rejected.

That computation reflects the difference between the percentage of

minority firefighters (39.9%) and the minority population of Boston

aged 18 and older (32.6%). I agree with the majority that stare

decisis requires the use of the percentage of minorities in the

general population, rather than the adult population, as the second

variable for gauging parity. In the alternative, the Candidates

assert that "even assuming that general population statistics are

to be considered, the minority composition of the Department's

-54-
firefighters (39.9%) exceeded the minority composition of the

general population of Boston (38.3%)." However, after conceding

that "[w]hen the Beecher decree was originally conceived, its

apparent goal was to generate racial parity in the Fire Department

as a whole, as opposed to merely the firefighter ranks," the

Candidates do not use this formulation of "excess of parity" to

articulate a distinct constitutional argument. Instead, they use

the statistics as evidence that the decree is not effective for the

purposes of achieving this "apparent goal" of racial diversity in

the upper ranks of the BFD. Hence, because "excess of parity" in

the firefighter rank is inescapably tied to the first "changed

circumstance" argument relating to the ineffectiveness of the

decree, I will not address this "excess of parity" argument

independently. Instead, I will incorporate my discussion of excess

parity in the ineffectiveness argument.

While modification of a consent decree is warranted if

there is "a significant change either in factual conditions or in

law," Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384

(1992), "a party seeking modification of a consent decree bears the

burden of establishing that a significant change in circumstances

warrants revision of the decree." Id. at 383. The Candidates have

failed to carry this burden.

-55-
A. Ineffectiveness of the Decree.

The Candidates assert that although 39.9% of entry-level

firefighters in the BFD are minorities, only 6.2% (22 of 350) of

uniformed personnel above the rank of firefighter are minorities.

They assert that "after 28 years, this is not a temporary status,"

and that continuation of the decree will only increase disparity in

favor of minorities at the entry level. Claimants argue that this

changed circumstance implicates narrow tailoring because the

Beecher decree has proven ineffective in achieving its goals. In

other words, the unexpected barrier between the entry-level and the

upper ranks, experienced by minorities within the BFD, demonstrates

that the race-conscious hiring process is not narrowly tailored to

serve the decree's goals of parity within the BFD.

Interestingly, the majority's narrow tailoring argument

and the Candidates's narrow tailoring argument are based on

contradictory factual premises. The majority rejects the inclusion

of higher ranks in the computation of parity because, in part, such

inclusion unconstitutionally transforms the decree into an

instrument of "general leverage favoring minorities" in promotions.

By contrast, the Candidates assert that the decree is

unconstitutional because it is ineffective in furthering the

promotion of minorities to the upper ranks.

There are two ways to understand the Candidates'

ineffectiveness argument. The Candidates may be arguing that the

-56-
Beecher decree, as originally conceived, requires parity at both

the entry-level and among the upper ranks. Because of the alleged

barrier to the promotion of minority firefighters, the Candidates

contend that the decree is ineffective in achieving this goal.

Alternatively, they may be arguing that the purpose of the decree

is to achieve parity in the department as a whole, irrespective of

the distribution of minorities at all levels of the department.

Given the barrier to promotions, they assert that the only way this

parity can be achieved is indirectly -- that is, by impermissible

"overloading" of minorities at the entry-level to "offset" the lack

of diversity in the upper ranks -- and that this effect is fatal to

narrow tailoring. I will address separately these variations of

the ineffectiveness argument.

1. Parity at the Entry Level and in the Upper Ranks

The Candidates's first ineffectiveness argument is

premised on their characterization of the original purpose of the

decree, described as an assumption. That is, they attribute to the

district court in Beecher the assumption that "once the

discriminatory effects of the entrance hurdles were removed,

minorities would trickle through the fire department somewhat

evenly." There is a basic flaw in this premise. At the time the

Beecher decree was entered, the percentage of minority firefighters

in the BFD was less than one percent. It would have been pointless

for the Beecher court to make any assumptions about promotion

-57-
practices when the total number of minorities in the BFD was

negligible. Moreover, the court did not enter its decree only to

remedy discrimination in the Boston fire department. The Beecher

court made fifty-five other municipalities in Massachusetts subject

to the Beecher decree, and specifically noted the

disproportionately low percentage of minorities in the "total

force" of other towns.17 Essentially, there were few minorities to

promote in any of the cities or towns, and the Candidates never

explain why the Beecher court would have made any assumptions about

promotion practices. Therefore, it is unpersuasive to attribute to

the Beecher court the assumption described in the Candidates' brief

that "once the discriminatory effects of the entrance hurdles were

removed, minorities would trickle through the fire department

somewhat evenly." Instead, it is more reasonable to attribute to

the Beecher court the goal reflected in the explicit language of

the decree: "a complement of minorities commensurate with the

percentage of minorities" within each municipality. Beecher, 371

F. Supp. at 523. The City, an original party to the decree, states

17
"The City of Springfield has a black population of
approximately 13%. Of 475 firefighters in that city, one is black
and none are Spanish-surnamed. The one black represents 0.2% of
the total force. The City of Cambridge has a black population of
6.1%, and a fire fighting force of 305 men, four of whom are black;
one is Spanish-surnamed. They represent approximately 2% of the
total force. New Bedford has a black population of approximately
3.5%. Minorities represent approximately 1% of the fire force.
Worcester has a black population of approximately 2%. Minorities
represent 1% of the fire force there." Beecher, 371 F. Supp at 514
(emphasis added).

-58-
the purpose of the decree well in its brief: "increasing the total

gross proportion of minority fire personnel in each appointing

authority."

Indeed, as noted earlier, the Beecher court discusses the

purpose of the decree in its original opinion ordering remedial

action and establishing the framework for the subsequent consent

decree. There it states that in 1974 "blacks and Spanish-surnamed

persons represent such an insignificant percentage of the force,"

and that these "present effects of past discrimination must be

remedied." Beecher I, 371 F. Supp. at 519-20. The decree says

nothing about anticipating racial proportionality in both the

entry-level and the upper ranks. The Candidates' argument of

ineffectiveness in achieving such proportionality fails because it

is premised on a goal that is nowhere discernible in the Beecher

decree or decision.

2. Parity in the Department as a Whole

Even if the purpose of the Beecher decree is to diversify

the entire department, without regard to the even distribution of

minorities in the entry level and upper ranks, the Candidates argue

that, given the barrier to minority promotion in the department,

continuation of the decree will only increase disparity in favor of

minorities at the entry level. From this changed circumstance, the

Candidates offer a complicated narrow tailoring argument that does

not lend itself to easy summary. Hence, I quote it at length:

-59-
 If the method of promotion is appropriate, is
not discriminatory, and nevertheless leads to
racial disparity at the top levels, then it is
inappropriate to try to "offset" legitimate
promotions with an increased minority presence
at the bottom. In other words, parity may
currently exist in the upper levels of the
Fire Department, in that it may reflect the
appropriate proportion of minorities in the
qualified labor pool for such promotions. . .
. If so, this parity can not be used to
justify further hiring quotas in the lower
ranks.

In the alternative, if lack of minorities at
the top levels is the result of a
discriminatory promotional procedure (of which
there is no proof), the requirement to
"narrowly tailor" racial preferences requires
that the specific promotional problem be
addressed directly, and not indirectly through
affirmative action at the lowest level.
Indeed, more minorities in a lower position
does not remedy the problem of a
"discriminatory" promotional process.

To comply with strict scrutiny, a racial
remedy must be effective. It is inappropriate
to address alleged disparity in the upper
ranks indirectly using racial preferences to
fill the lower ranks, when minorities are not
being promoted in proportionate numbers.

The Candidates's narrow tailoring argument asserts that

there are only two possible causes for the discrepancy between the

percentage of minorities at the entry-level and the percentage of

minorities in the upper ranks: (a) the low percentage of minorities

in the upper ranks is an accurate reflection of the qualified

applicant pool, or (b) the low percentage of minorities reflects

discrimination in the promotion process. They say that if the

barrier to promotion is due to the lack of qualified minority

-60-
applicants, then the decree is not narrowly tailored because it

requires the overloading of minorities at the entry-level to offset

this dearth of minorities qualified for the upper ranks.

Alternately, if the barrier to promotion is due to discrimination,

the decree is ineffective in addressing this problem because it

focuses only on hiring practices. Since there are only two

possible causes of the discrepancy between the percentage of

minorities at the entry-level and the percentage of minorities in

the upper ranks, and each cause demonstrates that the decree is not

narrowly tailored to serve the decree's goals of parity within the

entire Fire Department, the Candidates argue that this "conundrum,"

as they describe it, conclusively proves that the decree fails the

narrow tailoring test.

This logic reveals another flawed premise. Causes (a)

and (b) do not represent the universe of possible explanations for

the discrepancy. In fact, the City offers a third plausible and

constitutionally sound explanation. Based on its experience with

public employment affirmative action programs, the City posits that

it may just take a long time for affirmative action measures at the

entry level of the BFD to influence minority representation in the

higher ranks. Instead of being evidence of a barrier to promotion,

the fact that only 6.2% of the higher ranks of the department is

minority may evidence an inescapably slow process of growing

diversity throughout the department. At the time the Beecher

-61-
decree was implemented in 1974, minorities represented only 0.9% of

the total BFD. Beecher I, 371 F. Supp at 514. While far from

representative of the minority population of the community, the

6.2% minority representation in the upper ranks is a significant

increase indicating that the decree, however slowly, is fostering

diversity in the upper ranks. Indeed, there has been a

demonstrable increase in the number of minority officers recently.

The City's response to the Candidates' interrogatories, included in

the summary judgment record, indicates that there were 17 minority

officers in 1998, 18 in 1999, and 22 in 2000. Over a span of two

years, the percentage of minority officers increased from 4.8% to

6.2%.

Moreover, the slow rate of change in the officer ranks is

not surprising in an organization the size of the BFD. While the

department employs over 1500 firefighting personnel, only 350 of

those hold officer positions -- less than 25 percent. Although the

record reveals that it is not uncommon for Boston to hire 50 new

firefighters in a particular year, it is highly unlikely that a

department with only 350 officer positions will promote that many

over the same time period. Because the annual promotion rate will

generally be much lower than the annual hiring rate, evidence that

minorities are not penetrating the upper levels of the department

as quickly as the entry level is predictable. In concluding that

there is an intractable barrier to minority promotion in the

-62-
department merely because there are only 22 minority officers, the

Candidates take too grudging a view of progress.

With their conundrum argument, the Candidates have

constructed an argument designed to succeed on the basis of logic

instead of proof: because both of the possible explanations for

the discrepancy between the percentages of minorities in the entry-

levels and upper ranks indicate a lack of narrow tailoring, they

assert that they do not have to prove the reality of either

explanation. However, as noted, the logic is faulty because it

fails to account for other plausible and constitutionally sound

explanations for the discrepancy. Therefore, even on the

assumption that there might be a narrow tailoring problem with the

Beecher decree if either of the Candidates' explanations of the

discrepancy were real (unqualified applicants for promotion or

discriminatory promotion practices), the Candidates must offer

proof of one of these explanations. They have failed to do so.

As the Candidates themselves point out, there is no

evidence of discriminatory promotion practices. The alternative

"unqualified applicants" explanation18 is objectionable on a number

of grounds. First, the Beecher court found that the entrance

examination for firefighters was not indicative of job performance

18
The Candidates elaborate on this explanation as follows:
"[B]ecause affirmative action benefits minorities that score lower
on the entrance examinations . . . [w]hen these lower scorers seek
promotions, they are competing against non-minorities who have
scored at the very top of the entrance examination."

-63-
and had a discriminatory impact on minorities. Beecher 371 F.

Supp. at 517-18. Second, as we made clear in Mackin, 969 F.2d at

1278, the Beecher court specifically designed the decree to require

the hiring of only qualified applicants. Third, the Candidates

themselves assert that the entry-level and promotional positions

have "markedly different skill, experience and knowledge

requirements," making performance on the entrance examination of

little relevance to promotional success. There is simply no proof

in this record that the 6.2% statistic represents the "appropriate

proportion of minorities in the qualified labor pool for such

promotions."

The Candidates bear the burden of proving the existence

of changed circumstances undermining the constitutionality of a

consent decree. Rufo, 502 U.S. at 383. Mere recitation of the

current statistics describing the racial composition of the entry-

level and upper ranks is insufficient. Thus, the Candidates have

failed to carry their burden of proving substantial changed

circumstances affecting the constitutional validity of the decree.

B. Duration of the Decree

Although we rejected this argument when we decided

Mackin, the Candidates argue that the passage of time (now twenty

eight years) is itself a changed circumstance that demonstrates the

ineffectiveness of the Beecher decree. That argument is as

unpersuasive now as it was when we decided Mackin. Then we said:

-64-
 [T]he decree's life is limited, remaining in force
only until its requirements have been met. . . .
Indeed, the proof of the present pudding is that,
since 1974, more than fifty percent of the
communities originally affected by the decree have
already been freed from further oversight.

Mackin, 969 F.2d at 1278 (citations omitted).

Today, the fifty percent figure cited in Mackin ten years

ago has reached eighty percent, with forty-five out of fifty-six

communities originally affected by the decree having now achieved

parity and thus exclusion from further oversight. The Beecher

decree remains limited in duration because it is extinguished upon

the achievement of a demonstrably attainable rough parity. See

Beecher, 371 F. Supp. at 523 (providing for release from

appointment process mandated by the decree "as a city or town

achieves a complement of minorities commensurate with the

percentage of minorities within the community"). Limitations of

this sort are crucial factors in evaluating overbreadth challenges.

See Stuart v. City of Boston, 951 F.2d 446, 454 (1st Cir. 1991).

Nothing about the race-conscious appointment process of the Beecher

decree resembles "remedies that are ageless in their reach into the

past, and timeless in their ability to affect the future." Wygant

v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986); see also City of

Richmond v. J.A. Croson Co., 488 U.S. 469, 498 (1989). With so

much compliance elsewhere, and with so much progress in Boston

towards rough parity, the mere passage of time does not demonstrate

the decree's ineffectiveness.

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 IV. Conclusion

At least since our decision in Mackin ten years ago, the

Beecher decree has had a settled meaning. Pursuant to that settled

meaning, the fire departments of eighty percent of the

municipalities subject to the Beecher decree have achieved

compliance with it. Now, faced with a renewed challenge to the

decree by Candidates who feel themselves unfairly barred from

employment opportunities in the BFD, the majority finds new meaning

in an old decree. I disagree with that conclusion. It cannot be

reconciled with our precedent in Mackin, sound principles of

interpretation applicable to a consent decree, or the history of

this case. Taking a different tack, the Candidates challenge the

Beecher decree by constructing changed circumstances arguments that

are unpersuasive because of faulty logic, the absence of proof, and

prior rejection in Mackin.

The Beecher decree is not just about the BFD. It was and

remains a decree applicable to other cities and towns in

Massachusetts. Although it is regrettable that the substantial

progress of the BFD in ending its discriminatory hiring practices

has not yet reached the goal of rough parity required by the

decree, that remaining gap is no justification for altering a

decree which requires, with a formula now long accepted, that the

"present effects of past discrimination must be remedied."

Beecher, 371 F. Supp. at 520. Until that gap is closed, the

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remedial purpose of the decree remains unfulfilled. We should stay

the course, not abandon it. I respectfully dissent.

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